Bench Bulletins - Issue 19

The Bench Bulletin
A Publication of The National Council for Law Reporting

A service state corporation in the Judiciary.
The Bench Bulletin is the denitive intelligence brieng for Kenyas judicial ofcers, the law practitioner, managers and the business people. It is a quarterly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices.
Transforming Legal Information into Public Knowledge
Issue 19: April - June 2012
Address by the Chief Justice at the Launch of the Judiciary Transformation Framework on May 31, 2012 at KICC Grounds
Pg 77
Pg 11
Pg 82
............and much more......
Thanks to all Our Partners
Kenya Law Reports
Bench Bulletin
The Hon. Dr. W.M. Mutunga, D.Jur., S.C., E.G.H. Chief Justice of the Republic of Kenya, President of the Supreme Court & Chairman, National Council for Law Reporting.
THE NATIONAL COUNCIL FOR LAW REPORTING THE BOARD OF THE COUNCIL The Hon. Justice (Dr.) W.M. Mutunga, D.Jur., S.C., E.G.H Chief Justice, President of the Supreme Court & Chairman, National Council for Law Reporting.
The Hon Mr Justice P. K. Tunoi
Judge of the Supreme Court

The Hon Lady Justice J. W. Lesiit
Ms Florence Muoti Mwangangi
Law Society of Kenya

Mrs. Flora Mutua, Snr. Management Analyst Directorate of Personnel Management, Ministry of State for Public Service Mr. Christopher Ombega,
Judge of the High Court

Mrs. Gladys Boss Shollei
Chief Registrar, Judiciary of Kenya

Prof. J. Otieno Odek
Dean, School of Law, University of Nairobi

Mr. Antony Otengo Ombwayo
Senior Assistant Inspector General Inspectorate of State Corporations

Mr. Jeremiah M. Nyegenye ,
Attorney-Generals Representative
Mr. P. Sang
Goverment Printer's Representative

Mr. Evans Monari
Head, Office of Legal Counsel The Office of the Clerk of the Kenya National Assembly
Mr. M.M. Murungi
Law Society of Kenya
Editor/C.E.O
Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the omission of any information. Issue19 | April - June 2012 1
Issue15: April-June 2011
Contents
Regulars
1 3 4 5
Editors Note Citizen Jane What they said NCLR Board members
Bench Bulletin April - June 2012 Issue 19
Features
6 11 16 18 29 65 69 71 77 79 82
Keynote speech for the Africa and International Law Conference Albany Law School, at 9.15 on April 13, 2012 Address by the Chief Justice at the Launch of the Judiciary Transformation Framework on May 31, 2012 at KICC Grounds NCLR joins Global Forum on Law Justice and Development NCLR-KCDF Partnership: Community Development through Suppor t and Mentorship Report on-E-Accessibility Workshop for persons with disabilities held on 10 &11th May, 2012 at the Laico Regency, Nairobi. Laws of Kenya and Editorial Departments attend Training on electronic publishing for Print. Legal Definition of Disability A Comparison between the Constitution of Kenya and the East African Treaty The National Council for Law Reporting partners with MRYG For CSR activities Parenting: How much time do you spend with your children? Talent beyond Law Reporting: Winners Uwazi football tournament, 2012
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Departmental Reports
21 24 33 75
86 89 90 94 115
Strategic planning quality assurance and performance department Editorial department Laws of Kenya depatment Information communication technology (ICT) department
Cases
Court of Appeal
Feature Case Supreme court cases High Court Cases A compilation of summaries of selected cases on emerging Jurisprudence A compilation of summaries of selected cases on the Interpretation of the new constitution of Kenya In the East African Court of Justice appellate division at Arusha In the Constitutional Court of South Africa The Supreme Court of the United Kingdom EDITOR Michael Murungi EDITORIAL ASSISTANT Monica Achode CONTRIBUTORS Michael Murungi Esther Nyaiyaki Monica Achode Cornelius W. Lupao Andrew Halonyere Njeri Githanga Emma Kinya Wambui Kamau Christian B. Ateka Nelson K. Tunoi Wanjala Sikuta Phoebe Ayaya Monicah Mwangi Brenda Orau Stanley Mutuma Yvonne Kirina Martin Mbui
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DESIGN AND LAYOUT Catherine Moni John Muriuki Geoffrey Andare PROOFREADERS Phoebe Ayaya Innocent Ngulu
132 147 153 154
Editors Note
Our Esteemed Readers, First, my apologies for the delay in the release of this edition. I hope that the breadth of its content will compensate for that. Evid ently, the legal and judicial space has been in a state of flux quite expectedly so sinc e the promulgation of the Constitu tion of Kenya, 2010. In the wake of this new constitution al dispensation is a lot to write abo ut developments in the transformation of the Judiciar y, and of course the emerging juris prud ence from the interpretation and application of the new constitution. At the Council, we are also underta king an editorial transformation exe rcise whose purpose has been best captured by The Hon . Justice (Dr.) W.M. Mutunga, the Chief Justice: [T] he Council is now discharging its mandate in the context of a country that has enacted a new Constitution and a Judiciar y that is going through a phase of tran sformation. Its role in the creation of a robust, indigen ous, progressive and patriotic juris prud ence cannot be underestimated. In this edition we have featured an article by Ms. Monica Achode, who is the Team Leader for the Editorial Department, which has more information on the key asp ects of the editorial transformation. The transformation is inspired by The Hon. The Chief Just ice and certain recommendations expressed to the Council by The Hon. Justice (Prof.) JB Ojwang, Judge of the Supreme Court and it is info rmed by the advice of the Council s Board of Directors. We are re-engineering the Council s role in the nurturing of a robust, patriotic and indigenous jurisprudence by effectively mon itoring and reporting on judicial opin ions that contribute to the development of jurisprudenc e. The editorial emphasis will not be on the hierarchical standing of a court but on the plac e of the courts judicial opinion in the place of existing jurisprudence on the subject at han d. The Council will also partner with the Judi ciar y Training Institute, the Bar, the academia, civi l society and other institutions in stim ulat ing scholarly discourse and improving the quality and quantity of scholarly legal rese arch mat discourse will not only focus on erial. The Kenyan jurisprudence but also plac e that jurisprudence in the context of comparative inte rnational jurisprudence, not merely for the purpose of benchmarking against it but in order for Kenyas emerging jurisprud enc e to serve as a product for export to other jurisdict ions. In reclaiming lost jurisprudence - past judicial opinions that are key to the development of Kenyan jurisprudence that may not have been given reporting con side ration - we are engaging a Consulting Editor to sup plement our team of Law Reporters and work with us in identifying, collecting and reporting these opinions. Finally, we will continue to avail ourselves of all the opportunities for interacting with and obtaining the feedback of Judges and the judiciar y community at larg e.
Issue19 | April - June 2012
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C :M, Murungi. illustration: E. Obare
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WHAT THEY SAID
More importantly, the Council is now discharging its mandate in the context of a country that has enacted a new Constitution and a Judiciary that is going through a phase of transformation. Its role in the creation of a robust, indigenous, progressive and patriotic jurisprudence cannot be underestimated.
The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH, Chief Justice, President of the Supreme Court of Kenya & Chairman of the National Council for Law Reporting, in his foreword to the 2011 NCLR Annual Report - June 2012.
The uncontestable object of reporting court decisions is to extract the essence of juristic thought and to lay it out as one of the beacons for the legal path for conflict resolution, in the advancement of civilized society.
The Hon. Justice (Prof.) J.B. Ojwang, Judge of the Supreme Court of Kenya, in a letter making certain recommendations for a review of the Council's editorial policy - April 2012.
"Some of the important principles which apply to the interpretation of a constitution are that: a court should avoid a construction that produces an absurd, unworkable or impracticable result; a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result; and that the court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise."
Court of Appeal Justice[s] EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A, in Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR
The Hon. Mr Justice Justice Erastus M Githinji
The Hon. Lady Justice Martha Koome
The Hon. Lady Justice Hannah M Okwengu
The Hon. Lady Justice K. H. Rawal
The Hon. Mr Justice David K Maraga
Feature
KEYNOTE SPEECH FOR THE AFRICA AND INTERNATIONAL LAW CONFERENCE ALBANY LAW SCHOOL, NEW YORK,USA AT 9.15 ON APRIL 13, 2012
By: The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH, Chief Justice, President of the Supreme Court of Kenya
(*These remarks were also submitted in the United States' House of Representatives through Congressman Steve Cohen of Tennessee and are part of the Congressional Record for April 25 2012 pp. E652-E654)
Fellow Africans and our Friends
thank the Albany Law School and Professor James Gathii for inviting me to this conference. I am delighted to be among so many practitioners and scholars of international law who share a commitment to Africa. There is a very special reason for me to be delivering this address today. April 13th was the late President -- Mwalimu Julius Nyereres birthday. He would have been 88 today. Nyerere was a special and inspirational leader he believed in the solidarity of the African people as well as in human dignity. Nyerere was interested in both constitutional law and international law. There is a picture of him as a student at Edinburgh holding a copy of Diceys Law of the Constitution. His interest was both scholarly and practical. It fell to him to develop a constitution suitable for his countrywhere his commitment to a one party state, although intended to increase democracy, must have come sorely in conflict with the Diceyan preference for the rule of law. As far as international law goes, he was greatly concerned to promote African unity, redefine the relationship between Africa (indeed the whole of the South) and the Westas well as deal with Tanzanias colonial legacy, including that relating to treaty succession. He ruled out automatic succession, so the newly independent country was not burdened with unfair and unequal obligations.
I also felt honored as I read the biographies of the other participants in this conference: they read like a Whos Who?of international law and Africa. One only has to look at the conference program to see the broad depth of international law work relating to Africa. The papers submitted are impressive. I am looking forward to the deliberations here and the opportunity to get to know you and to talk about our common commitments and concern about Africa. My challenge to you always is to continue making transformative contributions in your work on Africa and international law. This will at times require those of you who are based outside Africa to return home and help contribute to the growing use and practice of international law in Africa. My focus this morning is the new Constitution of Kenya and the role of the judiciary within it. First I want to tell you about that constitution and the vision that it espouses. We are now engaged in the challenging but difficult task of implementation in which a key role has been assigned to the judiciary. The judiciary has already made a good start on a progressive, indeed in some respects, radical jurisprudenceand now enjoys great public support. The Constitution is one of the most progressive in the world. It was overwhelmingly approved in a referendum as a result of the most consultative and participatory processes of Constitution making anywhere in the world. The long period before the Constitution was upheld in the referendum was characterized not only by delays and deadlock, but by a series of governance challenges familiar in many countries of Africa: An absence of a political culture of obedience
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to and respect for rules, and a cavalier treatment, even of constitutional texts; Failed systems including the electoral system; Failed institutions including a corrupt judiciary and police force; A population tortured and inhibited from fulfilling its full potential; Exclusion of women and many groups from full participation in society; Gross manipulation of ethnic, racial, regional, religious, generational, clan, class, and occupational divisions by politicians for their personal ends; Extreme inequality, great poverty and failure of even development; An institutional culture of timidity, even where no threats existed; A society and politics characterized by violence, fragility and instability; and An international community that excelled in perfidy and double standards and that could not be relied upon to consistently support progressive constitutional reforms. The result of the above has been a massive culture and practice of impunity and the marginalization of the constitution. The Constitution, which was, as my old teacher, and one of the leading constitutional scholars in Africa and the world, Yash Ghai is fond of saying, forced upon the rulers by the ruled. Here Yashs reference to rulers means both internal and external rulers for Ghai, the Constitution has to be written to address these ills. The 2010 Constitution of Kenya seeks to incorporate such rules in a number of ways. For example, it constantly emphasizes the sovereignty of the people, and is full of people oriented values. So Article 10 enumerates the national values and principles of governance that bind all state organs as well as everyone who applies or interprets the Constitution or any law or performs any public duty: patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency
and accountability; and sustainable development. I had argued before its promulgation that our constitution should establish a human rights state and society whose vision is radical social democracy. It is my view that this has now happened. It is, therefore, not surprising that there is considerable internal and external resistance to the constitution from people who have a vested interest in bad old habitsexploitation, oppression, tribalism, nepotism and corruption. This increases the responsibility of the judiciary to ensure the enforcement of the constitution, as indeed is envisaged in Art. 20(3), which requires that a court develops the law where the Bill of Rights fails to give effect to a right or fundamental freedom. The extent of my personal pride, sense of responsibility, and hope, as head of the judiciary, can perhaps be judged from the fact that I once wrote a book about efforts for a new Constitution, in the 1990s, in which I said The process of making the new constitution, the credibility of the final document and whether the people would be convinced that they own the new constitution are all issues at the root of the problem of constitution making. It is a fact that the judiciary has not fully implemented the Bill of Rights to protect the rights of the people against encroachment by the executive and state apparatuses. The overhauling of the judiciary and judicial system is also at the root of these issues.
I still believe in the key importance of the judiciary. And the Constitution does give it a central role. Article 259 requires that the Constitution be interpreted in a way that promotes its purposes, values and principles, an obligation placed specifically upon courts and tribunals by Article 159(2) (e). And it provides a practical basis for this central role of the courts by its provisions designed to make them truly accessible, including through the institutionalization of public interest litigation. It destroys old concepts of standing by providing that anyone may bring an action to protect rights or enforce the constitution, even if they have no interest other than that of concerned citizen. It prohibits the charging of court fees for actions to enforce the Bill of Rights. It endorses the practice that the Indian Courts call epistolary jurisdiction the possibility of actions being commenced by informal documentation. And while requiring the rules of natural justice to be observed, it denies the possibility of unnatural justice in the form of procedural technicalities standing in the way of justice. Much of this comes ultimately from the jurisprudence of the
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Supreme Court of India, some by way of the South African Constitution. The judiciary was one of the most criticized of the institutions of the old order. The legacy of the one party state was still discernible in judicial pandering to executive wishes. And I do not mean merely the sort of deference to the legislature that lawyers may legitimately argue about, but judges who would adjourn matters before them to take instructions from State House. The judiciary was one aspect of the machinery of impunity. Simple financial corruption was also rife. And, if you are auctioning your judgment to the highest bidder, it is probably counter-productive to exhibit much legal skill! For many years law reports were not up to date, and legal literature was all but non-existent. Radical measures were needed. And they are found firstly in a process of subjecting all serving judges and magistrates to an examination of their suitability to remain in office. This process is under way, in the hands of an independent body, a process with which I have nothing to do, and on which it is of course improper for me to comment. Secondly, the appointment system was revamped. Now judges are interviewed and nominated by a Judicial Service Commission truly independent of government. The President is to have no discretion but must act on the Commissions recommendation. The Chief Justice and Deputy must be approved by Parliament. I was myself interviewed by the parliamentary committee, on live television, and questioned about, among other things, my finances, my attitudes to certain sensitive issues, my sexuality and my earring! The judiciar y has embarked upon many organizational changes intended to realize the Constitutions vision. These include the recruitment of judges and magistrates and professional administrative staff. Recently we appointed 26 judges to the High Court (that is the court of first instance of unlimited jurisdiction) half of them women. The Court of Appeal now has 7 more judges, 5 of them women. We will recruit 160 Magistrates before the end of May, 2012. We have delinked judicial functions from administrative functions, boldly set out to stamp out corruption in the judiciary while speeding up reforms in computerization and other electronic justice measures. We have achieved some significant progress in reducing the backlog of cases and changing backward judicial culture. The 12 clusters that reflect these reforms, including the creation of progressive, indigenous and patriotic jurisprudence that I touch on later are contained in a write-up named the Judicial Transformation Framework that I will launch in May, 2012.
The constitution also provides for the decentralization and democratization of the judiciary. Unlike previous years when the old constitution made the Chief Justice a judicial autocrat and monarch, under the new constitution I do not control everything from the top. I have already set up a management and leadership committee that is representative and participatory. Organization is of course important, even essential, to make the courts accessible, to end the interminable delays, the strain on the pockets and the patience, and to end impunity and, as far as the courts can, injustice. But I want briefly to emphasize something else. I preside over the Supreme Court. As I understand the reasoning of the Constitution makers when creating this new court, apart from the desire to reintroduce the possibility of a second appeal, was similar to that that motivated the drafters of the South African Constitution when they created the Constitutional Court: to have at the apex of the system a court that would be respected, was committed to the Constitution and could set a new standard, and a new tone. In my view, one of the most important tasks that court will perform will be as a source of a new, highly competent and indigenous jurisprudence. I link this last adjective to the Constitutions value of patriotism. Patriotism (when not being abused as the last refuge of the scoundrel in Samuel Johnsons words) requires putting love of country above love of self. For a judge it does not mean putting country above justice. I conceive that it requires the judge to develop the law, for, as we all know, in the common law system that is what judges do, in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision. But dont get me wrong: by patriotic and indigenous I do not mean insular and inward looking. The values of the Kenyan Constitution are anything but that. We need to learn from other countries. And we need to learn from scholars like this assembled company. We intend to build up a network of interested and highly qualified academics who share our vision. I hope that some of you here will form part of that network. My concern, when I emphasize indigenous is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished. The Kenyan judiciary has, therefore, a great opportunity to develop a robust, indigenous, patriotic and progressive jurisprudence that will give the country direction in its democratic development. This transformative mission is a duty to all judicial
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officers. They have all undertaken a constitutional obligation to undertake it and I have challenged them to make a personal obligation to help accomplish it. Former Justice Krishna Iyer of the Indian Supreme Court expressed the same ambition, in his inimitable style: Jurisprudence must match jurisdiction and jurisdiction must broaden to meet the challenges of the masses hungry for justice after a long night of feudal-colonial injustice.The rule of law must run close to the rule of life and the court, to be authentic, must use native jural genius, people-oriented legal theory and radical remedial methodology regardless of Oxbridge orthodoxy, elitist petulance and feudal hubris. Far from being inward looking, it would be my hope that we could learn from, and even emulate, distinguished courts in other countries, including, for example, the Supreme Court of India and the South African Constitutional Court. The Kenyan courts do not need to be as bold as the Indian apex court: many of its procedural innovations in public interest litigation are already enshrined in our constitution. And I would argue that the types of jurisprudence that that court has been so creative in developing are already part of our constitution. Protection of the environment, recognition of rights of communities especially in land, affirmative action, rights of persons with disability, rights to education, health and foodand the redress of past injustices-- are engraved in our constitutional text. What the first President of the South African Constitutional Court, Arthur Chaskalson, said of their constitution could just as well be said of ours: We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For these reasons, including that our Constitution is couched often in language similar to that of South Africa, I anticipate that we shall learn a great deal from them, though always, as I say, suiting the decisions to our own realities. Upendra Baxi wrote, of Public Interest Litigation
(PIL) , The Supreme Court of India is at long last becomingthe Supreme Court for Indians. For too long the apex court had become an arena of legal quibbling for men with long purses. Now increasingly, the court is being identified by the Justices as well as people as the last resort of the oppressed and bewildered. I would hope that the Supreme Court of my country will be the Supreme Court for Kenyans where the oppressed and bewildered will find justice. But it is not enough for the Supreme Court to shine in jurisprudential terms. Most cases will never get beyond the High Court. The corollary of the decision to create a new, final, court of general, not specifically constitutional jurisdiction, was the desire that courts at all levels could confront constitutional issues and deal with them in a way that fulfills the constitutional dream. We are hoping to raise standards of judging and standards of advocacy, including through the work of the Judicial Training Institute, and by adopting frequent use of written briefs, rather than just skeleton oral arguments. The development of a new jurisprudence must be a collaborative effort between judges at all levels, and practicing and academic lawyers. The internet is making access to precedents much easier, and there is an improvement in the law reporting situation. There is even some sign of a resurgence of interest in writing about Kenyan law. Do add your bit! If I may turn now to the focus of concern of most of you: international law. The Constitution took a bold step and provides that The general rules of international law shall form part of the law of Kenya and Any treaty of convention ratified by Kenya shall form part of the law of Kenya under this Constitution. Thus Kenya has become a monist state rather than a dualist one! The implications of this will have to be worked out over time, as cases come before the courts. I would not have you imagine that Kenyan judges have ignored international law. I know first-hand from Kenyas supercharged civil society that constantly makes claims of international law to hold the government accountable, exemplifies the growing importance of international law in our courts. The courts have often applied the familiar common law approach, and indeed quoted the Bangalore Principles on Domestic Application of International Human Rights Norms, including: 7. It is within the proper nature of the judicial process and well-established judicial
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functions for national courts to have regard to international obligations which a country undertakes whether or not they have been incorporated into domestic law- for the purpose of removing ambiguity or uncertainty form, national constitutions, legislation or common law. 8. However, where national law is clear and inconsistent with the international obligations of the State concerned in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation, which is undertaken by a country. Now, however, the courts have greater freedom. Many issues will have to be resolved: what precisely are the The general rules of international law?; what is the effect of the direct application of a treaty of which the language is not self-executing, such as States Parties shall take all appropriate measures rather than everyone has the right? And what is the effect of a treaty provision that does not fill a gap in domestic law but inescapably conflicts with it? And what if the general rules of international law are exploitative, oppressive and subvert the radical social democratic vision of our constitution? All these questions clearly identify where the scholarship of people like yourselves, will be much appreciated by both bar and bench. I should also like to quote another Bangalore Principle, relevant to my theme of indigenous jurisprudence: 6. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognized and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.
How can we achieve this marriage consistent with international law obligations? Let me also emphasize that Kenya does not intend to be a user of international law, but a producer, shaper and developer of it as well. This is the link to the Nyerere Doctrine where I began. Nyerere refused to accede to existing international rules on treaty succession and came up with his own innovation. Kenyan judiciary will not just import all international legal rules including those which are disempowering to the South as a political and economic category. Instead, as I pointed above in our strategy to create an indigenous, patriotic and progressive jurisprudence, the Kenyan judiciary will use our new constitution to begin a dialogue with international legal communities to nudge the jurisprudence of social justice in a progressive direction. In particular, we have a chance to develop jurisprudence on economic and social rights in ways that are unique to our social and economic development. We intend, therefore, to be able to export progressive jurisprudence to the rest of the world. Finally, let me not give the impression that I am negative about the work of my judicial colleagues. There are many competent and committed members of the bench. Even under the former constitution with its inadequate Bill of Rights (more limitations than rights!) creative judges were doing their best. And now many of them, new and longer established, are responding with enthusiasm to the challenges and opportunities of the new Constitution. I cannot really comment on individual cases none has come before us yet, and some will undoubtedly do so. But I personally feel encouraged by signs of willingness to draw on international instruments, not only treaties, and by reliance on the values including those of Article 10 as Article 259 requires. As we say in Kenya in Kiswahili Asante Sana. We also say Shukrani, shukran and shukria. Thank you very much.
There are many co mpetent and comm itted members of the bench. Even un der the former cons titution with its inadequate Bill of Ri ghts (more limitatio ns than rights!) creative judges wer e doing their best. An d now many of them, new and lo nger established, ar e responding with enthusiasm to the challenges and opportunities of the new Constitutio n.
The Hon. Dr. W illy Mutunga, D. Jur., SC, EGH Ch ief Justice/Presid Supreme Court of ent, Kenya
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Feature
ADDRESS BY THE CHIEF JUSTICE AT THE LAUNCH OF THE JUDICIARY TRANSFORMATION FRAMEWORK ON MAY 31, 2012 AT KICC GROUNDS
By: The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President, Supreme Court of Kenya
adies and Gentlemen, Country Women and Men, Friends and Colleagues,
I feel privileged to speak to you today about the distance we have covered and the journey upon which we wish to embark in reclaiming the Judiciary for the Kenyan public. In my Progress Report after 120 days in office, I painted a broad picture of the Judiciary we found. The details of that picture are much more engaging and warrant revisiting, even if only briefly. And in launching the Judiciary Transformation F r a m e w o r k t o d a y, I have chosen the eve of Madaraka Day, a day that marks our transition to self- rule as a signal to own our determination to create an independent and effective Judiciary. An oft-repeated criticism of the Judiciar y has been over how it has accumulated an impossible case backlog. Case delays have become the badge of inefficiency and ineffectiveness the Judiciary wears as its mark of distinction. Case backlogs constitute the single most important source of public frustration with the Judiciary. They open a door for fugitives from justice to seek refuge in the courts by turning them into a playground for the rich and corrupt. Inefficiency manufactures artificial shortages of justice, manures the soils in which corruption is planted and manicures a culture of ineptitude. This environment distorted values and perverted
the cause of justice. It created a vicious cycle where poor service, inadequate staff, graft and unfavourable working conditions fed on each other to create the crisis of confidence in whose grip the Judiciary found itself. We sought innovative ways that would yield the quickest benefits for the Kenyan public. We adopted the rapid results approach to jumpstart organisational change and increase the capacity of staff to implement programmes. Confronting the issue of case backlogs in the Court of Appeal as well as in five divisions of the High Court has generated results as well as important lessons that inform the changes we wish to undertake in moulding the new Judiciary. The Court of Appeal was an important starting point in this journey towards transformation. The average waiting period for a case in the Court of Appeal was six years. With the backlog of 3,800 cases, with each requiring three judges at the same time at current capacity levels, the Court of Appeal presented special logistical challenges. There appeared to be no way to conclude all the cases in under three years -- even if there were to be a sitting every day. Still, there are many roadblocks to justice in the unique Court of Appeal Rules, the special manner in which records of appeal must be prepared, and the low number of judges. These challenges notwithstanding, the Court of Appeal judges voluntarily adjusted their work
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schedules and created training manuals for preparing records of appeal. In 100 days, the Court of Appeal had reduced its case backlog by 451 cases. The Court continues to encourage those who take cases before it to file written submissions as a time-saving measure, and is reviewing its rules to place greater emphasis on efficiency and concluding matters with dispatch. The Judiciary is transforming. At the High Court, similar initiatives were rolled out with encouraging results. Although the case backlog in the Environment and Land Division was 5,000, a baseline survey established that 16,907 new cases had been filed between the year 2000 and 2011. Within 100 days, this division of the High Court had reduced its backlog by 3,419 cases. In the Commercial and Admiralty division, where a baseline survey surfaced 29,000 cases, a whopping 27,000 cases were removed from the backlog: Many cases consisted only of files that had been opened, with no further action. They had been floating around the courts for years in the guise of backlog. Similar initiatives have been launched in the Constitutional, Human Rights and Judicial Review, the Criminal and the Family divisions. Out of the 58,800 cases captured as backlog in these courts, 30,670 were disposed of in just 100 days. I salute the judges and staff in these courts for demonstrating what is possible even under difficult circumstances. The Judiciary is already transforming. The lessons from this initiative, as from many others like it, are numerous. In many instances, the cases were greater in number than had previously been thought, and in some instances, far less. This speaks to the importance of court records and their management. Where the records storage, management and retrieval system is weak or nonexistent, the sagacity of a judge or magistrate alone can be woefully inadequate in preventing a miscarriage of justice. Some of the archives and exhibits stores around the country had fallen into such neglect as to become the habitations for snakes and rodents. Termites had developed a literal taste for the delicacy of the court file, which they would devour without a thought on the details contained therein. In several instances, some staff, acting on their own initiative, have created accessible filing and storage systems that facilitate the easy retrieval of records. We continue to encourage these efforts as we tap into the reservoir of creativity and energy that already
abounds in the Judiciary. Already, the Judiciary is transforming. Concomitant with these rapid results approaches have been other emergency interventions to deal with roadblocks the public encounters in the quest for justice. The Office of the Judiciary Ombudsperson, set up to receive and investigate complaints against judicial officers by the public, and by the staff against each other or their employer, has opened a great avenue for contact and interaction. With the Ombudspersons office now peopled with liaison officers from court stations across the country and the establishment of an online and short text message service through the number 5834, I am confident that responses to complaints will be faster, better, more transparent and cost-effective. This office will be the beachhead of the strategy to reduce the citizens alienation from the Judiciary and demonstrate that the institution is open and available for all those who seek its help. Across the board, the Judiciar y is making heavy investments in information communication technology to improve service delivery, increase efficiency, lower the transactional cost of justice and modernise the Judiciary. It is one of the platforms on which we continue to encourage public participation. A recent, remarkable outcome of this approach was the crowd sourcing of designs for the prototype court. Besides the many brilliant designs entered in the competition, whose winners were unveiled and awarded this week, Kenyans spoke candidly about the discomforts they suffer when they use the present court infrastructure from lack of toilets to the absence of separate holding cells for men and women. Inconveniences around paying court fines and fees, and the deficit of compassion in the manner courts treat people are some of the other observations the public has voiced. Aware that happy staff make happy clients, we have undertaken several measures within the Judiciary to professionalise the work environment. A revised code of conduct and ethics is being finalized, as well as a sexual harassment policy whose enforcement are a matter of priority. Staff are being trained and sensitized on their implementation. We have undertaken nepotism and ethnicity audits, as well as a disability survey among Judiciary staff as first steps towards eliminating artificial barriers to career progression and creating a safe, rewarding work environment. Additionally, we have sought to give every member of staff the tools they need to perform their duties. We have also begun to improve the compensation packages for the staff working in the Judiciary. We embrace training and continuous learning as the
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anvil upon which we sharpen our professionalism and prepare us for the challenges the environment will throw at us. In return for the heavy investment the public is being required to make to secure the comfort of Judiciary staff, they must obtain value for money in the services they receive. That is why I remind my colleagues that no one has a title deed to a job in the Judiciary. Talking of confidence, technocratic reforms alone are not sufficient to win public confidence. They may produce results, but they are not sufficient to deliver fully on the promise the Constitution makes to Kenyans. They are probably reactive to situations that have undermined the Judiciary in the past but do not speak to the totality of our constitutional mandate. The face of justice in Kenya has remained forbidding and unapproachable because the Judiciary has largely been bereft of compassion, disinterested in the daily lives of ordinary people and manifestly indifferent in the name of maintaining neutrality. The Constitution does not require the Judiciary to merely clear case backlogs, eliminate the problem of lost files and computerise its operations for greater efficiency important as these are. It demands a cultural shift to enable the Judiciary to lead the transformation of the Kenyan society to bring it in line with national values. The Judiciary will only lead this transformation by interpreting and defending the Constitution, but it can only do so by first transforming itself. This transformation, therefore, aims to ultimately reconstruct the Kenyan society. That is why reform alone would not be sufficient. The Judiciary is transforming because the Constitution requires it to. And this is how we intend to answer the command of the Constitution. As the engine of societal transformation, the Judiciary is required to adopt a culture of service that is people-centred. We must create an environment that supports the delivery of justice, upholds the rights of the Kenyan people and promotes national values. We must recapture the public imagination, not through outdated rituals and posture, but by evoking a common appeal. Drawing on the lessons of the last elections, we have established a Judiciary Working Committee on Election Preparedness to draw up a curriculum that will prepare judicial officers to try election offences and resolve election disputes. The Judiciary Transformation Framework that we launch today will be carried out in line with four
pillars: focusing on people outside the institution; focusing on people within the institution, providing the resources and infrastructure required, and employing information communication technology across the board. In order to give structure to the numerous initiatives we are undertaking, and create coherence among them, I am happy to unveil the following 10-point action plan for transforming the Judiciary: Access to and expeditious delivery of justice: Justice is not the privilege of a few. We seek to expand access to the expeditious delivery of justice for all Kenyans. Every court shall have a customer care desk and a court counsel to provide information about the procedures ones needs to follow, especially in cases where one would like to represent oneself. Court documents will be simplified. Our justice system will give due regard to traditional mechanisms of dispute resolution, as far as the constitution allows. There will be a High Court in every county and a magistrates court in every district and decentralize the Court of Appeal. We shall increase the number of mobile courts, and ensure that they work. Ultimately, our performance will be weighed on the scales of humanity and democracy. These commitments will be published in a Litigants Charter, which will be our contract with the Kenyan people. Public participation and engagement: We will never forget who the boss is. We shall explain ourselves simply and coherently even as we seek the views of the public in undertaking our various activities. We shall listen keenly, not just to satisfy the letter of the Constitution, but also to respond appropriately. For it is not our intention to talk at the Kenyan public, but rather to begin a conversation with them. The Office of the Ombudsperson will be strengthened and supported through technology to be responsive, effective and efficient at all times. We shall open dialogue with students and the public so that people know what we do. S t a k e h o l d e r e n g a g e m e n t : We t a k e o u r responsibilities in the justice chain seriously and encourage our partners to do likewise. The independence of the Judiciary is complementary to our interdependence with others working within the justice system. We shall lead the National Council on the Administration of Justice in unlocking problems that hinder our work, just as we will collaborate with the Executive, independent commissions and other actors. We shall always defend our independence as a separate arm of government is guided by the national values of patriotism and national unity in helping the other arms of government to realize a new Kenya.
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Philosophy and culture: We shall evolve a new philosophy and culture that recognises the people of Kenya as the source of judicial authority. We pledge to offer imaginative leadership on law, accountable service with integrity, openness, and an orientation towards delivering results and ethical conduct. Leadership and management: People are our most critical asset. That is why we are adopting professionalism in leading and managing this critical resource. We shall equip our staff with skills, motivate them to perform, reward them fairly and create opportunities for their personal and professional growth. We shall match staff to work, skills to career progression, and additionally set up mortgage, medical and loan facilities. Policies on transfer as well as training and scholarships will be designed to make working in the Judiciary a competitive career choice. Our management style will be participatory and representative of all sectors of the Judiciary.
the world. We shall embrace continuous learning, mentoring and peer review in order to create new thinking about the law and how it is applied. Physical infrastructure: We shall have courts that are friendly, accessible and have the required facilities. We have begun the process of creating a model court from the designs received from a recent competition. Once the public makes further contributions to these designs, they will be turned into a model design to be used in building standard courts. We shall also have an infrastructure development master plan to guide development, and an inspectorate department. Financial resources. We shall get the Judiciary
Organizational s t r u c t u r e : We will simplify the way the Judiciary is organised in order to clarify repor ting lines and create clear accountabilities Unveiling of the Wanjiku statue at the Launch of the in order to fastJudiciary Transformation Framework on May 31, 2012 track decision at KICC making. Our organisational design will be devolved to Fund working in order to secure our financial encourage discipline and reward performance. autonomy, but we shall also embrace budget for There shall also be a court inspectorate unit. Human results, manage our finances responsibly and be resource and finance functions will be devolved to accountable at all times. Although some of the 17 regions around the country. Judiciarys activities are currently supported by development partners, the public must eventually Growing jurisprudence and judicial practice: pay for it in order to own it and demand the Training, research and partnerships will be at requisite accountability of it. the heart of our efforts to enable judges and magistrates to develop the law and its application ICT as an enabler: We shall harness ICT to improve in order to bring it to par with practices around the administration of justice and right across
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all the key result areas. We undertake to deploy electronic case management, integrated document management and audio-visual recording to cut back on delays and other opportunities to frustrate the search for justice. This blueprint encourages every court station to innovate. It allows the creativity of every Judiciary official to show. With it, we are creating a structure that encourages resourcefulness and enables it to thrive. Unlike other reports, plans and frameworks, the Judiciary Transformation Framework will not just be a document. It is a roadmap for action. That is why I have created a full-time Judiciary Transformation Secretariat within my office to drive its implementation. The person I have picked to lead the Judiciary Transformation Secretariat is highly talented and has shown a remarkable sense of commitment to serve by leaving a tenured position as professor at one of the foremost universities in the world to take up a position as a judge. Justice Professor Joel Ngugi, who has been a critical part of implementing the pilot transformation programme at the Machakos Law Courts, brings invaluable insights into how each station can make this framework a living reality. All citizens must be reminded that this is their Judiciary. They pay for it, and it must work for them. This Judiciary Transformation Framework is their tool for holding each of us, at every level of the Judiciary, to account. Civil Society has a special role as our partners in promoting this framework as the new template for how the Judiciary will work. As stated before, we regard the co-ordinate branches of government as interdependent and look forward to a healthy relationship as we seek that society the Constitution commands us to build. We require more scrutiny from the media not just here in Nairobi, but around the country, so that it can never be said we had a good plan that we failed to implement. Finally, for those who may be inclined to resist this Judiciary Transformation Framework, I would say this to you: the train has already left the station. The forces against change have no alternative
but to obey the Constitution -- unless they want to overthrow it. This I am certain of: the old order is dead. What is uncertain is how expensive the forces of resistance will make the funeral. Those who may think focusing on an individual can halt or derail this transformation have not made the necessary mental shift. There is a critical number of Kenyans in the Judiciary who share this vision for transformation. They would do well to note that the office of the Chief Justice is not a transmission station for instructions from any quarter the Executive, the legislature, civil society, capital or any organised interest. I do not tell judges what to decide and no Kenyan, however low or high, should think that they can ask me to do so. I have not done it and I will not do it. Ultimately, our aim is not to defeat or humiliate anyone. It is only to deliver to Kenyans what is promised to them in the Constitution. And to my colleagues in the Judiciary, I wish to say this: The journey of an earnest transformation of the entire Judiciary begins today. It is a cause long pre-determined by the Constitution and high expectations and on which we have no choice. You owe it to yourselves to create an institution of pride make the Judiciary the most prestigious, attractive, and effective arm of government. I am sure that a great deal of professional satisfaction is to be derived from working for an institution of distinction and not one that is the object of constant public scorn and ridicule. As the Chief Justice and head of this institution, I will do my part to help us realize our transformation objectives. The burden of history requires me to provide leadership in the creation of a new institution. It is a burden I have taken up with pleasure and will pursue with uttermost conviction. No decision will be too tough for me to make if that is the price we have to pay to meet the aspirations of the Kenyan people. The time for testing is past. Now is the time for results. We must all transform or perish. Thank you.
And to my colleagues in the Judiciary, I wish to say this: The journey of an earnest tra nsformation of the entire Judiciary begins today. It is a ca use long pre-determine d by the Constitution and high ex pectations and on which we have no choice. You owe it to yourselves to create an institution of pride make the Judici ary the most prestigiou s, attractive, and effective arm of go vernment.
The Hon. Dr. Willy Mutung a, D. Jur., SC, EGH Chief Justi ce/President, Supreme Court of Kenya
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Feature
NCLR JOINS GLOBAL FORUM ON LAW JUSTICE AND DEVELOPMENT

By: Michael Murungi,CEO/Editor
Rationale: Across the globe, isolated spheres of legal excellence exist that are advancing civic, economic, and social development outcomes, but their advances are not sufficiently translated or available broadly for replication. In particular, development experts are not currently able to directly and easily access and assess international research, policy, and practice. Because strong legal and judicial systems are an important cornerstone of sustainable economic and social development, there is a need in the international community for a permanent Mr. Michael M. Murungi (third from left), the CEO/Editor of the National Council global knowledge exchange for Law Reporting, with a delegation from the World Banks Legal Vice Presidency led by Mr. Hassane Cisse, Deputy General Counsel, Knowledge and Research forum. Such a forum can (second left); Ms. Nightingale Rukuba-Ngaiza, Senior Counsel (extreme left) and greatly advance opportunities Mr. Steven Mukaindo, Counsel (extreme right), when the delegation visited the t o c o n n e c t e x p e r t s a n d Council in March 2012 and invited the Council to join the Global Forum on Law, stakeholders from around Justice and Development. the world for identifying, co-generating, sharing, and disseminating relevant knowledge and solutions. The GFLJD seeks to: In our ever increasingly interconnected world, this can be accomplished by harnessing technological - Promote a better understanding of the role advances that are providing new opportunities to of law and justice and; connect geographically distributed experts and stakeholders. - Strengthen and better integrate legal and
he National Council for Law Reporting has joined the Global Forum for Law, Justice and Development (GFLJD) www.bbi.syr. edu/gfljd/
judicial institutions in the development process, through selected capacity building initiatives and an open repository of knowledge.
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The GFLJD consists of two mutually reinforcing pillars: - a permanent forum; and - an ICT web-based platform designed and administered by the Burton Blatt Institute (BBI) at Syracuse University (SU). The GFLJD is composed of three broad participant groups involved in the legal dimension of international development: - the World Bank as promoter, facilitator and convener; - a group of international and regional organizations, such as International Financial Institutions (IFIs), Universal and Regional Organizations; and - a group of national stakeholders, such as government authorities, academia, thinktanks and civil society organizations. The forum will be supported by a web-based Information and Communication Technology (ICT) platform that will facilitate the internal and external communication, host relevant knowledge (databases, research, documents, etc.) and provide easy and free access to knowledge relevant to policy makers, development practitioners and the general public. The GFLJD partners believe that harnessing these new technologies can fill the gap in the international community for a permanent legal forum. The forum is organized by thematic areas where partners are clustered based on their expertise, and each cluster of partners is expected to collaborate via Communities of Practice (CoP) using blogs, discussion forums, multi-media collaborative
problem-solving, and professional networking. Information will be shared online - for immediate, free to access (no cost) and free to use (no restrictions on re-use other than attribution) - and will be made available in alternative formats, for locations that have low or no access to internet. The platform will incorporate reviews of knowledge products by allowing users to rate every knowledge product on multiple scales, thus using the crowdsourcing of consumer reviews to provide information on the usability, efficacy, impact, and effectiveness of shared knowledge products. The sustainability of the initiative is based on a menu of options that include: - in-kind contributions from intellectual partners; - financial contributions from financial partners, sponsors and supporters; and - combinations of in-kind and financial support. In order to encourage financial partnerships from the South GFLJD sets US$ 250,000 as minimal threshold for financial contribution for developing countries. The GFLJD is expected to provide a tremendous and unprecedented return on investment by fostering enhancement of human capital capacity through knowledge sharing as well as participation in larger social networks. Sources: GFLJD Brochure GFLD Website - www.bbi.syr.edu/gfljd/ National Council for Law Reporting
s, and is, in 2010 wa d e ss a p e rds of tion w past standa the constitu d f n o a im ip a h rs le e o d The wh ya down in ideas of lea brought Ken ay from past d w a a h t a ve o th m s a to past ide 4-2010 ose are the integrity. Th g years 196 the damagin
owrojee Pheroze N
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Feature
NCLR-KCDF PARTNERSHIP: COMMUNITY DEVELOPMENT THROUGH SUPPORT AND MENTORSHIP
By: Michael Murungi, CEO/Editor
pril 4, 2012 - Mr. Kipkemoi Sang (middle in black suit) and Mr. MacDonald Shiundu (4th from right) when they were introduced to their mentors, Dr. Willy Mutunga, the Chief Justice, (4th from left) and Mr. Michael Murungi, the CEO/Editor of the National Council for Law Reporting (3rd from right) by the Kenya Community Development Foundation (KCDF). With them is a delegation from the KCDF led by Ms. Janet Mawiyoo, the Executive Director (3rd from left); Ms. Catherine Kiganjo, Programme Co-ordinator (2nd from right); Ms. Damaris Njeri (extreme left); Mr. Melvin Chibole (2nd from left) and Ms. Neema Mutemi (extreme right).
lawyer. Mr. MacDonald Shiundu, 21, had battled many odds to secure an admission at a local university to study a degree in Economics. The occasion was the introduction of the two young men to their mentors the Chief Justice and Mr. Michael Murungi, the Editor/CEO of the National Council for Law Reporting - by the Kenya Community Development Foundation (KCDF). Through a partnership between the KCDF and the Council, the Board and members of staff of the Council can support KCDFs beneficiaries financially through voluntary payroll-deducted donations from their salaries and emoluments and socially through KCDFs mentorship programme. Founded in 1997 and registered in Kenya as a public foundation, KCDF is a Kenyan development organisation that supports communities to drive their own development priorities, by linking them to resources and information. The foundation promotes sustainable development approaches by among other things, encouraging local resource mobilization, and helping communities to utilize resources that they have.
April 4, 2012 - Mr. Kipkemoi Sang (middle in black suit) and Mr. MacDonald Shiundu (4th from right) when they were introduced to their mentors, Dr. Willy Mutunga, the Chief Justice, (4th from left) and Mr. Michael Murungi, the CEO/Editor of the National Council for Law Reporting (3rd from right) by the Kenya Community Development Foundation (KCDF). With them is a delegation from the KCDF led by Ms. Janet Mawiyoo, the Executive Director (3rd from left); Ms. Catherine Kiganjo, Programme Co-ordinator (2nd from right); Ms. Damaris Njeri (extreme left); Mr. Melvin Chibole (2nd from left) and Ms. Neema Mutemi (extreme right).
On April 4, 2012, two young men stood in the office of Dr. Willy Mutunga, the Chief Justice and Chairman of the National Council for Law Reporting, at the Supreme Court building in Nairobi and shared the stories of their lives and more importantly, their dreams for a bright future. Mr. Kipkemoi Sang, 22, served as an usher at a Nairobi church and nursed a deep and passionate ambition to study law and become a human rights
Mr. Sang, whos mother has taught him that service to God is a virtue, an obligation and a lifestyle, gave a bold and eloquent statement of his vision My dream has continued to flame in my heart for several years beginning with mere wishes like; when I grow up I want to be a lawyer. This dream has now blossomed into a genuine passion for life. I have always learned and accepted the challenges that have threatened this dream and refused to quit because I have grown up experiencing a lot of injustices to the humble people in the neighborhood of my village. I have always had the passion to be a lawyer, a bully of injustice that
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have seemed detrimental to the human lives. This is because every injustice that diminishes humankind diminishes me. For Mr. Shiundu, the challenges of his life have only strengthened his resolve to be of service to humankind: I am highly interested in helping the needy in society to solve their problems, enlightening the society and serving them as a leader, he said. I strongly believe in intrinsic features of motivation within myself. A free minded person does what is right according to the expectations of the society. I am never satisfied if I see conflict and I fail to solve it whether its above or below me. Thanking and congratulating the KCDF for its work and for its partnership with the Council, the Chief Justice observed that mentorship is commonly and mistakenly viewed and applied as patronage where a mature and supposedly wise mentor lords over his perceived life lessons and ideas on a younger and supposedly nave mentee. His idea of mentorship, he said, was one in which both the mature and the young individual regard each other as equal partners bonded together by a gentlemans/ladies agreement to mutually and reciprocally share life lessons and ideas. In this regard, he hoped to learn at least as much from Mr. Sang as Mr. Sang would learn from him. KCDF is also the local implementing partner of the Global Give Back Circle, which is a
registered Clinton Global Initiative Commitment. The 'Circle' integrates mentoring; private sector investment and local community support in a circle of empowerment that socially and financially empowers young girls to pursue their educational and professional goals and to become agents of change themselves. In return, the mentees implement Give Back Commitments in their local communities, undertake to mentor the next generation of girls, and commit to give back once they realize their professional and financial independence. KCDFs mentorship programme for young men is modeled on the Global Give Back Circle's girls' programme. The event was witnessed by Mrs. Gladys Shollei, the Chief Registrar of the Judiciary; two members of the Councils Board of Directors, namely, Prof. James Otieno-Odek (Dean of the School of Law, University of Nairobi) and Mr. Paul Sang (Snr. Printer, Government Printer); Ms. Ann Asugah, an Assistant Editor at the Council; and a delegation from the KCDF led by Ms. Janet Mawiyoo (Chief Executive Officer); Catherine Kiganjo (Programme Coordinator); Ms. Damaris Njeri, Melvin Chibole and Neema Mutemi.
Kenya Community Development Foundation www.kcdf.or.ke Global Give Back Circle www.globalgivebackcircle.org
KCDF MEMO ON MENTORSHIP MISSION To harness the talents of women globally to transition disadvantaged girls out of the circle of poverty and into a circle of social participation, contribution, fulfillment and independence. SCHOLARS are disadvantaged girls who come to the Nairobi area or other large towns (to attend high school) from villages and towns all over Kenya. Most have lost a father, a mother or both. They come from extreme poverty. They may be Christian or Muslim. They are girls who have scored high enough on the national primary school exams to qualify for a place in high school girls with an opportunity to move beyond poverty, to become global citizens. FINANCIAL PARTNERS are corporations, foundations, government agencies and individuals who provide funding. USAID, GGBCs largest partnering funder, provides half of the support. The corporations who fund GGBC are typically global organizations, which fund from their Kenyan operations. Each scholar should know who is sponsoring her through ICT training and university or collage. THE COMMUNITY is made up of several on the ground institutions in Kenya including
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the schools, universities and colleges. The Kenyan Community Development Foundation (KCDF) implements GGBC in Kenya. KCDF is a world-standard model for grass-roots implementation of community-based programs and an outstanding example of transparent rant making. KCDF ensures that all funding from Financial Partners reaches the scholars and is granted to them in a manner that makes them accountable for their spending, thus embedding financial literacy skills. KCDF dedicates a staff of three professionals and two interns to the implementation of the GGBC process. MENTORS are the heart of GGBC- they are the women who fulfill the role of sisters, aunts, teachers, friends and angles who guide the scholars in developing in maturity and making decisions that will lead them to independence. GLOBAL GIVE BACK CIRCLE IS A CLINTON GLOBAL INITIATIVE COMMITMENT What is the Clinton Global Initiative? President Clinton, tires of attending conferences that were all talk, no action, created the Clinton Global Initiative (CGI) in 2005 to turn ideas into action. In September 2008, GGBC was invited to attend CGI and formed a commitment with ATE Bank of Greece, Equity Bank (Kenya) and Microsoft to raise $350,000 to transition 35 girls onto tertiary education. In 2009, GGBC was invited back as a featured commitment makers. In 2011, GGBC updated its commitment progress report to show that it has raised $7 million dollars to transition 535 girls. The new goal is 1,000- 1,000 empowered young women in Kenya! Read the Article. Becoming a member of CGI was important on two levels. First it gave GGBC high level of credibility in obtaining additional funding. Second, it provided the model for each GGBC scholar to give back. CGI commitments must be specific and measurable. With a goal of sustainability, GGBC asks the girls in the program to develop and implement their own give back commitment. Ask your mentee how she is giving back to the world around her. USAID is an independent US federal government agency that receives foreign policy guidance from the Secretary of State. It provides foreign aid to developing countries with the mission to promote democracy and improve the lives of millions of people around the world. In early 2011, the GGBC program (at KCDF) received $ 3.5 million from USAID, allowing GGBC to increase its reach to a total of 535 girls over the next three years. As a result, over half of the GGBC scholars will be sponsored by USAID for their tertiary education. Read about USAID and GGBC.
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Strategic Planning Quality Assurance and Performance Department
NCLR MANAGERS LEARN HOW TO CONDUCT EFFECTIVE APPRAISALS

By: Esther Nyaiyaki Onchana, Senior Assistant Editor
take the right approach, appraisals are an excellent opportunity to reinforce sold performers and redirect poor ones. It is for this reason the Councils managers convened at the Kenya Institute of Administration for a weeklong training (May 7- 11 2012) on performance appraisal and management course. The managers sought insights on how to carry out an objective appraisal, how to design an effective appraisal performance tool, the nexus between performance and reward, the role of mediation in performance management to name but a few. While the managers expectations were numerous the focus of this article is the lessons we took away on how to conduct effective From left to right Pascal Othieno (Finance), Michael Mayaka (ICT), Ann Asugah appraisals. (Laws of Kenya) Ms. Mutindi Musuva (HR), Ms. Esther Nyaiyaki (Deputy CEO).
Ms. Monica Achode (Editorial) Ms. Linda Awuor (Sales and Marketing and Mr. Nganatha Karugu (Senior Principal Lecturer KIA)
f you are an executive, manager, or team leader, one of your toughest responsibilities is managing your people's performance. Does this
sound familiar? It is performance review session, you ask each of your direct supervisees into a conference room one by one, hand them an official looking document and then start with the same old conversation. You say some positive things about what the employee is good at, then some unpleasant things about what he is not good at and end with some strokes of his ego. The result - a mixed message that leaves even the best of your employees feeling disappointed. Yet if you
What the experts said Why is appraisal necessary? The government for a long time was resistant to measuring the performance of persons holding public office. If it was done, it was done in a perfunctory manner. The Government of Kenya introduced performance contracts in the public service through Legal Notice No. 93, the State Corporations (Performance Contracting) Regulations, 2004 in August 2004.
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This was part of the broader Public Sector Reforms aimed at improving efficiency and effectiveness in the management of the public service. Performance appraisal is necessary in the public sector to meet the citizens expectations, to ensure a holistic approach performance and to entrench continuous performance and to embed a performance culture. A performance contract is a mutually agreed document that specifies the responsibilities, commitments and obligations of both parties to the agreement. The contract stipulates the key result areas, the level of performance expected towards achievement of agreed targets and how the performance will be measured. According to Mr. Humphrey Mokaya, a lecturer at the Kenya Institute of Administration, the concept of performance management encompasses the 4 Ps, that is the organizations policies, practices, people and procedures. The policies should be consultative and participatory while taking caution to borrow only the best fitting practices when bench marking. The organization should be keen in hiring the right people whom they will facilitate and empower. What about the employees? The employees ought to have a clear line of sight towards the organizational goals and their individual goals. They must ask themselves this question How do my daily activities contribute to the organizations objectives? Ms. Muthoni Gachire, also a lecturer at the Kenya Institute of Administration gave lessons on how to set performance objectives. The objectives should flow from the national objectives down to the agencies departmental and individual objectives. For example at the national level the Key Result Areas may be derived from the Millennium Development Goals, and the national development plans while departmental performance objectives will be drawn from the agencys mandate. She defined Key Result Areas (KRAs) as that area where performance is critical to the achievement of the organization's goals, objectives and strategies. Failure in a KRA may constitute failure in organizational performance. The Key Performance Indicators (KPIs) are quantifiable measurements in terms of performance levels and/or standards. They reflect the achievement of performance objectives. KPIs are used to observe progress and measure actual results compared to expected results Delivering an effective performance appraisal For many employees, a face-to-face performance review is the most stressful work conversation they will have all year. For managers, the discussion
is just as tense. No matter what kind of appraisal system an organization uses, below are several strategies to help you make performance review season less nerve-racking and more productive. Set expectations early - Mr. Paul Mathenge, a lecturer at KIA emphasized that performance review does not start with a sit down in the spare conference room at the end of the year. You must be clear from the outset how, when and what you will evaluate the employee. It is advisable to do so at the beginning of the year. In that meeting the supervisor and supervisee will not only set the individual performance targets but will also discuss the employees personal goals and expectations. Understanding what the employees want from their careers will help you figure out ways to broaden their professional experiences. Lay the groundwork - Weeks before the face-toface review ask your employee to write down a few things he or she has achieved over the review period. You may ask the employee to conduct a self-assessment on the various pre-agreed targets. This will help both of you to refresh your memory and it will put a positive focus on the event that is often seen as negative. Next go over the other reports you have kept over your employee over the year: a well-executed project, a missed deadline, the deft handling of a difficult client. However Mrs. Esther Gachango, a senior lecturer at KIA, reminds us that nothing should be a surprise during the appraisal meeting. It is assumed that appraisal is an on-going two-way conversation throughout the year. When evaluating the values and competencies of the employee you may seek for feedback from others who work closely with him in the organization. Inform the employee in advance the topics you intend to bring up during the face-to-face meeting, as well as the order you plan to cover them. Set the tone - Open the face to-face meeting with an upbeat tone. Keep your feedback focused on the employees performance and let your message be clear and concise. Walk through the evaluations with your employees and provide them with specific information regarding the rationale behind your ratings. If you use self-evaluations, discuss the points where you and your employees agree and disagree. Most people are good solid workers, so for the vast majority, you should concentrate exclusively on things the person has done well. This method tends to motivate people who are already competent at their jobs. For your marginal workers, however, do not sugarcoat the bad news. Performance reviews are your chance to confront
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poor performers and demand improvement. Constructively coach - After discussing the strengths and achievements of your solid performers, ask them how they feel about how things are going. In many cases you are dealing with mature adults and you will draw out their honest opinion. Angela Baron suggests that the feedback should be framed in terms of a "stop, start, and continue" model. What is the employee doing now that is not working? What are they doing that is highly effective? What actions should they adopt to be more so? This will take the personal edge out of the conversation. End the sessions positively - Summarize the discussion, ask for final questions, set follow-up dates for goal setting, have the employees sign hard copies of the evaluations, and end with
positive expectations. Additional information obtained from How to Be Good at Performance Appraisals by Dick Grote published by the Harvard Business Review Press
You cant manage what you cant
measure; and you cant measure what you cant describe
Peter Drucker
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Editorial Department
TRANSFORMING THE EDITORIAL DEPARTMENT; FOLLOWING IN OUR PARENT'S FOOTSTEPS

By: Monica Achode, H.O.D Editorial Department
the KLR Monthly publication and the Bench Bulletin. Under the Judiciary Transformational Framework pillars our contribution falls under Pillar two r e g a r d i n g Tr a n s f o r m a t i v e Leadership, Organizational Below is the front cover image of the latest specialised edition of the culture, and Professional and Gender Based Violence (GBV) Law report. Motivated Staff; KRA 7: Growth of Jurisprudence and Judicial Practice. The Constitution requires the Judiciar y to develop jurisprudence, which is the lifeblood of any Judiciary. Sound jurisprudence will enable the Judiciar y to asser t its authority, command respect and distinction among its peers, and earn respect and legitimacy in the eyes of the public. Indeed the ultimate test of transformation of the Judiciary should be manifest in the quality of jurisprudence emanating from the Bench, and who better than the Council? With this in mind the Editorial Department of the Council after receiving constructive feedback from the Bench, specifically the Supreme Court, has undertaken a transformative process aimed at improving the following key areas of its functions and workflow processes: The manner in which the Department receives feedback and suggestions from the Judiciary community regarding its editorial policy, scope and content more specifically, to take advantage of the close relationship
s you are aware the National Council for Law Reporting is a semi-autonomous state agency enacted under the National Council for Law Reporting Act, Act No.
11 of 1994..., which tasks the Council with the mandate of law reporting. In fulfillment of part of this mandate the Editorial Department collects, analyzes and provides affordable access to accurate and relevant case law in order to aid the administration of justice, the practice and teaching of the law and the development of Kenyas jurisprudence. You may be familiar with some of our products such as Kenya Law Reports Volumes, the Specialized KLR Volumes G & F, E & L, EP & GBV,
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between the Council and the Judiciary Training Institute by working closely in the development of jurisprudence; To move away from the hierarchical standing of the court rendering the opinion in the reporting of judicial opinions and focus more on the contribution being made by the said court and its contribution to the growth of jurisprudence specifically expanding the scope of reportage for the judicial opinions of the High Court that contribute to the growth of jurisprudence; In-order to ensure that no stone remains unturned the Department in its bid to capture all jurisprudence emanating from the Courts also intends to engage a law reporting consultant to read through the superior court decisions of Kenya for the last 10-20 years for the consideration of the Department for the publication of an additional law report to cover judicial opinions of jurisprudential value that may not have been reported; The Department is also looking into improving on the technical aspects of its publications, particularly the style of formatting, grammar, sentence structure and punctuation and make a benchmarking comparison with the editorial policy and style adopted by other respected law reporting establishments such as Lexis Nexis, the publishers of the All England Law Reports; and the Incorporated Council for Law Reporting of England and Wales. The Department is also looking into getting ICT consulting services to streamline its online content, specifically the case search database, in order to make it
more manageable, more accessible and make the whole online experience more pleasurable for our users. One area that has been a challenge for the department is staffing. The Department recognizes that the judicial officers have been increased over the last year, directly increasing the workload of the department, while the staffing levels in-house have remained the same. It is recognized that the working environment will require an enhanced budget, modern working tools and equipment and an enhanced and enabled workforce. We look forward to engaging with the Judiciary in achieving this. The Department does not intend to achieve all this on its own; indeed we have a very committed and engaged leadership giving strategic direction to this transformative process. Each member of the department has internalized the fact that the responsibility for the success of the this transformative process does not solely rest on the Editor or the Head of the Department, it lies with each and every one of us at all levels and in all our different capacities. We hope the Judiciary will strengthen the capacity of the National Council for Law Reporting in order to improve the Council's capacity to continue monitoring and reporting on the development of jurisprudence. We also hope to leverage on the new judicial researchers who were recently hired and inducted by the Judiciary, to assist with some of our processes, especially with regard to bringing jurisprudential issues to the Departments attention. In this way we hope to foster an environment in which constructive feedback can be given and received.
EDITORIAL TRANSFORMATION FRAMEWORK
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EXPRESSION OF INTEREST EOI No.: NCLR-EDITORIAL/006/12-13 Consultant Editor, Kenya Law Reports About the National Council for Law Reporting The National Council for Law Reporting is a state corporation in the Judiciary charged with the mandate of publishing the Kenya Law Reports, which contain the Judicial Opinions of the Superior Courts of Kenya, the Laws of Kenya and other types of public legal information. The vision of the Council is to be the leading legal institution in Africa in providing reliable and accessible legal information to the public. The Council invites expression of interest from qualified individuals or firms to provide Law Reporting Editorial Services under the supervision and direction of the Editor of the Kenya Law Reports. Background The Kenya Law Reports series was first published in 1906 by the East Africa Protectorate. Later, after Kenya became a republic, the publication of the series was continued by the Government Printer. After the publication of the 1980 edition, there followed a lapse of two decades before the series was revived by the National Council for Law Reporting, which had been established as state corporation in 1995. The Council has since published 24 editions of the Kenya Law Reports volumes covering the years 1980-1994 and 20002009, a consolidated Index and four specialized editions on the subjects of Land & Environment, Gender & Family, Election Petitions and Gender Based Violence. Due to previous difficulties in accessing the records of judicial opinions, challenges in the resourcing of the Council and also due to a limitation in the Councils scope of editorial coverage, a number of judicial opinions that contribute to the advancement of Kenyas jurisprudence may not have been given reporting consideration. The Council seeks to collect, review and report these judicial opinions through the services of a Consultant Editor Scope of the Assignment The purpose of this Consultancy is to supplement the Editorial Department of the National
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Council for Law Reporting by: o Identifying, collecting, reviewing the judicial opinions delivered by the High Court of Kenya and the Court of Appeal of Kenya which have not been reported in the Kenya Law Reports and which contribute to the advancement of jurisprudence; o Advising the Editor of the Kenya Law Reports on the suitability of the selected judicial opinions for reporting; o Upon the advise of the Editor of the Kenya Law Reports, compiling the selected judicial opinions into a manuscript for a special edition or editions of the Kenya Law Reports that conform to the Councils Editorial Policy, guidelines and house rules. This manuscript, the final published editions as well as all other information collected or generated under this consultancy shall be the property of the Council. In the scope of consideration, there is no limitation in the range of the years in which the judicial opinions were delivered save that they should be the decisions of a superior court of record established under the law of the Republic of Kenya. Qualifications The consultancy will involve individual consultants or a firm comprised of individuals possessing at least the following mix of skills, knowledge and experience: i. A postgraduate degree in Law or its equivalent; ii. An undergraduate degree in Law; iii. An advocate admitted to practice law in the superior courts of Kenya; iv. At least 8 years post-admission experience as: a. a distinguished academic in law; or b. a legal practitioner in a busy and challenging litigation environment; or c. an eminent author and/or publisher of legal materials, including but not limited to the review of Kenyan case law. v. A highly competent grasp of the law with a thorough understanding of Kenyas legal system and jurisprudence, and the theoretical and practical elements of the doctrine of precedent; vi. At least 5 years of experience in legal research, and report writing; review of judicial precedent, legal analysis and the drafting legal briefs on a variety of legal issues;
vii. Excellent command of written and spoken English, with proficiency inBusiness English and Legal English; viii. Excellent analytical and report-writing skills.
Deliverables The Consultant is expected to provide the following deliverables: i. An Inception Report setting out the Consultants understanding of the assignment and the methodology the Consultant proposes to apply in undertaking the assignment to be presented within thirty [30] days of signing the contract; ii. A report of the Judicial Opinions of the superior courts of record
identified,
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collected and reviewed, setting out each opinions contribution to the advancement of jurisprudence, to be presented with four [4] months after the presentation of the Inception Report; iii. A draft manuscript or manuscripts for a special edition or editions of the Kenya Law Reports containing the Judicial Opinions selected for reporting set out in the style of the Councils Editorial Policy, guidelines and house rules, to be presented within four [4] months after the presentation of the report detailing the records collected and reviewed; iv. An exit report setting out, in the Consultants opinion, the extent to which the Consultant had satisfied the terms of the assignment and making any pertinent recommendations to the Editor of the Kenya Law Reports; and v. Periodic progress reports detailing the progress of the consultancy to be submitted at least every six [6] weeks. [Unless otherwise advised by the Council, all reports and documentation are to be submitted in both electronic and print formats]. Duration and locus The consultancy shall be undertaken in Nairobi, Kenya in close consultation with the Editor of the Kenya Law Reports. The estimated time for the consultancy is one year. Expression of Interest documents must be submitted in plain sealed envelopes with Expression of Interest reference number and name clearly marked on top to the address below or placed in the tender box at our office. National Council for Law Reporting, ATT: Procurement Unit, P.O BOX 10443-00100, Nairobi, Kenya. Tel No: (+254) (020) 271 27 67, 271 92 31 Email: procurement@kenyalaw.org The deadline for submission of the Expression of Interest documents is 21st August 2012 at 1100hrs. Expression of Interest documents will be opened immediately thereafter on the above respective date in the presence of prospective bidders or their representatives who choose to attend. CHIEF EXECUTIVE OFFICER NATIONAL COUNCIL FOR LAW REPORTING
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Feature
REPORT ON-E-ACCESSIBILITY WORKSHOP FOR PERSONS WITH DISABILITIES HELD ON 10 &11TH MAY, 2012 AT THE LAICO REGENCY, NAIROBI.
By: Njeri Githanga Kamau, Assistant Law Reporter, Editorial Department
he Communications Commission of Kenya (CCK) is the regulatory authority for the communications sector in Kenya and also has the mandate to protect the interests of consumers of communication services.
TARGET GROUPS The workshop was attended by representatives from government agencies, disabled persons organizations (DPO's), parents, residential associations, communication service providers and many others. The main focus of the workshop was challenges experienced by persons with disabilities with regard to access, acquisition and usage of ICT services and interventions required to enable persons with disabilities access, purchase and use communication services. The objective of the workshop was: To enhance participants' understanding of the policy and legislative framework around or relating to the promotion of e-accessibility for PWD's.
Michael Murungi, CEO/Editor giving a speech at the E-accessibility workshop for persons with disabilities at the Laico Regency, Nairobi.
Having recognized that persons with disabilities have numerous challenges in accessing, purchasing and using communication services in Kenya and in an effort to address these issues and challenges, the Commission facilitated a two day workshop whose theme was "E-accessibility for Persons with Disabilities. Persons with disabilities (PWDs) form an integral part of consumers of communication services and they face numerous challenges in accessing, acquisition and usage of communication services. They hence require protection under the law like any other citizen.
To encourage the design of accessible information, ICT products and services to mitigate limitations to access to information, employment, social inclusion and training of PWD's. To have an appreciation of assistive technologies, other methodologies and best practices that mitigate against financial, physical and functional barriers.
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The National Council for Law reporting was represented by Michael Murungi-CEO/Editor, Wambui Kamau-Laws of Kenya department and Njeri Githanga Kamau- Editorial department The workshops started with the launch of the PWD web portal www.kenyadisability.or.ke which is a collaborative initiative of the Communications Commission of Kenya (CCK), National Council for Persons with Disabilities (NCPWD) and Disability Rights Organization through the United Disabled Persons of Kenya (UDPK). Access to information is a human right guaranteed in the Constitution of Kenya 2010 and International Conventions including the Convention on the Rights of Persons with Disabilities (CRPD). The web portal aims to: Enhance access to information by persons with disabilities. Provide to the public information on available ser vices for persons with disabilities. Create awareness about disability as a human rights issue. There after various presentations were made on Policy Legislation and Regulatory Framework, Promoting Accessible Computing Devices and Applications, Promoting Accessible Websites, challenges facing PWD in accessing ICT and so on. Under Promoting Accessible Websites, Mr. Murungi NCLR CEO/EDITOR made a presentation entailing some of the efforts the council has made to make its website universally accessible and also to accommodate persons with disabilities (PWDs) which includes; Raising the universal access IQ: this has been done through engaging with persons and institutions dealing with the welfare of persons with disabilities in order to obtain baseline data and information to help its understanding of the situation of persons with disabilities both generally and with regard to access to public legal information. Employment integration: This is through affirmative action in the form of head hunting, including a statement in vacancy advertisements that the Council is an equal opportunity employer and persons with disabilities, persons from minorities and marginalized communities are encouraged to apply; bringing the job advertisement
to the particular attention of institutions dealing with the welfare of persons with disabilities, etc. Developing comprehensive universal accessibility guidelines: Through the support of the Rockefeller Foundation, the Council has engaged a consultant to develop a comprehensive set of guidelines and standards to serve as the reference for the Council in originating and providing its web content in universally accessible formats. Implementing basic universal accessibility guidelines: Through consultations with persons and institutions dealing with the welfare of persons with disabilities and through research, the Council has formulated certain guidelines and standards for the universal accessibility of web content. The Council is progressively applying the guidelines in converting public legal documents that were originated in formats that are not universally accessible. So far, the Council has published Braille copies of the Persons with Disabilities Act(No. 14 of 2003) and distributed it to key institutions dealing with the welfare of persons with disabilities; it is earmarking further content for Braille production; and has converted some if its documents into access-friendly formats. Leveraging on extra-budgetary support towards universal access: this has been done through the support of the Rockefeller Foundation in engaging a consultant to guide the Council in developing universal web content accessibility guidelines and standards. Integration through Impact Sourcing: The Council will be seeking to outsource some of its business processes, including the conversion of documents into universally accessible formats, to an Impact Sourcing Service Provider i.e. a BPO provider who engages the labour of socio-economically disadvantaged persons, including persons with disabilities. Shifting public policy, law and practice on universal access: The Council has engaged a consultant to develop guidelines for both the translation of legal documents from English to Swahili and also for the universal accessibility of web content. We hope that the demonstrable success of our efforts
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will serve to inspire other government departments. IMPACT-IS: (Improving Public Access to Information through Impact Sourcing IMPACT-IS.) This is an initiative that has obtained the seed funding of the Rockefeller Foundation but which will ultimately be mainstreamed into the Councils operations. The IMPACT-IS initiative will inspire other institutions: by demonstrating how government agencies can be more effective and efficient by outsourcing all or some of their routine business processes; by providing a model on how corporate objectives and also government procurement processes can be aligned with the attainment of positive social outcomes, such as indirectly providing employment to persons with disabilities and other socioeconomically disadvantaged persons; by cultivating an interest in and demand for Impact Sourcing as a viable business proposition; ultimately, by catalyzing a positive shift in government approaches towards poverty alleviation and universal access. International partnerships and benchmarking: Bookshare www.bookshare.org : The Council is a partner of Bookshare, the largest online accessible library of copyrighted content for people with print disabilities. Through its technology initiatives and partnerships, Bookshare seeks to raise the floor on accessibility issues so that individuals with print disabilities have the same ease of access to print materials as people without disabilities. Some of the Challenges mentioned in the conference included; Lack of sign interpreters for Television programming. Learning institutions lack sign language interpreters e.g Kenyatta University which has about 8 deaf students with no sign language interpreters yet its their right to access Education.
Access to buildings for physically disabled persons-lack of lifts and ramps etc Banking Few banks with ATMs that accommodate the visually impaired persons. Lack of Sign Language interpreters in banks Softwares needed by visually impaired persons are expensive hence cannot be accessed by most of the PWDs. Proposals were made on how to curb some of the challenges which included. Broadcasting to issue warning before issuing flash lights as they trigger epilepsy attacks. CCK and Persons with disabilities organizations to meet with media owners and discuss some of the issues in broadcasting. Government to make internet affordable and accessible Banks to offer sign Language for their products also have universally accessible ATMs Need for blanket copyright allowing conversion of all audio productions of books in print. All public information to be posted on the PWD web portal KEY LESSONS LEARNT Integration not segregation It is the right of persons with disabilities to live in a world which integrates rather than segregates them. They have a right to community integration meaning that rather than having separate facilities and conveniences set aside for persons with disabilities, we should have all our public and private spaces designed and conceptualized in a way that they are accessible to all persons. This way we will not view their challenges as disabilities or inabilities, because they are not. What makes them challenges, disabilities or inabilities is the fact that we have not built our communities and our world for everyone Universal Access. Employment integration of persons with disabilities helps to improve two things:
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a. the employers understanding of the situation of persons with disabilities; b. the employers capacity to make its content universally accessible. The same approach that is integration rather than segregation would apply to web content, whether for public institutions or private ones. The approach would not be to set aside certain segments of our websites that have content that is accessible to persons with disabilities segregation of content. I think the proper approach would be to integrate universal accessibility standards into the concept, structure and design of all website content. A majority of government content is originated in the English language and in paper format or in digital formats that are not universally accessible. Integrating rather than segregating the welfare of persons with disabilities means that all web content is originated in universally accessible formats so that the need for downstream conversion is eliminated.
Through Impact-Sourcing, government institutions can achieve two very important objectives: Convert their historical/legacy content into universally accessible formats; and Indirectly provide employment to persons with disabilities and other socialeconomically disadvantaged persons. Universal access is not a favor, it is a constitutional responsibility The welfare of persons with disabilities has been the subject of welfare initiatives such as corporate social responsibility initiatives, giving back to society, caring for the less fortunate. While concern for others is altruistic and is good for humanity, the tragedy is that such initiatives and vocabulary towards persons with disabilities only serves to socially segregate them as the subjects of pity and the objects of charity. It may look good on corporate brochures and company reports but in my opinion, it does not help at all with the social integration of persons with disabilities.
tution The Consti
is entitled ny disability a h ferred it w n o rs ressedand re d d a e 54.(1) A pe b to respect and dignity and h it w d isabilities ; te a e rsonswith d demeaning e t p o (a) to be tr n r fo is t s a e ti th li ner faci interests to in a man itutions and ble with the st ti a in p l a m n o o tc ti n educa e exte (b) to access grated into society to th te in re that a nsport and n; s, public tra ce la p of the perso ll a to nable access s of (c) to reaso priate mean ro p p ; a n r o e ti th a o inform e, Braille or ign languag (d) to use S nstraints tion; and overcome co to s ce communica vi e d d materials an y. (e) to access ns disabilit o rs e p e th m o fr g n arisi tation of the elective e implemen iv ss re g e public in ro th p f o e th rs e re b m su shall en of the me s. (2) The State at at least five percent ith disabilitie th le princip re persons w a s ie d o b tive and appoin
2010 of Kenya
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Laws of Kenya Department
POLITICAL PARTIES AND THE INGREDIENTS OF THE LAW

By: Wambui Kamau,Legal researcher, Laws of Kenya Department
n Januar y 13th, 2012, the High Court, (Justices Isaac Lenaola, Mumbi Ngugi and David Majanja delivered its judgement on the election date to be within sixty days of 15th January, 2013. This followed a constitutional petition to the High Court of John Harun Mwau &3 others v Attorney General & 2 Others (2012). They based their judgment on section 9 and 10 of the Sixth Schedule constitution which states that the first elections for the president, the National Assembly, Senate, County assemblies and county governors shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term or upon expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by Legal Notice No. 1 of 2008 as 15th 2008. The term therefore expires on 14th January, 2012. The elections will be held within sixty days after 15th January, 2013. This pronouncement had an immense influence on the shape of politics within the country. The Political Parties Act (No. 11 of 2011) is the main legislative framework when it comes to political parties. It is guided by the principles set out in the Constitution of Kenya, 2010 and other governing Articles such as Article 91which provides for the basic requirements for political parties. These requirements include: a) having a national character b) a democratically elected governing body c) Promotion of national unity d) Abiding by the democratic principles of
good governance, rule of law free and fair elections Further the Constitution restricts political parties from: a) being founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy or hatred. b) engaging in violence or intimidation of its members, supporters or opponents c) establishing or maintain a paramilitary force, militia or similar organisation. d) Accepting or using public resources to promote its interests or its candidates in elections, unless otherwise provided for by law. Under the Political Parties Act, a party may register either provisionally or full. However, a party that is provisionally registered should apply for full registration not later than one hundred and eighty days from the date of provisional registration. The difference between provisional registration and full registration is that with provisional registration, a party shall not be entitled to participate in an election. The Registrar of Political Parties is charged with the mandate of registering, regulating, monitoring, investigating and supervising political parties to ensure compliance with the provisions of the Political Parties Act. Having registered parties due for election, Kenyans must be enlightened in dealing with political parties. A repeat of the post election violence that occurred
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in 2007 is totally unacceptable. The law through the Political Parties Act has taken steps to ensure a smooth coverage of the elections. These steps include: a) Naming of a Political Party Section 8 dictates that the Registrar of Political parties may refuse to register a party which has the abbreviation of the name or symbol that is obscene or offensive. b) Registration of Coalitions/ Mergers Two or more political parties may from a collation before an election, however, the coalition agreement should be deposited with the Registrar at least three months before that election. c) Integrity of leaders In applying the principle of integrity, section 13 of the Act provides that a person who is disqualified from holding public office under any written law shall not hold office in the governing body of a political party or be its founding member. d) Deregistration of political party A political party will be deregistered if it does not
promote free and fair nomination of candidates, does not respect the national values and principles of the Constitution, obtained its registration in a fraudulent manner or has instigated or participated in the commission of an election offence. e) Accountability A political party, according to section 29, must within ninety days of the end of its financial year, publish the sources of its funds stating the amount of money received from the Fund, the amount of money received from its members and supporters and the amount and sources of the donations given to that party. It shall also state the income and expenditure of the political party and the assets and liabilities of the political party. This information should be published in at least two newspapers having nationwide circulation. In addition to this, a political party shall at least ninety days before a general election, submit to the Registrar a register of its members and a statement of its assets and liabilities in the prescribed form. Failure to comply, the party risks deregistration. However, for a fair verdict, parties have the right to appeal to the Political Parties Disputes Tribunal which has the jurisdiction to hear appeals from decisions of the Registrar under the Act.
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A SYNOPSIS OF THE BILLS UNDER CONSIDERATION IN PARLIAMENT FOR THE PERIOD APRIL-JUNE, 2012
By: Christian B. Ateka, Legal Researcher, Laws of Kenya Department
Bill is a proposed law under consideration by the legislature. Under the Kenyan jurisdiction, Parliament is tasked with the legislative authority. Once a Bill is introduced in Parliament, it must go through a number of stages before it can become law. This allows the Bill's provisions to be debated in detail, and for amendments to the original Bill to also be introduced, debated, and agreed to. Below is a synopsis of various Bills before Parliament at various stages for the period between April-June, 2012. Public Financial Management Bill, 2012 The principal object of this Bill is to provide for the effective management of public finances by the national government and the county governments in accordance with the Constitution and for the accountability of public officers, given the responsibility of managing those finances, to the public, through Parliament and the respective county assemblies. The Bill provides for the establishment of the National Treasury under Article 225 of the Constitution which establishes the National Treasury as an entity of the National Government, comprising the Cabinet Secretary who will be the head and the Principal Secretary responsible for finance. The Bill provides for responsibilities of the National Treasury as contemplated in Chapter 11 and 12 of the Constitution which include: formulating, monitoring and implementation of macroeconomic policies; managing public debt, including loan
guarantees; promoting economic and financial policies and facilitating social and economic development; Designing and prescribing of financial management systems; Capacity building for effective and efficient financial management. The Bill also provides for the powers and responsibilities of both national government and county governments with respect to the management and control of public finance. Finally, the Bill provides for the establishment of the Intergovernmental Budget and Economic Council whose purpose is to provide a forum for consultation and cooperation between the national government and the county governments on matters relating to budgeting, the economy and financial management at the National and County level; on matters relating to borrowing and national government loan guarantees; among others. Traffic (Amendment) Bill, 2012 The Traffic (Amendment) Bill, 2012 seeks to bring a raft of major changes to the existing traffic law in Kenya. One of the more radical measures being proposed is the abolishment of the Kenya Traffic Police Department. According to the Bill, which is sponsored by Gem MP Jakoyo Midiwo, all police officers would be required to enforce traffic laws. The main objective of this Bill is to amend the Traffic Act (Cap.403) by vesting ownership of motor identification plates on the Kenya Revenue Authority, and to require surrender of the plates to the Registrar of Motor Vehicles once a motor vehicle is transferred from one person to another. The Bill further seeks to enhance the penalties for various traffic offences in
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order to deter commission of those offences and consequently minimise loss of lives on Kenyan roads through accidents. The following is a quick overview of some of the major points in the Bill: The Administrative Unit of the Kenya Police Service known as the Traffic Department would be abolished; Ownership of vehicle registration plates would be given to the Kenya Revenue Authority (KRA); Driving under the influence would attract a penalty of 10 years in jail or a minimum of KES 500 000 fine, or both; Overlapping, driving on pavements and pedestrian walkways or using petrol stations to avoid traffic would get you a three month prison term or a fine of KES 30 000, or both; The licence of a person found guilty of exceeding speed limits would be invalid for not less than 3 years if the limit is exceeded by up to 10 KPH or if the offense is repeated more than three times. Prohibition of Pyramid Schemes Bill, 2012 The object of this Bill is to prohibit certain acts in relation to pyramid schemes and proposes stiffer penalties for anybody or institution that engages in the business. The Bill, sponsored by Ikolomani MP Boni Khalwale proposes up to 10 years imprisonment or a fine of Sh10 million, or both for those involved in pyramid schemes that have in the past seen Kenyans lose billions of shillings. The Bill has a wide definition of a pyramid scheme and says it could involve marketing of goods or services, or both. Among other provisions of the Bill, it is an offence to participate in a pyramid scheme or induce another person to participate in it knowing that any benefit gained is entirely or substantially derived from the introduction to the scheme of new participants. Further, directors and partners of illegal firms fleecing Kenyans will also have no excuse that they were in the dark about the activities. The Bill provides for the liability of a relevant person of a corporate body or unincorporated body the firm or a person as a member of the unincorporated body commits an offence. The proposed law proposes that perpetrators of the schemes pay compensation, which is recoverable as a civil debt. Such payment might be financial or non-financial. However, the Bill will not interfere with pending claims filed by victims against owners of pyramid
schemes that have since collapsed. Social Assistance Bill, 2012 This Bill seeks to establish a law that will mandate the government to identify and provide social assistance to persons in need. The Bill, prepared by Sotik MP Joyce Laboso, seeks to establish the National Social Assistance Authority which, other than identifying those in need, shall have the power to make grants to any organisation, group of citizens for the purpose providing assistance to persons in need or likely to become in need. The Bill also provides that those to qualify for assistance include: orphans and vulnerable children, poor and elderly persons, unemployed persons, persons disabled by acute chronic illnesses, persons with disabilities. However, the unemployed persons to benefit from the programme will have to be youths and show proof that lack of income is not due to negligence or lack of industry. The Authority shall also maintain and promote the status, wellbeing, rights, safety and security of persons in need of social assistance. It will also develop, maintain and operate a National Social Assistance Information Management system and mobilize resources to support and fund social assistance programmes. Public Private Partnerships Bill, 2012 This Bill seeks to make it easier for the private sector to participate in government projects. If enacted, the Bill which was tabled by Finance Minister Mr Njeru Githae, will see establishment of a committee to oversee the partnerships. It will be the first comprehensive guide on how private sector players can engage the government and participate in development of infrastructure and other projects. In its Vision 2030, the government envisages rapid expansion of infrastructure and expects publicprivate partnerships to be among the approaches that would enable the realisation of turning the country into a medium status. Experts have argued that lack of clear guidelines on public-private partnerships has hindered private sector investors from investing in government projects like road construction and energy. Among the projects that the government has indicated it will rely on publicprivate partnerships include the multi-billion Lamu Port Southern Sudan Ethiopia Transport (Lapset) corridor. The Bill also seeks to review the legal, institutional and regulatory framework of public-private partnerships. Further, it addresses the sharing of
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revenues between the government and the private investors where appropriate. National Drought Management Authority Bill, 2012 Drought continues to be a major issue affecting Kenya. Certain sections of the country continue to face perennial drought which results in severe negative economic, social and environmental effects. It is against this background, and in light of the critical importance of drought management and mitigation of the effects of drought, that this Bill seeks to give the National Drought Management Authority statutory status such that the establishment of the Authority would be founded in statute rather than in an executive Order. Currently, the National Drought Management Authority exists by virtue of National Drought Management Order issued through Legal Notice No. 171 of 2011. The legal effect of this Bill therefore will be to transit the Authority established under the 2011 Order into a statutory body. Internally Displaced Persons Bill, 2012 The main object and purpose of this Bill is to: provide for the protection and assistance to internally displaced persons and to give effect to the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons and the United Nations Guiding Principles on Internal Displacement. The Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons entered into force on June 21, 2008, following ratification by eight member states, including Kenya. Under article 2(6) of the Constitution, any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. The Bill seeks to fulfill the specific aspects of Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons that required action through domestic legislation. The Bill provides for rights-based response to internal displacement and imposes an obligation on every person, including public bodies, State officers, public officers and private bodies or individuals involved in the protection and assistance to internally displaced persons in the Kenya to act in accordance with the Protocol and the Guiding Principles. Further, the Bill establishes the Protection and Assistance to Internally Displaced Persons Fund.
The Fund is the successor to the Humanitarian Fund for Mitigation of Effects and Resettlement of Victims of Post-2007 Election Violence established by regulation 3 of the Government Financial Management (Humanitarian Fund for Mitigation of Effects and Resettlement of Victims of Post-2007 Election Violence) Regulations, 2008. Public Benefits Organization Bill, 2012 This Bill seeks to provide a legislative framework to govern the establishment and operations of public benefit organisations. The Bill takes cognisance of the important role that public benefit organizations play in serving the public good, supporting development, social cohesion and tolerance within society, promoting democracy, respect for the rule of law, and providing accountability mechanisms that can contribute to improved governance. The Bill provides a legal mechanism for the registration and self-regulation of public benefit organisations. While Civil Society Organizations in Kenya are diverse in nature, there are also many registration and regulatory regimes governing them, making it difficult for effective legal and statutory compliance and accountability. Such laws, which include: the Non Governmental Organization Coordination Act of 1990, the Companies Act Cap 486 (for Companies Limited by Guarantee), Societies Act Cap 108, Trustee Perpetual Succession Act Cap 164, and Trustees Act Cap 167 have been unable to bring on board the diverse spectrum of the civil society organizations, particularly those engaged in public benefit activities. The existing fragmented and uncoordinated legal and institutional frameworks makes coordination of these organizations difficult. Finally, the Bill contains provisions on the establishment, powers and functions of the Public Benefit Organisations Registration Commission. The Commission is intended to take over from the Non-Governmental Organisation Co-ordination Board which is a body corporate and whose enabling legislation is the Non-Governmental Organisations Co-ordination Act, 1990. Prohibition of Anti-Personnel Mines Bill, 2012 The Convention on the Prohibition of the use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction (Ottawa Convention) provides for a comprehensive framework for ending the suffering caused by anti-personnel mines. States that are parties to the Convention (of which Kenya is one) have
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undertaken to cease production and acquisition of these weapons and to dispose of existing stockpiles. Article 9 of the Convention requires a party to the Convention to impose penal sanctions to suppress activities prohibited under the Convention. The object of this Bill is to therefore impose the required sanctions, in such circumstances and with such exceptions as are consistent with the terms of the Convention. The Bill prohibits use, development and production of anti-personnel mines. Further, acquiring, transferring or possessing anti-personnel mine or a component of such a mine is also prohibited, except for the purposes of certain military operations or training exercises or in other circumstances permitted under Article 3 of the Convention. The Bill also provides for the location and rendering safe of anti- personnel mines and component parts, for the issue of warnings and other notices and for the removal and destruction of mines and components by persons authorized by the Cabinet Secretary. Provision is also made for the issue of warrants and authorizations to search premises where necessary. Public Service Commission Bill, 2012 The principal object of this Bill is to re-orient the Public Service Commission to accord with the Constitution of Kenya, 2010. It achieves this by constituting and incorporating the Commission, modernizing and expanding its functions and clearly articulating the procedure for appointment and removal of the chairperson, members and secretary. The Bill also enhances the Commission's operational and financial autonomy. The Bill also provides for the composition, qualifications and appointment of members of the Commission. It clearly outlines the structure and operations of the Commission including provisions on the secretariat, power to employ staff, the role of the secretary and rules applying in the conduct of meetings of the Commission. Further, the Bill provides that all expenses incurred by the Commission in the execution of its mandate shall be a charge on the Consolidated Fund and thereby requiring the preparation of audited accounts and annual financial estimates and reports. Teachers Service Commission Bill, 2012 This Bill outlines plans by Teachers Service Commissions to overhaul rules for its engagement with teachers, including fresh registration of all
educators by TSC. The new measures outlined in this Bill will require all teachers to register afresh with TSC soon after Parliament passes it into law. The radical reforms proposed in the Bill are expected to enable students get quality education as a right in line with the Constitution. The Bill gives the Commission powers to take steps to ensure anybody in the teaching service complies with the teaching standards prescribed under the Bill. For instance, all registered teachers will be required to undertake career progression and professional development programmes that will be prescribed by new regulations. In this regard, a teacher who fails to undertake a prescribed career and professional development programmes would be struck off the roll of the teaching fraternity. Kenya National AIDS Commission Bill, 2012 The objective of this Act is to provide a legal framework for the establishment, powers and functions of the Kenya National AIDS Commission. The Commission is established as a successor to the National AIDS Control Council. In its current state the National Aids Control Council is a State Corporation established vide the National Aids Control Council Order published in Legal Notice No. 170 of 1999. In the current state the Council operates under and reports to the Office of the President. This raises serious questions of autonomy which may end up hampering the effective operations of the Council. This lack of autonomy may also be a limiting factor in the body exercising general functions. Further, funds that the Council is dependent on are drawn from the ministerial allocations. The Bill seeks to reverse this state of affairs by establishing the Commission as a body corporate with perpetual succession and a common seal. This gives it the full autonomy that comes with the status of a corporate body including the capability to sue and be sued, to enter into contracts and to own property in its own name. The funds to the Commission will also now be directly allocated by the Parliament thus strengthening the Commission. The Bill also intends to strengthen the institutional structures of the Commission by providing for a transparent and meritorious system for the appointment of the members of the Commission. The Chair and members of the Commission are made subject to and protected by the provisions of the Constitution as relates to state officers. The appointment process includes nomination by a panel and parliamentary approval.
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Kenya Medical Supplies Authority Bill, 2012 The principal object of this Bill is to establish, by statute, the Kenya Medical Supplies Authority to procure and distribute drugs and other medical supplies to all public health institutions. The Authority will be the successor to the Kenya Medical Supplies Agency established under the State Corporations Act vide the Kenya Medical Supplies Agency Order of 2000, which this Bill proposes to repeal. The Authority will improve the quality of
the health care services, and ensure its long term sustainability and availability. The Authority will among other functions ensure availability and accessibility of drugs and medical commodities to public and private health institutions, advice consumers and health providers on the rational and cost effective use of drugs and medical supplies and decentralize its warehousing functions to counties.
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ACTS AS PASSED BY PARLIAMENT

By: Wambui Kamau, Legal researcher, Laws of Kenya Department Synopsis of Land legislation as recently enacted by Parliament Section 3 of the Act applies to all land declared as public land, community land and private land. The Constitution provides for the definition of these types of land in Artciles 62,63 and 64 respectively. In brief, public land includes unalienated government land, land lawfuly held, used or occupied by any State organ, land transferred to the State, land in which no heir can be identified by any legal process. Also government forests, minerals and mineral oils as defined by law and others as described in Article 62 of the Constitution of Kenya. Community land will include land lawfully: a) registered in the name of group representatives under provisions of any law b) transferred to a specific community by any process of law c) held, managed or used by specific communities as community forests, grazing areas or shrines d) ancestral lands and lands traditionally occupied by hunter gatherer communities or e) land lawfully held as trust land by the county governments Private land on the other hand consists of registered land held by any person under freehold tenure, land held by any person under leasehold tenure and any other land declared as private land under any Act of Parliament. The forms of tenure shall be freehold, leasehold, such forms of partial interest as may be defined under the law and customary land rights. Section 7 further articulates the methods in which title to land may be acquired which include, allocation, land adjudication process, compulsory acquisition, prescription, settlement programs, transmissions, transfers and long term leases exceeding twenty years created out of private land. The National Land Commission established under the
hapter Five of the Constitution of Kenya, 2010 makes provisions on Land and Environment. Article 68 specifically stipulates the mandate of Parliament in enacting land legislation. It provides that Parliament shall revise, consolidate and rationalise existing land laws. The Land Laws that have been enacted address the folowing needs as stipulated in Arctile 68: a) prescribe minimum and maximum land holding acreages in respect of private land, b) regulate the manner in which any land may be converted from one category to another, c) protect, conserve and provide access to all public land amongst other objectives, To achieve this end, Parliament has enacted three important pieces of legislation based on the following principles as stipulated in Article 60. These include: equitable access to land security of land rights sustainable and productive management of land resources transparent and cost effective adminstration of land
The following laws were assented to by the President on the 27th April, 2012 and came into force on the 2nd of May, 2012. a) THE LAND ACT (NO. 6 OF 2012) This Act is to give effect to Article 68 of the Constitution and to revise, consolidate and rationalize land laws. It also seeks to provide for the sustainable administration and management of land and land based resources. This law repeals the Wayleaves Act (Cap. 292) and the Land Acquisition Act (Cap. 295).
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Constitution of Kenya, 2010 is to be incharge of managing public land on behalf of the national and county governments. On administration and management of Private Land, all contracts on the disposition of land must be in writing and signed by all the parties and each signature attested to by a witness who was present when the contract was signed by such a party. On transfers, section 43 defines a transfer to include a conveyance, an assignment, transfer of land, lease or other intrument used in the disposition of an interest in land. Transfers are to take effect immediately. This Act provides for transmissions by providing details on transmission on death and bankruptcy or upon companys liquidation. Provisions on leases and charges are substantively articulated. On compulsory acquisition of land, the national or county government may acquire some particular land compulsorily of which just compenstaion shall be paid promptly in full to all persons whose interests in land have been determined. Disputes under this Act may be referred to the Land and Environment Court for determination. This Court will have exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under the Act. Settlement Programmes are provided for in Part IX. The National Land Commission is charged with the mandate to implement settlement programmes to provide access to land for shelter and livelihood. The Commission will also assist the national and county governments in the administration of setlement programmes. To achieve this end, the Land Settlement Fund is established under section 135 which shall be administered by the Commission. This Fund will be applied for the provision of access to land to squatters, dispalced persons,. Development projects, conservation and other such cayuses. It will also be used for the establishment of refugee camps, provision of shelter and a liveilihood to persons in need. This Law repeals the Wayleaves Act(Cap. 292) and the Land Acquisition Act (Cap. 295). b) THE LAND REGISTRATION ACT (NO. 3 OF 2012) This law seeks to revise, consolidate and rationalize the registration of titles to land and to give effect to the principles and objects of devolved government in land registration. According to Section 3, this
Act shall apply to registration of interests in all public land, private land and registration and recording of community interests in land. On limitation of the Act, the Act will not prohibit or otherwise affect the system of registration under any law relating to mining, geo-thermal energy or any rights over land and land- based resources in respect of public land. On organisation and administration, Part II provides for the Land Register and Offices and for the proper maintenance of the land register and documents such as the cadastral map, parcel files, any plans, index, presentation book and a register and a file of powers of attorney. Overiding interests such as spousal rights over matrimonial property, trusts, rights of way are provided for. The following laws are repealed by this piece of legislation: c) The Indian Transfer of Property Act, 1882 d) The Government Lands Act (Cap. 280) e) The Registration of Titles Act (Cap. 281) f) The Land Titles Act (Cap. 282) g) The Registered Land Act (Cap. 300) THE NATIONAL LAND COMMISSION ACT (NO. 5 OF 2012) This makes further provision as to the functions and powers of the National Land Commission. The object and purpose of the Act is to specifically to provide for the management and adminstration of land in accordance with the principles of land policy, for the operations, powers, responsibilities and additional functions of the Commission. It also seeks to provide for the framework for the identification and appoitnment of the chairperson, members and the secretary of the Commission. The function of this Commission will be to recommend a national land policy to the national government amongst other duties stipulated in Article 67(2) of the Constitution. It also seeks to give effect to the objects and principles of devolved government in land management and administration. In carrying out functions, the Commission shall work in consultation and co-operation with the national and county governments.
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KENYA SCHOOL OF GOVERNMENT ACT (NO. 9 OF 2012) This Act establishes the Kenya School of Government as a successor to the Kenya Institute of Administration and the Kenya Development Learning Centre. It is to commence on the 1st July, 2012. The School will be responsible for the training, consultancy and research services designed to inform public policy, promote national development and standards of competence and integrity in the Public Service.It will also be responsible for the continous learning for public service excellence and programmes that promote a culture of decency, honesty, hard work, transparency and accountability. It shall be administered by a Council which shall consist of a non- executove chairperson, the Permanent Secretaries in the ministry responsible for public service, finance, higher education and other key persons stipulated in section 6. This Act repeals the Kenya Institute of Administration, (No. 2 of 1996). THE PUBLIC SERVICE SUPERANNUATION ACT (NO. 8 OF 2012) This Act is to establish the Contributory Public Service Superannuation Scheme for providing retirement benefits to persons in the public service. However, it shall come into operation on such date as the Minister may appoint by notice in the Kenya Gazete. The purpose of the Act is to pay retirement benefits to members of the Scheme, ensure
that every member of the Scheme receives his retirement benefits. It will aso assist to improve the social security of members of the Scheme by ensuring that the members save in order to cater for their livelihood during their retirement and to establish a uniform set of rules, regulations for the admninistration and payment of retirement benefits for members of the Scheme. The Public Superannuation Fund is established and the monies that shall be paid into it will be contributions and any other payments required by this Act and out of it, will be the benefits and any other payments required under the provisions of this Act. This Fund wil be administered by a board of trustees. This Fund wil be valued at intervals of five years by an actuary appointed by the Board. The Act further seeks to amend the Pensions Act (Cap. 189) by stipulating who the provisions of the Act do not apply to. These persons include: a) a person who at the commencement of this Act is employed in the public service on permanent and pensionable terms and has not attained the age of forty five years. b) Secondly, a person who joins the service of the Government after the commencment of this Act and c) lastly a person who in the service of the Government at the commencment of the Act elects that the provisions shall apply to him. Further amendments of the same effect are made to the Widows and Childrens Pensions Act (Cap.195), National Social Security Fund Act (Cap. 258).
Information Courtesy of the Commission for the Implementation of the Constiution - www.cickenya.org
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Legislative Supplements: A digest of selected legal notices recently published in the Kenya Gazette
By: Yvonne Kirina, Copy Reader. Laws of Kenya Department
DATE OF PUBLICATION IN KENYA GAZETTE
KENYA GAZETTE SUPPLEMENT NUMBER
NAME OF LEGISLATION
REMARKS
9th March, 2012.
No. 12.
The Parliamentar y Service (Constituency Offices) (Amendment) Regulations, 2011 L.N. 13/2012.
These Regulations amend the Parliamentary Service (Constituency) Offices regulations, 2005 by inserting certain words to comply with the Constitution. Further, regulations 2, 3, 13, 35 have been amended while a new regulation was inserted immediately after regulation 11 which provides that every nominated Member of Parliament shall have an office within the precints of Parliament in Nairobi. This Order is made under the Independent Electoral and Boundaries Commission Act No.9 of 2011. Pursuant to Article 89(1) of the Constitution, there shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97(1) (a). This Order determines the number, names and delimitation of boundaries for constituencies and county assembly wards; and the specific geographical and demographical details relating to such delimitation.
No. 13.
The National Assembly Constituencies And County Assembly Wards Order, 2012. L.N. 14/2012
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No. 16.
The Limited Liability Partnership Act, No. 42 of 2011 L.N. 15/2012
Through this notice, the AttorneyGeneral appoints the 16th March, 2012, as the date on which this Act shall come into operation.
23rd March, 2012
No. 17.
The Copyright (Amendment) Regulations, 2012 L.N. 20/2012
These Regulations seek to amend the Second Schedule of the Copyright Regulations 2004, by deleting Form No. CR 1 and substituting with Form No. CR 1(Revised).The Schedule contains an Application for Registration of a Copyright Work Form. Further the Second Schedule to the Copyright Regulations, 2004, is amended in item1 by deleting the number 600 and substituting it therefor the number 1,000. This has the effect of raising the fees for application of registration of copyright work.
13th April 2012
No. 22
The Medical Practitioners And Dentists (Disciplinary Proceedings) (Procedure) (Amendment) Rules, 2012 L.N. 21/2012.
The Medical Practitioners And Dentists (Disciplinary Proceedings) (Procedure) Rules are amended by inserting a new rule 4A, Professional Conduct Committee. This establishes a Committee charged with various functions; a) Conduct inquiries into the complaints submitted by the preliminary Inquiry Committee made under Rule 4(2) and make appropriate recommendations to the Board. b) ensure that the necessary administrative and evidential arrangements have been met so as to facilitate the Board to effectively undertake an inquiry under rule 6;. c) convene sittings in respective counties to determine complaints;
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d) promote arbitration between the parties and refer matters to such arbitrator as the parties may in writing agree No. 25 The Konza Technopolis Development Authority L.N. 23/2012. Made under section 3 (1) of the State Corporations Act, Cap. 446, this order establishes an Authority to be known as the Konza Technopolis Development Authority. Under this order, the word Area means all that parcel of land known as L.R. 9918/6 located within Makueni and Machakos Counties measuring approximately 2023.6 hectares. The Authority will be manged by a Board which will be comprised of a non-executive chairperson appointed by the President, the Permanent Secretar y to the Treasur y, the Permanent Secretary in the Ministry for the time being responsible for matters relating to information and communications technology among others. The functions of the Board will be to; a) to develop all aspects of the area; to regulate and administer approved activities within the Area, through implementation of a system in which the Area enterprises are self regulatory to the maximum extent possible; b)liaise with relevant government institutions to promote both locally and internationally the opportunities for investment in information and communications technology and such other industrial activities of the Area; c) liaise with the Machakos and
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Makueni County Authorities to ensure developments within the buffer zone are in line with the permitted standards of the Area. d) generate additional economic activities in the area and to carr y out any other activity necessary for the promotion and facilitation of development of information and communication technology products and services within the Area. No. 26 The Petroleum (Amendment) Rules, 2012 L.N. 24/2012. These regulations amend regulation 31A of the Petroleum Rules found in the Energy Act. With effect from the 1st July, 2012, no person shall import or cause to be imported refined petroleum products except (a) liquefied petroleum gas; (b) bitumen, and (c) fuel oil for use in Kenya other than through an Open Tender System centrally coordinated by the Ministry responsible for energy. All importation of refined petroleum products other than those stated above shall except where exempted by the Minister in writting, be through the Kipevu Oil Storage Facility, Shimanzi Oil Terminal, Miritini LPG Import Terminal and Kenya Petroleum Refineries Limited, Changamwe, Mombasa. 20th April, 2012 No. 27 T h e K e n y a Wa t e r Towers Agency Order, 2012 L.N. 27/2012. Under this Order, Biodiversity hotspot means a unique habitat with rare and diverse animals, organisms and endangered species, which is under threat of extinction; The functions of the Agency among other things is to co-ordinate and oversee the protection, rehabilitation, conservation, and sustainable management of water towers.
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REMARKS
18th May, 2012
No. 41
The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) rules, 2012. L.N. 31/2012.
This Legal Notice is under the Treaty for the Establishment of the East African Community Act, No 2 of 2000. The rules, among other things provide for the election, voting and appointment of members of the East African Legislative Assembly.
No. 45
The Judiciary Fund Regulations, 2012 L.N. 35/2012.
These Regulations are found under the Judicial Service Act,1 of 2011.The objectives of the fund are; (a) to utilise it for the settlement of the administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the mandate of the Judiciary; (b) for defraying personal emoluments, program activities for the Commission, the Supreme Court, the Court of Appeal, the High Court, Subordinate Courts and other judicial services under the Act. Sources of the Fund shall be from all proceeds resulting from net proceeds of disposal of excess or surplus property, or stores, including miscellaneous receipts; Funds from Parliament, Consolidated Fund fees or Levies administered by the Judiciary; grants, gifts, donations or bequests.
31st May, 2012
No. 48
The Biosafety (Labeling) Regulations, 2012 L.N. 40/2012.
The Biosafety (Labelling) Regulations are made under the BioSafety Act 2009. In these regulations, labeling is defined as any written, printed, or graphic matter that accompanies
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a food or is displayed near the food, including that for the purpose of promoting its sale or disposal. The object and purpose of these regulations is to ensure that i ) Consumers are made aware that food feed or a product is genetically modified so that they can make informed choices and ii) To facilitate the traceability of genetically modified organism products to assist in the implementation of appropriate risk management measures where necessary. No. 48 The Nurses (Nominations And Elections To The Council) Regulations, 2012 L.N. 41/2012. These regulations are made under sec 4(2) & 26 of the Nurses Act. The regulations provide for the procedure for nominations of members to the Council and procedure for appointment of nominated members. Further, the regulations provide for the qualifications of various categories of elected members to be elected to the council. These regulations are under the Energy Act. Regulation 2 provides an application to any person who engages or intends to engage in the generation, transmission, distribution and supply of electricity energy in Kenya. Such persons shall make an application in the Form and manner set out in the First Schedule and the application shall contain information required therein and be accompanied by the information and documents specified in the Second Schedule; An application for a licence shall be accompanied by a non-refundable fee of ten thousand shillings payable to the Rural Electrification Authority.
No. 49
The Energy (Electricity Licensing) Regulations, 2012 L.N. 44/2012.
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REMARKS
The National Construction Authority Act.(No. 41 of 2011) L.N. 45/2012.
The Minister for Public Works appoints 8th June, 2012 as the date on which this Act shall come into operation. This Act provides for the establishment, powers and functions of the National Construction Authority and for connected purposes. The Minister of State for Public Service appoints the 1st July, 2012, as the date on which this Act shall come into operation. Subsection 5(1) provides that the School shall provide learning and development programmes to build capacity for the Public Service. The Kenya Citizenship and Immigration Regulations, 2012, seeks to make provisions for the application of the Kenya Citizenship and Immigration Act, No. 12 of 2011. These Regulations make provisions on the import of permanent residence certificate and student pass, procedure on how to regain citizenship, dual citizenship, renunciation of Kenyan Citizenship, application for citizenship by registration and the revocation of Kenyan Citizenship. Fur ther, the regulations make provisions on the application of passports and other travel documents and the information to be contained thereto. Lastly, these regulations provide for the Immigration control, points of entry departure, reports of entry and departure and the types of Visas to be issued by the Directors of Immigration services and permits of passes to be issued by an immigration officer and the procedure for acquiring them. The foreign naturals register, accommodation and employment records.
No. 52
The Kenya School of Government Act (No. 9 of 2012) L.N. 46/2012.
15th June, 2012
No. 63
The Kenya Citizenship and Immigration Regulations, 2012 L.N. 64/2012.
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A RECAP OF EXECUTIVE APPOINTMENTS PUBLISHED IN THE KENYA GAZETTE FOR THE PERIOD APRIL- JUNE 2012
By: Wanjala Sikuta, Legal proof reader, Laws of Kenya Department
he Kenya Gazette is an official publication of the Government of the Republic of Kenya. It contains notices of new legislation, notices required to be published by law or policy as well as other announcements that are published for general public information. It is published every week, usually on Friday, with occasional releases of special or supplementary editions within the week. The following is a recap of notable appointments made under the Kenya Gazette from April to June, 2012. A). STATE CORPORATIONS AND PARASTATALS State corporations are by order established by the President and generally regulated by the State Corporations Act (Cap. 446). The President or the Minister under whose docket the particular body lies make various appointments to the various state corporations, parastatals and even commissions. State Advisory Committees are established under section 26 of the Act and whose functions are mandated in section 27 to advise the president on the establishment, reorganization and dissolution of the state corporations. Gazette Notice No. 244 Dated 16th February, 2012 PHYSICAL PLANNERS REGISTRATION BOARD The Minister for Lands in exercise of the powers conferred by paragraph 1(b) of the Schedule to the Physical Planners Registration Act, appointed-
JANE M. MANASSEH to be a member of the Physical Planners Registration Board for a period of three(3)years effective 26th January, 2012. Gazette Notice No. 2444 Dated 21st February 2012 KENYA ORDINANCE FACTORIES CORPORATION The Minister of State for Defence in exercise of section 6(1) of the State Corporations Act appointedMAJ.-GEN. S.N. KARANJA as a member of the Board of Directors of Kenya Ordinance Factories Corporation (KOFC) for a period of three (3) years effective 18th February, 2011 Gazette Notice No. 2446 Dated 22nd February 2012 THE COMMISSION FOR HIGHER EDUCATION The Minister for Higher Education, Science and Technology in exercise of the powers conferred by section 4 (1) (e) of the Universities Act appointedKIPLAGAT KOTUT to be a Commissioner for Commission for Higher Education, for a period of five (5) years effective 31st October, 2011. The appointment of David Court as Commissioner for Commission for Higher Education was revoked.
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Gazette Notice No. 2799 Dated 5th March, 2012 NON-GOVERNMENTAL ORGANIZATIONS COORDINATION BOARD The Minister of State for National Heritage and Culture in exercise of the powers conferred by section 5(1) of the Non-Governmental Organizations Co-ordination Act, appointedPETER OLOISHORUA OLE NKURAIYIA to be the Executive Director of Non-Governmental Organizations Co-ordination Board, for a period of three (3) years effective 15th February, 2012. Gazette Notice No. 2801 Dated 2nd February, 2012 H OR TICU LT U R AL CR OP S D E V E LO P ME N T AUTHORITY BOARD The Minister for Agriculture in exercise of the Horticultural Crops Development Authority Order, 1995, appointedSTEPHEN MBITHI MWIKYA (DR.) to be a Board member of the Horticultural Crops Development Authority, for a period of three (3) years effective 3rd February, 2012. Gazette Notice No. 2802 Dated 1st March, 2012 COAST DEVELOPMENT AUTHORITY The Minister for Regional Development Authorities in exercise of the powers conferred by section 4 (1)(i) of the Coast Development Authority Act, appointedMICHAEL MURE to be a member of the Coast Development Authority for a period of three (3) years effective 12th March, 2012. Gazette Notice No. 2801 Dated 2nd March, 2012 KENYA SUDAR BOARD The Minister for Agriculture in exercise of the powers conferred by section 5(1) and (3) of the Sugar Act, 2001 appointedUnder section 5(1)(b):Kiptorus Arap Korir, Ewing Makhakha Muombo, Zakaria Okoth Obado, Nicholas Odongo Oricho, Billy Wanjala Mukenya,
Mohammed Mukhwana. Under section 5 (1) (c)Evans Kidero (Dr.), Paul O. Odola, Himesh Kumar B. Patel. to be members of Kenya Sugar Board for a period of three 3years effective 1st March, 2012. Gazette Notice No. 2807 Dated 2nd March, 2012 KERIO VALLEY DEVELOPMENT AUTHORITY The Minister for Regional Development Authorities appointedMOSES LENAIROSHI to be a member of the Kerio Valley Development Authority for a period of three (3) years effective 12 March, 2012. Gazette Notice No. 3218 Dated 12th January, 2012 PHARMACY AND POISONS BOARD The Minister for Medical Services in exercise of the powers conferred by section 3(1) of the Pharmacy and Poisons Act, appointedFrancis Kimani (Chairman) Kipkerich Chumo Koskei (Dr.) Peter Ithondeka(Dr.) Paul Mwaniki(Dr.) Joseph Oluoch(Dr.) Jeniffer Orwa (Dr.) Abdi Orma Jama, Evans Mumo Mwangangi(Dr.) to be members of the Pharmacy and Poisons Board for a period of three (3) years effective 16th March, 2012. Gazette Notice No. 3221 Dated 12th March, 2012 KENYA YEAR BOOK BOARD The Minister for Information and Communications in exercise of the powers conferred by section 3(2)(j) of the Kenya Year Book Order, 2007, appointedMundia Muchiri Philip Ochieng to be members of the Kenya Year Book Board for a period of three(3) years effective 23rd January, 2012.
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Gazette Notice No. 3222 Dated 9th March, 2012 WORKING COMMITTEE ON THE KENYAN CASE BEFORE THE INTERNATIONAL CRIMINAL COURT Attorney-General notified for general information of the public that the period of appointment of the working committee to advise the Government on the case before the International Criminal Court involving Kenyan Citizens contained in Gazette Notice No. 996 of 2012 had been extended for a period of ten days effective 7th March, 2012. Gazette Notice No. 3588 Dated 5th March, 2012 National Hospital Service Committee The Minister for Medical Services in exercise of the powers conferred by section 6(2)(a) of the Governmental Financial Management(Hospital Management Services) Regulations, 2009, appointedSAID KAITANY as Chairman of the National Hospital Service Committee for a period of three(3) years. The appointment of Beatrice Sabana was revoked. Gazette Notice No. 3586 Dated 14th March, 2012 NATIONAL CEREALS AND PRODUCE BOARD The Minister for Agriculture in exercise of the powers conferred by section 32(b)(c) and (d) of the National Cereals and Produce Board Act, appointedGeoffrey Gitamo Obure, Sunil Shah, Daniel Damocha Dibo, Monica Amolo, Ahmed Ferej (Dr.) to be members of the Board of the National Cereals and Produce Board for a period of three (3) years effective 16th March, 2012. The appointments of Mohammed Islam Ali, Adrian W. Mukhebi and Timothy K. Busienei were revoked. Gazette Notice No. 3588 Dated 7th March, 2012 THE KENYA FORESTRY RESEARCH INSTITUTE (KEFRI) The Minister for Forestry in exercise of the powers conferred by section 19 (1) of Science and
Technology Act, appointedBEN E.N. CHIKAMAI (DR.) to be the Director of the Kenya Forestry Research Institute for a period of three (3) years effective 1st May, 2012. Gazette Notice No. 3973 Dated 21st March, 2012 NATIONAL GENDER AND EQUALITY COMMISSION The President and Commander-in-Chief of Kenya Defence Forces in consultation with the Prime Minister and in exercise of the powers conferred on him by section 11 (9) of the National Gender and Equality Commission Act, 2011, as read with section 9 of the Act, appointedSIMON JONI NDUBAI to be a member of the National Gender and Equality Commission effective 23rd November, 2011 Gazette Notice No. 4335 Dated 7th March, 2012 NATIONAL LABOUR BOARD The Minister for Labour in exercise of the powers conferred by section 6(1) of Labour Institutions Act, 2007, appointedUnder part (a) Ekuru Aukot - (Chairperson) Under paragraph (b) Francis Atwoli Under paragraph (c) Jacqueline Mugo Under paragraph (d) Christopher Malayu Maureen Onyango Under paragraph (e) George N. Muchai Isaiah Kubai Under paragraph (f) Edna Ameyo George Kamau to be members of the National Labour Board, for a period of three(3) years effective 21st March, 2012. Gazette Notice No. 4339 Dated 2nd April, 2012 COMPETENT AUTHORITY The Attorney-General in exercise of the powers conferred by section 48(1) of the Copyright Act,
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2001, appointedBenard Sihanya(Prof.) (Chairman) Members: Paul Musili Wambua(Prof.), Leonard Aloo Obura, JohnSyekei, Michi Kirimi, to be members of the competent Authority for a period of three (3) years. Gazette Notice No. 6385 of 2009 was revoked. Gazette Notice No. 4338 Dated 2nd April, 2012 ANTI-CORRUPTION AND ECONOMIC CRIMES ACT Chief Justice/ President of the Supreme Court in exercise of the powers conferred by section 3 (1) of the Anti-corruption and Economic Crimes Act, appointedSTEPHEN N. RIECHI Chief Magistrate, as special magistrate to preside over cases involving corruption and economic crimes in the area of jurisdiction of his current court station and future stations deployed to from time to time effective 2nd April, 2012. Gazette Notice No. 4680 Dated 2nd April, 2012 CONSOLIDATED BANK OF KENYA The Minister for Finance in exercise of the powers conferred by section 6 (1)(e) of the State Corporations Act, appointedMethuselah Langat Rono, George Mugo Murage to be members of the Board of Consolidated Bank of Kenya Limited for a period of three (3) years effective 12th March, 2012. Gazette Notice No. 4681 Dated 2nd April, 2012 COMPETITION TRIBUNAL The Minister for Finance in exercise of the powers conferred by section 71(2)(a) of the Competition Act, appointedSAMUEL NDUNGU MUKUNYA to be the Chairman of the Competition Tribunal for a period of five (5) years effective 12th March, 2012. Gazette Notice No. 4686 Dated 4th April, 2012
NATIONAL SOCIAL SECURITY FUND BOARD OF TRUSTEES The Minister for Labour in exercise of the powers conferred by section 1 of the First Schedule to the National Social Security Fund Act, appointedUnder paragraph 1(d)(i)Jacqueline Mugo, Under paragraph 1(d)(ii)Francis Atwoli, Cornelius Ogutu Nyangun, to be members of the National Social Security Fund Board of Trustees for a period of three (3) years. Gazette Notice No. 4682 Dated 22nd March, 2012 The Minister for Trade in exercise of the powers conferred by section 6(1)(e) of the State Corporations Act, appointedJOSEPH MWANGI WACHIURI to be a member of the Board of Directors of the Kenya Wine Agencies Limited for three years (3) years effective 20th March, 2012 Gazette Notice No. 4684 Dated 26th March, 2012 KENYA MEDICAL RESEARCH INSTITUTE The Minister for Public Health and Sanitation in exercise of the powers conferred by section 15(1) (f) of the Science and Technology Act, appointedRuth Nduati (Prof.) Peter Omboga (Dr.) Wilson Kipngeno Koech (Prof.) to be members of the Kenya Medical Research Institute Board of Management for a period of three (3) years effective 1st March, 2012. Gazette Notice No. 4688 Dated 11th April, 2012 KENYA AGRICULTURAL RESEARCH INSTITUTE The Minister for Agriculture in exercise of the powers conferred by section 19 of the Science and Technology Act, appointedEPHRAIM A. MUKISIRA(DR.) to be Director, Kenya Agricultural Research Institute and under section 15(1)(d) to be the Secretary to the Board of Management of Kenya Agricultural Research Institute for three (3) years effective 10th April, 2012.
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three (3) years effective 13th March, 2012. Gazette Notice No. 4689 Dated 29th March, 2012 NATIONAL COUNCIL FOR LAW REPORTING The Chief Justice/President of the Supreme Court and Chairman of the National Council for Law Reporting notified for general information of the public that in exercise of the powers conferred on him by section 4(1)(f) of the National Council for Law Reporting Act, the Law Society of Kenya had appointedFlorence Muoti Mwangangi Evans Monari to be members of the Board of the National Council for Law Reporting representing the Law Society of Kenya for a period of three (3) years effective 23rd March, 2012. Gazette Notice No. 5047 Dated 10th April, 2012 KENYA WINES AGENCIES LIMITED (KWAL) The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, reappointedRICHARD MOITALEL KENTA to be the Chairman of the Kenya Wine Agencies Limited (KWAL) for three (3) years effective 13th March, 2012., Gazette Notice No. 5048 Dated 10th April, 2012 EXPORT PROMOTION COUNCIL The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedPETER NJERU NDWIGA to be the Chairman of the Export Promotion Council for three (3) years effective 13th March, 2012. Gazette Notice No. 5051 Dated 10th April, 2012 KENYA ROADS BOARD The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedJOEL MUTHUNGA WANYOIKE (ENG.) to be the Chairman of the Kenya Roads Board for Gazette Notice No. 5052 Dated 10th April, 2012 NATIONAL GENDER AND EQUALITY COMMISSION The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, in exercise of the powers conferred on him by section 11(9) of the National Gender and Equality Commission Act, 2011 as read with section 9 of the Act and in consultation with the Prime Minister, appointedWINFRED OSIMBO LICHUMA to be the Chairperson of the National Gender and Equality Commission for three (3) years effective 23rd November, 2011. Gazette Notice No. 5049 Dated 10th April, 2012 TRANSPORT LICENSING BOARD The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedJOSEPH KAMAU THUO (ENG.) to be the Chairman of the Transport Licensing Board for one (1) year. Gazette Notice No. 5053 Dated 13th April, 2012 NATIONAL CAMPAIGN AGAINST DRUG ABUSE AUTHORITY( NACADAA) The Minister of State for Provincial Administration and Internal Security appointedWILLIAM N. OKEDI The National Co-ordinator and Chief Executive Officer of the Authority for three(3) years effective 6th April, 2012. Gazette Notice No. 5054 Dated 15th February, 2012 NZOIA SUGAR COMPANY LIMITED The Minister for Agriculture appointedSAUL WASILWA to be the Managing Director and Secretary to the Board of Nzoia Sugar Company Limited for three (3) years effective 20th May, 2012.
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Gazette Notice No. 5055 Dated 16th April, 2012 KENYA CITIZENS AND FOREIGN NATIONALS MANAGEMENT SERVICE BOARD The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedAMB. KALIMI MUGAMBI MWORIA to be the Chairperson of the Kenya Citizens and Foreign Nationals Management Service Board for six (6) years. Gazette Notice No. 5058 Dated 10th April, 2012 CONSTITUENCIES DEVELOPMENT FUND The Minister of State for Planning, National Development and Vision 2030, appointedBONIFACE LOKAALE KOROBE to be a member of the Board of the Constituencies Development Fund for three (3) years effective 10th April, 2012. Gazette Notice No. 5060 Dated 13th April, 2012 KENYA FERRY SERVICES The Minister for Transport appointedKhamis S. Khamis, Miriam N. Mahero (Mrs.) to be members of the Board of Directors of the Kenya Ferry Services for three (3) years effective 16th April, 2012. Gazette Notice No. 5061Dated 10th April, 2012 KENYA PORTS AUTHORITY The Minister for Transport appointedBernard Gaithuma Njuguna, Eunice Wanja Njeru (Ms.), Khadija Karim (Mrs.), to be members of the Board of Directors of the Kenya Ports Authority for three (3) years effective 17th April, 2012. Gazette Notice No. 5061Dated 10th April, 2012 KENYA RAILWAYS CORPORATION The Minister for Transport appointedCharity Kanyeche Maingi(Mrs.), Michael Njau Njoroge, to be members of the Board of Directors of the
Kenya Railways Corporation for three (3) years effective 8th April, 2012. Gazette Notice No. 5068 Dated 1st April, 2012 NEW NYANZA PROVINCIAL HOSPITAL The Minister for Medical Services notified for public information that the name of the New Nyanza Provincial General Hospital had been changed to JARAMOGI OGINGA ODINGA TEACHING AND REFERRAL HOSPITAL Gazette Notice No. 5064 Dated 10th April, 2012 KENYA CIVIL AVIATION AUTHORITY The Minister for Transport appointedKEVIN KANINA KARIUKI (DR.) to be the Chairman of the Board of Directors of the Kenya Civil Authority for three (3) years effective 2nd April, 2012. Gazette Notice No. 5415 Dated 18th April, 2012 NATIONAL OIL CORPORATION OF KENYA The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedPETER K. MUNGA to be the Chairman of the Board of Directors, National Oil Corporation for three (3) years effective 24th March, 2012. Gazette Notice No. 5416 Dated 19th April, 2012 NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY(NEMA) The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedGEOFFREY M. WAHUNGU(PROF.) to be Director-General of the National Environment Management Authority(NEMA) for four (4) years. Gazette Notice No. 5417 Dated 18th April, 2012
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MULTI-AGENCY TASK FORCE ON THE 2007/2008 POST-ELECTION VIOLENCE CASES The Director of Public Prosecutions notified for the general information of the public that he had established a Multi-Agency Task Force to consider the cases arising out of the 2007/2008 PostElection Violence The Task Force comprised of the following; Dorcas Oduor(Chairperson) Joseph Kingarui(Vice-chairperson) Members Emily Chweya Mohamed I. Amin Lilian Kiamba James Marienga Sebastian Mutinda Patrick Ndeto Thomas Kathuli Alexander Muteti Zachary Omwega Lilian Obuo George Murithi Geoffery Obiri Peter Kiprop Benjamin B. Limo Katherine Kithikii Mary Wangele Armstrong Rotich Terry Kahoro The terms of reference of the Task Force was (a) undertake a country-wide review, reevaluation and re-examination of all the cases arising out of the 2007/2008 Post-Election Violence and make appropriate recommendations; (b) review any reports, publications and judicial decisions that are relevant to the Post(c) The duration of the Task Force was a period of six months, with effect from the 6th February, 2012. (d) The Secretariat of the Task Force was at the Office of the Director of Public Prosecutions, NSSF Building; Block A, 19th Floor, P. O. Box 30701-00100, Nairobi. Gazette Notice No. 5419 Dated 19th April, 2012 ENERGY REGULATORY COMMISSION The Minister for Energy, appointedStanley Ngaine, Nassra Abdirahman, to be Commissioners of the Energy Regulatory Commission for three (3) years effective 20th
April, 2012. Gazette Notice No. 5420 Dated 23rd April, 2012 KENYA ORDINANCE FACTORIES CORPORATION (KOFC) The Minister of State for Defence appointedMAJOR-GENERAL L.K. TUMBO as a member of the Board of Directors of the Kenya Ordinance Factories Corporation(KOFC) for three (3) years effective 11th April, 2012. The appointment of Major-General S.N. Karanja was revoked. Gazette Notice No. 6258 Dated 9th April, 2012 NATIONAL HOSPITAL INSURANCE FUND BOARD The President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, appointedRichard Muga (Prof.)(Chairman); Members: Wilson Sossin, David Konchella, Judith Bwonya (Dr.), Andrew J. Suleh (Dr.), Elijah Adui Onyango, Jacqueline Mugo (Mrs.), Julius Mutua, Francis Kimani (Dr.), Samwel Karicho, Richard L. Kerich, as members of the National Hospital Insurance Fund Board, effective 9th May, 2012. Gazette Notice No. 6260 Dated 30th April, 2012 CHEMELIL SUGAR COMPANY LIMITED IN EXERCISE of the powers conferred by section 6 (1) (b) of the State Corporations Act, the Minister for Agriculture appointed CHARLES APUDO OWELLE to be the Managing Director, Chemelil Sugar Company Limited, for a period of three (3) years, with effect from the 11th May, 2012. Gazette Notice No. 6259 Dated 9th May, 2012 NATIONAL HOSPITAL INSURANCE FUND IN EXERCISE of the powers conferred by section 7 (3) of the State Corporations Act, the President and Commander-in-Chief of the Kenya Defence
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Forces, appointed Mutuma Mugambi (Prof.)(Chairman), Titus Ndambuki, Permanent Secretary, Ministry of State for Public Service, Esther Koimett (Ms.), Permanent Secretary, Ministry of Finance (Representative), Beatrice Kituyi, Permanent Secretary, Ministry of Labour, Mary W. Ngari, Permanent Secretary, Ministry of Medical Services, Peter Ondieki, Inspector-General, State Corporations, Office of the Prime Minister, Stephen K. Kirogo, Secretary, State Corporations Advisory Committee, Presidency and Cabinet Affairs Office, Francis Atwoli, Secretar y-General, Central Organization of Trade Unions (COTU), Jackline Mugo, Federation of Kenya Employers, Tom Odege, Secretary-General, Union of Kenya Civil Servants, David Okuta, Secretary-General, Kenya National Union of Teachers, to be members of the Board of the National Hospital Insurance Fund, for a period of three (3) months. Gazette Notice No. 6262 Dated 9th May, 2012 KENYA AIRPORTS AUTHORITY IN EXERCISE of the powers conferred by section 5 (1) (f) of the Kenya Airports Authoriity Act, the Minister for Transport appointed GABRIEL COMBA KIVUTI to be a member of the Board of Directors of the Kenya Airports Authority, for a period of three (3) years, with effect from the 3rd May, 2012. Gazette Notice No. 6938 Dated 22nd May, 2012 INDEPENDENT POLICING OVERSIGHT AUTHORITY IN EXERCISE of the powers conferred by section 11 (8) of the Independent Policing Oversight Authority Act, 2011, the President and Commander-in-Chief of the Kenya Defence Forces, appointed MACHARIA NJERU to be the Chairperson of the Independent Policing Oversight Board for a period of six years. Gazette Notice No. 6939 Dated 22nd May, 2012 INDEPENDENT POLICING OVERSIGHT AUTHORITY IN EXERCISE of the powers conferred by section 11 (8) of the Independent Policing Oversight Authority Act, 2011, the President and Commander-in-Chief
of the Kenya Defence Forces, appointed Mbugua Thomas Kagwe Fatuma Ali Saman Jedidah Pilale Ntoyai Madoka Grace Barbara Vincent Kibet Kiptoo Rose Awuor Bala Jane Njeri Njoki Onyango to be Members of the Independent Policing Oversight Board for a period of (6) years. Gazette Notice No. 6940 Dated10th May, 2012 KENYA FORESTRY RESEARCH INSTITUTE IN EXERCISE of the powers conferred by section 15 (1) (f) of the Science and Technology Act, the Minister for Forestry and Wildlife appointed ROBERT MASIBHO WANJALA to be a member of the Board of Management of the Kenya Forestry Research Institute, for a period of three (3) years, with effect from the 28th March, 2012. Gazette Notice No. 6941 Dated14th May, 2012 NATIONAL COMMUNITY SERVIC ORDERS COMMITTEE IN EXERCISE of the powers conferred by section 7 (1) (j) of the Community Service Orders Act, the Chief Justice/President of the Supreme Court, appointed Timothy Okello, Roseline Njogu Mugambi, to be members of the National Community Service Orders Committee, with effect from the 1st April, 2012. Gazette Notice No. 7262 Dated 30th April, 2012 COFFEE RESEARCH FOUNDATION IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appointed Jenesio Kinyamario (Prof.), Elijah Biamah (Prof.), Joseph Mailu Malu, Henry Kipngeno Tonui, to be members of the Board of Coffee Research Foundation for a period of three (3) years, with effect from 11th
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May, 2012. Gazette Notice No. 7264 Dated 29th May, 2012 NATIONAL CONSTRUCTION AUTHORITY IN EXERCISE of the powers conferred by section 7 (1) (g) of the National Construction Authority Act, 2011, the Minister for Public Works appointed KENNEDY ONDITI to be the Chairperson of the Board of the National Construction Authority, for a period of three (3) years, with effect from the 8th June, 2012. Gazette Notice No. 8281 Dated 18th June, 2012 THE TRANSITION AUTHORITY IN EXERCISE of the powers conferred by section 5 (1) (a) and First Schedule to the Transition to Devolved Government Act, 2012, President and Commander-in-Chief of Kenya Defence Forces, in consultation with the Prime Minister, appointed KINUTHIA MWANGI WAMWANGI to be the Chairperson of the Transition Authority. Gazette Notice No.8282 Dated 18th June, 2012 THE TRANSITION AUTHORITY IN EXERCISE of the powers conferred by section 5 (1) (a) and First Schedule to the Transition to Devolved Government Act, 2012, President and Commander-in-Chief of Kenya Defence Forces, in consultation with the Prime Minister, appointed Angeline Awino Hongo, Safia Abdi, Mary Mwongeli Ndeto, Jacqueline Akhalemesi Mogeni, Erastus B. I. Nyaga Rweria, Simeon Pkatey Pkiyach, Bakari Garise Omara, Dabar Abdi Maalim, to be members of the Transition Authority. Gazette Notice No. 8283 Dated 18th June 2012 PUBLIC INQUIRY IN EXERCISE of the powers conferred by section 9 of the Civil Aviation (Investigation of Accidents) Regulations, the Minister for Transport, being of the opinion that it was in the public interest,
appointed Lady Justice Kalpana Rawal, Judge of Appeal (Chairperson); to hold a public inquiry into the causes and the circumstances surrounding and leading to a fatal accident involving aircraft registration 5YCDT type AS 350B3, which occurred on the 10th June, 2012, in Kibiko, Ngong Forest. She will be assisted by the following assessors Maj.-Gen. (Rtd.) Harold Tangai, Maj. (Rtd.) Charles Munyeki Wachira, Capt. Peter M. Maranga, Fred Aggrey Opot. The assisting counsel shall be Charles Mutinda, Faith Irari, James Mungai Warui. The Technical Assistant shall be Clatus Macowenga. The terms of reference of the Public Inquiry are 1. To probe into the procedures surrounding the procurement and purchase of Helicopter Eurocopter 5YCDT type AS 350 B3. 2. To probe into the servicing, maintenance, usage and storage of Helicopter Eurocopter 5YCDT type AS 350 B3 prior to the accident. 3. To look into the circumstances surrounding the flight control of Helicopter Eurocopter 5YCDT type AS 350 B3 by Wilson Control Tower on the morning of the 10th June, 2012. 4. To probe into and to establish the causes that led to the fatal accident of Helicopter Eurocopter 5YCDT type AS 350 B3. 5. To look into any other matter relating or consequential to the accident of Helicopter Eurocopter 5YCDT type AS 350 B3 and make appropriate recommendations. The Secretariat of the inquiry shall be at Transcom House, 8th Floor, Nairobi. Gazette Notice No. 8288 Dated 19th June, 2012 IN EXERCISE of the powers conferred by section 6 (1) of the Civil Aviation (Investigations of Accidents) Regulations, 1979, the Minister for Transport appointed
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CLATUS MACOWENGA to be Chief Inspector of Accidents, for a period of one and half (11/2) years with effect from 5th January, 2012. Gazette Notice No. 8289 Dated 23rd May, 2012 TEA BOARD OF KENYA IN EXERCISE of the powers conferred by section 4A of the Tea (Amendment) Act, 2011, the Minister for Agriculture appointed SICILY KANINI KARIUKI to be the Managing Director and Secretary to the board of the Tea Board of Kenya, for a period of three (3) years, with effect from 26th May, 2012. Gazette Notice No. 7572 of 2012 was amended. Gazette Notice No. 8290 Dated 15th June, 2012 CO-OPERATIVE TRIBUNAL IN EXERCISE of the powers conferred by section 77 (1) (a) of the Co-operative Societies Act (Cap. 490), the Minister for Co-operative Development
and Marketing, appointed BEATRICE WAMBUI MATHENGE as Deputy Chairperson of the Co-operative Tribunal, with effect from the 15th June, 2012. Gazette Notice No. 8291 Dated 14th June, 2012 RIFT VALLEY WATER SERVICES BOARD IN EXERCISE of the powers conferred by section 51 of the Water Act, 2002, the Minister for Water and Irrigation appointed SAMUEL KALENG LOUMO to be a member of the Board of Directors of Rift Valley Water Services Board, for a period of three (3) years, with effect from 14th June, 2012.
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THE EFFECT OF THE NEW CONSTITUTION ON THE LAWS OF KENYA

By: Monicah Mwangi & Brenda Orau, Legal interns, Laws of Kenya Department
Introduction he current Kenyan Constitution was enacted on 27th August 2010, replacing the older one that had been in place since independence in 1963. Article 2 of the Constitution provides that the Constitution is the supreme law of the Republic of Kenya and binds all persons and all state organs at both levels of government. Article 2(4) further states that any law including customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. Clearly the principle of constitutional supremacy is well illustrated but the challenge posed is that laws that were enacted before it are still in existence; as a result courts have had to disregard certain provisions of statute law that are inconsistent with the constitution. Below are some of these instances; A. INCONSISTENCY WITH STATUTE LAW THE EMPLOYMENT ACT In Samuel G. Momanyi vs The A.G & Anor High Court, Constitutional and Human Rights Division Petition No. 341 of 2011
In this case the court declared Section 45(3) of the Employment Act inconsistent with the provisions of the constitution of Kenya particularly Article 28, 41(1), 47, 48 and 50(1). Section 45(3) provides that an employee who has been continuously employed by his employer for a period of not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unlawfully terminated. Justice Lenaola said that section 45(3) purports to deny the petitioner the right to human dignity, right to fair labor, consumer rights, right to access justice and the right to have a dispute resolvable by the application of the law decided in a fair and public hearing, which are the rights enshrined in Article 28, 41(1), 47, 48 and 50(1) of the Constitution. CHILDRENS ACT. In the case of M.S vs I.A.K suing through Mother and next friend C.A.O Constitutional Application No. 526 of 2008 High Court of Kenya at Nairobi In this case the court stated that Article 53(2) of the Constitution which states that child best interest is of paramount importance in every matter concerning the child, takes precedence over section 24(2) of the childrens Act which only applies to men who are not biological fathers and who have acquired parental responsibility. Justice Mumbi Ngugi affirmed that any provision of the Childrens Act that is in conflict with the Constitution must give way to the Constitution.
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ANTI-COUNTERFEIT ACT P.A.O & 2 others v A.G High Court of Kenya High Court declared that the enforcement of section 2, 32 and 34 of the Anti-Counterfeit Act violated the right to life as protected by Article 26(1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health provided by Article 43(1) of the Constitution. Section 2 of the Anti-Counterfeit Act defines actions that when taken without the authority of the owner of the intellectual property subsisting in Kenya or elsewhere in respect of protected goods will amount to counterfeiting. Section 32 also criminalizes any dealings with counterfeit goods. The judge was of the view that enforcement of the Anti-Counterfeit Act in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is a breach of the petitioners right to health guaranteed under the Constitution. He also stated that it is incumbent on the state to reconsider the provisions of section 2 of the Act alongside its constitutional obligation to ensure that its citizens have access to the highest attainable standard of health and make appropriate amendments to ensure that the rights of the petitioner and other dependants on generic medicine are not put in jeopardy. ADVOCATES (PRACTICE) RULES Okenyo Omwansa George and anor v the A.G & 2 others High Court at Nairobi-Constitutional and Human Rights Division The High Court was of the view that if rule 2 of the Advocates (practice) rules which bars advocates from advertising constitutes a complete ban then it is unconstitutional and inconsistent with Articles 46(1) and Article 48 of the constitution. Article 46(1) provides for consumer rights and Article 48 provides for access to justice for all persons. PENAL CODE Republic v John Kimita Mwaniki (2011) High Court at Nakuru In this case inconsistency between section 204
of the penal code which states that any person convicted of murder shall be sentenced to death and section 26 of the Constitution which says that every person has the right to life and a person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law was pointed out. CRIMINAL PROCUDURE CODE Aboud Rogo Mohammed & Another v Republic (2011) High Court at Nairobi Inconsistency between Section 123 of the Criminal Procedure Code and Section 49(1) of the new constitution was pointed out in this case. Section 123 of the Criminal Procedure Code excludes from bond and bail persons charged with offences of murder, treason, robbery with violence, attempted robbery with violence or any drug related offence. While Section 49(1) of the constitution states that any arrested person has the right to be released on bond & bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released. H.I.V AND AIDS PREVENTION CONTROL ACT Aids Law Project v A.G & Another (2011) In the High Court of Kenya Petition No 97 of 2010 The applicants in this case stated that there is inconsistency between Section 24(1) of the H.I.V. and AIDS Prevention Control Act and Article 31 of the Constitution. Section 24 of the HIV and AIDS Prevention Control Act provides that a person who is aware of being infected with the virus shall take all reasonable measures and precautions to prevent the transmission of the virus to others by disclosing their HIV status. On the other hand Article 31 of the Constitution provides that every person has a right to privacy, and this includes the right not to have information relating to their private affairs unnecessarily required or revealed. B. INCONSISTENCY WITH CUSTOMARY LAW Lucy Kemboi v Cleti Kurgat & 5 Others (2012) In the High Court of Kenya In this case the Court stated that a widow has a
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right just like that of her in-laws, to bury the remains of her husband, this right is guaranteed by Article 27(3) and 27(4) of the Constitution which gives both women and men the right of equal opportunities in cultural and social spheres and that there should be no discrimination directly or indirectly on any ground. The Court acknowledged that though Keiyo Customary Law was applicable which allows the clan and the brothers to bury the deceased, the applicant had her right derived from the written law which supersedes customary law. Samson Kiogora Rukunga vs Zipporah Gaiti Rukunga High Court at Meru In this case the judge held that married daughters were entitled to inherit their parents estate. This matter was settled by Article 27 and 60 of the Constitution which prohibits discrimination.
Article 60(f) eliminates gender discrimination in law, customs & practices related to land and property in land. The Court further laid emphasis on Sections (3) (4) and (5) of Article 27 of the new Constitution which forbids marital status as a ground for discrimination. CONCLUSION The new Constitution is a great progress, but its just a starting point, parliament needs to urgently enact Laws that will help in its implementation and enforcement. Its important that the inconsistencies in existing legislation and the Constitution be cured to allow for equality before the law; this will also facilitate protection of the fundamental rights in the Bill of Rights and access to justice.
movements t s li a n o ti a n nt with impatie this g in rg u s t n e . Apart from tin e n c o n c e a d n is e p a e ind Afric poverty and eedom and , fr e s in a w e is to d t g s gain strivin m e struggle a tical freedo li th o p is , d re e te a th , defe struggle ree evils are th e s e otive behind th m s e s th le n s U s . le e ning ignoranc w and mea red towards o a ll e o g h e e b m s o y c alwa would be cial ents should m e v o ving and so m li t f s o li s a n rd o a ti d a stan various n ple, higher o e p r u o ll a of nt. the security advanceme University re re e k a M t 958 a n July 1st 1 o a y o b M Tom
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Feature
LAWS OF KENYA AND EDITORIAL DEPARTMENTS ATTENDS TRAINING ON ELECTRONIC PUBLISHING FOR PRINT
By: Evelyn Anyokorit Emaase, Copyeditor, Laws of Kenya Department & Catherine Magiri Moni, Publishing Assistant, Editorial Department Introduction
hanging trends in technology are greatly impacting the growth of the publishing Industry. Publishers need to be in line with current technology for efficient services. The National Council for Law Reporting (NCLR) in its effort to better its products and services, organized for a two week training on Electronic Publishing for Print. The training was tailored to suit the current publishing needs of the two departments. It was facilitated by the Academy of Graphic Technologies (AGT), between 7th and 18th May, 2012 both at NCLRs and AGTs premises. The course was intended to equip the officers with vast and emerging technology in the field of publishing. Participants pause for a photograph after training from left; AGT Trainer Daniel Katambo, Eva Murage, Naomi Mutunga, Cicilian Mburunga, Laila Mbevi, Geoffrey Andare, Catherine Moni, Dorcas Kaveke, Lisper Njeru, Julie Mbijiwe, Yvonne Kirina, Evelyn Emaase, Wambui Kamau and Phoebe Iyaya
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The areas addressed include: 1. Introduction to electronic publishing for print Electronic publishing for print is using the computer to combine text and graphics into documents for print or electronic distribution. To achieve this, designers need a dedicated graphics software package. For most print publishing an illustration program, and an image editor are the types of programs needed. Some programs may incorporate a few features of the other type, but designers will require each one. 2. Standard softwares used for publishing Adobe suite softwares are the most ideal for publishing, these include: Adobe indesign, photoshop and Illustrator. Adobe indesign can be used to create works such as posters, flyers, brochures, magazines, newspapers, books and so forth. It is suitable for any print design projects because it is built for pre-press and color management. Adobe Photoshop as the name suggests is an excellent software for editing photos and images. If a designer is preparing a digital or scanned photograph for use in a project, whether it be a website, brochure, book design or packaging, the first step is often edit it in Photoshop. Using a variety of tools within the software, a designer is able to achieve the desired results by cropping, resizing photos, adjust & correct colors, Touch-up photos, such as erasing a blemish or removing a tear or a fold. Saving photos in a variety of formats for use in print projects is another key element among others. 3. Exploring the advantages of using Adobe indesign as a publishing software:- Capabilities and compatibilities The participants were taken through Adobe Indesign application practically exploring its capabilities and compatibilities, among them: The ability to support abundance of paper layout and the ability to create custom page layout without restrictions; Ability to place and align objects accurately using text and image frame tools; Master pages that save
one from creating the same background multiple times for a multipage documents masters allow creation of a document that can be applied to every page document; Linked text boxes that allow text to flow freely within a network of text boxes. This makes editing text content much easier since the text boxes automatically adjust the contained text. Graphic tools that allows one to edit images beyond image manipulation gives a set of built in image effects, filters and functions like adding shadows, feathering, transparency and so forth. Unlimited export options that works seamlessly with Adobe Acrobat to Portable Document Formats (PDF) as PDF is the most accessible format to view in any operating system solving cross platform problems; Adobe InDesign CS5 software that includes new and enhanced EPUB file export features improve production and provide greater control for creating compelling eBooks that can be read on a wide range of eBook reading devices, including the Apple iPad, and various mobile phones; Adobe InDesign allows the designer to embed fonts and images hence becoming a property of the file thus retaining the desired quality when printed. If files are not embedded they loose some components such as fonts, when this happens documents default to the alternative font making it loose its quality. It is important to note that some computers at times cannot recognize another font to default and the characters will drift loosing out their original shape. Paste board, custom workspace, document presets, page numbering, eye dropper, swatch pallet among others are the characteristics of Adobe
Members keenly follow on the capabilities and compatibilities of Adobe indesign as a publishing software
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in design that make it stand out as suitable for all types of publishing for print. 4. File Preflight and packaging Preflight is quality check performed on the document before printing to a ascertain problems that may have arisen during document creation. Such problems may include: missing links or fonts, low-resolution images, overset text and a number of other conditions. It is possible to configure preflight settings to define which conditions are detected. These preflight settings are stored in preflight profiles for easy reuse. Preflight profiles can be created or imported from your printer or another source. To have advantage of live preflight, specific preflight profile is created in the early stages of creating a document. If Preflight is turned on, a red circle icon appears in the status bar when InDesign detects any problems. One can open the Preflight panel and view the Information section to get basic guidance for fixing the problems. Packaging This entails gathering the files used, including
fonts and linked graphics, in preparation for the document to be sent for printing. When packaging a file, a folder that contains the In Design document is created (or documents in a book file, any necessary fonts, linked graphics, text files, and a
A screen shot of a pop-up window with a summary of what is being packaged.
NCLRs Laws of Kenya and Editorial team with the AGT Trainers after touring the AGT printing press.
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customized report). This report, which is saved as a text file, includes the information in the printing instructions dialog box. 5. Imposition Imposition is one of the fundamental steps in the prepress printing process. It consists the arrangement of the products pages as they will appear on the printed sheet, in order to reduce turn around time, simplify binding processes and reduce paper waste. Some of the factors to consider during imposition includes: Format of the product: The size of the finished page determines how many pages can be printed on a single sheet. Number of pages of the printed product: The designer must determine how many sheets are to be printed to create a finished book.
EPUB stands for Electronic Publication and its the accepted standard format for digital book publishing. ebook that can be read on a digital device, need to be in EPUB format. EPUB format, is the preferred format for reading on many ebook readers. To read a file that is stored in electronic format one needs a reader. A reader is a software program that permits you to view the words and images contained in the document. The Epub format that has overtaken the most popular readers like PDF is fast gaining popularity because it has features superior to what other readers offer and which is why publishers are moving from PDF to ePUB. One attractive feature of ePUB is that it is based on what is referred to as an open format. What this means is that an ePUB document is compatible with a wide range of devices such that one can view
NCLRs Laws of Kenya and Editorial team with the AGT Trainers in a session learning about paper size and weight.
Binding method: The designer must understand how the sheets are placed to form the signatures that compose the finished book. Imposition proof Imposition proof is the last check that is performed before beginning the print run. This check is performed to verify, through, that the imposition was successful. Typical checks are that the pages are on the correct spot and the crossover bleeds work.
documents using various portable device such as iPhone, ipad. ePUB documents can be compressed to a greater extent thus implying that the resulting files will be much smaller compared to other file formats. The benefit of this is that one can store more documents in portable device's memory. It is important for publishers to embrace technology and make their products and services universally accessible.
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Feature
LEGAL DEFINITION OF DISABILITY

By: Stanley Mutuma, Law Student
ccording to the United Nations Standard Rules on the equalization of Opportunities for Persons with disabilities:1 the term Disability summarizes a great number of different functional limitations occurring in any population, in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature) The United Nations adopted a convention on the rights and privileges of persons with disability. The convention adopted in 2006 and which came into force in 2008,2 states and recognizes that disability is an evolving concept which is subject to change from time to time. For instance due to the improvement in medical science and other new discotveries of how the human body works. It is possible for doctors to determine that a person who does not seem to have any physical disability to be laboring from some of mental or sensory impairment that can now be ascertained through he use of science. The Convention follows the civil law tradition, with a preamble, in which the principle that "all human rights are universal, indivisible, interdependent and interrelated " of Vienna Declaration and Programme of Action is cited, followed by 50 articles. Unlike many UN covenants and conventions, it is not formally divided into parts. Article 1 defines the purpose of the Convention thus: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities, and to promote respect for their inherent dignity Articles 2 and 3 provide definitions and general principles including communication, reasonable accommodation and universal design. Articles 4 - 32 define the rights of persons with disabilities and the obligations of states parties towards them. Many of these mirror rights affirmed in other UN conventions such as the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights or the Convention Against Torture, but with specific obligations ensuring that they can be fully realized by persons with disabilities. Rights specific to this convention include the rights to accessibility including the information technology, the rights to live independently and be included in the community (Article 19), to personal mobility (article 20), habilitation and rehabilitation (Article 26), and to participation in political and public life, and cultural life, recreation and sport The recognition before the law for the countries having ratified this treaty is found under article 12. In effect it means that this is a legal document that can be used to give effect to the rights and privileges found within it. The Americans with disability act,3 provides the definition as being: Statutory Definition -- With respect to an individual, the term "disability" means (A) a physical or mental impairment that substantially limits one or more of the major
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life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. 12102(2); covers persons who actually have physical or mental impairments that substantially limit one or more major life activities. The focus under the first part is on the individual, to determine if (s)he has a substantially limiting impairment. To fall under the first part of the definition, a person must establish three elements: (1) that (s)he has a physical or mental impairment (2) that substantially limits (3) one or more major life activities. The second and third parts of the definition cover persons who may not have an impairment that substantially limits a major life activity but who have a history of, or have been misclassified as having, such a substantially limiting impairment, or who are perceived as having such a substantially limiting impairment. The focus under the second and third parts is on the reactions of other persons to a history of an impairment or to a perceived impairment. A history or perception of an impairment that substantially limits a major life activity is a "disability." (b) Regulatory Definition -- A physical or mental impairment means (1) [a] physiological disorder, or condition, cosmetic disfigurement. The main aim of the ADA, was to create a civil law frame work, with the objective of having the protective framework and aiming to eliminate all forms of discrimination to the class of persons listed there in. It also intended to have persons with disability represented in the main in new advances in medical , science and affording them opportunities in all spheres of life including space frontiers. It was intended to be flexible , with new laws being strengthened and not weakened by future case laws. It was signed by president G.W. Bushs and it came into operation in2008. The definition of the term, disability under the Kenyan jurisdiction is found under section 2, of the persons with disability act, as amended in 2007. It states: s, disability means a physical, sensory, mental or other impairment,including any visual, hearing, learning or physical incapability, whether arising from natural or artificial causes, which is irreversible and long term and which impacts adversely on a persons capacity to participate in social, economic, cultural or political activities.
The act is further given priority as enshrined by the bill of rights in the constitution of Kenya. Under article 54, which provides specific protection of fundamental rights to the class of persons with disability. The article provides inter alia: The right to be addressed and treated in a dignified manner. The right to education and provision of education services in a manner that caters for the needs of the individual in question. The right to reasonable access to all public places and places of leisure and recreation. This might include sporting facilities, recreational parks, restaurants etc The right to use a language that the persons understands and uses e.g. Braille and sign language. The right to use accessible technology and devices that will assist the individual overcome his disability. The right to progressive employment up to 5% by the government. These among others are provided for and the legal backing exists under the stated law and other acts, that help improve the enforcement of the rights of PWDS. The disclaimer to this is that the above stated definitions are legal in nature, and may differ to some degree, to the social or academic definitions of the term disability As noted by the UNPWD convention. it is also evolving and it may be altered slightly from time to time with the changes in the fields of science and medicine. The Kenyan act also amended the legal meaning of the term through the 2007 amendment, of the principal document of 2003. Therefore it suffices to say that this concept is a dynamic one and we should be keen enough to determine its application when interpreting it. References 1.United Nations Standard Rules On Equalisation of Opportunities -1993 2.United Nations Convention on the Persons with Disability [2008] 3.Americans with Disability Act -1990 4. The Persons With Disability Act Of Kenya 2003 5. The Constitution of Kenya - 2010
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Feature
A COMPARISON BETWEEN THE CONSTITUTION OF KENYA AND THE EAST AFRICAN TREATY
he Constitution of Kenya as promulgated on August 27, 2010, has envisaged certain principles that the Kenyan people aspire for themselves Following a rigorous process for the clamor of a new constitution by the people. The need for better governance and improved standards of life led the citizens to agitate for the changing of the constitution. The issue of bad governance was also a great factor that propelled the citizens to demand for a new supreme law that would have checks and balances and would determine how their issues would be determined. The new constitution therefore has these provisions set out in its various articles, which are also envisaged to be in line and in conformity with other laws that ascribe to similar provisions relating to governance and leadership of citizens of other jurisdictions. For instance when doing a comparison between the constitution of Kenya and the East African treaty, I will consider the areas of law dealing in leadership and governance and how they compare and also contrast the areas where they differ or their is divergence. Article 10 of the Constitution1 deals with matters of leadership and governance. Any public officer, or constitution or any body that seeks to enforce public authority must ensure that they adhere to the following principles of good leadership as stipulated by the article, that the officers shall be patriotic and shall uphold the values of dignity, equity, social responsibility, inclusiveness, including the rights of the marginalized etc. Under subsection [c] good governance, integrity, transparency and accountability are to be the guiding principles in carrying out one's duties; and [d] one must take into account the issues of sustainable development. The provision compares well with article 3, sub section [b] of the treaty,2 which states that for a country to be a member of the East African community, it need to adhere to the well established and accepted
1 2
By: Stanley Mutuma, Law Student principles of good governance, accountability, democracy, the rule of law, and adherence of human rights and dignity. Further on under article 3 [e] of the treaty in regards to the matter of economic compatibility within the East African states and matters of sustainable development as being paramount, a similar position espoused by our constitution. The bill of rights is well framed and protected under the constitution. Chapter four, states and enumerates the fundamental rights and freedoms to be enjoyed by the citizens. Article 19, states that the rights and freedoms are not granted by the government, but rather they are inherent. The rights and freedoms contained in this chapter are not conclusive and thus other rights cannot be excluded, in so far as they are not inconsistent with the constitution. It means that the state has an obligation to enforce the fundamental rights and freedoms, a party who feels that his rights have been aggrieved can seek redress in the high court. A division has been created by the high court known as the constitution and human rights division all matters lodged in this court are pertaining to such matters as to breech of the constitution and breach of human rights as well elaborated by the constitution. There are some rights that are not qualified by any law and no limitation may apply to this rights. They are the rights categorized under article 25, of the constitution. Included the right to prevention from inhuman treatment, and deprivation of dignity, the right to prevention of slavery, the right to a fair hearing and the right to apply for the order of habeas corpus. Equality and non-discrimination of any kind in reference to gender, religion, work, disability or any other form of prejudice is prohibited by article 27. A similar safeguard to the fundamental human rights and freedoms are guaranteed under the treaty. Under article 3 [c] of the treaty it mentions that any foreign country seeking membership of the community3 must
Constitution of Kenya 2010 East African treaty, ratified in November 1999 East African community.
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respect and uphold fundamental human rights that are ascribed to by other democratic countries. Further on the rights are strengthened by article 6, of the treaty (d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples Rights. In effect it means that if a person's rights are violated and the party is a member of the East African community , and the party cannot or is unable to have his right enforced for instance in his member country, e.g. in Kenya then he can appeal such a matter as a breach of human rights in the East African court in accordance to this section. Article 27 gives the East African court the mandate to interpret and enforce the articles of this treaty, powers which include 1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty. 2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalize the extended jurisdiction. Under the constitution of Kenya, article 51, it provides for the protection of a persons human rights if one is under detention, and for the right to petition for the order of habeas corpus if one is detained. To further categorize these rights and provide for their interpretation, the Constitution provides for the protection of classes of people deemed to be vulnerable in the society. Under article 53, it provides for the protection of children, which include inter alia right to a name and nationality right from birth, right to a basic education, right to good nutrition, right not to be detained unless its the last resort etc. Another category of special class of persons protected by the Constitution of Kenya in particular is the rights of persons with disability, addressed under article 54, which include inter alia right to be treated and addressed in a manner not demeaning, right to access education in schools for persons with disability or integrated schools to the level of their disability, right to access reasonable transport and access to other public facilities, right to use the language accessible and available to them i.e. Braille, sign language etc, right to use electronic devices and specialized
materials in order to overcome the challenges in their environment etc. To crown the above-mentioned rights and freedoms in the Constitution, Part V article 59, of the constitution provides for the creation of the human rights and equality commission. The body is tasked with the mandate of promotion and protection of fundamental human rights, listed in the constitution and others which are not inconsistent with the constitution or any other written law. It further provides that any person who deems that his rights have been violated under the constitution has the right to lodge with the commission for further investigation and action. The commission also is mandated with the authority to investigate and interrogate the conduct of any public body or organ which seeks to infringe unfairly on the rights of any citizen or class of persons. Article 30, of the treaty, gives the citizens or legal persons of any of the member states the right to approach it, in order to seek redress, in the instance the matters arising could not or are unable to be adequately addressed in their respective countries. Under article 34, of the treaty, decisions of the East African court shall have precedent over national courts in such matters, this provision seems to contradict with the one of our constitution which states that the constitution of Kenya, shall be the supreme law and any other law that is inconsistent with this constituent shall be void to the extent of the inconstancy. In effect it means if a certain judgment delivered by the East African court which seems to have a differing opinion from that given by a Kenya court then it shall take precedence over the Kenya court. The article 34, may seem to have a watering down effect on national laws of the member states. The rules, regulations and proceedings governing the East African court are contained under article 40 to 44, of the treaty. They provide for the procedure to be followed in a court proceeding and article 43, provides for the immunity of judges, in decisions made in the carrying out of their duties. Comparable to the constitution, which outlines the formation of the judicial/court structure in Kenya and provides for the manner and nature of the formation and protection of the institution. Under article 161, the structure of the judiciary is set out as being comprised of the chief justice, deputy chief justice, the chief registrar and other judges, magistrates and other officials serving in the judicial system. It also provides for the formation of the hierarchy of the court system in Kenya. Beginning with the superior courts, i.e. the Supreme Court, the court of appeal and the
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Kenya Law Reports high court. The Supreme Court is established under article 163 of the Constitution. It has the powers to hear presidential election petitions and shall form binding precedents to all other courts below it. This provision begs the question as to whether if a decision is passed in the East African court regarding a matter whose decision is contrary to one of the Supreme Court which courts decision shall take precedent. Appointment of the Chief Justice is addressed under article 166, of the Constitution whereby it provides for the appointment of the mentioned officials by the president after recommendation from the Judicial Service Commission. The matter of taxation is evidently of paramount to any government. Governments through the collection of taxes gain revenue from which they use to run the various operations needed to establish an effective running state/country. Therefore the issue of taxation is shed under part 3 of the constitution, under article 209 where it states that [1] only the national government has the right to impose taxation with regard to the following areas (a) income tax; (b) value-added tax; (c) customs duties and other duties on import and export goods; and (d) excise tax. (2) An Act of Parliament may authorize the national government to impose any other tax or duty, except a tax specified in clause (3) (a) or (b). County governments which came into existence with the formation of this Constitution are mandated to impose land rates, and other taxes incidental to the performance of their duties. In doing so county governments and county councils shall not levy taxes in a manner that is prejudicial to the national development agenda. Article 210, has the effect that no imposition or waiver of taxation may be permitted without legislation. Where waiver is to be given, then this must be under a written reasons and the record to be given to the auditor general. The revenue collected shall be distributed as set out by the commission of revenue allocation as set out in article 215. With regard to taxation and the East African community article 75, of the treaty, envisages the progressive formation of a single customs union. The objective being to accomplish the principles set out under article 5, of the treaty. Issues that will arise on the implementation of this article, include: how will the constitution guarantee the raising of revenue as the treaty envisages the abolishment of internal barriers to trade, including taxation save for the common customs tariffs intended to be common for the member states of the community. The removal
Bench Bulletin of the internal barriers to trade and formation of a common market under article 76, of the treaty, is expected to have an impact on the internal markets of the member states, which the member states seek to mitigate by drawing up a protocol to address the changes anticipated. The treaty envisages the scope of corporation under article 82, to incorporate the use of compatible common currency as they proceed towards harmonization of a common market and leading to the objective of having less reliance on foreign exchange. Other areas of comparison include the areas of environment i.e. article 112 of the treaty comparable to article 60 of the constitution. The treaty seeks to establish a joint environmental management board that will help curb or reverse the effects of harmful environmental effects, ensure programs that sustain the bio diversity, institute programs in institutions that teach the importance of the environment, conservation of bio diversity, equitable distribution and use of genetic material etc. The principles enumerated by the treaty under this chapter are in harmony with those listed and outlined in the constitution with the objective of having meaningful development without compromising the environment. To this end both documents have set out mechanisms that deal with obtaining of environmental impact assessment studies before embarking on any major physical developments. The constitution under article42, guarantees the right to all citizens to have a clean and healthy environment, for the present generation and for the future generations, giving special considerations to the provisions set out in article 69, and 70 in regards the environment and use, preservation and conservation of natural resources in an equitable manner. The article provides redress for a party who deems that his rights to a clean and healthy environment have been breached. The article is special in the manner it is couched, i.e. one need not prove that he has suffered loss from the breach, but can demonstrate that the infringement of the environment is likely to be in contradiction with the rights created under the various articles with regards to the environment created in the constitution. Comparable to article 111, of the treaty which guarantees the following obligations in respect to the protection of the environment and management of it: (a) agree to take concerted measures to foster cooperation in the joint and efficient management and sustainable utilization of natural resources within the Community; (b) undertake, through environmental management strategy, to co-operate and co-ordinate their policies and actions for the protection and conservation of the natural
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resources and environment against all forms of degradation and pollution arising from developmental activities; (c) undertake to co-operate and adopt common policies for control of trans-boundary movement of toxic and hazardous waste including nuclear materials and any other undesirable materials; (d) shall provide prior and timely notification and relevant information to each other on natural and human activities that may or are likely to have significant transboundary environmental impacts and shall consult with each other at an early stage; and (e) shall develop and promote capacity building programmes for sustainable management of natural resources. Under article 113, of the treaty it seeks to have the member states harmonize their legal framework in order to be compatible with the principles, further it envisages that the member states will accede to international protocols and treaties that have the objective of further protecting and preserving the environment. Other articles in the treaty provide for the creation of laws in the member countries that shall enhance the harmonization of various sectoral fields touching on the socioeconomic of the member states, inter alia; education, health, arts, sports etc. These sectoral areas for corporation are not limited and under article 131, of the treaty it provides for the corporation of other areas that may arise or develop as the community seeks f to be harmonized I in manner that will eventually lead to the formation of an east African community with political obligations. Some of the provisions of the treaty are transitory in nature and article 142, has set it out to create tripartite commissions tasked with the (a) Agreement for the Establishment of The Permanent Tripartite Commission for Cooperation Between the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania; (b) Protocol on the Establishment of a Secretariat of the Permanent Tripartite Commission for Co-operation Between the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania; (c) Headquarters Agreement between the Secretariat of the Commission for East African Co-operation and the Government of the United Republic of Tanzania;
(d) Tripartite Agreement for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income; (e) Memorandum of Understanding on Cooperation in Defence; (f) Tripartite Agreement on Road Transport; (g) Tripartite Agreement on Inland Waterways Transport; (h) Memorandum of Understanding on Foreign Policy Co-ordination; and (I) Memorandum of Understanding between the Republic of Kenya and the Republic of Uganda and the United Republic of Tanzania for Co-operation on Environment Management. The life of the treaty is expected to have perpetual life subject to article 143, save for the punitive steps to be taken under the treaty if a member state does not honour its obligations as set out in the treaty. If a member state wishes to withdrawal from the EAC, then it must follow the steps stipulated under article 145, of the treaty, by giving a notice to the secretary of the community within a period of not less than 12 months, within which time the state must continue to carry out its obligation to the community. In conclusion, I note that there are many provisions, rights and freedoms that are embedded and espoused in the constitution that are also comparable to those created and embedded in the DAC, treaty. Kenya ha having ratified the treaty became a member of the community. According to the provisions of article 2[5] and 2 [6] of the constitution which state that any general rules of international law shall form part of the Kenya law and that any treaty or convention ratified by Kenya shall form part of our laws as under the constitution. Therefore in effect it means that Kenya has a duty to abide by the provisions found under the treaty, which form part of its laws. Some of the provisions are transition in nature and once they come into force, then they shall also form part of our laws. In the instance that there will be a law that upon coming into force that will fundamentally alter the nature of our constitution, the constitution maybe in need of some amendments to that effect, which can only be done by subjecting those provisions to a referendum. References. A. The constitution of Kenya-August 2010. B. The East African treaty ratified November 1999 in Arusha, Tanzania.
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Information Communication Technology (ICT) Department
LOOKING INTO INSTITUTIONS NETWORK SECURITY

By: Martin Mbui, System administrator, Information Communication Technology (ICT) Department
ecurity on the Internet and on Local Area Networks is now at the forefront of computer related issues. The technical jargon of the day is information warfare and network security, and there are valid reasons for their rise in importance. Throughout the evolution of networking and the Internet, the threats to information and networks have risen dramatically. Many of these threats have become cleverly exercised attacks causing damage or committing theft as explained in the history of computer malware/viruses in later articles. Consequently, the public has become more conscious of the need for network security and so too has the government. Protective tools and techniques exist to combat security threats; nevertheless, only with the proper implementation will they succeed. Consequently, this article is a discussion of network security, its histor y, the threats and responses to those threats, and the method of designing a secure network that follows the process model for software engineering. II. Information Security: Currently the greatest asset of corporations and governments is information and also in institutions like National Council for Law Reporting. Information encompasses a wide range of diverse pieces including: computer data, marketing strategies, tax and personnel records, military strategies, financial data, communications, and business plans. Organizations that value their internal information realize that information is a strategic and competitive tool. Our society is so reliant on information that the loss or corruption of the NCLR information infrastructure would create a situation where accounts, ICT, procurement, management, library, BRH and most other departments would not survive.
I. Network Security:
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In short, information is the backbone of the operations of these departments, and the security of this information is critical. Loss of information can be devastating for a corporation or government. In general, the motivational factor for preventing loss of information is financial. The loss of information integrity exceeds strictly the financial arena and extends much further. Businesses have confidential information stolen and patented by competitors, individuals end up in jail and inmates are released because of disruption in law enforcement computers, IRS computer failures have caused thousands of small companies to be put out of business, corporate telephone switches have regularly had hundreds of thousands of dollars worth of telephone calls stolen through them over a weekend, and the list goes on almost without end. Information security is the necessary means by which critical information is controlled and its loss is prevented. Information security deals with those administrative policies and procedures
for identifying, controlling, and protecting information from unauthorized manipulation. This protection encompasses how information is processed, distributed, stored, and destroyed. In order for information security to be achieved, several attributes must first be attained. Information that is distributed, whether through a network, on disk, or on paper, must be done so in a secure fashion. Educational training must be given to all individuals involved with specific information and especially to those required to secure that information. Classification and clear demarcation of information into different sensitivity levels is another necessary step in securing information. Information must be monitored and tracked consistently and continuously throughout its existence. Finally, securing a network is the most important piece of information security. Information security is in essence all of the aforementioned measures for securing vital information and network security is the key to doing so.
re resources a e s e th , e rs u of co there overnance, g d a al logging, b g e le v il a h is u re o e y e ted, th But when w how thes a are defores s ts d s n re a r fo e e p h T dee destroyed: deeper and tatorship. ic d d e ll u to p , t n o o g ti n. I rrup ance, to co is soil erosio rn e v o g to d me linke issues beco aathai. Wangari M
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Feature
THE NATIONAL COUNCIL FOR LAW REPORTING PARTNERS WITH MRYG FOR CSR ACTIVITIES
By: Cornelius Lupao, Advocate, Editorial Department
n Saturday May 5, 2012, between 12.30pm and 5.15 pm, the National Council for Law Reporting was hosted by the Mathare Roots Youth Group
The MRYG was founded by the youths of Mathare in 2006 to provide an avenue for the youth to engage with and contribute to the welfare of their community and also to serve as a link between the Mathare community and the opportunities for partnership in community welfare that would be available outside the community. The MRYG is a membership organization comprised largely of young people from the Mathare Community who wish to partner together to achieve positive social outcomes for the community. MRYG partners with individuals and institutions in opening up opportunities for the improvement of the welfare of the Community. The visit at the MRYG office:
Part of NCLR staff with the CEO, Mr. Michael Murungi (right), Billian Music Family and MRYG members pose for a group picture during NCLR tour of Mathare Slums
(MRYG) at the Groups offices in Mathare, Nairobi and thereafter, the Group conducted the Council on a tour of the Mathare community. The Council was represented by Cornelius Lupao the (Organizer) Ivy Njoki, John Paul Mutugi, Laila Mbevi (and her son Nabil), Michael Murungi, Moses Wanjala, Njeri Githanga, Pascal Othieno, Wambui Kamau and Yvonne W. Kirina.Geoffrey Andare, who is also a member of staff and one of the officials of the Mathare Roots Youth Group, was the liaison person for the group during the visit and tour.
Members of the Council were met by the officials and members of the MRYG, namely: Geoffrey Andare, Rosemary Mueni, Fabian Kithusi, Elma Atieno,Edith Isaiah, Jackline Atieno, Billian Okoth and Billian Music Family among others. The MRYG informed the Council about how it was founded, its resourcing, partners, membership and the projects it undertakes Among the programmes and projects that the MRYG has been or is currently involved in are: 1 Education: Financial sponsorship through partnership with
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Canada Mathare Education Trust (CMET), a school fees sponsorship programme for students from within the community. The group also partners with Nairobits Digital Design School, which trains students on basic computer skills, advanced Web and Graphic Design courses, which are also sponsored. 2 Adolescent Health Programme (AHP): This is an initiative by MRYG whereby facilitators from the group train pupils in schools within the community on social topics ie Children Rights, Self Esteem, Career, Education, and social vices such as Violence and Rape, etc. It aims to ensure that all youths have essential communication skills and understanding of peoples' rights to consent. These help them get the right knowledge and skills to help lead healthier and more active lives. 3 Environmental Conservation: This is done through Tree Planting within and without the Community as well as occasional community cleanups 4 The MCEDO School The Mathare Community Education & Development Organization founded and initiated by some of Mathare Roots Members is a community school which also has a Feeding programme for pupils from within the Community 5 Mentorship Programme: The group also links school going youth with individual mentors. 6 Sports, Culture and Art: MRYG also engages in Sports whereby it has a Football Team, Real Mathare, an Art department that deals with making of African ornaments and accessories as well as performance Art through Billian Music Family. 7 Exchange Programs: MRYG also engages in exchange programs with local and international youth groups, mainly within Mathare, Kibera, Korogocho, and internationally with Canada and German based CBOs. MRYG is working towards sustainability, particularly sustainable community-based solutions to the communitys challenges where the Group and the members of its community reduce or eliminate dependency on external aid. The National Council for Law Reporting identified Possible areas of collaboration & partnerships with
MRYG which will include, but not limited to: 1 Invitation and participation in each others events. For the part of the NCLR, MRYG can attend/witness/participate in our events such as product launches, games, road shows and such related events. 2 The MRYG through Billian Music Family (BMF) can provide entertainment at such events and other members of MRYG can provide ushering and logistical support duties. 3 Exchange of knowledge and mentorship both organizations have a lot of knowledge to exchange amongst their members. The mentorship would be both ways. For the part of the NCLR, members of staff could
NCLR, BMF and MRYG teams hike up Mathare Valley during NCLR tour of Mathare Slums
volunteer to mentor young persons in the MRYGs community either directly or by offering motivational speaking at the MCEDO school and Valley View Academy. Also explored was possible offer of internship programs by the NCLR to qualified students from within MRYG projects. 4 Preparation of the NCLR Calendars MRYG informed NCLR that they prepare calendars, which they sell. The calendars can be branded jointly by NCLR and MRYG and purchased by NCLR for sale and/or distribution to its partners. 5 Individual members of staff of the National Council for Law Reporting to make financial contributions to support the activities of the MRYG. 6 Such other activities as may be mutually agreed between the NCLR and MRYG from time to time.
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Feature
PARENTING: HOW MUCH TIME DO YOU SPEND WITH YOUR CHILDREN?

By: Evelyn Anyokorit Emaase, Copy editor, Laws of Kenya Department
arenting according to the online dictionary is the rearing of a child or children with emphasis on the care, love, and guidance given by a parent. Parenting is also defined by other sources as the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Parenting looks into the aspects of bringing up a child as opposed to the biological relationship. Good parenting is about providing warm, secure life, helping your child to learn good values and to develop good self-esteem. Why is parenting important? Good parenting makes it possible for children to grow up in a positive direction. If children do not learn how to behave, they will find it difficult to get along with grown-ups and peers. They will find it hard to learn at school, misbehave and probably become unhappy and frustrated in life. It is important that parents in their busy schedules find variable time to spend with their children.
children as a result of combining parenting and their careers. Combining parenting and work and making both effective and meaningful is a challenge to many parents. Having children is the easy part; the tough part is to make time to be part of their lives as they grow up. In most cases, when two demands are to be met almost equally in addition to other forces, naturally people tend to incline to the one with the financial gain neglecting the other demands, which should not be the case. Children deserve the best part of their parents time, so being able to combine the two could not only be difficult but important and if not necessary. A childs brain growth requires interaction with significant other
According to the attachment t h e o r y b y J o h n B o w l b y, a child psychiatrist, and Mary Ainsworth, a Psychologist, the brains capacity to think, feel and to act is dependent on the interaction between a child and the significant other; that is the all round important figures in a childs life such as the mother, father, siblings and care givers. Dorcas Kaveke spends quantity and C h i l d r e n n e e d b o n d i n g o r quality time with her baby, Cindy, at attachment to another person the 2010 Justice Cup Tournament at in order for the immature brain Parklands Sports Club to develop in the most optimal Combining parenting and way. This attachment begins with career a non-verbal communication in which the mother or any other Most parents dont spend enough time with their attachment figure aligns him/ herself to the infants
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needs and emotional state. When a baby cries because it is hungry and the mother feeds it, the baby comes to learn that its needs can be met. The babys body experiences satisfaction because someone responded to it's needs. When the baby is wet and cold and the mother changes its diaper and it is no longer uncomfortable, it learns that its physical needs are met. Through the mothers regular response to the needs of the child, the child develops a sense of integration both internally and interpersonally. In other words, it is through the childs intimate relationship and bonding to someone who is irrationally in love with the child that the babys brain develops a positive pattern or mental model for how it sees itself and others. When the childs needs are not met If a baby is unable to get its needs met, the insecure attachment the child experiences will reverberate in its internal and interpersonal world, it will be emotionally distant from others and the quality of its relationships are likely to be superficial and detached. It is true that even without a caring and understanding parent or any other figure, a child can still learn many things and the brain can accumulate many facts. But, it is the significant person, early in a childs life who has the best opportunity to demonstrate to the child what it means to be human and to influence how the facts the child learns in school and in life can be used to make the world a better place. Giving your children the Gift of time
fields, the time children spend with their parents is essential for their health development be it quality or quantity. Some organizations occasionally organize for social opportunities like football tournaments, corporate social responsibility (CSR) activities among others that allow their employees to spend both quantity and quality time with their children. The National Council for Law Reporting for instance supports these events by planning or affiliating with organization that organize for such forums to allow its employees to not only have quality and quantity time with their children but also experience relaxed bonding and networking with other families. Carolyn Ross Tomlin, a former kindergarten teacher in her article, Quantity Versus Quality Parent Time; How Can Child Care Providers Help? argues that practical application of quantity time means that a parent finds teachable moments throughout the day with their children. Teachable moments happen without planning when your child shows
National Council for Law Reporting members bond with their children at the 2010 Justice Cup Tournament at Parklands Sports Club interest in learning more about a specific task or activity. Quality time is defined by development experts as memorable and meaningful time parents spend nurturing and teaching their children. On the other hand Gregory L. Jantz and Ann McMurray in their book Healthy Habits, Happy Kids: A Practical Plan to Help Your Family argue that quality time happens within the context of quantity of time. Career parents can also have quality time with their children. It's what one can make of the time they spend with their children that makes it quality time. In as much as quality time is important in a childs development, quantity time is equally important,
Spending quality time with children is extremely important for their development and happiness. Many children will let their parents know in their own ways if they are not getting the attention they deserve. Some will get withdrawn and others will act out. This is evident when kids resort to behavior that will get the parents attention for example fighting, bedwetting, choosing their nanny over their own parents. If children cannot get your attention by doing good, they will definitely turn to doing bad. Quality time versus Quantity time. According to researchers in a wide range of
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Kenya Law Reports some parents think that if they have spent an hour or so of quality time with their children, they have done enough. It is important to note that this time normally focuses on an enjoyable time such as watching movies, going out etc and it would not substitute good parenting. Most parents tend to abuse quality time meant to be enjoyed with their children by making it come out as compensatory action as a result of having spent less time with their children. It is also important to note that quality time does not make up for the time
Bench Bulletin not spent with children, using quality time as a make up creates an ill affect. Parents are supposed to as much as possible create both quality and quantity time for their children. The point is that quantity time matters just as much as, if not more than quality time. Parents need to be there to witness their children grow which means, creating time for your children but more importantly being there when they need you and being an active participant in their everyday life.
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Feature
TALENT BEYOND LAW REPORTING: WINNERS UWAZI FOOTBALL TOURNAMENT, 2012

By: Geoffrey A. Andare, Data Processor, Football Team Captain, Laws of Kenya Department
he Uwazi Football Tournament is an annual Standard Media, Mathare Roots Youth Group (MRYG) sporting event hosted by International sponsored by the National Council for Law Reporting Commission of Jurists (ICJ Kenya). The event (NCLR), EACC, Mazars Auditors, Sichangi Partner brings together business and corporate Advocates, Oilibya, ICJ-Kenya, Sichangi and co. organizations, media, government, CBOs, NGOs together through football aims at raising awareness and advance its campaign on the need for a Freedom of Information law by hosting the event. The tournament is by design convened for business and corporate organizations and bring together players from the banking, industrial and corporate sector which provides a relaxed platform for networking Members of NCLR staff together with MRYG Team and showcasing the holding the trophy in celebration of the win achievements of various prestigious institutions. Participation in the tournament is usually exclusively for the staff of Advocates, Ghetto Radio, Centre for Governance the sponsoring corporations, each team is always and Development, Kituo Cha Sheria, UNDP - Amkeni advised to include both males and females in Kenya, Kenya National Commission for Human Rights their squad, at least a minimum of two females to (KNCHR), Royal Media Group, Safaricom and the enhance gender balance. Law Society of Kenya amongst others. This year, the tournament was held on 12th May 2012 at Impala Grounds, Ngong Road. Some of the teams that participated include; Commission for the Administration of Justice (CAJ), TI-Kenya, The games began at 8.30am and Hon. Peter Kenneth, MP for Gatanga and a Presidential Aspirant was the Guest of Honor during the kick off while Mr. Otiende Amollo, Chairman of the Committee on Administration
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Bench Bulletin on the pool with most points and goals, two of the goals came from awarded penalty kicks.
This year NCLR opted to participate indirectly by sponsoring Mathare based reputable youth group, Mathare Roots. Mathare Roots Youth Group is in partnership with NCLR as part of CSR. The group was very delighted by the opportunity and was determined to go for glory from the start. The team Members of NCLR staff, kids and MRYG Team line up was pooled in Green for a group picture immediately after the Group where it was to face Centre final match for Governance and Development, Commission for the Administration of The fifth and the finally match for the group level Justice (CAJ), Mazars Auditors, UNDP - Amkeni was no shaggy dog story, it was a determinant Kenya and Kenya National Commission for Human for qualifiers to the next level and each team had Rights (KNCHR). geared to the fullest of their ability, especially for second spot as the first was already taken. Mathare Roots Team was then to face UNDP; the winning The first match was against Centre for Governance was sustained as MRYG mortified UNDP and Development of which the game ended in a barren draw, a few minutes later, the boys stepped back to the pitch and hit a one nil win over Mazars Auditors, a third match followed against Commission for the Administration of Justice (CAJ) and the game ended with a goal for each side. At this point, most teams had MRYG team player taking a penalty kick against Commission for the been extremely Administration of Justice during one of the first round matches competitive and had either same amount of points, a single point or goal difference, only two top teams within the group could make with another 6 - 0 win to their docket againts UNDPit to the next level. There came the fourth match Amkeni Kenya to seal their top position in the group in battle against KNHCHR, both the teams fought stage and proceed to the next level, quarters. The well but Mathare Roots proved to be a bit stronger team won a total of four matches and only drew and hammered the team 6 0 to be the top team once; by this time, the team had already ended sprite run for many teams in the tournament and
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Kenya Law Reports was among the last standing eight teams from the four pools. After all the v i g o r o u s morning game a c t i v i t y, t h e clock had hit past midday and all the teams converged for a meal before proceeding for quarter finals, the elimination level. After dine and a few minutes of rest, all the qualified teams embarked on their aspiration to carry the day, MRYG was put against Sichangi and co. Advocates. The game was tough and very fast paced, due to a lot of pressure; a player from Sichangis side hit an own goal. The game ended up 1 0, MRYG once again qualified for the next level, semi finals. The semis proved to be even tougher; MRYG was set to play against the mammoth Mobile Service Provider, Safaricom. Safaricom team contested strongly but eventually lost the battle as it was crushed 1 0 by MRYG.
Bench Bulletin The game ended twelve minutes later with no goal on any side. The referee settled on penalties as
NCLR staff and MRYG members celebrate victory after qualifying for the finals
T h e M RY G t e a m yet again made it to the top two and had a chance to be either crowned the champions or take the second position; Safaricom took the third position after another tough match against the then Defending Champions, Kituo cha Sheria. After the third position match, NCLR Web/Graphic Designer and football team there was a short captain receives a medal from Mr. Otiende Amollo, break then came time for the final Chairman of the Commission for the Administration of Justice match, the only last two standing teams were MRYG and Muhammad Muigai Advocates. The match kicked the teams until Muigais team lost their final kick; off with everyone glued on the field in anticipation MRYG was to seal the win by scoring their third to see which team carries the day. Six minutes to and final kick but the goal keeper saved Muigais the game, each team had made countless attempts at that point. in vein, both the defenses attested unbreakable.
the platform to determine the winners of the day so the teams took positions. There was opportunity for five kicks for each side and MRYG took the first one straight into the net, Muigais team player also hit the net with the first kick, it was a smooth flow until Muigais team lost their third kick. Unfortunately one of MRYG player lost the fourth kick and so the round ended up a draw. The second round was three kicks from each side and Muigais team hit the first score, all went well for
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Kenya Law Reports At that time, there was a lot of tension an anxiety; there was a lot of cheering and the loud supporters made it even more uncomfortable for the kickers, an opportunity was granted to teams, a penalty kick each. The kicks were to be taken by a lady from each team against male goalkeepers; Muigais team took the first kick and lost when MRYG keeper grabbed it. Once again MRYG got a chance to take hold of the cup, fortunately on their side, the lady did not disappoint, she hit the ball hard to extreme left of Muigais keeper and he just could not get hold of it. MRYG took the day, in partnership with NCLR; the team was crowned the winners of Uwazi Tournament 2012 and also took home the
Bench Bulletin top scorer award. Mr. Otiende Amollo, Chairman of the Committee on Administration of Justice, presented the award to the team led by NCLR/ MRYG representative and team captain, Geoffrey Andare. Mr. Otiende Amollo also presided over the closing ceremony. Safaricom team took the third position; Muigais team who also grabbed a trophy for best player took the second spot. This was all happening already late into the evening, about 7:15 pm and after closing of the ceremony, all the teams and officials departed.
MRYGs Dominic scooped the top scorer position for which he also received an award
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Feature Case
SENTENCE FOR ATTEMPT TO COMMIT ROBBERY IS DEATH NOT SEVEN YEARS James Maina Magare & another v Republic [2012] eKLR Court of Appeal at Mombasa Criminal Appeal 224 of 2010 Githinji, Visram & Okwengu JJ.A March 16, 2012 By Esther Nyaiyaki Onchana
he Court of Appeal has held that sentence for an attempt to commit robbery is death as provided by section 297 (2) of the Penal Code and not a term of imprisonment not exceeding seven years. The Court held that section 389 of the Penal Code, which provides for a prison term not exceeding seven years for attempted offences, was only applicable where the legislature had not provided any other sentence. The decision arose out of a case involving James Maina Magare and John Kibanya Maina, the first and second appellants respectively. The Senior Resident Magistrate in Taveta convicted each of them with three offences. The first count, in respect of which the two appellants were charged jointly, was attempted robbery with violence contrary to section 297(2) of the Penal Code. Each of the appellants was sentenced to the mandatory death penalty. Each of the appellants were also convicted of two separate counts of being in possession of firearm without a firearm certificate contrary to section 4(1) as read with section 4(3) of the Firearms Act and being in possession of ammunition without a firearm certificate. They were both sentenced to serve 10 years imprisonment on each of the two separate counts. In view of the death sentence imposed on the first count, the sentences in regard to the other two separate counts were ordered to run concurrently, but to remain in abeyance. Being dissatisfied with the judgment of the subordinate court, the appellants appealed to the High Court against their conviction and sentence. In their judgment the High Court (Azangalala & Odero, JJ), upheld the appellants conviction and sentence in regard to the first count, but quashed their convictions and set aside their sentences in regard to the other two separate counts. The appellants were still dissatisfied with the judgment of the High Court and therefore lodged a second appeal. The 1st appellants memorandum of appeal prepared by Azania Legal Consultants Advocates raised three grounds. One of the substantive grounds alleged the judges erred in law by passing the death sentence. According to the first appellant the mandatory death sentence as provided by section 297(2) of the Penal Code was unlawful since it contradicted section 389 of the Penal Code. Mr. S. Kimani, counsel for the 2nd Appellant associated himself with the submissions made by Mr. T. Bryant who appeared for the 1st Appellant. Mr. T Bryant pointed out that the High Court erred in convicting the appellant for the offence of robbery with violence contrary to section 296(2) of the Penal Code, when the appellant was charged with the offence of attempted robbery contrary to section 297(2) of the Penal Code. Mr. Bryant submitted that the appellant could not be convicted of a charge, which he was not aware of during his trial.
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He further submitted that there was a contradiction between section 297(2) of the Penal Code, which provides for death sentence for attempted robbery, and section 389 of the Penal Code which provides for a sentence not exceeding seven years where one is convicted of attempting to commit an offence punishable by death or life imprisonment. He argued that the appellant ought to have been sentenced to a term not exceeding seven years. In support of his submissions he relied on several authorities. The gravamen of Mr. Bryants argument was that the sentence imposed upon the appellant was unlawful in view of section 389 of the Penal Code, which provided a general penalty for an attempt to commit a felony or misdemeanour. The section provides as follows: 389. Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years. He relied on the cases of David Mwangi Mugo v Republic and Boniface Juma Kisa vs. Republic eKLR where the Court of Appeal was of the view that there was an apparent conflict between section 389 of the Penal Code which provides for a sentence of seven years where the attempted offence is punishable by death, and section 297(2) which provides for a death sentence for the offence of attempted robbery with violence. In the courts view, three things stood out from the reading of section 389. Firstly, the section sets out a general offence of an attempt to commit a felony or a misdemeanour. This was an implied recognition that there are instances where specific offences were provided for in the Penal Code, but no specific provision made for an attempt to commit such an offence. Secondly, the section recognized that there were situations where no punishment has been provided for an attempt to commit specific offences, and the section therefore provided a formula for sentencing where no other punishment provided for such attempt. Thirdly, a specific sentence of a term of imprisonment not exceeding seven years had been provided, where the offence attempted was one punishable by death or life imprisonment. The latter part of section 389 of the Penal Code which provided for the specific sentence, had to be read in conjunction with the words if no other punishment is provided and but so that in the preceding part of that section. In other words, the specific punishment in cases where the offence attempted was one punishable by death or life imprisonment, was only applicable where the legislature had not provided any other sentence for such an attempt. Thus, for the offence of an attempt to commit robbery with violence under section 297(2) of the Penal Code, in respect of which a sentence of death has been provided under that section, section 389 of the Penal Code could not apply. The fact that section 297(1) of the Penal Code, which provides for the offence of attempted simple robbery, provided for a sentence of seven years, confirmed the legislatures intention to provide a more severe punishment for the more serious offence of attempted robbery with violence under section 297(2) of the Penal Code. In the courts view, the legislatures intention to exclude the offence under section 297(2) of the Penal Code from the application of section 389 of the Penal Code was clear. The court referred to its earlier decision Evans Kiratu Mwangi V Republic [2011] eKLR where it was stated that section 297(2) of the Penal Code provides for a sentence of death, and that sentence was therefore lawful. The court distinguished this case from the decision in Godfrey Ngotho Mutiso V Republic [2010] eKLR where the legality of the mandatory death sentence was dealt with. It was of the view that issues raised in this case were different. The court noted that both appellants had been given an opportunity in the subordinate court to
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mitigate before the sentence was imposed. The court concluded that notwithstanding the fact that the Senior Principal Prosecuting counsel conceded the appeal, the appeal had no merit, as the sentence imposed on the appellants under section 297(2) of the Penal Code was lawful. The appeal was therefore dismissed in its entirety. This judgment was delivered pursuant to Rule 32(2) of the Court of Appeal Rules, Visram JA having declined to sign the judgment.
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SUPREME COURTS ADVISORY OPINION ON ELECTION DATE
In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR Constitutional Application 2 of 2011 The Supreme Court of Kenya W.M. Mutunga, CJ; Nancy Baraza, DCJ & Tunoi, Ibrahim, Ojwang, Wanjala & Ndungu, SCJJ. December 20, 2011. By: Njeri Githanga Kamau The constitutional petitions filed in the High Court raised justiciable questions, entailing issues of constitutional interpretation under a jurisdiction properly vested in the High Court. The issues ought to be litigated and resolved in the High Court, and the High Courts decision in that respect would be subject to the appellate procedure running through the Court of Appeal, to the Supreme Court. he applicant, the Interim Independent Electoral Commission, had moved the Supreme Cour t by a Constitutional Application dated April 28, 2011. It cited Articles 101(1), 136(2) (a), 177(1)(a) and 180(1) of the Constitution as providing that elections for Members of the National Assembly and the Senate, the President, Members of County Assemblies and Governors shall be held on the second Tuesday in August in every fifth year. It was also noted that clause 9(1) of the Sixth Schedule to the Constitution stated that: The first elections for the President, the National Assembly, the Senate, county
assemblies and county governors under new Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term. The applicant hence sought the advisory opinion of the Court on the question what, in the light of the above provisions and the other provisions of the Constitution of Kenya and the other continuing applicable provisions of the former Constitution, was the date for the next election for the aforesaid offices of President, Members of the National Assembly and the Senate, Members of County Assemblies and Governors.
the Court of Appeal, to the Supreme Court. The contention, in its essence, was that the Supreme Court lacked jurisdiction at that stage. The court noted that while the AdvisoryOpinion jurisdiction was exclusively entrusted to the Supreme Court, the Constitution did not provide that the Court while rendering an opinion may not interpret the Constitution. It followed that the Supreme Court could, while rendering an Advisory Opinion under Article 163(6) of the Constitution, undertake any necessary interpretation of the Constitution. It was opined that the application amounted to a request for an interpretation of Articles 101(1), 136(2) (a), 177 (1)(a) and 180(1) of the Constitution, and clause 9 of the Sixth Schedule to the Constitution hence the question placed before the court was not a normal one within the Advisory-Opinion jurisdiction as envisaged under Article 163(6) of the Constitution.
A preliminary objection was raised on the ground, among others, that the original grievance in the High Court Petition of April 19, 2011 was a justiciable question, entailing constitutional interpretation belonging first and foremost, to the jurisdiction of the High Court; and that such a matter ought to be litigated and resolved In the light of the several petitions in the High Court which decision in pending before the High Court, the that respect would be subject to the court found that the application was appellate procedure running through
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inappropriate. The cases sought the interpretation of the Constitution, with the object of determining the date of the next general election. Those petitions raised substantive issues that required a full hearing of the parties; and those matters were properly lodged and the parties involved had
filed their pleadings and made claims to be resolved by the High Court. To allow the application, in the opinion of the court would constitute interference with due process, and with the rights of parties to be heard before a Court duly vested with jurisdiction and also constitute an impediment to the
prospect of any appeal from the High Court up to the Supreme Court. The Court had to protect the jurisdiction entrusted to the High Court hence it consequently upheld the preliminary objections and directed the High Court to proceed to hear and determine the several petitions pending before it.
Court of APPEAL Case
NEXT GENERAL ELECTION TO BE HELD 60 DAYS AFTER JANUARY 14 2013
Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR Court of Appeal at Nairobi EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A By: Michael M. Murungi, Advocate (Appeal from a judgment and orders of the High Court of Kenya at Nairobi (Constitutional and Human Rights Division, Lenaola, Mumbi Ngugi and Majanja, JJ.) dated the 13th January, 2012in Constitutional Petition No. 65 of 2011) July 31, 2012 Judgment to an appeal in the Court of Appeal whether a person who is not a party to the proceedings in the High Court has locus standi to lodge an appeal whether such a person may be heard de bene esse matters the court will consider Constitution of Kenya 2010 section 164 Court of Appeal Rules Constitutional law interpretation 2010 rule 75, 77 of the Constitution determination of the date of the first general election Civil Procedure jurisdiction Court under a new constitution - rules of Appeal - whether the Court of of interpretation - schedule to a Appeal has jurisdiction to decide upon constitution status of a schedule a matter which was not canvassed in vis a vis the other provisions of a the High Court and adjudicated upon constitution whether the election was to be held on the 2nd Tuesday Words and phrases of August in 2012 or within 60 days appeal after the end of the term of the serving de bene esse Parliament in 2013 - Constitution of party directly affected [by a Kenya 2010 Articles 101, 262; Sixth decision of the High Court so as to entitle the party to file an appeal]. Schedule sections 2, 3, 9, 10, 12 Civil Procedure appeal parties On August 27, 2010, Kenya
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promulgated a new constitution the Constitution of Kenya 2010. The new constitution provided for a new structure of government and contained transitional provisions governing the conclusion of the term of the serving government and the establishment and commencement of the term of the new government through a general election. P r e v i o u s l y, i n 2 0 0 8 , K e n y a s legislature had passed the National Accord and Reconciliation Act, 2008 to establish a coalition government through a National Accord, which was a reconciliation framework brokered after the violent aftermath of the disputed results of the general election held in December 2007. A dispute arose on the interpretation of some provisions of the new
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constitution and the National Accord Constitution shall be held at and Reconciliation Act, 2008 on the the same time, within sixty question of what would trigger the days after the dissolution of first general election under the new the National Assembly at the constitution and how the date of the end of its term. election would be reckoned. These provisions were: The Sixth Schedule, section 9(2): Despite subsection (1), The National Accord and if the coalition established Reconciliation Act, 2008: under the National Accord is dissolved and general Section 6: The coalition shall elections are held before stand dissolved if - (a) the Tenth 2012, elections for the Parliament is dissolved; first county assemblies and governors shall be held during The Constitution of Kenya 2010: 2012. Article 101(1): A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year. Article 102(1): The term of each house of Parliament expires on the date of the next general election. Article 262 provided that the transitional and consequential provisions set out in the schedule were to take effect on the date that the Constitution came into force on August 27 2010. The Sixth Schedule, section 3(2) provided that certain provisions of the former Constitution would continue to apply until the first general elections. That section excluded section 59 which gave the President the power to prorogue and to dissolve Parliament at any time. The section further provided that the provisions of the former Constitution concerning the executive and the National Accord would continue to operate until the first general elections. The Sixth Schedule, section 9(2): The first elections for the President, the National A s s e m b l y, t h e S e n a t e , county assemblies and county governors under this
reference to Sections 9 and 10 of the Sixth Schedule as follows: a. In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with Sections 6(b) of the National Accord and Reconciliation Act, 2008 or, b. Upon the expiry of the term of the 10th Parliament on the 5th of the Anniversary of the day it first sat which is designated by Legal Notice No.1 of 2008 on 15th January 2008 and the term therefore expired on 14th January, 2013 and the elections shall be held within sixty days of 15th January, 2013. Two appeals were lodged in the Court of Appeal against these findings. One of the appeals was lodged by an entity which had not been a party to the proceedings in the High Court on the ground that the entity was directly affected by the decision of the High Court and that the Constitution entitled it to file the appeal. The two appeals were consolidated. Held: On the locus standi of one of the appellants: 1. Even though in the first instance appeals to the Court of Appeal will invariably be brought by persons who were parties in the suit from which the appeal emanates, this is not to say that a person who was not party to the suit cannot go to the Court on appeal. Each case must be considered on its own merit. 2. A person who was not a party in the original suit has the obligation to establish that it is affected
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The Sixth Schedule, Section 10 provided that the National Assembly existing immediately before the date of the promulgation of the new constitution would continue as the National Assembly for the purposes of the Constitution for its unexpired term. The Sixth Schedule, section 12 provided that the President and the Prime Minister would continue to serve in accordance with the former Constitution and the National Accord until the first general elections unless they vacate office under the for mer Constitution and the Accord. The Sixth Schedule, section 12(2) allowed the Cabinet and the Assistant Ministers under the repealed constitution to continue holding office until the first general elections under the new constitution unless they vacated or were removed from office in accordance with the former Constitution and the National Accord. In interpreting these provisions, the High Court had found, among other things, that, firstly, following the repeal of the former Constitution, the President had no power under the Constitution to dissolve Parliament. Secondly, it had found that the date of the first elections under the new Constitution would be determined by
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by the judgment or order, subject of the appeal - and the required interest is not to be restricted to proprietary or financial interest only - and to establish that there are good reasons for not having pursued its interest in the High Court. Where a matter is of public interest and relates to the protection and promotion of the Constitution, it may be in the interest of justice to admit such a party. 3. However, it would not be proper for such a party to canvass matters in the Court of Appeal which were not the subject of the litigation in the High Court. On the principles of interpreting a constitution: 4. Some of the important principles which apply to the interpretation of a constitution are: a. A court should avoid a construction that produces an absurd, unworkable or impracticable result; b. A cour t should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result; c. The court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise. 5. The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration.
On the merits of the appeals: 6. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution. 7. It was not within the province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule. 8. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms. 9. The High Court was right in its second finding that the first elections under the new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2013.
Per Martha Koome JA, dissenting: Held: 1. A party before the High Court has to demonstrate how they are affected by the decision being appealed against. The appellant should have first sought leave before the High Court so as to demonstrate the general public interest it was pursuing and given reasons why it did not appear before the High Court to agitate its case. 2. Having also considered that the life of Parliament is five years as per the Section 59 (5) of the repealed Constitution, which was saved by section 10 of the Sixth Schedule to the new Constitution, then section 9(1) of the Sixth Schedule should not have been read as a stand-alone leaving out the provisions of Section 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed Constitution. 3. If Sections 9 and 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed constitution were read conjunctively and given their purposeful meaning within the prevailing context that traditionally general elections are held within five years, the National Assembly should dissolve sixty days before the expiration of term. The dissolution of Parliament sixty days after the expiry of its term would contradict section 10 of the Sixth Schedule as it
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extended the period of the National Assembly beyond the term of five years. 4. The National Assembly should have been dissolved sixty days before the expiration of its term - that should have been on or about 14th November, 2012. This way, the current National Assembly would not go beyond its lifespan
of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15 2013. By majority decision: The order of the High Court providing that the general elections could be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement
between the President and the Prime Minister in accordance with section 6 (b) of the Accord was set aside. The order of the High Court providing that the general elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat - which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008 and the term therefore expires on 14th January, 2013 - so that the election shall be held within sixty days of 15th January, 2013, was confirmed.
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PUBLIC PARTICIPATION CRUCIAL IN DETERMINING ELECTORAL BOUNDARIES.
Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & 5 others [2012] eKLR High Court at Nairobi Judicial Review Division M. Warsame, RN Sitati, HA Omondi, P Nyamweya & D Majanja JJ July 9, 2012 Judgment By: Michael M. Murungi, Advocate Constitutional law electoral and boundaries law delimitation of electoral and administrative boundaries decision of the Independent Electoral and Boundaries Commission declaring the names, population and boundaries of wards and constituencies duty of the Commission to comply with the Bill of Rights, Article 89 of the Constitution and the Independent Electoral and Boundaries Commission Act in the delimiting exercise political rights right to vote - right to representation rights of minorities - principles of electoral systems - public participation and consultation - whether the decision of the Commission violated the Constitution and the law whether the Commission had failed in its obligation to ensure public participation and consultation in the delimiting exercise - Constitution of Kenya Articles 10, 19, 20, 38, 40, 56, 81, 88, 89, 174, Sixth Schedule Independent Electoral and Boundaries Commission Act sections 36, Fifth Schedule Survey Act (Cap. 229) sections 29, 39, 41 Constitutional law interpretation of the Constitution Constitution of Kenya Article 259(1) Statute interpretation of statute constitutionality of a statutory provision Constitution prescribing three months as the time within which an application for the review of a decision on the delimitation of electoral units is to be heard statute prescribing thirty days for a court to determine such a matter whether the statute was inconsistent with the Constitution - Constitution of Kenya Article 89 - Independent Electoral and Boundaries Commission Act Fifth Schedule section 4 Jurisdiction High Court jurisdiction of the High Court whether the Court had jurisdiction to review to the decision of the Independent Electoral and Boundaries Commission on the creation, naming, population, distribution and boundaries of constituencies and county wards incidence of scope of the courts power Constitution of Kenya Article 22, 89(11), 165, 259(9) - Independent Electoral and Boundaries Commission Act sections 36, Fifth Schedule he Constitution of Kenya (Amendment) Act, 2008 amended Kenyas for mer constitution to dissolve the then Electoral Commission of Kenya and to create two interim bodies; the Interim Independent Electoral Commission (the IIEC) and the Interim Independent Boundaries Review Commission (the IIBRC). After a national exercise of consultations and review of the boundaries of various administrative units, the IIBRC presented its report (the IIBRC Report), in November 2010, which determined the names and details of the boundaries of 290 constituencies. The IIBRC also published the names of the constituencies in the National Assembly Constituencies Order No. 2 of 2010. Whereas it was mandated to determine the optimal numbers, names and boundary details of County Assembly Wards, the IIBRC was unable to deliver on this mandate because the county wards came into force through a new Constitution promulgated in August 2010, long after the IIBRC had held public consultations. The IIBRC recommended that the existing local authority wards established under the Local Government Act (Cap. 265) should serve as wards until County Assembly Wards were determined in
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accordance with the new Constitution. It also noted that its work was to run up to June 2011 hence it was unable to conduct field surveys to confirm the maps for the 290 constituencies in line with the names and boundary details it had determined. The IIBRC Report was adopted by the National Assembly in December 2010. In its transitional provisions, the new constitution preserved the IIBRC but created the Independent Electoral and Boundaries Commission (IEBC) in Article 88(4)(c). The IEBC was to be responsible for the delimitation of constituencies and wards. The Bill of Rights of this new Constitution guaranteed political rights, including the freedom to make political choices and the right to free, fair and regular elections based on universal suffrage. Chapter Six on representation of the people set out how the right to vote is realized. Article 81 set out the general principles for the electoral system, including the freedom of citizens to exercise their political rights; gender representation quota in elective public bodies; fair representation of persons with disabilities; universal suffrage based on the aspiration for fair representation and equality of vote; and free and fair elections. In order to operationalize the activities of the IEBC, the Independent Electoral and Boundaries Commission Act (the IEBC Act) was passed. Section 36 empowered the IEBC to resolve all issues relating the delimitation of boundaries of constituencies and wards arising from the report of the IIBRC. In addressing the issues arising out of the first review, IEBC was restricted by the IEBC Act and section 2(1) of the Fifth Schedule to use the IIBRC Report as its primary reference material and the report of a parliamentary committee on the IIBRC Report as secondary reference material.
of 2012. This Order contained the decision of the IEBC concerning the delimitation of constituencies and wards. The formula used by the IIBRC and the IEBC to distribute the constituencies was based on a national constituency population quota of 133,138, being the product of dividing the total country population (over 38 million) by the number of legally mandated constituencies (290). To this quota was added o r s u b t ra c te d a n u m b e r representing the percentage variation prescribed by Article 89(6) of the Constitution for a city, sparsely populated areas, and other areas as the case may be to arrive at population quotas of 186,394 for cities; 79,883 for sparsely populated areas; and for other areas, not more than 173,079 and not less than 93,197. The IEBC then mathematically redistributed the 290 constituencies within the existing provinces to arrive at 17 constituencies for Nairobi and 284 for other provinces but taking care to protect constituencies with populations below the quota. In effect, some constituencies were split and others were renamed.
80 new constituencies and 1450 County Assembly Wards had been created, their distribution, their names, boundaries and areas of allocation. The movement of sub-locations hitherto falling in one constituency to one or more of the proposed constituencies was also contested. Further grievances and controversies arose regarding the number of wards given to a particular c o n s ti t u e n c y m a i n l y o n t h e b a s i s o f p o p u l ati o n , geographical, ethnic, clan, community, marginalized groups, minorities and other interests and the adequacy of the wards allocated. These complaints were contained in constitutional petitions and applications for judicial review filed in various High Court registries across the country, which were consolidated and heard by a bench of five judges of the Constitutional and Judicial Review Division of the Court. The two main issues for determination were, firstly, the jurisdiction and the powers of the High Court to review a decision on the delimitation of electoral unites under Article 89(11) of the Constitution and secondly, the constitutionality and legality of the criteria for delimitation applied by the IEBC. The question of which party should bear the costs of the litigation was also contested. The fulcrum of the litigation was therefore the interpretation of and application of the criteria for delimitation set out in Article 89 as read with section 27 of the Sixth Schedule to the Constitution and section 36 of the IEBC Act as read with the Fifth Schedule to the Act. Held: Under Article 259(1) of the Constitution, the Constitution is to be interpreted in a manner that promotes its purpose, values and principles; advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and permits development of the law and
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The methodology applied by the IEBC in the delimitation of County Assembly Wards took into account the county population quota. This quota was arrived at by dividing the total population of the county by the number of constituencies in the county. The total number of constituencies in the county was multiplied by five, being the ideal number of county wards per constituency as recommended by the Report of the Task Force on Devolved Government. Each constituency population within a county was then divided by the county population and the result multiplied by the number of County Assembly Ultimately, in March 2012, after Wards awarded to the county to arrive a national exercise of public at the number of the County Assembly consultations, the IEBC published the Wards awarded to a constituency. National Assembly Constituencies and County Assembly Wards Order, C o m p l a i n t s w e r e r a i s e d 2012 through Legal Notice No. 14 regarding the manner in which
Kenya Law Reports contributes to good governance. In interpreting the Constitution, the letter and the spirit of the supreme law must be respected. Various provisions of the Constitution must be read together to get a proper interpretation. Article 89 could not be read or interpreted in isolation. The mandate of the IEBC was to be read, and the right to fair representation and equality of the vote determined, against the background of the entire Constitution. Since section 4 of the Fifth Schedule to the IEBC Act granted the right to apply for review either under the IEBC Act or the Constitution, the purported limitation on the Court to determine the matter within thirty days of filing the application was inconsistent with Article 89(11) of the Constitution which provided that the application for review shall be heard and determined within three months of the date on which it is filed. be inconvenienced. The review contemplated in Article 89(11) was a review of the procedures and merits of the delimitation exercise. Where an application is made, the court assumes all the plenary powers necessary to ensure that the IEBC complied with the Constitution. Therefore in exercising its jurisdiction in relation to the delimitation process, the High Court is meant to c o r r e c t , m o d i f y, v e r i f y, eradicate, amend, override or suppress any illegality or unconstitutionality committed by the IEBC in exercise of its mandate of delimitation under Article 89. The requirement of Article 89(2) of the Constitution that the review of constituency and ward boundaries was to be completed at least twelve months before a general election did not apply to the review of boundaries preceding the first general elections under the Constitution. This left no doubt that it was intended that the first general elections under the Constitution be carried out based on the work done by the IIBRC. Therefore, the provisions of Legal Notice No. 14 of 2012 took effect and applied to the next general elections.
Bench Bulletin need that is rationally connected to the concept that the creation will result in fair and effective representation while the differing representational concerns of urban and rural areas may be properly considered in drawing constituency and ward boundaries. The one-person onevote principle was tempered by the unique circumstances of Kenya and the specific provisions of the entire Constitution. The delimitation of the boundaries as required by Article 89 required the IEBC to take into account the criteria contained in Article 89(5) and (6). The effect of treating the marginalized and minority communities in the exact same manner as the larger communities in the delimitation process would have been far more discriminatory, and would never eliminate the mischief intended to be reduced by Article 27 of the Constitution [on the right to equality and freedom from discrimination]. Instead, it would undermine the achievement of social justice. The IEBC was not restricted by the Constitution in the number of wards it could create and neither could it restrict itself to creating five wards per constituency. However, it adopted an objective, rational and valid process of determining the number of County Assembly Wards in line with the mandate imposed by the IEBC Act on it to resolve outstanding issues from the first review. The methodology used by the IEBC in conducting the first review did not breach of the Constitution or the Fifth Schedule to the IEBC Act. However, the IEBC was duty bound to ensure public participation in the process of delimitation. The nature and extent of that participation was for the IEBC to determine provided it was meaningful and gave effect to the purposes of the Constitution, that is, to promote accountability, transparency and good governance. Giving effect to the principles of consultation and public participation meant that the IEBC was to give great weight to public consensus where
No person or body could claim not to be subject to or beyond the powers of the High Court when it is alleged that he or she has committed a transgression in exercise of a legitimate power conferred by the Constitution and the law. The jurisdiction of High Court can only be ousted by very clear and express The internationally recognized and language in the Constitution. accepted principles of boundary The jurisdiction of the High Court delimitations were representativeness, to review the boundary delimitation equality of voting strength, independent process was not granted by statute and impartial authority, transparency but was founded in the Constitution and non-discrimination. The decision Article 165; it is the jurisdiction of as to whether to delimit an electoral the High Court to satisfy itself of the area and the means adopted depends propriety of any act or decision done on a countrys specific administrative, by any person or body pursuant to the political, social conditions and the financial resources available. Constitution and the law. In discharging the function of review contemplated by Article 89(11), the court was not constrained by the statutory provisions or common law remedies. The duty was a constitutional duty and the relief must accord with the task at hand. The High Court had the powers to grant appropriate relief if contravention of the Constitution is established, even if the State and the IEBC were to
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The purpose of the right to vote enshrined in the Constitution was not equality of voting power per se, but the right to "effective representation. Effective representation and good governance compelled that factors other than absolute voter parity such as geography and community of interest be taken into account in setting electoral boundaries. The creation of electoral units must meet the necessary conditions and there must be a pressing and substantial
Kenya Law Reports this was possible. In order to give effect to this value, the IEBC was obliged to consider the submissions made to it and give reasons for its ultimate decision. It is the giving of reasons that distinguishes an arbitrary decision from one that is founded in law. The IEBC had not properly discharged its obligation for public participation and consultation. It was not fatal for the IEBC to fail to consult the Attorney General on the delimitation plan. However, consulting the Attorney General expresses fidelity to the law and could, in the future, lead to a result that reduces the scope of litigation. Costs remained in the courts discretion and like all forms of discretion, it must be exercised judicially, in light of the particular facts of the case and giving due regard to the national values and principles of governance set out in the preamble to the Constitution and Article 10 in order to achieve the objects of Article 259(1) on construing the
Bench Bulletin Constitution. Each of the parties was to bear their own costs. In applying its findings in disposing of the consolidated petitions and applications, the Cour t issued orders for the renaming of certain wards; the moving of some wards, locations and sub-locations into other constituencies; the moving of some locations into certain wards and for the amendment of the maps of the affected constituencies in the IEBC Final Report and Legal Notice No.14 of 2012 accordingly.
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BANK CHARGES NOT APPROVED BY THE MINISTER ARE ILLEGAL
Commercial Bank of Africa v Paul Imison & another [2012] eKLR High Court at Milimani Commercial Courts Justice A. Mabeya June 5, 2012 By: Michael M. Murungi, Advocate he High Court has stated that it would be unlawful for a bank to increase a commission, late payment charge or other bank charge on money owed to it by its customer on a credit card account where such an increment does not have the prior approval of the Minister for Finance. Citing section 44 of the Banking Act (Cap. 488) which states that: No Institution shall increase its rate of Banking or other charges except with the prior approval of the minister, the Court observed that a charge would be illegal or unlawful if it is not contractual or if it is against statute. However, as for the rate of interest, the Court ruled that because this is a matter to be agreed contractually between the parties, a client who knowingly and willingly enters into a credit agreement which provides for a repayment at a very high rate of interest cannot thereafter complain to the courts that the rate is irrational or illegal just because it is exorbitant. This is because, as the court further observed, the work of the courts is to give effect to the agreement between the client and the bank and not to rewrite it. The Court made the findings in a case involving a claim by the Commercial Bank of Africa against its client and his guarantor for money owed by the
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client on two credit card accounts. The client had opposed the claim, arguing that the amount claimed by the Bank was interest, which was illegal, unlawful, irrational and unenforceable. The defendants had executed a contract based on the Banks standard terms and conditions. One of these terms was an interest rate of 3.5% per month on any money outstanding on the credit cards and an interest chargeable for late payment. Following what appeared to a notification of increment fees contained in a bank statement, the total rate of interest had risen to 10% per month being 5% interest and 6% interest on late payment. The annual interest was approximately 132%. On the complaint that these rates were exorbitant and illegal, the High Court stated that the courts are not there to redraft contracts entered into by parties howsoever unfavorable such contracts may look to any of the parties. Once parties enter into a contract, the role of the courts is to give effect to such contracts except for certain limited instances in which a court may be justified in making an intervention. While observing that the rate of 132% per annum may look not only exorbitant but out of the ordinary, the court was satisfied that it was the
rate that the parties had mutually and freely agreed upon in their contract and that there was no basis for the court to interfere with it. However, this would not apply to commissions, penalties fees and other bank charges levied on customers accounts. Before a bank can vary such charges upwards, the court noted, the Banking Act required the prior approval of such variation by the Minister. The provision for a late payment charge of 3% per month of the outstanding sum chargeable daily was a charge and not interest. According to the evidence presented to the Court, this rate had been increased to 7% per month so that in a space of three months, the amount claimed by the Bank had increased by approximately 40.8%. As it turned out, the monthly late payment fee was far much higher than the interest. The court was not satisfied that there was any ministerial approval to this increment. On the manner of establishing the lack of ministerial approval in evidence, the court stated that it was not for the client to show that the charges had been increased without authority. Rather, once the client alleged that the charges were illegal and irregular, the evidentiary burden shifted to the Bank to justify
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those charges and to show that it had obtained the ministers approval to increase the late payment charge from a low of 3% to a high of 6% per month. A matter that caused further concern to the Court was that while in such claims banks would produce bank statements to show the amounts that may have been debited and credited
and therefore enable the court to determine what charges may have been levied on the customers account, the Bank in this case was satisfied with basing its claim merely on some opening balances as at August, 2006. It did not produce any bank statements to show how such balances were arrived at. The court found that there was an element of an illegal charge and that the application of the interest
of 3.5% per month on the amount outstanding as from August 2006 was wrong. However, the court found that parts of the Banks claim against the client and the guarantor were legal and had been established by evidence and it gave judgment in favour of the Bank on those aspects of its claim.
COURT OKAYS USE OF LOAD CAPACITY IN THE ASSESSMENT OF THE LOAD LIMITS FOR CARGO VEHICLES
Republic v Minister of Roads and Public Works & another Exparte Kyevaluki Services LTD. ( www.kenyalaw.org) High Court at Nairobi Githua CW, J. May 29 2012
By: Phoebe Ida Ayaya, Advocate
he adoption of sole use of load capacity in the assessment of the load limits of cargo vehicles is not unlawful, the court has held. This was held by the High Court in Nairobi in a judicial review matter where Kyevaluki Services Ltd (Exparte Applicant) moved the court to quash the entire decisions by the Minister of Roads and Public Works (1st Respondent) and Kenya National Highway Authorities (2nd Respondent). The application was brought on the grounds that section 56 of the Traffic Act Cap 403 Laws of Kenya specified that any vehicle load on the road was the one specified by the manufacturer of the chassis of the vehicle or the load capacity determined by an inspector
under the Act. The applicant stated that the 1st and 2nd Respondents had solely adopted section 56 yet the system was inconsistent and gave different vehicle loads at different weigh bridges and had proceeded to penalize the applicant for claimed excess load before any conviction by a Court of Law. The applicant also claimed that the 1st and 2nd Respondents sole use of the load capacity determined by an inspector under the Act was erroneous, was arrived without the applicant being heard and was tantamount to breach of the rules of natural justice and was oppressive to the applicant and other members of the public affected by the said decision. He also contended that he
had suffered substantial irreparable loss that he would continue to suffer if the 1st and 2nd Respondents decision was not quashed and a prohibitory order issued from enforcing the sole use of the load capacity determined by an inspector under the Act. Preliminary objections were raised by the 2nd respondent to the effect that the Notice of Motion was defective, as it had not been made in the Name of the Republic as per the established practice in commencing judicial review proceedings. The issue of whether the court had jurisdiction to issue orders of certiorari where no decision had been annexed to the application as required by Order 53 Rule 7 of the Civil Procedure Rules
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was also raised. While opposing the application, the 2nd respondent submitted that it had acted within the law as empowered by the Traffic Act when using the inspectors appointed under section 3 in determining the vehicles load capacities and executing its statutory mandate of designing, building and maintaining national highways within the Republic of Kenya. It was also stated that it was erroneous to determine load capacity of vehicles by their gross weight as damage to the road was caused by weight on axles not gross weight. It was further submitted that there was direct connection between damage and maintenance of roads and axle loads and emphasis should have been placed on axle loads, which were determined by inspectors in order to serve the wider public interest of maintaining good roads. Lastly, the 2nd Respondent averred that the inspector was an expert who relied on the caliberation machines in determining the weight of vehicles when performing his duties. In deciding the matter, the court first dealt with the preliminary objections raised by the 2nd respondent. It found on the first objection that it was misplaced as the applicants Notice of Motion; on the face of it that it was made in the Name of the Republic as the applicant thus was not defective and is properly before the court. The Judge went on to say that even if the application was not made in the Name of the Republic, such omission would be a matter of form which would not have gone to the substance of the application and bore in mind that the new constitutional dispensation emphasized on substantive justice as opposed to procedural technicalities. It was concluded that such want of form would not have rendered the
application incompetent or defective. found that this destroyed the credibility of claims by the applicant that the On the 2nd objection, the applicant inspectors determination of excess had sought orders of certiorari to loads in its vehicles had been done quash decisions allegedly made by unreasonably or arbitrarily. the 1st and 2nd respondent which adopted the use of a system that The applicant had also sought determined load limits of cargo orders of mandamus to compel the vehicles by inspectors. Order 53 respondents to apply the method Rule 7 of the Civil Procedure Rules of using gross weight shown by provided that any proceedings, manufacturers on chassis of vehicles decisions or order or other record to determine maximum permitted whose validity was challenged must weight of cargo vehicles. The Judge be in writing. The law required that noted that the order of mandamus a copy thereof verified by affidavit was not available to the applicant as be lodged with the courts registrar prayed because the applicant failed to before the hearing of the Notice of show that the respondents had failed Motion perhaps to prove its existence. or refused to perform their statutory A party who failed to avail a copy duties under the Act to the detriment of of the impugned decision, order, the . On the contrary, Section 56(1) of warrant, commitment, inquisition the Act had given the 2nd respondent or other record to the court before discretion in deciding which of the two hearing of the Notice of Motion was methods specified therein to use when to explain his failure to do so to the executing its mandate of determining satisfaction of the court. It was held in the load capacity of cargo vehicles. this case that the applicant failed to prove that the respondent had made Lastly, the court was urged to issue any decision detrimental to its interest orders of prohibition forbidding the that was capable of being investigated 2nd respondent from adopting the by way of Judicial Review or which sole use of load capacity determined was capable of being quashed by by an inspector. On this prayer, the orders of certiorari and that the court held that prohibition orders applicant failed to demonstrate that looked to future and sought to stop it was entitled to orders of certiorari contemplated decisions which if as sought in the Notice of Motion. It made would be contrary to the law. was also clear, the Judge observed, It noted that if the applicants were of that in adopting the 2nd method the view that the respondents were which was the load capacity to be wrong in adopting the said method determined by an inspector under of determining load limits of vehicles, the Act by the 2nd respondent as the court could not issue orders of opposed to the 1st one where a load prohibition to stop a statutory body greater than the load specified by the from executing its statutory functions manufacturer on the chassis of the unless it was established that the said vehicle was authorized , it did not body planned to violate the rules of make the respondents actions illegal or natural justice or act contrary to the unlawful. Equally, the court observed law when performing its statutory that there was no evidence to counter obligations and functions. the 2nd respondents position that the determination of excess vehicle In conclusion, the court dismissed with load was done using machines and costs to the 2nd respondent Notice of had nothing to do with an individual Motion dated 16th December 2010 inspector's subjective decision. It for lack of merit.
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COURT DECLARES SECTION 45(3) OF THE EMPLOYMENT ACT UNCONSTITUTIONAL
Samuel G. Momanyi v The Hon. Attorney General & Another High Court, Constitutional and Human Rights Division Petition No. 341 of 2011 I. Lenaola, J. May 18, 2012.
By: Emma K. Mwobobia, Advocate The Hon. Mr.Justice Issac Lenaola, J.
amuel Momanyi was employed by the SDV Transami Kenya Ltd as a Project Manager where he had served with dedication and diligence until his services were terminated without being heard and without any lawful reasons being given for that action. He admitted that his employment contract provided that any dispute between the parties would have been referred to arbitration but that he had filed a claim before the Industrial Court which claim was struck off under Section 45(3) of the employment Act 2007 as he had only worked for 11 months and 27 days with Transami. The Industrial Court had ruled that Samuel had no lawful basis for claiming that he had been unfairly terminated but he argued that inspite of that ruling, he was entitled to remedies under the constitution because his rights and freedoms had been violated by his employer. He therefore appealed to the High Court and prayed for a declaration that his right to fair labour practices under Article 41(1) of the Constitution had been violated by his employer because he was not accorded a fair opportunity to be heard on the allegations resulting in the termination of his employment and that section 45(3) of the Employment Act was inconsistent with the provisions of the Constitution of Kenya particularly Articles 28, 41 (1), 47,48 and 50
(1). He therefore asked that an order be issued declaring section 45(3) of the Employment Act invalid by reason of its violation of the rights and fundamental freedoms and the said ruling be reviewed and set aside. However, Transami denied that Samuel was diligent in his duties and that the termination of his employment was lawful and warranted. Counsel submitted that Samuel was given an opportunity to explain his lackluster performance prior to the termination and after a meeting which he attended, it was decided that he lacked the capability to perform the functions entrusted to him and he was given reasons why his continued employment was no longer tenable Various issues emerged during the hearing among them being whether the termination of the petitioners employment was in breach of Article 41(1) of the Constitution on the right to fair labour practices. The court considered whether it was properly seized of the matter in the circumstances given that Article 162 (2) (a) of the Constitution had created a court (Industrial Court) with the status of the High Court to determine disputes relating to employment and labour relations. However, the High Court observed that only itself could have determined whether any statute or parts of it were in conflict with the Constitution and that being the case,
it was properly seized of the matter. Samuel had also argued that section 45(3) was in conflict with Articles 48 and 50 (1) of the Constitution which guaranteed the rights to access justice and the right to a fair hearing. It was his argument that it was discriminatory of certain kinds of employees and that only those who had served for over 13 months could have claimed for unfair termination of their services. Justice Lenaola observed that the Employment Act was enacted in 2007 before the enactment of the 2010 Constitution of Kenya and therefore there was need to align the provisions of all statutes enacted prior to it with the said Constitution. The Judge held that in lieu of Articles 27 and 48 of the Constitution which guaranteed equality and freedom from discrimination and the right to access to justice, there was obvious discrimination and that Samuel had been denied equal protection and equal benefit of the law. The Judge obser ved that no explanation had been given by either Transami or the Attorney General as to why a person who had worked for one year and one month was the only one who could have claimed that his employment had been unfairly terminated and
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that one who had worked for a lesser period could not have had the benefit of that claim. Judge Lenaola relied on Cradle V Attorney General [2006] eKLR where it was stated that when considering whether a section of the law was discriminatory, the court must have taken into account the history and Social Economic context of the legislation, in other words, the environment in which the legislature had enacted the statute. The Judge therefore found that the repealed Constitution did not have as much a robust bill of rights as the Constitution 2010 and there was need for all laws to conform to it. The Judge further observed that the objects of the preamble of the Employment Act 2007 could not have been met when section 45(3) of the same Act was left to stand in our statute books. In considering what circumstances a court could have declared a law to have been unconstitutional, Judge Lenaola held that section 45(3) was unreasonable and had the opposite of what the object of the Employment Act was intended to be. The Industrial Court had labored to show that the applicant would have otherwise been heard on his claim but for the barrier created by section 45(3).
Judge Lenaola thus observed that the law was oppressive and the Industrial Courts hands were tied and therefore upheld the Constitution and declared section 45(3) invalid to the extent of its consistency.
Samuel had also prayed for the court to declare the ruling by the industrial Court to have been in breach of the petitioners rights under the constitution. The judge held that the matter was moot because once he had declared that section 45(3) was unconstitutional, certain consequential orders had to have followed with The Judge further found that he had regard to the proceedings before the jurisdiction to issue orders directed at the Industrial Court without breaching industrial court. Article 165(6) of the Constitution However, Justice Lenaola considered because the industrial Court was not the issue whether the High Court a superior court as defined by Article could have directed the industrial 162 (1) of the Constitution. Court given that a court established under Article 162 of the Constitution The court' therefore declared and had the same status as the High issued an order stating that section Court. He found that only the High 45(3) of the Employment Act 2007 Court could have interpreted the was inconsistent with the provisions of constitutionality or otherwise of any the Constitution of Kenya particularly statute or its provisions. He relied Articles 28,41 (1), 47, 48 and 50(1) on Brookside Dairy Ltd v Attorney as the said section purported to deny General, Petition no. 33 of 2011 the petitioner the rights and freedoms and agreed with Justice Majanja that enshrined in the said Articles of the the Industrial Court as a creature of Constitution. statute was a court subordinate to the
High Court and that parliament had no constitutional authority under the former Constitution to create a court of equivalent status with the High Court. Regarding compensation for the alleged violation of his constitutional rights, the Judge did not make any award for reasons that neither Transami, nor the Attorney General could have been found to have deliberately acted to create the impugned section 45(3) and therefore to penalize either of them would have been unfair.
t of erty the eten b li t re rp te e will in sdiction. W ri ju rp u s u t tion We will no our jurisdic adan stice C.B. M Ju r. M . n o The H
8] KLR (No2) [197 Munene v R 15 paragraph page 535,
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HIGH COURTS JURISDICTION UNDER THE VETTING OF JUDGES AND MAGISTRATES ACT
Peter O. Ngoge V the Vetting of Judges and Magistrates Board and Another High Court of Kenya at Nairobi D.S. Majanja J. May 7, 2012.
The Hon. Mr. Justice David Amilcar Shikomera Majanja J.
By: Njeri Githanga Kamau.
Jurisdiction is everything. Without it, which were conducted in camera a Court has no power to make one and he was not given an opportunity to present or prove his complaints more step. in violation of Article 10, 22, 34, he High Court has held that it 35, 47 and 50 of the Constitution. has no jurisdiction in matters He also contended that he was arising from the ongoing discriminated against contrary to vetting process of Judges and Article 27 of the Constitution as he Magistrates. The decision was made was not mentioned in the decision in an application by Peter O. Ngoge, as one of the complainants, Mr S. K an advocate of the High Court of Macharia. Kenya brought under Order 53 rules 1, 2, 3 of the Civil Procedure Rules, Mr Ngoges complaint in respect of Section 8 and 9 of the Law Reform violation of his rights was that he filed Act and Articles 10, 20, 22, 23, various complaints against each judge 27, 34, 35, 47, 50 and 159 of the of appeal being vetted hence he ought to have been heard in respect of each Constitution. and every complaint and given an opportunity to review each judges FACTS response to his complaint. I n s u m m a r y, M r. N g o g e w a s aggrieved by the decision of the He further complained that he was Vetting of Judges and Magistrates the subject of an adverse comment Board (the Board) given on April at Part VIII titled FINDINGS AND 25, 2012 titled Determinations DECISION, Paragraph 3, page 11 Concerning the Judges of the Court of the Boards decision where it was of Appeal hereinafter referred to as observed that; the decision. In the decision, the Board made certain findings as to the (3) A series of complains in this suitability of the Judges of the Court regard were made by an Advocate of Appeal in terms of section 23 of whom I shall not name for reasons the Sixth Schedule to the Constitution. of confidentialitythe Board noted that that particular Advocate had laid Mr Ngoge complained that he had complaints against every judge of the been condemned unheard contrary Court of Appeal, all basically to the to the rules of natural justice as he effect that they are unfairly hostile was not notified of the hearings to him and discriminate against
clearly, there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciarythe situation calls for intervention by the Law Society of Kenya (LSK) the Board will contact the LSK in this respect. It is not in a position to make a finding against the judge in respect of these complaints. Mr Ngoge argued that these remarks were in reference to him since he filed complaints against all the Judges of Appeal. By stating that it would refer the situation to the Law Society of Kenya (LSK) for an appropriate remedy, he asserted that the Board violated his rights. He urged the court to intervene and vindicate his fundamental rights and freedoms as this reference to him by the Board affected him negatively in the eyes of his clients and the public. He hence urged the Court to grant leave to commence judicial review proceedings and for such leave to operate as a stay of the proceedings of the Board as he had established an arguable case to proceed to the substantive stage. He stated that the Board had to be guided by the values of the Constitution and the court could not allow the Board to violate his fundamental rights. The application was opposed on
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the ground that the Court lacked jurisdiction to intervene in matters of Board under the Constitution. As regards whether the proceedings should be heard in public, counsel submitted that the section 19(5) of the VJMA was clear that the proceedings were private except at the instance of the judicial officer concerned. On the whole, it was submitted that there were no grounds shown to warrant the Courts intervention. Counsel for the Attorney General, concurred with the brief submissions and added that the Court could not intervene in the Boards proceedings as this was barred by section 23 of the Sixth Schedule to the Constitution. The decision The court noted that it had a wide discretion to allow or reject the application for leave. The test was whether the applicant had an arguable case which could be heard when the substantive motion was filed. The matter concerned the vetting of judges and magistrates which was carried out pursuant to section 23 of the Sixth Schedule to the Constitution. Section 23 (1) provided for the establishment of the Vetting of Judges and Magistrates Act, 2011 (VMJA) and section 23(2) provided; ''(2) A removal, or a process leading to the removal of a judge from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question, in, or review by, any court.'' Pursuant to these provisions, the court noted that Parliament enacted the VMJA which came into force on March 22, 2011. Section 6 of the VJMA establishes the Board and section 13 provides for the functions of the Board as being, to vet judges and magistrates in accordance with the
provisions of the Constitution and this Act. The court opined that the Board as constituted therefore exercised a mandate and function vested in it by the Constitution and the VJMA.
The court affirmed that the Board had already completed its work in respect of the vetting of Court of Appeal Judges subject to the right of review under the VJMA. In light of section 23(2) of the Sixth Schedule to the Constitution, the Boards decision was part of a process leading to removal of a judge and could not be the subject to question in, or review by, any court. In substance Mr Ngoge sought to review the decision of the Board in so far as it applied to complaints lodged by him. That, according to the court, would be a collateral attack on the Boards decision and was not permitted by the Constitution. The court referred to the case of Dennis Mogambi Mongare v Attorney General and Others Nairobi Petition No. 146 of 2011, where the court held that the Sixth Schedule was part of the Constitution and could not be challenged on the basis of any Finally on the issue of orders of inconsistency with the Constitution. prohibition and mandamus against the provisions of the VJMA that excluded The court affirmed that the order of the public from hearings of the Board, certiorari, if granted, would lead to the court opined that the provisions quashing the decision of the Board. It for confidentiality were intended to was therefore in conflict with the direct protect the inherent dignity of judges provisions of the Constitution and in and magistrates accorded to them by the circumstances, the proceedings the Constitution. The court was not in so far as they would lead to a re- permitted, directly or indirectly, from opening or reconsideration or review proceeding with the inquiry. of the Boards decision or process leading to the removal of a judge In conclusion the court found that could not lie in law and were not to allow the application in the permitted by the Constitution. circumstances of the case would be to circumvent the constitutional Though the court concurred with Mr prohibition inherent in section 23(2) of Ngoge that where there is a breach the Sixth Schedule to the Constitution. of natural justice, the Court must Hence, the court had no jurisdiction to intervene to correct such a violation, embark on the inquiry suggested by it noted that the proceedings under the the applicant.
VJMA were sui generis, the Board was empowered to regulate its procedure and in so doing receive complaints. A challenge to the Boards procedure agitated by the applicant would inevitably lead to questioning the decision of the Board and would inevitably breach the wall established by the Constitution to protect the decisions and process of the Board. As regards the comments made by the Board in reference to an unnamed advocate, the court pointed out that it took into account the values of the Constitution and the rights of the unnamed person in declining to name the person referred to. There was hence no infringement of the applicants rights in the case, it stated. If the applicant was aggrieved by the fact that he was the unnamed person condemned, he had to await action by the LSK on the issue referred to it. It was at that stage that Mr Ngoge, if he was the subject of the consideration by the LSK, would have all the rights to a fair hearing accorded to him, the court held.
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COURT DISMISSES CHALLENGE AGAINST THE P.E.V. REPORT BY HUMAN RIGHTS BODY
Republic v Kenya National Commission on Human Rights ex parte Hon. William Ruto [2012] eKLR JR Misc. Application No. 647 of 2009 High Court at Nairobi M. Warsame, C. Githua & W. Korir, JJ. May 4, 2012 By: Nelson K. Tunoi, Advocate he High Court (M. Warsame, C. Githua & W. Korir, JJ.) has ruled that applications for judicial review ought to be made promptly, and whoever wished to challenge the action of a public body is therefore expected to move to court promptly once the decision being challenged is made. Although undue and inordinate delay in applying for judicial review is a major factor for consideration by the court in deciding whether or not to grant judicial review remedies, the three-judge bench observed that even where an application disclosed meritorious grounds for the grant of judicial review orders, the application could be rejected if there is evidence that the person seeking the orders sat on his rights and failed to seek relief in good time and with due diligence. Facts
actually presented his views to the Commission. The evidence further showed that the report was distributed far and wide and had received extensive media coverage. The applicant sought judicial review orders of certiorari against the respondent to quash the decision of the respondent made in its report that the applicant participated and was involved by way of planning, inciting, meeting and financing the post-election violence. It was the applicants case that the respondent had breached the rules of natural justice by naming him as a planner, financier and perpetrator of the postelection violence without giving him an opportunity to be heard, and further that the respondent violated his legitimate expectation that he would be heard before being condemned hence denied the right to be presumed innocent unless adjudged otherwise by a competent court and thereby injuring his image and reputation. The applicant further challenged the jurisdiction of the respondent in making such adverse findings against him without affording him an opportunity to be heard and that the respondents report was unreasonable as it applied double standards in its investigations by giving other people an opportunity to be heard while denying him such a right.
known to the law but only made recommendations and there was therefore no decision to be quashed by way of judicial review. Further, the respondent contended that the report was made in conformity with the Commissions mandate and statutory obligations, that it acted fairly and without discrimination against the applicant, and that the applicants application was statute barred. The respondent further submitted that public interest demanded that the Commissions documents, the character and scope of the human rights violations that occurred during the post-election violence, the anonymity of the witnesses and non-disclosure of information was paramount in the circumstances. The respondent argued that the applicant would have an opportunity to confront the evidence gathered if he were to face criminal charges. Principal issues for determination The key issues for determination by the court were, among others, whether the report amounts to a decision which can be challenged by way of judicial review; whether the delay in filing the instant proceedings violated the six (6) months rule prescribed under section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules; and whether the respondent in preparing the report violated the applicants rights.
The facts of the case were that the Kenya National Commission on Human Rights (hereinafter the Respondent) in its report entitled On the Brink of Precipice: A Human Rights Account of Kenyas Post Election Violence (hereinafter the Report) named the Hon. William Ruto (hereinafter the Applicant) as an alleged planner, financier and perpetrator of the postelection violence. From the evidence adduced in court, it was clear that the applicant was called during the investigations to present his views Conversely, it was the respondents on the post-election violence and he case that it did not make any decision
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With regards to jurisdiction of the court vis--vis section 33 of the Kenya National Commission on Human Rights Act [No. 9 of 2002 (now repealed)], the court observed that the respondent being a statutory body fell under the supervisory jurisdiction of the court, and as such, public bodies need the monitoring of the courts through supervisory jurisdiction exercise and granting appropriate judicial review remedies where appropriate, lest they injure citizens and abuse their rights in the guise of performing statutory obligations and/ or administrative functions. On the issue whether the respondent made any deliberate act with some specificity against the applicant, the court ruled that there was a clear and specific finding in the report by the respondent and there was no doubt that it was adverse to the applicant, it affected his rights and therefore the report amounted to a decision which was acquiescent to judicial review. The court in weighing the rules of natural justice vis--vis public interest observed that the prevailing
circumstances did not permit the respondent to comply strictly with the rules of natural justice. The court thus ruled that the respondent was not obligated to hear all the persons mentioned in the report since this would have endangered their source of information and would have been prejudicial to the recommended further investigation by the relevant Government Agencies. Regarding the issue whether the applicants application for judicial review orders was statute barred, counsel for the respondent submitted that the applicants application was barred by the operation of the law since the application was filed over fifteen (15) months after the report was unveiled in August, 2008. Conversely, counsel for the applicant argued that time should start running from 17th July, 2009 being the date of the re-launch of the report and not August 2008. In the alternative, counsel submitted that the application was not statute barred since the report was not a judgment, order, decree, conviction or other proceedings and was therefore not subject to the six months rule. The
court noted that whatever had been said about the applicant in the report had not changed with the re-launch, and therefore it was not possible to quash the re-launched report and leave the original report unveiled in August, 2008 intact. The application by the applicant was therefore filed late in time and no reasonable explanation was offered for the inordinate delay. The court stated thus, The applicant was supposed to file his application within six (6) months from the date the report was unveiled the report was covered by the six (6) months rule in that though it is not a judgment, decree, conviction or order it is covered in the category of other proceedings. Therefore the applicant failed to move to court with sufficient speed to protect his rights and the orders sought could not issue since they would be of no useful purpose to the applicant. Mr Katwa Kigen appeared for the applicant while the respondent was represented by Mr. Pheroze Nowrojee.
HIGH COURT DECLINES TO IMPLY THE EXISTENCE OF A TRUST IN A SALE AGREEMENT
Samuel Njuguna Kimemia v Rose Mgeni Mtwana (2012)eKLR. High Court of Kenya, at Mombasa R.M. Mwongo J. April 30, 2012. November 28, 2011. By: Emma Kinya Mwobobia, Advocate "..so the trust if there be any, must the law never implies, the court never either be implied by the law, or presumes a trust but in the case of presumed by the court. There is one absolute necessity." good, general and infallible rule that goes to both these kinds of trust; he High Court sitting in it is such a general rule as never Mombasa has ruled that a mere deceives; a general rule to which allegation of a trust cannot there is no exception, and that is this; create one and therefore, courts will not imply a trust save in order to give effect to the intentions of the parties and such intention must be clearly determined beforehand. This dispute related to a suit property under the "house without land" system which was a land system or
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relationship deep enough to draw out the jealousness of a spurned lover when Kimemias wife came to visit him. The judge held that if there was cohabitation at all, it had not been shown to have been continuous as there was little evidence of the things they had done jointly other than the In summary, Samuel Kimemia had a purchase of the suit property. relationship with Rose Mtwana who alleged that they were married under The allegation by Kimemia which was Kikuyu customary law and that there consequently denied in the defence was a child born of the union, a was that during earlier discussions statement Kimemia denied. However, concerning the suit property , it had there neither was evidence of dowry been agreed between the two that paid to prove the existence of the the suit property would have been marriage nor were there documents conveyed into their joint names produced at the trial evidencing the although Kimemia would solely have birth or existence of the child. The contributed to the purchase price. parties had a disagreement when Kimemia had further indicated that Kimemias wife came to visit him at the Roses name would only have been coast and a dispute ensued between included as a purchaser since she Kimemia, the wife and Rose and had misrepresented information and which was the genesis of this dispute. told him that he could not have been allowed to own property in that area During the course of their relationship, because he was not a local person but Kimemia and Rose had entered into a from upcountry and further that she sale agreement to purchase a house would hold the half share of the suit which they jointly owned according property on trust for the sole benefit to the sale agreement. In her defence, of Kimemia. Rose alleged that she had contributed to the purchase and renovation of After perusal of the sale agreement, the property. However, the evidence the judge found that the agreement adduced in court indisputably showed identified Kimemia and Rose as joint that the entire purchase price had purchasers of one part and further, been raised by Kimemia. Although that there was no indication in the it was alleged that both parties agreement or in any other writing or participated in the renovations, it communication between the parties was clear from the evidence adduced to have suggested that Roses name before court that Kimemia bore the was to have featured in the agreement lions share of the financial burden of on any condition or subject to any trust or other understanding. Justice the renovations. Mwongo also observed that even The main issues before court therefore subsequent actions of the parties had were whether Kimemia and Rose not evinced any intention on the part were Husband and wife at the time of Kimemia that Roses inclusion in the of purchase and whether Rose held purchase was done on trust for him. It half a share in the suit property in trust was not until the parties had fallen out and criminal proceedings had been for Kimemia. instituted that the issue arose. After reviewing submissions from the rival parties, the court observed According to the court, the burden of that although it was apparent that proof was on Kimemia to have proven the parties were in a relationship, it the existence of a trust and therefore was on record that they had never a mere allegation of its existence cohabited. Justice Mwongo therefore could not have created one. The found that Rose, by any definition court further observed that it was trite was not a wife to Kimemia although law that a trust, by definition, arose there seemed to have been a close when a donor reposed confidence in a person who was termed a trustee, phenomenon mostly in the Coast. According to justice Mwongo, Judicial notice has long been taken of this strange system in the coast, and there has been substantial case law on it. However, scholarship and legislation has lagged behind on this issue.
for the benefit of another who was called a cestui que trust, respecting property which was held by the trustee for the benefit of thecestui que trust. It further held that nothing in the purchase transaction had manifested any intention on the part of Kimemia that Rose should have held a share of the property for him or anyone else. While relying on the case of Mbothi & 8 Others v Waitimu and 11 Others [1986]KLR 171, the court held that courts would not have implied a trust save in order to have given effect to the intentions of the parties and such intention must have been clearly determined beforehand. The judge therefore found that Rose was not holding any part of the property as a trustee for Kimemia and further that no shares had been distinguished in the agreement and none were distinguishable in interpretation. Having found that no trust had been proved, the judge concluded that the inclusion of Roses name as a purchaser was purely gratuitous on the part of Kimemia and having done so, he could not have reversed the proffered gift and obtained an injunction to have prevented Rose from enjoying the same. Similarly, having proffered the gift, Kimemia could not have obtained a court cancellation of Roses name from the landlords records in the absence of a contractual pre-condition, except with her consent. She was a proprietor of that which had been proffered to her. However, the judge dismissed the issue of misrepresentation by Rose to Kimemia that she had to have been included in the purchase as a local person because Kimemia was not from that area and added that there was no evidence which had been led by Kimemia to have proven this point. The cour t in deciding whether Kimemia was entitled to an account of rent collected from the suit property, ordered that Kimemia be given an account of all income that had been received and the true expenses that had been reasonably paid out from 2009 to present by Rose. It further held that rent was a right to each joint owner of the suit property and Kimemia was entitled to a share
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thereof. In conclusion, the court ordered for the parties to agree on the extent of each partys share in the rent earned
by the property and that failing percentage interest in the suit property agreement, the court would allow the including detailed submissions on the parties to make submissions before rental income and expenses. it on the extent of their respective
REVOCATION OF LAND TITLE BY REGISTRAR OF TITLES ILLEGAL
Republic v Registrar of Titles Nairobi Registry & 3 others [2012] eKLR Judicial Review Case No. Elc. 19 of 2011 High Court of Kenya at Nairobi Weldon, K. Korir, J. April 24, 2012 By: Nelson K. Tunoi, Advocate he High Court has stated that the Registrar of Titles has no power to revoke a land title, reiterating that the validity of a title document can only be pronounced by a court of law. The Judicial Review Division of the Court observed that it was immaterial that the title to land was acquired through illegal means as the due process of the well established mechanisms had to be followed as well enumerated in section 60 of the Registration of Titles Act (now repealed by the Land Registration Act, No. 3 of 2012). The holding arose from the administrative decision of the Registrar of Titles (1st respondent) to revoke the applicants title to the suit land based on the recommendations of the Commission of Inquiry into Illegal/Irregular Allocation of Public Land (commonly referred to as the Ndungu Commission/Report) , the 4th respondent in this case. Other respondents in this case were the Kenya Anti-Corruption Commission (2 nd respondent) and the Kenya Agricultural Research Institute (3 rd respondent). The applicant, Major (Rtd) Dedan Njuguna Gichuru sought judicial review orders of certiorari to quash the decision by the Registrar
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of Titles (1st Respondent) to revoke the applicants title to land through gazettement. The applicant further sought orders of certiorari to quash the recommendations of the Ndungu Commission and the further orders prohibiting the respondents from registering any documents adverse to the interests of the applicant or interfering with the applicants title and possession of the suit property.
was not valid title since it had been irregularly allocated to him and thus did not have good title which could be protected by way of judicial review. Therefore they contended that the action of the 1st respondent was justified in the name of public interest. The issues raised in the matter for determination by the court included whether the 1 st respondent acted ultra vires by revoking the applicants title; whether the issue of public interest could be raised outside the provisions of the law; and whether the applicant was entitled to the reliefs sought. Justice Weldon Korir first observed that public interest cannot be addressed outside the provisions of the law simply because however much a view is popular but not entrenched in the laws by Parliament, then the same cannot be elevated to the same status with the law. The judge then proceeded to hold that although the action of the 1st respondent as argued was deemed to be in the public interest, the courts could not be allowed to be used as a cleansing mechanism by those who unlawfully or irregularly acquire public land.
The genesis of the case arose earlier in 2004 when the 4th respondent released a report concluding that the applicant had been irregularly allocated the subject land and recommended that the same be revoked. On this basis the 1st respondent published a Gazette Notice declaring the said allocation illegal and irregular and revoked the applicants title to the subject land among others. However, the Gazette Notice only disclosed that the land in question had been reserved for the 3rd respondent and had failed to show under which law the 1st respondent had exercised the power to revoke the applicants title. Therefore, it was the applicants case that the 1st respondent had no power to revoke his title. Conversely, the respondents Regarding the issue whether the 1st contended that the applicants title
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to pronounce the validity of a title. The issue of inordinate delay in filing the application was raised by the respondents and it was argued that the application was filed almost six years after the report by the 4th respondent was published hence contravening 6 months rule under section 9 (3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. Although the applicant contended that the rule was only applicable to court proceedings, the court observed that where an applicant comes to court too late in the day the court should not exercise its discretion in favour of such an applicant. It is imperative for
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respondent acted within the confines of the law, the judge cited section 60 of the Registration of Titles Act (now repealed) observed that the Registrar did not have absolute power to revoke the applicants title and had failed to apply the available legal mechanisms in revoking the applicants title. Even if he had powers, the judge assumed, the 1st respondents decision would still not have met the rules of natural justice threshold. The applicant was not accorded an opportunity to explain how he acquired the subject land hence the decision would still have been invalidated. The court ruled that only a court of law had the power
any applicant to know the decision being challenged does not only affect the applicant but other parties too and those other parties may have acted on the decision. Therefore the court cannot come to the aid of such indolent party. Regarding the other prayer sought by the applicant on prohibiting the respondents from interfering with the suit property in any way, the court declined to issue the order on grounds that the same would imply that the applicant acquired the land legally, which issue the court had not inquired about.
HIGH COURT REJECTS PLEA FOR RETROSPECTIVE APPLICATION OF THE CONSTITUTION
B.A ( Suing through the mother as next friend) v D.A.O High Court at Nairobi Constitutional Petition No. 48 of 2011 Mumbi Ngugi J. April 20, 2012 By: Monica Achode, Advocate he High Court has held that one cannot claim for alleged violation of right under the current Constitution in respect of violations that allegedly occurred prior to its promulgation. This was in a petition which arose out of a photograph taken at what the petitioners referred to as a fun day that was held in Nairobi where the petitioners, a mother and daughter, claimed that they were aggrieved by the publication of the photograph and asserted that it had violated their rights by revealing their HIV status without their consent. They further stated that their right to privacy, equality, before the law and nondiscrimination guaranteed by the Constitution of Kenya, 2010 had
been violated by such publication. They therefore sought orders declaring that the respondents publication had violated the petitioners right to human dignity and the right to privacy and that the publication had threatened the petitioners right to equality before the law. The 2 nd and 3 rd respondents had organized a fun day for children from various childrens homes and the 2nd petitioner had been asked to permit her daughter the 1st petitioner to attend the fun day which she did. However, the 2 nd petitioner averred that later on, the respondents published an article with a photograph of the 1st petitioner together with other children carrying foodstuffs including
the names of her daughter. The petitioner alleged that the publication had caused her anxiety, depression and psychological trauma and that she had lost friends as a result. Counsel for the petitioner submitted that since the 2nd respondent was known locally and internationally as a home that took care of HIV positive children, the publication of the photograph had therefore identified and disclosed unlawfully the health status of the petitioners. He further argued that the constitutional rights which included the right to privacy and equal protection of the law which was also provided under the HIV and AIDS Act had been violated. In addition, the petitioners argued that the 3 rd
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was capable of being sued in its own name; whether the respondents were bound by the bill of rights; whether the petitioners could have claimed for the violation of constitutional rights under the new constitution in respect of violations that occurred prior to its promulgation and whether the respondents violated the petitioners rights and fundamental freedoms as alleged. Justice Mumbi Ngugi held that from the pleadings before the High Court, the 3rd respondent did not appear to be a person even within the wide definition provided by Article 260 of the Constitution. She observed that the 3rd respondent was a part of the 2nd respondent and the enforcement of any orders of the court in the matter would have clearly been against the 2nd respondent who was the incorporated entity. The judge further observed that even in allowing for a wide definition of the term person in the Constitution, the joinder of the 3rd respondent was superfluous as the 3rd respondent who was an outreach programme did not exist independently of the 2nd respondent. The judge found that the Constitution had contemplated both vertical and horizontal application of the bill of rights and that it was not just the state which was under the obligation to observe and respect human rights. She stated that the Constitution required that all persons as well as the state to respect its provisions generally and the provisions of the bill of rights in particular. Justice Ngugi thus held that these provisions of the Constitution read together with the definition of person in Article 260 had made it clear that the provisions of the bill of rights had intended to have been binding on all persons whether neutral or legal, incorporated or unincorporated.
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respondents could have been sued in its own name since it was a charitable institution under the Childrens Act which provided care for children with HIV. The counsel also submitted that Article 2 of the Constitution had imposed an obligation on all persons to observe its provisions on protection of fundamental rights and these provisions were enforceable against both individuals and corporations. Additionally, he submitted that the term persons under the Constitution referred to both corporate and unincorporated entities and therefore even though the 3rd respondent was an unincorporated entity, it was a person with a duty to observe the human rights of others. However, the 1st respondent, denied that the photograph had revealed the HIV status of the petitioners or any health status whatsoever and that at no time had it interviewed the 2nd or 3rd respondent with regard to the HIV status of the petitioners. Counsel for the 1st respondent submitted that there was no evidence from the petitioners to show that the programme by the 2nd respondents catered only for HIV positive children and even if that was the case, the journalist who had covered the event had no idea of the medical status of the petitioners. It could therefore not have been said that the effect of the publication was to have disclosed a status not known about. With regard to the petitioners reliance on the provisions of the HIV Act, he submitted that no test had been disclosed and the sole aspect relied on was the association of the child with the Childrens home. Counsel for the 2nd and 3rd respondent added that the 3rd respondent was an outreach programme of the 2nd respondent and therefore did not exist as a legal entity capable of being sued.
judge held that the petitioners could not have claimed for the alleged violation of rights under the current Constitution in respect of violations that had allegedly occurred prior to its promulgation. The judge relied on the case of Joseph Ihuo Mwaura & 82 others v Attorney General Petition No. 498 of 2009 where Majanja J. observed that the Constitution promulgated in August 2010 was not retrospective hence its provisions would not have applied to matters that had occurred before the effective date of the Constitution and unless otherwise provided, the provisions of the Constitution 2010 could not have governed maters that were done under a different legal regime. Judge Ngugi further stated that had the act complained of in this petition resulted in violation of a continuing nature, then it would have been possible to have considered the petition against the provisions of the current Constitution which was not the case and therefore the petitioners claim in respect of the rights protected under Article 28 and 31 of the Constitution had to fail. With regard to non-discrimination and equality before the law, judge Ngugi observed that there was nothing in the photographs or the captions that would have even remotely suggested the health status of the children. Indeed, there was nothing in the photograph that indicated what the 2nd and 3rd respondent were about and the submission by counsel for the petitioner that the 2nd and 3rd respondents were known nationally and internationally as institutions that care for children with HIV was not borne out by the pleadings, submissions or evidence before the court. The Court therefore found no merit in the petition and dismissed it with no order as to costs.
The issues for determination in this O n t h e i s s u e o f r e t r o s p e c t i v e case were whether the 3rd respondent application of the Constitution, the
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POWER OF A NON-REGISTERED FOREIGN COMPANY TO ENTER INTO A CONTRACT
PNTC Worldwide PVT Ltd v Sun Palm Management Ltd & another [2012] eKLR High Court at Mombasa Justice J.W. Mwera March 23, 2012 By: Michael M. Murungi, Advocate
he High Court has stated that it was legal for a foreign company to sign a lease agreement even though at the time the company had not filed its registration documents with the Registrar of Companies. The issue of non-compliance with the Act was one to which the companys officers and agents were liable to a fine, which was a matter for the Registrar of Companies to pursue though the criminal justice system, and it was a separate matter from the legal capacity of the company to sign the lease agreement or to file a claim in court. The Court was giving a ruling in a case in which a company registered in Mauritius was running its business in Kenya through a local subsidiary, and before it had obtained a certificate of compliance from the Registrar of Companies, it entered into a lease agreement in its own name under a contract executed with the facilitation of the local company. Under sections 365 and 366 of the Companies Act (Cap. 486), a foreign company is not to be deemed to have a place of business in Kenya
merely because it is doing business through an agent in Kenya at the place of business of the agent. The Act requires that foreign companies that establish a place of business in Kenya should deliver to the Registrar of Companies certain documents relating to the establishment of the company within thirty days. These documents include the companys charter or memorandum, its directors a n d s e c r e t a r y, t h e n a m e a n d address of a Kenyan contact and the companys principal office. Once these documents have been presented to the satisfaction of the Registrar, the company is issued with a certificate of compliance. Where a foreign company fails to comply with these provisions, the law provides for the payment of a fine by every officer or agent of the company who willfully or knowingly allows that default. In a dispute relating to the lease agreement, it was argued that because the company had not complied with section 366 of the Companies Act, it had no legal personality and therefore it had no capacity to enter into any legally enforceable contracts in Kenya, much less to sue in court
to enforce such a contract. The High Court found no merit in this argument, stating that what the parties did between them remained valid or invalid according to the legal regime they were operating under, and this was aside from the issue of noncompliance with the Act which was a matter for the Registrar of Companies of take action against. As Judge J. Mwera observed, there was no doubt that by the time the company filed its certificate of compliance it had not established a place of business in Kenya. It was a foreign company but it ran its operations/business through Stephanies Beach Ltd, a local company. This fell within the provisions of section 365 (2) of the Companies Act. What the company did or executed at the offices of its local agent was lawful and valid. Apart from the lease agreement, the court had not been shown any other activity by the company that ought to have been invalidated on the ground that it was foreign company that had not complied with section 366 of the Companies Act.
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REFERENCE FOR CONSTITUTION OF A THREE-JUDGE BENCH DISCRETIONARY, COURT RULES
Gilbert Mwangi Njuguna v Attorney General [2012] eKLR Petition No. 267 of 2009 High Court of Kenya at Nairobi Mumbi Ngugi, J. March 16, 2012 By: Nelson K. Tunoi, Advocate although past judicial thinking alluded to the conventional wisdom that many heads are better than one, or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a substantial question of law that merits reference to a three-judgebench means. 82 and 84 of the former Constitution that arose with regard to his removal from his position as a magistrate. Amongst the orders that the petitioner sought included an order that the file be referred to the Chief Justice for purposes of constituting a three-judgebench to hear the petition. Ms. Mwangi representing the petitioner made reference to an article by former Chief Justice F. K. Apaloo carried in the Nairobi Law Monthly (January, 1995) on the circumstances in which the Chief Justice should appoint a three-judge-bench to hear a matter under section 84 of the former Constitution as being where complex issues of determinations of constitutional issues are raised. She further relied on the case of Samuel Kamau Macharia & another v. Attorney General & another [2000] eKLR in which the former Chief Justice Bernard Chunga while appointing a three-judge-bench set out the matters to be considered in appointing a three-judge-bench, among them that the motion seeking the referral should not be frivolous and must raise matters of considerable complexity and gravity in relation to the interpretation of the Constitution. of the manner in which the former Judicial Service Commission (JSC) had terminated the petitioners employment. Further, the petitioner argued that the matter touched on a critical issue of the nature and scope of judicial independence both under the former and the current Constitutions. The petitioner contended that the petition therefore raised serious constitutional issues which were not just complex but of public interest too, and which warranted the reference of the file to the Chief Justice for the constitution of a three-judgebench to hear the petition. Counsel submitted that the considerations for appointment of a three-judge-bench were now set out under Article 165 (4) of the Constitution which provided that; Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) of shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice. There was no representation for the State at the hearing and no submissions were filed on its behalf.
he High Cour t has ruled that not all issues that raise substantial question of law with regard to constitutional rights automatically merit hearing by an uneven number of judges. In dismissing the application, Lady Justice Mumbi Ngugi held that the issues arising in the instant application could be adequately dealt with by a single judge and observed that in the event that any party to the matter was not satisfied with the decision of the single judge, the appeal process was open in which a bench of three appellate judges would consider the matter and further appeal to the Supreme Court if needed be.
The petitioner, Gilbert Mwangi Njuguna, had filed a petition alleging Ms. Mwangi submitted that the issues violation of his fundamental rights raised by the petitioner needed to In dismissing the application, Lady under sections 71, 73, 74, 75, 77, be considered by more than one Justice Mumbi Ngugi observed that judge as they included a challenge although past judicial thinking alluded
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to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine a matter. The Court in the Community Advocacy Awareness Trust case further observed that in view of the fact that the new Constitution had an expanded Bill of Rights,
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to the conventional wisdom that many heads are better than one - as opined by the then Chief Justice Apaloo - or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a substantial question of law that merits reference to such a bench means. The court made reference to the case of Community Advocacy Awareness Trust & others v Attorney General & others [2012] eKLR where the High Court (Majanja, J.) observed:
The court noted that the circumstances would defeat the objective of the expeditious justice as outlined under Article 159 (2) (b) of the Constitution, providing that justice shall not be delayed, and therefore the court should consider each case on its merits and determine whether a particular matter ought to be referred to the Chief Justice for constitution of a three judge bench to hear it. In finding that the issues raised by the petitioner could be adequately dealt with by a single judge, the High Court declined to refer the matter to the Chief Justice for constitution of a bench of an uneven number of judges.
ever y question concerning the interpretation of the Constitution would be a substantial question of law as it is a matter of public interest, affects the rights of the parties, is fairly The Constitution of Kenya does novel and has not been the subject of not define, substantial question of pronouncement by the highest court. law. It is left to the individual judge
WIDOWS HAVE A RIGHT TO BURY THEIR HUSBANDS IN THEIR ESTABLISHED HOMES "BOMA"
Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR www.Kenyalaw.org A Mshila. J High Court, Eldoret March 13,2012.
By: Andrew Halonyere, Advocate against any person on any ground. Lucy Kemboi brought a suit against her in-laws ,the defendants herein, seeking inter-alia authority to arrange for the collection, burial and interment of the body of her husband the late Ambrose Kipkoech Kurgat at their matrimonial home at Kamariny, Keiyo Marakwet County, on such reasonable time as she may determine, with liberty to the defendants to participate at their discretion. According to Lucy, the deceased was her husband and after he had passed on her In-laws held meetings and made funeral arrangements without involving her nor her children. The meetings were held at her late husband's step- mother's house and she was not afforded any hearing and was only given information as to what had been decided. Lucy submitted that she only got to know that her in-laws intended to bury the deceased next to the grave of his late father through a defence filed by her in-laws after she had filed a suit in the Chief Magistrates Court. She also submitted that her late husband had a homestead and that she had constructed a house thereat together with her late husband. She stated that the homestead and house were located on a parcel of land, which piece of land was demarcated and given to
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widow has a right, just like that of her in-laws, to bury the remains of her husband, the High Court has ruled. Justice Mshila held that a widow's right to bury the remains of her husband were provided for and protected by Article 27 (3) and (4) of the Constitution, in that a widow should not be discriminated upon by cultural practices. Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly
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on a business of a bar. The defendants further submitted that Lucy lived in a rented house in Iten and that she never slept in their home built in Kamariny. They stated that Lucy would attend the funeral meetings and would retire to her house in Iten after the meetings. It was their contention that the deceased had not been shown any portion of land by their late father but he had gone ahead and built the house on the portion. The defendants further submitted that their father's estate had not been distributed and that the site of the deceased's house might not have been the deceased's allotment upon distribution. They also testified that one of their late brother was buried on a piece of land that he had been given by their late father and that he had established his home on that piece of land, hence his being interred there. The defendants therefore asked the court that they should be allowed to inter the deceased at the family graveyard.
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her late husband by the deceased's late father and that it was upon that portion of land that she wanted to inter her late husband's remains. Lucy further submitted that whereas her inlaws wanted to inter the remains at a grave site set apart by her late father in-law as a family graveyard, the said site was approximately two hundred (200) metres from her homestead and therefore she should have been allowed to bury her late husband at the right place where she had built a house and established a homestead.
the rights of Lucy were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan to bury her husband's remains. In answering the question as to where the deceased had established a home, the Court drew reference from the case of Apeli v Buluku C.A No. 12 of 1979 where it was held that "a person wishing to be buried outside his father's homestead takes steps to have an acceptable and established home elsewhere". In view of that, the court observed that by conduct and by reference from the facts, neither the deceased nor Lucy had established a permanent home at Kamariny and that the fact that a temporary house had been built on the said portion of land did not confer ownership of the property upon the deceased. From the foregoing, Justice Mshila held that the deceased did not have a title to the portion of land at her alleged homestead as the estate was yet to be distributed nor had a Grant of Letters of Administration been taken out over their late father's estate. Thus by giving Lucy the body to inter at the alleged homestead would interfere with the other family members' rights to the property. Ultimately, the Court ordered that the deceased's body be handed over to Lucy and her in-laws jointly or to any one of them for burial at the site set apart by the late father in-law and father respectively for burial.
In support of her case, Lucy called a Keiyo elder to testify on her behalf on Keiyo customs. It was the elder's evidence that according to Keiyo customs, meetings for such funeral arrangements had to be held at the house of the deceased in consultation with the deceased's widow and children and that it was the practice that a married man had to be buried in his "Boma" and that it was the clan elders who decided where a deceased person was supposed to The High Court after hearing rivalry be buried. submissions considered inter-alia, who The defendants (in-laws) on their part should actually bury the deceased and submitted that their late father had where had the deceased established set apart, aportion of the land as a a home. graveyard, arguing that the burial site was outside the "Boma" of their It was the Court's view that though late father and that their late father's Keiyo customary law was applicable remains, their mother's, their sister's and that under the said customary law and grandmother had been interred the clan together with the deceased on that piece of land. The defendants brothers were responsible for the also submitted that the alleged house burial of the deceased, Lucy having built by Lucy and their late brother, been married to the deceased had a was built for purposes of hosting right derived from written law to bury their daughter's wedding, otherwise the deceased. the deceased had a rented room in a place called Chembulet and carried The Court further was of the view that
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A COMPILATION OF SUMMARIES OF SELECTED CASES ON EMERGING JURISPRUDENCE (January 2012 June 2012) An unqualified advocate cannot recover costs Equity Bank Ltd v Capital Construction Limited & 3 others [2012] e KLR Civil Suit No. 645 of 2009 High Court at Nairobi (Milimani Commercial Courts) Justice D. Musinga June 29, 2012 Advocate advocates costs cost with respect to acts done by an unqualified advocate whether such costs are recoverable in law Held: 1. Under Section 32 (1) of the Advocates Act, an advocate is required not to engage in practice on his own unless he has practiced in Kenya continuously on a full-time basis for a period of not less than two years after obtaining the first practicing certificate in full-time employment either in the office of the Attorney General or an organization approved by the Council of Legal Education or by an advocate who has been in continuous full time practice on his own in Kenya for a period of not less than five years. 2. No costs in respect to anything done by an unqualified person can be recoverable in any suit by any person. The law is silent as regards costs payable to a third party on account of work done by a duly qualified advocate who chooses to open up a law firm contrary to Section 32 of the Advocates Act. 3. Article 159 (2) (d) of the Constitution of Kenya, 2010 requires the court to administer justice without undue regard to procedural technicalities. While the submission that a party who seeks to apply for review of an order must extract the order sought to be reviewed and annexe it to the affidavit in support of the application may be right in law, in the new constitutional dispensation, it cannot be a ground for dismissing an application for review that is otherwise merited. Constitutionality of a statutory provision prescribing academic qualifications for nominees for elective offices Hon. Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs & another Petition No 198 of 2011 Consolidated With Petition No. 166 of 2011 And 172 of 2011 High Court at Nairobi (Milimani Law Courts) Justice M. Ngugi June 29 2012 Constitutional Law supremacy of the Constitution constitutionality of the Elections Act Act providing for certain academic qualifications for persons seeking nomination for President, Deputy President, County Governor and Deputy County Governor Elections Act section 24(2)(c) Constitution of Kenya 2010 Article 22, 25, 27 Held: 1. In enacting the new Constitution and with special reference to Articles 1, 10, 27 & 38 among others, the people of Kenya sought to create a future with equal opportunity and equal voice regardless of social status. The legislation in deciding the educational requirements should consider the specific social context in which it will be applicable. Article 24 (1) (b) allows for the limitation of certain rights through legislation so long as certain criteria are met. 2. By providing that a person may not be nominated as a candidate for an election unless the person holds a post-secondary school qualification recognized in Kenya, section 22 of the Elections Act was discriminatory and offended Article 27 of the Constitution which provides for the right to equality and freedom from discrimination. 3. The Act, by excluding everyone who does not have a post secondary qualification, a term which is not defined in the Act, from running for any elective office established under the Constitution, discriminates directly on the basis of status and social origin. 4. Considering also the statistics on girl-child and women education in Kenya and the cultural gender biases on that subject, the provision also indirectly discriminated on the basis of gender. 5. The provision also violated the Constitution in Article 38 and international law by limiting the right of the citizen to be a candidate for public office and the right to participate in public affairs as recognized under Article 25 of the International Covenant on Civil and Political Affairs.
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6. The provision in the Elections Act section 22(2) that persons may be nominated for candidate for election as President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of a degree from a university recognized in Kenya was not in violation of the petitioners rights or inconsistent with the Constitution. 7. Section 24(2) (c) of the Elections Act which made certain limitations with regard to exercise of political rights by those who acquire citizenship was reasonable and in accord with the Constitution. Limiting eligibility for election as Members of Parliament to those who have been citizens for at least ten years can properly be said to bear a rational connection to a legitimate purpose. 8. The disqualification from contesting in elections of persons who have participated in a public fundraising or harambee during or within eight months preceding a general election did not violate the Constitution. This prohibition has been in statute and its intentions are in line with the attempt to bring in ethics in the conduct of elections. 9. The provision in section 78 of the Elections Act for the payment of a deposit of money by a party coming before the court did not violate the right of access to justice under the Constitution. Constitutionality of Presidential appointment of County Commissioners Centre for Rights Education & Awareness (Crew) & others v The Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another High Court at Nairobi (Milimani Law Courts) Justice Mumbi Ngugi June 29, 2012. Constitutional Law constitutional office holders appointment of constitutional office holders procedure for making such appointments under the Constitution the Office of the President having appointed county commissionersConstitutionality of the Presidential appointment of County Commissioners- progressive realization- whether the appointments were in violation of rights within the constitution Constitution of Kenya 2010, Article 2, 3, 10 ,20 ,129, 131, 132 (2) Held: 1. In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27 (8) and violated the non-discrimination provisions of Article 27. 2. In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno & Another -v- The Attorney General & Others Kisumu High Court Petition No. 44 of 2011 was upheld. It went further with the view that the phrase progressive realisation is applied to those circumstances where an allocation of limited resources is required. 3. The appointments failed the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution. 4. With regard to public appointments, it is critical to have public participation and consultation. The publication of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and principles of the Constitution. 5. Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the former constitution. Can a suit be commenced or continued in the name of a company that is under liquidation without leave of the court? And what is the position of a counterclaim in such a suit? Trade Bank Ltd (in liquidation & another v Elysium Ltd & 2 others [2012] eKLR High Court at Nairobi (Milimani Commercial & Admiralty Division) Justice EKO Ogola June 18 2012 Company law liquidation commencement of a suit in the name of a company that is under liquidation - leave to be sought in the cause in which the liquidator was appointed-where there is a counterclaim-whether the counterclaim is to be regarded as a suit Held: 1. A liquidator who had not secured the leave of the court in commencing or continuing proceedings in the name of the company under liquidation lacked the capacity to bring the suit. The suit was bad in law and
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the acts of the liquidator were in vain, null and void Companies Act sections 228, 241 2. The counterclaim was a suit on its own. Sections 228 and 241 of the Companies Act would apply to the counterclaim. The defendant had to seek the leave of the court to sue or continue any proceedings involving a company under liquidation. 3. The leave which the party bringing the suit ought to seek is to be sought in the cause of the company proceedings which appointed the liquidator. Does the Registrar of Titles have the power to revoke titles issued under the Registration of Titles Act by way of a Kenya Gazette notice Power Technics Ltd v Attorney General & 2 others [2012]eKLR High Court at Nairobi - Constitutional & Human Rights Division DS Majanja J. June 15, 2012 Land law title to land cancellation of title whether the Registrar of Titles has the power to revoke titles issued under the Registration of Titles Act by way of a Kenya Gazette notice and whether such action constitutes a breach of fundamental rights and freedoms. Held: 1. The Registration of Titles Act section 60 showed that the powers of the Registrar are limited to correcting errors and misdescription of land or boundaries or where entries or endorsements to any grant or certificate of title are made in error or are fraudulent. This is a limited jurisdiction that does not include cancellation of titles. 2. Even where property is acquired unlawfully, the finding of unlawful acquisition contemplated in Article 40(6) of the Constitution must be through a legally established process and not by whim or revocation by Gazette Notice. 3. "Obiter, Per DS Majanja J" The action of the Registrar to continue to revoke titles by Gazette Notices even after the High Court had declared that it was illegal to do was clearly contemptuous of the decisions of the court. The court, particularly the High Court, is given responsibility by the Constitution under Article 165 to interpret the Constitution and declare what the law is and in addition to enforce fundamental rights and freedoms. It is expected that in this dispensation that values the rule of law, public officers and their legal advisers, that is the Office of the Attorney General, will ensure that all State and public officers not only acquaint themselves with the directions and decisions of this court but also follow then to the letter. I must warn State officers and public officers that this is the kind of conduct that may invite the court to invoke the provisions Chapter 6 [on leadership and integrity in the public service] of the Constitution and making appropriate declarations." Award of damages for unlawful arrest and detention Otieno Makonyango v Attorney General and Another Civil Case No 845of 2003 High Court of Kenya at Milimani Law Courts K. H. Rawal June 15, 2012 Constitutional Law fundamental rights and freedoms violation of constitutional right - unlawful arrest and detention allegation by the petitioner that his constitutional rights were violated and contravened claim for damages for unlawful arrest and detention-whether the petitioner had proved that his rights had been violated Held: 1. A sum of Kshs. 20,000,000/- (Kshs. Twenty Million) awarded as fair and reasonable award to the plaintiff for violation of his fundamental rights. Accused persons entitlement to evidence Morris Kinyalili Liema V Republic Criminal Appeal No. 58 Of 2010 High Court of Kenya at Machakos J.M. Ngugi & Asike-Makhandia June 15, 2012
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Constitutional law right to a fair hearing evidence exonerating evidence right of an accused person to all evidence including evidence that would tend to exculpate the accused person where the prosecution in the lower court had withheld evidence that would have exonerated the accused whether the appeal could be allowed Held: 1. Every accused person is entitled to all evidence including evidence that would tend to exculpate the accused person. That is not a discretionary rule that the prosecution might choose to obey or not; it is a peremptory rule straight from the Constitution and the Police and Prosecutors should take heed. Can a would be beneficiary from the estate of a deceased intestate sue for benefit from the deceaseds estate without proper legal status? Christine Achieng Ogesa & another v British American Asset Managers limited High Court, at Nairobi (Milimani). Succession Cause No.2511 of 2011 G.B.M. Kariuki, SC J. June 14, 2012. Succession Succession intestate succession whether a would be beneficiary from the estate of a deceased intestate can sue for a benefit from the deceaseds estate without proper legal status. Held: 1. Without a grant of representation or a special limited grant ad colligenda bona, the Applicants had no legal capacity to sue the Respondent as yet for payment to them of the money the deceaseds estate was entitled to. Does the High Court have jurisdiction to transfer a suit not filed in a court of competent jurisdiction? Joseph Mururi v Godfrey Gikundi Anjuri Misc. Application No. 39 of 2012 High Court at Meru J.A.Makau, J. June 14, 2012 Transfer of suits supervisory jurisdiction of the High Court application for transfer of suit from subordinate court to the High Court subject matter of the suit being use, occupation of and title to land where the suit had been filed in a subordinate court the Chief Justice having given Practice Directions that High Court had jurisdiction in land matters pending the establishment of the Environment and Land Court whether the High Court has jurisdiction to transfer a suit not filed in a court of competent jurisdiction. Held: 1. The suit filed at the subordinate court related to the use, occupation of and title to land which ought to have been filed at the High Court to facilitate case movement of the proceedings to the Environment and Land Court once established as per the Practice Note issued by the Chief Justice. Can extreme provocation justify an assault? Can the State appeal a finding of fact by a lower court? Republic v Simon Muli Ngumu Criminal Appeal no. 208bof 2008 High Court, at Machakos Dulu J. June 13, 2012 Criminal Law provocation whether extreme provocation can justify an assault Criminal Practice and Procedure appeal whether the State can appeal a finding of fact by a lower court Held: 1. Provocation can vitiate and mitigate a criminal offence. 2. The finding that there was provocation was a finding of fact, not subject to appeal by the State.
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What is the standard of proof required when relying on affidavit evidence in an application for committal to civil jail for contempt of court? Godfrey Kamau Kimani v Thomas Wambura. High Court Mombasa Mwongo J. June 13, 2012 Civil practice and procedure contempt of court application for committal to civil jail - level of proof of contempt of court duty of applicant relying on affidavit evidence to ascertain and confirm the particulars of contempt whether proof of contempt was above balance of probabilities Supreme Court Rules, order 52 rules 2, 3 - High Court Practice and Procedure Rules, rules 2,3 Judicature Act section 5 Civil Procedure Act 3A. Held: 1. Ambiguity in affidavit evidence that does not amplify, clarify or ascertain and confirm the particulars of contempt so that the court has to go through a lengthy, or circumlocutous reasoning process to satisfy itself as to the alleged breach, amounts to negation of the standard of proof required for committal. Can age of a person in a criminal trial be a subject of estimation? Simeon Wanjala v Republic Criminal Appeal No. 59 of 2011 High Court, at Machakos June 12, 2012. Criminal Law age-determination of age of a complainant whether the age of a person can be a subject of estimation Held: 1. Where the age is an essential ingredient of the offence, the prosecution has a burden to prove the age of the complainant to the standard required in criminal law that is beyond reasonable doubt. There is need therefore to have either documentary evidence on the age from the family witnesses, or the doctor has to testify regarding what tests he did, and the basis of arriving at the age that he assessed. A mere statement that molar not erupted, to imply that one is below the age of 18 is not adequate. Courts will not determine technical issues like age on conjecture and suspicion. 2. The prosecution, by failing to establish from the doctor the scientific basis of the age assessment of the complainant, failed to prove an essential element of the offence. Sentencing-where a sentence inconsistent with a probation officers recommendation is given David Kimani Wanjiku v Republic [2012]eKLR High Court at Nairobi Justice FA Ochieng. June 11, 2012 Criminal Practice and Procedure sentencing probation officers report sentence inconsistent with the probation officers recommendation duty of a sentencing court to explain its decision in giving a sentence inconsistent with the recommendation of a probation officer Held: 1. Whereas the report of a probation officer is not binding on the court, it is necessary for the court that decides to hand down a sentence that was inconsistent with the recommendation of the probation officer, to explain the decision made. Jurisdiction of the Land Disputes Appeals Committee in relation to issues of succession R v Nyeri Provincial Appeals Committee & Others High Court at Nakuru JR Appl. No. 111 of 2011 Anyara Emukule J. June 8, 2012
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Judicial Review certiorari application for an order of certiorari to issue and remove to the court the proceedings and award of the provincial Appeals Committee for purposes of being quashed claim by the applicant that the respondent had no jurisdiction of the matter since it dealt with ownership of the property whether the application could have been allowed in the circumstances. Jurisdiction jurisdiction jurisdiction of a tribunal to hear a matter on ownership of land claim that the land Disputes Tribunal and the Appeals Committee had no jurisdiction over the matter here tribunal should have directed parties to the High Court as prescribed under section 159 of the Registered Land Act whether the Land Disputes Tribunal and the Appeals Committee had jurisdiction to determine issues concerning ownership of land. Held: 1. The Land Dispute Appeal Committee had no jurisdiction to deal with a succession matter. If the interested party had a claim to the land, he should have sued the first applicant through the normal civil court process. Adverse Possession-What amounts to interruption of possession and occupation? Kipketer Togom v Isaac Cipriano Shingore High Court at Eldoret Mshila J June 8, 2012 Land Law adverse possession application for a declaration of adverse possession what amounts to interruption of possession and occupation in a claim for adverse possession whether claim had been proved Limitations of Actions Act (Cap 22) section 38 Civil Procedure Rules, order 37, rules 3D,7. Held: 1. The respondent must assert his right to title by physically entering onto the property and evicting and ejecting the trespasser from the suit property. Alternatively the respondent should have proceeded to institute legal proceedings in a court of law against the trespasser asserting his rights against the trespasser with prayers for his eviction and ejection from the property. Then only is there interruption to occupation and possession and then only does time stop running. Does an imperfect gift in land gives rise to a trust in the land? Jerad Alvan v James N. Mbugua & another [2012] eKLR High Court at Mombasa F.Tuiyott J June 4, 2012 Trust - presumption of trust- whether an imperfect gift can give rise to a trust in land 1. In the circumstances of this case, an inference could not be drawn that that an imperfect gift gave rise to a Trust. The gift in question was not perfected. The gift had failed and the intended beneficiary became a tenant and not the owner of the premises. Interpretation of section 123 of the Income Tax Act Republic v. Kenya Revenue Authority ex parte Sanjay Shah & 3 others Misc. Application No. 845 & 873 of 1999 High Court of Kenya at Nairobi D. S. Majanja, J. May 30, 2012 Tax law - amnesty - where the Minister of Finance through a Gazette Notice directed the Commissioner of Income Tax to refrain from assessing or recovering tax during a stated period-whether the directions implied suspension of all the provisions of the Income Tax Act (cap 470) during the stated period and as far as it related to undisclosed tax liability prior to that period-interpretation of section 123 of the Income Tax Act-whether the actions by the Commissioner of Income Tax in assessing, demanding and collecting taxes from the applicants were ultra vires, illegal, irrational and procedurally untenable
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Issues: i) Interpretation of section 123 of the Income Tax Act (cap 470) and the direction through Gazette Notice issued by the Minister of Finance. ii) Whether the actions by the Commissioner of Income Tax of assessing, demanding and collecting taxes from the applicants were ultra vires, illegal, irrational and procedurally untenable? Held: 1. Section 123 of the Income Tax Act contains two separate provisions and is fortified by section 123 (3) which requires that when the Commissioner exercises his power under section 123 (1), he must report to the Minister at the end of the financial year. The Commissioners power under section 123 (1) is not subject to the Ministers direction. 2. The Minister is entitled under section 123 (2) (a) of the Act to direct the Commissioner to take action as the Minister deems fit, which terms and conditions were in the direction published in Gazette Notice No. 2985. 3. The decision of Music Mines Limited v Matimu Kinywa was inconsistent with the plain and obvious reading of the provisions of the Statute. The findings in that case would only apply to the exercise by the Commissioner of his power under section 123 (1) of the Act. Computation of time in filing applications under Article 89 (11) of the Constitution Clr Elliot Lidubwi Kihusa v Independent Electoral & Boundaries Commission JR. NO. 94 of 2012 High Court of Kenya at Nairobi Warsame, Sitati, Omondi, Nyamweya & Majanja J. May 30, 2012 Constitutional Law computation of time delimitations of electoral units under the Constitution - period within which the judicial review matters should have been filed under claim that no party should have been allowed to file an application for review outside the period specified under the Constitution claim by the respondent that no party was allowed to file an application for review outside the period specified under the Constitution - whether the court could have allowed the applications for extension of time in the circumstances. Constitutional Law jurisdiction jurisdiction of the High Court to extend time for filing an application for review claim by the respondent that authority to extend time must have been provided under the Constitution and not statute where the Constitution was clear that the applications for review must have been filed within 30 days and any other applications beyond this was time barred whether the High Court had jurisdiction to hear the applications for extension of time in the circumstances. Held: 1. The time for filing an application for an order of Judicial Review under Article 89 (11) of the Constitution was to have been calculated from the date the chamber summons had sought leave to commence the proceedings was filed. The date the order was made was irrelevant because it was only upon publication that the citizen had become aware of the decision subject of review under the Constitution. 2. Article 89 (11) was intended to have been time limited. Such an exercise could not have been open ended as it had an effect on other activities that had led to the conduct of a free and fair election. 3. The context of Article 89 had not envisaged jurisdiction to extend time for filing an application for review. The intention behind the limitation could not have been questioned and if it was the intention of Kenyans to have made such provisions nothing would have stopped them. Does publishing of articles in anticipatory of a judgment amount to contempt of court Kenya Youth Parliament & 2 Others V Attorney General & Another Constitutional Petition 101 of 2011 High Court at Nairobi (Nairobi Law Courts) J.W. Mwera, M. Warsame & P.M. Mwilu JJ. May 25, 2012 Civil Practice and Procedure contempt of court attempt to influence the court in an ongoing matter-whether the publishing of articles in anticipatory of a judgment and/or attempting/seeking to influence the court to decide a case in a particular way amounted to contempt of court Held: 1. To publish articles anticipatory of a judgment and/or attempting/seeking to influence the court to decide a
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case in a particular way is to cross the boundary and wade into the realm of contempt. No one, whatever their standing in society has the right to undermine the administration of justice and the authority of the law and of the courts by acting contemptuously of the court. Does the High Court have jurisdiction to transfer a suit from one subordinate court to another or from one subordinate court to any other dispute resolution institution as by law established? Gipson Kiplangat Langat v. Kenya Kazi Services Limited Misc. Application No. 6 of 2011 High Court of Kenya at Nairobi J. M. Mutava, J. May 24, 2012 Civil practice and procedure suits transfer of suits whether the High Court has jurisdiction to transfer a suit from one subordinate court to another or from one subordinate court to any other dispute resolution institution as by law established-Civil Procedure Act (cap 21) section 18 Held: 1. Section 18 of the Civil Procedure Act provides a window through which proceedings instituted in the subordinate courts and which subsequently become untenable in such courts due to emergent developments dethroning the jurisdiction of the subordinate courts can be transferred to the High Court for trial and disposal. However, the above procedure does not apply as to give the High Court jurisdiction to transfer suits from one subordinate court to another or from a subordinate court to any other dispute resolution institution as by law established. 2. Given that the Industrial Court as presently constituted is a court that is subordinate to the High Court, the high court is not bestowed with any jurisdiction under Section 18 of the Civil Procedure Act to order matters filed in the Chief Magistrates Court to be transferred to the Industrial Court for disposal notwithstanding Section 87 of the Employment Act. This would be possible once the employment and labour relations are finally established under Article 162(2) (a) of the Constitution of Kenya 2010. Interpretation of section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control ) Act No. 4 of 1994. Antonu Mbithi Kasyula v Republic High Court Mombasa, G.L Nzioka J May 18, 2012. Criminal practice and procedure - sentencing sentencing in offences under the Narcotic Drugs and Psychotropic Substances (Control ) Act -appeal against conviction and sentence to 7 years imprisonment and a fine of 1 million ksh sentencing in default of payment of fine whether failure to give a default sentence rendered the sentence illegal, irregular or improper Held: 1. The fine would have been recoverable if the appellant did not pay it. It could have been recoverable under section 28 (2) of the Penal Code (Cap 63), which provided that the fine becomes recoverable by the court issuing a warrant for distress and or sale of convicts moveable and immoveable property to satisfy the fine. 2. Failure to have given a default sentence was not irregular or improper. Default sentence was not envisaged under Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The life imprisonment was mandatory and was in addition to the fine. Sentence enhanced to life imprisonment Can an investigating officers opinion bar an accident victim from pursuing a claim for damages in a civil suit? David Kajogi Mmugaa (Suing As The Legal Representative and Administrator Of The Estate Of The Deceased) Peterson Muthaura Kajogi V Francis Muthomi J.A. Makau J May 8, 2012
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Tort - negligence - claim for damages under Law Reform Act-where the lower court dismissed the claim on the grounds that the investigating officer did not find the respondent to blame for the accident- whether where the investigating officer doesnt find the respondent in a running down matter not to blame for the accident bars the victim from pursuing a claim for damages in a civil suit-validity of the appeal Held: 1. The evidence of an investigating officer alone cannot be conclusive as to who was to blame for the accident nor can it be said to be binding on the court. Such evidence was a mere opinion to the court, which court can accept or reject for various reasons. Procedure in an application to set aside an arbitral award
Kenya Airports Authority V Nairobi Flying Services Limited [2012] Eklr

Miscellaneous Civil Application 914 of 2011 High Court at Nairobi G.V. Odunga May 03, 2012
Arbitration - arbitral award-review of arbitral award-procedure to bring such an application to court-need to file the award seeking to set aside- whether the court had jurisdiction in a matter where the arbitral award had not been filed-Arbitration Rules, rules 4 and 5 Held: 1. In an application to set aside an arbitral award, the applicant should file the award, obtain a serial number for the award and then proceeded to make the application. It is the award that that gives the court jurisdiction. That omission is not a technicality but is a rule of substantive procedure that cannot be wished away ignobly. When is a mandatory injunction granted at an interlocutory stage? When do the rights of children of a land owner accrue in the property? Peter Nganga Mbugua v Loise Mugure Kiarie & another High Court, at Nakuru. Civil Case No.171 of 2011 May 2,2012. W.Ouko J. Civil Practice and Procedure - injunction - when is a mandatory injunction granted at an interlocutory stage Land - right of children to parents land - When do the rights of children of a land owner accrue in the property Held: 1. A mandatory injunction can only be granted at an interlocutory stage in very exceptional circumstances and only where the matter is clear beyond doubt and unusually strong. 2. The rights of children of a land owner accrue only upon the death of the landowner. Before the land owners death, the childrens rights in the property remain inchoate and are not legally enforceable in any court of law. Presumption of a trust Samuel Njuguna Kimemia v Rose Mgeni Mtwana [2012] eKLR High Court at Mombasa Justice RW Mwongo April 30, 2012 Trust - presumption of trust- reluctance of a court to presume a trust except in very clear cases- whether a s mere allegation of the existence of a trust can create one Held: 1. A trust arises when a donor or grantor reposes a confidence in a person, who is termed a trustee, for the benefit of another who is called a cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust. 2. A mere allegation of the existence of a trust cannot create one. The courts will not imply a trust save in order to give effect to the intentions of the parties and such intention must be clearly determined beforehand. The
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law never implies and the court never presumes a trust, but in the case of absolute necessity. Enforcement of Consumer Rights Wilfred Irungu Ndirangu v C.M.C Motors Ltd High Court at Nairobi
M.G Mugo J April 23, 2012
Contract contract of sale of motor vehicle alleged fraudulent sale of motor vehicle implied warranty that objects sold shall be of merchantable quality - consumer rights to be uniformly enforced irrespective of the market duty of plaintiff to specifically plead and strictly prove special damages whether the circumstances warranted compensation. Held: 1. In every contract for sale of goods, the law presumed an implied warranty that the object sold had to be of merchantable quality. 2. In the era of globalization consumer rights had to be enforced uniformly irrespective of the market. The warranty given by Land Rover to the plaintiff being similar in all material respects to the ones given to its U.K. customers, the plaintiff ought to have been accorded equal treatment by the defendants as the marketers of Land Rover as was done in the case of Rogers & another -vs- Parish (Scarborough) Ltd & Others (1987) 2 ALL ER 232, and Dick Bentley Productions Ltd & another - vs - Harold Smith (Motors) Ltd (1965) 2 ALL ER 65. Is anunregistered foreign company capable of entering into a lease agreement? PNTC Worldwide PVT Ltd v Sun Palm Management Ltd & another [2012] eKLR High Court at Mombasa JW Mwera J March 23, 2012 Company law foreign company Interpretation of section 366 of the Companies Act execution of a lease agreement by a foreign company where the foreign company had not filed its registration documents with the Registrar of Companies in compliance with section 366 of the Companies Act effect of Held: 1. The execution of the lease agreement by a foreign company at the offices of its local agent where the foreign company had not filed its registration documents with the Registrar of Companies in compliance with section 366 of the Companies Act (Cap. 486) was a lawful and valid act. The issue of non-compliance with the Act was one to which the companys officers and agents were liable to pay a fine, which was a matter for the Registrar of Companies to pursue though the criminal justice system. Enforcement of Article 81 of the Constitution on the one third gender rule. Milka Adhiambo Otieno & another v Attorney General & 2 others High Court at Kisumu, Civil Petition no. 33 of 2011 Ali-Aroni, S.J. Chitembwe & H.K Chemitei JJ. February 28, 2012. Issue: Constitutional Law representation in public offices requirement to adhere to one third rule of representation by either gender in all public offices need for public officers to deliberately bring into fruition the spirit and the letter of the constitutional provisions by taking such steps as affirmative action programmes and direct state polices to ensure that the aspiration of women and other vulnerable groups are well represented in public offices. Held: 1. The state and public officers have a duty to deliberately bring into fruition the spirit and the letter of the constitutional provisions by taking such steps so as affirmative action, programmes and direct state polices to ensure that the aspiration of women and other vulnerable groups are well taken care of, in particular complying with the one third rule in all areas of representation, and not just in legislative elections.
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2. Though injunction not issued to stop the composition of the Kenya Sugar Board, the court nevertheless decreed that when the Board is finally constituted, it must adhere to the third gender representation rule. Can a successful party after an out of court settlement be awarded compensatory damages? Mwania Munywa V Kioko Munywa and 2 Others Civil Appeal No. 96 Of 2003 High Court of Kenya at Machakos J.M. Ngugi February 27, 2012 Damages damages after out of court settlement Award of Compensatory damages after out of court settlement Held: 1. It is not proper to award compensatory damages in circumstances where the out of court settlement was not done pursuant to a court order. Costs for pursuing litigation can only be awarded by a court when the litigation itself was done in Court or under the Courts supervision or pursuant to an express agreement of the parties. While Kenya follows the English Rule of loser pays in litigation, it does not necessarily apply to efforts to settle disputes out of Court. Can an ordinary statute law limit the jurisdiction of the High Court to hear and determine a suit? Multiserve Oasis Company Ltd Vs the Kenya Ports Authority and Another Civil Suit No. 252 of 2010 High Court of Kenya at Mombasa J.B. Ojwang February 24, 2012 Civil Practice and Procedure jurisdiction courts jurisdiction in claims under s.12 (1)(e) of the Kenya Ports Authority Act where section 62 of the Kenya Ports Authority Act provided for arbitration whether an ordinary statute could limit the jurisdiction of the High Court granted by the Constitution Constitution of Kenya, 2010, Article 10, Article 159(1)); (Article 159 (2)(d)) Kenya Ports Authority Act (Cap.391) section 12 (1)(e) and 62 Held: 1. It is clear that the new Constitution is today, the basis of the jurisdiction of the High Court; and it is not permissible to limit this jurisdiction on the basis of ordinary Statutes not provided for within the terms of the Constitution 2. The Constitution of Kenya, 2010, in its deliberate purpose of setting up a basis of good governance under Article 10, has instituted a setting of separation of powers under Article 1; donated the judicial authority to the courts and tribunals established by or under this Constitution (Article 159(1)); and specified that justice shall be administered without undue regard to procedural technicalities (Article 159 (2)(d)). Similarly in; Threeways Shipping Services (K) Limited v. Kenya Ports Authority Commercial Suit No. 28 of 2010 High Court at Mombasa J. B. Ojwang, J. (as he then was) February 16, 2012 Jurisdiction courts jurisdiction in claims under s.12 (1)(e) of the Kenya Ports Authority Act where section 62 of the Kenya Ports Authority Act provided for arbitration whether an ordinary statute could limit the jurisdiction of the High Court granted by the Constitution Kenya Ports Authority Act (Cap.391) section 12 (1)(e) and 62 Held: 1. Courts must adopt strict interpretation of any ordinary statutory dispensation tending to confer differential favours such as section 62 of the KPA Act (cap 391) is clearly doing. By Article 159 (2) (a) of the Constitution, the court, in exercising judicial authority, is required to ensure that justice shall be done to all, irrespective of status.
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2. The gravamen raised is to be resolved in the context of section 22, rather than section 62 of the Act (cap 391), and that the alleged loss is a proper subject for the jurisdiction of the High Court. 3. The High Court has unlimited jurisdiction in all causes, save in matters reserved by the Constitution itself to the Supreme Court, or to certain specialized Courts. Therefore, the contention that section 62 of the KPA Act has ousted the High Courts jurisdiction is not tenable. Security for cost in an adverse possession claim Ngugi Mutura v Vros Produce Limited Civil Suit No. 131 of 2010 High Court at Mombasa J.B.Ojwang, J. February 20, 2011 Issue: Civil Practice and Procedure security for costs-security for cost in an adverse possession claim application for-whether it was proper to constrain a party to lodge security for costs in favour of the other party in adverse possession claim Held: 1. A claim in adverse possession has the unique character of standing in diametric opposition to the claims of a party who attributes his own ownership to the issuance of certain letters or documents by the lands registry; and on this account an adverse-possession claim should not, in general, be constrained by the defendants conveniences, or apprehensions such as those in respect of his likely costs. A claim in adverse possession is in nature a peculiar claim, in which each party stakes all, and each party trusts the judicial process to run its full course and to make a determination according to law. It is inappropriate to constrain the plaintiff, in such circumstances, by requiring him to lodge a security for costs in favour of the defendant. Can wrong invocation of the law lead to dismissal of a suit? Nancy Nyamira & another v Archer Dramond Morgan Ltd High Court, at Machakos, Civil Suit No. 110 of 2009 Ngugi J. February 15, 2012. Civil Practice and Procedure wrong invocation of a relevant law in civil proceedings whether wrong invocation of the law in civil proceedings can lead to dismissal of a suit? Arbitration-arbitration proceedings whether Civil Procedure Rules can be imported in determination of Arbitration Proceedings? Held: 1. As long as a partys invocation of the wrong provision of law is not in bad faith, meant to mislead or otherwise cause injury or prejudice to the other side, the Court will not dismiss an application solely on account of wrong invocation of a provision of the law on which the application is grounded. 2. The Arbitration Act is treated as a self-contained code. The Court would only import the Civil Procedure Rules with great circumspection. It would certainly not do so if the effect would be to defeat the purpose of the Arbitration Act. Can a plaintiff in the lower court limit the amount of general damages claimed in order to comply with the pecuniary jurisdiction of the court? Ruth Nduni Mwithui v Mombasa Liner and Another Civil Appeal No. 56 Of 2007 High Court of Kenya at Machakos J.M. Ngugi February 15, 2012 Jurisdiction pecuniary jurisdiction of the lower courts the appellant general damages in the lower court having exceeded the pecuniary jurisdiction of the magistrates court-where the appellant, plaintiff in the lower court had limited
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the amount of general damages she would like to claim in order to bring herself within the pecuniary jurisdiction of the court suit dismissed for lack of jurisdiction validity of appeal Held: 1. When a suit has been filed in a court without jurisdiction, nothing with legal impact can come out of such a suit; it is a nullity. However, it does not apply to cases of general damages where it is the Plaintiff who appoints, through their own assessment, what the amount of damages she would claim. A Plaintiff is permitted to limit the amount of general damages she would like to claim in order to bring herself within the pecuniary jurisdiction of a particular court. What constitutes intermeddling with deceaseds property? Re Estate of David Julius Nturibi Mithinji (Deceased) High Court at Meru Succession Cause No 11 of 2009 J.A Makau J. February 2, 2012. Succession Law probate and administration application to committal to jail /payment of fine for intermeddling with the deceased property what constitutes intermeddling whether the respondent was guilty of intermeddling Held: 1. Intermeddling with the deceased property is any act that purports to dispossess or result into wastage of deceased estate or causes loss or damage or makes it impossible for administrator to administer the deceased estate by a person who is not authorized by The Law of Succession Act or by any written law or by a grant of representation under the said Act is an act of intermeddling with free property of a deceased person. The respondent fined 7,000 in default to serve 3 Months imprisonment. Is an employer bound to give reasons for termination of contract of employment? Joseph Muthama Ndambuki & 3 others v Delomente (K) Ltd High Court at Machakos Justice JM Ngugi January 23, 2012 Employment law termination of employment contract employer is not bound to give reasons for termination, save that where reasons are stated; the reasons must be in accordance with public policy Held: 1. The Court of Appeal in Kenya Revenue Authority v Menginya Salim Murganyi [2010] eKLR categorically says the employer does not have to give any reason for termination of the employment contract as long as they abide by the contractual terms to pay salary in lieu of notice. 2. (Obiter, Per JM Ngugi, J) I would venture to suggest that the only limitation to that general legal principle established in our jurisprudence is that where the employer actually states a reason for termination or dismissal, the reasons must be in accordance with public policy. I would suggest, for example, that an employer could not dismiss an employee because she comes from a particular ethnic group. This would violate clear public policy. Injunctions beyond the principles in Giella v Cassman Brown Act of state doctrine Symon Gatutu Kimamo & 587 others v East African Portland Cement Company Ltd High Court at Machakos Justice JM Ngugi December 16, 2011 Injunction temporary injunction principles guiding the grant of temporary injunctions- principles established in Giella v Cassman Brown [1973] 1EA 358 Where a company owns land, and that company is one in which the government has shares but is registered under the Companies Act, is that land to be considered government land and therefore protected by section 41(a)(1) of
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Held: 1. It is now well established in Kenya that there are three main factors to be considered in determining whether to grant a preliminary injunction (See Giella v. Cassman Brown). To those three factors, one might add another factor which a court is, at least, entitled to take into account after the first three: public interest. A temporary injunction will not normally issue if there will be harm to the public interest resulting from its issuance. 2. [Citing Musinga J in - Satrose Ayuma & 11 Others v The Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others [2011] eKLR] - while the three-prong test in Giella Case is the fulcrum in our jurisprudence on interlocutory injunctions, the Giella Principles acquire a different hue when fundamental rights are involved. 3. In an application for an interlocutory injunction to restrain breach of a fundamental right, the court may have to go beyond the ordinary tests as stated in Giella v Cassman Brown Co. Ltd.While the applicants must demonstrate that there has been breach or threatened reach of their Constitutional rights and thereby show that they have a prima facie case with a likelihood of success, the court has a duty to consider whether grant or denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of Rights.The court is enjoined to give an interpretation that promotes the values of a democratic society based on human dignity, equality, equity and freedom. Dignity of the people ought to be a core value in our Constitutional interpretation. 4. In international law, for purposes of act of state doctrine, the formal nature of the company is not determinative of the question whether the acts of the company are attributable to the state or not. Instead, most courts have come up with functional tests aimed at distinguishing when an entity claiming the protections normally available to sovereign states was acting primarily in its public or governmental capacity or whether it was acting predominantly as a commercial actor. For example, in the United States, under the restrictive theory of sovereign immunity, many courts consider the following five factors in making that determination: i) ii) iii) iv) v) Was the entity in question created for a national purpose? Does the sovereign state supervise the entity? Does the state requires the hiring of public employees and pays their salaries? Does the entity hold exclusive rights to some right in the country? And, How the entity in question is treated under the state law? See, for example, Ocean Line Holdings Ltd. v. China Natl Chartering Corp., 578 F. Supp. 2d 621, 624 (S.D.N.Y. 2008) and Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004)).
If we consider these factors as indicative of the kind of questions we need to ask to determine the issue at hand, Respondent has not put enough materials on the record to warrant a conclusion that it should be treated as sufficiently a governmental entity for its lands to be entitled to the protections afforded to public land under section 41(a) (i) of the Statute of Limitations Security for payment of taxes in dispute Bidco Oil Refineries LTD v Attorney General & 3 others eKLR High Court at Nairobi DS Majanja J June 15, 2012 Tax Law - income tax-payment of taxes-taxes in dispute-applicant seeking not to pay security of taxes until matter was determined and heard-whether application was valid Held: 1. The Court had jurisdiction to impose such terms and conditions that were necessary to secure interim or conservatory relief under the provisions of Article 23(3). The Petitioner to furnish the respondent with the security required pending outcome of the dispute. Determination of load limits of cargo vehicles Republic v Minister of Roads and Public Works & another Exparte Kyevaluki Services Ltd High Court at Nairobi Githua CW J May 29, 2012 Judicial Review certiorari application for orders of certiorari to quash decisions by the defendants to adopt the use of the system and determine load limits of cargo vehicles Judicial Review - mandamus- to compel the respondents to apply the method of using gross weight shown by
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manufactures on chassis of the vehicle to determine maximum weight permitted by cargo vehicles Judicial review prohibition application seeking to prohibit the statutory body from executing it statutory functions as provided for in section 26 of the Traffic Act Held: 1. An order of mandamus was not available to the applicant as prayed because the applicant failed to show or tender evidence that the respondents had failed or refused to perform their statutory duties. 2. The court could not issue orders of prohibition to stop a statutory body from executing it statutory functions unless it was established that the said body planned to violate the rules of natural justice or act contrary to the law when performing its statutory obligations and functions. Are party and party costs subject to taxation? Ndolo v Mwangi & 2 others Election Petition No 11 of 2008 High Court of Kenya at Nairobi GV Odunga J May 24 2012 Civil Practice and Procedure - decree & certificate of costs for the purposes of order 22 rule 18 of the Civil Procedure Rules -commissions assets immunity from execution whether party and party costs are subject to taxation Held: 1. An order relating to costs was part of the decree, hence the decretal term constitutes the principal sum together with costs where such awards are made and were contained in one document. A certificate of costs on the other hand was an expression of the quantum of the said costs but did not constitute a separate decree or order. 2. The Government cannot subject the Government to the process of enforcement. It is similarly followed that the Commission could not be subjected to the process of execution or attachment for enforcing payment by the Commission of any money or costs. 3. Even if it was to be assumed that party and party costs was subject to taxation, one would have to determine what amount, in the said costs, constitute fees and what constitutes disbursements. Can a court of law set aside a WAKF property which has been unlawfully alienated? Ali v Bashir & 2 others Civil Case No 295 of 2008 High court of Kenya at Mombasa M Kasango J April 25, 2012 Civil Practice and Procedure - Muslim Law- definition of a wakf- whether a wakf can be distinguished-whether a court of law can set aside a wakf property which has been unlawfully alienated. Held: 1. A Wakf can only be extinguished if the goods of the wakf are destroyed or damaged. This would be like in a case where the goods are no longer used in the manner intended by the founder. The remains of the goods are to be reverted to the founder or his/her heirs. 2. A wakf could be declared null and void by the Kadhi, or religious judge, if its formation included committing acts otherwise illegal in Islam, or it did not satisfy the conditions of validity, or if it was against the notion of philanthropy. Since wakf is an Islamic Institution it became void if the founder converted to another religion. Can the documentary report of a government chemist be accepted in evidence where the maker, i.e. the Government Chemist, was not called to testify? Bakari Said Lao v Republic [2012] eKLR High Court at Mombasa Justice M. Odero June 26, 2012
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1. Evidence expert evidence documentary evidence contained in the report of a Government Chemist whether such evidence may be admitted without calling the person who made the document interpretation of the Evidence Act (Cap. 80) section 77(1), (2), (3) Held: 1. The Evidence Act (Cap. 80) section 77 sets out the rules governing the admissibility of expert evidence. Notwithstanding the failure to call the Government Analyst, the reports were admissible and were deemed to have been prepared by the Analyst. 2. The section provides that a court may summon the analyst to testify if it thinks fit. The use of the word may implies that the decision whether to summon the analyst or not lies solely at the courts discretion. 3. The trial magistrate did not deem it necessary to exercise that discretion in this case and the appellant had not raised any objection to the production of the reports of the Government Analyst and he did not make any request for the Analyst to be summoned. The Government Analysts reports were therefore properly produced and accepted in evidence. Right to fair administrative actionGrace A. Omolo V Attorney General and 3 Others Petition No. 252 Of 2011 High Court of Kenya at Nairobi Constitutional & Human Rights Division D.S. Majanja May 4, 2012 Constitutional Law - constitutional rights and fundamental freedoms right to administrative action right to fair administrative action- right to expeditious and fair disciplinary proceedings- delay by Public Service Commission to commence disciplinary proceedings against the petitioner- whether a year of inaction on the disciplinary process was an inordinate delay and infringed on the petitioner rights protected under Article 47 -whether the failure was a breach of the petitioners right to administration action - Constitution of Kenya, 2010 Article 47 Held: 1. The Public Service Commission has the constitutional responsibility of ensuring expeditious and fair proceedings in a manner consistent with Article 47 and the values set out in Article 10 and ensuring that public servants are protected as required by Article 236. Where the public servants rights are threatened the Court will not hesitate to intervene. 2. A year of inaction on the disciplinary process was an inordinate delay and infringed on the petitioner rights protected under Article 47.The petitioner had been under interdiction for over a year without knowing her fate. Based on regulation G33(13) of the Code of Regulation Governing the Civil Service she had a legitimate expectation that disciplinary proceedings would be completed within six months or at any rate within a reasonable time. 3. To prohibit disciplinary proceedings would amount to granting immunity to the petitioner from the disciplinary process where serious allegation have been leveled against her. Petitioner awarded Ksh. 300,000/00 general damages, disciplinary proceedings to commence in 30 days Award of exemplary damages for unconstitutional actions Koigi wa Wamwere v Attorney General High Court of Kenya at Nairobi JR Petitioner No. 737 of 2009 M. Ngigi J. March 28, 2012 Constitutional Law fundamental rights and freedoms violation of constitutional right allegation by the petitioner that his constitutional rights were violated and contravened by the government during his detention without trials and torture in the Nyayo house torture chambers claim by the petitioner that he was denied food, water and kept naked at the Nyayo House torture chambers petition opposed claim that the petitioner had not proved any case with a probability of success because the petition lacked clarity and precision in setting out the alleged violations and further that there was no proof that the alleged violations had been committed by the officers of the government
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whether the claim was valid whether the petitioner had a remedy under the former constitution . Damages general and exemplary damages damages arising out of breach of constitutional provisions where the petitioner claimed for both general and exemplary damages for the violation of his constitutional rights instances where both general and exemplary damages could have been awarded whether exemplary damages could have been awarded in the circumstances. Issue: The petitioner sought for the violation of his rights by state agents. Held: 1. Though there was a divergence of opinion in the courts on whether or not exemplary damages should be awarded in addition to general damages for unconstitutional actions, it was unnecessary to consider the element of unconstitutional action when the relief had been awarded for unconstitutional conduct. It was also clear that the principle in Obongo v Kisumu Municipal Council [1971] EA 91 was a case in tort so that the issue of unconstitutional action was an additional factor and the court would have considered in awarding exemplary damages. A global sum of kshs. 2, 500, 000 awarded for the violation of the petitioners rights under section 74 of the former Constitution Authority to issue circulars under the Co-operative Societies Act R v Commissioner for Co-operative Development & Others High Court of Kenya at Nairobi Constitutional and Human Rights Division JR Miscellaneous Application No. 93 of 2007 Majanja J. April 27, 2012 Judicial Review
certiorari application to quash a circular that purported to guide or direct coffee co-operative societies that the appointment of coffee millers and marketing agents would be made by the members of the management committee of coffee co-operative societies where the said appointments were to be made through management committees rather than through the members at general meetings contention by the applicant that the respondent had no authority to issue that circular and had acted contrary to the provisions of the Co-operative Societies Act whether the application was valid.
Held: 1. Not only was the circular intended to achieve an ulterior collateral purpose not sanctioned by the law, but also its implementation was to undercut the democratic nature of co-operative societies contrary to the Co-operative Societies Act, 2007 with the aim of coercing co-operative societies to mill and market their coffee through the KPCU to the detriment of the ex-parte applicants. That undermined the statutory objective expressed in section 7(1) of the Coffee Act which empowered the Coffee Board to promote competition in the coffee sector 2. The continued existence of the 2006 Circular to the extent that it undermines the co-operative principles is an affront to the values of democracy, participation of the people, transparency, accountability and good governance enshrined in Article 10 of the Constitution. These values were applicable to the respondent and had to be adhered to in the discharge of its functions. 3. While the Commissioner had wide powers to have regulated co-operative societies, he could not have removed the decision making powers of the society from the supreme and principal organ that was the membership and impose it on the management committee. Such an act would have undermined the democratic principles which had formed part of the bedrock principles of the co-operative movement.
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NATIONAL COUNCIL FOR LAW REPORTING A COMPILATION OF SUMMARIES OF SELECTED CASES ON THE INTEPRETATION OF THE NEW CONSTITUTION OF KENYA (Sept. 2010 April 2012) May 2012 Prepared by Njeri Githanga - Asst. Law Reporter Reviewed and Edited by Michael M. Murungi Editor/CEO
TABLE OF CONTENTS A SELECTION OF CASES ON THE INTEPRETATION OF THE NEW CONSTITUTION
PARTIES
ISSUE OF LAW
PAGE NO.
1.
P.A.O & 2 others v Attorney General [2012] Isaac Gathungu Wanjohi & another v the Attorney General & 6 others [2012] Okenyo Omwansa George and Another v the Attorney General and two others [2012] Okenyo Omwansa George and Another v The Attorney General and two others [2012]
The Right to Life and Health
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2.
Revocation of Land Titles By Way of Gazette Notices Unconstitutional
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3.
Advertising By Advocates
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4.
Gilbert Mwangi Njuguna v Attorney General [2012] Community Advocacy and Awareness Trust & 8 others v National Gender and Equality Commission & 5 others [2012]
Reference For Constitution of A Three-Judge Bench Presidents Discretion In Public Appointments
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5.
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6.
Lucy Kemboi v Cleti Kurgat & 5 others [2012]
Widows Right To Bury Their Husbands
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7.
Famy Care Ltd v Public Procurement Administrative Board & 5 others [2012]
Right of Access To Information
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8.
Protus Buliba Shikuku v Attorney General [2012]
Sentencing In Attempted Capital Offences
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9.
C. M.S Vs I.A.K Suing through Mother and Next Friend C.A. O. [2012]
DNA Testing in relation to Childrens right
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10 John Harun Mwau & 3 others v Attorney General & 5 others [2012] Date Of The First General Elections Under The New Constitution Supreme Courts Advisory Opinion On Election Date
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11.
In Re the Matter of the Interim Independent Electoral Commission [2011]
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12.
In Re the Matter of Commissioner For The Implementation Of The Constitution [2011]
Supreme Courts Maiden Ruling
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13.
Centre for Rights Education and Awareness & 7 others v Attorney General [2011] Satrose Ayuma & 11 others V Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others [2011]
Appointments To Constitutional Office & Gender Balance Forceful Evictions And The Right To Adequate Housing Public Appointments Kenyas Obligation To Issue An Arrest Warrant Against Sudans President Constitutionality Of The Vetting Of Judges And Magistrates Act, 2011 Married Daughters Right To Inherit
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14.
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15.
International Commission of Jurists-Kenya v Attorney General & 2 others [2011]
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16.
Dennis Mogambi Mongare V Attorney General & 3 Others [2011]
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17.
Samson Kiogora Rukunga V Zipporah Gaiti Rukunga [2011]
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18
Monica Jesang Katam V Jackson Chepkwony & another [2011]
Right Of Inheritance In Woman To Woman Marriage Form One Quota Not Discriminatory
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19.
John Kabui Mwai and 3 Others V Kenya National Examination Council and 2 others [2011]
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20.
Ladama Olekina v Attorney General & Another [2011]
Public Participation In The Law Making Process
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21.
Aboud Rogo Mohamed & another v Republic [2011]
Courts Dilemma In Bail Applications For Serious Offences Writs for Nolle Prosequi to Have Proper Reasoning
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22.
Republic v Enock Wekesa & another [2010]
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23.
Joseph Kimani Gathungu v The Attorney General & another[2010]
Jurisdiction of the ICC
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24.
In Re the Matter of Zipporah Wambui Mathara [2010]
Committal To Civil Jail vis a vis Civil and Human Rights
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INTRODUCTION Following the promulgation of the new Constitution on August 27, 2010 that ushered in a new set of national values, bill of rights and system of governance among other things, the Kenyan courts have dealt with various Constitutional issues in which the courts have made landmark decisions. The landmark judicial opinions include those that touch on subjects such as fundamental rights and freedoms e.g. right to life and health, limitation of the right to information, advertising by advocates, evictions and right to adequate housing, appointments to constitutional offices etc. The following is a synopsis of some of the issues that have been determined by the courts since the promulgation of the new Constitution. 1. Sections of the Anti-Counterfeit Act Violate the Right to Life and Health Sections 2, 32 and 34 of the Anti Counterfeit Act threatened to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) of the Constitution. In so far as the enforcement of the Act affected access to affordable and essential drugs and medication particularly generic drugs, it was in violation of the right to life, human dignity and health guaranteed under the Constitution
Section 2 (d) of the Act defines counterfeiting as in relation to medicine, the deliberate and fraudulent mislabeling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging. The question before the court was whether these provisions would deny the petitioners access to essential medicines and thereby violate their rights under Articles 26(1), 28, and 43(1) of the Constitution. The Articles provide for the right to life, human dignity and health. According to the petitioners the government had failed to acknowledge and specifically exempt generic drugs and medicines from the definition of counterfeit goods in the Act. It had also failed to provide a clear definition of counterfeit goods in such a manner that would allow generic drugs to be included. Such a clear definition would effectively prohibit importation and manufacture of generic drugs and medicines in Kenya.
standard of health guaranteed under Article 43 (1) of the Constitution. The High Court declared that the enforcement of the Anti Counterfeit Act (the Act) in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is in violation of the right to life, human dignity and health guaranteed under the Constitution. The court opined that The right to life, dignity and health of the petitioners must take precedence over the intellectual property rights of patent holdershad the primary intention been to safeguard consumers from counterfeit medicine, and then the Act should have laid greater emphasis on standards and quality 2. Revocation of Land Titles By Way of Gazette Notices Unconstitutional And Ineffectual Whereas section Article 40(6) of the Constitution provides that the rights to property established in that article do not apply to property that has been unlawfully acquired, a finding that property has been unlawfully acquired had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do. Isaac Gathungu Wanjohi & another Vs the Attorney General & 6 others [2012] High Court, at Nairobi-Constitutional and Human Rights Division D.S. Majanja (J) 30th March, 2012 The suit arose from a disputed piece of land situated at the junction of Airport Road and the MombasaNairobi Road and is part of land that was intended for construction of the Eastern Bypass. The suit property had been compulsorily acquired by the State.The High Court reiterated the legal position that revocation of land titles by way of gazette notices is unconstitutional and ineffectual. Holding that such land revocations must be through a legally established mechanism, the Constitutional Court stated that due process of the law
It was noted that the danger in the possibility of the terms generic and counterfeit being used interchangeably was borne out by the fact that there had been instances, admittedly in other jurisdictions, in which generic medication has been seized while in transit on the basis that it is counterfeit. Such seizures have affected users of generic drugs in developing countries which, like Kenya, have large populations P.A.O & 2 others v Attorney General dependent on generic HIV medication for survival. High Court of Kenya at Nairobi Mumbi Ngugi J The court stated that in a legal April 20, 2012 regime that is focused on protection of The crux of the dispute before the court intellectual property rights, the danger was whether, by enacting sections 2 that such generic drugs can be seized of the Anti Counterfeit Act (the Act) under section 32 and 34 of the Act is and by providing the enforcement therefore manifest. provisions in section 32 and 34 of the same Act, the State was in violation The court found that Sections 2, 32 of its duty to ensure conditions were and 34 of the Anti Counterfeit Act in place under which its citizens can threatened to violate the right to life of the petitioners as protected by Article lead a healthy life. 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable
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had to be followed even in cases of compulsory acquisition of land. It is immaterial that such land titles may have been acquired irregularly because even such asser tions were subject to be proved through a court process. It was likewise irrelevant whether the process leading to the revocation was based on recommendations arising from a consultative process such as a task force because according to the court, such recommendations had no force of law and hence cannot be a substitute to following the due process of the law. Similarly in Kuria Greens Limited v Registrar of Titles and Another [2011] eKLR the court held that the Registrar of Titles had no authority to cancel a land title by way of gazette notice and that only a court could do so when the title in question had been obtained through fraud and or mistake and only where it was not a first registration. While upholding the finding in the Kuria Greens Limited case, the court opined that unlawful acquisition referred to in Article 40(6) of the Constitution had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do. Hence, such action was illegal, null and void in so far as it purported to revoke that title.
Advertising is a traditional mechanism in a free market economy for a supplier to infor m a potential purchaser of the availability and terms of exchange. Until recently, there had been a complete ban of advertising by advocates under rule 2 of the Advocates (Practice) rules. The court found the rule to be unconstitutional and inconsistent with Articles 46(1) and 48 of the Constitution following a petition to the High Court to challenge the prohibition against advertising in the legal profession.The petitioners had submitted that rule 2 of the Advocates (Practice) rules which barred advertising was in conflict, inconsistent and contravened Article 35(b) of the Constitution. Article 35(b) clearly stated that every citizen had the right to the correction or deletion of untrue or misleading information that affects the person. Further, it was submitted that the rule was in contravention of consumer rights under Article 46 of the Constitution. Consumers had the right to information to gain the full benefit of goods and services offered by either a public or a private person. They argued that legal services were included in the definition and by prohibiting advertising, rule 2 essentially suffocated and constrained a consumers right to have access to information regarding where, when and from whom and how to get the services of an advocate or even what issues can be dealt with by an advocate.
as to constitute a complete ban on advertising by advocates was inconsistent with Article 46(1) and 48 of the Constitution. 4. Reference of a Constitutional matter to a three-Judge Bench of the High Court Discretionary Whereas Article 165(4) of the Constitution provides that any matter certified by the court as raising a substantial question of law on a constitutional issue shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice, the court should consider each case on its merits and determine on its own discretion whether a particular matter ought to be referred to the Chief Justice for the constitution of a three judge bench to hear it. Gilbert Mwangi Njuguna v Attorney General [2012] eKLR Petition No. 267 of 2009 High Court of Kenya at Nairobi Mumbi Ngugi, J. March 16, 2012 Although past judicial thinking alluded to the conventional wisdom that many heads are better than one, or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a substantial question of law that merits reference to a three-judgebench means.The petitioner had filed a petition alleging violation of his fundamental rights under sections 71, 73, 74, 75, 77, 82 and 84 of the former Constitution that arose with regard to his removal from his position as a magistrate. Amongst the orders that the petitioner sought included an order that the file be referred to the Chief Justice for purposes of constituting a three-judge-bench to hear the petition. Ms. Mwangi representing the petitioner made reference to an article by former Chief Justice F. K. Apaloo carried in the Nairobi Law Monthly (January, 1995) on the circumstances in which the Chief Justice should
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3. Rule Banning Advertising by Advocates inconsistent with Article 46(1) and 48 of the Constitution The court noted that it was becoming clear that the prohibition In so far as Rule 2 of the Advocates of advertising had come under (Practice) Rules constituted a complete considerable challenge both locally ban on advertising by advocates, it and internationally and in order to was inconsistent with Article 46(1) of achieve a just society that met the the Constitution regarding consumers expectations of Kenya, legal services right to have access to information offered by advocates had to be necessary for them to gain the full available and the people had to have benefit of a product or ser vice. the necessary information to access these services. A ban on advertising Okenyo Omwansa George and by advocates was hence inimical Another v The Attorney General and to these broad objectives of the two others High Court, at Nairobi Constitution. Constitutional and Human Rights Division The court concluded that Rule 2 of D.S Majanja J. the Advocates (Practice) Rules made March 29, 2012 under the Advocates Act in so far
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appoint a three-judge-bench to hear a matter under section 84 of the former Constitution as being where complex issues of determinations of constitutional issues are raised. She further relied on the case of Samuel Kamau Macharia & another v. Attorney general & another [2000] eKLR in which the former Chief Justice Bernard Chunga while appointing a three-judge bench set out the matters to be considered in appointing a three-judge-bench, among them that the motion seeking the referral should not be frivolous and must raise matters of considerable complexity and gravity in relation to the interpretation of the Constitution. The court made reference to the case of Community Advocacy Awareness Trust & others v Attorney General & others [2012] eKLR where the High Court (Majanja, J.) observed: The Constitution of Kenya does not define, substantial question of law. It is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine a matter. The Court in the Community Advocacy Awareness Trust case further observed that in view of the fact that the new Constitution had an expanded Bill of Rights, every question concerning the interpretation of the Constitution would be a substantial question of law as it is a matter of public interest, affects the rights of the parties, is fairly novel and has not been the subject of pronouncement by the highest court. The court noted that the circumstances would defeat the objective of the expeditious justice as outlined under Article 159 (2) (b) of the Constitution, providing that justice shall not be delayed, and therefore the court should consider each case on its merits and determine whether a particular matter ought to be referred to the Chief Justice for constitution of a three judge bench to hear it.
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person due to 5. Presidents Discretion in Public her being ranked as the 4th most suitable candidate by the interviewing Appointments panel. The President is under no obligation to appoint the person ranked first where While holding for the respondents, names are forwarded to him by a the court opined that the persons particular selection panel for public whose names were forwarded were a p p o i n t m e n t . T h e P r e s i d e n t s all considered competent and the discretion, authority and responsibility statutory mandate imposed on the of independently taking into account selection panel to forward at least the values that guide the making of three names indicates that the public appointments should not be President and Prime Minister had discretion in selecting the preferred taken away. candidate having regard to the various Community Advocacy and Awareness factors. According to the court, neither Trust & 8 others v National Gender the Constitution nor the National and Equality Commission & 5 others Cohesion and Integration Act, 2008 High Court, at Nairobi (Constitutional required the President in consultation with the Prime Minister to appoint the and Human Rights Division) person ranked first. To insist that the D.S. Majanja J President must appoint the person March 14, 2012 ranked first in the circumstances The President is under no obligation to would be to take away the Presidents appoint the person ranked first where discretion, authority and responsibility names are forwarded to him by a of independently taking into account particular selection panel for public the values that guide the making of appointment. The brief background public appointments. facts of the petition were; pursuant to section 11(1) and (2) of the National 6. Widows have a Right to Bury Gender and Equality Commission Act, their Husbands in their Established a selection panel was duly constituted Homes "Boma" to invite applications from the Kenyan public for short listing and interview Article 27(3) and (4) of the Constitution for the position of the Chairperson as gives both women and men the right well as a commissioner of the National to equal opportunities in cultural and Gender and Equality Commission and social spheres and also provides that thereafter make recommendations to there should be no discrimination the President and the Prime Minister directly or indirectly against any to appoint a person to the office of person on any ground. the Chairperson and Member of the Commission. Various applicants were Lucy Kemboi v Cleti Kurgat & 5 others interviewed, amongst them, the 6th (2012) eKLR interested party in the petition, Ms A Mshila. J High Court Eldoret Lichuma. March 13, 2012. According to the results of the interviewing panel, Ms Lichuma was A widow has a right, just like that of ranked 4th. Nevertheless, her name her in-laws, to bury the remains of as well as the names of the first 4 her husband. In a burial dispute, the applicants was forwarded to the High Court held that a widow's right President for subsequent appointment, to bury the remains of her husband after consultation with the Prime were provided for and protected by Article 27 (3) and (4) of the Minster. Constitution, in that a widow should The President and the Prime Minster not be discriminated upon by cultural settled on Ms Lichuma, precipitating practices. Article 27(3) and (4) of the Constitution the petition. The petition was on the basis that gives both women and men the right Ms. Lichuma wasnt the most suitable to equal opportunities in cultural and
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social spheres and also provides that March 2, 2012 there should be no discrimination directly or indirectly against any The main issue for consideration was person on any ground. whether a company incorporated outside Kenya was a citizen for Lucy Kemboi brought a suit against her the purpose of Article 35(1) of in-laws, seeking inter-alia authority to the Constitution. Article 35 of the arrange for the collection, burial and Constitution provides that every citizen interment of the body of her husband has the right of access to information at their matrimonial home. The High held by the State; and information Court after hearing rivalry submissions held by another person and required considered inter-alia, who should for the exercise or protection of any actually bury the deceased and where right or fundamental freedom. had the deceased established a home. The Court was of the view that the It was the Court's view that though right protected under Article 35(1) Keiyo customary law was applicable has an implicit limitation, that is, and that under the said customary law it is only available to a Kenyan the clan together with the deceased citizen. Other rights were available brothers were responsible for the to every person or a person or burial of the deceased, Lucy having all persons but this right is limited been married to the deceased had a by reference to the scope of persons right derived from written law to bury who can enjoy it as there has to be a the deceased. distinction between the term person and citizen as applies in Article 35. The Court was of the view that the The court noted that though under rights of Lucy were provided for and Article 260, a person includes a protected by the Constitution, and company association or other body Lucy should not be discriminated upon of persons whether incorporated or by cultural practices, that she had an unincorporated, citizenship was in equal right as her in-laws and the clan reference to natural persons. Though to bury her husband's remains. the term citizen was not defined in Article 260, the same was dealt with As to whether a wife of a deceased under Chapter 3 of the Constitution, person had the first right and duty to Articles 12 to 18 and the provisions decide on his husbands burial, the were in reference to natural persons. courts seem to have diverged from the judicial reasoning in the S.M The right to access to information Otieno case. In Njoroge v Njoroge & under Article 35(1) was limited by Another (2004)1KLR, Justice Ojwang reference to citizen and was not to ruled that marital status was more be exercised by juridical persons. relevant to burial and that it was The court observed that the only other the marriage regime rather than the right which was limited by reference succession regime that should prevail to citizen is to be found in Article 38 in determining questions of burial. which protected the political rights of citizens and which also negatives any 7. Right of Access to information is intention by the people of Kenya to limited to Kenyan Citizens give juridical persons political rights. The Judge went on to emphasize The right to access to information and state that a corporation was not under Article 35(1) of the Constitution a real thing, it was legal fiction, an was limited by reference to citizen abstraction and a vehicle through and was not to be exercised by which natural persons can engage juridical persons. as a collective to realize certain objectives set out in the founding Famy Care Ltd v Public Procurement instrument and also that a juridical Administrative Board & 5 others person could not vote or make political High Court at Nairobi (Constitutional choices or exercise the political rights and Human Rights Division) protected by Article 38. Petition No 43 of 2012 Majanja J.
8. Sentencing in Attempted Capital offences Section 297 (2) of the Penal Code (which prescribed a sentence of death for the offence of attempted robbery) contradicted section 389 of the Penal Code (which prescribed a maximum of seven years imprisonment for an attempt to commit a capital offence) and was against the general rules of international law which by virtue of Article 2 (5) of the Constitution are part of the law of Kenya. Protus Buliba Shikuku v Attorney General [2012] eKLR Constitutional Reference No. 3 of 2011 High Court at Kisumu R N Nambuye, JA & A Aroni, J. February 13, 2012 The High Cour t sitting as the Constitutional Court invoked its mandate in Article 23 (3) as read with Article 165 (1) (2) (3) (a) (b) (d) (i) (ii) of the Constitution and declared that section 297 (2) of the Penal Code contradicted section 389 of the Penal Code as to the sentence of the offence of attempted robbery, noting that section 297 (2) of the Penal Code had no primacy over section 389 of the Penal Code. The petitioners final appeal against conviction and sentence before the Court of Appeal had been dismissed hence the petition before the Constitutional court on grounds, inter alia, that the petitioners constitutional rights had been breached by the respondent by convicting and sentencing him to serve an unlawful sentence, and that section 297 (2) of the Penal Code (which prescribed a sentence of death for attempted robbery) was in contradiction with section 389 of the Penal Code (which prescribed a maximum of seven years imprisonment for an attempt to commit a capital offence) as to the offence of attempted robbery and was against the letter and spirit of the Constitution enshrined in Article 26 (1) (2) and Article 50 (2), and the benefit of the contradiction should be accorded to him. It was the petitioners case that all the courts through which he was
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processed had failed to reconcile the contradictions in the provisions of section 297 (2), 388 and 389 of the Penal Code. He submitted that the Court of Appeal had appreciated the said contradictions and accorded the benefit to the respective appellants in Evanson Muiruri Gichane v Republic, CA No. 277 of 2002; Godfrey Ngotho Mutiso v Republic, CA No. 17 of 2008; and Boniface Juma Khisa v Republic CA No. 268 of 2009, and it was on this basis that he approached the Constitutional Court to bestow a similar benefit on him as well. The court held that section 297 (2) contradicted section 389 of the Penal Code regarding the sentence of the offence of attempted robbery and was not only against the letter and spirit of section 389 of the Penal Code providing a general penalty for attempted felonies among them attempted robbery, but also against the provisions of the Constitution as well as international norms and best practices accessed through Article 2 (5) of the Constitution. 9. DNA testing to be Ordered where it is in the best interest of the Child The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such matters, the paramount consideration is the best interests of the child. C. M.S Vs I.A.K Suing through Mother and Next Friend C.A. O. Constitutional Application No. 526 of 2008 High Court of Kenya at Nairobi Mumbi Ngugi J. January 20, 2012. Can a children's court, in a matter involving a child, order a party to undertake a DNA test where paternity is denied? And if so, would such an order amount to infringement of the party's constitutional right to freedom of conscience either under the new or the repealed constitution? An order compelling the petitioner to undertake a DNA test had been issued by the Children's Court after
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the petitioner had denied paternity of the respondent's child. It was the petitioner's case that the order was unconstitutional as it violated his freedom of conscience contrary to Article 32(1) of the New Constitution and also contrary to section 70(b) and 78(1) of the repealed Constitution. According to the petitioner, the order infringed his rights as he had made it very clear to the subordinate court that he was not ready for such a DNA test and he would suffer mental anguish and trauma if he was subjected to a test that he was not ready for.
John Harun Mwau & 3 others v Attorney General & 5 others [2012] eKLR Constitutional Petition No. 65 of 2011 High Court at Nairobi Isaac Lenaola, Mumbi Ngugi & David Majanja, JJ. January 13, 2012
The Key issues for determination in the petition was the date of the first general elections under the new Constitution and whether the High Court had jurisdiction to determine the matter. Submissions regarding the date of the However, it was the view of the first elections fell into three categories:court that in determining a paternity dispute, the court must of necessity o Proponents for the second weigh the competing rights of the Tuesday of August, 2012 as child and the party who is alleged stipulated in the to be the biological father. The right Constitution of the child to parental care takes o Proponents for a December precedence particularly in light of the date cardinal constitutional principle set out o Proponents for the March in Article 53(2) that in such matters, 2013 date. the paramount consideration is the best interests of the child. Reference was made to various The principle was that an order for provisions of the law, schedules of the DNA testing should be made if it is Constitution, and Legal Notice No. in the interests of the child and if a 1 of 2008, and whether the issue of prima facie case had been made to the date when the first elections could justify such an order. Such an order be lawfully held was integrated with would not in the courts' view be in the issue of whether the President violation of any of the petitioner's could dissolve Parliament under the constitutional rights and would be in Constitution. There was also the issue the best interests of the child. In light whether the unexpired term of the of that, the petition was dismissed with National Assembly incorporated the costs to the respondent. terms and conditions of service for the National Assembly? 10. Date of the first General E l e c t i o n s u n d e r t h e n e w The court held that the first general Constitution elections under the Constitution promulgated in August 27, 2010 The powers of the President in relation could only be lawfully held in 2012 to determining the term of the National within sixty (60) days from the date Assembly did not exist any more. The of dissolution of the National Coalition first general elections under the new by written agreement between the Constitution could only be lawfully President and the Prime Minister in held in 2012 within sixty (60) accordance with section 6 (b) of the days from the date of dissolution of National Accord and Reconciliation the National Coalition by written Act or within sixty (60) days from agreement between the President and the expiry of the term of the National the Prime Minister in accordance with Assembly in January 15, 2013. It was section 6 (b) of the National Accord noted that the powers of the President and Reconciliation Act or within sixty in relation to determining the term of (60) days from the expiry of the term the National Assembly did not exist of the National Assembly in January anymore and therefore the term 15, 2013 for purposes of the Sixth Schedule referred to the term of 5 years from the
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time the National Assembly first met which was stipulated by Legal Notice 1 of 2008 as January 15, 2008, meaning that the term ought to expire in January 14, 2013.
and the other continuing applicable provisions of the former Constitution, was the date for the next election for the aforesaid offices of President, Members of the National Assembly and the Senate, Members of County 11. Supreme Courts Advisory Assemblies and Governors. Opinion on Election date A preliminary objection was raised The constitutional petitions filed in the on the ground, among others, that High Court raised justiciable questions, the originalgrievance in the High e n t a i l i n g i s s u e s c o n s t i t u t i o n a l Court Petition of April 19, 2011 interpretation under a jurisdiction was a justiciable question, entailing properly vested in the High Court. constitutional interpretation belonging The issues ought to be litigated and first and foremost, to the jurisdiction of resolved in the High Court, and the the High Court; and that such a matter High Courts decision in that respect ought to be litigated and resolved would be subject to the appellate in the High Court which decision in procedure running through the Court that respect would be subject to the of Appeal, to the Supreme Court. appellate procedure running through the Court of Appeal, to the Supreme In Re the Matter of the Interim Court. The contention, in its essence, Independent Electoral Commission was that the Supreme Court lacked [2011] eKLR jurisdiction at that stage. Constitutional Application 2 of 2011 The Supreme Court of Kenya The court noted that while the AdvisoryW.M. Mutunga, CJ; Nancy Baraza, Opinion jurisdiction was exclusively DCJ & Tunoi, Ibrahim, Ojwang, entrusted to the Supreme Court, the Wanjala & Ndungu, Constitution did not provide that the SCJJ. Court while rendering an opinion December 20, 2011. may not interpret the Constitution. It followed that the Supreme Court The applicant, the Interim Independent could, while rendering an Advisory Electoral Commission, had moved the Opinion under Article 163(6) of the Supreme Court by a Constitutional Constitution, undertake any necessary Application dated April 28, 2011. interpretation of the Constitution. It was It cited Articles 101(1), 136(2) opined that the application amounted (a), 177(1)(a) and 180(1) of the to a request for an interpretation of Constitution as providing that elections Articles 101(1), 136(2) (a), 177 (1)(a) for Members of the National Assembly and 180(1) of the Constitution, and and the Senate, the President, clause 9 of the Sixth Schedule to the Members of County Assemblies and Constitution hence the question placed Governors shall be held on the before the court was not a normal second Tuesday in August in every one within the Advisory-Opinion fifth year. It was also noted that jurisdiction as envisaged under Article clause 9(1) of the Sixth Schedule 163(6) of the Constitution. to the Constitution stated that: The first elections for the President, the In the light of the several petitions National Assembly, the Senate, county pending before the High Court, the assemblies and county governors court found that the application was under this Constitution shall be held inappropriate. The cases sought the at the same time, within sixty days interpretation of the Constitution, with after the dissolution of the National the object of determining the date Assembly at the end of its term. of the next general election. Those petitions raised substantive issues that The applicant hence sought the required a full hearing of the parties; advisory opinion of the Court on and those matters were properly the question what, in the light of lodged and the parties involved had the above provisions and the other filed their pleadings and made claims provisions of the Constitution of Kenya to be resolved by the High Court. To
allow the application, in the opinion of the court would constitute interference with due process, and with the rights of parties to be heard before a Court duly vested with jurisdiction and also constitute an impediment to the prospect of any appeal from the High Court up to the Supreme Court. The Court had to protect the jurisdiction entrusted to the High Court hence it consequently upheld the preliminary objections and directed the High Court to proceed to hear and determine the several petitions pending before it. 12. Supreme Courts Maiden Ruling The Supreme Court had jurisdiction to adopt previous proceedings relating to an application for an advisory opinion filed in the Court of Appeal sitting in its special jurisdiction as a Supreme Court on the question of nomination of persons for constitutional offices under the Constitution of Kenya 2010. In Re the Matter of Commission For The Implementation Of The Constitution [2011] Advisory Opinions Application 1 of 2011 Supreme Court of Kenya MK Ibrahim & S Wanjala November 2, 2011 On November 2, 2011 history was made when the Supreme Court of Kenya delivered its first ruling. The Supreme Court was faced with the question whether it had jurisdiction to adopt previous proceedings relating to an advisory application filed by the Commission on the Implementation of the Constitution relating to the question of nomination of persons for constitutional offices under the Constitution of Kenya 2010. The proceedings in this case had been before the Court of Appeal sitting as a Supreme Court and were adjourned indefinitely following the establishment of the Supreme Court and appointment of the Supreme Court Judges. At the time, the Court of Appeal had established interim Supreme Court Rules to guide its proceedings. The Supreme Court ruled that it would indeed adopt the proceedings including all its
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pleadings. In making the ruling, the Court observed that due to the urgency of the motion and the issues which had been raised, time was of the essence and the questions which were of national importance and interest could not await the establishment of the Supreme Court. It was the courts view that it would be totally improper, irregular and unfair for the court to set aside all proceedings and record and to order the applicant to file a fresh application so that they could comply with the new Supreme Court Rules. The court observed that it would be prejudicial, costly and oppressive to the applicant (Commission on the Implementation of the Constitution) and even the interested parties who had invested heavily in terms of expenses and precious time in reaching the stage of proceedings that had been recorded. 13. Appointments to Constitutional office & Gender balance The national values and principles of governance stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making nominations to constitutional offices. Centre for Rights Education and Awareness & 7 others v Attorney General [2011] High Court at Nairobi Justice Daniel Musinga February 3, 2011 Prior to the adoption of the promulgation of the new Constitution, the appointment of persons to a constitutional office was solely the prerogative of the president. That position has since changed. In the case above, the court determined whether the nomination of the candidates to the offices of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget by the President had been done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act. The Court ruled that it would be unconstitutional for the State to carry on with the process of
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approving and eventual appointment of persons to those offices based on the nominations made by the President on January 28, 2011. The court observed that it appeared that there was some consultation between the two principals but there had been no consensus or agreement between them. The consensus or agreement, the Judge noted, was not a requirement under the Constitution. However, that notwithstanding, he stated that the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations. Similarly in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another [2011] eKLR - issue of gender balance was raised in the appointment of persons to a constitutional office. The gender composition of the persons recommended for the position of the Supreme Court Judges elicited a petition filed by (FIDA-K). It was alleged that the Judicial Service Commission did not meet the mandatory requirement and threshold set by the Constitution. It was contended that with two women and five men in the Supreme Court, it meant that the percentage composition of the female gender was 28.57% whereas the percentage composition of the male gender was 71.43%, thereby breaching Article 27 of the Constitution which provided that not more than two thirds of the members of elective or appointive bodies shall be of the same gender. The court recognized that persons to be appointed to any judicial office have to be learned persons who have gone through vigorous learning and experience and that the criteria for appointment of the judicial officers were clearly spelt out in the Constitution and the provisions of the Judicial Service Act particularly Articles 166, 172 and Regulation 13 respectively. The court took the view that Article 27 as a whole or in part did not address or impose a duty upon the Judicial Service Commission in the performance of its constitutional, statutory and administrative functions. It opined that Article 27 could only
be sustained against the Government with specific complaints and after it had failed to take legislative and other measures or after inadequate mechanisms by the State. However, the court emphasized that judicial appointments should be based on the concept of equal opportunity, non-discrimination and above all must reflect the diversity of the people of Kenya taking into consideration the values, beliefs and experience brought about by an individual appointed for a particular position. It stressed that women are just as likely as men to possess attributes of good judges and experience. 14. Forceful evictions and the Right to adequate housing Kenya lacked appropriate legal guidelines on eviction and displacement of people from informal settlements and even formal ones, particularly in instances where low income earners have to be displaced from public or private land. Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights and where those affected are unable to provide for themselves, the State party had to take all reasonable measures to ensure that adequate alternative housing resettlement or access to productive land was available Satrose Ayuma & 11 others V Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others [2011] eKLR High Court at Nairobi D. Musinga Petition 65 of 2010 February 17, 2011 The year 2011 was marked by a number of petitions with respect to land, forceful evictions and right to adequate housing. For instance In Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others [2011] eKLR the petitioners, residents of Muthurwa estate went to court seeking an Injunction against forceful removal from
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the respondent. The court considered the competing rights between the tenants and the owners of the estate. The court observed that Kenya lacked appropriate legal guidelines on eviction and displacement of people from informal settlements and even formal ones, particularly in instances where low income earners have to be displaced from public or private land. The court further stated that while it appreciated the first respondents good intentions of developing modern residential and commercial properties on the suit land, subject to compliance with all the necessary contents and/ or approvals it recognized that the developments could not be undertaken while the tenants of Muthurwa estate remained in occupation of the dilapidated houses, thus holding that it could not overlook the fundamental rights of the tenants and that even though at some particular point in time the tenants would have to move out of the estate , when the that time came, the court opined, it ought to be done in a humane manner. Similarly In the case of Susan Waithera & 4 Others v the Town Clerk, Nairobi City Council and 2 others [2011] eKLR the court considered whether twenty four hours notice was adequate notice to vacate the premises, in this case an informal settlement, where the applicants had lived for over forty years. The court held that such notice was unreasonable and indeed unconstitutional and further observed that eviction should not result in individuals being rendered homeless or vulnerable to the violation of other human rights and that where those affected are unable to provide for themselves, the State party had to take all reasonable measures to the maximum of its available resources to ensure that adequate alternative housing resettlement or access to productive land as the case may be was available. 15. Kenyas Obligation to issue An arrest warrant against Sudans President The High Court had jurisdiction not only to issue a warrant of arrest against any person, irrespective of
his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one.
principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one.
16. Constitutionality of the Vetting of Judges and Magistrates Act, International Commission of Jurists- 2011 Kenya v Attorney General & 2 others [2011] The Vetting of Judges and Magistrates High Court at Nairobi Act, 2011 was sanctioned by the new N.R.O. Ombija J. Constitution and its provisions had not November 28, 2011 violated the doctrines of separation of powers and the independence of the A warrant of arrest was issued against Judiciary. The Act did not threaten the President Al Bashir, the President constitutional rights of judges and of Sudan on November 28, 2011. magistrates. This followed an application by the International Commission of Jurists Dennis Mogambi Mongare V Attorney (ICJ)-Kenya which sought orders to General & 3 Others [2011] eKLR the effect that a provisional warrant of Petition 146 of 2011 arrest against President Bashir be High Court at Nairobi issued and a subsequent order against Mumbi Ngugi, DS Majanja & GV the Minister of State for Provincial Odunga Administration to effect the said November 18, 2011 warrant of arrest. The application by ICJ was based on grounds that the In Dennis Mogambi Mongare v Constitution of Kenya under Article 2 Attorney General & 3 others [2011] (5) applies all treaties and conventions eKLR the court considered whether that have been ratified by Kenya to be by permitting parliament to enact part of the Laws of Kenya; that Kenya legislation for the removal of judges, ratified the Rome Statute on 15th the Sixth Schedule to the Constitution March 2005 and followed up on that was unconstitutional. The court also act by domesticating the Statute vide considered whether both the Schedule the International Crimes Act of 2008. and certain sections of the Vetting of Judges and Magistrates Act were null It was argued that Article 3 the and void on the allegation that they Constitution of Kenya, 2010 put an violated the constitutional principles obligation on every person to respect, of separation of powers and the uphold and defend the Constitution. independence of the Judiciary. The The application also stated that there court held that the Vetting of Judges were two outstanding warrants of and Magistrates Act, 2011 (VJM arrest against President Al Bashir Act) was sanctioned by the new issued by the International Criminal Constitution and its provisions had not Court on 4th March, 2009 and 12th violated the doctrines of separation July 2010 respectively and there were of powers and the independence also two requests for co-operation in of the judiciary and that it had not the arrest and surrender of President threatened the constitutional rights Al Bashir issued by the International of judges and magistrates. While Criminal Court on 6th March, 2009 admitting that the vetting process and 21st July, 2010 to States that may have caused some anxiety, the were parties to the Rome Statute. Court observed that the process would have helped to underpin the values The court, upon applying various of accountability and integrity in the International Law principles held Judiciary and restore it to its respected that the High Court had jurisdiction place as the arbiter of justice in not only to issue a warrant of arrest Kenya. against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the
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17. Married Daughters Right to Inherit Article 60 (f) of the Constitution provides for the elimination of gender discrimination in respect of land. The marital status of a daughter is not a basis to deny her the right to inherit her fathers estate. Samson Kiogora Rukunga V Zipporah Gaiti Rukunga [2011] eKLR Succession Cause 308 of 1994 High Court at Meru Kasango J. February 17, 2011 Married daughters have a right to inherit their parents estate under Article 60 (f) of the current Constitution. The brief facts of the case were that the objector, Consolata Ntibuka had challenged her brothers decision to evict her from a piece of land left behind by her late father on the ground that she was married. Justice Kasango in her ruling stated ... In my view, the law as it is now, it matters not, whether a daughter of the deceased is married or not when it comes to consideration of whether she is entitled to inherit her parents estate. Article 60 (f) of the Constitution of Kenya 2010 provides for elimination of gender discrimination in respect of land. Marital status of a daughter is not a basis to deny her the right to inherit her fathers estate. 18. Right of Inheritance in Woman to Woman Marriage Contemporary social systems in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. Monica Jesang Katam V Jackson Chepkwony & another [2011] Succession Cause 212 of 2010 High Court at Mombasa J. B. Ojwang J. June 17, 2011 I n Monica Jesang Katam v Jackson Chepkwony & Another [2011] eKLR the High Court affirmed the right of Inheritance in woman to
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woman marriage. Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimongony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation. 19. Form One Quota System Curbing Private Schools' Dominance in National Secondary Schools not Discriminatory Not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriateperspective from which to analyze a claim of discrimination had both a subjective and an objective component.
to private schools. The applicants were aggrieved by the directive and consequently filed a Petition on behalf of the Kenya Private Schools Association to challenge the 2nd respondents policy guidelines regarding the selection of candidates to national schools. The petition, brought under Articles 3, 19, 20, 21, 22, 23, 27 and 43 (f) of the Constitution, sought to have the policy found to be discriminatory against candidates from private schools and therefore unconstitutional. While arriving at its decision, the court recognized that under Article 10 (2) (b) of the Constitution there were national values and principles of governance that had to be borne in mind which included equality, human rights, non-discrimination and protection of the marginalized. Under Article 20(4) (a), the court was obligated, in interpreting the Bill of Rights, to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom. Article 21 (3) enjoined the court to address the needs of the vulnerable groups within the society, including children.
In the courts view, the inclusion of economic, social and cultural rights in the Constitution aimed at advancing the socio-economic needs of the people of Kenya, including those John Kabui Mwai and 3 Others V who were poor, in order to uplift Kenya National Examination Council their human dignity. The protection of these rights was an indication and 2 others of the fact that the Constitutions (2011) transformative agenda looked beyond Petition No. 15 of 2011 merely guaranteeing abstract equality. High Court of Kenya at Nairobi J.Gacheche, G. M. Dulu, A. O. According to the cour t not all Muchelule distinctions resulting in differential September, 2011 treatment could properly be said to On January 6, 2011 the Permanent violate equality rights as envisaged Secretary in the Ministry of Education under the Constitution. The appropriate issued guidelines for form one selection perspective from which to analyze a for the year 2011 which indicated that claim of discrimination had both a to determine the number of candidates s u b j e c t i v e a n d a n o b j e c t i v e to be placed in national schools from component. public or private institutions of a particular district a certain formula A comparison between different would be used. Using the formula, it groups was necessary to discern the was announced that out of the differential effect of policy and to assist 4,517 available spaces in national the court in properly characterizing schools, 1,224 would be availed and identifying the groups that were
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relevant to Article 27. Accordingly, it was only by examining the larger context that a court could determine whether differential treatment resulted in equality or whether, on the other hand, it would be identical treatment which would in the par ticular context result in inequality or foster disadvantage. The court referred to Willis Vs- The United Kingdom, No. 36042/97, ECHR 2002 IV and Okpisz VsGermany, No. 59140/00, where the European Court of Human Rights observed that in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (nondiscrimination) of the European Convention on Human Rights. The Court hence found the policy directive not discriminatory to the applicants.
of the former commission. The petitioner argued that amendment of this provision by Parliament was not in line with the spirit of the original intention of the Anti-Corruption and Economic Crimes Act, 2003 and the Constitution of Kenya. He also submitted that Parliament had failed to respect the right of public participation in its proceedings. He questioned the removal of the five officers by way of enactment of the section 34(1) against the provisions of section 8 of the AntiCorruption and Economic Crimes Act, 2003 which dealt with the removal of the said officers - that is solely through a Tribunal. The petitioner sought ex parte injunctive orders pending the substantive hearing of the petition.
on the issue whether the seriousness of the crime with which a suspect is charged should be a consideration and if so, how much weight should be given to it. Previously, a strong link had been established between the seriousness of the offence and the entitlement of the suspect to bail or bond. This connection was based on section 72(5) of the repealed Constitution which expressly denied bail or bond to persons arrested in connection with offences punishable by death. Accordingly, section 123 of the Criminal Procedure Code went on to provide for the exclusion from bond and bail of persons charged with the offences of murder, treason, robbery with violence, attempted robbery with violence and curiously, any drug related offence, though the latter offences may not carry a death sentence. However, the new Constitution (Article 49(1)) does not exclude any class of suspects from the right to be released on bail. It gives all accused persons the right to the presumption of innocence and the right to be released on bond or bail pending trial with the court having the discretion to deny bail where there are compelling reasons. In interpreting the new Constitution, is Kenyas criminal legal system to make a sharp departure from this historical link and what significance, if any, is to be given to the gravity of the offence charged in considering application for bail? Recent decisions of the High Court highlight two different approaches. In Aboud Rogo Mohamed & another v Republic [2011] eKLR, the High Court (Justice F. Ochieng) considered an application for bail pending trial filed by two persons charged with engaging in organized crime by being members of Al-Shabaab, an outlawed organized criminal group, contrary to section 3(3) and 4(1) of the Prevention of Organized Crimes Act, 2010. The offence carries a maximum term of fifteen years imprisonment or a fine not exceeding Kshs. 5 million or both the fine and the imprisonment.
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The court was satisfied prima facie with the petitioners argument and held that the issues raised were of monumental, national and of public interest and granted orders ex parte 20. Public Participation in the Law staying the effect of the impugned making Process amendment pending hearing inter Ladama Olekina v Attorney General partes. & Another [2011]eKLR High Court at Nairobi, 21. Courts Dilemma in Bail M.A Angawa J. Applications for Serious Offences September 9, 2011. The new Constitution (Article 49(1)) Article 118 of the Constitution provides does not exclude any class of suspects that Parliament shall facilitate public from the right to be released on bail. participation and involvement in There seem to be emerging two the legislative and other business of different approaches by the courts on Parliament and its committees. the issue of whether the seriousness of the crime with which a suspect is The petition challenged the removal charged should be a consideration in from office of the director of the Kenya an application for bail and if so, how Anticorruption Commission (KACC) much weight should be given to it. together with his four deputies by virtue of the Ethics and Anti-Corruption Aboud Rogo Mohamed & another v Act, 2011. The petitioner invoked Republic [2011]eKLR the right to public participation High Court at Nairobi in parliamentary processes duly Justice F.A. Ochieng recognized under the new Constitution. February, 2011 The Ethics and Anti-corruption Bill was published on August 19 2011. The High Court has reiterated that Parliament had reduced the period of where a crime suspect seeks to be publication of the Bill from 14 days to released on bail or bond pending 4 days, thereby allegedly denying the his trial, the primary consideration petitioner the right to participate in the is whether he would voluntarily and legislation making process. readily present himself to the trial court, and each case is to be determined in The amendment of the Ethics and its own circumstances. However, in Anti-Corruption Bill which touched on the context of the new Constitution, Section 34(1) forced the five KACC there seem to be emerging two officers to leave statutory employment different approaches by the courts
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However, if the commission of the offence results in the death of a person, a convicted person would be liable to life imprisonment. Reiterating the applicant's constitutional right to a fair trial which includes the right to be presumed innocent until the contrary is proved, the High Court refrained from making any conclusions about the guilt or innocence of the applicants. The only question that the High Court was concerned was whether there were compelling reasons not to release the applicants on bail. In considering this issue, the Court referred to its previous decisions. In Danson Mgunya & another v Republic [2011] eKLR (Justice M. Ibrahim), while releasing two murder suspects on bond, the Court had observed that the Constitution was to be interpreted in a manner that enhances rather than curtails the fundamental rights of the individual and that each case is to be decided on its own facts. Earlier in January 2010, before the promulgation of the new Constitution, in the case of Republic v Muneer Harron Ismail & 4 others [2010] eKLR which involved a charge of being in possession of a large cache of firearms, the Court (Justice M. Warsame) released the principal suspect on strict and stringent conditions and noted that one paramount consideration would be whether the release of the suspect would endanger public security and public interest. The different approach is presented by Justice E. Emukule when in October 2010 he declined an application for bail pending trial by a person charged with murder - Republic v Moses Kenu Ole Pemba [2010]eKLR. The Judge recalled that the repealed Constitution had ruled out bail for such offences and under section 123 of the Criminal Procedure Code, the courts were still prohibited from granting bond or bail in such cases. In fact, to these classes of offences, the Judge would add persons charged with terrorism or offences of mass killings because the gravity of the offence was a compelling reason for not releasing the accused on bail. Except in cases involving child suspects who are
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exempted from the death penalty, the Judge observed that there were also subsidiary reasons for denying bail. In cases of murder, for instance, such reasons would include the consideration that society does not condone the taking away of human life and the pleasure of mixing with the accused in the streets. Such a person may well become a victim of his own freedom and release may lead to serious breaches of the peace.
among others, that the High Court had specifically been given jurisdiction to hear the applications made by the Attorney General and therefore only the High Court could question the functions of the Attorney General.
The High Court identified with the Magistrates court finding that under the new Constitution, the state had to submit reasons or the courts consideration and that the Constitution superseded those of the Criminal 22. Proper Reasoning needed in Procedure Code. This was trite law writs for Nolle Prosequi and was basic as provided for by Article 2 of the Constitution of Kenya A subordinate court could properly 2010. make an inquiry under the Constitution so as to satisfy itself whether the The High Court was guided by Article exercise of the powers of entering a 157 (6) of the new Constitution writ of nolle prosequi conferred on the which provides that the Director for Director of Public Prosecutions under Public Prosecutions may at any stage Article 157 (4) (6) and (9) of the discontinue criminal proceedings but Constitution of Kenya were consonant in doing so, he should have regard to the provisions of the Constitution. ...to the public interest, the interest of the administration of justice and the Republic v Enock Wekesa & another need to prevent and avoid abuse of [2010] eKLR the legal process. High Court at Kitale M. Koome The court noted the general principle November 19, 2010 of interpretation of statute was to give overarching objective which was Two accused persons had been meant by a particular legislation. charged before the Magistrates court The Constitution recognized as with three counts of robbery with fundamental respect of human rights, violence contrary to section 296 (2) of equality before the law and other the Penal Code. At the commencement values. The protection of human rights of the trial the state presented a writ in the High Courts view included of nolle prosequi to discontinue the those of the accused person(s) and the criminal proceedings against the two complainant(s). This was in line with accused persons. This writ was issued provisions of Article 159 (2) of the in exercise of the powers conferred on new Constitution which provided that the Attorney General by Article 157 in exercise of judicial authority, the (4) (6) and (9) of the Constitution of courts and tribunals were to be guided Kenya. The writ was dismissed by the by set principles. These principles in magistrate prompting the application part were; that justice was to be done for revision. to all, irrespective of status, that justice would not be delayed, and that justice In his submissions Mr. Onderi stated would be administered without undue that the Magistrates court had no regard to procedural technicalities. powers under the Constitution to question the writ of nolle prosequi. He Although the trial magistrate was claimed that the Attorney General was faulted for making a Constitutional authorized to enter nolle prosequi and interpretation and questioning the was not bound to give any reasons powers granted to the learned State to the trial court. In this regard Counsel to enter the writ of nolle counsel made reference to the case Prosequi it was the High Courts of Mwangi And Seven Others understanding that the Magistrate Vs Atornney General [2002]KLR made an inquiry which could now where a three judge bench held, be made under the Constitution so
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as to satisfy herself on whether the powers in the writ of nolle prosequi were consonant to the provisions of the constitution. The magistrate while exercising judicial powers had to adhere to the principles set out in the Constitution. 23. Jurisdiction of the ICC An international tribunal such as the ICC was well recognized to have comptence de la comptence an initial capacity to determine whether or not it had the jurisdiction to hear and determine a case coming up before it. Joseph Kimani Gathungu v The Attorney General & another eKLR High Court of Kenya at Mombasa J B Ojwang J November 23, 2010 The application was an indictment of the launched operations of the International Criminal Court (ICC) in Kenya, in the aftermath of an outbreak of violence and consequential destruction of human life, following the general elections of December, 2007. The applicant was aggrieved by the involvement of the ICC and hence sought to challenge the legality of the ICCs activities in the country. It was the applicants case that the involvement of the ICC in the affairs of Kenya in general, and in particular the investigations and possible prosecutions of the perpetrators of the post-2007 generalelections violence violated Articles 1,2,3,23,159-170 (inclusive), 258 and 259 of the Constitution of Kenya. When the case came up for hearing, counsel for 2nd Interested Party raised a preliminary objection on the ground that the High Court had no jurisdiction to hear and determine the cause. The issue of the role of international law in the context of Kenyas new Constitution was also raised. The court found that an international tribunal such as the ICC was well recognized to have comptence de la comptence an initial capacity
to determine whether or not it had the jurisdiction to hear and determine a case coming up before it. The ICC, acting within the terms of the Rome Statute, had already determined that it indeed had jurisdiction over the issue. The ICC had even gone further to determine the second jurisdictional question: whether the special facts of post-election violence in Kenya (2007-2008) rendered the matter justiciable before that Court. The ICC had determined that, on the facts, it had jurisdiction to investigate, hear and determine the cases arising from the post-election violence. The applicants challenge to the operations of the ICC had no legal foundation, apart from invoking a jurisdiction which was not available. The matter raised by the applicant was hence not justiciable.
Kenya under the Constitution. It was contended that that provision imported the Treaties and Conventions that Kenya ratified, especially the United Nations International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972. According to Article 11 of that Convention, no one could be imprisoned merely on the ground of the inability to fulfill a contractual obligation. It was further submitted that due to the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution and, International Human Rights Law that protected and promoted basic freedoms.
24. Committal to Civil Jail Goes against Civil and Human Rights On the application of the International law, Mr. Mainas counsel urged the T h e r e w e r e s e v e r a l m e t h o d s court to consider the Civil Procedure of enforcing a civil debt such as Act which made the provisions for attachment of property. An order recovery of money and execution of committal to civil jail was meant by way of committal of the judgment to punish, humiliate and subject the debtor to civil jail as one of the means debtor to shame and indignity due to of enforcing a judgment. failure to pay a civil debt. This was against the International Covenant on The court concurred that by virtue Civil and Political Rights of Section 2(6) of the Constitution of Kenya 2010, International Treaties, In Re the Matter of Zipporah Wambui and Conventions that Kenya had Mathara [2010] eKLR ratified, were imported as part of High court at Nairobi the sources of the Kenyan Law. Thus M. K. Koome J. the provision of Article 11 of the September 24, 2010 International Covenant on Civil and Political Rights which Kenya had Imprisonment in civil jail goes against ratified was part of the Kenyan law. the International Covenant on civil The Court noted that the covenant and political rights that guarantee made provisions for the promotion parties basic freedoms of movement and protection of human rights and of pursuing economic social and and recognized that individuals cultural development. Lady Justice were entitled to basic freedoms to Martha Koome made the orders in seek ways and means of bettering an application for stay of execution of themselves. It therefore meant that a order of committal to civil jail pending party who was deprived of their basic bankruptcy proceedings by Zipporah freedom by way of enforcement of a Wambui Mathara. civil debt through imprisonment, their ability to move and even seek ways Mrs. Matharas advocate submitted and means of repaying the debt was that under Ar ticle 2(6) of the also curtailed. Constitution of Kenya 2010, any Treaty or Convention ratified by The court noted that there were Kenya formed part of the Laws of several methods of enforcing a civil
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debt such as attachment of property. An order of imprisonment in civil jail on the other hand was meant to punish, humiliate and subject the
debtor to shame and indignity due to failure to pay a civil debt. The court opined that was indeed against the International Covenant on Civil and
Political Rights that guaranteed parties basic freedoms of movement and of pursuing economic social and cultural development.
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IN THE EAST AFRICAN COURT OF JUSTICE APPELLATE DIVISION AT ARUSHA
APPEAL NO.4 OF 2011 [Coram: H. R. Nsekela P; P. K. Tunoi VP; E. R. Kayitesi, L. Nzosaba and J. M. Ogoola, JJA] BETWEEN EMMANUEL MWAKISHA MJAWASI AND 748 OTHERS.APPELLANTS AND THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA. RESPONDENT [Appeal from the Ruling of the First Instance Division of the East African Court of Justice at Arusha by J. Busingye, PJ; M. S. Arach-Amoko, DPJ; and J. J. Mkwawa, J. dated 29th September, 2011 in Reference No.2 of 201O] JUDGMENT OF THE COURT (27 April 2012)
Introduction his is an appeal by EMMANUEL MWAKISHA MJAWASI and 748 others (the Appellants), represented by Mr. Mutembei of Gichuru & Co., Advocates, against the Ruling of the First Instance Division of the Court in Reference No.2 of 2010. The Respondent is the REPUBLIC OF KENYA, represented by the Honourable Attorney General of the REPUBLIC OF KENYA. I. Background to the Case The Appellants are Kenyan citizens and former employees of the defunct East African Community (EAC) that collapsed in 1977. Subsequent to the dissolution of the defunct EAC in 1977, the Partner States executed a Mediation Agreement on 14 May, 1984, for the division of the assets and liabilities of the defunct Community. Under that Mediation Agreement, each Partner State undertook the responsibility to
pay out of its share of the defunct Communitys assets, the pensions and other terminal benefits of its respective nationals who had been employed by the EAC and its institutions prior to the division date of the assets. The division dates were different for each of the existing institutions as indicated in article 1 (i) of the Mediation Agreement. However, the latest such division date was 30 June 1977.
with such Corporations or GFS at that date.
Interestingly, the Kenyan Government devised a somewhat novel way of dealing with the situation which arose as the consequence of the Mediation Agreement. In this regard, the exemployees who were still in active service on the division date were given the option to take their EAC pension directly; or to join the Kenyan Article 10.05 of the Mediation Public Service, including its Parastatals Agreement provided as follows: and State corporations. Through this latter option, many ex-employees Each State shall: of the defunct EAC were absorbed into the employ of the Kenyan Public (a) Pay its nationals employed Service. Conversely, those who took by Corporations or GFS and the option to retire were paid at once retired from active services by all their benefits, including additional the division date the pensions pensions on the basis that their offices and other benefits due to had been abolished in the EAC. them on account of such employment. It was the Appellants case before us and in the Court below that even (b) Make provision for the though they were absorbed into the pension rights and entitlement Kenyan Public Service and other to other benefit accrued as of State agencies and were eventually the division date in favour of paid their terminal dues by those its nationals in active service organizations, they have not, however,
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been paid their corresponding dues for the services they rendered to the East African Community; yet they lost their employment at the EAC pursuant to the abolition of their offices. The Appellants, therefore, averred that they are entitled to be paid by the Kenyan Government their EAC terminal benefits in accordance with their individual records for the services they rendered to the defunct East African Community before the division date -- including their pensions, additional pensions, provident fund, severance allowances, gratuity, redundancy, payment in lieu of notice, repatriation expenses, loss of office, benefits outstanding, accumulated leave, salary in lieu of notice, real value and compound interest until full payment. It is common knowledge that the Appellants instituted two suits in the High Court of Kenya, which were later consolidated. The Appellants later petitioned the Kenya National Assembly, but also, in vain. It is on the basis of this background that the Appellants filed the Reference No.2 of 2010, before the First Instance Division of the East African Court of Justice (EACJ). II. The Reference It is to be recalled that in their Reference in the Court below, the Applicants (now Appellants) had prayed for declarations that the Respondents refusal, neglect and/or failure to pay the Applicants their EAC terminal benefits constitutes a breach of Article 6(d) and Article 7(2) of the EAC Treaty. They also prayed for an order to compel the Respondent to pay their EAC terminal benefits including, but not limited to, one months salary in lieu of notice, loss of office benefits, pension emoluments, outstanding/ accumulated leave, repatriation expenses, real value and 7% compound interest until payment in full. III. Respondents Response
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The Respondent opposed the of local remedies; Reference in the Court below. He (3)The Court cannot entertain raised the following objections which the Reference on account of were agreed as issues by both parties no retrospective application during the Scheduling Conference, of the Treaty; namely: (4)The Reference is accordingly (1)The Court lacks the jurisdiction struck out with costs to the to hear and determine the Respondent. Reference; V. The Grounds of Appeal (2)The matter is res judicata; Aggrieved by the above decision of the (3)The Reference is inadmissible First Instance Division, the Appellants in this Court since local lodged an appeal to this Appellate remedies have not been Division based on 8 grounds; but at exhausted. its Scheduling Conference held on 16 March, 2012, this Appellate Division S u b s e q u e n t l y, h o w e v e r, t h e agreed with the Parties to reduce the Respondent unilaterally added the grounds of appeal from eight to only following issues in the Respondent's three, namely: written submissions after the hearing: (1)Whether the learned Judges (1)The East African Community of the First Instance Division Treaty of 2000 cannot be erred in law in finding that applied retroactively; the East African Community did not have retroactive (2)The Claimants statements are application in respect of the mere allegations without any present case; proof of how the Treaty or the various Conventions listed (2)Whether the learned Judges therein have been infringed of the First Instance Division by the Respondent or that the erred in law when they made Respondent is a signatory to findings of fact with finality at them; the preliminary stage without a full trial; (3)The objectives of the Treaty under its Article 5 do not (3)Whether there was provide for the redress of procedural irregularity in previous injustices, if any, to entertaining and determining entitle the Claimants to rely on the issue of retroactivity with Articles 6 and 7 of the EAC finality without affording the Treaty. Appellants notice for and an opportunity to present their IV. Ruling of the First Instance submissions. Division Ground 1: Whether the EAC Treaty The First Instance Division considered has retroactive application for all the above six preliminar y the instant case? objections, including those which had not been agreed upon by the On this point, the Court below made Parties at the Scheduling Conference, the following finding: and concluded with the decision that: it is clear that the Claimants became (1)The Court has jurisdiction to aware of the acts/omissions of the hear the Reference; Respondent complained of by 1998, when they filed the suit in the Kenya (2)The Reference is not barred High Court. That was well before the by the doctrine of res judicata Treaty entered into force in 2000. nor by the rule of exhaustion There is no contrary intention from
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the reading of the Treaty that it was The principle of non retroactivity is a to apply retrospectively and none has well known doctrine. It is generally been established by the Claimants. applied in the jurisprudence of Public International Law. It constitutes a That finding was contested by the limit on the scope of a Treaty ratione Appellants with the argument that their temporis [see O. DORR and K case was within the scope of the EAC SCHMALENHACK (eds)], Vienna Treaty, since the time of their cause Convention on the Law of Treaties, of action was not in the year 1998 Springes Verlag Berlin Heldelberg as the Court below found. Counsel 2012; A. BUYSE: A Lifeline in Timefor the Appellants contended that Non-retroactivity and Continuing the issue of non retroactivity of the Violations under the ECHR In Nordic EAC Treaty was not relevant to the Journal of International Law, 75: circumstances of this case. He added 63-88, 2006, Pr Dr J. WOUTERS, that the Court below did not give the Dr D. COPPENS, D. GERAETS: reasons why it chose the year 1998 The Influence of General Principles as its reference point, in lieu of the of International Law http://www. years 2004 or 2009. He affirmed kuleuven.be . that the issue of non-payment of terminal benefits by the Respondent When a treaty is not retroactive, the to the ex-employees for services they consequence is that it cannot apply rendered to the defunct Community, to any act or fact which took place was raised in Kenya's National or any situation which ceased to exist Assembly on 5 August, 2009, and before the date of its entry into force. that the Respondent admitted to holding monies for payment to the Retroactivity of a treaty may derive Appellants and that non-payment was either explicitly from the provisions of due to the fact that the beneficiaries the treaty itself, or it may implicitly be could not be found or traced. deduced from its interpretation. Learned Counsel concluded that the admission of debt by Kenya, constituted an acknowledgement of the Applicants' debt and reactivated their cause of action in this matter.
On the specific issue of non retroactivity, Article 28 of the Vienna Convention provides as follows: Unless a different intention appears from the treaty or is other wise established, its provisions do not bind a party in relation to any act or fact which took place or, any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. That Article helps in establishing the intention of the parties where this intention is not explicitly expressed in a particular Treaty. Such is the case with the EAC Treaty in the instant case. This Court, therefore, needed to interpret the Treaty in order to establish whether the EAC founders manifested any intention to make their Treaty retroactive. Moreover, fur ther guidance in this lies in Article 31 of the Vienna Convention which provides, inter alia, as follows: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Upon closely and carefully reading the EAC Treaty, we did not find any provisions explicitly stating that the Treaty may be applied retroactively. We, then, turned to its interpretation in a bid to determine whether the 2. The context for the purpose of The Respondent contended the framers of the Treaty had any intention the interpretation of a treaty opposite position. He averred that the to make the EAC Treaty retroactive. shall comprise, in addition to EAC Treaty 2000 was not applicable the text, including its preamble to the instant case by virtue of the The performance of this Courts duty and annexes: principle of non retroactivity. He in this regard, is guided by the Vienna recalled the collapse of the former Convention on the Law of Treaties. (1)any agreement relating to EAC (as it is briefly narrated in the Article 2 (1) (a) of that Convention the treaty which was made background of this case). He stated defines the instruments/treaties to between all the parties in that the employment of the Appellants which the Convention applies. The connection with the conclusion ceased to exist on the division date of Article states as follows: of the treaty; each institution and that no contrary intention by the founders of the For the purposes of the present (2)any instrument which was new Community, has been shown Convention: made by one or more parties by the Appellants. He concluded in connection with the that, in the absence of any such (a) treaty means an international conclusion of the treaty and contrary intention for its continuance, agreement concluded accepted by other parties as the current Treaty cannot operate between States in written form an instrument related to the retrospectively. Moreover, since this and governed by international treaty Court is a creation of the EAC Treaty law, whether embodied in a of 2000, it cannot be seen to interpret single instrument or in two Consistent with the above guidelines, and apply the EAC Treaty of 2000 to or more related instruments this Court interpreted the provisions acts or facts that took place in 1977. and whatever its particular of the EAC Treaty: it placed them designation; against the objectives and purposes
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of the Treaty. We find that the intention of the framers of the new EAC Treaty of 2000 was to turn the page of the past and to build a new project for the future.
relevant to the instant case?
The conditions specified by O. DORR and K. SCHMALENHACK (supra) for fulfilling the test of relevant application of the principle of non The context of the creation of the new retroactivity, are as follows: EAC Community confirms that finding. The Preamble to the EAC Treaty 1. Existence of a Treaty to which leaves no doubt about the objective the Respondent is a party. In of putting a definite end to the defunct the instant case, there exists Community. The fourth paragraph of the EAC Treaty. the Preamble clearly states that: 2. The absence of any intention AND WHEREAS in 1977 the Treaty for of the parties to apply their East African Co-operation establishing Treaty retroactively. In the the East African Community was instant case such absence officially dissolved, [emphasis has been amply demonstrated added] in the above Court analysis concerning the EAC Treaty. The fifth paragraph of the same Preamble likewise underscores the fact 3. An act or fact which took of that dissolution, thus: place, or a situation which ceased to exist, before the AND WHEREAS upon the dissolution entry into force of the Treaty of the East African Community the said concerned. In the instant case, countries signed the Community we have the alleged refusal Mediation Agreement 1984 for the by the Republic of Kenya division of the assets and liabilities of to pay the terminal benefits the former East African Community. of the former employees of [emphasis added] the defunct Community in execution of the Mediation From the preambular paragraphs Agreement signed in 1984 quoted above, it is patently clear that after the dissolution of the far from manifesting any intention to Community in 1977. resurrect the old Community or its Treaty, the framers of the new Treaty 4. The entry into force of the made their intention abundantly Treaty is posterior to the obvious: namely, to officially dissolve act; fact or situation which the defunct Community and then, to constitutes the cause of action divide and share out the assets and against the Respondent. In the liabilities of the defunct Community present case, the EAC Treaty among the three Partner States of entered into force for Kenya the old Community. Accordingly, this on 7July 2000, after the Court agrees with the finding of the Appellants claim which was Court below that the EAC Treaty 2000 already before the Kenyan cannot be applied retrospectively. This High Court at Nairobi. particular point is put beyond any 5. The Claimant asks the Court shadow of a doubt by Article 15.00 for the application of the of the Mediation Agreement 1984, Treaty to the Party in respect of which stipulates that: the act/fact which took place or situation which ceased to The Treaty for East African exist before the coming into Co-operation, dated 6th June, 1967,is force of the Treaty. In the hereby abrogated. instant case, the Appellants prayed this Court to apply the The above finding leads the Court to EAC Treaty to their case. examine yet another question: Was the application of non retroactivity From all the above, this Court finds that
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the instant case meets the necessary conditions for the principle of non retroactivity to be applied. In this regard, the Court considers the situation of the ex-employees of the defunct Community to have ceased to exist at the Community level from 14 May, 1984. That date was obviously way before the entry into force of the EAC Treaty in July 2000. We, therefore, agree with the Court below that the principle of non retroactivity is relevant to the instant case. Consequently, the first ground of this appeal fails. Ground 2: Whether the First Instance Division made findings of fact with finality at the preliminary stage without a full trial? Learned Counsel for the Appellants contended that the question of non retroactivity was an issue of fact. From this stand point, he contended that the Court below could not, therefore, determine this point at the preliminary stage, without full trial. The Respondent postulated a totally opposite understanding of the issue of non retroactivity of a Treaty. He averred that non retroactivity is a pure point of law, intertwined with jurisdiction, which the Court can even consider on its own motion. We are of the view that the Court below applied the correct law. The objection of non retroactivity of a Treaty is a fundamental issue, one that goes to the root of the case. The court cannot avoid that question. It must determine it at the outset, before dealing with any other issues. True, it is not possible to deal with the objection of non retroactivity without considering the cause of action of the particular case. However, such consideration helps only to situate the objection in a certain period, and it does not transform the principle of non retroactivity into a matter of facts. We agree with the Respondent that objection of non retroactivity is interconnected with the question of jurisdiction. The Court must consider the question even where the Parties
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themselves fail to raise it. Indeed, it is incomprehensible that the Respondent omitted to bring it up at the Scheduling Conference in the Court below. Nonetheless, it is recognized, in our jurisprudence that for the attainment of substantive justice, a point of law can and should be raised at any time during the course of the proceedings, preferably at the earliest available opportunity. For these reasons, the second ground of appeal also fails. Ground 3: Whether there was procedural irregularity for the Court below to entertain and determine the issue of retroactivity without the Appellants' submissions? Under this ground the Appellants raised three distinct sub issues, which could be summarized as: (i)smuggling into the case the issue of non retroactivity, when the Parties had not agreed any such issue during the Scheduling Conference; (ii)denying the Appellants sufficient notice to respond to, and a fair opportunity to be heard on, the smuggled issue of non retroactivity (all in contravention of natural justice); (iii)raising non retroactivity as a preliminary point of objection, when it was not a point of pure law. Counsel for the Appellants contended that the issue of non retroactivity of the EAC Treaty was not among those which were agreed upon by the Parties during the Scheduling Conference.
thereon. He prayed this Court to find that all this amounted to a procedural irregularity; and to reinstate the case in order to enable the Appellants to present their submissions.
He averred that the point was introduced only subsequently in the Respondents written submissions after the hearing; but that, nonetheless, the Court proceeded to consider and determine that point with finality, without affording the Appellants effective notice to respond, or an VI. Effects of non Retroactivity to (3)W. T.O., Brazil Measures opportunity to present their submissions the Question of Jurisdiction Affecting Desiccated Coconut,
While recognizing the jurisdiction of this Court over the interpretation and application of the EAC Treaty, as provided for by Article 27(1), the Respondent argued that the instant Reference does not deal with the He averred that in determining the interpretation nor the application of point and making a finding on it the Treaty. without full trial, the Court below contravened the well established The Court below, considering the principle of natural justice. submissions of the parties, held that it had jurisdiction on the basis of Articles On the third sub issue, Counsel 27(1) and 23 of the Treaty, but that contended that non retroactivity is an the EAC Treaty was not applicable to issue of fact, not of law, which should this Reference on account of the non not have been entertained by the retroactive application of the Treaty to Court below by way of a preliminary that particular Reference. objection. Where then, one may ask, did the This Court considers that, even if it was Court derive its jurisdiction, since not agreed upon during the hearing, the Treaty which normally confers the issue of non retroactivity was the jurisdiction on the Court did not totally unavoidable. It fundamentally apply? Non retroactivity is a strong determines the applicability of the objection. When it is upheld, it new Treaty to the Reference. Without disposes of the case there and then. prior determination of this point, the As non retroactivity renders the Treaty Court could not proceed even one step inapplicable forthwith, what else can further. Nonetheless, the Court below confer jurisdiction on the Court? Non should have afforded the Appellants retroactivity leads the Court to the lack the opportunity for effective notice to of jurisdiction. make their submissions on that point. The failure to do so constituted an This is the first time that this Court irregularity. Nevertheless, the injustice has been confronted with the issue of occasioned has now been duly cured, non retroactivity. The jurisprudence in as much as the Appellants have of other International Courts would been given the opportunity to submit help to illustrate the effects of on the point in this appeal. non retroactivity; particularly so, concerning the consequential, but allGiven our finding that non retroactivity critical question of jurisdiction. In this is a fundamental point of law, we connection, three cases come to mind: need not delve into or tarry long on the Appellants sub issue of whether non ( 1 ) T h e A m b a t i e l o s c a s e retroactivity is a point of fact, which (jurisdiction), judgement of the Court below should not have July 1st 1952; I.C.J. reports entertained by way of a preliminary 1952, p.28; point of objection. It is evident from our analysis of the issue elsewhere ( 2 ) M a v r o m m a t i s P a l e s t i n e in this judgment, that retroactivity is Concessions (Greece v U. eminently a point of pure law, which K.), 1924, P.C.I.J., (SER. B) this Court is not only entitled to raise No.3 (Aug.30) Publications on its own motion, but also to entertain of the Permanent Court of as a point of objection that is capable International Justice Series of disposing of the entire case. A No.2; collection of judgements A.W. Sfjthoffn Therefore, the third and last ground Publishing Company, Leyden, of this appeal also fails. p. 194; and
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AB 1996 4, Report of the Appellate Body, page 15. In all the three cases quoted above, the consequences of a finding of non retroactivity of a treaty, invariably led to a finding of lack of jurisdiction; and that was the end of the proceedings. This Court has repeatedly underlined the effect of lack of jurisdiction. Without it, a Court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of the case (see Appeal No.3 of 2011: Attorney General of the United Republic of the Tanzania vs. African Network for Animal Welfare, EACJ, Appellate Division, Judgment of 15 March, 2012, p.7). Having in mind the effect of non retroactivity of a Treaty, the point should have been determined before any other issues in order to avoid the ambiguity contained in the final conclusion of the Ruling of the Court below, which held as follows: In conclusion, we rule that although the Court has the jurisdiction to hear the Reference and that it is not barred by the doctrine of res judicata or the rule of exhaustion of local remedies, nonetheless, it cannot entertain the Reference on account of the non retrospective application of the Treaty. For the above reasons, this Court finds that the EAC Treaty is non retroactive. It is not applicable to the present Reference. Consequently, the East African Court of Justice is not clothed with the jurisdiction to entertain it. Before departing from this matter altogether, this Court is constrained to make the following observations. The framers of the new EAC Treaty of 2000 saw it fit--indeed desirable -- to interpose in the new Treaty the fact of the Mediation Agreement of 1984, which the three former Partner States of Kenya, Uganda and Tanzania had agreed a formula for dividing and sharing the assets and liabilities of the defunct Community, including the settling of terminal
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benefits and pensions of the former employees of the defunct Community. The interposition of all these factors into the new Treaty was, thus, a deliberate and express action on the part of the Partner States. In our view, beyond mere recording of history, the interposition was done for a reason and a purpose - namely, to revisit or to keep alive the nexus between the Old and the New order of the East African integration (paragraph 2 of the Preamble); cooperation, former and future (paragraph 6 of the Preamble); and upgrading into a Treaty the Regions Tripartite efforts of 1997-2000 (paragraph 9 of the Preamble); as well as breathing a fresh breath of oxygen into the important issue of the sharing and the management of the assets and liabilities -- including the welfare of the former employees of the defunct Community (paragraph 5 and 6 of the Preamble). The interposition of these factors was, thus, a clear statement by the new Community expressing its profound interest in the continued management of the assets and liabilities of its predecessor Community, and the welfare of the former employees of that defunct Community.
Executors or Trustees of the Estate or Trust must be held responsible and accountable. From all this, Kenyas for mer Community employees (who are the Applicants/Appellants before this Court), appear to have a genuine and legitimate basis for their grievance of injustice against the Kenyan State concerning the issue of their Community pensions. Nonetheless, notwithstanding our being a court of justice, the jurisdiction for interrogating the merits (or demerits) of Appellants grievance lies not in this Court, on account of the non retrospective application of the new EAC Treaty of 2000.That jurisdiction properly lies with the national Courts and allied for a, in as much as the Mediation Agreement of 1984 effectively and definitively moved the management of the assets and liabilities of the defunct Community from the remit of the East African Community, to the realm of the various National States. Conclusion
In the result, this Court dismisses all the grounds of the Appeal. Each By analogy to municipal law, the Party shall bear their own costs of this Mediation Agreement on the sharing appeal, and of the Reference in the of assets and liabilities was the Court below. equivalent of drawing a Will and appointing Administrators/Executors It is so ordered. to oversee and administer the Estate of the defunct Community. Conversely, DATED, AT ARUSHA the Mediation Agreement was the THIS 27TH DAY OF APRIL, 2012 equivalent of the creation of a Trust ..... and appointment of Trustees to oversee Harold R. Nsekela PRESIDENT and manage the residue of the affairs .. of the defunct Community (see in Phillip K. Tunoi particular Article 10 and Annex F VICE PRESIDENT of the Mediation Agreement). In either case, the Administrators/Executors or .... Trustees owe a duty of care to manage Emily R. Kayitesi the Estate or Trust for the benefit of the Justice of Appeal beneficiaries (in this case the former .... Community employees), in accordance Laurent Nzosaba with the well known and generally Justice of Appeal accepted norms and standards that .... James Ogoola, govern Administrators, Executors and Justice of Appeal Trustees. In the event of any audit queries concerning the exercise of their duty, the Administrators,
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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
South African Transport and Allied Workers Union and Another v Jacqueline Garvas and Others Case CCT 112/11 [2012] ZACC 13 Hearing Date: 09 February 2012 Judgment Date: 13 June 2012
he following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. On 13 June 2012, the Constitutional Court handed down judgment about the constitutionality of a law, which makes organizers of gatherings liable for damages caused by the gathering unless they took all reasonable steps to avoid the damage and they did not reasonably foresee that damage. The Supreme Court of Appeal upheld a decision of the Western Cape High Court saying that the law was valid. The South African Transport and Allied Workers Union (SATAWU) had organized a gathering of thousands of people through the City of Cape Town to register employment - related concerns. Some 50 people had lost their lives in the course of SATAWUs protracted strike action before the gathering. During the gathering, much
property including private property balances the conflicting rights of was damaged. organizers, potential participants and often vulnerable and helpless victims In response to a claim for damages of a gathering or demonstration made by people who claimed that which degenerates into violence. they suffered loss as a result of the Mogoeng CJ emphasized that the gathering, SATAWU challenged the reasonable steps taken on the one constitutional validity of the law that hand and reasonable foreseeability imposed liability on organizers. The on the other hand 2 were interUnion contended that the defence related. Organizers are obliged at allowed by the law is non-existent and all times to take reasonable steps to unjustifiably limits the right to freedom prevent all reasonably foreseeable of assembly in the Constitution. conduct that causes damage and the reasonable steps must be of the In a majority judgment, Mogoeng kind that render the conduct causing CJ held that the law aims to afford damage unforeseeable. For these victims effective recourse where a reasons, the majority dismissed the gathering becomes destructive and appeal. results in injury, loss of property or life. The majority held that the defence In a concurring judgment, Jafta J provided for by the law is viable reasoned that the appeal should be and that the limitation on the right dismissed, on the basis that SATAWU to freedom of assembly in section had failed to prove that the law limits 17 of the Constitution is reasonable the right to freedom of assembly, and justifiable, because it serves an or that the defence that it creates is important purpose and reasonably irrational.
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PRESS SUMMARY
16 May 2012
Humphreys (FC) (Appellant) v The Commissioners for Her Majestys Revenue and Customs (Respondent) [2012] UKSC 18 On appeal from the Court of Appeal [2010] EWCA Civ 56 JUSTICES: Lord Walker, Lady Hale, Lord Clarke, Lord Wilson and Lord Reed. BACKGROUND TO THE APPEALS This case concerns the scope for justifying indirect discrimination against men in the allocation of Child Tax Credit (CTC). CTC was introduced by the Tax Credits Act 2002 and replaced the previous separate systems of tax credits and benefit supplements for people looking after children, separately administered by the tax and benefits authorities. CTC is a benefit payable in respect of each child irrespective of whether the applicant is employed. It is administered solely by HMRC. The amount of CTC payable depends on the income of the applicant. Under the Child Tax Credit Regulations 2002 (SI 2002/2007), CTC in respect of each child is payable to only one person, even where the care of the child is shared between two or more persons. Entitlement to CTC depends on who is deemed responsible for the child. Regulation 3(1) creates a set of rules for determining this. Rule 1 provides that where the child lives with one person, that person is treated as responsible. Rule 2 provides that where a child lives with two or more persons in different households, the person having main responsibility for the child is treated as being responsible. The Appellant is a father of two children. Between January 2004 and December 2005 both children lived with their mother but retained substantial contact with the Appellant, spending most weekends and half of all school holidays with him. The Appellant applied for CTC which was considered under Rule 2, above. The Respondent determined that the mother had main responsibility for the children and the Appellants application was rejected. The CTC was paid solely to the mother. father was a breach of article 14 of the ECHR read with article 1 of the First Protocol. The Upper Tribunal held that the discrimination was justified and that decision was upheld by the Court of Appeal. JUDGMENT
The Supreme Court unanimously dismisses the appeal. Lady Hale gives the lead judgment with which Lord Walker, Lord Clarke, Lord Wilson and The Appellant appealed the refusal Lord Reed agree. of CTC arguing that the legislative scheme breached article 14 read REASONS FOR THE JUDGMENT with article 1 of the First Protocol to the European Convention on References in square brackets are to Human Rights (the ECHR) in that paragraphs in the judgment it indirectly discriminates against men because, on the whole, fathers The Appellant relied upon the Court are more likely than mothers to of Appeal decision in Hockenjos v have secondary, but nonetheless Secretary of State for Social Security significant, responsibility for the care [2004] EWCA Civ 1749, [2005] of their children. Entitlement to CTC EuLR 385 in which it was held that falls within the scope of the right to the denial of child supplements to protection of property under article a fathers jobseekers allowance 1 of the First Protocol to the ECHR. where he and the mother shared Article 14 of the ECHR provides that roughly equal care of the children the enjoyment of rights and freedoms was unjustified indirect discrimination under the ECHR shall be secured [12]. The case was brought under without discrimination on grounds of, European Union antidiscrimination law rather than the ECHR. Following amongst others, sex. that decision HMRC conducted a T h e H M R C n o w a c c e p t s t h a t review of the no-splitting rule in the legislative scheme indirectly CTC, the results of which helped discriminates against men. The key persuade both the Upper Tribunal issue was whether that discrimination and the Court of Appeal that there was objectively justified. The appeal were features of the instant case tribunal held that it was not and distinguishing it from Hockenjos. therefore that denying CTC to the
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The specific test under the ECHR for justifying discrimination in the context of state benefits is set out in Stec v United Kingdom (2006) 43 EHRR 1017, a decision of the Grand Chamber of the European Court of Human Rights [15]. The benefits in that case were for people who were required to stop work because of injury. Entitlement reduced upon reaching retirement age which had a discriminatory effect on women who reached that age five years before men. The Court repeated that A difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (para 51). However, when it comes to general measures of economic and social strategy, a wide margin of appreciation is allowed to member states. The Court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation [16] . Hence this particular measure was justified. The test in Stec has been applied in other direct discrimination cases. If it applies to direct discrimination cases, then it must also apply to indirect discrimination cases such as this. In the context of state benefits, under the ECHR the normally strict test for justification of sex discrimination gives way to the manifestly without reasonable foundation test [19].
This does not mean however that the CTC is distributed in this way rather justifications put forward will escape than divided between two households careful scrutiny by the courts [22]. with modest means [29]. That method is also simpler and less expensive The Appellants main complaint is to administer, thereby maximising that the scheme leaves him with the funds available for distribution nothing to provide for the needs of his [29]. It was an integral part of the children when they stay with him [23]. move to combine tax allowances Although the mother could choose to and social security benefits into a share the CTC, neither HMRC nor seamless tax credit system [30]. It the courts can compel her to do so. is also reasonable for the state to Against this, HMRC points out that the regard the way in which it delivers aim of the scheme is to reduce child support for children and families as a poverty. It is paid to the main carer separate issue from the way in which on the expectation that that person children spend their time [31]. It is incurs most of the expenditure in perhaps unfortunate that the courts looking after the child [25]. Splitting making orders about where children the CTC between two carers of modest are to live no longer have the power means could result in neither of them to make consequential orders about being able to provide for the childs benefit sharing, where appropriate needs [25]. [32]. However, the no-splitting rule is a reasonable rule for the state to Furthermore, splitting CTC on the adopt and the indirect discrimination basis of means would introduce in this case is justified [33]. administrative complexities and increase costs [25] . Finally, the NOTE Appellant is asking for an exception to be made to an otherwise justifiable This summary is provided to assist in rule. It has been previously established understanding the Courts decision. that generally justifiable rules are not It does not form part of the reasons unreasonable or without foundation for the decision. The full judgment merely because they result in hardship of the Court is the only authoritative in some cases [26]. document. The scheme in this case is geared towards reducing child poverty. The current definitions of child poverty rely upon household income, which means that targets will be easier to meet if support is given to single households rather than split [28]. However, the state is entitled to conclude that children will in fact be better off if Judgments are public documents and are available at: www.supremecourt.gov.uk/decidedcases/index.html
References in square brackets are to paragraphs in the judgment

This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html
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