Bench Bulletin Issue 26

8/9/2019 Bench Bulletin Issue 26

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Strathmore Law School Annual LawConference

Kenya Law Hosts the Deputy ChiefJustice of the Republic of South Sudan

p20p06enya Law’s Attendance of thessociation of Reporters of Judicialecisions (ARJD) Conference

p34



The Kenya Law Android app contains:

The Constitution of Kenya, 2010.

Selected Statutes of high public interest.

The Kenya Gazette.

Cause List (integrated with Kenya Law’s website).

Case Search (which is integrated with KenyaLaw’s Case law database).

The Kenya Law Android app

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CONTENTS THE BENCH BULLETIN

» p.20

» p.23

01 Editor’s Note

02 Remarks by The Hon. Chie Justiceat the Launch O The LSK LegalAwareness Week at Milimani Law

Courts, Nairobi

04 What they Said

06 Strathmore Law School Annual LawConference

14 LEGISLATIVE UPDATE: Synopsis oBills and Acts o Parliament

16 Kenya Law Hosts the Deputy ChiefJustice of the Republic of SouthSudan

20 Kenya Law Participates in The LSK

Annual Justice CupCOMMENTARY

26 The Constitution o Kenya 2010:Decolonizing Kenya’s Jurisprudence

30 Kenya Law’s Attendance of the

Association of Reporters of Judicial

Decisions (ARJD) Conference - Denver,Colorado on Campaign Donationsunconstitutional.

» p.37



iThe Council

The Hon Lady Justice R NambuyeJudge of the Court of Appeal of Kenya

The Hon Lady Justice Lydia AchodeJudge of the High Court of Kenya

Prof Githu Muigai, SC

Attorney General

Prof Annie Patricia G Kameri-Mbote, SCDean, School of Law, University of Nairobi

Ms Christine AgimbaDeputy Solicitor General, State Law Ofce

Mr Evans Monari Advocate, Law Society of Kenya

Ms Florence Muoti Mwangangi Advocate, Law Society of Kenya

Mr Silvester Migwi, Ag Government Printer,

Government Press(Represented by Ms Eva N. Githinji, Senior Printer,Government Press.

Long’et Terer Ag Editor/CEO

MEMBERS OF THE COUNCIL FOR KENYA LAW

Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi

Chief Registrar, The Judiciary

Mr Justin BundiClerk of the Kenya National AssemblyRepresented by Samuel Njoroge, Dep. Director,Legislative and Procedural Services

Mr Jeremiah M NyegenyeClerk of the Senate Represented by MrsConsolata Munga

Mrs Flora Mutua

Senior Management Consultant, Directorate ofPersonnel Management Services,Ministry of Devolution and Planning

Mr Joash DacheSecretary/CEO Kenya Law Reform Commission

Dr. Willy M. Mutunga, D. Jur., SC, EGHChief Justice, President of the Supreme Court of Kenya/Chairman

Disclaimer:While the National Council or Law Reporting has made every eort to ensure both the accuracy and comprehensivenesso the inormation contained in this publication, the Council makes no warranties or guarantees in that respect andrepudiates any liability or any loss or damage that may arise rom an inaccuracy or the omission o any inormation.



A QUARTERLY PUBLICATION BY KENYA LAW

WhereLegal Information is Public Knowledge6 Issue 26, July - September 2014ii

This Work by National Council for Law Reporting (Kenya Law) is licensed under the Creative CommonsAttribution-ShareAlike 3.0 Unported License. (CC BY-SA 3.0)

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BB • Issue 26, April - September 2014 Creative Commons



1

BB • IIssue 26, July - September 2014 feature Case

Editor’s Note

Ag Editor/CEO’s Note

Longe’t Terer(Ag CEO/Editor)

Editor’s Note

As the year is slowly drawing to a close it is yet another opportunetime or us to relook at our goals and to reassess how ar wehave gone in realizing them. Kenya Law has been involved in

various activities, in the past few months, to ensure that this review ofour annual goals, and the progress we have made on them is done in acomprehensive and inclusive manner. As we have been going through this process I was struck by how muchinformation we hold and even more so how we are able to ensure that thisinormation is properly organized and presented to people throughoutthe world. The internet has been a very useul resource in this regardand the communication that it makes possible is facilitated by all thecommunication satellites that revolve around the world and which areable to beam information from one corner to another, in the blink of aneye. It is eye opening to note that there are approximately 3,000 satellitesorbiting the earth. These satellites were placed in space rom the year1957 when USSR launched the rst articial satellite, Sputnik 1. Since

then many other nations have followed suit and sent numerous othersatellites to space. The longest running space mission is Voyager probeII which was launched in 1977 by NASA. The knowledge that these space exploratory missions have broughtwithin our grasp has enabled humanity to look at the universe rom adierent, and more inormed, perspective. In a similar way, technologyhas also transormed our Institution and the manner in which wedischarge our mandate or the better. As Kenya Law sets down its plans for the future we are determined to

ensure that our plans will stand the test of time; and that 30 years fromnow, the activities we have undertaken so far will be seen as compliments

to the needs that will exist then.

Long’et Terer

Ag CEO/Editor




WhereLegal Information is Public Knowledge2 Issue 26, July - September 2014

CJ’s Message

The Hon. Dr. Willy Mutunga, D. Jur.,SC, EGH Chief Justice, President,Supreme Court of Kenya

The Chairman of the Law Society of Kenya,Council Members of the LSK,Ladies and Gentlemen:

It gives me great pleasure to join you at the start o a week-long series oactivities to promote legal literacy, pro bono services and legal aid not just in Nairobi but also in your branches countrywide.

The Legal Awareness Week comes at a critical time in our country, whenthere are numerous public debates on law that occur in spite of the factsand without the benet o legal erudition.

The Law Society o Kenya has a statutory mandate to advise and assistmembers o the legal proession, the government and the larger public in

all matters relating to the administration o justice.

Legal aid or those who are unable to aord the services o a lawyer needto increase, even as the public is encouraged to seize the opportunities orsel representation now opened by the Constitution o Kenya 2010. Still,while the membership o the LSK must continue to oer legal assistanceaid to the indigent and powerless, it must also extend its services to thepowerul and unaware.

Legal awareness appears lowest among holders o public oce, thusrequiring the LSK to urgently expand its legal awareness programmes tothe elite as well. Civic education is required both or the masses as it isor the elite. Recent attacks on the Judiciary suggests that the elite doesnot understand how court processes work, or if they do, they still need tobe educated on why they need to respect those same processes.

Those who hold public oce must be reminded that momentary egotrips against the Constitution and the law oten produce expensive errors.Ocious postures o intransigence against the law ultimately only delivera costly invoice to the ordinary citizen.

A lawyer’s professional responsibility does not die or end at the dooro politics or power. Advocates have a lielong rendezvous with destiny

regardless o where they are: in practice, on the bench, in business, inindependent commissions, or in church service. The delity to proessionalethics is a permanent duty.

Remarks by The Hon. The Chie Justice atthe Launch O The LSK Legal AwarenessWeek at Milimani Law Courts, Nairobi

On October 27, 2014

CJ’s Message



3 CJ’s Message

That said, there is also need to take stock o our situation. Even at 7,000members, the number of lawyers is inadequate to serve a population ofover 40 million Kenyans. A recent study by the Judiciary’s PerormanceDirectorate in 2012/2013 ound thatKenyans led about 54,000 cases

in the High Court alone. The Judiciary has 90 High Court judges, whichmeans that, on average, each judge has 600 cases rom one yearalone. Even i all the 90 judges were sitting throughout the year withoutweekends and holidays, they would take about three years to concludeone year’s matters. We can draw similar parallels or the other courts.This situation is not sustainable. It is the reason Kenyan needs more judges, magistrates and lawyers; but it is also the reason the Judiciaryis encouragingalternative dispute resolution mechanisms. I commendthe Law Society or initiating processes to embrace alternative disputeresolution in consonance with Article159 o the Constitution.

My hope is that part o the legal awareness the LSK will be carrying out

will embrace alternative dispute resolution. We must retire the commonmisconception that lawyers only make their ees when cases go tocourt. The Judiciary is concluding its Alternative Justice System pilotprogrammes, with the intention o rolling out in January 2015. I hope wecan, as always, count on the support and partnership o the LSK.

The theme o this year’s Legal Awareness Week, Justice throughSustainable Legal Aid, should remind us that the law is only thehandmaiden o a higher purpose – the delivery o justice. That is whylawyers orego nancial gain to do public good.

One o the most endearing attributes o the legal proession is to be ableto deliver services or the public good, especially without charge. Thetradition of pro bonoservice is a distinguishing eature o great the legal raternity. I am gladthat that tradition is truly alive and well. Which lawyer would not exult init? Which former chairman of the LSK would not celebrate it, and whichChie Justice would not take pride – as I do – in seeing in it action?

Ladies and Gentlemen: It is now my great pleasure to declare the LegalAid Awareness Week ocially launched, with a clarion call to members:Do not cease to give civic education ater the Legal Aid Week.

Thank you.

HON. DR. WILLY MUTUNGA, D.Jur, SC, EGHCHIEF JUSTICE/ PRESIDENTTHE SUPREME COURT OF KENYA

BB • Issue 26, July - September 2014 CJ’s Message



4A QUARTERLY PUBLICATION BY KENYA LAW

WhereLegal Information is Public Knowledge Issue 26, July - September 2014

What they Said

“ The question o timeliness in ling and determining election petitions asset by the Constitution and the Elections Act, section 85A(a) are neithernegotiable nor could they be extended by any court or whatever reason.Section 85A o the Elections Act is neither a legislative accident nor aroutine legal prescription. It is a product o a constitutional scheme thatrequires electoral disputes to be settled in a timely ashion”.

“The Supreme Court is the very centre piece o the novelty o the governanceset-up o the new constitutional dispensation. The political and constitutionalstature o the court runs in tandem with a generic conerment o jurisdiction, ascenario that is fundamentally alien to the closed-in outlook of earlier politico-legal structures as depicted in the Motor Vessel “Lillian S” case”.

“In Kenya, there is no express or implied requirement that where 2 children areinvolved in sexual penetration, both o them are to be charged with the oenceo delement. However, the absence o such a requirement would not preventthe ling o criminal charges against both children”

“The distribution o unctions between the national government and thecounty government was distinct rom the allocation o unctions made tolocal authorities beore the devolved system o government came into eect.The structure o government provided or under the Constitution o Kenya2010 was not comparable to the local authorities system provided for underthe repealed Local Government Act (Cap 265) (repealed)”.

Justice Isaac Lenaolain Okiya OmtatahOkoiti & another vAttorney General & 6others, Petition 593of 2013

High Court Judge fA Ochieng in C K W vAttorney General &another, Petition No 6

of 2013

Supreme Court JudgeJ B Ojwang, in AnamiSiverse Lisamulav IndependentElectoral andB o u n d a r i e sCommission & 2others, Petition No 9

of 2014

Supreme Court Judges WM Mutunga, CJ & P, K HRawal, DCJ & V-P, P K Tunoi,M K Ibrahim, J B Ojwang,S C Wanjala & S N Njoki inEvans Odhiambo Kidero& 4 others v FerdinandNdungu Waititu & 4 othersPetition No.18 of 2014(consolidated with PetitionNo. 20 of 2014)

BB • Issue 26, July - September 2014 What They Said



5 What they Said

What they Said

“The premium upon which the people o Kenya placed on the right to habeascorpus was emphasized by the act that until the promulgation o theConstitution o Kenya 2010, the right to habeas corpus was guaranteed onlyby statutory provisions under section 389 o the Criminal Procedure Code ondirections in the nature o habeas corpus. Under the new Constitution, theright to habeas corpus was entrenched in the bill o rights under article 51(2) by declaring the right as one o the only our (4) rights and undamentalreedoms in the bill o rights that could not be limited”.

High Court Judge EM Muriithi, in MasoudSalim Hemed &another v Director ofPublic Prosecution& 3 others, PetitionNo 7 & 8 of 2014(consolidated)

“Equal pay or equal work or work o equal value was recognized as aundamental human right. That right is now recognized under Article 41o the Constitution o Kenya. The International Labour Organization (ILO)Declaration o Philadelphia o 1944, which was part o the ILO Constitution,armed that all human beings, irrespective o race, had the right to pursueboth their material well-being and their spiritual development in conditions oreedom and dignity, and o economic security and equal opportunity”.

“In issuing the directive that all vehicles with tinted windows be impoundedwithout making a distinction between public service vehicles and privateones, the Respondent had obviously purported to exercise powers he didnot have. The eect o such directive was to amend the Trac Rules inparticular rule 54A and expand the ambit and application o the said rule”

Industrial Court JudgeRika J in David WanjauMuhoro v Ol PejetaRanching limited Causenumber 1813 of 2011

High Court judge G VOdunga in Republicv Inspector Generalof the NationalPolice Service,David Kimaiyo Exparte Akitch Okola,M i s c e l l a n e o u sApplication No. 183of 2014

“There was a undamental shit in the labour relations environment in Kenyawith the enactment o the Employment Act, 2007 and the Constitution,2010. Employees, whether they were in the public or private sector enjoyeda protective labour environment, that was not always the norm beore.Employers both in the public and the private sphere enjoyed rights regulatedunder the law and the Constitution. Where employers had developedregulations, policies and guidelines beore 2007 and 2010 with regard to thenew labour laws and the Constitution, there was an urgent call or them torealign the regulations, policies and guidelines”.

Industrial Court JudgeM Mbaru in SeverineLuyali v Ministry ofForeign Affairs andInternational Trade &3 others, Petition No.

23 of 2014

What they Said



Law Reporting



Kenya Law participated inthe inaugural StrathmoreLaw School Annual Law

Conference on 3rd and 4th ofJuly 2014 at the Strathmore University groundsin Nairobi. The Conerence themed, Justice andJurisprudence: Nation Building through Facilitating Access to Justice, was graced by Deans rom variousLaw schools around the world including, the Dean oLaw Oxord University, Legal scholars, Practitioners,

Judicial Ocers, Researchers, Law Students and otherinterested Stakeholders both local and international,

The conerence was ocially opened by Hon. Pro.Githu Muigai, Attorney General, who expressedhis optimism that the conference would provideopportunity or debate on legal issues and thereorepromote the exchange and development o legalideas.

RT. Hon. Baroness Patricia Scotland, the formerAttorney General UK gave a detailed account o

her professionalcareer elaboratinghow hard work,determination andfocus can leadone to success.She is the rstAfrican AttorneyGeneral in the UK;the rst woman tohold the position

of AttorneyGeneral sinceits foundationin 1315; and therst woman to beappointed QueensCounsel.

The participantspresented paperson the ollowingtopics: Justice asthe end of law;Justice, immunityand impunity; The

role o jurisprudence in nation building; Governanceand the Common Good; Justice and the legislativeunction; The role o the judiciary in nation building;Access to justice and the role o internationalguidelines and standards; Working towards achievingaccess to justice or all persons and The role oleadership and good governance in attaining a justsociety.

The conerence was also used to launch a bookon the Kenyan constitution written by the Dean,

Strathmore Law school Dr. Luis franceschi and theDirector, Kenya School o Law Pro P.L.O Lumumba,titled The Constitution o Kenya 2010: An introductoryCommentary.

The Chie Justice and Chairman o the NationalCouncil or Law Reporting, Dr. Willy Mutunga, whileclosing the conerence, noted that the creation oa sound legal and constitutional regime and theprovision o justice is every bit as important in nationbuilding as economic and political activities.

Strathmore Law School Annual Law ConferenceBy Long’et Terer (Ag Editor/CEO)

The Chief Justice, Hon. Dr. Willy Mutunga, SC and Former Attorney General of the UK, RT. Hon. Baroness Patricia Scotland at theKenya Law stand at the inaugural Annual Law Conference of Strathmore University on 4th July 2014.



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Laws of Kenya

10 Issue 26, July - September 2014

9th May, 2014. 20 The Civil Aviation (Charges or AirNavigation Services) Regulations,2014.(L.N. 46/2014)

The regulations make provision or thecharges to be paid by the owner o anaircrat making a light in the flightInormation Region, and airspace inKenya outside the flight Inormation

Region the charges prescribed in respecto air navigation services provided. Thecharges are to be paid at the rates and inthe manner determined and notied bythe Cabinet Secretary or Transport andInrastructure.

9th May, 2014. 20 The Trac (Amendment) Rules,2014. (L.N. 47/2014)

The principal Rules are amended byinserting the new Schedule immediatelyater the Thirteenth Schedule to provide orthe registration series o all motor vehiclesbelonging to the County Government.

9th May, 2014. 20 The Public Service Commission(Amendment) Regulations, 2014.(L.N. 49/2014)

The regulations provide or the amendmento the various job groups that havearisen in the Public Service Commissiondierentiating them rom those that werethere previously.

23rd May, 2014 23 The Child Welare Society oKenya Order, 2014.(L.N. 58/2014)

The objective and purpose o this Orderis to provide a legal and institutionalframework for the care, control, protection,welare and adoption o children throughthe establishment of the Child Welfare

Society o Kenya.30th May, 2014. 25 The Marriage Act (General) Rules,

2014(L.N. 61/2014)

These are rules on conduct and registrationo marriages and issuance o marriagecerticates in Kenya.

6th June, 2014. 27 The Labour Institutions(General) Regulations, 2014.(L.N. 63/2014)

The rules seek to provide or the eligibilityfor accreditation, the procedure forapplication for accreditation and thegrant o an accreditation certicate or anemployment agent.

6th June, 2014. 27 The Trade Unions Elections

(Election Petition) Rules, 2014.(L.N. 64/2014)

The rules provide or the ling, presentation,

form and content, and withdrawal ofelection petitions while also providing orthe various scenarios that a claim mayarise after the elections of trade unionocials has occurred.

6th June, 2014. 27 The Labour Relations (Accounts)Regulations, 2014.(L.N. 65/2014)

The regulations seek to provide or themanner in which the treasurer is tomanage the various cash books and bankaccount on behalf of the trade unions orvarious employers’ organizations.



Laws of Kenya 11

BB • Issue 26, July - September 2014

6th June, 2014. 27 The Labour Relations (General)Regulations, 2014.(L.N. 66/2014)

The regulations seek to provide or theapplication, form and maintenance ofthe register o registered trade union oremployers’ organizations and all theirmembers.

6th June, 2014. 29 The National ConstructionAuthority Regulations 2014(L.N. 74/2014)

The legislation clearly provides or the roleo the Authority as regards registration ocontractors, both oreign and local.

12th June, 2014. 31 The Universities Regulations,2014(L.N. 76/2014)

The Regulations set out the requirementsnecessary for the establishment ofUniversities and conduct o academicaairs in the Universities.

13th June, 2014. 35 The Merchant Shipping(Co-operation with Search and

Rescue Services) Regulations,2014. (L.N. 88/2014)

These Regulations shall apply to all shipsregistered under the

Merchant Shipping Act, 2009, that isthose ships that are owned by Kenyans oroperating in Kenyan waters, and providesthat such ships shall prepare a plan inrespect o the ship, setting out the stepsto be taken by those on board for co-operating with the appropriate search andrescue services if the ship requires theassistance of those search and rescueservices failure to which would attract apenalty.

4th July, 2014. 37 The Medical Practitioners and

Dentists (Training, Assessmentand Registration) Rules, 2014.(L.N. 97/2014)

Under these rules the Medical

Practitioners and Dentists Board declaresthe institutions set out in the scheduleas recognized institutions at whichinternship of a medical practitioner maybe undertaken.

11th July, 2014. 38 The Sexual Oences Act (Rulesof Court) 2014(L.N. 101/2014)

The legislation guides court on the hearingand determination of cases under theSexual Oences Act. It emphasizes theprotection of the victims and that ofchildren accused of offences under theSexual Oences Act.

1st

August, 2014. 42 The Science ,Technology andInnovation (Registration andAccreditation of ResearchInstitutions) Regulations, 2014(L.N. 106/2014)

The regulations provide or the criteria oraccreditation of research institutions withthe objective o upholding the standardo research in the Country and securingthe condence in the national researchsystems.

1st August, 2014. 43 The National Payment SystemRegulations, 2014(L.N. 109/2014)

The regulations provide or theauthorization and oversight o paymentservice providers, designation o paymentsystems, designation o paymentinstitutions and Anti-money launderingmeasures.



Laws of Kenya12


A) NATIONAL ASSEMBLY BILLS

1. Public Finance Management (Amendment) Bill,

2014.

Kenya Gazette Supplement No. 35 (National Assembly

Bills No. 14)

The principal object o this Bill is to amend the Public

finance Management Act (No. 18 o 2012) to provide

for the receipt of proceeds of any loan raised or

external government security issued under the Act

and to ensure smooth implementation o the Act.

2. Traditional Health Practitioners Bill, 2014.

Kenya Gazette Supplement No: 59 (National Assembly

Bills No. 20)

The main purpose o this Bill is to make provision or

the training, registration and licensing o traditional

health practitioners and to regulate their practice. TheBill also provides or the establishment, composition,

unctions and powers o the Traditional Health

Practitioners Council o Kenya. It is proposed that

the Council shall be the regulatory body in respect o

the training, licensing and control o the practice o

traditional health practice in Kenya.

3. Statutes Law Miscellaneous (Amendments) Bill,

2014.Kenya Gazette Supplement No.75 (National Assembly

Bills No. 24)

The Bill seeks amendments to various Acts. Some

o the Acts which have been amended include: The

Interpretation and General Provisions Act (Cap. 2), The

Advocates Act (Cap.16), The Criminal Procedure Code

(Cap. 75), The Prisons Act (Cap. 90), The Retirement

Benets Act (Cap. 197) among others.

4. Finance Bill, 2014.

Kenya Gazette Supplement No. 87 (National Assembly

Bills No.25)

The main purpose o this Bill is to amend the laws

relating to various taxes and duties and or matters

incidental to the sector o nance.

5. Supplementary Appropriation (No. 2) Bill, 2014.

Kenya Gazette Supplement No.92 (National Assembly

Bills No.26)

The objective o this Bill is to authorize the issue ocertain sums o money out o the Consolidated fund

and their application towards the service of the year

ending on the 30th June, 2014, and to appropriate

those sums or certain public services and purposes.

6. Appropriation Bill, 2014.

Kenya Gazette Supplement No.93 (National Assembly

Bills No.27)

The principal object o the Bill is to authorize the issueo a sum o money out o the Consolidated fund and

its application towards the service o the year ending

on the 30th June, 2015 and to appropriate that sum

or certain public services and purposes.

7. Central Bank (Amendment) Bill, 2014.

Kenya Gazette Supplement No. 110 (National

Assembly Bills No.28)

The principal object o this Bill is to amend theCentral Bank Act to acilitate improved access to

Government securities by Kenyans, particularly low

income earners. The Bill requires the Bank to put

in place mechanisms to establish lower minimum

denominations and electronic transactions in the

issuance o public debt instruments.

8. Public Service (Values and Principles) Bill, 2014.

Kenya Gazette Supplement No. 112 (NationalAssembly Bills No.29)

The principal object o the Bill is to give eect to the

LEGISLATIVE UPDATE: Synopsis o Bills and Acts o ParliamentBy Stanley Mumo and Suzan Nabifo (Laws of Kenya Department)





Laws of Kenya


Kenya Gazette Supplement No.81 (Senate Bills No.23)

The principal object o this Bill is to provide a

ramework or the realization o the right to be ree

rom hunger and to adequate ood o acceptable

quality as guaranteed under Article 43(3) o the

Constitution. This Bill thereore provides a ramework

and mechanisms through which the national and

county governments shall ulll their obligations in

relation to ood security.

6. County Retirement Scheme Bill, 2014.

Kenya Gazette Supplement No. 96 (Senate Bills No.

25)

The principal object o this Bill is to establish the

County Retirement Scheme as a mandatory Scheme

or all County Government Ocers; provide or the

establishment o the Scheme’s Board o Trustees

and provide or the Scheme’s management and

administration. The proposed Scheme will transition

the ormer local authorities’ retirement arrangements

into one universal scheme for all the forty seven

county governments besides being open to other

public ocers and any other person approved by the

Board.

7. Public Fundraising Appeals Bill, 2014.

Kenya Gazette Supplement No. 99 (Senate Bills No.

28)

The main object o this bill is to provide or the

establishment o regulatory mechanisms at the

national and county levels which oversee the conduct

o undraising appeals, to provide or the licensing

and regulation o undraisers, the promotion o

transparency and accountability to the carrying out o

undraising appeals and to oster greater philanthropy.

8. National Police Service (Amendment) Bill, 2014.

Kenya Gazette Supplement No. 103 (Senate Bills

No.29)

The Bill proposes to amend the National Police

Service Act, No.11A o 2011, seeking to give eect to

the provisions o Articles 238, 239,243,244 and 247 o

the Constitution. The Bill, in recognition o the critical

role o reserve police ocers in the maintenance o

security, proposes to amend sections 110 and 115 of

the National Police Service Act in order to strengthen

the ramework or the engagement, training and

remuneration o police reservists.

9. Universities (Amendment) Bill, 2014.


No.31)

The principal object o this Bill is to amend the

Universities Act, No. 42 o 2A12, so as to provide or

liaison and coordination between the Commission

or University Education and the county governments

on matters of provision of university education at the

county level o government.

10. County Early Childhood Education Bill, 2014.


No.32)

The principal object o this Bill is to provide a

framework for the implementation of early childhood

education by the county government in line with its

unctions as set out under the fourth Schedule o the

Constitution. The county governments are conerred

with the responsibility o ensuring the implementation

o early childhood education in the counties.

C) ACTS

1. Insurance (Amendment) Act, 2014

Kenya Gazette Supplement No. 33 (Act No. 1)This Act amends several sections o the Insurance

Act (Cap. 487). The Act, among others, provides

or the objectives o insurance supervision and the

mandate and responsibilities of supervisor as set out

under the Insurance Act. The Act urther broadens

its applicability from the limitation to only Kenyan

Citizens, to citizens o the East Arican Community

Partner States through amendment o section 153 o

Insurance Act.2. Marriage Act, 2014

Kenya Gazette Supplement No. 62 (Acts No. 4)



Laws of Kenya 15

BB • Issue 26, July - September 2014 feature Case

The purpose o the Act is to amend and consolidate

the various laws relating to marriage and divorce.

To this extent, the Act repeals all other statutes that

regulated marriage and divorce and consolidates

them within the Act. The Act introduces broad

requirements mandatory for the celebration of any

marriage and seeks to protect the rights o spouses

and even those o children beore, during and ater

the marriage. The Act also seeks to provide or the

celebration o the various kinds o marriages and

empowers the Cabinet Secretary to make rules for the

celebration o any other marriage not provided or in

the Act.

2. Public Finance Management (Amendment) Act,

2014

Kenya Gazette Supplement No. 66 (Acts No. 6)

This legislation amends the Public finance

Management Act, to provide or the issuance o

external securities by National Government. Section

53A grants the Cabinet Secretary responsible or

matters relating to nance the authority to deal with

external loans and the issuance o external securities.

3. Division of Revenue Act, 2014

Kenya Gazette Supplement No. 121 (Acts. No. 12)

This Act commenced on 4th August 2014 and its

object is to provide or the equitable division o

revenue raised nationally between the national and

county levels o government or the nancial year

2014/2015 in accordance with the Constitution.

4. Counsellors and Psychologists Act, 2014

Kenya Gazette Supplement No. 123 (Acts No.14)

The Act provides or the training, registration,

licensing, practice and standards o Counselors and

Psychologists. Section 23 provides that a person

is eligible or registration as a Counsellor or a

Psychologist i the person holds a Bachelor’s degree

in the relevant eld and satises the Counselors and

Psychologists Board that he or she is o good moral

character and a t and proper person to be registered

under the Act.

Some rights reserved: Joachim Huber



16


Date – 24th July 2014Venue- Kenya Law oces

Kenya Law hosted a delegation o the Judgesrom the judiciary o South Sudan on 24th July2014. The delegation o ve judicial ocers

was led by the Deputy Chief Justice of the Republico South Sudan, Hon. Justice Ruben Madol Arol, andconsisted of;

• Hon. Benjamin Baak Deng

• Hon. Mohammed Ismail Said• Hon. George Lado Tartisio.

• Hon. Awor Moya Deng.

The objective o the visit was to benchmark withKenya Law so as to provide a standard against whichthe Judiciary of South Sudan would emulate as theystrengthen their judicial institutions and departments.

Kenya Law, was able to elaborate on the ollowingaspects of the institution;

• The legal ramework under which the KenyaLaw is established and its relationship withother actors in the judicial system, especially,the judicial ocers.

• The Law Reporting unction especiallywith regards to how judgments are

collected, prepared, reviewed, selected anddisseminated.

• The methods o compilation and maintenanceof an up to date database that contains all thelaws o Kenya including subsidiary legislation.

• The practical useulness o the Kenya Lawwebsite indicating its versatility in terms opresentation of information; ease of use of

Kenya Law Hosts the Deputy Chief Justice of theRepublic of South SudanBy Long’et Terer (Ag Editor/CEO)

Long’et Terer, Ag. CEO Kenya Law, presents a Law Report to the Deputy Chief Justice of South Sudan, Honorable Justice Ruben Madol Arol.



HR Department18


Kenya Law participated in this year’s annual

‘Justice Cup’ tournament which is a six-a-side

ootball tournament organized by the Law

Society o Kenya (LSK). The event brings together

teams drawn from the various stakeholders involved

in the administration o justice, including judges and

magistrates, auctioneers, advocates, law students,

the police, parliamentarians, human rights NGOs andmedia houses rom around the country.

This year, the Justice Cup football Tournament’s

event was held on Saturday, 26th July, 2014 at the

Parklands Sports Club under the theme o ‘Security,

Rights & Justice’ and among the guests who graced

the occasion were the Chie Registrar o the Judiciary

Mrs. Anne Amadi, the Law Society o Kenya’s

Chairman Mr. Eric Mutua and Mr. Otiende Amollo, The

Chairman o the Ombudsman amongst others.

The day started o on a tensed note or the Kenya

Kenya Law Participates in The LSKAnnual Justice Cup

By Erick Odiwuor, Jackline Arodi (HR Department)





HR Department

Issue 26, July - September 2014

Law’s Team having ailed to make a great impact

in the previous recent tournaments but as the day

progressed and with constant hard work rom the

team and the unwavering support rom the cheering

sta members, positive results, could gradually be

realized leading to the team winning the plate ater

beating Dally & figgis Advocates 5-3 in nals o the

plat category through the penalties. The tournament

attracted a total o 39 teams rom the legal raternity,

NGOs, Media Houses & private rms.



HR Department



At hand to receive the plate on behalf of Kenya Law

was Mr. Evans Monari, a Kenya Law’s Council member.

Participating in the tournament

was not only a great sporting

event, but helped in marketing

Kenya Law as an organization

and also provided a bonding

experience with the various

clients and stakeholders of

the Organisation especially those within the legal

raternity.

Hopefully, Kenya Law’s team will

next year retain the Plate trophy

if not win the Overall Cup which

was won this year by the Kenya

School o Law.

Some rights reserved: Matt Berlin

At hand to receive the plate

on behalf of Kenya Law was

Mr. Evans Monari, a Kenya

Law’s Council member.





Marketing & Communication Department


Supreme Court Case DigestVolume - 1 (2011 & 2012)


Tel: +254 (020) 2712767, 2011614 ,2719231 Mobile: +254 718 799 464, 736 863 309



This Publication features the summaries and the full text of all thedecisions made by the Supreme Court in the year 2011 & 2012

2,500/=2,500/=KshKsh

Available at Our Offices



SQAP



The Judiciary Perormance Improvement Project(JPIP) is a World Bank unded project with theJudiciary o Kenya. One o the objectives o

the JPIP project is to strengthen the capacity o theJudiciary in Kenya to provide its services in a moreeective, transparent, and accountable manner.

In line with this objective, a total o 8 sta membersrom the National Council or Law Reporting(Kenya Law) benetted rom a number o sotskills training programmesthat were unded by JPIP.

The training programmeswere aimed at equipping theocers with essential skills oreective organizational andhuman resource management.

The sta members benettedand learnt the ollowingtraining programmes:Modernising HumanResource Management and DevelopmentTraining by ESAMI in Mombasa Kenya.The Eastern and Southern Arican ManagementInstitute, (ESAMI), is an intergovernmentalinstitution designed to provide specialized top-levelmanagement training, research and consultancy

services. One ocer rom the human resourcesdepartment attended the training program that ranfrom 16th June to 4th July 2014. The programmewas designed to assist participants acquire thelatest thinking, knowledge and skills or practicallymodernizing human resource management.

The participants were equipped to integrate themost current models, tools, HRM&D values, beliesand practices based on ‘best approach’ and ‘best t’case studies or strategic client ocus, value creation,

enhanced employee quality of work life, better servicedelivery and sustainability or competitiveness.

Leadership and Change Management (2)

conducted by ESAMI in Pretoria, South AricaThree team leaders rom the Human Resources,Strategy and finance departments travelled to SouthArica or the two week training program rom 30thJune to 11th July 2014. The course was targetedat middle and senior level managers, in both thepublic and private sector, who wished to sharpentheir grasp o leadership and change concepts.

The objective o the programme was to impart a highdegree o perormance competence to participantsin their leadership role, placing particular emphasison planning and implementing positive qualitative

change in their organisations.

Participants were taughtthe nature of leadership asdistinguished rom rulership ormanagership. finally they weretaught to appreciate the needor change and the centrality

o leadership in change.

Results Based ManagementTraining organized bythe Kenya Institute

o Management in Mombasa, Kenya.

Two ocers attended this one week trainingcourse from the 7th of July to 11th July 2014. Theobjectives o the training were to introduce theparticipants to the basics o project management,

the importance o project risk management andcommunication planning. The participants learnthow to monitor and evaluate projects as wellas sustain them ater their lie cycle has ended.

Senior Management DevelopmentProgramme by ESAMI in Arusha Tanzania.

Two senior ocers rom the human resourcesdepartment and the research and developmentdepartment attended the training program that ran

from the 14

th

of July 2014 to the 25

th

o July 2014.The program aimed at enhancing leadershipand direction at senior and top management levels.It assisted participants to increase their knowledge

Kenya Law Benets rom Various Trainingsfunded by JPIP

By Lydia Midecha and Marietta Gachegu

Participants were taughtthe nature of leadership asdistinguished from rulership ormanagership. Finally they weretaught to appreciate the needfor change and the centralityof leadership in change.



SQAP 23

BB • Issue 26, July - September 2014 SQAP

o key management issues and develop criticaltechniques or eective corporate management.

finally participants learnt how to eectively direct

organisation activities to enhance the overall eciencyo their organization. The content o the programmewas divided into three broad modules, namely, theGeneral Management Module, the Human ResourcesModule and the financial Management Module.

The training beneciaries have sincecascaded the lessons learnt to other staffmembers departmentally and organizationally.

A comprehensive plan on how lessons learntwill be implemented was also developedand will guide the organization in adoptingnew technical and service techniques.



I.C.T Department24

BB • Issue 25, April - June 2014

In the past, it usedto be that I.Tdepartments drove

technology, but thathas changed dramatically in recent years.The consumerization o I.T revolutionhas shited the technological culture sothat the users are the ones getting thelatest, cutting edge technologies rst, andthey want to bring those devices to work.

The concept o bring-your-own-device (BYOD) is a growing trend or business IT. There are avariety o benets to allowing users to supplytheir own PC and mobile devices, but thereare also some concerns. In order to embraceBYOD with condence, it is important tounderstand both the pro’s and the cons

Benefts

Businesses that embrace BYOD have someadvantages over competitors. for starters,

BYOD programs generally shit costs to theuser. With the worker paying or most, or all othe costs for the hardware, voice and/or dataservices, and other associated expenses,companies save a lot of money per month,per user.

That brings us to the second signicantbenet: worker satisaction. Users have thelaptops and smartphones they have for areason those are the devices they prefer,and they like them so much they invested

their hard-earned money in them. O course theywould rather use the devices they love rather thanbeing stuck with laptops and mobile devices that areselected and issued by the I.T department.

There are two major advantages that come withBYOD as well. BYOD devices tend to be more cuttingedge, so the organization gets the benet o the latesteatures and capabilities. Users also upgrade to thelatest hardware more frequently than the painfullyslow reresh cycles at most organizations.

Concerns

BYOD isn’t all wine and roses, though. There are

some issues to consider as well. By embracing BYOD,organizations lose much o the control over the I.Thardware and how it is used.

Company-issued I.T equipment typically comeswith an acceptable use policy, and it is protectedby company-issued security that is managed andupdated by the I.T department. It is a little bit trickiertelling an employee what is, or is not, an acceptableuse o their own laptop or smartphone.

It is thereore necessary to have a clearly dened

policy for BYOD that outlines the rules o engagementand states up-ront what the expectations are. Youshould also lay out minimum security requirements,or even mandate company-sanctioned security

B.Y.O.D

By Martin Andago,





I.C.T Department


tools as a condition or allowing personal devices toconnect to company data and network resources.

There is also an issue o compliance and ownershipwhen it comes to data. Businesses that all undercompliance mandates or those that deal with sensitiveand/or condential data have certain requirementsrelated to inormation security and sae-guardingspecic data. Those rules still must be ollowed eveni the data is on a laptop owned by an employee.

In the event that a worker is let go, or leaves the

company o their own accord, segregating andretrieving company data can be a problem. Obviously,the company will want its data, and there should bea policy in place that governs how that data will be

retrieved rom the personal laptop and/or smartphone.I youre not already taking advantage o the BYOD trend, you should denitely consider it. Just makesure youre aware of both the pros, and the cons, andaddress any potential issues up ront.

Organizations that have adopted a bring-your-own-device (BYOD) strategy are granting employeeschoice and lexibility; as a result, they are gainingproductivity. However, providing those benetsrequires responsibility, as I.T must nd a way to

ensure the safety of both the employees’ and theorganization’s data on personal devices.



Law Reporting



By, Dr. Willy M. Mutunga1* Edited by:Kipkemoi Sang2*

INTRODUCTION

In 2010 Kenya created a new modern constitutionthat replaced both the 1969 Constitution and thepast Colonial Constitution in 1963. This was the

culmination o almost ve decades o struggles thatsought to undamentally transorm the backwardeconomic, social, political, and cultural developments

in the country.

The Vision of the Constitution of Kenya.The making o the Kenyan 2010 Constitution is astory o ordinary citizens striving and succeeding tooverthrow the existing social order and to dene a newsocial, economic, and political order or themselves.Some have spoken of the new Constitution asrepresenting a second independence.

There is no doubt that the Constitution is aradical document that looks to a future that isvery different from our past, in its values andpractices. It seeks to make a undamental changerom the 68 years o colonialism and 50 years oindependence. In their wisdom the Kenyan peopledecreed that past to reflect a status quo that wasunacceptable and unsustainable through: provisionson the democratization and decentralization ofthe Executive; devolution; the strengthening oinstitutions; the creation of institutions that providedemocratic checks and balances; decreeing valuesin the public service; giving ultimate authority to the

people o Kenya that they delegate to institutions thatmust serve them and not enslave them; prioritizingintegrity in public leadership; a modern Bill o Rightsthat provides or economic, social and cultural rightsto reinorce the political and civil rights giving the

1 * Dr. Willy Mutunga is the Chie Justice o the Republic o Kenya and the President o theSupreme Court o Kenya. He gave this speech to Judges and guests o the Kenyan Judiciary on the occasiono launching the Judiciary ransormation Framework on May 31, 2012.

2 ** LLB (Bachelors o Laws-4th Year ), Mount Kenya University School o Law; MKUSL,Intern,Law Reporting Department National Council or L aw Reporting(Kenya Law), (edited this article); the articlewas also published by ‘Socialist Lawyer’ Magazine o the Haldane Society o Socialist Lawyers (No.65)October 2013 pg. 20-3Comment: Te mandate o the National Council or Law Reporting is to monitor and report on thedevelopment o Kenya’s jurisprudence through the publication o the Kenya Law Reports; to revise and

publish the Laws o Kenya. In doing this, Kenya law contributes to the nurturing of a robust, indigenous,progressive and patriotic Kenyan jurisprudence by monitoring, reporting and promoting academic,legal and public discourse on developments in constitutional, legal, customary and judge-madelaw that emanate from and embody the peculiarity of Kenya’s legal, social, political and economicconditions. This indigenous jurisprudence will serve a product for export to other jurisdictions andto the development of international law. Leading in reporting, Kenya Law promotes academic, legaland public discourse on customary law and Muslim law jurisprudence.

whole gamut o human rights the power to radicallymitigate the status quo and signal the creation o ahuman rights state in Kenya; mitigating the statusquo in land that has been the country’s Achillesheel in its economic and democratic development;among others relect the will and deep commitmento Kenyans or undamental and radical changesthrough the implementation o the Constitution. TheKenyan people chose the route of transformation andnot the one o revolution. I revolution is envisagedthen it will be organized around the implementation

o the Constitution.

The Vision of the New Jud iciary under theConstitutionThe Old JudiciaryLet me relect briely on the nature o the judiciaryo which all Kenyans are a part. We are the heirs,albeit by what you might think o as a bastard route,to a tradition that gives a very powerul place to the judiciary: under the common law system. It is a lawedinheritance because it came to us via the colonial

route. The common law as applied in Kenya, at leastto the indigenous inhabitants, as in the coloniesgenerally, was shorn o many o its positive elements.

During the Colonial era we were not allowed reedomo speech, assembly or association. Our judiciary wasnot independent, but was essentially a civil service,beholden to the colonial administration and veryrarely minded to stand up to it. Indeed, administrativeocers took many judicial decisions. There was noseparation o powers. And institutions o the peoplethat they trusted were undermined or even destroyed.

Indeed the common law was a tool o imperialism.Patrick McAuslan, upon whose book with Yash Ghai3 most lawyers of Kenya cut their constitutional teeth,wrote satirically (plagiarising the late nineteenthcentury poet, Hilaire Beloc4) “Whatever happens, wehave got the common law, and they have not”. Wecan recall the trial o Jomo Kenyatta: a masteruldisplay o juristic theatre in which the apparentadherence to the rule of law substantively entrenchedthe illegitimate political system in power at the time.5

3 Ghai, Y. & McAuslan, P., Public Law and Political Change in Kenya: A Study of the LegalFramework of Government from Colonial imes to the Present, Oxord University Press, (1970).

4 “Whatever happens, we have got, Te Maxim gun, and they have not.” See, Beloc, H., Te Modern raveler:- 1898, Cornell University Library, (2009).

5 My trusted colleague, Proessor Obiora Okaor o Osgoode Hall Law School (Canada) was

The Constitution o Kenya 2010: DecolonizingKenya’s Jurisprudence



Law Reporting 27

BB • IIssue 26, July - September 2014

Colonial mind-sets persisted, in the executive, thelegislature and, unortunately, even in the judiciary,even ater independence. We continued to yearn orthe rule o law.

By the rule o law, I do not mean the sort omechanical jurisprudence we saw in cases like theKapenguria trials. It was mechanical jurisprudencethat led the High Court in independent Kenya to reachan apparently technically sound decision that theelection o a sitting President could not be challengedbecause the losing opponent had not achieved thepragmatically impossible task o serving the relevantlegal documents directly upon the sitting President.6 Again it was this purely mechanical jurisprudence thatuelled the decision o a High Court that the ormer

section 84 o the independence Constitution (thatmandated the enorcement o Bill o Rights) renderedthe entire Bill o Rights inoperative because the ChieJustice had not made rules on enforcement as hewas obligated by the sel-same Constitution to do.7

The New Judiciary, the New Rule of Law, theDecolonizing JurisprudenceIt is time or the judiciary o Kenya to rise to theoccasion, and shake off the last traces of the coloniallegacy. As I see it, this involves a number o strands

or approaches.

There must be no doubt in the minds o Kenyans, or ous, about our impartiality and integrity. No suspicionthat we deer to the executive, bend the law to suit ourlong term associates or their clients, or would dreamo accepting any sort o bribe.

Secondly, to be a judge has always been the pinnacleof ambition of any lawyer who actually takes pridein his/her work. So it should be possible to take orgranted that a judge is o high intellectual calibre,with mastery o legal principles and techniques, hardworking, and committed to applying these qualities inthe task o judging.

Thirdly, we in Kenya have been the inheritors o notonly the common law but o English Court procedures.While English Court procedures have over time been

kind enough to provide the ollowing comment:“What happened to Jomo Kenyatta and the ‘Kapenguria Six’ in the colonial courts was, in reality ’the rule BYlaw’ and NO “the rule OF law. I guess that I have always had some sympathies with Lon Fuller’s notion oan internal morality o law that renders certain kinds o legality so beyond the pale as not even to qualiy ‘aslegality.’ I think my point here ties into your well-argued notion o a mechanical jurisprudence.”

6 Election Petition No 1o 1998, Kibaki v Moi & 2 others (No 2) (2008) 2 KLR (EP) 308

7 Tis practice was endemic under the reign o CJ Cecil Miller (1986-1989) and championed vigorously by Justice Norbury Dugdale. See, Vaquez, ‘Is the Kenyan Bill o Rights Enorceable afer 4th July1989?’, in 2: Nairobi Law Monthly (1990), p. 7-8. Also see, Ghai Y., “Te Kenyan Bill o Rights: Teory andPractice,” in Alston, P., (Ed.) Promoting Human Rights Trough Bills of Rights: Comparative Perspectives,Oxord University Press, (2000), p 221-222.

made simpler, some archaic terminology has beendone away with, case management has been rmer,and ADR has been much more used, in Kenya we stillhave cases that are heard in driblets. We need radicalchanges in judicial policies, judicial culture, end o judicial impunity and laziness.

fourthly, I see in the Constitution, especially Article159 (2), a mandate for us to carry out reforms tailoredto Kenya’s needs, and aimed at doing away with thesecolonial and neo-colonial ineciencies and injustices.It is perhaps remarkable, and indeed, a paradox that,although disappointment with the judiciary wasat least as great among the common Kenyan asfrustration with politicians, it is also true that theychose to place their faith in the institution of the new

judiciary in implementing the new Constitution.

fithly, what I want to emphasise here is the needto develop new, not only highly competent but alsoindigenous jurisprudence. I link this last adjectiveto the Constitution’s value o patriotism. I conceivethat it requires the judge to develop the law in a waythat responds to the needs of the people, and to thenational interest. I call this robust (rich), patriotic,indigenous, and patriotic jurisprudence as decreed bythe Constitution and also by the Supreme Court Act

of Kenya.8

Above all, it requires a commitment to theConstitution and to the achievement of its values andvision.9

Sixthly, ew people now maintain the myth that judges in the common law system do not make law.Our Constitution tears away the last shreds of thatperhaps comorting illusion, especially in the contexto human rights, when it provides under Article 20 (2)(a) that “a court shall develop the law to the extentthat it does not give eect to a right or undamentalreedom”. As I read it, it means that i an existing ruleof common law does not adequately comply with theBill o Rights, the court has the obligation to developthat rule so that it does comply. And it is matched (inArticle 20(3)(b), which ollows) by an obligation tointerpret statute in a way that also complies with theBill o Rights. This is an obligation, not to rewrite astatute, but to read it in a way that is Bill o Rightscompliant i at all possible. I would urge that it isnot just the Bill o Rights that should be used as thetouchstone o legal appropriateness but also theConstitution more generally. The Constitution says

no less.8 Section 3.

9 See the Constitution o Kenya 2010: the Preamble, Articles 2(4), 10, 20(3), 20(4), 22,23,24,25,159, 191(5) and 259. Tese articles decree how the Constitution is to be interpreted and, indeed, underArticle 10(1) (b) any law. And, “any law” would include, in my view, rules o common law, as well as statute.



Law Reporting28


Elements of Robust (rich), Indigenous, Patriotic,and Progressive JurisprudenceThe elements o this decolonizing jurisprudence wouldinclude the six strands and approaches discussedabove, would shun mechanical jurisprudence, butwould also relect the ollowing ingredients:

The decolonizing jurisprudence o social justice doesnot mean insular and inward looking. The values othe Kenyan Constitution are anything that we can andshould learn rom other countries. My concern, whenI emphasize “indigenous” is simply that we shouldgrow our jurisprudence out o our own needs, withoutunthinking deerence to that o other jurisdictionsand courts, however, distinguished. And, indeed, the

quality o our progressive jurisprudence should be aproduct or export to these distinguished jurisdictions.Ater all our constitution is the most progressive inthe world.

While developing and growing our jurisprudencecommonwealth and international jurisprudence willcontinue to be pivotal, the Judiciary will have to avoidmechanistic approaches to precedent. It will not beappropriate to reach out and pick a precedent fromIndia one day, Australia another, South Arica another,

the US another, just because they seem to suit theimmediate purpose. Each o those precedentswill have its place in the jurisprudence o its owncountry. A negative side o a mechanistic approachto precedent is that it tends to produce a mind-set:“I we have not done it beore, why should we do itnow?” The Constitution does not countenance thatapproach.

Our jurisprudence must seek to reinorce thosestrengths in oreign jurisprudence that t our needs

while at the same time rescuing the weaknesses osuch jurisprudence so that ours is ultimately enrichedas decreed by the Supreme Court Act.

The task o growing such jurisprudence involves apartnership: between other judiciaries, the proessionand scholars. I hope that the bar, too, will respondto the challenge. Standards o advocacy needto improve, the overall quality of written and oralsubmissions needs to improve. We have so ar oundthe jurisdictions o India, South Arica and Columbiato be great partners as our respective constitutions

are similar in many respects. Besides, decolonizing jurisprudence requires South-South collaboration andcollective relection.

We are trying to move away rom excessively detailedwritten submissions. This makes sense only i the judges read the written submissions in advance.And do so with a critical eye, prepared to interrogatethe arguments o counsel. And prepared also to putorward alternative ideas. It is a questionable practiceto come up with ideas and authorities in the privacyo Judges’ chambers when writing a judgment, icounsel had no chance to put orward argumenton those ideas and authorities. The very purpose owritten submissions is to try to prevent that happeningby enabling the judge to be well prepared in advance.I the judge is well prepared, he or she is in a muchstronger position to criticise counsel or not beingprepared. In this way the bench can help encouragehigher standards o advocacy.

We are trying to make this task easier or you byenhancing the quality and quantity o legal materialsavailable to the bench by and appointing legalresearchers. It will be a learning experience or judgesas well as legal researchers to work out how the causeo justice can best be served by this innovation. Weare condent that this oers an opportunity to makemajor strides in the quality o the jurisprudence in thecourts o Kenya.

I want also to add that these major strides in thequality o jurisprudence in our courts can be ampliedi we improved our collegiality and ability to co-educate each other so that the decisions coming outof our courts will reflect the collective intellect of theJudiciary distilled through the common law methodas well as through regular discourses and learningby judicial ocers. To be a good judge must involvecontinuous training and learning and regular inormaldiscourses among judges.

The Judiciary Training Institute (JTI) must becomeour institution o higher learning, the nerve centre oour progressive jurisprudence. JTI will co-ordinate ouracademic networks, our networks with progressive jurisdictions, our training by scholars and judges,starting with our own great scholars and judges. Inour training to breathe lie into our constitution our jurisprudence cannot be legal-centric; it must placea critical emphasis on multi-disciplinary approachesand expertise.

Now that law reporting is regular under the able

leadership o National Council or Law Reporting,the Supreme Court has also established a programo researching the “lost jurisprudence” during theyears when reporting did not exist. I am condent




WhereLegal Information is Public Knowledge 29

Law Reporting


there will emerge gems and nuggets o progressive jurisprudence rom that search.

Let us hope that the community of scholars respondsto the challenge equally. The quality and quantity oKenyan legal literature is disappointing. We need highquality commentary on the Constitution, and on ourlaws. And we need high quality commentary on our judgments. We must not be over-sensitive to criticism.No one learns anything i they are not criticised. Thereare some small shoots o revival in legal writing. Letus hope they thrive and multiply.

Article 159(2)(e) says that the courts must protectand promote the purposes and principles of theConstitution. I have sought to establish such

framework for purposive interpretation in twoSupreme Court matters.10

The Constitution took a bold step and provides that“The general rules o international law shall orm partof the law of Kenya” and “Any treaty or conventionratied by Kenya shall orm part o the law o Kenyaunder this Constitution”.11 Thus Kenya seems to havebecome a monist state rather than a dualist one!The implications o this will have to be worked out overtime, as cases come beore the courts. Even in the

past, Kenyan judges have not ignored internationallaw. They have oten quoted the Bangalore Principleson Domestic Application o International HumanRights Norms.12

Now, however, the courts have greater reedom.Many issues will have to be resolved. Indeed, we nowhave great opportunity to be not only the users ointernational law, but also its producers, developersand shapers.

In some ways our task is rather easier than that acedby some other court systems struggling to establishthe validity o their place in the constitutional scheme.

The principle o Marbury v Madison, that establishedthe possibility o judicial review o legislation, andat the same time the key place of the courts in theupholding o the US Constitution, is enshrined inour Constitution (Articles 23(3)(d) and 165(3)(d)).So are the basic characteristics o the Indian publicinterest litigation (Articles 22(2) and 258(2)). Ourpath has been smoothed: we do not have to strive to

establish our role as guarantor o the supremacy o10 In the Matter of the Principle of Gender Representation in the National Assembly and theSenate Advisory Opinion of the Supreme Court (Reference No 2 of 2012; In the Matter of Jasbir Singh Rai and3 Others v arlochan Singh Rai and 4 others (Petition N0 4 of 2012).11 Art. 2 (5) and (6).12 Principles 7,8

the Constitution, or o the rights o the downtrodden.We are indeed clearly mandated to ull these roles.

Let me again remind you that our Constitutionspecically mandates public interest litigation. Ourappointment process is precisely designed to give usindependence o the executive and the legislature sothat we can if necessary “force other institutions ofgovernance to do what they are supposed to do”. Wecan only pray that we have the moral stature, the legalskills and the courage to do what we are directed todo.

finally, Article 159(2) o the Constitution hasrestored “traditional dispute resolution mechanisms”

with constitutional limitations.13 We live in ourcountry where courts are not the only forumsor administration o justice. Traditional disputeresolution mechanisms keep these institutions asfree as possible from lawyers, ‘their law,’ and the‘law system o the capital.’14 The development othe “Without the Law” jurisprudence will be a criticalnugget in our progressive jurisprudence.

ConclusionProessor Upendra Baxi wrote, o Public Interest

Litigation in India:“The Supreme Court o India is at long lastbecoming…the Supreme Court or Indians. fortoo long the apex court had become “an arena olegal quibbling or men with long purses”. Nowincreasingly, the court is being identied by theJustices as well as people as “the last resort ofthe oppressed and bewildered”.15

I hope that the courts o Kenya will truly be viewedas the courts for all Kenyans, and the salvationo the Kenyan oppressed and bewildered. And, toreturn to where I really began: I believe we shall onlydo this through the rigorous but creative use o thebasic values o our Constitution, indeed through the judiciary’s becoming the embodiment o those values,especially o patriotism, social justice and integrity.

13 Under Article 159(3) of the Constitution traditional dispute resolution mechanisms shall notbe used in a way that (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results tooutcomes that are repugnant to justice and morality; or (c) is inconsistent with this Constitution or any written

law.14 Arthurs, H., Without the Law: Administrative Justice and Legal Pluralism in the Nineteenth-Century England, University o oronto Press (1985) at p.10.Several passages ound between p. 1-12 and p.188-214 are extremely useul in t he development o the “Without the L aw” Jurisprudence.15 In “aking Suffering Seriously: Social Action Litigation in the Supreme Court o India” inDhavan et al., Judges and the Judicial Power (London and Bombay: Sweet and Maxwell and ripathi, 1985)289 (citations removed).



Law Reporting



The Association of

Reporters of Judicial

Decisions (ARJD)

is a proessional membership organization open

to individuals working with governments or non-

governmental agencies involved in reporting o the

Judicial decisions.

The Association was ounded in 1982 by Henry C.

Lind, the Reporter o Decisions or the United States

Supreme Court. It has since expanded to include

Reporters o Decisions and comparable ocials

serving courts that ocially publish opinions relied

on or their precedential value rom all over the world.

Membership is also available to Reporters’ assistants

and sta and to those retired rom the proession.

Current membership spans across the world, with

Kenya being a key player in the organization.

It joined the association in 2006 and it has been an

active participant in ARJD activities, including the

Association’s Annual Meetings.

This year Kenya Law joined other Reporters in

the Association’s Annual Meeting held in Denver

Collorado, USA rom 6th to 10th August 2014.

Kenya Law’s Attendance of the Association of Reporters of

Judicial Decisions (ARJD) Conference - Denver, Colorado

By Andrew Halonyere



Law Reporting 31


Kenya Law was represented by Mr Longet Terer, (Ag.

CEO), Cornelius Lupao (Team Leader - Law Reporting

Department) and Andrew Halonyere a Senior Law

Reporter.

The conerence commenced with welcoming

remarks from the Colorado Court of Appeals ChiefJudge Alan Loeb. He urged the Reporters to have a

productive meeting and to explore and enjoy historic

Denver Colorado and highlighted this year’s theme

o the conerence which centered around emerging

jurisprudence rom courts in various thematic areas

across the world. The congregation o reporters was

also welcomed by Bill Hooks, the outgoing AJRD

President (2013 – 2014). This was later ollowed

by a narration of the History and Current State ofTribal Court Opinion Reporting, by Laurie Oliver, Team

Coordinator, Judicial, Legal Editorial Operations,

Proessor Jane Thompson, an Associate Director o

faculty Services and Research, William A. Wise o

University o Colorado and Justice Jill Tompkins the

President National American Indian Court Judges

Association. According to the presenters the basic

premise or tribal court jurisdiction in the United

States was rom ederal recognition o inherent tribalsovereignty. Inherent tribal sovereignty basically

meant that the tribes that were in the United States

land rst, were sel-governing at that time, and the U.S.

ederal government recognized the original sovereign

powers that tribes already had.

Peter W. Martin and Jane M. G. foster a Proessor o

Law in Cornel University then, made a presentation

on Post Release Revisions o Judicial Opinions, a keyissue that requently every reporter including those

within or jurisdiction are aced with on day to day

basis. An issue arose as to whether a reporter could

amend a judgment i it had errors. The presenters

expounded on the range o current practices with

suggestions such as, where there is an error in quoting

a section o statute in a judgment, the best practice in

many jurisdictions, would be to consult the concerned

judicial ocer beore working on the judicial opinion.

During the round table discussions, the main topic

discussed was on succession planning. There

was an open interaction between New and Retired

Reporters where it emerged that there were gaps

in law reporting in certain jurisdictions that was

occasioned by lack o permanent law reporters. It

was therefore emphasized by members that every

reporter should at least endeavor to train and bedeputized with at least two reporters to evade gaps in

Law Reporting. The other issues that were discussed



Law Reporting32


was membership participation, especially current

membership, expanding and increasing membership

participation and communication, and the role of

social networks such as twitter, blogs and acebook

in law reporting, an aspect that Kenya Law has taken

initiative in utilizing the same.

Among other presenters at the conerence included

Ronald Nemirow who made a presentation on

Marijuana Legalization in Colorado and Matt Butterick

on Typography or Lawyers; Style, Language and

Publication Guidance.

During the conerence members also had an

opportunity to visit the Colorado Supreme Court and

Court o Appeals where the congregation was warmly

welcomed by Justice William W. Hood, III. This was

urther ollowed by a tour in the judicial building, the

law reporters were guided with one o their own the

Colorado Law Reporter Leah Walker. The day was later

capped with a dinner tour on a vintage locomotive

train to the rocky mountains o the old west Colorado.

Apart from the conference, social events were

scheduled on a daily basis at the Hyatt Hotel pavilion,

providing an inormal setting or attendees to interact

and discuss issues o common interest.

The concluding session revolved around plans or

the preparation of the 2015 and 2016 venues for

the ARJD meeting and the elections o the AJRD

President. The meeting ended on a high note with a

majority o the members voting in avour o Susan

Williams (Law Reporter of the Supreme Court and Court

o Appeals o Arkansas) and also in avour o holding the

2016 meeting in Columbus Ohio. The 2015 AJRD

meeting will be held in Nashville.

On the last day o the session, Bill Hooks the outgoing

President was appreciated by the members and

presented with a git on behal o the ARJD members

by his successor President Susan Williams. Mr Longet

the Ag CEO o Kenya Law thereater presented to

both the outgoing and the incumbent president with

animal wood carving gits rom Kenya on behal o

Kenya Law.




WhereLegal Information is Public Knowledge 33

Law Reporting


By Lisper Njeru (Laws Reporting Department)

Law Reporting Annual Sta Retreat at The SarovaShaba

At Kenya Law we acknowledge that our conductand professional practices today must bedesigned to create and shape a sustainable

tomorrow. And one o the ways o achieving this is bynurturing good working relations. Thereore every yeartowards the last quarter of the year Kenya Law holdsits annual sta team building retreat. But beore thismajor retreat, every department holds a departmentalretreat. This year the Law Reporting Departmentheld its departmental retreat at the Sarova Shaba,

Samburu.

The Law Reporting Department is the largestdepartment in the organization which drives the coremandate o the institution o monitoring and reportingon the development o Kenyan jurisprudence throughthe publication o the Kenya Law Reports.

The department comprises o Law Reporters unit,Technical Proo Reading unit, Inventory Unit and thePublishing Unit and it also supervises Interns rom

the Kenya School o Law. Ithas a membership of about 42ocers.

This year, the department took some time o romthe daily busy oce lie and retreated to relect on it’sactivities for the year thus far as well as chart the wayorward with regard to and urther improvements inmeeting it’s mandate.

The department ocused on discussing itsachievements in line with its core mandate and how itsatises the values o the organization as a whole. Thediscussions were very interactive and every membero the department participated in the session.

The department had the chance to evaluate the Headof Department’s interaction with the other memberso sta. Members were allowed to give their views onthe HOD’S leadership, work ethics etc.



Law Reporting



Whereas it is highly unlikely in other state organizationsfor members of the department to evaluatetheir Heads o Department, The Law ReportingDepartment osters and improves better workingrelations amongst members o the department and

it’s leadership.

Apart from the deliberations, various activities meantto built synergies amongst the members were carried

out. This included various sporting activities.



Law Reporting 35


Teach Yoursel to Be Rich

By Jacinta Moraa

Teach Yoursel to Be Rich

Being rich is what so many o us want. Why?Being rich has many denitions. for some, itdenes success. for others, it means winning.

It means reedom, responsibility or reedom romresponsibility. for some, it means all o these things.What’s it mean or you?

Just the thought o being rich lets us daydream. Weoten say, “I only I was rich enough to (insert dream,goal or antasy).”

Why aren’t you rich? What’s holding you back? Whyaren’t you, at least, on the way to achieving riches? Kidsbecome millionaires. We hear stories o millionairestoday who went rom rags to riches in their 20s, 30sand 40s. Then, there are those who attract riches latein lie.

Why aren’t you rich?

Use Your HeadWe recently watched a YouTube video about neuralpathways. The more neural pathways are used thestronger they become, similar to muscles. It is neuralpathways that allow the mastery of skills, such asplaying the violin, playing basketball or doing math. Wethink o some o the greats, such as Michael Jordan,who didn’t qualiy or his high school basketball team,and Bill Gates, who dropped out o Harvard.

The world’s greats built their neural pathways. They

live, sleep and breathe their crat; think Tiger Woodsor Serena and Venus Williams. In each case, thesestars credit their parents or driving them to achieve.Each mastered their crat through repetition, practiceand study.

The question then becomes, can this be done withmoney? The answer is yes! How? We must teachourselves to be rich.

Rich Thinking

How do we teach ourselves to be rich? We, too, teachourselves to be rich through repetition, practice andstudy. Every day wake up and tell yoursel you are a

winner. Get on your playing eldand practice. Study the masters,living and dead, in your eld.

Below are three key ways to teach yourselfto be rich:

1. Think Rich

• Rich people think about nancial growth. They

learn the nuances o their business and industry.They’ve charted a clear path to success and usetheir time and energy eciently. Is this you?

• Rich people don’t spend more than they make.They understand that in order to become and stayrich, they must earn more than they spend. Areyou doing this?

• Rich people make their money work or them.Whether through investing in their business orthe stock market, they know they must invest.

Investing makes their money multiply by puttingtheir money to work where they cannot physicallybe. Is your money working harder than you?

2. Be a Master

• Often the poor stay poor because they are eithernot skilled nor retain enough intellectual propertyto demand a higher salary. Mastery o a skill orthought is a commodity. When you master a skillor have proprietary knowledge, you can demandmore money or your time and eorts. O what are

you the master?

• Many of today’s rich are so because they were orare on the oreront o a technology or industry. Owhat are you on the oreront?

3. Stay focused

• We oten only see the rich playing. What we don’tsee is their time spent mastering, building anddiscovering. Behind closed doors they put in thehours, not on the couch watching television, butrather in the oce, in the lab or on the court. Therich don’t waste their time because it’s their mostvaluable asset. How do you spend your time?



Lifestyle36

BB • Issue 26, July - September 2014 Liestyle

• The rich constantly learn. They are curiousand engaged. With the plethora o inormationavailable on the internet you can do the same.YouTube, Coursera, iTunes University and the

internet in general oer numerous ways to learnand grow more in almost any area. What morecan you learn?

Many o us dream o being rich. We want thecomortable and rewarding lie. Getting there is thehard part, but it’s easier if we rewire our neurons tomimic the rich. Thinking like a champion and ollowing

these three steps will do just that.

Stand tall oh mighty oak, for all the world to see,

your strength and undying beauty forever amazes me.

Though storm clouds hover above you,

your branches span the sky,

in search of the radiant sunlight you

count on to survive.

When the winds are high and restless and

you lose a limb or two,

it only makes you stronger, we

could learn so much from you.

Though generations have come and gone

and brought about such change,

quietly you’ve watched them all yet still

remained the same.

I only pray God give to me the strength he’s

given you,

to face each day with hope, whether

skies are black or blue,

Life on earth is truly a gift

every moment we must treasure,

it’s the simple things we take for granted

that become our ultimate pleasures.

© Kathy J Parenteau

Mighty Oak





Lifestyle


Workplace StereotypesBy Eva Murage, Laws of Kenya Department

Matthew 7:1 “Do not judge, or you too will be judged.”

What is a Stereotype?

The denition o a stereotype is any commonlyknown public belie about a certain social groupor a type o individual. Stereotypes are oten

conused with prejudices, because, like prejudices, astereotype is based on a prior assumption. Stereotypesare oten created about people o specic cultures or

races and might be an exaggerated image o a personor groups, allowing or little or no social variation orindividual dierences, usually passed along by peers,amily members or the media.

Workplace Stereotyping: A Silent ProductivityDestroyer

When you think of diversity in the workplace youtypically think o race and gender, but in realityworkplace diversity is much broader. Consider yourco-workers; they differ in a variety of ways such

as age, tribe, marital status, ocial titles, religion,disability and nationality. All o these dierences canlead to stereotyping which may result in workplacetension.

Can Stereotyping Have a Negative Effect in aWorkplace?

Quite simply, the answer is “Yes.” Stereotyping, orin other words placing labels and identiying peoplebased on their membership in a certain social

category results in making general assumptionsabout an individual with little or no personal knowledgeabout them. In other words, many people base their judgment o a person based on tribe, gender, age, etc.and the most common stereotypes are derogatoryand reers to negative characteristics.

Unortunately, in the workplace it’s no laughing matter.What happens when you make these assumptionso a colleague based on the stereotypes aliatedwith that person’s gender, tribe, religion etc., is you

subconsciously start to look or things to conrm yourbelies and over time you might pick up on one or twoisolated incidents that cause you to justiy or conrmyour assumptions. The use o these stereotypes

prevents people rom gettingto know one another andinteracting eectively based onindividuating inormation andmay start off with a hostile and unfriendly relationship,so when you close your mind about the individualit damages your ability to really work well with thatperson.

However, i you were to get to know your new co-worker as an individual, you would be able either toput aside any differences for the sake of productivityor to learn some new perspectives and build astrong relationship based on mutual understanding.This holds true or any individual and any potentialstereotypes.

How Do Stereotypes Hurt Us?In the corporate world, there is a high price to be paidor stereotyping:

• Litigation• Lost employees• Poor employee morale• Lost sales and customers• Diculty hiring top-level employees• Diculty retraining employees• Diminished productivity/prots

However, we also suffer personal consequenceswhen we judge people based on biases, labels, andstereotypes. We miss out on valuable experiences,

insights, and amazing relationships. We also miss outon connecting with others on a genuine level.

The Problem of Positive Stereotypes

While it is obvious how a negative stereotype canbe a problem, many people are under the mistakenimpression that a positive stereotype, such as thestatement that members o a particular ethnic groupare smart, is a good thing. Yet, that very stereotypecan cause people to place unreasonable expectations

on members of that particular ethnicity, which inturn can lead to undue pressure and/or erroneousassessments o competence. Imagine ailing wheneveryone expects you to succeed because o your





Lifestyle


ethnicity, consider how much pressure you wouldeel to make things get done the right way, how muchharder you would believe that you have to work sincepeople have a positive notion about you based ofyour ethnicity. Thus, even though it may appear thata positive stereotype embeds a compliment, refrainrom using it and get to know the person instead.

Just as stereotypes are harmful and unfair ineveryday life, they can quickly wreak havoc on moraleand productivity in the workplace. Varying degrees ostereotyping occur in workplaces despite a greaterawareness and acceptance o diversity.

Why is it important not to stereotype people?

Because it can get to some people and hurt them.Also just because they listen to something dierent,look dierent, or do something dierent doesn’t meanthey don’t have eelings.

Why do people have stereotypes and judgeothers?

Some people are insecure and many people nd that judging others distracts rom their own weaknessesand it is easy to be judgemental about those who are

dierent rom us. As humans we tend to label othersbecause it makes us feel safe and superior and it isoten easier than to look at people too deeply.

Why is it Bad to Stereotype?

Stereotyping is not only hurtul, it is also wrong. Evenif the stereotype is correct in some cases, constantlyputting someone down based on your preconceivedperceptions will not encourage them to succeed.

Stereotyping can also lead people to live lives driven byhate, and can cause the victims of those stereotypesto be driven by ear. It is a lose-lose situation, both orthose who are doing the stereotype and those whoare victims.

Below are some of the commonstereotypes which can impact theworkplace.* Single vs. Married: Single people eel as though

they are seen in one o two ways. first, they are otenthought to be rivolous and more interested in theirsocial life than they are their work, many say they feelstigmatized by their single status as being damaged

goods because they aren’t married. Secondly, somesay their married co-workers think they should be ableto work longer hours because they don’t have anyoutside responsibilities. On the lip side, singles otensay they can focus more on their work because oftheir status and can use it to their advantage to moveup the corporate ladder. Others view their marriedcounterparts as having an advantage because theyhave a partner to help with outside responsibilities.

* Children vs. No Children. While this typically impactswomen more than men, it isn’t just a emale issue.But a lot o women say they are made to eel guilty atwork because o how they have to juggle their workand childcare responsibilities while at the same timethey are made to eel guilty because they are working

and not at home with their children. Employees whodon’t have children sometimes feel resentful whenthey have to cover for co-workers who frequently areabsent because o child-related emergencies. Today,more working women have young children at homeand employers are nding ways to manage this airly.

* Generation X (those born between 1961 and 1981)vs. Generation Y (those born between 1982 to 2002):As the population ages, more and more people arechoosing to work much longer in their careers. The

Generation X workers did not grow up with technologyas the Generation Y workers. So there is a tensionbetween the tried and true ways o doing businessversus the technological solutions o today. Thisgenerational gap can create serious riction in thework place. But instead o immediately stereotypingthe individual, you should get to know the otherperson and appreciate each other’s strengths. Learnrom each other.

*Old Geezers vs. Young Turks: Aged-based

stereotyping aects all groups. Young workers maybe viewed as having a sense o entitlement in thatrecent graduates expect a high grade o employmenteven though they may be considered incompetentdue to lack o experience. This unair thought processworks against individuals who have true drive and astrong work ethic. Conversely, older workers may beseen as “liers” or simply counting the days towardsretirement without putting in much eort. Thisstereotype ignores years o hard work perormedby these employees, along with the experience andleadership these dedicated professionals can provideto younger generations.

The bottom line is everyone should keep an open



39Lifestyle

BB • Issue 26, July - September 2014 Liestyle

mind and get to know your co-workers as individuals.Avoid making assumptions and stereotyping. Noneo us is the same and no one ts into a speciccategory. Respect diversity o all types in your workenvironment.

Age-based stereotyping aects all groups. Youngworkers may be viewed as having a sense oentitlement in that recent graduates expect a highgrade o employment; young employees may beconsidered incompetent due to lack o experience.This unair thought process works against individualswho have true drive and a strong work ethic.Conversely, older workers may be seen as “lifers” orsimply counting the days toward retirement withoutputting in much eort. This stereotype ignores years

o hard work perormed by these employees, alongwith the experience and leadership these dedicatedproessionals can provide to younger generations.

Age-related stereotypes are prevalent in workplacesthat employ people o a wide range o ages. Youngeremployees might believe that older employees areincapable o keeping up with modern-day trends,while older workers can mistakenly believe that theiryoung co-workers are lazy. A study done in 2011reported that traits of a workplace that has problems

associated with age include employees judging eachother based on their age alone and employers onlyhiring people rom a certain age group.

Breaking Down Stereotypes

Breaking down, recognizing, and eliminatingstereotypes begins with dialogue. Conversationreduces bias because we learn more about eachother and reach an understanding. Conversationalso reduces preconceptions by educating us on

misinormation and it limits the spread o bias.

Steps to Take to Assess and Eliminate Stereotypes

• Respect and appreciate others’ dierences.Imagine i people looked and acted the same.It would be boring!

• Consider what you have in common withother people — lots more than you think.

• Avoid making assumptions or creating labels.• Develop empathy or the others. Try to walk

in their shoes.• Educate yoursel about dierent cultures and

groups.

These days it is unacceptable to have stereotypicalviews of others in the workplace because it can bevery costly, not to mention the lack of productivity andprots. It is important to recognize and rememberthat we all have stereotypes; it is part of the humanexperience. However, the rst step is to be honest andrecognize our preconceived notions about others andwhy we have formed them, and then take an activeapproach to educate ourselves.

Three Ways to Decrease Stereotype in aWorkplace:

1. Encourage Team work • Team work builds relationships among

employees• Employees are more open to learn about

different cultures• Make people eel comortable about sharing

2. Expand employee knowledge about diversity• Teach employees about cultural dierence• Apply effort to you endeavor to learn from

things you don’t understand

3. Have an open mind

• Look at situations from other person’s pointof view

• Be open to new experiences• Practice humility

ConclusionStereotype is a deadly weapon existing around us.As long as there are dierent races and cultures,stereotypes will never go away. This is becausehumans fear what they do not understand andthus, must categorise behaviour in order to better

understand the world around them. It oten targetspeople with diverse appearance, beliefs, and behavior,which in turn inluence people’s decisions. It could beharmul without people realizing it. Stereotyping stilltakes place today yet people remain tolerant to thesebehaviors. It must be stopped.



40

BB • Issue 26, July - September 2014 feature StoryBB • Issue 26, July - September 2014 High Court Cases

Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia NasumbaReporterLaw Reporting Department

Greetings

I am Ag. SRM Kandara. I would like to get feedback on my appeal les from thisservice. I have learnt of it from my colleague.

Kindly advice.

Many thanks for this service. It is a good learning tool. Thank you.

I love caseback it keeps us informed. Well done caseback.Thank you.Hon.

Munyekenye

Ag. SRM

KandaraCecilia K.Kithinji

Njeri ThukuMagistrate, The Kenyan

Judiciary Judiciary

TransformationSecretariat

Ofce of the Chief

Justice

Case Back



41

BB • Issue 26, July - September 2014 Supreme Court Cases

The Supreme Court Cases

Brief facts

The matter had its origins in the High court, wherethe rst respondent (ferdinand Waititu) challengedthe election o the rst appellant (Evans Kidero).The petitioner at the High court (ferdinand Waititu)based his petition on the main claim that the electionof the 1st appellant herein (respondent then) had notbeen conducted in accordance with the principlesembodied in article 86 o the Constitution. The Highcourt (by majority (with Warsame, J dissenting)upheld the election o the rst appellant therebydismissing the petition as having been conductedin accordance with the electoral principles. Thepetitioner having been aggrieved by that decisionmoved to the Court o Appeal. However, the appealwas led 72 days ater the delivery o the trial court judgment notwithstanding provisions o section85A o the Elections Act that provided that electoralappeals rom the High Court to the Court o Appealhad to be led within 30 days o the delivery o theHigh Court judgment.

In admitting & entertaining the appeal, the Courto Appeal opined on two major grounds, that;

rstly, section 85A (a) o the Elections Act being astatutory timeline, was not as mandatory as thetimelines named in the Constitution itself; and so acourt o law could extend the period within which anintending petitioner could lodge an appeal beyondthe 30 day limit prescribed in the Elections Act. andthat such an extension was proper in the interesto justice, especially where there had been delayin the preparation o court proceedings. It went onto state that Parliament could not have intended toshut out a litigant rom ling an appeal as that wouldhave offended other constitutional provisions suchas articles 10, 20 and 25(c). Secondly, that on thestrength o rule 35 o Election (Parliamentary andCounty Elections) Petition Rules, the Court o Appeal

Rules were applicable in their totality to election

petition appeals beore the court; and so Rule 82 (1)of the Court of Appeal Rules (which provided for thecerticate o delay) could apply to extend the time orling an election petition appeal beyond the 30 daylimit prescribed by section 85A o the Elections Act.

The appellants herein (then respondents) wereaggrieved by that decision and moved to the SupremeCourt or a nal determination.

IssuesI. Whether the Court of Appeal acted without

jurisdiction by entertaining an appeal led72 days after the delivery of the trial court’sdecision yet section 85A(a) o the ElectionsAct provided that appeals to the Court ofAppeal had to be led within 30 days rom thedate o judgment o the High Court.

II. Whether the Court of Appeal could entertainand determine appeals led out o time wherethe delay in ling those appeals emanatedrom judicial processes/ bureaucracies at theregistries.

III. Whether the Court o Appeal disregardedthe doctrine of stare decisis, on the questionof timeliness, on the issue of scrutiny, andon the burden & standard o proo by ailingto apply binding decisions o the SupremeCourt in contravention of article 163(7) of theConstitution.

IV. Whether an election could be nullied on thebasis that a party did not get a air trial beorethe trial court.

Election Law – Election petition – timeliness in lingelection petitions – mandatory nature of timelines in

election petitions – claim where an election appeal wasled 72 days after the date of the judgment of the trial

Rules on Timelines of ling & determining electoral disputes are non-negotiableEvans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others

Petition No.18 o 2014 (consolidated with Petition No. 20 o 2014)Supreme Court o Kenya at Nairobi

W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Njoki,SCJJ

August 29, 2014Reported by Teddy Musiga & Charles Mutua






court whereas electoral laws provide for ling of electionappeals to the Court of Appeal within 30 days of that judgment – whether a certicate of delay under the Courtof Appeal rules could be entertained in electoral disputes–Constitution of Kenya, 2010, article 87. Elections Act,section 85A (a). Court of Appeal Rules, Rule 82.

Constitutional Law - Fundamental Rights & Freedoms -right to fair trial – remedies to breach of right to fair trial– whether an election could be annulled on the groundsof alleged breach of right to fair trial – Constitution ofKenya, 2010,article 50.

Held:1. The guiding principles to be taken into account

by parties who sought to predicate their appeals

upon article 163(4)(a) of the Constitutionincluded the fact that;i. A Court’s jurisdiction was regulated by the

Constitution, by statute law, and by theprinciples laid out in judicial precedent;

ii. The chain o courts in the constitutionalset-up have the professional competence toadjudicate upon disputes coming up beorethem; and only cardinal issues of law or of jurisprudential moment deserved the urtherinput of the Supreme Court;

iii. Not all categories o appeals lay rom theCourt of Appeal to the Supreme Courtunder article 163(4)(a); under that head,only those appeals rom cases involvingthe interpretation or application of theConstitution could be entertained by theSupreme Court and;

iv. Under that same head, the lower Court’sdetermination of an issue which was thesubject o urther appeal, had to have takena trajectory o constitutional application orinterpretation, or the cause to merit hearing

before the Supreme Court;v. An appeal within the ambit of article 163(4)

(a) was one ounded on cogent issues oconstitutional controversy;

vi. With regard to election matters, not everypetition-decision by the Court of Appealwas appealable to the Supreme Court; onlythose appeals arising rom the decision othe Court of Appeal, in which questions ofconstitutional interpretation or applicationwere at play, lay to the Supreme Court.

2. Article 163(4) (a) provided that appeals could liefrom the Court of Appeal to the Supreme courtas o right in any case involving the interpretationor application o the Constitution. The operative

words (interpretation or application) carrieddierent meanings. Interpretation o theConstitution involved revealing or clariyingthe legal content, or meaning o constitutionalprovisions or purposes o resolving thedispute at hand. The basic reerence point inconstitutional interpretation was the text. On theother hand, application of the Constitution wasa more dynamic notion. It entailed creativelyinterpreting the Constitution to eliminateambiguities, vagueness and contradictions inurtherance o good governance. Quite oten, itinvolved interpreting the constitution in such amanner as to adapt it to changing circumstancesin the community, with care not to usurp the roleo the legislature.

3. The Constitution at chapter 7 provided or thegeneral principles o the electoral system –principles that stood alongside prescriptivenorms. Where disputes arose with regard to theinterpretation and application of such principlesand norms in election petitions, the SupremeCourt as the apex court could not gaze helplesslywhen moved by litigants.

4. The question o timeliness in ling electionpetitions, and whether the Court of Appealerred in the interpretation o section 85A o

the Elections Act vis a vis article 87(1) o theConstitution and the allegation that the appellatecourt elevated and applied a civil litigation rule(subsidiary legislation) to an election dispute,beyond and in breach o section 85A(a) andby extension, the Constitution itsel were allpertinent constitutional controversies thatinvited the Supreme Court’s jurisdiction underarticle 163(4)(a) o the Constitution or a nalinterpretation or application o the Constitution.

5. Under section 85A (a), the 1st respondent oughtto have led an appeal within 30 days rom the

date o the judgment (September12, 2013) thatwould have been October 10, 2013. However, theappeal was led on 22/11/2013) 72 days romthe date o the judgment o the High Court.

6. The question o timeliness in ling anddetermining election petitions as set by theConstitution and the Elections Act, section85A(a) were neither negotiable nor couldthey be extended by any court or whateverreason. Section 85A o the Elections Act wasneither a legislative accident nor a routine legal

prescription. It was a product o a constitutionalscheme that required electoral disputes to besettled in a timely ashion.

7. The court o appeal erred in law by choosing to




43

depart rom the legal principles established bythe Appellate court itsel and armed by theSupreme Court on the timeliness in resolvingelectoral disputes and without specicallydistinguishing the earlier cases in accordancewith the normal judicial practice.

8. The Court o Appeal’s majority position even iounded upon notions o “justice and airness”had overlooked clear imperatives of the lawthat were overriding. They overlooked the law oprecedent, expressly declared in article 163(7)o the Constitution. They ailed to recognize thatsection 85A o the Elections Act was directlyborn o article 87 o the Constitution. They hadnot taken into account that the ideals o justicewere by no means the preserve o the intending

appellant and that they had to enure to theelectorate as a whole. They ailed to recognizethat the overall integrity o the democraticsystem o governance was sealed on a platormo orderly process, o which the judiciary was thechie steward and in which the course o justicealready charted by the superior courts was to bemethodically nurtured.

9. The majority on the appellate bench held that rule82(1) o the Court o Appeal rules was applicableto the matter before them, with the effect of

setting in motion the computation o time suchas would have excluded the time taken by theHigh court in the preparation o the proceedings.I that rule were to be applied to election petitionappeals, as the majority appellate judges heldthen it meant that an election petition appealcould be led within as much as 60 days o theling o the notice o appeal.

10. That rule provided in addition that the time takento prepare the proceedings be excluded rom thecomputation o the sixty days. That rule thereore,ousted the provisions o section 85A(a) o the

Elections Act, regarding the time within which anappeal had to be led. Such a rule i applicabledeeated the object o ecient electoral disputesettlement under the Constitution. further, aninstrument o subsidiary legislation (Rule 82 othe Court of Appeal rules) could not override theprovisions o an Act o Parliament (section 85Ao Elections Act).

11. Accordingly, the instant petition was led outsidethe mandatory time prescribed by section 85A othe Elections Act. The proceedings at the High

Court were ready for collection on the October9, 2013 notwithstanding the act that thecerticate o delay was issued on October 30,2013. The petition o appeal ought to have been

led on or beore the close o day on October 10,2013. Thereore the appellate judges erred in lawby admitting and determining an incompetentappeal, the same having been led out o thetime prescribed by the peremptory provisions ofsection 85A(a) o the Elections Act as read witharticle 87(1) o the Constitution.

The majority judgment of the Court of Appeal annullingthe election of the rst appellant was declared a nullityfor all purposes.

Since no further issues of signicant constitutionalcharacter had come up, there was no need to render anopinion in respect of other questions, upon their merits.

Concurring Opinion of S N Ndung’u, SCJ1. The aspect o time, when ling an election

petition was couched in mandatory languageunder articles 87 and 105 o the Constitutiono Kenya, 2010. Ater declaration o the electionresults, the intended petitioner had the dutyto le a petition within 28 days as required bythe Constitution. failure to do so rendered thepetition nugatory. The petitioner in such a caserequired neither judgment nor proceedingsrom the Independent Electoral and Boundaries

Commission. All the petitioner required wasthe actual declaration of election results by thereturning ocer (which he received on the pollingday). As such the responsibility o actualizing theright to challenge the election results rested onthe petitioner.

2. Article 50(1) o the Constitution guaranteedthe right to a air trial. The events that unoldedat the registry & the delay in the release oproceedings should not have compromised the1st respondent’s inalienable right to a air trial.Thus the Supreme Court had to respond to the

constitutional command that every person wasentitled to enjoy the rights and undamentalreedoms in the Bill o rights to the greatestextent consistent with the nature o the right orundamental reedom.

3. Section 59 o the Interpretation & GeneralProvisions Act, Cap 2 provided or the constructiono power to extend time to the eect that wherea statute prescribed a time or doing an act ortaking a proceeding and power was given to acourt or other authority to extend that time, then

unless a contrary intention appeared, that powercould be exercised by the court although theapplication or extension could not be made untilater the expiration o the time prescribed.







4. Rule 82 o the Court o Appeal Rules thatprovided or extension o time was notnecessarily in conflict with, or inferior to theElections Act (section 85A) because section 59o the Interpretation & General Provisions Act,Cap 2 provided a bridge between the ElectionsAct and the Court o Appeal Rules. The ElectionAct prescribed time or doing an act but didnot expressly state that the time could not beextended within the connes o section 59 & theCourt o Appeal Rules. I Parliament had intendedfor the Court of Appeal Rules not to apply, itwould have stated so. Thereore the Court oAppeal was right in admitting and hearing the 1st respondent’s appeal in the circumstances.

5. The prerequisites o article 259 o the Constitution

required the constitution to be interpreted ina manner that permitted the development ofthe law. As such, regard to precedents o theSupreme Court could not bar lower courts fromadhering to those progressive requirements. Asan interwoven system o justice, the responsibilityo every judge was to ensure that the mandatedexercise o judicial authority was ollowed andthat ultimately, justice was delivered within theconnes o the Constitution.

6. Judgments o a court o nal appeal stood on

a different basis from those of subordinatecourts. A departure thereore had to be a rarephenomenon justiable only on the basis oconsideration of the deepest sentiments of justice occasioned by a complete disassociationof the factual situation between the previouscase and that being considered. It had to beapparent that the test o experience and passageof time had rendered the rule untenable ofapplication in the circumstances then prevailing.The settlement o electoral law by the SupremeCourt eliminated any diculty in identiying the

ratio set orth as binding precedent.7. The Court o Appeal considered in great depth

and in actual circumstance, the bounds ofsection 85A o the Elections Act vis a vis theRules governing the court. That examinationwas well within the bounds of their power andthe same could not be faulted for failure to abideby article 163(7) o the Constitution.

8. Under section 83 o the Elections Act, an electioncould only be declared void if that election didnot substantially comply with the written law–

Constitution, Elections Act and Regulationsmade thereunder. Where there was substantialcompliance with the written law in an election,the irregularities had to indeed have aected

the result of the election for that election tobe invalidated. The emphasis then was notwhat happened subsequent to the declarationof the results, but what happened before andin the process of the election up and until thedeclaration o the result.

9. The principles to be considered beore anelection could be annulled were:i. I it was demonstrated that an election was

conducted substantially in accordance withthe principles of the Constitution and theElections Act, then such an election wasnot to be invalidated only on the ground oirregularities.

ii. Where, however, it was shown that theirregularities were o such a magnitude that

they affected the election result, then suchan election stood to be invalidated.

iii. Where, however, it was shown that theirregularities were o such a magnitude thatthey affected the election result, then suchan election stood to be invalidated.

iv. Mere allegations o procedural oradministrative irregularities and other errorsoccasioned by human imperfection werenot enough, by and o themselves, to vitiatean election.

10. Under article 25(c) o the Constitution, the rightto a air trial could not be limited. However, it wasan individual’s right – a right in personam and theremedy or the violation o such a right could notbe nullication o an election since an electionrelected the views o the people expressedthrough the vote, not just rights o individuals andthereore courts had to be careul not to exercisetheir power in such a manner as to interfere withthe people’s expression in instances where theproven election irregularities did not aect the

election results. Thereore, the Court o Appealerred in nulliying the 1st and 2nd appellant’selection as a remedy for the violation of a fairtrial.

11. Article 23(3) of the Constitution, 2010 lay out theremedies available for the enforcement of theBill o Rights as declaratory orders, injunction,conservatory orders, declaration of invalidity ofany law, order o compensation & judicial review.On the other hand, section 21 of the SupremeCourt Act gave the Supreme Court general

powers to make any orders or grant appropriaterelies.12. Whereas an order of retrial is the usual remedy

granted or breach o air trial, in the instant case,




45

an order of retrial would not have been possiblesince the jurisdiction o an election court to hearand determine an election petition expired atersix months o ling the petition.

13. The six month period o the High court and theCourt of Appeal’s power as an election court hadexpired. Under section 21 o the Supreme CourtAct, the Supreme Court could remedy the denialo a air trial by creating a window or the crossexamination o the Returning ocer by the 1st respondent. In so doing, the court would haveully remedied the rst respondent’s denial o theright to air hearing since he would have beenable to challenge the evidence o the returningocer in the same way as he would have donehad he been granted an opportunity by the High

court as the most appropriate remedy in thecircumstances.

14. Costs ollowed the event and the awarding ocosts to one successful party should not beseen as a punitive measure.

The decision of the Court of Appeal delivered on May 13,2014 annulled

The judgment of the High Court dated September 10,2013 reinstated.

The Supreme Court reafrmed the status of the 1st appellant as the duly elected Governor of Nairobi County

Parties to bear their own costs at the High Court, Court of Appeal and Supreme Court

Supreme Court Upholds the Election of the Member of Parliament for Narok EastConstituency

Lemanken Aramat v Harun Lempaka & 2 othersPetition No 5 o 2014

Supreme Court o Kenya at NairobiW M Mutunga, K H Rawal, P K Tunoi, M K Ibrahim, J B Ojwang’, S C Wanjala, SCJJ

August 6, 2014Reported by Andrew Halonyere & Valarie Adhiambo

VI. Whether the Supreme Court could addressany issues of merit in a matter in whichthe lower courts lacked jurisdiction

VII. Whether the Supreme Court had to downits tools ater determining that it had no jurisdiction to entertain a matter

VIII. Whether the Supreme Court had jurisdiction to entertain the matter inquestion

Electoral Law - election petitions-expeditious disposalof election petitions - where the Constitution made a provision requiring that election petitions, for electionsother than presidential elections, be led within 28days after the declaration of the election results by theCommission- whether proceedings were a nullity abinitio, having been premised on a petition led out of timeat the High Court - Constitution of Kenya, 2010, article87 (2)

Electoral Law - election petitions- time-frame for ling

electoral disputes- where a party argued that the lingof an election petition out of the prescribed time wasan issue of competence of the petition rather than a jurisdictional issue- whether the ling of an election

IssuesI. Whether proceedings in the election

petition in question were a nullity ab initio, having been premised on a petition led inthe High Court outside the 28 day periodollowing the declaration o the electionoutcome, as had been provided for in theConstitution

II. Whether the ling o an election petitionoutside of the prescribed time was an

issue bearing on the competence o acourt or on the jurisdiction o that court

III. In an electoral dispute relating to thequestion of the validity of election of amember o Parliament, did an order bythe Court of Appeal for a recount of votesby the High Court ater the lapse o theconstitutional time-rame o six monthspurport to extend the jurisdiction o theHigh Court?

IV. Whether a court could entertain the issue

o jurisdiction where the same had notbeen pleadedV. What was the extent o the jurisdiction o

the Supreme Court?







petition outside of the prescribed time was an issue ofcompetence or of jurisdiction

Electoral Law - election petitions – questions relating tomembership in Parliament- where an election petitionchallenged the validity of the election of a member ofParliament- time- essence of time- where the Constitution provided a six-month time-frame for the hearing anddetermination of such questions by the High Court-where the Court of Appeal ordered a recount of votes bythe High Court after the lapse of the constitutional time-frame for determination of such questions-whether anorder by the Court of Appeal for a recount of votes bythe High Court in such an election petition outside theconstitutional time-frame of six months purported toextend the jurisdiction of the High Court- Constitution of

Kenya, 2010, article105 (1)& (2)

Civil Practice and Procedure - pleadings- questions oflack of jurisdiction by the court and nullity of proceedings-appeal- where on appeal, a party failed to plead the issuesof the lower court’s lack of jurisdiction and nullity of the proceedings but canvassed them in its submissions-whether the Court could entertain the issue of jurisdictionand nullity where the same had not been pleaded

Jurisdiction - jurisdiction of the High Court- jurisdiction

of the Court of Appeal- where the High Court and Courtof Appeal lacked jurisdiction in proceedings that theyhad entertained- appeal to the Supreme Court on thebasis that the proceedings in the lower courts were anullity-whether the Supreme Court had jurisdiction toentertain the matter in question-what was the extentof the jurisdiction of the Supreme Court -whether theSupreme Court could address any issues of merit in amatter in which the lower courts lacked jurisdiction-whether the Supreme Court had to down its tools afterdetermining that it had no jurisdiction to entertaina matter- Constitution of Kenya, 2010,article 163(8);

Supreme Court Act, 2011, section 3

Constitution of Kenya, 2010Article 87 (2)Petitions concerning an election, other than apresidential election, shall be led within twenty-eightdays after the declaration of the election results by theIndependent Electoral and Boundaries Commission.Article105

(1) The High Court shall hear and determineany question whether—

(a) a person has been validly electedas a member o Parliament; or(b) the seat of a member has become

vacant.

(2) A question under clause (1) shall be heardand determined within six months o thedate o lodging the petition.

Held1. A condition that had been set in respect of

electoral disputes was the strict adherence to thetimelines prescribed by the Constitution and theelectoral law. The jurisdiction o the Court to hearand determine electoral disputes was inherentlytied to the issue of time, and a breach of the strictscheme of time removed the dispute from the jurisdiction o the Court.

2. There were instances in general litigation when jurisdiction was not aected by a party’s ailureto meet the set ling requirements. for example,

a Court would in certain instances exercise itsdiscretion to admit a matter or hearing when anargument regarding proper orm was pendingbeore it. The Court’s authority under article159 of the Constitution remained unfettered,especially where procedural technicalities posedan impediment to the administration o justice.

3. The Constitution, in some instances, linkedcertain vital conditions to the power of the Courtto adjudicate a matter. That was particularly truein the context o Kenya’s special electoral dispute-

resolution mechanism. By linking the settlementof electoral disputes to time, the Constitutionemphasized the principles o eciency anddiligence, in the construction o vital governanceagencies.

4. Timeliness are a precondition in the prosecution oelectoral causes. It is a constitutional requirementthat went to the root o democratic governance.Ecient and dependable plays and interplays ogovernance entities are undamental principlesunderlying Kenya’s democratic Constitution o2010. The vital primary agencies o discharge o

the public mandate had to each function withina disciplined time-frame, if they were not to holdup the unctioning o a dierent public agency,with the eect o occasioning immobility in oneor more o the governance-units. Only throughecient and responsive unctioning, could thoseagencies have operated in synergy, so as to bearout the people’s sovereign expression as declaredin article 1(1) and (2) o the Constitution.

5. The legitimacy o a challenge to electoraloutcomes spoke or itsel. It was an avenue or

ascertaining the mode o conveying the people’sexpression o their right o ranchise.6. The Court, as a device o sanctication o the

people’s electoral determination, was not an





47

unregulated orum, where so critical a disputecould linger or indeterminate periods o time.Thus, the Supreme Court, in asserting the authorityof the Constitution, underlay the element of theimminent time-constraint in the resolution ofelectoral disputes throughout the judicial system.The ultimate principle was: while citizens were atliberty to contest electoral outcomes, they wouldproceed within prescribed timelines, and in thatway, helped to sustain the due unctioning oother constitutional processes.

7. The phenomenon o nullity, in any transaction thatbore legal incident, was a pure jurisdictional issue.The issue, particularly in that instance, ormed adirect link with the timelines bearing upon theCourts determining electoral disputes, and was

a vital element in the relevant constitutionalprescriptions. It was, thereore, a questionalling under the Supreme Court’s jurisdiction, asconerred by article 163(4) (a) o the Constitution.The issue o nullity was plainly linked toconstitutional timelines, and to the jurisdiction othe Court.

8. There was no conlict at all in the case, betweenthe electoral requirements of timelines, on theone hand, and the values of the Constitution, onthe other hand. Compliance with timelines was

itself a constitutional principle that reinforcedthe constitutional values attendant upon theelectoral process. That was consistent with theinherent character of the Constitution whichallowed the ullment o individual rights, bylaying out accessible procedures to sustain thecitizen’s stakeholder and nationality-claims; butconcurrently reprobated complacence in theassertion o legitimate claims. The Constitutionbore an inner entreaty for predictability,transparency, and service-orientation to thepeople; but the realization of such values had a

time-element.9. Section 76(1) (a) o the Elections Act which stood

in contradiction to the governing law on timelines,in the electoral process had been annulledextending back to the date o enactment o thestatute. Those who led election petitions outsidethe 28-day requirement o the Constitution couldnot avoid the consequence of their dilatorinessfor it was the prescribed time-frame that openedthe jurisdiction o the Courts. Having been suchan elemental constitutional requirement, it stood

out by itself, irrespective of the averments madeby parties in their pleadings. To that question,the general discretion provided or in article 159would not apply, as that was not an ordinary issue

o procedural compliance.10. The original jurisdiction o the High Court in

criminal and civil matters, by article 165(3) (a)o the Constitution, was unlimited. In addition,the High Court had a special jurisdiction inelectoral matters, conferred by the Constitution,and given eect under the Elections Act. It hadthe jurisdiction to determine any question as towhether a person has been validly elected asa Member o Parliament under article 105(1)(a) o the Constitution. By article 87(2) o theConstitution, that jurisdiction was activated upona declaration by the authorized electoral body(IEBC) that a particular person had been returnedas Member o Parliament, when there was achallenge to that electoral declaration. The High

Court’s special jurisdiction was clearly time-boundand had practical meaning only in the context othe prescribed timelines.

11. The Supreme Court could begin to inquire into theHigh Court’s jurisdiction despite the act that thequestion o “competence” had not arisen throughormal pleadings. By article 163 o the Constitutionof Kenya, a Supreme Court, with ultimateconstitutional responsibility, and bearing bindingauthority in questions of law over all other Courts,had been established. The exclusive dedicated

role o the Supreme Court took several orms.for example, it had original jurisdiction to hearand determine disputes relating to the electionsto the oce o the President; it was required tohear and determine as o right, on appeal, anycase involving the interpretation or applicationo the Constitution and; it could give an advisoryopinion at the request o the national government,any State organ, or any county governmentwith respect to any matter concerning countygovernment.

12. The Supreme Court was expressly empowered byarticle 163(8) to make rules or the exercise o its jurisdiction and, by article 163(9), a Parliamentaryenactment could make further provision for theoperation o the Supreme Court. The SupremeCourt Act, 2011, had been enacted which upheldthe Court’s standing as the ormal custodian othe interpretive process for the Constitution, thenational grundnorm. It was not possible to detractfrom the Supreme Court’s authority to hear anddetermine all the relevant questions.

13. It was a responsibility vested in the SupremeCourt to interpret the Constitution with nality







and that entailed that the Court determiningappropriately those situations in which it oughtto have resolved questions coming up beore it, inparticular, where those had a direct bearing on theinterpretation and application o the Constitution.Besides, as the Supreme Court carried the overallresponsibility or providing guidance on matterso law or the State’s judicial branch, it ollowedthat its jurisdiction was an enlarged one, enablingit in all situations in which it had been duly moved,to settle the law or the guidance o other Courts.

14. The Supreme Court’s jurisdiction in relation toelectoral disputes was broader than that of theother superior Courts. While the Court o Appeal’s jurisdiction was based on section 85A o the

Elections Act, with its prescribed timelines, that othe Supreme Court was broader and was foundedon the generic empowerment o article 163 othe Constitution, which conferred an unlimitedcompetence for the interpretation and applicationo the Constitution. That, read alongside theSupreme Court Act, 2011, illuminated the greatercharge that was reposed in the Supreme Court, ordetermining questions o constitutional character.

15. When a lower court lacked jurisdiction, the

Supreme Court had jurisdiction on appeal, not othe merits but merely or the purpose o correctingthe error o the lower court in entertaining the suit.That could only be additional to the jurisdictionalcompetence o the Supreme Court. Article 163(7)of the Constitution had specially empowered theSupreme Court to give stewardship to the termsof the Constitution; in particular, that charter’ssaeguards or individual rights and or thescheme o just redress to all matters in dispute.The Constitution’s prescription was carriedfurther in the Supreme Court Act, 2011, whichrequired the Court to “assert the supremacy ofthe Constitution and the sovereignty o the peopleof Kenya”; to “provide authoritative and impartialinterpretation of the Constitution”; and to “developrich jurisprudence that respects Kenya’s historyand traditions and facilitates its social, economicand political growth”.

16. The Constitution, by article 259(1) (c), required suchinterpretation of it as permitted the developmento the law. The Supreme Court’s unconstrained

mandate in the instant case would provide therequisite condition or such interpretation. Asthe guardian o the Constitution, and the nal

arbiter on constitutional dispute-situations,the Supreme Court had been entrusted withthe mandate to ensure the effectiveness of thebinding constitutional norm. Thus, the decisionsemanating rom that Court had a binding eect onall subsequent determinations of related mattersby other courts in the judicial set-up.

17. The Supreme Court’s special jurisdiction meritedexpress recognition. The Constitution’s paradigmo democratic governance entrusted to that Courtthe charge o assuring sanctity to its declaredprinciples. The Court’s mandate in respect o suchprinciples could not, by its inherent character, bedened in restrictive terms. Thus, such questionsas came up in the course of dispute settlement

(which, itself, was a constitutional phenomenon),especially those related to governance, wereintrinsically issues importing the obligationto interpret or apply the Constitution – andconsequently, issues alling squarely within theSupreme Court’s mandate under article 163(4)(1)(a), as well as within the juridical mandate othat Court as had been prescribed in article 259(1)(c) of the Constitution, and in section 3(c) of theSupreme Court Act, 2011.

18. The language, purpose and principles o theConstitution, and the broad terms in which theSupreme Court’s jurisdiction had been conerredby both the Constitution and the organic law madeunder it, gave the clear message that such issueso merit were not beyond that Court’s jurisdiction.The electoral questions canvassed beore thatCourt were in a fundamental sense, constitutionalones, in respect o which jurisdiction lay, by virtueo article 163(4) (a) o the Constitution.

19. The Supreme Court, by virtue o its broadcompetence in determining questions thatentailed the interpretation and application ofthe Constitution, had the unrestricted latitudeto determine issues whether of form or merit,brought up by the instant cause. Whether or notthe Court determined a particular issue, was amatter o discretion, exercised by reerence toconsiderations o practical purpose.

20. As an ultimate court, whenever the SupremeCourt made any determination at all, be it one of

merits, or even a residual one, it had an inherentobligation annexed to the disposal o mattersin contention, o concluding the contest bydetermining the deserts of the parties in the form





49

o costs, or related elements. The Court should nothave abnegated its obligation to provide overalldirection in the interpretation and application ofthe law.

21. The Supreme Court was required to proceedindependently and to evaluate the circumstancesof each case, to determine whether a term of theBill o Rights had been compromised by a lowercourt in its adjudication. Even outside the domaino the Bill o Rights, that Court, by virtue o itsstatus as the ultimate court in the settlement ofthe course o jurisprudence, held a crucial placein the determination of questions of ‘pure law’bearing on matters o public interest.

22. The scope or a constructive interpretation o theConstitution as a whole was to be consistentlysaeguarded. Such a perception would certainlyhave grasped the Supreme Court’s determinativevoice in relation to electoral disputes which hadbeen held to have arisen as a direct derivative ofthe constitutional norm.

23. A Court dealing with a question o procedure,where jurisdiction was not expressly limited inscope, as in the case o articles 87(2) and 105(1)(a) o the Constitution, could exercise discretionto ensure that any procedural ailing that lentitsel to cure under article 159, was cured.Certain procedural shortalls might not havehad a bearing on the judicial power (jurisdiction)to consider a particular matter. In most cases,procedural shortcomings would only aect thecompetence of the cause before a Court, withoutin any way aecting that Court’s jurisdiction toentertain it. A Court so placed, taking into accountthe relevant facts and circumstances, could curesuch a defect; and the Constitution required such

an exercise o discretion in matters o a technicalcharacter.

24. In the instant case, the jurisdictional issueinvolved was one that turned on the interpretationand application o the Constitution. The specialdesign and character o the Constitution wouldnot have favoured the rule historically associatedwith the common law tradition, that the contestto jurisdiction should have had its origin at thetrial court. That was not, however, to water down

the distinct merits of the orderly approach atcommon law, which sustained the principle thata cause beore the Court was established throughpleadings.

25. Jurisdiction was, ordinarily, a prior question linkedto the constitutional competence of a court toresolve a particular contested matter, save thatthe Supreme Court’s jurisdiction was broader thanthat o the other courts. for the other courts, thespan o applicable jurisdiction was more narrowlydened and, at all times, the competence othose courts sprang rom the clear terms o their jurisdictional empowerment.

26. The Supreme Court’s priority in the case at handwas to ascertain the extent o the jurisdictionof the other Courts at the time they had madetheir determinations. I they lacked jurisdiction,then their decisions would have been null.Consequently, it would not have been necessary

or the Court to have examined such otherquestions as might have been the subject o theorders o those Courts.

27. The jurisdiction o a court was not a luidphenomenon, as it was regulated by theConstitution. It could not, thereore, be extendedthrough judicial crat or innovation. The criticalquestion at hand rested on the relationshipbetween timelines as had been laid down in theelectoral law, and the issue o jurisdiction.

28. The Appellate Jurisdiction Act (Cap. 9) did notconer jurisdiction upon the Court o Appeal toremit an electoral-dispute matter back to theHigh Court ater the six-month limit set out inarticle 105(1) and (2) of the Constitution hadlapsed. The Constitution and the Elections Act,which were the foundation of a special electoral-dispute regime, conerred upon the High Court thepower to determine electoral disputes within sixmonths, and the Appellate Court could not conferupon itsel powers to resurrect the jurisdiction oElection Courts, ater such jurisdiction had been

exhausted under the law.29. The Constitution is the supreme law o the land in

the terms of its article 2(1), which binds all personsand State organs. It ollows that the Constitutionis sovereign and holds a place o superiority overany orders and decrees o a court. Accordingly,the Court o Appeal could not coner jurisdictionupon the High Court to conduct a recount, as the jurisdiction o the High Court under article 105(1)and (2) o the Constitution, was, in the rst place,contestable on the ground o expired timelines andwould in any case have been already exhausted.

30. Article 105(2) of the Constitution was concernedwith mandatory timelines that embodied jurisdictional requirement. There was no standard







mode o delineating a Court’s jurisdiction. TheConstitution was clear in its wording in articles105(1) and (2), that the High Court had the powerto hear and determine electoral disputes relatingto membership o Parliament, and that that powerhad to be exercised within a six-month period. Theclear import of the prescribed timelines withinwhich to have determined electoral disputes wasthat they inherently and compellingly subsumed jurisdiction. The Court o Appeal thereore haddisregarded the constitutionally-set six-monthtimeline or determining a parliamentary-membership electoral dispute by attempting toconer upon the High Court extended jurisdictionor carrying out a vote-recount.

31. Article 87(1) o the Constitution required

Parliament to enact legislation or the timelyresolution of electoral disputes, which resulted inthe enactment o the Elections Act. Section 85A othe Act was the provision which dealt with appealson electoral disputes at the Court of Appeal and itprovided that an appeal rom the High Court in anelection petition concerning membership o theNational Assembly, Senate or the Oce o CountyGovernor was to lie to the Court o Appeal onmatters o law only. It had to be led within thirtydays o the decision o the High Court and heard

and determined within six months o lling o theappeal.32. The actor o time and timelines at the very

beginning in the High Court, when the 1st Respondent led his petition 36 days ratherthan 28 ater nal declaration o results, went to jurisdiction. The High Court lacked jurisdictionto entertain the 1st Respondent’s petition and,similarly, the Court of Appeal, in several respects,lacked jurisdiction. The determinations made inboth superior Courts were thereore null.

In the dissenting opinion of Mohammed Ibrahim,SCJ1. The Constitution had set the tone or the principle

of timely disposal of electoral disputes whenit provided the time within which to lodge anelection dispute in both a presidential and a non-presidential election, by articles 140 and 87(2)respectively. That principle o timely disposal oelection disputes had inormed Parliament in theenactment o section 76(1) (a) o the ElectionsAct. However, that section had been declared

unconstitutional by the Supreme Court, or havinganchored the 28 days within which one was tole a petition challenging election results in anelection other than a presidential election on

the publication of the results, rather than on thedeclaration of results, as had been provided for inthe Constitution.

2. The Supreme Court’s decisions were binding,

as had been provided by article 163(7) of theConstitution. Consequently, that Court couldnot make decisions just to t a particular case.Its decisions were arrived at ater detailedconsideration and were meant to nally settlelegal controversies and shape the Country’s jurisprudence, and could only be departed romater a sucient ground had been established.

3. The Court’s noble but sacred mandate undersection 3 of the Supreme Court Act, 2011,was to establish a pragmatic and indigenous jurisprudence ounded on good governance andthe rule o law. Such jurisprudence could not havebeen ounded on divergent decisions in caseswhere the acts were similar.

4. The correct legal position was that a party whocame to court to seek redress was bound byhis pleadings. That principle, however, reerredto issues as had been framed by parties andrelies that bordered on the rights and obligationsas between parties. A question o nullity o

proceedings that bordered on jurisdiction did notqualiy as settling or calling or a determination asregards rights and obligations as between partiesin litigation. It was a legal question. It was or thatreason that it could be raised at any time, by anyparty, even by the court itsel.

5. Where a jurisdictional question had been raised,a challenge o parties being bound by theirproceedings could not rightly lie. The law was thepreserve o the courts, which courts took judicialnotice o. A party did not have a ‘monopoly’ o

the law. The Court did have that monopoly as itapplied the law to a set o acts in reaching itsdecision. Hence, a court o law could rightly raisea legal question o jurisdiction even where noparty had raised such a question.

6. A question o competence o proceedings whichbordered on jurisdiction o the Court to admit suchproceedings did not all to be let to the discretiono parties’ pleadings as the same was a matterthat could have been taken up by the Court suomotu. A court was bound to always satisy itsel

o whether or not it had jurisdiction to hear anddetermine a matter before it; and to also warnitself that the matter before it was one which itshould have admitted under its jurisdiction or





51

consideration.

7. The proceedings in the High Court were a nullityab initio, having been premised on a petition thatwas led out o time. All the proceedings that had

sprung rom a petition that was a nullity were alsonull and void. Consequently, the Supreme Courtdid not have jurisdiction to entertain the appeal.On the basis o lack o jurisdiction, the SupremeCourt ought to have downed its tools and notdelved into any other question on their merits.

8. The decision o the majority with regard to notdowning their pens upon making a determinationthat the High Court proceedings were a nullity,and delving into other questions o merit, was adeparture rom previously decided cases. Whilethe Supreme Court had the jurisdiction anddiscretion to depart from its past decision, therehad been no justication to do so in the caseat hand. The Court should have stopped uponmaking the nding that it had made on the issueo jurisdiction alone.

9. In similar cases that had been previouslydetermined, there had been other questions whichthe Supreme Court identied as having allen ordetermination. All those questions had had a ‘great

constitutional’ bearing as the Supreme Court hadbeen bestowed with jurisdiction and the mandateunder section 3 of the Supreme Court Act to settleconstitutional questions with nality. Havingound that the proceedings in those cases hadbeen a nullity ab initio, the Court had to downed itstools and could not proceeded to determine theother ramed issues.

10. The context o the case at hand had not givenrise to a constitutional moment for the Court toseize and go into any other issues ater makinga nding that the petition was a nullity ab initio and that the Court o Appeal and the High courtlacked jurisdiction to hear it. Such a constitutionalmoment could only have arisen where the Court

was satised that it had jurisdiction. Jurisdictionwas everything and such a moment would onlyhave arisen where the matter was rightly beorethe Court; where it had been substantively, ratherthan tangentially, brought beore the Court.

Judgment of the Court of Appeal annulled. Gazette Noticedeclaring the Appellant as the duly elected Member ofParliament for Narok-East reinstated and sustained.Parties to bear own costs.

Supreme Court grants extension of time to le an appeal where the delay was caused bythe court

Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014]In The Supreme Court o Kenya at Nairobi

Application No. 15 o 2014M K Ibrahim, J B Ojwang, SCJJ

July 4, 2014

Reported by Teddy Musiga and Getrude Serem

3 o the Supreme Court Act.

Issue

I. Whether the Supreme Court had the jurisdiction to entertain an application orextension o time beore leave had beengranted or the Court to hear such matters.

Jurisdiction – appellate jurisdiction of the SupremeCourt – extension of time for ling appeals to the

Supreme Court – claim where the delay in ling theappeal was alleged to have been caused by the Court of Appeal by failing to furnish the applicant with certied

Brief facts

The applicant led an application beore the SupremeCourt seeking extension o time to le an appealto the Supreme Court pursuant to rule 33 of theSupreme Court Rules, 2012. The applicant allegedthat he had been unable to lodge his appeal in timebecause o the Court o Appeal’s delay in deliveringthe ruling on certication o the matter as that ogeneral public importance and also that the Court oAppeal had ailed to urnish him certied proceedingsto enable him to prepare the record of appeal interalia. He thereore argued that the Supreme Courthad jurisdiction to extend time to achieve the ends o justice, in the discharge o its mandate under section







copies of proceedings to lodge an appeal to the SupremeCourt – Constitution of Kenya, 2010 article 163(4).

Held:

1. Appeals to the Supreme Court need not lie onthe entirety o the issues arising in the lowerCourts. What went to the Supreme Court onappeal, were disputes over constitutionalinterpretation or application, or over matters ofgeneral public importance. Thus, i such issuescould be isolated rom the general case heardby the lower Courts, then it was implausible toargue that one could not urther distinguish theissues of constitutional relevance that clothedthe Supreme Court with direct jurisdiction, rom

those requiring certication as matters o generalpublic importance.2. The matter presented two varying public-interest

considerations that required balancing by theCourt. The rst was the principle o timelinessin the resolution of election disputes, embodiedin article 87(1) o the Constitution and access to justice, embodied in article 48 o the Constitution.The delay in the prosecution o the case prejudicedthe certainty of the political representation of thepeople o Lunga Lunga Constituency and theapplicants’ right to access justice. It was clear thatthe blame lay squarely on the Court processes ofgenerating proceedings.

3. It would not have been in the interests o justiceto turn away an applicant who had, prima facie,exercised all due diligence in pursuit o his cause,

but was impeded by the slow-turning wheels othe Court’s administrative machinery. Thoughprejudice to the representation o the people oLunga Lunga Constituency was to persist, it wasdue to no ault on the part o the applicant.

4. It had become quite clear rom recent decisions othe Supreme Court, that the domain of electionsbe it in respect o the Presidency, Senate, NationalAssembly or gubernatorial oce entailed specialconsiderations of priority in constitutionalgovernance. It by no means came unexpectedly,that a dedicated regime o electoral law, builtupon the broad principles, and the specic termso the Constitution, together with the elaborativebody o statutory and regulatory law, was welland truly evolved.

5. The concept o timelines and timeliness had beenupheld as a vital ingredient in the quest or ecientand eective governance under the constitution.However the court had to take cognizance othe eternal mandate o responding appropriatelyto individual claims, as dictated by compellingconsiderations o justice where the applicant hadexercised all due diligence so as to move a courton electoral issue, but the mechanisms had shutthe doors on him. When he lodged his complaintto the court or extension o time the court had

to avail to him the requisite appeal papers. Thesluggish motion o the judicial machinery enjoyedno constitutional privilege, as against the specicguarantees o the Bill o Rights.

Application for extension of time allowed.





53

Issues

I. Whether section 85A o the Elections Act wasunconstitutional as it limited the jurisdiction othe Court of Appeal to determine only matters

of law?II. Whether the jurisdiction o the Court o Appeal

could be limited or fettered in scope, manneror procedure conned to only particularquestions?

III. Whether the constitution envisaged thelimitation o the right o appeal in the Court oAppeal?

IV. Whether the Court o Appeal erred by ndingthe appellant to have committed the election

oence o bribery by using the ConstituencyDevelopment funds (CDf)?

V. Whether the Court of Appeal contravened its jurisdictional limit on evidentiary questionby reversing the trial court’s nding orconclusions o acts in terms o section 85Ao the Elections Act, 2011?

VI. Whether the Constituency Developmentfund (CDf) committee members were publicocers under the constitution?

Elections law – constitutionality of section 85A of theElections Act – whether the limitation by section 85Aof the Elections Act contravened section 105(2) of theConstitution of Kenya, 2010 – whether the limitation ofthe appeals to the Court of Appeal to ones of matters oflaw only was unconstitutional – Constitution of Kenya,2010 article 105(2); section 85A of the Elections Act.

Elections law – election offences – bribery of voters –improper use of CDF funds – claim alleging use of CDF

funds to bribe voters –circumstances in which the useof CDF funds before election by the aspirant amountedto an election offence of bribery - Elections Act section67(2).

Jurisdiction – Appellate jurisdiction of the Court of Appeal – whether the appellate jurisdiction of the Courtof Appeal is limited to only questions of law or whetherthere were circumstances in which the appellate jurisdiction could entertain both matters of fact and law

– whether the Court of Appeal can overturn the decisionof the trial court on matters of facts – Constitution ofKenya, 2010 article 164(3).

Constitutional law – public ofcers – meaning of public ofcers under the Constitution and other relevantstatutes – whether members of a CDF committee are public ofcers – Constitution of Kenya, 2010 article260, Interpretations and General Provisions Act, section3, Public Ofcers Ethics Act, section 2, ConstituencyDevelopment Fund Act, sections 5, 18, 23, 24.

Section 85 of the Elections Act, provides that:

“An appeal from the High Court in an election petitionconcerning membership of the National Assembly,Senator or the ofce of county governor shall lie to theCourt of Appeal on matters of law only and shall be:

a) led within thirty days of the decision of the HighCourt; and

b) Heard and determined within six months of theling of the appeal to the Court of Appeal.”

Article 260 of the Constitution denes a publicocer as:

(a) any State ofcer; or

(b) any person, other than a State Ofcer, whoholds a public ofce.”

It continues to dene public oce as;

“An ofce in the national government, a county

government or the public service, if the remunerationand benets of the ofce are payable directly from theConsolidated Fund or directly out of money provided byParliament.”

Supreme Court sets aside Court of Appeal’s decision nullifying the election of Member ofthe National Assembly for Nyando Constituency

Frederick Otieno Outa v Jared Odoyo Okello & 4 othersIn the Supreme Court o Kenya at Nairobi

Petition No. 10 o 2014 W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, M K Ibrahim, J B Ojwang, S C Wanjala, S N Njoki, SCJJ

July 3, 2014

Reported by Teddy Musiga and Getrude Serem







article 260, denes the public service, as:

“The collectivity of all individuals, other than Stateofcers, performing a function within a state organ.”

Held:1. Section 85A ound its way into the Elections Act by

way o a Miscellaneous Amendment Act, No. 47o 2012. The Act, in its original design, was silenton the issue o appeals to the Court o Appeal.Section 85 had only provided that an electionpetition was to be heard and determined withina period specied in the Constitution. That periodwas specied in article 105(2) o the Constitution.A question relating to the validity o the electiono a Member o Parliament was to be heard and

determined within a period o six months by theHigh Court. The Act, as initially enacted, gaveno room for appeals to the Court of Appeal, withrespect to election petitions.

2. Article 105(1) of the Constitution vested inthe High Court powers to consider whether aMember o Parliament had been validly elected,or the seat had become vacant. The clear intento that provision, was that a rst-instanceclaim challenging the validity o an election, orquestioned whether a parliamentary seat hadbeen rendered vacant, had to be lodged in theHigh Court. Such a dispute, by article 105(2) othe Constitution, was to be resolved within aperiod o not more than six months.

3. The Court o Appeal, under article 164 (3) o theConstitution, exercised the jurisdiction o the rstappellate Court; and in its broad design in the judicial scheme, the Court o Appeal had general jurisdiction to review matters in dispute, be theymatters o law or matters o act.

4. Electoral contestations oten involvedconstitutional interpretation and application.

When such disputes were adjudicated upon bythe High Court, new contests could emerge,that required resolution within the judicialsystem. Such urther disputes were also directlyappealable to the Court o Appeal. The Court oAppeal was thereore vested with jurisdiction tohear and determine appeals rom the High Court,in respect of decisions made pursuant to article105(1) o the Constitution o Kenya, 2010.

5. Electoral dispute resolutions under article 105could not be a one-stop adjudicatory process.

The legitimate expectation o the Kenyan peoplewas that they were not to be deprived of theright to have electoral disputes resolved throughthe hierarchy o judicial mechanisms, and the

system o justice known to the Constitution.The right to question the validity o an electionentailed an examination by the High Courtwhether the electoral provisions, the principlesof the Constitution, and the requirements of lawhad been satised. first-instance determinationsof such questions, were amenable to appealbefore the Court of Appeal, in accordance withthe provisions o section 85A o the ElectionsAct and this was by no means, subversive of thehierarchical setting o the Court system in Kenya.

6. The Constitution intended that a comprehensiveappellate system be in place, to crystallize auniform and settled authority of the law, to beapplied airly, in the administration o justice.

for the resolution o electoral disputes, anappeal served a more invaluable objective. Itensured that through the judicial process, it wasascertained that a particular candidate wasseen to be validly and popularly conferred withthe electoral mandate, to lead and represent thepeople. The appeal process also served to impartcredence, by arming the place o certainty andpredictability in the law, as the appellate Court laiddown precedent-setting norms, to be applied bylower Courts.

7. The Constitution o Kenya, 2010, ounded a regimeo electoral law, which, even though sharingcommon principles o justice and airness withthe normal civil and criminal jurisdictions, bore anew ingredient that was underlined by objects odemocracy, good governance, and eciency opublic institutions. That was the context in whicharticle 105 set aoot the process o enacting newelectoral legislation, and the making o attendantrules and regulations. That was also the contextin which the specic terms o the Elections Act –

in a broad sense, a context o compatibility, ratherthan that o discord.

8. Section 85A o the Elections Act was thereorethe legislative mechanism intended to eectuatethe constitutional principle of timely resolution ofelectoral disputes as enshrined in article 87(1) othe Constitution.

9. By limiting the scope o appeals to the Courto Appeal to matters o law only, section 85A

restricted the number, length and cost opetitions and, by so doing, met the constitutionalcommand in article 87, or timely resolution oelectoral disputes. Section 85A o the Elections





55

Act was, thereore, neither a legislative accidentnor a routine legal prescription. It was a producto a constitutional scheme requiring electoraldisputes to be settled in a timely ashion. Thesection was directed at litigants who couldbe dissatised with the judgment o the HighCourt in an election petition. To those litigants,it said “limit your appeals to the Court of Appealto matters o law only.” (Gatirau Peter Munya vDickson Mwenda Kithinji & 2 others, SupremeCourt Petition No. 2B o 2014)

10. Similar to article 87(1) is article 105 (3), whichconerred upon Parliament a mandate to enactseparate and special legislation giving it ull eect.Article 105 (1) made the High Court the rst-

instance orum or resolving electoral disputes,where any challenge to the election o a Membero Parliament was to be directed. Article 105(2)prescribed the timeline within which such adispute was to be resolved. By article 105(3) o theConstitution, Parliament was mandated to designand enact a special legislative mechanism, toenable the realization o two objects. The judicialduty o the High Court to hear and determinecauses o action in electoral contests, in the rstinstance, and, where required, provided an avenue

of appeal to the Court of Appeal and secondly, thespecication o jurisdiction and timelines.

11. A statutory provision could be said to beunconstitutional only if it contravened anexpress provision o the Constitution. A readingo section 85A o the Elections Act showed thatthere was nothing in it that ran into conlict withthe constitutional provision conerring appellate jurisdiction upon the Court o Appeal, or with anyother constitutional provision. To allow section85A to be impugned, without a cogent orensicground, would open up improper avenues orcontests to yet other statutory provisions: suchas section 75 o the Elections Act, which limitedthe appellate jurisdiction o the High Court (onappeals rom a Resident Magistrate Court, onthe validity of the election of a County AssemblyMember) to matters of law only and section 71Ao the Civil Procedure Act, which also limited theappellate jurisdiction o the High Court to matterso law only.

12. The Constitution oten let open space orlegislation, or the purpose o speciying thedetails of how the constitutional aspirations and

requirements were to be eectuated. It was onthis account, that article 94 of the Constitutionconerred upon Parliament the legislativeauthority, exercisable on behal o the people, toenact laws that governed the conduct and aairso governance, the State organs, as well as thecitizens, throughout the Republic.

13. Parliament had exercised that mandate,and came up with the Elections Act, 2011. Alegislative ramework or giving eect to persons’rights to the adjudication o electoral disputes,saeguarded in article 105(1). What section 85Adid was to give eect to the tenor o article 105, tohave an electoral dispute determined by the HighCourt, with room for further appeal on matters of

law, to the Court o Appeal.

14. A question o law exsisted when the doubt orcontroversy concerned the correct applicationo law or jurisprudence to a certain set o actsor when the issue did not call or an examinationof the probative value of the evidence presented,the truth or alsehood o acts being admitted.A question o act existed when the doubt ordifference arose as to the truth or falsehood offacts or when the query invited calibration of the

whole evidence considering mainly the credibilityo the witness, the existence and relevancy ospecic surrounding circumstances, as wellas their relation to each other and to the whole,and to the probability o the situation. The Courtcould not adjudicate which party told the truthby reviewing and revising the evidence adducedat the trial court. Neither verbal sophistry, norartful misinterpretations of supposed facts couldcompel the Court to re-examine ndings o actwhich were made by the trial court.( Republic v.Malabanan G.R. No. 169067, October 632 SCRA338, 345 and New Rural Bank of Guimba v. FerminaS Abad and Rafael Susan G.R No. 161818 (2008)

15. “Matters of law” could therefore be characterizedto have three elements:

a) The technical element: This involved theinterpretation of a constitutional or statutoryprovision.

b) The practical element: this involved theapplication of the constitution and the law toa set o acts or evidence on record.

c) The evidentiary element: this involved the







evaluation of the conclusions of a trial courton the basis o the evidence on record.

16. The trial Court alone was the custodian o true

knowledge o witnesses and their quirks, andcould pronounce on issues o credibility. Shorto an appraisal o witness account appearingas absurd, or decidedly irrational, it behove theCourt sitting on appeal to respect the trial Judge’sappraisal o primary acts.

17. Section 67(2) o the Elections Act provided thatthe oence o bribery was cognizable. A personalleged to have committed it was liable to arrest,without warrant. It showed the gravity o theoence, and signaled that a high standard oproo was required. An allegation that an electionoence had been committed had to be specic,cogent, and certain. That requirement guaranteedthe right o air trial, or the person(s) againstwhom such allegations were made.

18. The principle thus conveyed, was that thepleadings had to be clear, the allegationselaborate, and the evidence adduced, focusedand clear-cut. The oundation was clear: electionoffences bore the mark of a criminal conduct

within the framework of an election petition, yetoutside the normal criminal jurisdiction. Electionoffences were, therefore, quasi-criminal in nature;and the Court could not enter a nding o guilt,i the evidence adduced was not denitive andcould not sustain such a nding, or i therewas any doubt as to whether such an offencewas, indeed, committed, or by whom? Thecommission of an election offence if proved,not only led to the election being set aside, butalso to the disqualication o the perceived

culprit, rom standing as a Parliamentary-electioncandidate, given the terms o article 99(2) (h) othe Constitution. The oender was also liable tocriminal penalty, under the Elections Act. Hence,the person alleging the commission o theoence was required to prove the ingredients othe oence. And such proo o an oence tooka higher level than the mere preponderance oprobabilities.

19. There was no basis to support the conclusionthat the evidence adduced at the trial Court waso such a degree as to sustain such a nding oguilt. The 1st respondent was under obligationto adduce convincing evidence on how, when,

where, and in what circumstances, the CDfcheques were issued for the various centers,showing how that act inluenced voters to voteor the appellant. With such details missing, theconclusion reached by the appellate Court lackeda basis in law.

20. With a new constitutional dispensation thatextoled principles o dedicated public service,based upon progressive values and recognizedgood practices, statutory provisions such asthose o the CDf Act disclosed the clear intent thatthe duties and responsibilities o those bearingthe relevant mandate, were to be effected inconditions o public trust and condence. Hencethe entire code of public conduct was informed

by certain values: integrity, proessionalism,accountability, neutrality, impartiality, and goodgovernance. The Constitution armed thosevalues in various Articles: 10, 81, 129, 175, 201,232 and 238. Those values were to condition theconduct o every individual, oce-bearer, agencyor institution entrusted with day-to-day executiono public duty. There were thus, common valuesthat pervade a large set o public-service-orientedlaws founded upon the declared constitutionalprinciples.

21. The proper meaning o public ocer, or purposesof the electoral law, was that embodied in article260 o the Constitution as read together withsection 2 o the Elections Act. The dierentdenitions in other statutory provisions, couldnot take precedence over the said constitutionalprovision. And thus, the proper meaning o “publicocer” was:

a) the person concerned had to be a State ocer;

or

b) any other person who held “public oce” – anoce within the national government, countygovernment, or public service;

c) A person holding such an oce, beingsustained in terms of remuneration andbenets rom the public exchequer.

22. The CDf ocials, at the time, did not qualiy

under the term public ocers as it appeared inthe Constitution, and in the relevant body o law.However, it was essential for the realization of freeand fair elections, at such a time, that candidates





57

desist from such conduct as the misuse of publicoce or public resources, to the detriment o theiropponents.

23. The electoral code o conduct, and the provisionso the law regarding public oce and publicocers, made it clear that while public ocerswere individuals entrusted with the mandateof service to the people, public resources weretangible assets, possessions or items o materialworth, that were in the control of the public, orowned by the public collectively. It was, thereore,incorrect for the Court of Appeal to include publicocers within the category o public resources.

The concurring opinion of Ndungu Njoki, SCJ

She concurred with the nal decision and orders othe majority. However she took a dierent opinionwith regard to the question whether ConstituencyDevelopment fund members were public ocersunder the Constitution o Kenya, 2010.

24. The meaning given to the words ‘public ocer’by the majority judges was narrow and limiting;particularly when it involved the interpretation ofa constitutional provision. A more comprehensive

denition was appropriate and desirable i onewas to meet the laid down guidelines or theconstruction and interpretation of the Constitutionas laid out in article 259 o the Constitution.

25. The meaning given to the words public ocer wentbeyond the ordinary meaning o the word itselmore towards a denition that was orientatedin a value system to be expected in democraticsociety. Those guidelines were urther reinorcedby the introductory rider in the denitions section,

o article 260 o the Constitution.

26. The denition o ‘public ocer’ could not bestrictly conned to the singular denition clausein article 260 of the Constitution as there wereother constitutional stipulations, and statutoryand common law provisions that spoke to thedenitions, values, principles, and the institutionalramework o public service that had to apply.That thereore called or the Constitution to beread in a holistic manner when it came to the

interpretation o any one clause.

27. In arriving at a true meaning o “public ocer”under the Constitution, then and in line with article

259 thereto, four key questions would be asked todetermine whether one was a public ocer. I oneor more of the questions below was answered inthe armative then the person would be rightlyconsidered within the meaning o the term “publicocer”

a) Whether the person concerned was in anoce in the national government, the Countygovernment or the public service.

b) Whether such a person receives remunerationor benets payable by the consolidated undor directly money provided by the parliament.

c) Whether that person performed a functionwithin a state organ or a state corporation.

d) Whether the person was holding public oceunder the terms o the ormer constitution.

28. All CDf ocials appointed beore the promulgationo the Constitution o Kenya, were public ocersunder the former Constitution and therefore thetransitional Clause in section 31 o the SixthSchedule applied to them.

29. The Constituency Development fund Committeewas established pursuant to section 24 of theConstituencies Development Act, No. 30 o 2013(the CDf Act, 2013). Previously, the administrationo the Constituencies Development fund wasgoverned by the Constituencies DevelopmentAct, Cap 425A of the Laws of Kenya (repealedAct), which was repealed by Act No 30 0 2013.In the instant matter, the repealed Act was inorce at the time the 2013 Nyando ConstituencyParliamentary Elections were held, but stood

repealed immediately thereater. Thereorereference had to be made to both statutes inorder to arrive at the public status o CDf ocers

30. The CDf Board, a body corporate establishedunder an Act o Parliament was a State corporationwithin the meaning o that Act, and thereore alsoin the Constitution. All State Corporations, hadnational outreach by nature and design, andell squarely under the auspices o the NationalGovernment. This also meant that the CDf Board

was also a public service institution that was inexistence under the ormer constitution and itsocials and employees were to be consideredpublic ocers under it. The eect o the







transitional clause in section 31 of Schedule 6 ofthe current constitution would also apply.

31. The government regulations attendant to public

nance as provided under the Constitution and therelevant public code of conduct were applicablewhere Constituency Development funds wereconcerned. The allowances paid to the CDfOcers constituted, as elaborated above, part othe fund. As such, those allowances were paiddirectly out o money provided by Parliament.

32. Since the allowances paid to the CDf Ocerswere drawn rom the fund, those allowances wereessentially drawn rom the Consolidated fundpursuant to article 206(2)(c) o the Constitution.That thereore qualied any oce held in theadministration of the Constituency Developmentfund as a public oce within the meaning givenby article 260 o the Constitution. As such, a CDfocer was a public ocer. Thereore, the Courto Appeal was correct in nding that CDf ocialswere public ocers.

33. It was clear that the reasonable and justiableduty would be, in deference to the Constitutionand the public code of conduct, to ensure that

a strict separation of public duty and partisanpolitics was maintained. The limitation thereoreon public ocers vis-a-vis political participation,as cited in the Elections Act, the Public OcerEthics Act, the Leadership and Integrity Actand any other related legal provisions, was wellwithin the allowance for limitation within theconstitutional ramework. It was important tonote that the limitation only extended to appointedand not elected public ocials leaving an avenueor those public ocials who wished to exercise

their political rights, to do so by running or publicoce. However, those who chose to remain in thepublic service in politically neutral positions wereto remain impartial.

34. There was no evidence to show, that the behavioro DW 9(the Treasurer o Nyando CDf Committee)who was at the relevant time a public ocer,had any effect on the outcome of the election inthe instant matter. The allegations that he usedCDf unds to campaign or the Appellant wereunproven. The standard o proo to be met in suchan instance included a number of steps ,a chainof events, so to speak which were to be shown bythe evidence

a) that the person involved was a publicocer; that the said public ocer usedpublic resources for the purposes of politicalcampaigns;

b) that there was intention of the part of thepublic ocer to inluence the outcome o theelection to avour an individual running oroce or a party participating in an election; or

c) That the said resources were used to commitan election oence.

35. The law provided or sanctions and penalties thatwould apply where an appointed public ocerhad behaved impartially and participated inpolitical activity. It was clear, rom the acts o theinstant case and applicable law on the conducto public ocers, that the Treasurer o NyandoCDf committee (DW 9), as a public ocer hadcontravened the law on a number of ethicaltransgressions, and or which he was individuallyliable.

The appeal was allowed, and the determination by theCourt of Appeal nullifying the election of Frederick OtienoOuta, was set aside.

The nding by the Court of Appeal that the appellant,Frederick Otieno Outa committed the election offence ofbribery was overturned.

The Certicate and Report issued by the Court of Appeal,on the basis of its nding pursuant to sections 86(1) and87(1) of the Elections Act, was annulled.

The appellant’s costs at the High Court, the Court of Appeal and the Supreme Court were to be borne by the1st respondent.

The 2nd and 3rd respondents were to bear their own costsat the High Court, the Court of Appeal and the SupremeCourt.

These Orders were to be served upon the parties andupon the Speakers of the two Houses of Parliament,for appropriate legislative initiatives as recommendedherein.





59

Issues:i. Whether the period o 28 days provided in

article 87 o the Constitution o Kenya, 2010started counting when the returning ocerissued the winning candidate with a certicatein form 38 or rom the day the results were

published in the Kenya Gazette.ii. Whether a petition, having been led outside

the 28 days prescribed in article 87 o theConstitution, was a nullity.

iii. Whether jurisdiction o the Supreme Courtunder article 163(4)(a) of the Constitutionwas intertwined with that o the High courtand Court o Appeal under article 87 and 105o the Constitution and section 85A o theElections Act.

Electoral Law - election petitions-expeditious disposalof election petitions -time within which to le an election petition-where the petition was led outside the 28days as stipulated by law - whether the period of 28days provided in article 87 of the Constitution of Kenyastarted to run on the day the Returning Ofcer issued thewinning candidate with a certicate in Form 38 or fromthe day the results were published in the Kenya Gazette-Constitution of Kenya, 2010, article 87.

Jurisdiction - jurisdiction of the Supreme Court underarticle 163(4)- whether jurisdiction of the SupremeCourt under article 163(4)(a) of the Constitution wasintertwined with that of the High Court and Court of Appeal under the provisions of the Constitution and theElections Act- Constitution of Kenya,2010 articles 87 and105; Elections Act section 85A.

Held:1. The constitutional principle o timely disposal o

election petitions was ound in article 87(2) othe Constitution, which provided that petitionsconcerning an election, other than a presidential

election, were to be led within twenty-eightdays after the declaration of the election resultsby the Independent Electoral and BoundariesCommission (IEBC).

2. Declaration o the results occurred in three stages:at the polling station when the Presiding Ocerhad completed form 35; at the ConstituencyTallying Centre, where the Returning Ocer orthe constituency had completed form 36, andat the County tallying Centre where the County

Returning Ocer had completed the certicate inform 38.

3. The issuance o the certicate in form 38 to thepersons elected indicated the termination of theReturning Ocer’s mandate, thus shiting anyissue as to validity, to the election court. Basedon the principle o eciency and expediencytherefore, the time within which a party couldchallenge the outcome o the election startedto run upon the nal discharge o duty by theReturning Ocer.

4. The declaration o election results was theaggregate o the requirements set out in thevarious orms, involving a plurality o ocers. Thenality o the set o stages o declaration wasdepicted in the issuance o the certicate in form38 to the winner o the election. That marked theend o the electoral process by arming anddeclaring the election results which could not bealtered or disturbed by any authority.

5. Thereore the period o 28 days, within which aperson challenging the validity o declared resultswas required to le a petition beore the Court,started to run rom the day the Returning Ocerissued the winning candidate with the certicatein form 38, but not rom the day the results werepublished in the Kenya Gazette.

6. The Supreme Court in Mary Wambui Munene v.Independent Electoral and Boundaries Commission& 2 others had set a steady jurisprudentialfoundation on the question of applicability of thedetermination of unconstitutionality of section76(1)(a) o the Elections Act and the Courtwas not about to depart rom the pragmatic

perception, which endeavored to sustain a rightrecognized under the operative state o the law.Such a pragmatic perception, once relected in judicial interpretation was to be regarded as a

Supreme Court Upholds the Elections of the Member of the National Assembly forShinyallu Constituency

Anami Siverse Lisamula v Independent Electoral and Boundaries Commission & 2 othersPetition No 9 o 2014

Supreme Court o Kenya at NairobiW M Mutunga, CJ, K H Rawal, DCJ, P K Tunoi, M K Ibrahim, J B Ojwang & S C Wanjala, SCJJ

July 16, 2014Reported by Emma Kinya, Valarie Adhiambo & Opiyo Lorraine







building-block o Kenya’s jurisprudence under thenew constitutional dispensation.

7. A decision in principle applied retrospectively toall persons who prior to the decision, sufferedthe same or similar wrong, whether as a result othe application of an invalid statute or otherwise,provided they were entitled to bring proceedingsthat sought the remedy in accordance withthe ordinary rules of law such as a statute oflimitations.

8. It could also apply to cases pending beore thecourts. That was to say that a judicial decisionwould be relied upon in matters or cases not yetnally determined. But the retrospective eecto a judicial decision was excluded rom casesalready nally determined. The instant matter

was pending in the Court o Appeal, and thus, thenality clause did not apply.

9. The court had armed the need or certainty in theinterpretation and application of the constitutionalprovisions. That principle ought to have beenupheld in the application o judicial precedents.Ultimately, the Court as the custodian o the normof the Constitution had to oversee the coherence,certainty, harmony, predictability, uniformity, andstability of the various interpretative frameworksduly authorized. The overall objective o the

interpretive theory, in the terms of the SupremeCourt Act, was to facilitate the social, economicand political growth o Kenya.

10. The petition in the High Court, which was led35 days ater the date o the nal declaration oresults by the Returning Ocer, ell outside the 28days prescribed by the Constitution; and thus, allthe proceedings ensuing rom such declaration oresults, at the High Court and the Court o Appeal,were a nullity. Neither o the two courts had the jurisdiction to hear and determine questionsounded upon such election results.

11. The proceedings having been a nullity, the courthad no jurisdiction. The court could not entertaina matter that was null and void ab initio as a courto law could not legitimately consider an issuein which it had already declared that it had no jurisdiction.

As Per K H Rawal, DCJ & Vice President12. The jurisdiction o the Supreme Court to hear and

determine election appeals was set out by thecourt in Gatirau Peter Munya v. Dickson Mwenda

Kithinji & 2 others (Munya case) where the courtevaluated the essential attributes of the electoralquestion, which conveyed such question tothe court under the concept of constitutional

interpretation and application.13. In the case o election appeals, the Supreme Court

isolated articles 81(e) and 86 o the Constitutionas the operative ones, in locating the electoraldispute within the Supreme Court’s broaderconstitutional mandate.

14. The jurisdiction o the High Court to resolveelectoral disputes was to be found in article105, read together with article 87(2) o theConstitution. Those two articles gave certain timeprerequisites, linked to the High Court status asan election court.

15. In addition, section 85A o the Elections Actgranted the Court o Appeal jurisdiction to hearand determine election appeals, but on the basiso issues o law only. That provision also gave

certain time-signals to the Court o Appeal, as acourt sitting in election appeals.

16. The jurisdiction o the Supreme Court, however,as elaborated in article 163(4)(a) and (b) of theConstitution was distinct rom that o the HighCourt and the Court o Appeal. While the HighCourt and the Court o Appeal were both guidedby time and scope, the role of the Supreme Courtwas broader, resting upon the interpretation andapplication of the Constitution, as well as thesettling o issues o general public importance.

17. Article 163(4)(a) o the Constitution granted theSupreme Court the broad jurisdiction to hear anddetermine appeals as o right in any case thatinvolved the interpretation or application of theConstitution. Article 163(4)(b), on the other hand,allowed the court to hear and determine appealsupon the certication that a matter o generalpublic importance was involved.

18. In the Gatirau Peter Munya v Dickson MwendaKithinji & 2 others Civil Application No 5 of2014, the court also underscored its mandate,in the terms of the Supreme Court Act, 2011 to

assert the supremacy of the Constitution and toprovide authoritative and impartial interpretationo the Constitution. Thus, the Supreme Court’s jurisdiction was distinct rom that o both theHigh Court and the Court o Appeal.

19. The guiding principles attendant on the exerciseo a court’s jurisdiction were laid out in article159(2) o the Constitution. Article 159(2)(b) and(e) bore the principles directly incorporated intothe constitutional or statutory provisions, grantingthe court the power to resolve electoral disputes.

Justice ought not to have been delayed and thepurpose and principles o the Constitution oughtto have been protected and promoted.

20. The Supreme Court, being at the exalted position





61

o an apex court, had the right and obligation todevelop the jurisprudence touching on issueso general public interest, as well as those thattouched on the interpretation o the Constitution.That right could not be curtailed by anyone.The court was not to hesitate, in the interest odeveloping an indigenous jurisprudence, to pavefurther paths that were to advance the rule oflaw. That could easily be accomplished by takingcertain minimal actions that fell within the court’sconstitutional and legislative mandate.

21. The election court was a court anchored uponthe dictates of time, with its mandate, by theprovisions of article 105 of the Constitution,limited to six months ater the ling o the electionpetition. Thereore, even where the court declared

that the election court lacked the jurisdiction tohear and determine a matter, the special natureof the Supreme Court under article 163(4)(a) ofthe Constitution ordained that its mandate tosettle legal issues o constitutional controversy,remained alive.

22. The modalities o the charge which was exercisedin nal orm by the Supreme Court were guided byarticle 259(1) of the Constitution, which directedthat the Constitution was to be interpreted in amanner that promoted its purposes, values and

principles; advanced the rule of law, and thehuman rights and undamental reedoms in thebill o rights; and permitted the development othe law. Thereore, to curtail the authority o theSupreme Court to address itsel to legal issueso constitutional relevance would negate the veryessence o its establishment as a nal court. TheSupreme Court’s special mandate however wasto be discharged judiciously.

23. The Supreme Court, as the guardian o theConstitution, and the nal arbiter on constitutionalinterpretation, had the task o saeguarding the

juridical integrity o this charter, and its continuedeectiveness. In ascertaining that a lower courthad the jurisdiction to address itsel to a mattercoming up beore itsel, dierent questions arose,including those o the legal and historical context.

24. Any appeal admissible within the terms of article163(4)(a) o the Constitution ought to have beenounded upon cogent issues o constitutionalcontroversy. The determination that a particularmatter bore an issue or issues of constitutionalcontroversy properly fell to the discretion of the

court, in urtherance o the objects laid out undersection 3 o the Supreme Court Act, 2011.25. The peculiar nature o the Constitution o Kenya,

2010 informed the peculiarity of the Judiciary in

the new dispensation, and more so, that of theSupreme Court. The Constitution progressivelybroadened the arena o litigation in the countryand the Supreme Court had to remain steadfastin its duty to address itself on issues that couldproperly come beore it.

26. In ensuring that the standards o proceduralfairness and the values elaborated under article 10o the Constitution were saeguarded, the specialnature o the Supreme Court, and the exceptionalburdens o constitutional adjudication reposedin it required the Court to delve into issues ofconstitutional controversy even where the issue athand was one o determining its own jurisdiction.

As Per J B Ojwang, SCJ

27. It was evident, in the judgment that the outcomehad adhered to the path set by the decision of theCourt o Appeal in Owners o Motor Vessel “LillianS” v. Caltex Oil (Kenya) Ltd. The conventionalwisdom o that case that jurisdiction waseverything and that a court lacking jurisdictionhad to down its tools, could retain validity formost categories o Kenya’s courts. That couldnot be the case or the apex court which was theSupreme Court established under article 163 ofthe Constitution.

28. The Supreme Court is the very centre pieceo the novelty o the governance set-up o thenew constitutional dispensation. The politicaland constitutional stature of the court ran intandem with a generic conerment o jurisdiction,a scenario that was fundamentally alien tothe closed-in outlook o earlier politico-legalstructures as depicted in the Motor Vessel “LillianS” case.

29. from article 163(3) and (4) o the Constitution, theinherently enlarged competence o the SupremeCourt was at once apparent an element not shared

with any o the lower courts. Interpretation andapplication o the Constitution, subject only toobjective and rational judgment in proper context,was an inherently open-ended phenomenon;much like the determination that a particularquestion ell within the category o matters ogeneral public importance, and thereore allingto the jurisdiction o the Supreme Court.

30. The Supreme Court was the bearer o a wider jurisdiction than would have been contemplatedat the time of Lillian S, was manifested from the

terms of article 163(6) of the Constitution that theSupreme Court could give an advisory opinion atthe request o the national government, any Stateorgan, or any county government with respect







to any matter concerning county government.The Constitution, thus, reposed special trustin the Supreme Court, to apply its internalprocedures, and its modalities o reasoning, toevaluate essentially political questions of publicgovernance, and to render a legitimate opinionthat guided the operations o the State and itsplurality o agencies.

31. Article 163(8) o the Constitution empowered theSupreme Court to make rules or the exercise oits jurisdiction and by article 163(9), Parliamentwas empowered to make further provision forthe operation o the Supreme Court. By the latterprovision, the Supreme Court Act, 2011 wasenacted, and it consecrated the Supreme Court asthe formal custodian of the interpretive process

o the Constitution itsel.32. By the unlimited scope o such a remit, it was clear

that the Supreme Court’s latitude, in the courseo hearing any case or determining any question,or examining matters arising whether these wereconstitutional or bearing upon the public interestwas o a proound nature.

33. The Supreme Court was not to sidestepmeritorious occasions or a decision, by invoking

obsolescent concepts for it was the fundamentalplank o the constitutional order, bearing themandate to develop the law to the extent thatit did not give eect to a right or undamentalfreedom, and to adopt the interpretation thatmost avoured the enorcement o a right orundamental reedom.

34. Thus, in a typical case o dispute resolution, itwould not be right in principle or the court toproceed on the ooting that a court o law downedits tools in respect of the matter before it themoment it held the opinion that it was without jurisdiction. The Supreme Court had a specialrole in the constitutional function of disputesettlement and it stood not on the same platformas the other courts o the land.

Appeal allowed. Determinations made by both the HighCourt and the Court of Appeal set aside. Parties to beartheir own costs. Orders to be served upon the Speakerof the National Assembly.




63

BB • Issue 26, July - September 2014 Court o Appeal Cases

Court of Appeal Cases

Brief FactsThe Respondents had instituted judicial reviewproceedings seeking the orders o certiorari andprohibition against the Appellants (the County Councilso Wajir and Mandera) to stop them rom levying taxesthat were arbitrary, illegal and unair in the orm ocess on “miraa” obtained from Meru County Councilwhenever the said “miraa” was transported throughthose administrative jurisdictions. They argued thatthere had been no approval by the Minister for LocalGovernment o any by-laws or resolutions by the

appellants to levy this tax. The High Court ruled thatthe imposition of cess by the appellants was withoutlegal authority, which culminated into this appeal.

It was the appellants’ case that the Court erred in lawin nding that it was mandatory, under section 192Ao the Agriculture Act, or them to obtain the consento the Minister or Agriculture prior to passing by-lawson imposition o cess on “miraa” transported throughtheir administrative areas o jurisdiction. They urtherargued that in holding that the by-laws were made in

derogation o the Local Government Act, the Courtcited and relied on section 202 (7); which was non-existent.

The Wajir County Council contended that the Courterred and ailed to take cognizance o a GazetteNotice that indicated that approval by the Ministerhad been obtained and gazetted.

IssuesI. Whether a typographical error by a Court in

citing a provision o law was atalII. What was the procedure or the making o by-

laws relating to the imposition o cess on anagricultural produce?

III. Whether it was mandatory for a localauthority to seek the consent of the Ministeror Agriculture beore imposing cess on anagricultural produce

Civil Practice and Procedure - judgments- typographicalerrors in a judgment- where a Court erroneously citedand relied on a non-existent provision of law-whether atypographical error by a Court in citing a provision of lawwas fatal

Statutes - subsidiary legislation- by-laws- the power oflocal authorities to make by-laws- imposition of feesand charges by local authorities- by-laws relating toimposition of cess on agricultural produce- where a localauthority purported to levy cess on miraa transportedthrough its jurisdiction- procedure for the making of by-laws relating to the imposition of cess on an agricultural produce- whether it was mandatory for a local authorityto seek the consent of the Minister for Agriculture beforeimposing cess on an agricultural produce- Agriculture Act, section 192A (1) & (3)

Agriculture Act (cap 318) Section 192 A:

(1) Subject to subsection (1A), local authority may,with the consent of the Minister given afterconsultation with the Minister for the time beingresponsible for Local Government, by by-laws,impose a cess on any kind of agricultural produce,and may in the by-laws make such incidental provision as is necessary or expedient; andthe cess shall form part of the local authority’srevenues.

(1A) Notwithstanding the provisions of subsection (1),eighty per cent of all monies collected as cess underthat subsection shall be used in maintaining roads

The procedure for the making of by - laws relating to imposition of cess on agriculturalproduce

Clerk, County Council of Wajir & Another v Allabdulahi Ahemd & Kuso Dahir Ali Ex parte RepublicCivil Appeal No. 68 o 2012

Court o Appeal at NyeriA Visram, M Koome, J Otieno-Odek, JJA

June 23, 2014Reported by Andrew Halonyere & Anne Mbuthia






and other services, in the local authority, related to thesectors in respect of which such monies are levied, andthe remaining twenty per cent shall be credited to thegeneral account of the local authority:

Provided that the eighty per cent of the cess collectedin respect of tea and coffee shall be transmitted to theKenya Roads Board Fund.

(3) The procedure for the making, approval and publication of by-laws made under subsection (1) shallbe that prescribed by the Law under which the localauthority is established, and, for the purposes of theenforcement thereof, such by-laws shall be deemed tobe by-laws made under that Law.

Held:1. Section 202(7) o the Local Government Act did

not exist. Reerence was made in the recordo appeal to section 202(3) o the Act. It was atypographical error or the Judge to have citedsection 202(7) instead of section 202(3) of theAct. The typographical error did not go to the rootor orm the ratio decidendi or the nal decisionand determination by the Court.

2. Under section 192A (1) o the Agriculture Act thediscretion of whether or not to impose a cess onany kind o agricultural produce lay with a localauthority. Once the local authority exercisedthe discretion and chose to impose cess on anagricultural produce, the Minister or Agriculturehad to consent and then consult with the Ministeror Local Government, and i approval wasgranted, the cess could be imposed.

3. A local authority could not impose cess on anagricultural produce without consent o theMinister or Agriculture who had to consultand obtain approval from the Minister for LocalGovernment. Such consent, consultation and

approval were mandatory before cess could belevied on an agricultural produce. The High Courtdid not err in law by nding that approval o theMinister or Local Government obtained uponconsultation with the Minister or Agriculture wasa mandatory requirement before cess could beimposed on an agricultural produce.

4. Section 202 (3) o the Local Government Actprovided that nothing in the Act could be deemedto empower a local authority to make by-lawsoverriding or derogating rom the provisions o

any other written law or the time being in orcein Kenya. The import o the provision was thatsection 202 (1) of the said Act, which empowereda local authority to impose cess, could not override

or derogate rom the provisions o section 192A(1) o the Agriculture Act. Section 202 (1) o theLocal Government Act was subject to Section202 (3) of the same Act and Section 192A (1) ofthe Agriculture Act.

5. Section 204 (1) o the Local Government Actmade it mandatory that after any by-law had beenmade by a local authority it had to be submittedto the Minister or his approval. Section 202 (4) othat Act provided that no by-law made thereunderhad the force of law until it had been approved bythe Minister, whether with or without alteration,and published, or notice thereof published, inthe manner prescribed therein. There was noevidence on record that approval of the Ministeror Local Government was obtained by Mandera

County Council or the by-law imposing cess on“miraa”.

6. The Respondents had laid a actual basis by statingthat the by-law for Mandera County Council hadnot been approved by the Minister. The evidentialburden to prove the existence o such approvalshited to the County Council o Mandera. Section206 o the Local Government Act provided or themode of admissibility of evidence in proof thatapproval o the Minister had been obtained. Acopy of every by-law which had been approved

by the Minister had to be kept by the Clerk andwould be admissible in evidence without furtherproo and would be evidence o the due making osuch by-law and o the contents thereo.

7. The evidential burden to demonstrate thatapproval of the Minister was obtained was a factwhich was within the knowledge o ManderaCounty Council. No evidence was placed beorethe High Court in accordance with Section 206 (1)o the Local Government Act. further, a Certicatein terms of Section 206 (2) of that Act was nevertendered in evidence. The High Court did not

thereore err in its nding that there was noproof that Mandera County Council had obtainedapproval o the Minister to levy cess on “miraa”.

8. Section 192A (3) o the Agriculture Act stipulatedthat the procedure or the making, approval andpublication of by-laws made under section 192A(1) would be that prescribed by the law underwhich the local authority was established, and, forthe purposes of the enforcement thereof, such by-laws would be deemed to be by-laws made underthat law. With respect to the County Council o

Wajir, a Certicate in terms o Section 206 (1) othe Local Government Act that had been tenderedin evidence indicated that the Minister for LocalGovernment had approved the imposition o cess




65

on “miraa” within that jurisdiction. In the approvedby-law, the specied rates to be paid werestipulated. The Gazette Notice dated September 5,2008, as read with County Council o Wajir (MiraaImport Cess) By-law, 2008, and with section 192A(3) o the Agriculture Act was sucient proothat relevant approval of the Minister for LocalGovernment had been obtained.

9. The High Court erred in law by interpreting Section192A (1) o the Agriculture Act without consideringthe provisions of Section 192A (3) of the sameAct in holding that consent o the Minister orAgriculture had not been obtained in relation toimposition o cess on “miraa” by the Wajir CountyCouncil. Cess imposed by the said County Councilwas legal because the procedure or the making,

approval and publication of by-laws made underSection 192A (1) o the Agriculture Act was theprocedure prescribed by the Local GovernmentAct.

i. Cess imposed on “miraa “ by the County Councilof Wajir and the County Council of Wajir (MiraaImport Cess) By-law, 2008 upheld.

ii. Cess imposed on “miraa” by the County Councilof Mandera declared illegal.

iii. Each party to bear own costs.

Appropriateness of reinstatement as a remedy in redundancy situationsKenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others

Civil Appeal No 46 o 2013Court o Appeal at Nairobi

E M Githinji, D K Maraga & A K Murgor, JJ A

July 11, 2014

Reported by Beryl A Ikamari & Karen Mwende

Against the Industrial Court’s decision, hence anappeal was lodged at the Court o Appeal.

Issuesi. Whether there was substantive justication

or the declaration o redundancy.ii. Whether a valid redundancy notice had been

issued.iii. Whether there was a mandatory legal

requirement or consultations beore naldecisions on redundancy were made.

iv. Whether a valid selection process had beenundertaken or purposes o redundancy.

v. Whether reinstatement was an appropriateremedy for the employees who had beenterminated on account o redundancy.

Employment Law - termination of employment contracts-redundancy-circumstances in which a declaration ofredundancy would be justied-Employment Act, 2007,sections 40, 43, 45 & 47.

Employment Law - termination of employmentcontracts-redundancy-procedure to be followed- whetherconsultations were mandatory and the nature of theappropriate selection criteria- Constitution of Kenya 2010,

Brief factsOn August 1, 2012 the Appellant issued a notice tosta and their trade union, indicating that due to a starationalization exercise there would be redundanciesaecting a maximum o 650 employees. Theexplanation oered or the restructuring was that theAppellant had experienced a decline in revenue due tothe harsh economic climate and had high operatingcosts.

There were meetings between the Appellant and theemployees’ trade union (the 1st Respondent) but there

were wrangles in the trade union’s leadership and thetrade union stopped engaging in the negotiations andconsultations. It sought court orders or an injunctionto halt the process.

The injunction was discharged and on September4, 2012, the Appellant issued termination letters,on account of redundancy, to 447 unionizableemployees. A suit was lodged at the Industrial Courtto challenge the Appellant’s decision and the IndustrialCourt ound that there was no justication or the

declaration of redundancy and that the employeeshad been terminated rom employment unairly. TheIndustrial Court issued orders or the reinstatemento the employees.







article 2(6), Employment Act, 2007, sections 40(1)(a) &40(1)(c), & International Labour Organization Terminationof Employment Convention 1982, International LabourOrganization’s Recommendation No 166.

Employment Law - termination of employmentcontracts-redundancy-remedies for unlawful terminationof employment contracts- reinstatement-practicability ofreinstatement as a remedy in situations of redundancy--Employment Act, 2007, sections 49(1).

Held1. Redundancy as dened in section 2 o the Labour

Relations Act, No 14 o 2007 and section 2 o theEmployment Act, 2007 had two broad aspects,namely;

a) The loss o employment in redundancycases was involuntary and at the initiativeo the employer.

b) The loss o employment in situationsof redundancy would arise withoutthe employee being at ault and wherethe employee’s services had becomesuperluous.

2. Article 10 of the Constitution of Kenya 2010,which dealt with the national values andprinciples o governance, was inapplicable to the

dispute between the parties. The dispute was adispute on the question of redundancy betweena private company and its employees and therewere specic and elaborate laws governingredundancy in such employment contracts.

3. Section 40 o the Employment Act, 2007, entitledthe employer to terminate an employee’s serviceson account o redundancy. The decision todeclare redundancy was the employer’s statutoryright and the employer was entitled to terminatean employee’s contract o service, as long as theemployer genuinely believed that there was a

redundancy situation.4. The Appellant had tendered evidence o its

nancial status and on the need to employmitigating initiatives. The circumstances o theAppellant were shown to have led to the decisionto declare redundancies and the declarationof redundancy under the circumstances was justied. It was not within the court’s jurisdictionto make decisions on how the Appellant couldsecure its nancial uture in those circumstancesand to substitute the Appellant’s decision with its

decision.5. The legal requirements or a redundancy noticeunder section 40(1)(a) o the Employment Act,2007, were such that the notice would have to

be one months’ notice, issued to the labour unionto which the employees were members andthe labour ocer in charge o the area that theemployees were employed, stating the reasonsor and extent o the intended redundancy.

6. Where the employee was a member of a tradeunion, it was not necessary for that notice to beissued to the employee under section 40(1)(a) ofthe Employment Act, 2007; it would be adequateif it was issued to the trade union and labourocer. However, an employee who was not in atrade union would have to receive the notice.

7. The Appellant had issued a notice on the subjectof an intended redundancy to both the employeesand their trade union. There was no evidence thatthe relevant labour ocer had received the notice.

That issue on the notication o the labour ocerwas not pleaded, canvassed or determined by theIndustrial Court.

8. The notice issued had satised the one monthnotication period as required in law. The periodbetween the issuance of the notice and theissuance of redundancy letters to individualemployees was 34 days.

9. Section 40 o the Employment Act did not makeexpress provisions or consultations to bedone in situations o redundancy. However, the

requirement for consultations was implicit as theInternational Labour Organization Termination oEmployment Convention 1982 required employersto notify trade unions and competent authoritieso impending terminations and to provide tradeunions with an opportunity or consultations.

10. The Convention would be applicable to the disputeby virtue of article 2(6) of the Constitution ofKenya 2010 which provided that treaties ratiedby Kenya were part o the laws o Kenya.

11. However, the requirement for consultation wasnot a requirement to the effect that the employer

would consult with the employee; it was arequirement to the effect that the employer wouldconsult with the trade union, which would engagein consultations on behal o the employees.

12. There had been attempts at consultations andnegotiations between the employer and thetrade union. However, those attempts ailed asthe trade union, which had leadership wrangles,refused to continue with the consultations despitethe willingness o the employer to consult. Theemployer was not responsible for the failure in the

consultations.13. In accordance with section 40(1)(c) o theEmployment Act, 2007, the criteria to be applied inselecting employees or termination on grounds





67

of redundancy included seniority in time, skill,ability and reliability o the employee.

14. The consideration o seniority in time related tothe employee’s length o service and imported thelast in rst out (LIfO) principle into redundancyprocesses. It was however not mandatory orthe LIfO principle to be applied in all cases asthe realities of business could require otherapproaches. for instance, modern technologicalknow-how which an organization required couldbe knowledge possessed by new employees.

15. Given that the 447 employees selected orredundancy purposes, out o a pool o 4,834employees, were assessed in less than a week(4-5 days) and that some had scored highly inthe annual performance appraisal, the selection

criteria had not met the statutory threshold. TheAppellant did not apply a air selection criterion.

16. Reinstatement was provided for in section 49o the Employment Act, 2007, as a remedy orunair termination. However, reinstatement wasnot an automatic right to an employee who wasterminated unairly. It would be a discretionaryremedy offered on the basis of the merits of eachcase.

17. Part o the considerations in makingdeterminations on whether or not to order

reinstatement included practicability.Practicability included reasonableness, whichinvoked a broad inquiry into the equities ofthe parties’ cases. Such considerations wouldinclude the prospective effects of the orderof reinstatement, not only upon the individualemployer and employee, but also other affectedemployees and third parties.

18. Although reinstatement was prayed or, it wasnot pleaded and no evidence was tendered onthe practicability or otherwise of the order ofreinstatement.

19. The order o reinstatement was inappropriateand impracticable in light o the Appellant’sprecarious nancial position. The remedy was notecacious as it deeated the objective o justiedredundancy.

20. Section 49(1) o the Employment Act, 2007,provided or an award o damages equivalent to anumber o months’ wages or salary not exceeding12 months based on the gross monthly wage orsalary o the employee at the time o dismissal.Consequently, given that the selection procedure

or termination was unair, an award o damagesequivalent to 6 months gross monthly wages orsalary of the employee at the time of dismissalwas appropriate.

Dissenting Per E M Githinji, JA, Dissenting

1. The statutory provisions applicable to claimson unfair termination, in redundancy situationsincluded sections 40, 43, 45 & 47(5) o theEmployment Act, 2007. As a valid deence toa claim of unfair termination on account ofredundancy, an employer would have to prove: -

a) The reason or reasons or termination;b) That the reason or termination was valid;c) That the reason or termination was air

based on the operational requirements ofthe employer

d) That the employee was terminated inaccordance with air procedure.

2. The phrase “based on the operational requirements

of the employer” had to be construed in thecontext o the statutory denition o redundancy. Itmeant that while there may have been underlyingcauses or redundancy, such as reorganization,the employer had to show that the terminationwas attributable to redundancy. Redundancymeant that the services of an employee had beenrendered superluous or the abolition o oce, jobor loss o employment.

3. The circumstances leading to a situation oredundancy included evidence tendered to show a

decline in passenger volumes, unstable uel prices,reduced revenue and an increasingly competitiveenvironment. There was also evidence that theredundancy was implemented by various meansincluding abolition o roles and recongurationof roles and that 447 unionizable employees hadtheir contracts o employment terminated.

4. As long as an employer genuinely believed thatthere was a redundancy situation, terminationswere justied and it was not within the IndustrialCourt’s jurisdiction to substitute its businessdecision with what was reasonable.

5. The International Labour Organization’srecommendation No 166 providing orconsultations in situations of redundancy had notbeen ratied by Kenya. The applicable CollectiveBargaining Agreement (CBA) did not provide orconsultations and article 10 of the Constitution ofKenya, 2010, which provided for national valuesand principles o governance, did not applyto private contracts between employers andemployees.

6. There was no express or implied legal provision

or obligation which required that consultationswould have to be done beore making redundancydecisions.

7. The period between the issuance o the







redundancy notice and the issuance of terminationletters was 34 days and the intervening injunctionwhich was discharged 4-5 days beore theissuance or the termination letters, did notstop the notice period rom running. The legallyrequired notice period of 30 days as per section40 o the Employment Act, 2007, was compliedwith.

8. The criteria or selecting employees or purposesof redundancy terminations, as provided forin section 40(1)(c) o the Employment Act,2007, included seniority in time, skill, ability andreliability. The redundancy notice had an attacheddocument which explained why the LIfO principle(last in rst out) principle would not be applied.While LIfO was an objective criterion, it was

not always suitable and its application was notmandatory.

9. It was not shown that the criteria used orselecting employees or purposes o redundancy

was unair. The claim that the employees hadbeen terminated on grounds o previous tradeunion activities was unsubstantiated.

10. The remedy o reinstatement was discretionary.In determining its suitability the Industrial Courtwas required to be guided by considerations onthe practicability of the remedy and the commonlaw principle that specic perormance in acontract of employment could only be ordered invery exceptional circumstances.

11. There was a genuine redundancy resulting inloss of employment and procedural fairness wasapplied.

Appeal partly allowed by majority holding. (Theselection procedure for purposes of redundancy was

found to be unfair but the order of reinstatement toduty was substituted with an order that 6 months’ grosssalary would be paid as compensation.)

Circumstances where a Court not being a nal court could exercise residual jurisdictionto review its decisions to which there are no appeals

Benjoh Amalgamated Limited & another v Kenya Commercial Bank [2014] eKLRCivil Application No. Sup. 16 o 2012

Court o Appeal at Nairobi

G B M Kariuki, D K Musinga & W Ouko, JJ.AJune 20, 2014Reported by Nelson Tunoi & Riziki Emukule

granted to appeal to the Supreme Court-whether thematter brought to the Court was one that raised an issueof general importance to warrant the issuance of leaveto appeal to the Supreme Court-whether the applicationhad merit-Constitution of Kenya, 2010 article 163(4)

Civil Practice and Procedure - review-application for

review on decisions already determined by a court-wherea Court not being a nal court could exercise residual jurisdiction to review its decisions to which there wereno appeals-whether the Court of Appeal had residual jurisdiction to review its own decisions-Constitution ofKenya, 2010, article 164(3); Appellate Jurisdiction Act(cap 9); Court of Appeal Rules (cap 9 Sub Leg), Rules1(2), 35

Held:1. The oundation or the intended appeal was the

validity of a consent order and whether therewas evidence on that basis that it could not bindthe appellants thus justiying its being set aside.This was neither an issue that transcended the

Brief Facts:The two applicants (Benjoh Amalgamated Limitedand Muiri Coee Estate Limited) were limited liabilitycompanies. They brought the present applicationseeking orders to be granted leave to appeal to theSupreme Court against the decision o the court and/or in the alternative the court to recall review or set

aside the judgement against them. Their argumentwas that the Court lacked jurisdiction to have madethe judgement in reerence to a consent order withoutconrming the existence o such a consent order.

Issues:I. Whether the matter brought to the Court was

one that raised an issue o general importanceto warrant the issuance of leave to appeal tothe Supreme Court?

II. Whether the Court of Appeal had residual jurisdiction to review its own decisions

Civil Practice and Procedure - appeals-appeals to theSupreme Court-circumstances when leave would be





69

interest o the parties in the litigation nor hadan impact on society in any way thus could notamount to a matter o general public importanceand a certicate to appeal to the Supreme Courtcould not be issued under article 163(4)(b) of theConstitution o Kenya, 2010.

2. The Court o Appeal had appellate jurisdictionthat arose once an appeal was led or a notice oappeal lodged showing intention to appeal. It hadinherent power provided under rule 1(2) of theCourt of Appeal Rules to make any orders as werenecessary or justice to be achieved. The concepto review recognized inherent human allibilityand the need to overcome abuse of process ofcourt or miscarriage o justice.

3. The High Court had the power to review its own

decisions conferred upon it by both the CivilProcedure Act and its subsidiary Rules or reasonssuch as discovery of new and important evidenceor mistake on the face of the record, but therewas no similar statute with regard to the Court oAppeal. There was no apparent jurisdiction or theCourt o Appeal to review its orders or judgmentssave for the slip rule embedded in rule 35 of theCourt of Appeal Rules which enabled the courtto eect its maniest intention in a judgement ororder.

4. Prior to the 2010 constitution, the Court o Appealtook the position that it did not have jurisdiction toreview its own decisions and that the only powerit had with regard to review was in relation to theslip rule under rule 35 and further that its inherentpower under rule 2(1) was exercisable in hearingappeals when it was still a court o last resort.

5. Case law on the issue of review showed that therewere two conlicting principles that emerged

namely the “nality principle”, which did notsupport review, and the “justice principle”, whichadvocated for limited review on the basis thatthe purpose o litigation was to do justice to thelitigating parties. The “nality principle” was urgedon the basis of public interest as a public policyissue and was anchored on the need for stabilityand consistency in law while the “justice principle”was urged on the basis o justice to the partiesand to boost the condence o the public in the judicial system.

6. Where the Court was one o nal resort, andnotwithstanding that it had not explicitly beenstatutorily conerred with the jurisdiction to reopena decided matter, it had residual jurisdiction to doso in cases o raud, bias, or other injustice with

a view to correct the same. This was jurisdictionthat was to be invoked with caution and only incases whose decisions were not appealable tothe Supreme Court.

7. In a review application, the length o the delayand what had transpired in the interim period wascritical as it bore on the balance o justice. TheCourt of Appeal would be reluctant to invoke itsresidual jurisdiction o review where there werelaches, since the parties came to court for reviewater ourteen (14) years, or where legal rights

o innocent third parties had vested during theintervening period which could be interered withwithout causing urther injustice. The Court wouldnot therefore entertain review of decisions madebefore the Constitution of Kenya, 2010 came intobeing.

Application dismissed with costs to the respondent.

Children born out of surrogacy agreement have a right to Know biological parents.

J L N & 2 others v Director of Children Services & 4 othersHigh Court at Nairobi Petition No 78 o 2014

D S Majanja, JJune 30, 2014


required under the Births and Deaths Registration Act(Cap 149 ) rather than JLN, the birth mother.

The Hospital (the 3rd respondent) informed the 1st

respondent, the Director of Children Services of thecircumstances concerning the birth o the twins. TheDirector took the view that the children were in need

Brief Facts

WKN and CWW entered into a surrogacy agreementwith JLN who agreed to be a surrogate mother by

undergoing In Vitro fertilization. following the deliveryof the children, the issue arose as to whether CWWshould be registered as the mother o the childrenin the Acknowledgement o Birth Notication, as

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o care and protection and as a result, his ocers tookthem and placed them under the care of a Children’sHome.

IssuesI. Whether a woman who gave birth under a

surrogacy agreement would be recognized asa birth mother and a parent under the law.

II. Whether children born through a surrogacyagreement were children in need o care andprotection.

III. Whether the Hospital violated the petitioners’rights to privacy by disclosing condentialmedical inormation to a third party.

IV. Whether withdrawal of children from persons

claiming to be their parents would, in certaincircumstances, be a violation o the right tohuman dignity.

Constitutional Law - fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to privacy-disclosure of condential medical information toa third party-whether disclosure of information touchingon a surrogacy agreement would be a violation of theright to privacy- Constitution of Kenya 2010, article 31.

Constitutional Law - fundamental rights and freedoms-enforcement of fundamental rights and freedoms-rightto human dignity-whether the withdrawal of childrenfrom their parent’s custody would be a violation of theright to dignity- Constitution of Kenya 2010, article 28.

Family Law - children’s rights-children in need of careand protection-circumstances in which a child wouldbe deemed to be in need of care and protection-whetherchildren born through a surrogacy agreement wouldautomatically be deemed to be children in need of care

and protection-Children Act, Cap 141, section 119.

Family Law - denition of a parent-whether a womanwho gave birth under a surrogacy agreement would berecognized as a birth mother and a parent under the law-Births and Deaths Registration Act (Cap 149), section 10& Children Act (Cap 141), section 2.

Article 31 of the Constitution of Kenya 2010

31. Every person has the right to privacy which includes

the right not to have-

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairsunnecessarily required or revealed; or

( d) the privacy of their communications infringed.

Held

1. The right to privacy was not absolute. Implicitin the protection accorded, under the right toprivacy, was the requirement that informationrelating to amily and private matters was notto be unnecessarily revealed. However, therewould be instances where the right to privacy inrespect of the patient/client relationship could be

abridged. In the case o W v Edgell [1990] 1 ALLER 835 Lord Bingham set out the principles underwhich a doctor could disclose the informationheld in condence. The principles were as ollows;

I. A real and serious risk o danger to thepublic had to be shown or the exception toapply.

II. Disclosure had to be to a person whohad legitimate interest to receive theinormation.

III. Disclosure had to be conned to that whichwas strictly necessary (not necessarily allthe details).

2. The Hospital had a statutory duty to record tothe best o its knowledge the particulars o thechildren in the Notication under section 10 othe Births and Deaths Registration Act (Cap 149).Section 10 of the Act implied that the motherreerred to in the Act was the birth mother. Section2 o the Children Act (Cap 141) dened a parentas, “the mother or father of a child and includedany person who was liable by law to maintain a

child or was entitled to his custody.” As the birthmother, JLN had the immediate responsibility omaintaining the children and was entitled to theircustody. The Hospital was thereore within thelaw to insist that JLN had to be registered as theparent o the children.

3. Kenya did not have a law that governed surrogacyand related issues. In the absence o a law onsurrogacy, the Hospital was entitled to seekguidance on the issue rom the Director. Undersection 38(1) o the Children Act the Director

was required to saeguard the welare o childrenand in particular, to assist in the establishment,promotion, co-ordination and supervision ofservices and acilities designated to advance

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the wellbeing o children and their amilies. Inthe alternative, the Hospital was entitled to seekguidance rom the Principal Registrar o Birthsand Deaths. The Hospital thereore did not violatethe petitioner’s rights to privacy when it inormedthe Director o the surrogacy arrangementsbetween the petitioners.

4. A cursory look at the provisions of section 119 ofthe Children Act conrmed that the children werenot in need of care and protection and if indeedthey were, there was no reason to take them tothe Children’s Home. At the time the Director tookhis action, the 1st petitioner had been dischargedfrom the Hospital and left the new born childrenstill receiving care at the Hospital as they hadbeen born prematurely. The children had not been

abandoned. The only issue that the Director wascalled upon to decide was on the registration othe children’s birth.

5. The director did not act in the best interest o thechildren as there was no dispute even betweenthe surrogate mother and the genetic mother. The

best solution was to have the children retainedin the hospital pending the determination o theparental issue in court or by giving appropriatedirections. In that way, the children wouldcontinue getting the medical attention whichthey needed as they were born pre-term. The lawprovided that at birth the mother was the personentitled to immediate custody of the children andin this case there was no issue of the birth motherrejecting the children.

6. The Director violated the rights and undamentalreedoms o the petitioners by taking away thechildren in a manner that could not be justiedunder the Children Act, caused them distressand embarrassment by taking away the children.Their right to human dignity under article 28 o the

Constitution was violated.

Petition allowed in part. (The case against the 3rdrespondent was dismissed with no order as to costs.The 1st respondent was to pay each of the petitionersthe sum of Kshs. 500,000.00/=)

Court rules on payment of withholding tax by non-residentsMotaku Shipping Agencies Ltd v Commissioner of Income Tax

Civil Suit No 60 o 2013

High Court at MombasaM Kasango, J

June 19, 2014Reported by Andrew Halonyere and Valarie Adhiambo

According to the respondents the subject paymentswere made by the appellant who was a resident forpurposes o the Income Tax Act and thereore weredeemed to be income which accrued in or was derivedin Kenya and the appellant was under obligation,pursuant to Section 35 o the Income Tax Act, to

withhold and remit to the respondent a percentageo such payments. further, that withholding taxwas not tax o the payer but a tax o the person towhom it was paid and the payer merely acted as anagent o the Commissioner or purposes o collectionand accounting. An appeal beore the Tax LocalCommittee Mombasa failed hence this appeal whosecompetency was also challenged by respondentsarguing that it raised new issues.

Issues

I. Whether an agent who was a resident or thepurpose o Income Tax Act could be exemptedrom deducting taxes on payments made on

Brief factsThe appellant (Motaku Shipping Agencies ltd)enteredinto ship management agreements with owners odifferent vessels from other countries under whichit was appointed as a manager o the vessels. Itwas to procure provisions of various professional

and managerial services to the vessels wheneverthey visited Kenyan ports and the ship ownersremitted money or procurement o the services. Therespondent carried out a tax audit o the appellant’sbusiness and issued assessment notices for paymento taxes including withholding tax on the paymentsmade by the appellant to the service providers. Theappellant objected to the withholding tax assessmenton grounds that the payments were eected by themacting as agents o the ship owners who were non-resident persons and according to section 10 o the

Income Tax Act, only payments made by a residentperson or a person having a permanent establishmentin Kenya were subject to income tax.

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behalf of principals who were non-residentsand had no permanent establishment inKenya.

II. Whether rule 14 o the Income Tax (Appeals

to the High Court) Rules prohibited raisingan issue that was not raised before the LocalCommittee in an appeal beore the High Court?

III. Whether withholding tax was a tax o thepayee and the payer only acted as an agentor the purposes o collection and accountingor the tax collected?

Tax Law - charge of tax - withholding tax-withholdingtax on payments for managerial or professional fees-where the payment was made by an agent on behalf of a principal who was a non-resident and had no permanentestablishment in Kenya-claim by the respondent thatwithholding tax is tax of the payee and payer only actsas collection agent-whether an agent who was a residentfor the purpose of Income Tax Act could be exemptedfrom deducting taxes on payments made on behalf of principals who were nonresidents and had no permanentestablishment in Kenya - whether withholding tax was atax of the payee and the payer only acted as an agentfor the purposes of collection and accounting for the taxcollected-Income Tax Act, section 3(1),10 and 35(1)(a)

and (3) (f)

Income Tax Act

Section 3(1)

Subject to, and in accordance with, this Act, a tax to beknown as income tax shall be charged for each year ofincome upon all the income of a person, whether residentor non-resident, which accrued in or was derived fromKenya.

Section 10

For the purposes of this Act, where a resident person ora person having a permanent establishment in Kenyamakes a payment to any other person in respect of -

(a) a management or professional fee or trainingfee;

(b) a royalty;

(c) interest and deemed interest;

(d) the use of property; (e) an appearance at, or performance in, a public or

private place for the purpose of entertaining, instructing,

taking part in any sporting event or otherwise divertingan audience; or

(f) an activity by way of supporting, assisting orarranging an appearance or performance referred to in

paragraph (e) of this section; (g) Winnings from betting and gaming, the amountthereof shall be deemed to be income which accrued inor was derived from Kenya:

Provided that —

1. this section shall not apply unless the paymentis incurred in the production of income accruedin or derived from Kenya or in connection with abusiness carried on or to be carried on, in wholeor in part, in Kenya;

2. this section shall not apply to any such payment made, or purported to be made, by the permanent establishment in Kenya of a non- resident person to that non-resident person.

Held

1. Rule 14 o the Income Tax (Appeals to the HighCourt) Rules provided that the appellant was not,except by leave o the Court and upon such termsas the Court would determine, to rely on a groundother than a ground stated in the memorandumo appeal. Rule 2 o the same rules dened a“memorandum” to mean a memorandum ofappeal presented under rule 3 and rule 3 providedor orm and time o ling an appeal under section86 (2) o the Income Tax Act which was clearly anappeal to the High Court.

2. The memorandum o appeal led by the appellantbefore the Local Committee clearly contained asgrounds the issue o payments by non-residentpersons being charged on the appellant and the

question o the withholding tax charged not beingin accordance with the Income Tax Act, issuesthat were very identical to the issues raisedin this appeal. The respondent’s attack on thecompetence o the appeal thereore ailed.

3. from section 3 (1) o the Income Tax Act, it wasclear that subject to the provisions o the Act,income of a person whether resident or non-resident was chargeable to income tax providedthe income accrued in or was derived rom Kenya.Thereore, income o a person could not be

subject to income tax unless it was income whichaccrued in or was derived rom Kenya.

4. In section 10 o the Income Tax Act, or a payment

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or management or proessional ee to havebeen deemed to be income which accrued in orwas derived from Kenya, that payment had to bemade by a resident person or a person havinga permanent establishment in Kenya ,and thepayment had to be incurred in the production ofincome accrued in or derived from Kenya or inconnection with a business carried on or to becarried on in whole or in part, in Kenya and onlythen was such payment chargeable to incometax.

5. A cursory reading o Section 35 (1) (a) and (3) ()o the Income Tax Act showed that all paymentsin respect o management or proessional eewas subject to withholding tax. However, the keyphrase in the said provisions was “which waschargeable to tax”. That section stipulated thatthe deduction was to be made only in instanceswhere the payment was chargeable to tax and toestablish whether payment or management orproessional ee was chargeable to tax, one hadto fall back to the provisions of sections 3 (1) and10 o the Income Tax Act.

6. The relationship between the Appellant and thevessel owners was one o an agent and principaland the act that the appellant made the subjectpayments on behalf of its principals was clearly

documented and could not thereore be disputed.Since the appellant made the payments only asan agent, legally it was the principals who madethe payments.

7. There was no provision in the Income Tax Act ortaxation o payment in respect o managementor professional fee made by a non-resident andperson not having a permanent establishment inKenya, even if such payment was made to a personresident or having permanent establishment inKenya. Thereore, since the payments in issue

were made by the vessel owners who werenon-resident persons not having a permanentestablishment in Kenya, the same were notchargeable to income tax even i the paymentswere made to persons based in Kenya.

8. The Income Tax (Withholding Tax) Rules, 2001mandated a person who made payment of, or

on account o, any income which was subject towithholding tax to deduct tax rom the paymentat the provided rate. The said rules did not createa distinction between instances where thepayer was an agent and where the payer wasthe principal himsel. Even an agent was underobligation to retain a portion o any paymentmade to any person on behalf of the principal andto remit the same to Kenya Revenue Authority onaccount o withholding tax, i the payment waschargeable to income tax.

9. The Income Tax Act did not just impose incometax by reerence to the person receiving thepayment but also by reference to the personmaking such payment and the place where theincome was deemed to have accrued in or wasderived rom. All the three reerence points- thepayer, the payee and the place of accrual orderivation- had to be borne in mind in determiningwhether payment was subject to withholding tax.Thus, in the instant case, although the personsreceiving the payments were resident persons orpurposes o income tax, the persons making thepayments were non-resident persons not havingpermanent establishment in Kenya who theIncome Tax Act did not mandate to retain portionso the payments or purposes o withholding tax.

10. The appellant was under no obligation to retainportion(s) o the subject payments and to remitthe same to the respondent on account ofwithholding tax, since the appellant was not thepayee or purposes o withholding tax and thepayments in question were not subject to incometax under the Income Tax Act

The decision of the Income Tax Local CommitteeMombasa was set aside and was substituted with anorder that the respondent’s additional assessment

of withholding tax that was due from the Appellant as particularized in the form 11H.O was annulled.

Costs were awarded to the Appellant

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Brief FactsThe Plainti in the instant matter had sustainedinjuries as a result o an accident caused by thenegligence o the 1st Defendant who was the driverof the motor vehicle owned by the 2nd Deendant.She sought general damages or pain and suering,special damages, loss o income, loss o consortium,uture medical expenses, interest on the same andcosts o the suit.

Injuries Suffered1. fracture o spine, thoracic vertebrae T122. Complete paraplegia3. Large ward on right shoulder4. Urine retention (incontinence)5. Dislocation o right knee6. Severe spinal injury7. Partial paralytic ileus

Issues

i. Whether the Plainti’s claim was timebarred having been instituted two monthsafter the statutory limit of three years hadelapsed from the date when the causeof action arose and whether the orderextending time was properly granted.

ii. Whether the suit motor vehicle was ownedby the 2nd Deendant.

iii. Whether the said vehicle was being drivenby the 1st Deendant as agent o the 2nd Deendant.

iv. Whether the accident was caused by thenegligence o the Deendants.

v. Whether the Plainti was entitled todamages and i so, what was the quantum?

vi. Who should bear the costs?

Tort law - institution of negligence suit- whether a suitbased on negligence could be instituted four years afterthe cause of action arose- whether the present suit wastime barred with the accident having occurred in 2007while the suit was instituted in 2010.

Civil Practice and Procedure - leave to le out of time-whether a negligence suit could be led out of time-whether the leave to le out of time had been properlyobtained.

Civil Practice and Procedure - leave to le out oftime- under what circumstances could the court allowan Applicant to institute proceedings after time hadelapsed? – where the Petitioner sustained injuries andled the suit four years after the cause of action hadarisen- Limitation of Action Act Cap 22, section 27.

Limitation of Actions Act, Cap 22Section 27“(1) Section 4 (2) does not afford a defense to an actionfounded on tort where -

(a) the action is for damages for negligence, nuisanceor breach of duty (whether the duty exists by virtue of acontract or of a written law or independently of a contractor written law); and

(b) the damages claimed by the plaintiff for thenegligence, nuisance or breach of duty consist of orinclude damages in respect of personal injuries of any person; and

(c) the court has, whether before or after thecommencement of the action, granted leave for the purposes of this section; and

(d) the requirements of subsection (2) are fullled in

relation to the cause of action.

(2) The requirements of this subsection are fullled inrelation to a cause of action if it is proved that materialfacts relating to that cause of action were or includedfacts of a decisive character which were at all timesoutside the knowledge (actual or constructive) of the plaintiff until a date which -

(a) either was after the three-year period of limitation prescribed for that cause of action or was not earlier thanone year before the end of that period; and

(b) in either case, was a date not earlier than one yearbefore the date on which the action was brought.

(3) This section does not exclude or otherwise affect -

Court Awards Kshs 15,042,157.32/= in Damages in Accident ClaimRosemary Wanjiru Kungu v Elijah Macharia Githinji & another [2014] eKLR

Civil Case No 145 o 2010High Court at Nairobi

GV Odunga JJuly 2, 2014

Reported by Emma Kinya Mwobobia & Opiyo Lorraine

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(a) any defence which, in an action to which this sectionapplies, may be available by virtue of any written law otherthan section 4 (2) (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of lawor equity; or

(b) the operation of any law which, apart from thissection, would enable such an action to be brought afterthe end of the period of three years from the date onwhich the cause of action accrued.”

Held1. The eect o the Limitation o Actions Act Cap 22

was that certain causes o action ought not to bebrought ater the expiry o a particular period otime. In other words the Act barred the bringingo particular actions ater the specied periods

o limitation but did not necessarily extinguishsuch causes o action. A cause o action thatwas barred could in certain cases be revived if theconditions set out in section 27 of the Limitationo Actions Act Cap 22 were ullled.

2. The extension o time applied only to claimsmade in tort and even then the claims had tobe in respect o personal injuries arising romnegligence, nuisance or breach o duty (whetherthe duty existed by virtue o a contract or o awritten law or independently of a contract or

written law).3. However, even i the conditions were satised

time would not be extended unless the Applicantproved that material acts relating to that causeof action were or included facts of a decisivecharacter which were at all times outside theknowledge (actual or constructive) o the Plainti.In order to prove this, the Applicant was expectedto show that he did not know that fact; that in soar as that act was capable o being ascertainedby him, he had taken all such steps (if any) as itwas reasonable for him to have taken that timeor the purpose o ascertaining it; and that inso ar as there existed, and were known to him,circumstances from which, with appropriateadvice, that act might have been ascertained orinferred, he had taken all such steps (if any) as ithad been reasonable for him to have taken beforethat time or the purpose o obtaining appropriateadvice with respect to those circumstances.

4. ‘Appropriate advice’ was dened as meaning inrelation to any facts or circumstances ‘advice ofa competent person qualied in their respective

spheres, to advice on the medical, legal or otheraspects of that fact or those circumstances, asthe case ought to be’.

5. In the result, where the Deendant or hisrepresentative such as the insurance companyled the Plainti to believe that the claim is capableo being settled and in reliance thereo the Plaintior his advocate rerained rom ling the suit untilater the limitation had run its course, that oughtto have constituted a good ground or extendingtime notwithstanding the provisions o section 27aoresaid. It was thereore upon the Deendant atthe hearing to challenge the grounds upon whichthe order extending time was granted. Whereasthe defence concentrated on the provisions ofsection 27 of the Limitation of Actions Act Cap22, no serious challenge was directed to the issueo negotiations. It could not thereore be thatthe order extending time to le the suit was not

properly granted.6. The Court appreciated that the Trac Act was

an Act o Parliament meant to consolidate thelaw relating to trac on the roads; it was not anAct which decided de acto or de jure ownershipof vehicles hence ownership of vehicles passedby sale and delivery and registration books wereonly evidence of title and property passed inaccordance with the Sale o Goods Act, when thecontract o sale was made.

7. Without the deence calling witnesses who could

be cross-examined on the documents producedby them rendered the same of very little, if any,weight at all. In light o the contents o thecerticate o ocial search produced beorethe Court, the only reasonable conclusion wasthat the suit motor vehicle was owned by the 2nd Deendant.

8. Where it was proved that a car had caused damageby negligence, then in the absence o evidenceto the contrary, a presumption arose that it wasdriven by a person or whose negligence the

owner was responsible. That presumption wasmade stronger by the surrounding circumstancesand it was not necessarily disturbed by theevidence that the car was lent to the driver by theowner as the mere act o lending did not o itseldispel the possibility that it was being driven orthe joint benet o the owner and the driver. Thus,the 1st Deendant was driving the suit vehicle as aservant or agent o the 2nd Defendant hence the2nd Deendant was vicariously liable.

9. The only evidence on record on how the accidentoccurred was the Plainti’s evidence. Without anyevidence to the contrary, it had to be concludedthat the accident took place when the driver ofthe suit motor vehicle was reversing. He ought to

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have had a proper lookout beore reversing andthe fact that the accident took place without himnoticing the Plainti could only be explained onthe ground o negligence.

10. In awarding damages, the general picture, thewhole circumstances, and the eect o injuries onthe particular person concerned had to be lookedat, some degree o uniormity had to be sought,and the best guide in that respect was to haveregard to recent awards in comparable casesin the local courts. It was eminently desirablethat so ar as possible comparable injuries werecompensated by comparable awards. The courthad to strike a balance between endeavouring toaward the Plainti a just amount, so ar as moneycould ever compensate, and entering the realms

o very high awards, which could only in the endhave a deleterious eect.

11. On the issue of the multiplier, the law was that dueregard was to be paid to the expectation o workinglife and dependency by the named dependants aswell as the contingencies o lie including the actthat the deceased could have died prematurely ofa cause other than the accident that took himas well as the fact that the money would be paidin lump sum.

12. In determining the multiplicand, the important

gure was the net earnings o the deceased.The Court was then to multiply the multiplicandby a reasonable gure representing so manyyears. In choosing the said gure, usually calledthe multiplier, the court had to bear in mind theexpectation o earning lie o the deceased. Takinginto account the contingencies o lie as well as

the fact that the money would be paid in a lumpsum, a multiplier of 15 years was reasonable inthe instant case.

(i) General Damages = Kshs 3,000,000.00

(ii) Special Damages = Kshs 972,157.32

(iii) Wheelchair at Kshs 50,000.00 x every 5 years(3) = Kshs 150,000.00

(iv) Diapers at Kshs 50,000.00 x 15 years = Kshs750, 000.00

(v) Special Mattress for 15 years =Kshs150,000.00

(vi) Nurse aide at Kshs 10,000 x 12months x 15 years = Kshs 1, 800,000.00

(vii) Transport costs at Kshs 6,000 x 52 weeks x15 years= Kshs 4,680,000.00

(viii) Physiotherapy at Kshs 4,500 x 15 x 52= Kshs3,510,000.00

(ix) Daily skin care at Kshs 1,000 x 15 x 12 = Kshs180,000.00

Total quantum assessed at Kshs. 15,042,157.32

Costs awarded to the Plaintiff.

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Brief Facts

following the judgment in, Martin Nyaga Wambora &others v. Speaker o the Senate and others PetitionNo. 3 o 2014(Wambora’s case) declaring the removalproceedings beore Embu County Assembly (theCounty Assembly) and impeachment of the petitioner

null and void, a new motion was led in the CountyAssembly for the removal of the petitioner (MartinNyaga Wambora) rom oce. The application by thepetitioner sought conservatory orders restrainingthe Speaker of the Senate (3rd respondent) or anymember o the Senate rom introducing, discussingor deliberating his impeachment, and a stay o theresolution passed by the County Assembly regardingthe motion to remove him rom oce.

The respondents on the other hand raised preliminaryobjections on jurisdiction o the Court on grounds

that the proceedings beore the County Assemblywere in contravention o powers, privileges andimmunities of the County Assembly as per article196 of the Constitution read with section 4 and 12 ofthe National Assembly (Powers and Privileges) Actand section 17 o the County Government Act andurther that the applications and proceedings wereres judicata considering the judgment in the Wamboracase.

Issues:

I. Whether county assemblies and the Senateenjoyed the powers and privileges provided inthe National Assembly (Powers and Privileges)Act (Cap 6 Laws of Kenya)

II. Whether the High Court had jurisdiction inissues and procedures that were before aCounty Assembly where these were, by law,within the mandate of the County Assemblyand Senate

III. Whether the matter was res judicata in light o

the decision by the Court in a former suit bythe Petitioner

IV. What principles guided the granting oconservatory orders?

V. Whether the Petition was arguable and whethera prima facie case had been established thatwould warrant the granting o conservatoryorders

VI. Whether the matter was sub judice eectivelyprohibiting the Senate rom acting on the

resolution by the County AssemblyVII. Whether a resolution passed by a county

assembly to impeach a Governor violated hisrights to hold elective oce, to human dignityand to fair administrative action

VIII. Whether the reintroduction of the resolutionin the County Assembly before the lapse ofthree months breached section 33(8)o theCounty Governments Act which required thata re-introduction o a removal vote be broughtto the Senate three months after a previous

similar vote

Constitutional Law - the legislature- establishment ofParliament- the Senate- powers and privileges of theNational Assembly- whether the Senate enjoyed the powers and privileges of the National Assembly- theNational Assembly (Powers and Privileges) Act (Cap 6Laws of Kenya)

Constitutional Law - devolved government- countygovernments- County Assemblies- powers, privileges and

immunities of county assemblies-legislation providingfor the powers and privileges of county assemblies-whether county assemblies enjoyed the powers and privileges of the National Assembly- law regulating powers and privileges of Parliament to apply mutatismutandis to County Assemblies - transitional provisionsof the Constitution- existing laws to continue in force withnecessary adaptations for conformity with Constitution-County Government Act, 2012 section 17; Constitution ofKenya, 2010 sixth schedule section 7

Constitutional Law - fundamental rights and freedoms-

right to hold elective ofce- where a County Assembly passed a motion to impeach a Governor- whether thatresolution violated the Governor’s right to hold elective

Impeachment of GovernorMartin Nyaga Wambora v Speaker County Assembly of Embu & 3 Others

Constitutional Petition No 7 o 2014High Court at Embu

R Mwongo, JMay12, 2014

Reported by Andrew Halonyere & Valarie Adhiambo

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ofce- Constitution of Kenya, 2010 article 38 (3)(c)

Constitutional Law - fundamental rights and freedoms-right to human dignity- where a County Assembly

passed a motion to impeach a Governor- whether thatresolution violated the Governor’s right to human dignity-Constitution of Kenya, 2010 article 28

Constitutional Law - fundamental rights and freedoms-right to fair administrative action- where a County Assembly passed a motion to impeach a Governor-whether that resolution violated the Governor’s right tofair administrative action- Constitution of Kenya, 2010article 47

Jurisdiction - jurisdiction of the High Court-jurisdiction ofthe High Court in issues and procedures that are by lawwithin the mandate of the County Assembly and Senate- whether the High Court had jurisdiction in issues and procedures that were before a County Assembly wherethese were by law within the mandate of the County Assembly and Senate -Constitution of Kenya, 2010article 165 (3)

Civil Practice & Procedure - conservatory orders – principles guiding grant of conservatory orders- - whetherthe Petition was arguable and whether a prima facie case

had been established that would warrant the granting ofconservatory orders- what principles guided the grantingof conservatory orders

Constitutional Law - devolved government-countygovernments-removal of a county governor-resolutionby the County Assembly to remove the Governor-wherea previous resolution by the County Assembly to removethe Governor was declared null and void - whether thereintroduction of the resolution in the County Assemblybefore the lapse of three months breached section 33(8)

of the County Governments Act which required that a re-introduction of a removal vote be brought to the Senatethree months after a previous similar vote-Constitution ofKenya,2010 article 181;County Government Act section33(8)

Held

1. Article 196(3) o the Constitution gave Parliamentpowers to enact legislation providing or powers,privileges and immunities o county assemblies,their committees and members. Section 17 o the

County Government Act, 2012, on the other hand,provided that the national law that regulated thepowers and privileges o Parliament would, withthe necessary modications, apply to the County

Assembly.

2. Section 7 o the sixth schedule to the Constitutionprovided that all laws in force immediately beforethe effective date of the Constitution were to

be construed with the alterations, adaptations,qualications and exceptions necessary to bringthem into conormity with the Constitution. Inlight o that provision, and noting that NationalAssembly (Powers and Privileges) Act wasin existence beore the eective date, it wasapplicable in relation to the Senate and the CountyAssembly pursuant to article 196(3) and section17 o the County Government Act.

3. No other law regulated the powers and privilegeso Parliament, which included the Senate, under

article 93 o the Constitution. Accordingly, theNational Assembly (Powers and Privileges) Act was applicable to the Senate with the necessarymodications, as it was to the County Assembly,and both the County Assembly and the Senateenjoyed the powers and privileges provided in theNational Assembly (Powers and Privileges) Act,which was the national law that regulated thepowers and privileges o Parliament.

4. Article 165 (3) o the Constitution vested the HighCourt with unlimited original jurisdiction in civil

matters. further, the High Court had jurisdiction,under article 165(3) (b) and (d) (ii), to determinethe question whether a right or undamentalreedom in the Bill o Rights had been denied,violated, inringed or threatened; and to hearany question respecting the interpretation othe Constitution, including the determination othe question whether anything said to be doneunder the authority of the Constitution or of anylaw was inconsistent with or in contraventiono the Constitution. The Court, clothed with theconstitutional provisions under article 165 (3),

was seized o jurisdiction to entertain the suit andthe application therein.

5. The principle behind res judicata held thatlitigation had to come to an end on a matter thesubstance of which had previously been heardand determined by the Court. Such matter couldtherefore not be re-opened to be restarted all overagain, unless the decision reached had been setaside. It was not the reasons or the decision thatwere res judicata but the decision itsel.

6. The rst process o removal o the County

Governor was concluded with the rendering othe Court’s decision, declaring the processesnull and void; both at the County Assembly and

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at the Senate, inter alia, on grounds o ailure toobey the Court’s orders. In the contrary, the suit athand, commenced with a fresh notice of motionin the County Assembly, which resulted in aresolution which was then under consideration inthe Senate. The acts and circumstances at handwere not the same as those in the earlier litigation,and the two processes were, completely dierent.The Petitioner had moved to Court to litigate onthe second process, which was a new matter, thesubstance o which had not been litigated beore.

7. In terms o section 7 o the Civil Procedure Act, thematter was not one that qualied as being “in theformer suit” or as a matter which had “been heardand nally decided”. It thereore could not be saidto be the same matter as that in the prior suit bythe Petitioner and was thereore not res judicata.

8. In determining whether or not to grantconservatory orders, several principles had beenestablished by the courts. The Court wouldonly issue conservatory orders in exceptionalcircumstances and would be minded of themandate o other constitutional organs in exerciseo their constitutional mandate.

9. An applicant had to demonstrate that he had a prima facie case with a likelihood of success and

that unless the court granted the conservatoryorder, there was real danger that he would suerprejudice as a result o the violation or threatenedviolation o the Constitution. The danger had tobe imminent and evident, true and actual and notctitious; so much so that it deserved immediateremedial attention or redress by the court. Thus,an allegedly threatened violation that was remoteand unlikely would not attract the court’s attention.

10. The second principle was whether i a conservatoryorder was not granted, the matter would berendered nugatory. The third principle was that thepublic interest had to be considered beore granto a conservatory order. Where a conservatoryorder was sought against a public agency like alegislative assembly that was mandated to carryout certain functions in the normal course ofits business, it was only to be granted with duecaution. The interruption o the lawul unctionso the legislative body had to take into account theneed to allow or their ordered unctioning in thepublic interest.

11. The allegations o breach o air administrativeaction on the basis of threshold of seriousnessand nexus prescribed by the High Court in thePetitioner’s prior suit could not stand. When the

County Assembly exercised its statutory mandateunder section 33 o the County Governments Actand pursuant to the constitutional power underarticle 181, it was or that Assembly, and not orthe Court, to ascertain that the legal thresholdwas satised whilst conducting its quasi-judicialinquiry. The Court’s role could not precede theCounty Assembly’s inquiry role. The role o theCourt was not essentially to conduct a meritreview o the Assembly’s actions.

12. There was no indication that the CountyAssembly did not, in terms of the requirementso natural justice, deliberate on the charges toascertain their legality or otherwise. Accordingly,the Petitioner had not demonstrated a prima facie case that called for the issuance of a conservatoryorder to preserve his right to hold oce. Theright under article 38(3) (c) was constitutionallycircumscribed by article 181 and a statutoryprocess was prescribed under section 33 CountyGovernments Act or eecting the removal o theoce holder.

13. In the prior suit by the Petitioner, the Court hadound that the impugned vote had been done inbreach o court orders and was thereore a nullity.That characterization o the word “nullity” was thetrite and common legal appreciation o it, which

was described as “Nothing; no proceeding; anact or proceeding in a cause which the oppositeparty may treat as though it had not taken place,or which has absolutely no legal orce or eect.”(Black’s Law Dictionary)

14. I the previous resolution as presented to theSenate and the subsequent Senate proceedingshad already been described as non-existent or anullity, it followed on a prima facie basis, that novote could have taken place there. The Petitioner’sallegation o breach based on section 33 (8) o the

County Governments Act did not thereore assistthe Petitioner’s plea o a prima facie case meritinga conservatory order.

15. A matter that was sub judice was a matter pendingbeore the court or judge or determination.The Court at that point did not have enoughinformation to determine whether the matterbefore it was actually sub judice.

16. No interlocutory order could be issued in thecase unless the Court had the benet o all thearguments by all the Parties on the merits. TheCourt had to further be minded that the matterbegan through a process enshrined under theConstitution, by virtue o article 181 and section

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33 o the County Government Act, 2012 and wasat that time beore the Senate. The application didnot merit the conservatory orders sought at thatstage.

Preliminary objection disallowed and notice of motiondismissed with no order as to costs

The constitutionality of criminalizing sexual acts between two consenting children(adolescents)

C K W v Attorney General & anotherPetition No 6 o 2013

High Court o Kenya at EldoretF A Ochieng, JJuly 25, 2014

Reported by Beryl A Ikamari

enforcement of fundamental rights and freedoms-equality

and freedom from discrimination-whether section 8 ofthe Sexual Offences Act discriminated against childrenwith respect to consensual sexual acts engaged in bychildren with other children and discriminated againstmale children by encouraging the prosecution of malechildren in complaints which concerned such sexualacts-Constitution of Kenya 2010, article 27 & SexualOffences Act, No 3 of 2006, section 8.

Statutes - statutory interpretation-constitutionality ofstatutory provisions-Sexual Offences Act, No 3 of 2006-

the offence of delement as provided for in section 8 ofthe Sexual Offences Act-whether section 8 of the SexualOffences Act discriminated against children with respectto consensual sexual acts engaged in by children withother children and discriminated against male childrenby encouraging the prosecution of male childrenin complaints which concerned such sexual acts-Constitution of Kenya 2010, article 27 & Sexual Offences Act, No 3 of 2006, section 8.

Section 8 of the Sexual Offences Act, No 3 of 2006;1) A person who commits an act which causes

penetration with a child is guilty of an offencetermed delement.2) A person who commits an offence ofdelement with a child aged eleven years orless shall upon conviction be sentenced toimprisonment for life.3) A person who commits an offence ofdelement with a child between the ageof twelve and fteen years is liable uponconviction to imprisonment for a term of notless than twenty years.

4) A person who commits an offence ofdelement with a child between the age ofsixteen and eighteen years is liable uponconviction to imprisonment for a term of not

Brief facts

The Petitioner, C K W, was charged with the oenceo delement contrary to section 8(1) as read withsection 8(4) o the Sexual Oences Act, No 3 o 2006.The particulars o the oence were that on a givendate, the Petitioner had intentionally and unlawullycaused his genital organ to penetrate the genitalorgan o J, a girl aged 16 years. At the material time,the Petitioner was a 16 year old male child.

The Petitioner explained that the Complainant, J,was his girlriend and the sexual act complained owas consensual. He stated that the Complainant

willingly went to the Petitioner’s house and they hadconsensual sex. The petition was brought on groundsthat the sexual act complained o was consensual.It was contended that it was discriminatory andunconstitutional to have the Petitioner prosecuted orthe act on the basis that sexual conduct complainedo was between children. Additionally, it was arguedthat it was discriminatory to only prosecute the malechild involved in the act.

Issuesi. Whether section 8 o the Sexual Oences Act,

which proscribed the oence o delement,was unconstitutional as it discriminatedagainst children by criminalizing consensualsexual acts engaged in by children with otherchildren but allowing consensual sexual actsengaged in by adults with other adults.

ii. Whether section 8 o the Sexual Oences Act,which proscribed the oence o delement,was discriminatory as it promoted thedisproportionate prosecution of the male

child even where a emale child was a willingparticipant in the sexual act complained o.

Constitutional Law - fundamental rights and freedoms-

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less than fteen years.

Held1. The law was not discriminating against

adolescents. In criminalizing sexual conductbetween children, while allowing such conductamongst consenting adults, the law aimed toprotect children against harmul sexual conduct.

2. The legal provision on delement served animportant societal goal o protecting childrenrom engaging in premature sexual conduct.There was an accepted need or guidance andprotection for adolescents, who left to their owndevices, tended to engage in risky behaviour.

3. Under section 8 o the Sexual Oence Act, No3 of 2006, it was possible for both male and

emale children to be charged with the oence odelement. Thereore, the legal provision did not

discriminate against male children.4. In Kenya, there was no express or implied

requirement that where 2 children were involvedin sexual penetration, both o them were to becharged with the oence o delement. However,the absence of such a requirement would notprevent the ling o criminal charges against bothchildren.

5. The Petitioner was an adolescent male when heengaged in the sexual act complained o and thecomplaint was made against him. There was nocomplaint made against the emale adolescentwho willingly participated in the sexual act, andon those grounds only, the boy was charged.

Petition dismissed.

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Court Orders KEMRI to Acknowledge and Compensate their Scientic Researchers inProtecting the Researchers’ Intellectual Property Rights.

Dr Samson Gwer & 5 others v Kenya Medical Research Institute (KEMRI) & 3 others [2014] eKLRPetition No 21 o 2013

Industrial CourtMN Nduma, JJuly 18, 2014

Reported by Emma Kinya Mwobobia & Opiyo Lorraine

became the subject o the Petitioners’ grievances. TheAbove background orms the basis o the suit herein.

Issuesi. Whether the Respondents promoted racial

discrimination and inequality contraryto article 27 (4) of the Constitution, instipulating that the scientic researchershad to have the relevant connection to

European Economic Area.ii. Whether the present case fell for

determination on the basis of discriminativepolicy under international sponsorshipprogramme or the government policy.

iii. Whether the suspension o the Petitionersby the 1st Respondent amounted to unfairadministrative action contrary to article 47o the Constitution.

iv. Whether an employer was entitled to theintellectual property rights o an employee

by virtue o being their employer.v. Whether the 1st Respondent committed

scientic misconduct in promoting

Brief FactsThe Petitioners herein had been employed by the1st Respondent, Kenya Medical Research Institute(KEMRI) on diverse dates under the Wellcome TrustProgramme. The said programme was subsumedunder KEMRI in a new agreement between KEMRI andthe Wellcome Trust Research Laboratory. They wereresearch scientists while enjoying study scholarshipsunder the said programme.

The Petitioners’ contracts were extended on shortterm basis. However the Petitioners alleged that theywere unclear and oppressive eectively subjectingthem to unair administrative arrangement by theRespondents. They also alleged that they werediscriminated against by the Respondents and thattheir right to air labour practice had been inringedupon. The Petitioners claimed that their right tointellectual property had also been violated and theRespondents took credit or their work and scienticinnovation.

The unding under KEMRI emanated rom externaldonors who attached specic terms and conditionsto the grant and administration o the WelcomeTrust Research Programs. The terms and conditions





plagiarism o the Petitioner’s work andwhether the court could protect theseintellectual property rights o the Petitionersas against the 1st Respondent.

vi. Whether the Petitioners were entitledto an order for reinstatement and orcompensation by the Respondents.

Constitutional law - fundamental rights and freedoms-equality and freedom from discrimination- whether theconduct of the Respondents amounted to discrimination,in stipulating and implementing policies that resultedin deliberate career blockade against those who didnot meet the requirements – in a situation where theKenya Medical Research Institute required the scienticresearchers to have the relevant connection to EuropeanEconomic Area- Constitution of Kenya 2010 article 27 (4),Employment Act Cap 226 section 5 (2).

Constitutional law - fundamental rights and freedoms-right to fair administrative action – whether the Petitionerswere entitled to fair administrative action enshrined in theConstitution - whether the Respondents failed to accordthe Petitioners their right to fair administrative action –where the Petitioners were arbitrarily suspended as aresult of raising concerns of their discontentment withthe working contract enforced by their employer, the 1st

Respondent- Constitution of Kenya 2010, article 41 and47.

Intellectual Property - right to have one’s intellectual property protected from infringement and plagiarism -scientic misconduct – whether an employer could seekto have legal ownership of its employees’ intellectual property rights –- whether it was lawful for the employerto promote plagiarism by allowing other knownresearchers to take credit for the work of the Petitioners- where the Respondent in the instant matter forced thePetitioners to give up their intellectual rights and cedetheir passwords to research and innovation.

Constitution of Kenya, 2010

Article 27

(1) “Every person is equal before the law and has the rightto equal protection and equal benet of the laws.”

(4) “The state shall not discriminate directly or indirectlyagainst 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.”

(5) “A person shall not discriminate directly or indirectly

against another person on any of the grounds speciedor contemplated in Clause (4).”

Employment Act No. 11 of 2007Section 5

“(2) An employer shall promote equal opportunity inemployment and strive to eliminate discrimination in anyemployment policy or practice.”

Convention No. 111 Convention concerningdiscrimination in respect of Employment andOccupation, (1958)Article I “For the purpose of this convention the termsdiscrimination includes;

a. any distinction exclusion or preference made

on the basis of race, colour, sex, religion, political opinion, national extraction or socialorigin which has the effect of nullifying orimpairing equality of opportunity or treatmentin employment or occupation.”

Held

1. The Constitution ought not to have beeninterpreted as any ordinary statute especiallywhere words used were unambiguous. Whereasarticle 27 (4) dealt with discrimination by the

state, sub article (5) specically prohibiteddiscrimination by any person directly or indirectlyagainst another person. That distinction wasimportant for purposes of the instant suitbecause the pleadings and submissions pointedto discriminative policy prescribed under aninternational sponsorship programme rather thangovernment policy.

2. Deliberate attempts by the institutional leaders toinhibit calls or a re-examination o institutionalpolicies and practices that promoted racial

discrimination and responding with repressionindicated individual culpability by the Respondentsand its senior ocials inactively promoting racialdiscrimination and inequality.

3. Given the history o the country, racialdiscrimination at the work place be it perpetuatedby individuals or by an institution was completelyunacceptable and should not have been toleratedor purposes o accessing unds, exchangeprogrammes and other benets provided byinternational beneactors.

4. A requirement that a scientic researcher underthe employment o KEMRI had to have relevantconnection to the European Economic area (EEA)

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was discriminatory as against colleagues underthe same employment who did not have suchrelevant connection.

5. The Petitioners proved on a balance o probability

that the 1st

Respondent had not done enough toeliminate institutional discrimination in violationo Article 27 and Section 5(2) o the EmploymentAct to the loss and detriment o the Petitioners.

6. The 1st Respondent as a state employer wasbound by the Constitution to protect the righto the Petitioners and not allow a policy thatappropriated their intellectual property. ThePetitioners proved that the 1st Respondentperpetrated unfair labour practices in violationof Article 41 of the Constitution by arbitrarily

suspending them rom employment and studyor raising genuine grievances and recalling themon changed, ambiguous and inerior terms andconditions o service.

7. That also amounted to unair administrative actioncontrary to Article 47 o the Constitution. The samewas exacerbated by the 1st Respondent’s failureto attend conciliation under the auspices of theMinister or Labour and subsequently renouncingthe recommendations by the Minister to reinstatethe Petitioners to their employment and study on

clear terms o service. The ailure to provide thePetitioners with the report o the investigationessential to prosecute their case was in violationo Article 35(1) (b) o the Constitution.

8. The dispute led to the loss o employmentand opportunity to complete their respectivestudy programmes mid-stream. That loss wasenormous in terms of career development,contribution to scientic outcomes to thecountry and in terms o ability to get alternativeemployment and academic scholarships.

The Petitioners necessarily required materialreerences and certicates o service rom theRespondent to ease their moving on.

9. The systemic discrimination and violation o

the undamental rights o the Petitioners hadsignicant detrimental eect on the Petitioners.The Petitioners not only lost a chance to renewtheir employment contracts and connectedscholarships to complete their studies but alsolost signicant scientic research outcomes asa result of unequal and discriminative practicesby the Respondent described and proven by thePetitioners.

10. It was dicult to quantiy loss o studyopportunity and research conducted over a period

of several years that had been appropriated bythe Respondent or the benet o others withoutdue acknowledgment and credit being given. Itwas also dicult to recompense or sustainedinvasion o personal dignity caused by policiesskewed or a selected group in an institution thePetitioners called their employer.

11. It was dicult to assess the extent o sueringand loss the Petitioners had undergone as theyought beore various institutions and the Courtto have their rights and human dignity vindicated.

Each of the Petitioners entitled to compensation for thesaid violations under Article 23 of the Constitution inthe sum of Kshs.5 million; access to all the outcomesof their scientic research and to the credit and benetattached to the outcomes under Article 35 and 40 of theConstitution and a certicate of service acknowledgingthe service and scientic outcomes attributed to theirresearch and work within 30 days from the date of the

judgment. Respondent to pay interest at Court ratesand costs of Petition from the date of the judgment to

payment in full.

The jurisdiction of an arbitration board to grant divorceT S J v S H S R

High Court o Kenya at NairobiMisc. application no.8 o 2013

L Kimaru JJune 5, 2014

Reported by Njeri Githang’a and Getrude serem

had dissolved the marriage and made determinationon custody of children and division of matrimonial

property.

Issuei. Whether the His Highness Prince Agha Khan

Brief factsThe application in the matter was seeking the court to

adopt an award made by the His Highness Prince AghaKhan Shia Ismailia Conciliation and Arbitration Boardor Nairobi .The parties in the suit had celebrated theirmarriage under the Ismaili Religious Rites. The board

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Held1. In order or the plea o res judicata to be raised

successully, the ollowing actors would have tobe in existence;

a) The issue in the current suit must havebeen decided on by a competent court,

b) The matter which was in dispute in theconcluded suit must be the same matter,directly or substantially, in dispute betweenthe parties in the suit where the plea of res judicata was being raised.

c) The parties in the concluded suit wouldhave to be the same parties, litigating in thesame capacity, in the suit in which the pleaof res judicata was being raised.

2. On the ollowing grounds, the plea o res judicata

could not be raised successfully;a) The concluded suit reerred to in making the

plea of res judicata, JR No 317 o 2013, did nothave the same parties as the parties to thePetition.

b) The issue in the concluded suit, JR No 317of 2013, related to violations of section 7 and24 o the Transition to Devolved GovernmentAct, No 1 o 2012, ailure to adhere to therequirements of article 43 of the Constitutionof Kenya 2010, irrationality and abuse of

statutory powers. On the other hand, theissues raised in the Petition related to theproper interpretation to be given to the terms‘national referral health facilities’ and ‘countyhealth acilities.’ The issues in the two suitswere distinct despite the fact that they allrelated to the provision o health services.

3. The Intergovernmental Relations Act, No 2 o2012 intended to establish mechanisms forthe resolution o intergovernmental disputespursuant to the provisions o articles 6 and 189o the Constitution o Kenya, 2010. It specically

established dispute resolution mechanismsunder sections 30 to 35.

4. Within the meaning o section 30 o theIntergovernmental Relations Act, No 2 o 2012,there was no dispute either between the nationalgovernment and the county government oramongst the county governments. The Petitionwas brought by private citizens.

5. There was no legislative intent revealed in theIntergovernmental Relations Act or any issue,real or perceived as a dispute, to be brought by

any person, other than the county government orthe national government, or determination withinthe purview of the dispute resolution mechanismset up in the Act.

the court’s jurisdiction to hear the Petition and thecourt’s capacity to adjudicate on the complex issueo healthcare provision were raised. On jurisdiction, itwas contended that the matter was res judicata as itconcerned issues that had been raised and decidedon in a concluded suit (JR No 317 o 2013) and it alsoconcerned an intergovernmental dispute which wasto be determined via dispute resolution mechanismsprovided or in the Intergovernmental Relations Act,No 2 o 2012.

Issuesi. Whether national referral health facilities

would include other health facilities apartfrom Kenyatta National Hospital and Moi

Teaching and Referral Hospital and whethercounty health facilities only includedthe facilities previously established andmanaged by local authorities or those healthfacilities that counties would reasonably beexpected to establish.

ii. Whether the court lacked the jurisdiction todetermine the Petition as the matters raisedwere res judicata.

iii. Whether the court lacked the jurisdiction todetermine the Petition as the matters raised

in it were matters which were to be resolvedthrough mechanisms for the resolution ofintergovernmental issues provided for in theIntergovernmental Relations Act, No 2 of2012.

Constitutional Law - devolved system of government-distribution of functions between the nationalgovernment and county governments-provision ofhealthcare facilities-provision of healthcare facilities bythe national government and the county government-meaning of ‘national referral health facilities’ and ‘countyhealth facilities’-Constitution of Kenya 2010, Part 1 & Part2 of the Fourth Schedule to the Constitution.

Civil Practice and Procedure - res judicata-circumstances in which the plea of res judicata could beraised-requirements for similar parties and similar issuesin raising the plea of res judicata.

Jurisdiction - jurisdiction to determine intergovernmentaldisputes-meaning of intergovernmental disputes-whethera matter raised by private citizens could constitute an

intergovernmental dispute-Constitution of Kenya 2010,articles 6, 165(3)(d) & 189, & Intergovernmental Relations Act, No 2 of 2012, section 30.

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6. Under article 165(3)(d) o the Constitution o Kenya2010, the court had the jurisdiction to determinequestions concerning the interpretation o theConstitution. The court could thereore considerthe meaning o the words ‘national reerral healthacilities’ in Part 1 o the fourth Schedule tothe Constitution and the words ‘county healthacilities and pharmacies’ in Part 2, Section 2(a)o the fourth Schedule to the Constitution.

7. The distribution o unctions between the nationalgovernment and the county government wasdistinct from the allocation of functions made tolocal authorities before the devolved system ofgovernment came into eect. The structure ogovernment provided or under the Constitutionof Kenya 2010 was not comparable to the local

authorities system provided for under the repealedLocal Government Act (Cap 265) (repealed).

8. The Constitution had not dened the words‘national referral health facilities’ and ‘countyhealth acilities.’ It also did not categorize

hospitals into dierent levels.9. The classication o hospitals into levels and into

national referral health facilities or the nationalhealth system and the county health facilities andsystem was a policy issue, to be determined inaccordance with the provisions of section 15 ofthe Sixth Schedule to the Constitution o Kenya2010.

10. The court’s jurisdiction was limited to interpretingthe law and it could not make policy or enact thelaw as that was the mandate o the Executiveand Parliament. The court had no ability ormechanism to determine the criteria to be usedto categorize hospitals or capacity to examineequipment, facilities and manpower for purposeso such categorization.

Petition dismissed.

An order of habeas corpus cannot be issued where custody of the subject is notestablished

Masoud Salim Hemed & another v Director of Public Prosecution & 3 othersPetition No 7 & 8 0 2014 (consolidated)

High Court at MombasaE M Muriithi, JAugust 8, 2014

Reported by Andrew Halonyere& Valarie Adhiambo

Issues

i. Who had the burden of proof in habeascorpus proceedings?

ii. What was the nature o the right to habeas

corpus?

iii. Whether an order of habeas corpus could beissued where custody o the subject wasnot established

iv. Whether one could seek other reliefs in ahabeas corpus application where the factsupon which the right to habeas corpus wassought had not been established

Constitutional Law - fundamental rights and freedoms

-right to habeas corpus-nature of the right to habeascorpus -proceedings for habeas corpus- where it isestablished that a person was arrested but is notin custody of the police - whether an order of habeas

Brief facts

The consolidated petitions beore the court wereapplications for an order of habeas corpus withrespect to one Hemed Salim Hemed (subject).Thesubject o these habeas corpus proceedings, was

arrested by the police rom the Masjid Musa mosqueand had not been produced before the Court within24 hours as required by the Constitution, or at all, incontravention o the subject’s rights and undamentalreedoms.

The respondents’ answer to the petition was that thesubject was arrested at the Mosque but he escapedrom police custody while being transported to theholding station at Makupa Police station, Mombasa,and having lost the physical custody o the subjectthey could not comply with the order of habeas corpus.

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been alleged, the proper remedy was not habeascorpus proceedings, but criminal investigationsand proceedings. Much as the court could havewanted to resolve those disappearances speedilywhen it was interested in determining who wasresponsible for the disappearance and detention,it would not have wanted to step beyond itsreach and encroach on the duties of other dulyestablished agencies. The proceeding or habeascorpus could not be used as a substitute for athorough criminal investigation.MA. Estrelita D.Martinez v. Director General and Ors.

10. Bearing in mind the separation o powers o thecourt and the investigative and prosecutorialagencies, in the unresolved circumstanceso the disappearance o the subject, therewas still scope or the carrying out o urtherinvestigations to determine the circumstances othe disappearance from police custody or death,in police custody or otherwise, or, i the subjectwas living, his whereabouts to acilitate his beingretaken into custody of the police to enable thecompliance with the habeas corpus order.

Orders of the Court

i. The Chief Magistrate’s Court Mombasa as acourt empowered to conduct inquests was to

carry out in accordance with section 387 ofthe Criminal Procedure Code an inquiry intothe circumstances of the death of the subject ,the proceedings on the basis that he was nowdesignated ‘a missing person presumed dead’within the meaning of the section.

ii. The Criminal Investigations Directorate ofthe Police was to further investigate thecircumstances surrounding the disappearanceand or death of the subject of those habeascorpus proceedings.

iii. The court was of its own motion pursuantto rule 6 (c) of the Constitution of Kenya(Protection of Rights and Fundamental

Freedoms) Practice and Procedure Rules2013, (the Mutunga Rules), invite as amicuscuriae (friend of the Court) the Kenya NationalHuman Rights Commission (KNHRC), whichwas constitutionally mandated to investigateall cases of human rights violations, to conductinvestigations in the matter and jointly with theCriminal Investigations Directorate to preparea report for the Inquest and the Court

iv. The KNHRC / Police investigations report wasto be led with the Chief Magistrate’s Courtconducting the inquest into the death and withthe Court to enable nal orders and closureof the proceedings. If the investigationsrevealed that the subject was alive at a known place, the subject could be retaken into thecustody of the police upon which the orderfor habeas corpus was to be implemented.If the subject was beleaved to have died, thecircumstance of the death was to be certiedto the Inquiry by the Magistrate and the Courtso that the Inquest and the proceedings forhabeas corpus were to be terminated withsuch orders as to prosecution of any personswho could have committed an offence(s), ascould be necessary in the circumstances.

v. The petitioners could also le complaints with

the Independent Police Oversight Authority.

vi. Further consideration of the petitions forhabeas corpus was stood over generally.

vii. For compensation in damages for violationsof rights and fundamental freedoms ofthe subject and or loss of dependency,as appropriate, the family of the subjectcould le proceedings in that behalf as thehabeas corpus proceedings were conned toredressing wrongful or illegal connement.

viii. Costs were to abide by the nal outcome ofthe matter.

Court Rules Against Varying of Interest rates on a Borrower by a Credit Facility InstitutionFrancis Joseph Kamau Ichatha v Housing Finance Company of Kenya Limited [2014] eKLR

High Court at Nairobi, Commercial & Admiralty DivisionCivil Suit No 414 o 2004

GV Odunga JAugust 4th 2014

at a monthly payment of Kshs 26,273/= at the rate of18% per annum or 15 years. The said interest ratecould only be varied with the concurrence and prior

Brief FactsThe Plainti herein had applied or a mortgage acilityin the sum o 1.3 million Shillings rom the Deendant

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written approval of both parties and in any event notwithout at least 4 months’ notice in advance. ThePlainti then subsequently took a charge and a urthercharge which were dully executed and registered.The Deendant varied the said interest to 26% perannum thereby making it impossible or the Plaintito service the acility. In addition, the deendant alsoemployed the use o a aulty banking computersoftware system which led to errors in calculationo interest. As a result o the above, the Deendantexercised its statutory power o sale by selling thehouse that the Plainti had constructed with themoney borrowed in order to recover the money.The Plainti on the other hand, as a result o theDeendant’s aulty computer system ended up beingcharged exorbitant amounts in penalties and interest.

The above background ormed the basis o the matterbeore the court.

Issuesi. Whether the penalty interest and default

charges levied by the Deendant wascontrary to the terms o the Chargedocument and unlawful and whether itconstituted a etter or clog on the Plainti’sequity o redemption.

ii. Whether the ailure to give notice constituted

a breach of contract and whether thePlainti could be awarded damages orbreach o contract.

iii. Whether the Defendant’s calculations wereree rom error.

iv. Whether the Defendant’s only option was torealise the security.

v. Whether the defendant breached any ofthe provisions o the Banking Act.

vi. Whether the plaintiff was entitled to theprayers sought.

Constitutional Law - fundamental rights and freedoms-consumer rights - right of a borrower as a consumer ofa credit facility – whether the Plaintiff’s rights herein hadbeen infringed by the Defendant company where the latterhad failed to inform him of the increase in interest rateswithout notice contrary to the contractual agreement inthe Charge document, where the interest and penaltieshad accumulated subsequent to the increase in theinterest rates making the Plaintiff unable to repay hisloan - whether the Plaintiff suffered considerable lossas a result of the actions of the Defendant company –

Constitution of Kenya 2010 article 46 (1)

Civil Practice and Procedure – judgment– specialdirections as to accounts – where the credit facility

institution had a faulty system that resulted in numerouserrors in accounting for the money borrowed by thePlaintiff– whether the court could make an order forscrutiny of books of accounts of the Defendant Companyin order for them to correct the errors before giving itsnal determination - whether the court could give specialdirections with regard to the mode in which accountscould be taken – Civil Procedure Rules 2010, order 21rule 17.

The Constitution of Kenya 2010Article 46“(1) Consumers have the right-

(a) to goods and services of reasonable quality;(b) to the information necessary for them to gain full

benet from goods and services;

(c) to the protection of their health, safety andeconomic interests; and

(d) to compensation for loss or injury arising fromdefects in goods or services.”

Civil Procedure Rules, 2010Order 21 rule 17“The court may, either by the decree directing an accountto be taken or by any subsequent order, give specialdirections with regard to the mode in which the accountis to be taken or vouched, and in particular may direct

that in taking the account the books of account in whichthe accounts in question have been kept shall be takenas prima facie evidence of the truth of the matter thereincontained with liberty to the parties interested to takesuch objection thereto as they may be advised.”

Held

1. The Deendant ought to have expressly providedor charges in the Charge documents in order toentitle it to levy the same. Without any expressprovision, any levies could only be made with

the consent o the Plainti. In the instant casethere was no blanket and unfettered discretionreserved to the Deendant. The Bank ought tohave stipulated all the conditions or the grant oacilities and ought not to have hidden some romthe customer only for it to resort to them thereonunder the guise o customary practice.

2. The Court appreciated that in certain casestrade usage could be implied in a contract. forthe penalty to have been certain there ought tohave been certainty as to the levy of the interestbut since the rate was not contained in anycontractual document, the rate also must havebeen certain and must have been known in themarket otherwise such levying o interest would

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7. The Deendant was not bound to only realize thecharged property. As long as the loan remainedunpaid the Defendant was properly entitled to anylawully due charges based on the contractualdocuments.

8. The issue whether the Deendant breached any othe provisions o the Banking Act was not provedto the required standards.

9. Taking into account the Court’s nding withrespect to the uncontractual charges, variationof interest rates and the errors in calculation, theinstant matter was one in which the proper orderwould have been that accounts be taken betweenthe parties, taking into account the nding o theCourt in the Judgment.

Orders

(a) The parties were to agree on and appoint anindependent accountant to take accounts betweenthem and le his report within 45 days from the dateof his appointment. In default of such agreementeach party to appoint an accountant and the twoappointed accountants to appoint an umpire and thethree to go through the documents in possessionof the parties and prepare a report for ling in thismatter within 45 days of the appointment of the

umpire.

(b) Where the parties agree on one accountant his costswould be shared equally by the parties. Howeverwhere three accountants were appointed each party would bear the costs of his accountant whilethe costs of the umpire would be shared equally bythe parties.

(c) In taking the said accounts, the books of accountin which the accounts in question had been kept

would, subject to the judgment, be taken as primafacie evidence of the truth of the matter thereincontained with liberty to the parties interested totake such objection as they would be advised.

(d) Further orders of the Court were to await the lingof the said report.

(e) Liberty to apply was granted.

have violated the provisions of Article 46(1) (b) ofthe Constitution. To argue otherwise would openan avenue in which the right o redemption couldeasily be clogged or ettered.

3. A party ought not to have mutated the terms o acontract unilaterally to the detriment of the otherparty to the contract. That was what the peopleof the Republic realised when they enactedunto themselves Article 46 (1) (b) and (c) of theConstitution which provided or the rights to theinormation necessary or consumers o goodsand services to gain ull benet rom goods andservices and to the protection of their health,saety, and economic interests. Thus, in thecircumstances of the instant case, the Defendantwas not entitled to ‘penalty interest’, ‘interest onarrears’ or ‘deault charges’.

4. The necessity or giving the notice was meant togive the borrower a chance to decide whether tokeep the facility alive based on the new terms orto bring the contract to an end by either payingthe amount due or instructing the Bank to realizethe security if in his view he would not be ina position to service the facility based on theintended variations.

5. In the instant case, it was clear that the

requirement for 4 months notice was nevercomplied with by the Deendant. Thereore in theabsence o any evidence that the Plainti wasgiven the contractual notice, the variations o therates o interest to the Plainti’s detriment wereunlawul. Any application o interest rate withrespect to the rst Charge in excess o 18% perannum was also unlawul. Similarly variation ointerest rate with respect to the second charge inexcess o 19% was unlawul.

6. Since the calculations were peculiarly within theknowledge o the Deendant the onus shited toit to explain the basis upon which those gureswere arrived at. However taking into account thefact that the plaintiff’s position was that the errorspointed out by him were but just a sample onecould not state with certainty how many “minorerrors” were committed by the Defendant andtheir cumulative eect on the loan repayment.Thus, the Deendant’s calculations could not beree rom error.

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that suspension could be characterized. Annualleave was voluntarily taken by the Employee, atsuch time as was agreed with the Employer. Itwas not meant to be involuntary.

9. The concept o “Equal pay or equal work orwork o equal value”could be simplied as theundamental right o every worker, to receive equalpay, or the same or similar work. That could entailequal pay or doing completely dierent work, butwhich was, based on objective criteria, o equalvalue.

10. Equal pay or equal work or work o equal valuewas recognized as a undamental human right.That right was now recognized under Article 41o the Constitution o Kenya. The International

Labour Organization (ILO) Declaration oPhiladelphia o 1944, which was part o the ILOConstitution, armed that all human beings,irrespective o race, had the right to pursueboth their material well-being and their spiritualdevelopment in conditions o reedom and dignity,and o economic security and equal opportunity.

11. The Equal Remuneration Convention, 1951 andthe Discrimination (Employment and Occupation)Convention, 1958 prohibited distinctions,exclusions or preerences made on various

grounds including race. However, disparity inpay was permitted when there were objectivedierences in the value o work to be perormed.The concept required a means o measuring andcomparing dierent jobs, on the basis o objectivecriteria such as skills, working conditions,responsibilities and eort.

12. Qualied employees had to be paid equally whenthey performed the same or virtually the samework, in equivalent conditions. Work o equalvalue was work which was different in content,

involving dierent responsibilities, requiringdierent skills or qualications.

13. In determining the value or worth o a job,employers had to undertake objective jobevaluation that was ree rom bias. Two types o job evaluation methods [JEM] existed. The rstwas the Global or Ranking Methods, the secondwas the Analytical job evaluation;

i. Under the Global or Ranking Methods,the jobs were ranked on the basis othe importance o the job requirements.

The whole job rather than the individualcomponent was evaluated. Thisidentied the characteristics o the job-holder with the characteristics o the job

from as early as 2005, on the weaknesses of itsAccounting System. The Auditors’ Reports, theCumming Report, the evidence o the CEO and thatof the Claimant before the Auditors, all pointed atan institutional failure rather than an individualailure. There was no way the claimant couldhave exercised greater supervisory control toavoid fraud in the absence of the implementationo reorms to the accounting system which theclaimant had been advocating or since 2005.

5. The termination o the employee’s employmentwas not based on valid and fair reason sincethe respondents failed to prove the reasonsfor termination of the claimant’s employmentcontract under section 43 o the EmploymentAct; It did not establish on the part o the claimantwillul negligence, or careless and improperperformance of duty under section 44(4) (c) of theAct and did not demonstrate valid or fair reasonor termination under section 45 o the Act.

6. The principle o air hearing required that theemployee had sucient opportunity to prepare.This entailed:

a. The Right to sucient time to prepare.Time however, was not the totality osuciency o opportunity.

b. The right to ully understand thecharges. General charges such as

dishonesty, fraud and fraudulentactivities were vague and oered theemployee no opportunity to respondintelligibly, or at all.

c. The right to documentation. TheEmployee had a right to be given thedocuments the Employer intended torely on at the hearing, as well as otherdocuments the Employee requested

or.

7. Employers could not withhold Employee’s salariesas a orm o a disciplinary sanction. It added on tothe gravity o the procedural irregularity, when theEmployee’s salary was used as a weapon againsthim.

8. The law did not contemplate the conversiono an Employee’s annual leave entitlement intoanything else, other than cash. Compulsory leavewas essentially a suspension o the Employeerom Employment, pending investigation o theemployment offence, and the outcome of thedisciplinary process. Annual leave could not beconverted into suspension by whatever name

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93

b. The Employer had to rebut thepresumption, by introducing evidenceo legitimate nondiscriminatoryreason or its actions.

c. The Court at the end had to examinei the reasons oered by the Employerwas pretextual, and i they werepretextual, then discriminationcould be the correct diagnosis in thecircumstances.

17. In the instant matter, the claimant did more thanmerely show a prima facie case that he wassubjected to unequal pay, based on his race. Onthe other hand, the respondent ailed to dischargeits obligations in showing nondiscriminatoryreasons for the disparity between the claimant’s

salary and other employees.18. In remedying employment wrongs, claims or

unpaid wages and salaries could not be treated asclaims or special damages in civil claims. focusof the court had to be on what was reasonablein each case particularly as employment recordswhich were necessary in specic proo werelegally in the custody o the employer.

19. Whereas section 90 o the Employment Actprovided for limitation of time at three yearsor disputes arising out o the Employment Act,

the period in employment was a continuousperiod, with employment benets vesting inthe employee, and obligations on the part othe employer attaching over time. There wereaccrued benets which could not be isolatedand subjected to a dierent date o accrual. Atthe date of termination, the employee had to beaccorded all benets arising under a contracto employment. Thereore the assertion by therespondent that the claimant should have suedwhen the pay decision was made instead ofwaiting beyond the 3 years period to raise theissue o pay disparity could not stand.

The termination was unfair and unlawful.

The Claimant was discriminated against by theRespondent, on account of his race, and paid an unequal pay for equal work, or work of equal value.

The Respondent was to within 30 days of the deliveryof this Award, pay to the Claimant 12 months’ grosssalary in compensation for unfair termination at Ksh.3,489,084; Ksh. 18,256,947 in cumulative pay disparity,and damages for discrimination; Ksh. 559,148 being the

balance of annual leave pay- total Ksh. 22,305,179.The amount was to be paid less PAYE tax.

No order on the costs and Interest.

itsel. The ranking methods ascertainedthe importance o the jobs within theOrganization, but did not determine thedierence in value between them.

ii. Analytical Job Evaluation Methodsbroke jobs down into components,or factors, and sub-factors, andattributed points to them. The actorsincluded skills and qualicationsacquired through education, trainingor experience; responsibility orequipment, money and people; effort,which could be physical or mental; andwork conditions which encompassedphysical and psychological aspects. Bydetermining the numerical value o a job, analytical job evaluation methodsshowed whether two dierent jobs hadthe same value or not. Dierent jobsthat had the same numerical valuewere entitled to equal remuneration.

14. Whenever an employee was found to havesuered wage or salary disparity based onreasons which were not objective and permissiblesuch as race, the consequences of unequalpay had to be reversed. The employee had toreceive compensation and where possible, courtscould impose sanctions such as nes, to detercontinuing or uture pay discrimination. Othermechanisms included shiting the burden o prooto the employer through legislation since theemployee could not have access to employmentrecords to establish a claim or discrimination.

15. Section 5 o the Employment Act, 2007 whichcontained antidiscrimination law, requiredemployers to promote equality of opportunityand to strive to eliminate direct and indirectdiscrimination. It also specied what could not

amount to discrimination. It was not discriminationor instance i the acts or decisions o the Employerwere based on the inherent requirements of the job. Section 5(7) o the Employment Act providedthat the employer bore the burden o proving thatdiscrimination had not taken place as alleged, andthat the discriminatory act or omission was notbased on any grounds specied on that section.

16. The test o proving discrimination against anemployee was comprised o the ollowing steps:

a. The Employee by preponderance oevidence had to establish a prima facie case o discrimination.

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Brief facts

The 1st, 2nd, 3rd and 4th Respondents were involved ina people’s initiative to amend the Constitution, whichwas to culminate in a reerendum. The initiative wasbased on article 257 of the Constitution of Kenya2010. In the initiative, 1 million signatures had alreadybeen collected rom registered voters on the basis oa general suggestion.

The 1st, 2nd, 3rd and 4th Respondents had undertakento ormulate a drat Bill and to provide a record o thesignatures rom registered voters to the IndependentElectoral and Boundaries Commission (IEBC) orverication. The IEBC was to determine whether thedrat Bill relected the initiative’s objects and purposesand whether at least 1 million signatures had beencollected rom registered voters in support o theinitiative.

The Petitioner, a member o a political party whichwas opposed to the initiative, was aggrieved by themanner in which the initiative was being conducted.He applied to the High Court or conservatory ordersto stop the collection o signatures and to stop theIEBC rom receiving and veriying a drat Bill andrecords o the signatures. The Petitioner had variouscomplaints about the initiative including the act thatthe signatures were being collected on the basis o ageneral suggestion, not a drat Bill, and that Parliamenthad not been involved in the process.

Issuesi. Whether the dispute was justiciable and

whether it concerned a political question.ii. Whether the High Court had the jurisdiction to

hear and determine the Petition.iii. Whether the Applicant’s membership in a

political party, which did not support theinitiative in question, meant that the Petitionhad been lodged in Court in bad aith.

iv. Whether the Applicant had met the legal

requirements or the grant o conservatoryorders.

Constitutional Law - interpretation of constitutional

provisions-justiciability-political question-considerationsthat govern determinations on whether certain acts ofthe organs of state were political questions.

Jurisdiction - jurisdiction of the High Court-the HighCourt’s jurisdiction to interpret the Constitution-the High

Court’s jurisdiction over disputes concerning people’sinitiative to amend the Constitution-Constitution ofKenya 2010, article 165(3)(d)(ii).

Constitution Law - fundamental rights and freedoms-enforcement of fundamental rights and freedoms-remedies-conservatory orders-whether it was necessaryto demonstrate the existence or a breach or threatenedbreach of a fundamental right and freedom recognized inthe Bill of rights in order to obtain conservatory orders-Constitution of Kenya 2010, articles 22 & 23(3)(c).

Held1. The justiciability o a matter would depend on

the nature of the dispute and on whether it wasamenable to the judicial process or it was purelya political question. Justiciability would alsodepend on the legal principles, surrounding theparticular act in question, as discernible from theapplicable legal instruments.

2. Where the law imposed on the executive legallyprescribed duties and responsibilities, theperormance o which depended upon enhancing

or handling public interest, the political ocerso the executive would be required to actconsistently and in accordance with the law. I thepublic ocers ailed to observe the requirementsof the law, their failure would harm the interest ofthe public and the rights o individual citizens.

3. Pursuant to article 165(3)(d)(ii) o the Constitutiono Kenya 2010, the High Court would be possessedo the jurisdiction to hear any questions on theinterpretation o the Constitution, includingdeterminations on whether anything said or done,

was done under the authority of the Constitutionand whether it was inconsistent with or incontravention o the Constitution.

4. Considering the constitutional provisions under

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The High Court’s jurisdiction to determine disputes concerning people’s initiatives toamend the Constitution

Kanini Kega v Okoa Kenya Movement & 6 othersPetition 427 o 2014

High Court at NairobiG V Odunga, J

September 19, 2014




95

which the Petition was ounded and the materialplaced beore the Court, the holding that the Courtlacked the jurisdiction to determine the mattercould not be made.

5. The Petitioner’s membership in a political party,whose position was adverse to the initiativein question, did not mean that the Petition wasbrought in bad aith. The Petitioner’s membershipin that party did not aect his rights to bring thePetition as an individual.

6. In order to establish a case or the grant oconservatory orders, the applicant had todemonstrate that there was a prima facie case andthat unless the conservatory order was grantedthere was real danger which was prejudicial to theApplicant’s case.

7. In considering an application or conservatoryorders, the Court would not make denite orconclusive ndings o either act or law, it wouldonly seek to determine whether the requirementsor the grant o conservatory orders had beenmet.

8. A prima facie case is not a case that would certainlysucceed at the hearing o the main case. It is acase which is not frivolous and the Applicant hadto show the existence o a case which disclosedarguable issues; and or the dispute in question,

those arguable issues would have to be arguableconstitutional issues.9. Where it was apparent that there were competing

interests and rights, the principle o proportionalitywould be applied in order to secure the rights andreedoms in question. The determination on theconservatory orders would take into account theneed to balance the interests of the parties andthe need to preserve the subject matter o theclaim.

10. The Applicant had raised the ollowing arguableissues for determination, namely;

a) Whether article 257 of the Constitution ofKenya 2010, provided that the Constitutioncould be amended through Parliament, bythe people and Parliament, and the issue oa reerendum would only arise i Parliamentailed to give eect to the drat presented to itvia the people’s initiative.

b) Whether article 257(1), 257(2) & 257(3) othe Constitution of Kenya 2010, required thatwhere an amendment to the Constitution wasproposed by popular initiative signed by at

least 1 million registered voters, the initiativewould have to be in the orm o a drat Billand the signatures o voters could only becollected on the basis o a drat Bill and not a

general suggestion.11. The Applicant also raised issues that were not

arguable issues, namely;a) Whether the current Parliament, was a

transitional Parliament, which was required toimplement and not to amend the Constitution.Given that the Constitution had been amendedby Parliament and no legal provision preventedits amendment, the issue was not arguable.

b) Whether given the requirements o article251(d) of the Constitution of Kenya 2010, whichprovided for the prudent use of public funds,it was in public interest that a referendum forthe amendment of the Constitution be held atthe same time as the general elections. Theargument on the management o public unds

was attractive but it was not at the level of a prima facie case.

c) Whether Part V o the Elections Act, No 24 o2011, was unconstitutional. That argumenton unconstitutionality was not properlydeveloped.

12. The issues raised in the Petition included arguableissues and the Applicant had established theexistence o a prima facie case.

13. The Applicant sought conservatory orderspursuant to the provisions of article 23(3)(c) of the

Constitution o Kenya 2010. for such relie to begranted under that provision, the Applicant wouldbe required to demonstrate that the relief wassought on grounds that a right or undamentalreedom recognized in the Bill o Rights hadbeen denied, violated or inringed or was beingthreatened. However, the Applicant had ailedto show the nexus between the remedy soughtand a breach o a undamental right or reedomrecognized in the Bill o Rights.

14. The Applicant was also required to demonstratethat the conservatory orders were necessary

and that the ailure to grant conservatory orderswould prejudice him. The Applicant had ailedto demonstrate that the orders sought wouldpreserve his interests and rights in the popularinitiative and that the ailure to grant the orderswould mean that the subject matter o his Petitionwould be adversely impacted on.

15. An application for conservatory orders would needto be made at the earliest time possible. Where aparty waited until the last minute to bring such anapplication, the court could decline to grant the

orders sought.

Application dismissed.

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97

The Claimant sought or reinstatement o the Grievant,all salaries and allowances which the aggrieved lost asa result of the uncalled for dismissal, compensationor loss o employment, unair connement, unairprosecution, humiliation and embarrassment in fronto the public and his amily members.

Issues:

i. Whether acquittal in a criminal case againstan employee deprived the employer of theright to rely on the same acts relating tothe charged oence in justiying summarydismissal o an employee.

ii. Whether the aggrieved was entitled toreinstatement upon acquittal of a criminaloence.

iii. Whether the procedure for summary dismissalwas fair and what was the appropriate remedyor the aggrieved.

Employment Law - termination of employment-summarydismissal-termination of employment without notice ongrounds of gross misconduct-termination of employmenton commission or suspicion of an employee havingcommitted a criminal offence against the employer-whether acquittal in a criminal case against an employeedeprived the employer of the right to rely on the same

facts relating to the charged offence in justifyingsummary dismissal of an employee-whether theaggrieved was entitled to reinstatement upon acquittal ofa criminal offence- whether the procedure for summarydismissal was fair and what was the appropriate remedy-Employment Act,2007,sections 41,43,44 and 45.

Held:

1. It was the duty o the employer under sections 43and 45 o the Employment Act, 2007, to establish

the validity and correctness of the reason fortermination o employment.

2. Employers were not limited in initiating workplacedisciplinary proceedings against employees bypolice investigations and criminal trials againsttheir employees which could be initiated by publicauthorities, based on the same acts.

3. The individual contract o employment, thecollective agreement, policy and proceduredocument, the letter of suspension, or the law towhich the employment relationship was subject,

could join the public criminal process to theprivate disciplinary process, so that a nding onot guilty in the public process, was imposed onthe disciplinary process.

4. In the absence o such workplace instruments, theemployer had no reason to wait for the outcomeo the criminal process beore taking disciplinaryaction against a delinquent employee, or adoptthe outcome o the criminal process as the logicalresult o the private disciplinary process.

5. Conversely, an employee under such disciplinaryprocess would have no expectation that therelated criminal process, where it culminated inan acquittal, exonerated the employee rom allculpability or the employment oence.

6. Police investigations and criminal proceedingswere public processes, undertaken by publicauthorities to saeguard public order while thedisciplinary process was essentially a private

process, by a private enterprise, aimed atprotecting the private interest o the enterprise.The standards o proo in the two processes weredierent. The criminal trial against the aggrievedrequired the prosecution to establish its casebeyond reasonable doubt while at the workplaceall the employer was required to have werereasonable and sucient grounds to act, more orless on the balance o probabilities.

7. The criminal case against the aggrieved came to acropper as did most criminal cases in Kenya, due

to poor preservation and presentation of evidenceby the prosecuting authorities. The police did nottake the cell phone records of the accomplices,photographs which were allowed at the IndustrialCourt could not be produced at the criminal trialbased on evidential restrictions, and evidence ofCCTV camera was not led. The aggrieved in theend was ound not guilty, because o ailure by theprosecution to meet the high standards o proorequired in the criminal trial.

8. The above pieces o evidence on the other hand,would not be necessary to establish the fairnessand validity of termination, under section 43, 44,and, 45 o the Employment Act, 2007.

9. The nding o a prima facie case against anemployee at the criminal trial would be strongevidence of the employee’s culpability for theemployment oence at the workplace, consideringthe lower standards of proof required in theworkplace to justiy termination. The court wassatised that the Respondent had valid reasonsin summarily dismissing the aggrieved romemployment, as required under the EmploymentAct, 2007.

10. Section 41 o the Employment Act, 2007 requiredthe employer to explain to the employee the

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13. The terms and conditions o employmentprescribed in individual and collective employmentagreements ought to be consistent with theEmployment Act, 2007. Employees had the rightto be heard beore termination, regardless o thenature o the termination notice. The Respondentmisapprehended Clause A5 o the CBA to justiyon-the-spot termination, without regard toprocedural protections granted to the aggrievedunder Section 41 o the Employment Act, 2007.Hence, the Respondent failed the fairness test, onaccount o the procedure adopted.

14. The Respondent was able to demonstrate airand valid reason or termination o the Grievant’scontract o employment. The Grievant concededthat the activities over which he was investigatedand charged eroded the qualities o trust andcondence, which were the cornerstones o anemployment relationship.

15. Thereore, it would be irresponsible andunreasonable o the court to grant an orderreturning the aggrieved to the Respondentbecause his presence there would not foster trustand condence between him and the Respondentand would by extension, shake the condence andtrust o the Customers in the Respondent Bank.

Claim allowed in part and the Grievant awardedKshs.399,440 as compensation for lack of hearingbefore summary dismissal.

charges against the employee, in a languageunderstood by the employee. The employee hadthe right to be accompanied to the disciplinarysession by a workmate or shop floor level tradeunion representative. Any representations madeby the employee or the person accompanyinghim to the session, ought to be considered by theemployer beore a decision could be taken.

11. The aggrieved was not accorded the minimumprocedural protections. There was no hearing inany orm. Although the Respondent alleged tohave issued the aggrieved with a letter to showcause why disciplinary action could not be takenagainst him, the said letter was issued on thesame date the aggrieved was arrested. Therewas no opportunity to respond to the letter toshow cause because the aggrieved was in policecustody on the date the letter to show cause, andthe letter o summary dismissal was issued.

12. The law no longer contemplated on-the-spottermination of employment on disciplinarygrounds, devoid o a hearing. Summarydismissal was dened under section 44(1) othe Employment Act, 2007 as termination oemployment without notice, or with less noticethan that to which the employee was entitled,under any statutory provision, or contractual

term. The above denition did not suggest thatsummary dismissal was not preceded by a fairhearing. fair hearing ought to always be given,regardless o the length or absence o notice otermination.

High Court Quashes the Directive on Impounding of Private Vehicles with Tinted WindowsRepublic v Inspector General of the National Police Service, David Kimaiyo Ex parte Akitch Okola

Miscellaneous Application No. 183 o 2014High Court o Kenya at Nairobi

G V Odunga, JJuly 11, 2014Reported by Andrew Halonyere & Anne Mbuthia

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windows to be impounded and an order prohibitingthe said Respondent or persons acting under himrom impounding such vehicles.The basis o the application was that the lawexclusively prohibited the use o tinted windowswith regard to public service vehicles, rather than allvehicles, and the Respondent had no power to amend

that law.

Issues:i. What were the grounds upon which

Brief Facts

In light o the rise o insecurity in the country, theInspector General o the National Police Service (theRespondent) issued a directive to the effect that allvehicles with tinted windows be impounded withimmediate eect.

The Applicant brought judicial review proceedingsseeking an order o certiorari to remove in the courtor the purposes o being quashed the Respondent’sdirective ordering private vehicles with tinted



99

legal basis.

3. Whereas there was an obligation placed on theexecutive to protect the lives and properties o thecitizens and residents o Kenya, that obligation

had to be undertaken in accordance with the lawand any attempt to exercise extra-legal powersunder the guise o perormance o Constitutionalobligation would have come to naught as thecourt would not have hesitated to thwart suchattempts. Thereore, where the law exhaustivelyprovided or the jurisdiction o a body or authority,the body or authority had to operate withinthose limits and ought not to have expanded its jurisdiction through executive crat or innovation.

4. The courts would be no rubber stamp o the

executive and i Parliament gave great powersto the executive, the courts had to allow them toit but, at the same time, they had to be vigilantto see that the executive exercised them inaccordance with the law. The executive had to actwithin its lawful authority and an act, whether itwas o a judicial, quasi-judicial or administrativenature, was subject to the review o the courtson certain grounds. The executive had to act ingood aith. Extraneous considerations ought notto have inluenced its actions and it ought not tohave misdirected itsel in act or law.

5. By directing that the vehicles with tinted windowsbe impounded, the Inspector General o theNational Police Service was in eect imposingpenal sanctions on those who would violate thedirective. Where the provisions o an enactmentwere penal, they had to be construed strictly. Insuch circumstances one ought not to have doneviolence to its language in order to bring peoplewithin it, but ought rather to have taken carethat no one was brought within it who was notbrought within it in express language. (TanganyikaMine Workers Union v The Registrar of Trade Unions(1961) EA 629).

6. A strict reading o rule 54A o the Trac Rulesclearly showed that private vehicles had not beenbrought within the ambit o the rule. To havepurported to bring the said vehicles within theambit o the rule without amending the same wasobviously the wrong route to ollow in an attemptto secure the country.

7. In issuing the directive that all vehicles with

tinted windows be impounded without makinga distinction between public service vehiclesand private ones, the Respondent had obviouslypurported to exercise powers he did not have. The

administrative actions could be subjected to judicial review?

ii. Whether any law prohibited the driving oprivate vehicles tted with tinted windows orwindscreens.

iii. Whether by directing that privately ownedvehicles with tinted windows be impoundedthe Inspector General o the National PoliceService purported to amend rule 54A (1) of theTrac Rules that prohibited the use o tintedwindows with regard to public service vehiclesand whether he had the power to do so.

Judicial review - certiorari and prohibition - grounds for judicial review orders on administrative actions- wherethe Inspector General of the National Police Service

issued a directive for the impounding of all vehicles ttedwith tinted windows- whether any law prohibited thedriving of private vehicles tted with tinted windows orwindscreens- whether by directing that privately ownedvehicles with tinted windows be impounded the InspectorGeneral of the National Police Service purported toamend rule 54A (1) of the Trafc Rules- whether theInspector General of the National Police Service had the power to amend the said Rules-Trafc Rules, rule 54A(1)

Held:

1. The grounds upon which administrative actionwas subject to control by judicial review couldconveniently be classied under three heads.These were illegality, irrationality and proceduralimpropriety. Illegality meant that the decision-maker had to correctly understand the law thatregulated his decision-making power and had togive eect to it. Irrationality applied to a decisionwhich was so outrageous in its deance o logicor of accepted moral standards that no sensibleperson who had applied his mind to the questionto be decided could have arrived at it. Proceduralimpropriety meant failure to observe basic ruleso natural justice or ailure to act with proceduralfairness towards the person who would beaected by the decision. (Per Lord Diplock inCouncil for Civil Service Unions v Minister for CivilService (1985) A.C. 374, at 401D)

2. It was clear rom rule 54A(1) o the Trac Rulesthat only public service vehicles were prohibitedrom being driven or operated when tted withtinted windows or tinted windscreens. The courthad not been referred to any provision of the lawwhich extended the prohibition under that rule toprivate vehicles. Without any such legal authority,the Respondent gave the directives without any

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Research and Development Department


African Network For Animal Welfare (ANAW) V The Attorney General of The United Republic of Tanzania.Reerence No 9 o 2010

Before: Jean-Bosco Butasi, PJ, Isaac Lenaola, DPJ, John Mkwawa, J.June 20, 2014

Brief Facts

The Applicant, Arican Network or Animal Welare

(ANAW),a Charitable Pan-Arican animal welare andcommunity-centered organization registered as aNon-Governmental Organisation in Kenya sought tochallenge the proposed action by the Governmento the United Republic o Tanzania to construct andmaintain a road known as the “Natta-Mugumu –Tabora B-Kleins Gate – Loliondo Road, across thenorthern wilderness o the Serengeti National Park.

This road was intended or the use o the generalpublic with all the attendant consequences to theenvironment, generally.

Beore the Reerence was led, 53 km earth roadexisted between Tabora B Gate and Kleins Gate withinSerengeti National Park and only 5 km o that roadwas paved with gravel or murram. It was mostly usedby tourists and Tanzania National Parks Authority(TANAPA) ocials and any other person who wantedto do so had to obtain special authorization fromSerengeti National Park’s Management to use it.

The move by the Government to construct the roadaccording to the Applicants would have deleteriousenvironmental and ecological eects and was likelyto cause irreparable and irreversible damage to thedelicate ecosystem o the Serengeti and adjoiningnational parks such as the Masai Mara in Kenya.

They also claimed that United Republic o Tanzania’sactions were a violation the EAC Treaty and itsobligations in respect o Serengeti which had beendeclared a “World Heritage Property” o “outstandingUniversal value” according to the United NationsEducational, Scientic and Cultural Organization(UNESCO) and thereore its protection andconservation was a matter o international concern.

The respondents on the other hand claimed that the

road was already in existence and in use and that itwas merely being upgraded. Its use according to themhad no negative impact on the Serengeti ecosystemand in upgrading ,all negative environmental impacts

were mitigated.

The applicant sought declaratory, injunctive and

restraining orders against the Respondent.Issues:

i. Whether the Reference was bad in law as itsought to enorce a part o the Treaty whichwas yet to be ratied by all Partner Statesthus unenorceable in law.

ii. Whether the Applicant had locus standi toinstitute a reerence premised on allegedviolations o International Conventionsand Declarations on the environment andnatural resources.

iii. Whether the Respondent intended toupgrade, tarmac, pave, realign, create orcommission the trunk road-Serengeti SuperHighway.

iv. Whether the disputed road existed and wasin use.

v. Whether the proposed constructioninringed Articles 5,8 and 111 o the EACTreaty and International Instruments.

vi. Whether the Applicant was entitled to the

prayers sought

International Law - treaties-ratication of treaties-operationalization of certain parts of a treaty througha protocol-protocol to operationalize chapter 19 of thetreaty-whether the Reference was bad in law as it soughtto enforce a part of the Treaty which was yet to be ratiedby all Partner States thus unenforceable in law-Articles111-114, Article 151 (1),152,153 (1)of the Treaty for theEstablishment of the East African Community.

Environmental Law - environmental impact assessment-

impact of construction of a superhighway acrossa national park-whether the proposed constructioninfringed Articles 5, 8 and 111 of the EAC Treaty andInternational Instruments.

Reported By Linda Awuor & Diana O. Kerubo

East Arican Court o Justice (EACJ)renders construction o a superhighwayacross Serengeti National Park unlawul






Treaty for the Establishment of the East AfricanCommunity.Article 5(3) (c)for purposes set out in paragraph 1 o this Article,

and as subsequently provided in particular provisionso this Treaty, the Community shall ensure:the promotion of sustainable utilization of thenatural resources o the Partner States andthe taking o measures that would eectivelyprotect the natural environment o the PartnerStates.

Article 8 (1) (c);The Partner States shall:

co-ordinate through the institution o theCommunity, their economic and other policiesto the extent necessary to achieve theobjectives o the Community.

Article 111(2) Action by the Community relating to the environmentshall have the ollowing objectives: To preserve, protect and enhance the qualityof the environment;Article 151 (1)The Partner States shall conclude such protocolsas may be necessary in each area of co-operationwhich shall spell out the objectives and scope othe institutional mechanism for co-operation and

integration.Article 152This Treaty shall enter into orce upon raticationand deposit o instruments o ratication with theSecretary-General by all Partner States.Article 153 (1)This Treaty and all instruments o ratication anddeposit of instruments shall be deposited with theSecretary General who shall transmit certied truecopies thereo to all the Partner States.Article 11 of the Vienna ConventionThe consent o a State to be bound by a treaty may

be expressed by signature, exchange o instrumentsconstituting a treaty, ratication, acceptance, approvalor accession or by other means i so agreed.

Held:

1. The Treaty was signed on 30th November 1996and there was no evidence that Tanzania or anyother Partner State never ratied it or ratied itwith exceptions. Signature and ratication weretwo different and distinct steps in the treaty -making process and that ratication was the nalconsent by a Partner State to be bound by theprovisions o a treaty. Thereore, Tanzania havingsigned and ratied the Treaty, it was clearly boundby each provision therein.

2. Article 151 (4) o the Treaty provided that theAnnexes and Protocols to the Treaty ormed anintegral part o the Treaty and by its very nature, aprotocol under Article 151 (1) o the Treaty spelledout the objectives and scope o, and institutionalmechanisms or co-operation and integrationbut ailure to enact a protocol ought not haveousted the obligations placed on a Partner Stateby clear and unambiguous provisions in the bodyo the Treaty. Chapter Nineteen was as bindingon Tanzania as to other Partner States with orwithout a protocol in that regard.

3. Where a Partner State ailed to honourcommitments made to other internationalorganizations, with appropriate acts placedbefore the Court, a decision to ensure compliance

would be made in avour o a party that t thedescription in Article 130 (4) and which had agenuine complaint in that regard. In act, theOrganisation o Arican Unity ( now the AricanUnion) , the United Nations and its agencies andother international organizations, bilateral andmulti-lateral development partners interested inthe objectives o the Community were specicallynamed in that regard and Partner States wereimplored to accord special importance to co-operation with those agencies.In appropriatecircumstances, a case would be made i a Partner

State acted to the contrary.The Court could notpurport to operate outside the framework of theTreaty and usurp the powers o other organscreated or the enorcement o obligationscreated by other instruments including theArican Charter and Protocol [Democratic Party vsSecretary General, East African Community and 4Others.]

4. The Applicant’s case was not alleged violations othe International Declarations and Conventionsper se, but inringement o Chapter Nineteen othe Treaty, a matter well within the mandate othe Court and the Applicant had locus standi underArticle 30(1) o the Treaty to bring proceedings inthat regard.

5. The Respondent intended to upgrade the Natta-Mugumu-Tabora B – Kleins Gate-Loliondo Roadrom its current earth status. There was howeverno evidence that it intended to re-align it butcertainly upgrading involved construction andcommissioning thereo.

6. There was no doubt that the United Republic oTanzania had initially intended to construct a

bitumen road rom Natta through Mugumu toTabora B Gate at Serengeti and 53 kms o it wouldhave had to go through the Park to Kleins Gateand onwards to Loliondo. The intention, according



Research and Development Department 103


to the report by Inter-Consult Ltd, was to providean all-weather road linking the district town oMugumu and Loliondo to the regional capitalso Musoma and Arusha and thereby stimulatingsocio-economic growth o 2.3 million peopleliving in the districts o Serengeti and Ngorongorowhose respective capitals o Mugumu andLoliondo would be served by the bituminized road.

7. The Government took into account the concernsraised on the negative impacts on the environmentand did not commence the construction of theproposed road. However, i the initial proposalwas implemented, then the adverse effects wouldnot be mitigated by all the good that the road wasintended to bring to the 2.3 million people residingin the aected areas o Mugumu- Loliondo. On

the obligations imposed on Tanzania by Articles5(3),8(1)(c),111(2) as well as 114(1) o the Treaty,there was no doubt that if implemented, the roadproject as initially conceptualized, would be inviolation o the Treaty to that extent only.

8. The Government o the Republic o Tanzaniawas lawfully entitled to construct roads withinits territory, where it ailed in its obligations to theconservation and protection of the environmentwithin the meaning o Articles 5(3) (c), 8(1) (c)and Article 111(1) as well as Article 114(1), thena declaration would be made in that regard. In

the instant Reference, it was obvious that whileits actions had the potential to cause irreversibledamage to the Serengeti environment andecosystem, once UNESCO and other bodies,including the Applicant intervened, it did notproceed with the road project and instead retreatedto the drawing board and was conducting urtherstudies on it. However, i allowed to proceed withthe road project as previously conceptualized, itwould be in breach o the Articles o the Treaty.

9. Regarding the prayer by the Applicant seeking to

restrain the Respondent rom maintaining anyroad or highway across the Serengeti NationalPark, it was clear that i the road project wasimplemented as originally planned, the eectswould be devastating both or the Serengetiand neighbouring Parks like the Masai Mara inKenya There was thereore need to stop uturedegradation without taking away the Respondent’smandate towards economic development of itspeople.

10. The Applicant sought a permanent injunctionrestraining the Respondent rom maintaining any

road or highway across any part o the SerengetiNational Park. This was practical and proper toensure that the United Republic o Tanzania as aPartner State stayed within its obligations under

the Treaty. However the nal orders would betailored so as not to tie its hands in programmesthat it had designed or its people. This waswithin the courts mandate under Rule 68(5) o theCourt’s Rules o Procedure.

11. With regards to costs, the litigation was inthe wider public interest and for the sake ofsustainable uture or the environment. Thereore,the Applicant had no direct benet in the nalorders and so each party was to bear its owncosts.

A declaration was issued that the initial proposal or the proposed action by the Respondent to construct a roadof bitumen standard across the Serengeti National Parkwas unlawful and infringed Articles 5(3)(c),8(1)(c),111(2)and 114(1) of the Treaty.

A permanent injunction was issued restraining theRespondent from operationalizing its initial proposal or proposed action of constructing or maintaining a roadof bitumen standard across the Serengeti National Parksubject to its right to undertake such other programmesor initiate policies in the future which would not have anegative impact on the environment and ecosystem inthe Serengeti National Park.

Each party tobear its own costs.

Relevance to KenyaKenya is a Partner State to the East AricanCommunity. It is also bound by various treaties andconventions it raties by virtue o Article 2(5) and (6)o the Constitution o Kenya including those that seekto protect and preserve the environment.

The case is also valuable in the Kenyan context asit is acknowledged and the court recognized that theconstruction o the superhighway was likely to aectKenya’s Masai Mara.

Keeping in mind that both preservation and protectiono the environment and development programssuch as construction of roads are considered tobe of paramount importance, there arises a needor Partner States to assess and balance the needfor development on the one hand and effect ofdevelopment and its potential to inflict irreparableharm to the environment and the need to protect theecosystem on the other.

Environment has been considered in this caseas a matter o public and international interest.Governments cannot be seen to unduly avour

development interests at the expense o the overridinginterest to preserve and protect the ecosystem forthe good o the public and or the sake o uturegenerations.



Research and Development Department104


Brief Facts.While campaigning or a second term, PresidentGeorge W. Bush was scheduled to spend the night at aJacksonville, Oregon, cottage. Local law enorcementocials permitted a group o Bush supporters and a

group o protesters to assemble on opposite sides oa street along the President’s motorcade route. Whenthe President made a last-minute decision to havedinner at the outdoor patio area of the JacksonvilleInn’s restaurant beore resuming the drive to the cot-tage, the protesters moved to an area in ront o theInn, which placed them within weapons range o thePresident. The supporters remained in their originallocation, where a two-story building blocked sight o,and weapons access to the patio.

The petitioners, two Secret Service agents responsible

or the President’s security(the agents), directed localpolice to clear the area where the protesters hadgathered, eventually moving them two blocks away toa street beyond weapons reach o the President. Theagents however did not require the guests alreadyinside the Inn to leave, stay clear o the patio, or gothrough a security screening. Ater the Presidentdined, his motorcade passed the supporters, but theprotesters, now two blocks from the motorcade’sroute, were beyond his sight and hearing.

The protesters sued the agents or damages, alleging

that the agents engaged in viewpoint discriminationin violation o the first Amendment when they movedthe protesters away rom the Inn but allowed thesupporters to remain in their original location.

They alleged that, in directing their displacement, theagents acted, not to ensure the President’s saety, butto insulate the President rom their message. Theyalso argued that, had the agents’ proessed interestin the President’s saety been sincere, the agentswould have screened or removed from the premisespersons already at the Inn when the President arrived.

They urther asserted that the agents violated clearlyestablished ederal law by denying them “equalaccess to the President.”

The protesters supplemented the complaint with

allegations that the agents acted pursuant to anunwritten Secret Service policy o working withthe ‘Bush’ White House to inhibit the expression odisavored views at presidential appearances. TheCourt o Appeals held that the agents were not entitled

to qualied immunity because the Court’s precedentmade clear that the Government could not regulatespeech based on its content.

Issues:i. Whether there was a violation of a clearly

established first Amendment right: reedomo expression and assembly based on theagents’ decision to order displacement o theprotesters.

ii. Whether the doctrine o qualied immunitywould apply to the security agents.

Constitutional Law-bill o rights-reedom o assembly-whether there was a violation of a clearly establishedfirst Amendment right based on the security agents’decision to order displacement o the protesters-firstAmendment the Constitution o United States.

Constitution of United StatesAmendment IThe First Amendment guarantees freedomsconcerning religion, expression, assembly, and theright to petition. The right to freedom of speechallows individuals to express themselves withoutinterference or constraint by the government.Freedom of assembly involves the right to peaceablycome together, express, pursue or defend commoninterests and to petition the Government for redressof grievances.

Held:1. The doctrine of qualied immunity protected

government ocials from liability for civildamages unless a plaintiff pleaded factsshowing: that the ocial violated a statutory or

constitutional right;

i. that the right was ‘clearly established’ at thetime of the challenged conduct[Ashcroft v.

US Supreme Court upholds qualied immunity for Secret Service Agents shielding thePresident from demonstrators.

US Supreme Court.David Leon Riley v. California.

Tim Wood and Rob Savage v. Michael MossCertiorari to the United States Court o Appeals or the Ninth CircuitBefore: Ginsburg J.

May 27, 2014

Reported by Linda Awuor & Diana O. Kerubo







government demonstrators. Even accepting astrue the submission that Secret Service agents,had at times assisted in shielding the Presidentfrom political speech, this case was scarcely onein which the agents acted without a valid securityreason.

4. The protesters were at least as close to thePresident as were the supporters when themotorcade arrived at the Jacksonville Inn.When the President reached the patio to dine,the protesters, but not the supporters, werewithin weapons range o his location. Given thatsituation, the protesters could not plausibly urgethat the agents had no valid security reason torequest or order their eviction.

5. Individual government ocials could not be held

liable in a Bivens suit [Bivens v. Six Unknownfederal Narcortic Agents,403 U.S. 388(1971)]which recognized the implied right o actionagainst ederal ocers or violations o the fourthAmendment, unless they themselves actedunconstitutionally. The court thereore declined toiner rom alleged instances o misconduct on thepart o particular agents an unwritten policy o theSecret Service to suppress disavored expression,and then to attribute that supposed policy to alleld level operatives.

The agents were entitled to qualied immunityThe Court of Appeal’s judgment was reversed.

Relevance to Kenya.Qualied immunity is fairly a new doctrine in Kenya. Thiscase can help establish the doctrine as a defence for public ofcers especially the police and security agentsfor acts done reasonably.

The case also introduces the right to equal access to thePresident.

al-Kidd, 563 U. S.];and

ii. under the governing pleading standard,the complaint must contain sucientfactual matter accepted as true, to state a

claim to relief that is plausible on its face[Iqbal,556 U.S.,678].

2. The constitutional challenge to Secret Serviceactions had previously been addressed bythe court in (Hunter v Bryant,502 U.S.224)where it held that qualied immunity shieldedthe agents from claims that the arrestedviolated the plaintiff’s right under the Fourth,Fifth, Sixth and Fourteenth Amendment.Accommodation for reasonable error was

nowhere more important than when the specterof Presidential assassination was raised. Thus,the overwhelming importance of safeguardingthe President was recognized in other contextsas well.

1. There was no previous decision which would alertSecret Service agents engaged in crowd controlthat they bore a first Amendment obligation tomake sure that groups with conlicting views wereat all times in equivalent positions. Nor would themaintenance of equal access make sense in the

situation the agents conronted, where only theprotesters, not the supporters, had a direct lineo sight to the patio where the President wasdining. The protesters suggested that the agentscould have moved the supporters out of themotorcade’s range as well, but there would havebeen no security rationale or such a move.

2. A map of the area showed that because of theprotesters’ location, they posed a potential securityrisk to the President, while the supporters, becauseo their location, did not. Sta, other diners, andInn guests were on the premises beore the agentsknew o the President’s plans, and thus could nothave anticipated seeing the President, no lesscausing harm to him. The agents also could keepa close watch on the relatively small number ofpeople already inside the Inn, surveillance thatwould have been impossible for the hundreds ofpeople outside the Inn.

3. A White House Manual directed the President’sadvance team to work with the Secret Serviceto designate a protest area preerably not in theview o the event site or motorcade route. This

manual guided on the conduct o the politicaladvance team, not the Secret Service, whose ownwritten guides explicitly prohibited agents romdiscriminating between anti-government and pro-



106





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