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Issue 40,

January - March 2018

Supreme Court Gives Advisory Opinion


On Replacement Of Deputy Governors
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CONTENTS
» International Court Ruling: A Safe Climate
is a Human Right

| Pg 6
| Pg. 72 Procedure for Filling Vacancy in the
Some rights reserved by CIAT
Office of Deputy Governor
EDITORIAL TEAM
1. Editors Note 1
Editor/CEO
| Long’et Terer
2. CJ’s Message 2

Deputy CEO (Ag)
3. What they Said 4
| Monica Achode
4. Feature Case 6
Head of Law Reporting & 5. Cases 9
Council Secretary (Ag)
| Cornelius W. Lupao
6. Caseback 42

Senior Law Reporters 7. The Law Making Process in
| Linda Awuor | Njeri Githang’a Kamau |
| Andrew Halonyere | County Governments 43
Contributors 8. Legislative Updates 46
| Nelson Tunoi | Emma Kinya | Lisper Njeru |
| Teddy Musiga | Beryl Ikamari | Christian Ateka | 9. Legal Supplements 50
| Ruth Ndiko | Patricia Nasumba | Christine Thiong’o |
| Robai Nasike | John Ribia | Eunice Chelimo | 10. Law Reform Compilation 54
| Faith Wanjiku | Kevin Kakai | Musa Okumu |
11. Difference in Judicial
Publishing, Design and Layout Reasoning 62
| Catherine Moni | Josephine Mutie | Cicilian Mburunga |
| Robert Basweti |
12. International Court Ruling:A
Proofreaders Safe Climate is a Human Right 72
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
| Humphrey Khamala | 13. Tribute to the late
Hon. Justice J. L Onguto 74

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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.
Kenya Law Reports 2014 vols 1 - 4
& 1997
The Kenya Law Reports are designed for those who seek to
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The official Law Reports of Kenya


Members of the Council
for Kenya Law

The Hon. Mr Justice David K. Maraga, EGH


Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice Fatuma Sichale Mr Silvester Migwi
Judge of the Court of Appeal of Kenya Government Printer, Government Press
Represented by Eva Kimeiywo, Senior Printer
The Hon Justice Anthony Ndung’u
Judge of the High Court of Kenya Ms Janet Kimeu
Advocate, Law Society of Kenya
The Hon. Justice (Rtd) Paul Kihara Kariuki
Attorney General
Alt - Ms Linda Murila, Chief State Counsel Mr Michael Muchemi
Advocate, Law Society of Kenya
Prof Kiarie Mwaura
Dean, School of Law, University of Nairobi Mr Long’et Terer
Editor/CEO
Ms Jennifer Gitiri
Advocate & Public Officer,
Office of the Attorney General & DoJ

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

Ms Anne Amadi Mr Michael Sialai, EBS


Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Mr Henry Rotich, EGH
Cabinet Secretary, The National Treasury Ms Caroline Kigen
Represented by Mr Jona Wala Ag. Director, Financial Expert, The Judiciary
Accounting Services, National Treasury
BB Issue 40, January - March 2018

Editor’s Note
Long’et Terer
CEO/Editor

K
enya Law continues to play its very important role of developing jurisprudence
by effectively monitoring and reporting on judicial opinions that contribute to
the development of Kenya’s jurisprudence. The monitoring and reporting on
developments in jurisprudence is an indispensable undertaking for the proper
functioning of Kenya’s legal system as it plays an important role in identifying the beacons
of regularity that illuminate the path of judicial decision making in the determination of
contentious questions.

This edition features the advisory opinion on the replacement of Deputy Governors, a
contentious issue that was brought about by devolution. The Supreme Court, while exercising
its jurisdiction on advisory opinions made a determination on the procedure for appointment
of Deputy Governors once the position became vacant either by resignation, impeachment
or death in office. The opinion by the Supreme Court was timely following the death of Nyeri
County Governor Nderitu Gachagua, who has since been succeeded by his deputy, and the
resignation of the Deputy Governor for Nairobi County. In delivering its opinion, the court
was of the view that it was unconstitutionally inconceivable to have a vacuum in the office of
Deputy Governor until the next General Elections. However, the Supreme Court conceded
that the Constitution was silent on how to fill the position of Deputy Governor and called for
a reform of the law in that respect.

The Bulletin also highlights a precedent setting case from the High Court which held that
producers and suppliers of food products have an obligation to provide adequate labelling
on their products that indicate the ingredients, nutritional values, levels of allergens, storage
instructions etc as these would enable consumers to make informed choices and gain the
full benefit of these food products. The Court held that this ‘product information’ was to be
provided across all products of the producer even those that were targeted at the low cost
market. This in effect expands the consumers’ rights to information as anchored under the
Consumer Protection Act and the Constitution of Kenya, 2010.

As we begin the year with this edition of the Bulletin, we promise to continue staying true to
our promise of providing universal access to Kenya’s public legal information by monitoring
and reporting on the development of jurisprudence for the promotion of the rule of law.

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BB Issue 40, January - March 2018

CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya

Chief Justice’s Official Address at the Launch of The Programme


for Legal Aid and Empowerment (PLEAD), on 9th March 2018,
at Crowne Plaza, Nairobi

It gives me great pleasure to be here today, and to meet institutions and individuals who
are playing important roles in the administration of justice in Kenya. This event marks the
official launch of the Programme for Legal Empowerment and Aid Delivery (PLEAD). This is
undoubtedly a big and ambitious programme, especially when examined within the context
of its objectives, geographical reach, budget, number of institutions, and duration. It brings
together in partnership six (6) Government of Kenya institutions; two (2) UN agencies;
the European Union (EU); and numerous legal aid civil society actors. Today, we launch a
programme whose negotiations took four years to conclude but whose impact, I believe, will
be felt for generations to come. The novelty underpinning this programme, which links the
rule of law, economic deprivation and development, and marginalization, on the one hand;
and the depth and breadth of its activities focusing on justice sector reforms on the other, will
certainly make it a programme of immense consequence. All we need to do is to implement it
well so that the Kenyan citizen can benefit from the commitments of better service delivery
that the programme promises.
As I have mentioned, the negotiations for this programme started over four years ago.
Whereas we have waited this long, there is some ironic tinge of satisfaction in this delay. At
a time when the public sector is under fiscal strain, this support is most timely and greatly
welcome. It does not in any way discharge the Government of Kenya from putting in more
resources in the justice sector, but it does go a long way in complementing those efforts. The
primary responsibility of any government in financing the core functions of the security and
justice - remains just that: primary. These fundamental obligations of the state cannot be
substituted or waived simply because a generous development partner has come along. And,
therefore, as we embrace the EU for this generosity, we shall continue asking Parliament for
more resources for the justice sector. This is because government investment in the rule of
law is not only its recognition of an inherently good social value, but also an acknowledgment
of the direct link between the rule of law, economic development and political stability.
Almost for the last two decades, the justice sector has been undertaking wide-ranging
reforms in an attempt to render better services. The Governance, Justice, Law and Order
Sector reforms programme (GJLOS) was the first bold step at sector-wide justice reforms. It
made significant achievements, particularly with regard to institutional reforms. The lessons
from the GJLOS programme informed both the functioning of individual justice sector
agencies and also the design of those institutions in the new Constitution, 2010 - as well as
in the consequential Statutes. GJLOS, for example, demonstrated the need and imperative
for coordination in the justice sector, hence the establishment, by Statute in 2011, of the
National Council on the Administration of Justice
These reforms have continued apace, even after the promulgation of the new Constitution.
Indeed, virtually every justice sector institution has been on a constitutionally-engineered
reform mode, making advances in many areas and confronting challenges as they arise. In
the Judiciary, for example, we have had a successful Judiciary transformation programme

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BB Issue 40, January - March 2018

between 2012 -2016, and which continues to date under the blue print, Sustaining Judiciary
transformation: A Service Delivery Agenda. Similarly, the National Police Service, Office of
the Director of Public Prosecutions, Office of the Attorney General, Kenya Prisons Service,
Probation and Aftercare Services and many others have witnessed several reform initiatives.
This is commendable.
It is in this context that I want to thank the European Union for extending this support to the
six justice sector institutions – the Judiciary, the Office of the Director of Public Prosecutions,
Office of the Attorney General, the Witness Protection Agency, the Kenya Probation and
Aftercare Service, and the National Council on the Administration of Justice. At 34 million
Euros, and even though spread over 5 years, this is still a very substantial resource intervention
that will go a long way in improving on access to justice and strengthening of the rule of law.
The PLEAD programme’s focus on access to justice, especially in the historically marginalized
communities is novel and relevant. It aligns with the Judiciary’s SJT agenda of promotion of
access to justice which includes supporting pro-poor policies, establishing the Small Claims
Court, strengthening of the legal aid service, establishment of magistrates’ courts in all the
290 sub-counties, and support to pro se litigants. It has become clear that as we expand our
court presence in some of these communities, the need for legal aid has become more urgent.
This programme will therefore enable us offer judicial services to indigent litigants in a
manner consistent with the Constitution.
It is only when justice reaches the weak, and the rule of law protects the indigent, that we,
as a country, can say that our Constitution is living up to its juridical and developmental
promise of equality and equity. Therefore, a programme such as this one, which is designed
to enhance the capacity of the justice sector to address rule of law challenges that arise due to
social inequalities or poverty; and which subsequently hinder the realization of the national
and human development goals, is certainly an appropriate intervention.
The focus areas under this program are all very good. I am glad that part of the support will
be extended to the development of the Alternative Justice Systems, as well as supporting
committee work on criminal justice reform, bail and bond reforms, prison decongestion, legal
aid, and coordination and coherence in the justice sector. Whereas the programme is focusing
on 12 counties, the activities that it supports, especially those around criminal justice reform,
will go beyond these counties. I am also very happy that this support is extended to the NCAJ.
Coordination in the justice sector is paramount if we are to improve on the quality of service
in the justice sector. Justice is like a balanced diet, and if any of the agencies is not pulling
its weight, the justice outcomes still remain unhealthy for the public. Therefore, effective
justice health outcomes require effective coordination not just institution-specific reforms.
Indeed, the NCAJ needs to be strengthened and I wish to thank the Executive Director
Mr. Duncan Okello for the work he has done so far in setting up NCAJ institutionally and
programmatically, and with very limited financial and human resources. As Chairman of
NCAJ and Chief Justice I want to thank him for leading our negotiations that has yielded 10.1
million Euros. I want to state that the NCAJ will be strengthened even further in order for it
to perform its coordination functions more effectively under this programme. To this end,
the Judiciary has already identified office facilities to host the NCAJ Secretariat.
In conclusion, I wish to thank the EU, UNDP, UNODC and all NCAJ agencies and civil
society organizations for making this a successful project at a conceptual level. The challenge
is to make it even a better success in its implementation. I want to appeal to you to focus
on the delivery rather than on time wasting bureaucratic processes and fights that only
delay implementation of programmes so badly needed by the public. As you roll out the
PLEAD programme, you can count on my support as Chief Justice, Head of the Judiciary and
Chairman of the National Council on the Administration of Justice.

Hon. Justice David K. Maraga,


EGH Chief Justice & President Supreme Court of Kenya

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What they said


Where a vacancy occurs in the Office of the Deputy County Governor,
the Governor shall within fourteen days, nominate a person to fill
such vacancy. The County Assembly shall vote on the nomination
within sixty days after receiving it. Where a vacancy occurs in both
the offices of County Governor and Deputy County Governor at the
same time, the office of the Deputy County Governor shall remain
vacant until the election of a new Governor. The new Governor shall
nominate a person to fill the vacancy within fourteen days after assuming
office. The County Assembly shall vote on the nomination within sixty
days after receiving it”.
Supreme Court Judges – M K Ibrahim, J B Ojwang, S C Wanjala, S. N Ndung’u & I Lenaola, SCJJ
- In re Speaker, County Assembly of Embu - Reference 1 of 2015


However, it is altruism that the guilt of an accused person can be
proved by either direct or circumstantial evidence. Circumstantial
evidence is evidence, which enables a court to deduce a particular
fact from circumstances or facts that have been proved. Such
evidence can form as strong a basis for proving the guilt of an
accused person just like direct evidence.”
Court of Appeal Judges – P Kihara Kariuki, PCA, K M’Inoti & A K Murgor, JJ A in Ahamad
Abolfathi Mohammed & another v Republic - Criminal Appeal 135 of 2016


… providing information to consumers, on ingredients, nutrition
claims and declaration of potential allergens as well as nutrition
or health claims, food warnings and labels inform consumption by
enabling consumers to make informed decisions. Under Article 46,
nutritional information provided on labels should be truthful and
must not mislead consumers.”
High Court Judge – J L Onguto, J in Mark Ndumia Ndung’u v Nairobi Bottlers Ltd & another


- Petition 325 of 2015

The right to development is therefore an integral part of fundamental


human rights. The community ordinarily residing on the suit land
are entitled to enjoy this right.” In order to achieve remarkable
progress towards implementation of the right to development, there
is a need to have effective development policies and programmes.”
High Court Judge – L N Mbugua, J in County Government of Meru & another v District Land
Adjudication and Settlement Officer Tigania East Sub-County & 18 others - Petition 7 of 2017

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It is a constitutional imperative that a person was born in Kenya and
at the time of birth at least one of his parents is a Kenya citizen, the
person enjoys citizenship by birth in terms of Article 14 (1). Such
citizenship cannot be revoked or lost under any circumstances.
Article 12 (1) of the Constitution provides that every citizen is
entitled to the rights, privileges’ and benefits of citizenship, subject
to the limits provided or permitted by the Constitution, and a Kenya
passport and any other document of registration or identification issued
by the State to citizens. A passport or other documents referred to in
clause (1) (b) of Article 14 may only be denied, suspended or confiscated in
accordance with an Act of Parliament that satisfies the criteria mentioned
in Article 24.”
High Court Judge – J M Mativo, J in E W A & 2 others v Director of Immigration and Registration


of Persons & another - Petition 352 of 2016

Indeed referring to any child as illegitimate in this day and age


appears to be outrageous. However, as long as the estate herein
belongs to a deceased Muslim and as long as Article 24(4) remains
in our Constitution and further as long as Section 2(3) remains in
the Law of Succession Act, the Court’s hands are tied. In any other
circumstances, the Court would not require elaborate persuasion to
find in favour of the Applicants.”


High Court Judge – J M Mativo, J in In re Estate of CCBH (Deceased) - Succession 436 of 2004

Statutory Forms that are not signed by the said officers are but
worthless pieces of paper whose contents would not count in the
final tally of results. It is the signing of those statutory forms by
the said officers that gives the forms credence and make the results
therein accountable and verifiable. Failure to sign a statutory
form is not a mere error, it is a grave irregularity that destroys the
credibility and authenticity of the results contained therein.”
High Court Judge – A Mabeya, J in Ahmed Abdullahi Mohamad & another v Mohamed Abdi


Mohamed & 2 others- Election Petition 14 of 2017
Auctioneers are human beings. They carry out business just like any
other person for purposes of earning a living. They are in private
business as opposed to public engagement. Although they serve
clients, theirs is private business which they do as individuals. The
fact that they should retire on attaining the age of 70 was not based
on any sound legal logic. They have offices, staff and clientele to
serve. They are in private business and not public. They earn what they
make in their private business. I do not therefore see any justification to
require them to fold their businesses simply because they have attained the
age of 70 years.”
High Court Judge – E C Mwita, J in Josephat Musila Mutual & 9 others v Attorney General & 3
others - Petition 120 of 2017

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BB Issue 40, January - March 2018

Feature Case

Procedure for Filling Vacancy in the Office of Deputy Governor


In re Speaker, County Assembly of Embu
Reference No 1 of 2015
Supreme Court at Nairobi
March 9, 2018
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu & I Lenaola, SCJJ
Reported by: Long’et Terer

O
n January 28, 2014, the Embu County iv. The timelines applicable to the
Assembly approved an impeachment assumption of the Office of Governor
motion against the Embu Governor after the impeachment of the
and forwarded the resolution to the Senate Governor.
for approval. The Governor successfully After unsuccessfully seeking advice from
challenged the impeachment proceedings the Independent Electoral and Boundaries
and obtained a judgment from the High Commission and the Attorney General,
Court which was affirmed at the Court the Applicant filed a reference seeking the
of Appeal. The judgment did not bar the Supreme Court’s advisory opinion. The
County Assembly or Senate from conducting applicant submitted that the matter did not
future impeachment proceedings provided replicate the High Court petition; and that all
that those proceedings were conducted in it did was to seek guidance on specific grey
accordance with the law. areas in the law, for the purpose of guiding
In April 2014, fresh impeachment the functioning of the constitutional sphere
proceedings were commenced against the of devolved government.
Governor. On May 13, 2014, the Speaker The Court was of the view that the Reference
of the Senate published Gazette Notice met the constitutional threshold for the
No. 3222 of 2014, which contained the exercise of the Supreme Court’s Advisory-
Senate’s decision to impeach the Governor. Opinion jurisdiction under Article 163(6)
The impeached Governor went to the High of the Constitution. This was first of all
Court to challenge the constitutionality of because it was a matter concerning a County
his impeachment. Government; secondly, the applicant being
The Applicant, the Speaker of the County the Speaker of Embu County, his office
Assembly of Embu, sought advice on the was a state organ under Article 178 of the
following issues: Constitution; thirdly, the issues raised were
not a subject of proceedings in a lower Court;
i. assumption of Office of Governor
and fourthly, the applicant had sought an
by the Deputy Governor after the
opinion from the Office of Attorney-General,
impeachment of the Governor,
ii. how the oath for assumption of office but to no avail. The Court went on further to
would be administered, agree with the parties that the issues raised
iii. the filling of the vacancy in the Office in the Reference were also of great public
of the Deputy Governor after the importance, especially at the time when the
Deputy Governor assumed the Office Country had recently held a general election
of Governor and In its consideration of Article 182 of the

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BB Issue 40, January - March 2018

Constitution, the court found that the with Section 32 of the County Government
Constitution had contemplated certain Act, the Deputy County Governor was the
scenarios, when a vacancy in the office of the Deputy Chief Executive of the County; was a
Governor may occur: first, where the office member of the County Executive Committee;
of the Governor falls vacant, and the Deputy and acted as the County Governor, in the
Governor assumes that office; secondly, where absence of the Governor. So crucial were
a vacancy occurs in both the office of County these roles to the operations of County
Governor and that of Deputy Governor, and Government that it was inconceivable that,
the Speaker of the County Assembly assumes constitutionally, they could remain fallow
office as Governor for a period of 60 days, until the next cycle of a general election. The
within which an election to that office is to Court was therefore, of the opinion that the
be held; thirdly, where a vacancy occurs in office of Deputy County Governor ought
the office of the Governor, and the Deputy not to remain vacant until the next general
Governor is unable to hold that office in an election. A differing interpretation to this, in
acting capacity. In such an eventuality, the the eyes of the Court would be inconsistent
Speaker of the County Assembly assumed with the vital objects of the Constitution,
office and acted as Governor for a period which had to be upheld.
of 60 days, during which time an election
The Court adopted its observations in earlier
to the office of Governor was to be held.
advisory opinions, regarding the requisite
Based on this, it emerged that Article 182(2)
approach to constitutional interpretation,
of the Constitution created a pecking order
in view of the provisions of Article 259
whereby, if a vacancy in the office of the
of the Constitution which provides that:
Governor occurred, the first to take over was
“Every provision of this Constitution shall
the Deputy Governor, and in his absence, the
be construed according to the doctrine of
Speaker of the County Assembly takes up
interpretation that the law is always speaking.”
the position for a limited period of 60 days,
This principle, the court averred called for a
pending the conduct of an election. The court
reading of Article 182 of the Constitution
however recognized that the Constitution
alongside Article 149, which made provision
was silent on how to fill the position of the
for the procedure and timelines for filling a
Deputy Governor, in the event of a vacancy
vacancy in the Office of the Deputy President.
occurring.
From the signal embodied in Article 149 of
In its determination, the Court was of the the Constitution, and in the absence of any
view that the Office of Governor and that of applicable legislative provision, the Court
Deputy Governor were so intimately linked, held that the following procedure would be
that the latter is dependent upon the election followed:
of Governor. This is as per the Constitution i. Where a vacancy occurs in the Office
as an incoming Deputy Governor was to be of the Deputy County Governor,
nominated by a person vying for the position the Governor shall within fourteen
of County Governor; and upon the candidate days, nominate a person to fill such
for Governor being elected in that position, vacancy.
the IEBC declared the nominee as Deputy ii. The County Assembly shall vote on
Governor, in accordance with the provisions the nomination within sixty days
of Article 180(5) and (6). after receiving it.
iii. Where a vacancy occurs in both the
Further, the Court went on to explain that the offices of County Governor and
Constitution also expressly dispensed with Deputy County Governor at the same
the detached election for a Deputy Governor time, the office of the Deputy County
who assumed office upon the election of the Governor shall remain vacant until
Governor that nominated him or her, hence the election of a new Governor.
the supposition that, the Constitution did iv. The new Governor shall nominate
not contemplate the filling of a vacancy in a person to fill the vacancy within
the office of Deputy Governor through a fourteen days after assuming office.
direct election to that office. v. The County Assembly shall vote on
the nomination within sixty days
Under the provisions of Article 179(1), (4)
after receiving it.
and (5) of the Constitution, as read together

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BB Issue 40, January - March 2018

For the avoidance of doubt, the Court or under an Act of Parliament.” And “The
stated that the holding shall obtain in all Governor shall take and subscribe to the
circumstances pursuant to which the Office oath or affirmation as set out in the Schedule
of the Deputy Governor may become vacant to this Act before assuming office.”
as contemplated by the Constitution, i.e.
The Court therefore held that the provisions
death, resignation or impeachment.
of article 74 of the Constitution and section
As regards the administration of the oath 30 of the County Government Act were
of office to a Deputy County Governor applicable to a Deputy County Governor
who assumed office under Article 182(2) who assumed the Office of Governor under
of the Constitution, the court relied on the article 182(2) of the Constitution. The new
provisions of Article 74 of the Constitution Governor would take and subscribe to the
and section 30(1) of the County Government oath or affirmation set out in the Schedule
Act which provides respectively that “Before to the County Government Act before
assuming a State office, acting in a State assuming office.
office, or performing any functions of a State
office, a person shall take and subscribe the
oath or affirmation of office, in the manner
and form prescribed by the Third Schedule

“No nation has the right to make decisions for another nation; no people for another people”--
Julius Nyerere

Some rights reserved by George Lamson

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BB Issue 40, January - March 2018

Supreme Court
Extent to Which Courts can Interfere with Parliamentary Processes
which are in Actual Progress
Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017]eKLR
Petition 32 of 2014
Supreme Court of Kenya
December 15, 2017
M Ibrahim, J B Ojwang, S Wanjala, N S Ndung’u & I Lenaola, SCJJ
Reported by Ribia John
Constitutional Law – separation of powers there existed standing orders that guided the
– where legislative processes and outcomes are functioning of the legislature and ensured the
challenged in Court - principles applicable to execution of constitutional timelines - whether
the doctrine of separation of powers in Kenya’s constitutional timelines were mandatory or could
constitutional democracy - whether Courts could be altered by the Courts - whether timelines set
interfere with Parliamentary processes which by standing orders that guided the constitutional
were in actual progress functioning of the legislature were of the same
nature as constitutional timelines – County
Jurisdiction – jurisdiction of the Supreme
Government Act section 33(3); County Assembly
Court – appellate jurisdiction of the Supreme
of Embu Standing Orders, standing order 61
Court – appeals as of right in cases involving the
interpretation or application of the Constitution Brief Facts
- whether the Supreme Court had the jurisdiction
The Embu County Assembly and the
under article 163(4)(a) of the Constitution to
Senate impeached the 1st Respondent who
determine an appeal that challenged the issuance
had been elected as the County Governor
of conservatory orders that estopped the removal
for Embu County. The High Court had
of a County Governor by a County Assembly
issued conservatory orders dated January
and the Senate by the High Court and the Court
23, 2014 and February 3, 2014, to prevent
of Appeal – Constitution of Kenya, 2010 article
the impeachment of the Governor but
163(4)(a)
the impeachment, which caused the 1st
Constitutional Law - County Government Respondent’s removal from office, was still
- removal of a County Governor from office - done.
impeachment of a County Governor via a decision
The 1st Respondent challenged the
of a County Assembly and the Senate - where
impeachment and made an application before
impeachment proceedings had been estopped
the High Court that sought interim orders
by the High Court – where the impeachment
for his reinstatement into office and an order
proceedings were carried out in contempt of the
of contempt of Court against the Appellants
orders of the High Court - whether courts had the
for allowing an impeachment motion to be
jurisdiction to adjudicate over the constitutional
discussed and passed. The 1st Respondent
function of impeachment that was vested in a
was successful in his application; the Court
County Assembly - what was the tenability orders
held that all proceedings conducted in
from Courts of law that directly abrogated the
disobedience of the Court orders were null
discharge of constitutional legislative processes -
of void and found the Appellants guilty
whether conservatory orders that were issued to
of contempt. Aggrieved by the decision,
effect the reinstatement of a County Governor
the Appellants filed an Appeal at Court of
who had been removed from office, pending
Appeal that challenged the findings of the
the hearing of a petition which questioned the
High Court; however the Court of Appeal
removal of the Governor from office could be
affirmed the findings of the High Court.
sustained - Constitution of Kenya 2010 articles
165(3)(d); County Government Act section 33. Aggrieved by the decision of the Court
of Appeal, the Appellants filed the instant
Constitutional Law – constitutional timelines
appeal on grounds that the orders of the
– nature of constitutional timelines - where

9
BB Issue 40, January - March 2018

High Court and the Court of Appeal in the Relevant Provisions of the Law
instant matter offended articles 159, 174 and Constitution of Kenya, 2010
175 of the Constitution which touched on Article 165(3)(d)
the doctrine of separation of powers. They (3) Subject to clause (5), the High Court shall
contended that where the High Court had have—
power under article 165 of the Constitution (d) jurisdiction to hear any question respecting
to exercise supervisory jurisdiction over the interpretation of this Constitution including
the actions of State organs, that power did the determination of—
not extend to interfering with the ongoing
i. the question whether any law is
processes before such State organs. They
inconsistent with or in contravention of
also contended that the Appellate Court
this Constitution;
was in error in holding that the Appellants
ii. the question whether anything said
had failed to apply the Assembly Standing to be done under the authority of
Orders to curtail debate for the law expressly this Constitution or of any law is
vested the power to determine the import inconsistent with, or in contravention
and the application of standing orders in of, this Constitution;
the Speaker, and that the Speaker exercised iii. any matter relating to constitutional
that in line with the doctrine of separation powers of State organs in respect of
of powers. County Governments and any matter
Issues relating to the constitutional relationship
between the levels of government; and
i. What were the principles applicable to
iv. a question relating to conflict of laws
the doctrine of separation of powers in
under Article 191
Kenya’s constitutional democracy?
Article 163(4)(a)
ii. Whether Courts could interfere with
Parliamentary processes which were in (4) Appeals shall lie from the Court of Appeal to
actual progress the Supreme Court—
iii. Whether the Supreme Court had the (a) as of right in any case involving the
jurisdiction under article 163(4)(a) interpretation or application of this Constitution;
of the Constitution to determine an
appeal that challenged the issuance of County Governments Act
conservatory orders that estopped the Removal of a governor
removal of a County Governor by a (1) A member of the county assembly may by
County Assembly and the Senate by the notice to the speaker, supported by at least a
High Court and the Court of Appeal third of all the members, move a motion for the
iv. Whether conservatory orders that removal of the governor under Article 181 of the
were issued to effect the reinstatement Constitution.
of a County Governor who had been
removed from office, pending the (2) If a motion under subsection (1) is supported
hearing of a petition which questioned by at least two-thirds of all the members of the
the removal of the Governor from office county assembly—
could be sustained. (a) the speaker of the county assembly shall inform
v. What was the tenability orders from the Speaker of the Senate of that resolution within
Courts of law that directly abrogated the two days; and
discharge of constitutional legislative
processes (b) the governor shall continue to perform the
vi. Whether courts had the jurisdiction functions of the office pending the outcome of the
to adjudicate over the constitutional proceedings required by this section.
function of impeachment that was (3) Within seven days after receiving notice
vested in a County Assembly. of a resolution from the speaker of the county
vii. Whether constitutional timelines were assembly—
mandatory or could be altered by the
Courts. (a) the Speaker of the Senate shall convene a
viii. Whether timelines set by standing meeting of the Senate to hear charges against the
orders that guided the constitutional governor; and
functioning of the legislature were of the
(b) the Senate, by resolution, may appoint a special
same nature as constitutional timelines.

10
BB Issue 40, January - March 2018

committee comprising eleven of its members to Government were vital principles.


investigate the matter. The Constitution dispersed powers
(4) A special committee appointed under among various constitutional organs.
subsection (3)(b) shall— Where it was alleged that any of those
organs had failed to act in accordance
(a) investigate the matter; and with the Constitution, then the Courts
(b) report to the Senate within ten days on whether were empowered by article 165 (3)(d)
it finds the particulars of the allegations against (ii) of the Constitution to determine
the governor to have been substantiated. whether anything said to be done under
the authority of the Constitution or of
(5) The governor shall have the right to appear
any law was inconsistent with, or in
and be represented before the special committee
contravention of the Constitution.
during its investigations.
3. No arm of Government was above the law.
(6) If the special committee reports that the Kenya’s democracy being a constitutional
particulars of any allegation against the democracy, the Constitution was the
governor— guiding light for the operations of all
(a) have not been substantiated, further State Organs. The Court’s mandate,
proceedings shall not be taken under this section where it applied, was for the purpose of
in respect of that allegation; or averting any real danger of constitutional
violation.
(b) have been substantiated, the Senate shall, 4. As regards to separation of powers, the
after according the governor an opportunity to be following principles applied to Kenya;
heard, vote on the impeachment charges. a) each arm of Government had
(7) If a majority of all the members of the Senate an obligation to recognize the
vote to uphold any impeachment charge, the independence of other arms of
governor shall cease to hold office. Government;
b) each arm of Government was under
(8) If a vote in the Senate fails to result in the duty to refrain from directing another
removal of the governor, the Speaker of the Organ on how to exercise its mandate;
Senate shall notify the speaker of the concerned c) the Courts of law were the proper judge
county assembly accordingly and the motion by of compliance with constitutional
the assembly for the removal of the governor on edict, for all public agencies; but
the same charges may only be re-introduced to that was attended with the duty of
the Senate on the expiry of three months from the objectivity and specificity, in the
date of such vote. exercise of judgment;
(9) The procedure for the removal of the President d) for the due functioning of
on grounds of incapacity under Article 144 of constitutional governance, the
the Constitution shall apply, with necessary Courts was to be guided by restraint,
modifications, to the removal of a governor. limiting themselves to intervention in
requisite instances, upon appreciating
(10) A vacancy in the office of the governor or
the prevailing circumstances, and the
deputy governor arising under this section shall
objective needs and public interests
be filled in the manner provided for by Article 182
attending each case;
of the Constitution.
e) in the performance of the respective
Held functions, every arm of Government
1. An expansive scope to the concept of was subject to the law.
interpretation and application of the 5. The effective Court strived to persuade,
Constitution grasped different issues of and not to pontificate. It spoke a
law such as contempt orders. The law moderate and restrained voice, engaging
of contempt of Court could hardly be in a dialogue with, not a diatribe against,
screened from the grasp of interpretation co-equal departments of government,
and application of the Constitution. state authorities, and even fellow Courts.
2. The limits on judicial authority and 6. The constitutional mandate to impeach
the Constitution’s design of entrusting a Governor was duly assigned to the
certain issues to other organs of County Assembly and the Senate.

11
BB Issue 40, January - March 2018

Article 181 of the Constitution defined had to consider the uniqueness of the
the circumstances under which a instant case, which was embodied in the
county Governor may be removed express terms of a comprehensive, newly-
from office, article 181(2) specifically formulated constitutional document:
provided that Parliament would enact especially the fact that it bore express
legislation providing for the procedure terms on the separation of powers.
of removal of a Governor. In line with 10. Interpretation of the Constitution called
article 181(2), Parliament enacted the for a delicate balance in the respective
County Governments Act which, at mandates of the different arms of
section 33, provided for the procedure government. While such refinements in
for removal of a Governor. The detailed the reserved governmental mandates had
mode of discharge of County Assembly not elicited focussed assessment at the
business was not defined in the section High Court, ex-parte conservatory orders
33, but it was provided in the Standing were made: the effect being to hamstring
Orders. Standing order 61 of the County the due performance of the constitutional
Assembly of Embu Standing Orders mandate of the County Assembly.
provided for the mode of the removal of Notwithstanding the conventional
the Governor. judicial perception of ultimacy in judicial
7. A constitutional mandate, which orders, the question that remained was
embodied the remit of impeachment, the tenability of such Orders that directly
vested in a County Assembly. From the abrogated the discharge of commanded
facts of the instant case, it had not been legislative-agency process.
represented that the Speaker or the 11. The integrity of Court Orders stood
Clerk of the County Assembly bypassed to be evaluated in terms of their inner
any of the procedural steps applicable restraint, where the express terms of the
to impeachment proceedings. It was Constitution allocated specific mandates
a fact that a motion for impeachment and functions to designated agencies of
of the Embu Governor was moved the State. Such restraint, in the context
on January 16, 2014. Since then, in of express mandate-allocation under
accordance with standing order 61, the Constitution, was essential, as a
discussion upon the motion was to take scheme for circumventing conflict and
place upon the expiry of seven days, the crisis, in the discharge of governmental
matter being disposed of within three responsibility. No governmental agency
days. The relevant Standing Orders were was to encumber another to stall the
silent, on notification to the Governor constitutional motions of the other. The
of such a call for impeachment (though best practices signalled that the judicial
there were provisions for an impeached organ had to practice the greatest care, in
Governor to be heard in Senate). The determining the merits of each case.
said Standing Orders bore no provision 12. Timelines of the Constitution were of
on how the Governor was to participate mandatory character, even where Court
in the process, or defend himself before process itself was the subject. Expressly
the County Assembly. Such a procedural prescribed constitutional time-frames
setting, however, was not challenged, were binding on the governance processes
even though a conservatory Order was in place. Even though precedent on the
issued stopping a County Assembly from mandatory nature of constitutional
performing its prescribed constitutional timelines were drawn only from the
mandate. Constitution’s scheme of electoral justice,
8. The Court’s word was the people’s the precedents nonetheless bore a wider
solemn edict calling for obedience; but signal, regarding time, as it was to direct
it was precisely the sanctity of that word the various agencies of the State.
that dictated utmost care, focus and 13. A seven-day time-frame was provided
assiduity, in the Court’s undertaking. for in standing order 61 of the County
9. While the Supreme Court’s bore its mind Assembly of Embu Standing Orders.
on the precious caution for sustaining Standing orders, all by themselves, by
judicial authority, the Supreme Court no means rested at the direct level of the

12
BB Issue 40, January - March 2018

Constitution, or indeed, the statute law. scope for the deployment of the Court’s
Even though standing orders guided conservatory Orders more particularly
the constitutional functioning of the without first hearing the Petitioners.
legislature, it was necessary to consider 16. The exceptional circumstance of the
their constitutionality or otherwise. instant case, with a complex scenario
14. However, the standing orders, the of justiciabilities from contrasted
individual merits of which were not standpoints, would lend justification to
contested, could be said to be properly the non-effectuation of contempt orders
coalesced in the constitutional scheme at the beginning; and consequently, as
of legislative functions, and thus, to would be otherwise required, the reality
constitute an organic framework for the of there not having been immediate
legislative agency’s operations, on the compliance could be accommodated by
basis of all available information. the Supreme Court.
15. The effect was that, a methodical and Appeal allowed.
conscientious inquiry would show the
Orders:
County Assembly to have been operating i. Conservatory Orders issued on January 23,
quite properly, within the constitutional 2014 in Kerugoya Petition No. 3 of 2014
scheme of devolution, and running its (formerly Embu Petition No. 1 of 2014),
legislative processes within the ordinary were annulled.
safeguards of the separation of powers ii. The judgment and order of the Court of
and consequently, quite legitimately Appeal delivered on September 30, 2014 in
outside the path of the ordinary motions Civil Appeal No. 24 of 2014 was set aside.
of the judicial arm of State. On that iii. Each party was to bear its own cost.
basis, there would have been hardly any

“A house should not be built so close to another that a chicken from one can lay an egg in the
neighbor’s yard, nor so far away that a child cannot shout to the yard of his neighbor” --
Julius Nyerere

Some rights reserved by George Lamson

13
BB Issue 40, January - March 2018

Court of Appeal
The Definition of an Explosive Under the Explosives Act Includes
Substances Which Can Only explode with the use of a Stimulus
Ahamad Abolfathi Mohammed & another v Republic
Criminal Appeal No 135 of 2016
Court of Appeal at Nairobi
January 26, 2018
P Kihara Kariuki, PCA, K M’Inoti & A K Murgor, JJ A
Reported by Beryl A Ikamari
Statutes-interpretation of statutory provisions- that the information was a confession taken in
explosives-meaning of the term “explosive”- the prescribed form and before the prescribed
scope of the definition of an explosive under the authority or persons-Evidence Act (Cap 80),
Explosives Act-whether a substance which could sections 25A & 31; Criminal Law (Amendment)
only explode with the use of a stimulant was an Act, No 5 of 2003, section 102.
explosive-whether cyclotrimethylene trinitramine
Criminal Law-sentencing-principles applicable
(RDX) was an explosive-Explosives Act, (Cap
to sentencing-improper sentencing-circumstances
115), section 2.
under which an Appellate Court would interfere
Criminal Law-possession-unlawful possession- with the discretion of a Trial Court to impose
nature of conduct that would amount to unlawful a sentence on an Accused-imposition of one
possession-whether allegations that accused omnibus sentence for three different counts and
persons had an explosive placed on a golf course failure to take into account the period already
for purposes of causing harm, showed that spent in custody-Criminal Procedure Code (Cap
the accused persons were in possession of the 75), sections 33(2) & 361(1)(a).
explosive-Penal Code (Cap 63), section 4.
Brief facts
Constitutional Law-fundamental rights and
The Appellants were citizens of Iran who
freedoms-enforcement of fundamental rights
came to Kenya on June 12, 2012 on tourist/
and freedoms-fair trial-extraction of evidence
holiday visas which were valid for two
allegedly by means of torture and refusal to avail
weeks. They were intercepted and arrested
an intelligence report relied on to arrest accused
by officers from the Anti-Terrorism Police
persons-requirements relating to proof of claims
Unit, who said that the Appellants were in
of extraction of evidence by means of torture and
Kenya on a terroirst mission. They were
whether such claims could be made at an Appellate
accused of putting an explosive substance
Court in the first instance-extent of an accused’s
Cyclotrimethylene trinitramine (RDX) at
right to access evidence within the prosecution’s
Mombasa Golf Course along Mama Ngina
possession-Constitution of Kenya 2010, articles
Drive in Mombasa County.
50(4) & 50(2)(j).
The Appellants were charged before the
Evidence Law-circumstantial evidence-
Chief Magistrate’s Court, Nairobi with
probative value of circumstantial evidence-
three offences. First, they were charged with
criteria to be met in order for circumstantial
committing an act intended to cause grievous
evidence to sustain a conviction-where it was
harm contrary to section 231 of the Penal
shown that there were co-existing circumstances
Code. Secondly, they were charged with
that weakened or destroyed the inference of guilt.
preparing to commit a felony contrary to
Evidence Law-admissibility-confessions- section 308(1) of the Penal Code and thirdly,
nature of evidence that constituted a confession- they were charged with being in possession
admissibility of evidence which was discovered of explosives contrary to section 29 of the
after an Accused person gave information- Explosives Act.
effect of improper admission of evidence-where
The evidence against the Appellants was
an Accused gave information leading to the
circumstantial as there was no direct
discovery of evidence and it was not shown
evidence of them being in possession of

14
BB Issue 40, January - March 2018

RDX or placing it on the golf course. The with the aim of producing a practical
Trial Court convicted the Appellants on effect by explosion. The evidence
all three counts and sentenced them to of the Government Chemist, PW16
life imprisonment for the first count, ten indicated the RDX was a blasting
years imprisonment for the second count powder. The mere fact that RDX
and fifteen years imprisonment for the required a detonator or stimulus
third count, all the sentences were to run in order to explode did not take it
concurrently. On appeal at the High Court, outside the definition of an explosive.
the sentence was reduced to a consolidated 3. Under section 2(b) of the Explosives
sentence of 15 years imprisonment. The Act, a fuse or detonator was within
Appellants preferred a second appeal at the the meaning of an explosive even
Court of Appeal. though it amounted to a mere igniter.
If a fuse or detonator, whose purpose
Issues
was to ignite a substance and cause
i. Whether under the terms of the it to explode, was an explosive, even
Explosives Act, cyclotrimethylene the substance that would explode was
trinitramine (RDX) was an explosive, an explosive. Neither gunpowder nor
given that it could not explode dynamite could explode or detonate
without the use of a stimulus to ignite on its own but the Explosives Act
it. defined it as an explosive. Gunpowder
ii. Whether there was evidence that required an igniting or compressing
the Appellants were unlawfully in agent while dynamite required a
possession of RDX. blasting cap to cause an explosion.
iii. Whether the Appellants’ right to a 4. Section 4 of the Penal Code defined
fair trial was violated by the State in possession. Under the definition,
that evidence was allegedly extracted possession included having anything
by means of torture and there was a (whether belonging to or occupied by
failure to avail an intelligence report oneself or not) for the use or benefit
which was relied on to arrest the of oneself or of any other person.
Appellants. 5. Being in possession of RDX did not
iv. Whether the circumstantial evidence require the Appellants to be in actual,
tendered was sufficient to support personal physical possession of it.
the conviction. It only required evidence that they
v. What were the principles applicable knowingly had RDX at the golf course
to sentencing and when would an for their use or any other person.
Appellate Court interfere with a 6. The right to a fair trial was
lower Court’s sentence? guaranteed under the Constitution.
Held Part of the right to a fair trial under
1. Under section 361(1)(a) of the article 50(2)(j) was the right to be
Criminal Procedure Code, on a informed in advance of the evidence
second appeal, the Court was obliged the prosecution intended to rely on
to consider only issues of law. It is an and to have reasonable access to that
established principle that where two evidence.
Courts (the Trial Court and the first 7. The record indicated that the
Appellate Court) made concurrent Appellants were availed all the
findings of fact, the Court is obliged to statements of the prosecution
respect the findings unless the Court witnesses before those witnesses
was satisfied that the conclusions are testified. They also had access to the
not supported by the evidence or are exhibits that were produced. What
based on a perversion of the evidence. they complained about was that they
2. Section 2 of the Explosives Act were not given the intelligence report
defined the term “explosive.” From which led to their arrest for suspicion
the definition, an explosive included of involvement in terrorism acts.
any blasting powder or substance 8. The Appellants were entitled to
which was used or manufactured evidence that the police intended to

15
BB Issue 40, January - March 2018

rely on the trial and any evidence in for a conviction had to satisfy several
the possession of the police that could conditions, namely;
exonerate them from the charges they a) The circumstances from which
were facing, even though the police the inference of guilt was to
did not intend to use that evidence. be drawn had to established
9. The right to access evidence that the cogently and firmly;
police intended to rely on was not b) The circumstances had to
totally unfettered; it was qualified by unerringly point towards the
the constitutional requirement that guilt of the Accused;
access ought to be reasonable and it c) The circumstances, taken
depended on the circumstances of cumulatively, ought to form a
each case. chain so complete that there was
10. The Appellant’s right to a fair trial no escape from the conclusion
under article 50(2)(j) was not violated. that within all human probability
All the evidence that the prosecution the crime was committed by the
produced in support of its case was Accused and none else; and,
availed in advance to the Appellants. d) The prosecution had to establish
11. Under article 50(4) of the Constitution that there were no other co-
evidence obtained in a manner that existing circumstances which
violated a fundamental freedom would weaken or destroy the
or right in the Bill of rights had to inference of guilt.
be excluded if the admission of the 16. From the evidence on record, the golf
evidence would render the trial unfair course was not fenced or guarded and
or would otherwise be detrimental to it was possible for any member of the
the administration of justice. The 1st public to enter it and place the RDX
Appellant made a claim that evidence where it was found. In the absence
was obtained from him by means of of any other circumstantial evidence
torture. tying or linking the Appellants to
12. The claim of torture was not made the RDX, the easy accessibility,
when the 1st Appellant appeared without let or hindrance, of the golf
before the Trial Court and he would course showed strong co-existing
reasonably be expected to have made circumstances that were capable of
the claim then. There was nothing destroying the inference of guilt on
on record to substantiate the torture the part of the Appellants.
claims. Establishing torture required 17. Evidence showed that the Appellants
cogent evidence. had special knowledge of the existence
13. The evidence of the Appellant’s and concealment of the RDX on the
possession of RDX was purely golf course. The Appellants led the
circumstantial because no witness saw police to the place where the RDX was
them in possession of the substance found on the golf course. The Trial
or placing it on the golf course. The Court and the first Appellate Court
evidence of PW 7, the taxi driver and found that the evidence with regards
PW 14, the golfer at Mombasa Golf to the RDX voided the possibility
Club, indicated that the Appellants of other co-existing circumstances
were at the golf course, but were not capable of destroying the inference
in physical possession of any luggage of guilt on the Appellant’s part.
or parcel. 18. Section 25A of the Evidence Act made
14. Circumstantial evidence is evidence, confessions inadmissible unless they
which enables a court to deduce a were made in Court. Section 102
particular fact from circumstances of the Criminal Law (Amendment)
or facts that have been proved. Such Act, 2003, which repealed section
evidence can form as strong a basis 31 of the Evidence Act provided that
for proving the guilt of an accused information from an Accused person
person just like direct evidence. leading to the discovery of evidence
15. Circumstantial evidence as a basis was not admissible. Additionally,

16
BB Issue 40, January - March 2018

the Statute Law (Miscellaneous for which he had not been convicted
Amendments) Act, 2007, allowed or permit the making of prejudicial
confessions to be made before a statements meant to influence the
judge, a magistrate or a police officer severity of a sentence.
(other than an investigating officer), 24. On two grounds the first Appellate
being an officer not below the rank of Court could be faulted with regard
Chief Inspector of Police, and a third to sentencing. First, it imposed
party of the suspect’s choice. an omnibus sentence for all three
19. It was never the prosecution’s case counts. The Appellants were entitled
that the Appellants had confessed to to be sentenced separately for each
committing the offences that they count. However, the Appellants did
were charged with. Accordingly, the not raise an issue concerning the
Trial Court and first Appellate Court omnibus sentence. The second was
erred in admitting the evidence which the failure of the Appellate Court to
led to the discovery of the RDX. take into account in a meaningful
20. The Trial Court erred in sentencing way, the period that the Appellants
the Appellants to 15 years had already spent in custody.
imprisonment for an offence for 25. Under section 333(2) of the Criminal
which the maximum prescribed Procedure Code, in sentencing, the
sentence was 7 years imprisonment Court would take into account the
but that was not evidence of judicial period already spent in custody
bias. It was an error which was by an Accused person. Taking that
eventually corrected by the first period into account would mean
Appellate Court. that the sentence would be reduced
21. The challenge relating to the in proportion to the period already
sentence was essentially a challenge spent in custody. It was not enough
on the exercise of discretion. As a for the Court to merely state that it
principle, an Appellate Court would had taken that period into account
not interfere with the exercise of and still order for the sentence to
discretion unless it is shown that the run from the date of conviction. That
Trial Court acted on wrong principles; amounted to ignoring altogether
ignored material factors; took into the period already spent in custody.
account irrelevant considerations; The Appellate Court ought to have
or on the whole that the sentence is directed the sentence to run from the
manifestly excessive. date of the Appellant’s arrest.
22. Under section 361 (1) (a) of the 26. The error by the Trial Court and
Criminal Procedure Code severity first Appellate Court of admitting
of a sentence alone was a question the evidence from the 1st Appellant
of fact, not one of law. Without a which allegedly led to the discovery
demonstration that the Court erred of the RDX at the gold course, meant
on principle, the Court of Appeal that the remaining circumstantial
had no basis for interfering with the evidence was so weak that it did
sentence. not unerringly point to the guilt of
23. Some comments by the Trial Court, the Appellants as the only persons
with respect to sentencing, were who could have placed the RDX on
unnecessarily exuberant but they did the golf course. The exclusion of
not form a basis for impeaching the the evidence on the discovery of the
Appellant’s conviction, particularly RDX, meant that there were strong
when they were made at the tail end of co-existing circumstances that
the trial rather than at the beginning. completely destroyed the inference
A Trial Court could consider the of the Appellant’s guilt.
prevalence of an offence before Appeal allowed. (Appellants set at liberty and
sentencing an Accused person but it repatriated back to their country unless they
ought not to suggest or imply that an were otherwise lawfully held.)
Accused person committed offences

17
BB Issue 40, January - March 2018

Court Rules that a Party can Bring an Action for Defamation if the
Published Words Concerned the Party by Inference
Musikari Kombo vs Royal Media Services Limited
Civil Appeal No 156 of 2017
Court of Appeal at Nairobi
February 9, 2018.
A Visram, W Karanja, M K Koome, JJA
Reported by Ian Kiptoo

Tort Law-defamation-libel-elements of libel- Issues


where the words published did not directly concern i. Whether the words ‘Kombo’s wife also
the Appellant-whether the words published by the charged over graft’ published by the
Respondent was defamatory of the Appellant as Respondent were defamatory of the
they did not directly concern the Appellant but his Appellant as they did the not directly
wife concern Appellant but his wife.
Tort law-defamation-libel-defences-qualified ii. Whether the Respondent was entitled
privilege-factors the Court has to consider in to the defence of qualified privilege
allowing the defence of qualified privilege- on the claim that the broadcasted
whether the Respondent was entitled to the words were of public interest.
defence of qualified privilege on the claim that
iii. Whether the Respondent could rely
the broadcasted words were of public interest-
on the defence of apology even though
Defamation Act, section 7
the said apology did not receive the
Tort Law-defamation-libel-defences-apology-
same magnitude of coverage as the
where an apology did not receive the same
defamatory words.
magnitude of coverage-whether the Respondent
could rely on the defence of apology even Held
though the said apology did not receive the same 1. The Respondent had not admitted the
magnitude of coverage as the defamatory words Appellant’s claim. It was crystal clear
from its statement of defence that the
Brief facts
Respondent denied the allegations of
The appeal related to the decision of the
defamation. In the alternative, it pleaded
High Court where the Appellant’s suit
that if indeed the offending words were
seeking damages for defamation against the
aired concerning the Appellant it was not
Respondent was dismissed. The Respondent’s
in bad faith. That could not amount to an
news programme known as Citizen Nipashe
admission which would have justified the
aired a story under the caption ‘Kosgey in
entry of judgment on liability without
the Dock/Kombo’s wife also charged over graft’.
the benefit of evidence being adduced.
Subsequently, at 9:00 p.m. the Respondent
2. The law of defamation was concerned
repeated the story in its news programme
with the protection of a person’s
known as Citizen at 9.
reputation. It followed that a claimant
The Petitioner stated that the foregoing was
in a defamation suit ought to have
defamatory and lowered him in the estimation
principally established in no particular
of right thinking members of society and as
order:
a result, the Appellant demanded a retraction
a) The existence of a defamatory
and an apology from the Respondent. When
statement;
none was forthcoming, he filed suit seeking
b) The Defendant had published
inter alia an unconditional apology and
or caused the publication of the
general damages from the Respondent.
defamatory statement;
On the other hand, the Respondent denied
c) The publication referred to the
publishing the alleged defamatory words. It
Claimant.
maintained that even if the words complained
of were broadcasted, they were not capable It was not in dispute that the broadcasts in
of bearing the meaning alluded to by the question were aired by the Respondent as
Appellant. In the alternative, the Respondent pleaded. What was in issue was whether
averred that if the words were broadcasted the offending words in those broadcasts
about the Appellant it was done in good faith were concerning the Appellant. The
and in public interest thus raised the defence general rule as to who could sue in a
of qualified privilege. claim for defamation was that it was

18
BB Issue 40, January - March 2018

the person against who the defamatory and the woman named. Besides, the
words had been published. Respondents’ witness in her evidence
3. The offending words referred to the stated that she did not verify whether
Appellant’s wife who filed a separate the accused woman was the Appellant’s
claim and succeeded. However the Court wife. She simply stated that she drew
found that the broadcasts were also an inference from the Court orderlies’
concerning the Appellant to a certain utterances that she was the Appellant’s
extent. That was because his name and wife.
his status were clearly mentioned in both 8. There was no basis for such an inference
broadcasts. since she also testified that the said
4. The Respondent’s witness was categorical orderlies did not mention the name of the
that the use of the Appellant’s name was mheshimiwa they alluded to. The reporter
to sensationalize the story and attract a having not confined herself to what
wide audience. The Appellant’s cause transpired in the Court room could not
of action was not based purely on his justifiably claim that she lacked malice.
relationship to his wife. The Appellant Additionally, it was the Appellant’s
was entitled to file suit on his own right uncontroverted evidence that after the
because the broadcasts referred to him first broadcast he called the Respondent
and more importantly the woman named and registered his grievance. It was not
was not his wife. clear why the Respondent ran the story
5. The test for whether a statement was again at 9:00 p.m. without verifying
defamatory was an objective one. It the complaint. All of those opened the
was not dependent on the intention of Respondent up to the imputation of
the publisher but on what a reasonable malice against the Appellant; hence the
person reading the statement would have defence of qualified privilege was not
perceived. Looking at the broadcasts in applicable.
question, the ordinary meaning of the 9. Ultimately it was the Respondent’s
words uttered was that the Appellant was contention that it had issued an apology
polygamous and his wife was involved the following day at 7:00 a.m. in its
in corruption. The Appellant tendered programme known as the Breakfast Show.
uncontroverted evidence of how that It was clear that the said apology did not
story affected him and his family who receive the same magnitude of coverage
had received inquiries on the issue as the offending broadcasts which were
far and wide. In light of the foregoing aired at prime time. Both the Appellant’s
coupled with the Appellant’s political witnesses as well as the Respondent’s
standing, the defamatory nature of the own witness acknowledged that not
broadcasts was quite clear. many people watched that early morning
6. The essence of the defence of qualified programme. Consequently, the apology
privilege was an attempt to balance two was not adequate in the circumstances.
competing but vital interests in society; 10. The High Court erred in finding that
the individual’s right to have their the Appellant had no cause of action.
character and reputation protected and Accordingly, the impugned judgment
safeguarded from false, unwarranted was set aside and the Court found that
and malicious or scurrilous attacks on the Appellant had established his claim
the one hand, and the public’s right to on defamation as against the Respondent.
know as exercised and fed by freedom of Appeal allowed
expression, which was an indispensable Orders
feature of a free and democratic i. As to the quantum of damages, there
society as well as a major tool for was no reason to interfere with the
public accountability. The defence High Court’s assessment of the sum of
was entrenched under section 7 of the Kshs 6,000,000. The Court confirmed
Defamation Act. that award of damages in favour of
7. The issue of corruption involving the Appellant bieng general damages
public figures was a public interest of Kshs 5,000,000 and aggravated
issue. However, it was not in the public damages Kshs 1,000,000.
interest for the Respondent to set ii. Costs to the Appellant. In addition,
out the offending description which the Appellant would also have costs
associated the Appellant with the story of the High Court suit.

19
BB Issue 40, January - March 2018

High Court
Legal Procedure Applicable to a Person Who Sought to Regain Kenyan
Citizenship and Had Been a Kenyan Citizen by Birth But Had Lost Kenyan
Citizenship by Acquiring Foreign Citizenship.
E W A & 2 others v Director of Immigration and Registration of Persons & another
Petition No 352 of 2016
High Court at Nairobi
Constitutional and Human Rights Division
February 22, 2018
J M Mativo, J
Reported by Beryl A Ikamari

Constitutional Law-citizenship-citizenship by Issues


birth-regaining citizenship-where a person was a
i. What legal procedure was applicable
Kenyan citizen by birth but lost Kenyan citizenship
to a person who was a Kenyan citizen
after acquiring foreign citizenship and sought
by birth and was seeking to regain
to regain Kenyan citizenship- the applicable
Kenyan citizenship after having lost
procedure for regaining Kenyan citizenship under
it by acquiring foreign citizenship?
those circumstances-Constitution of Kenya 2010,
article 14(5); Kenya Citizenship and Immigration ii. Under what circumstances was a
Act, No. 12 of 2011, section 10. person entitled to a Kenyan passport?
Constitutional Law-interpretation of the Held
provisions of the Constitution-entitlements 1. Any existing law which was
of citizens-Kenyan passport-where a person inconsistent with the Constitution
was a Kenyan citizen by birth but lost Kenyan would be invalid to the extent of the
citizenship and had acquired foreign citizenship- inconsistency. Any provisions of the
whether such a person was entitled to a Kenyan Immigration Act (repealed) that were
passport-Constitution of Kenya 2010, article inconsistent with the provisions
12(1). of the Constitution of Kenya 2010
Brief facts would be invalid to the extent of the
inconsistency.
The Petitioners were born as Kenyan 2. Given that the Petitioners were Kenya
citizens at hospitals in Nairobi, Kenya. They citizens by birth, their citizenship
were adopted by two British citizens. Their could not be revoked or lost merely
adoption orders did not state that they because they acquired citizenship of
would be presumed to be Kenyan citizens another country. Under article 14(5)
and pursuant to the adoption, they acquired of the Constitution, a person who was
British citizenship. a Kenyan by birth, on the effective
The Petitioners sought to regain Kenyan date, but ceased to be a Kenyan by
citizenship and applied for Kenyan passports acquiring foreign citizenship, was
but the 1st Respondent declined to issue the entitled upon application to regain
passports. The Petitioners said that the denial Kenyan citizenship. The Petitioners
of the passports was a violation of their fell within the terms of article 14(5)
rights guaranteed by the Constitution under of the Constitution and they were
article 14 and 27 and they wanted the Court entitled to regain citizenship after
to declare that they were Kenyan Citizens. making an application.
The Respondents stated that the petition was 3. What the Petitioners were required
premature and that the Petitioners needed to to do was to apply to regain their
follow the procedure provided for in section citizenship. The provisions of article
10 of the Kenya Citizen and Immigration Act 14(4) of the Constitution and section
in order to regain citizenship. 9 of the Kenya Citizenship and

20
BB Issue 40, January - March 2018

Immigration Act would not apply proof of citizenship of the foreign


to the Applicants because those country.
provisions applied to children who 7. There was no basis for the 1st
were apparently under the age of 5 Respondent to refuse to grant the
years with unknown parents. Petitioners Kenyan passports. Under
4. A person born in Kenya with at article 14(5) of the Constitution,
least one Kenyan parent would the Petitioners were entitled to
enjoy Kenyan citizenship by birth regain citizenship upon making
under the terms of article 14(1) of an application and under section
the Constitution. That citizenship 10 of the Kenya Citizenship and
could not be lost or revoked under Immigration Act, the Cabinet
any circumstances. The rights and Secretary was enjoined to issue the
privileges of citizenship under article requisite certificate in the prescribed
12(1) of the Constitution, included form.
the issuance of passports, documents 8. The High Court was empowered
of registration or identification to fashion appropriate reliefs for
issued by the State to its citizens. purposes of the enforcement of
Such documents could only be fundamental rights and freedoms
denied, suspended or confiscated in pursuant to article 23(3) of the
accordance with an Act of Parliament Constitution. Such relief would take
which satisfied the criteria set out in various forms and it could include
article 24 of the Constitution. fashioning new reliefs that the
5. Nationality or citizenship by birth circumstances of the case required.
meant nationality that an individual Petition allowed.
was automatically attributed by law
from the moment of birth rather than Orders:-
citizenship acquired as an adult or i. A declaration was issued to the effect that
following any administrative process. the refusal by the 1st Respondent to grant
The determination of citizenship the Petitioners Kenyan Passports was an
would be a basic element in obliging infringement of their constitutional rights
the state to protect its citizens and to under article 14 (5) of the Constitution.
let them enjoy certain constitutional ii. That the Petitioners were Kenyan citizens
rights which were related to by birth as provided under article 14 (1)
citizenship, for example, the right to of the Constitution and were all entitled
vote. to rights of a citizen as provided under
6. Section 10 of the Kenya Citizenship article 12 (1) of the Constitution.
and Immigration Act provided that a iii. An order of mandamus was issued to
person who had been a Kenyan citizen compel the 1st Respondent to admit and
by birth but lost Kenyan citizenship process the Petitioners’ applications to
after acquiring foreign citizenship regain their citizenship under article 14
could apply in the prescribed manner (5) of the Constitution and section 10 (3)
to the Cabinet Secretary to regain & (4) of the Act.
citizenship. The requirement was iv. An order of mandamus was issued
that such an application would compelling the 1st Respondent to issue the
be accompanied by proof of the Petitioners with Kenyan passports.
Applicant’s Kenyan citizenship. v. There were no orders as to costs.
The application would have to be
accompanied by proof of Applicant’s
previous Kenyan citizenship and

21
BB Issue 40, January - March 2018

Sharia Law Which Excluded Women, Children and Non-Muslims From


Inheriting their Fathers’ and Husband’s Estates Was Not a Violation of
The Constitution
In re Estate of CCBH (Deceased)
Succession 436 of 2004
High Court at Mombasa
February 15, 2018
Thande Mugure, J
Reported by Felix Okiri
Constitutional Law – Rights and fundamental confer legitimacy upon the Applicants - rights of
freedoms – right to property - whether a person’s children
religion and marital status was ground for
Children Law - whether Kenya was bound to
disinheritance in Sharia Law – whether the
respect, protect and enforce the rights of children
Applicants’ right to property was violated by
without discrimination of any kind- whether
being denied their father’s share of the estate
the birth and rights of a child had to be viewed
of the deceased - what were the rights of non-
independently of the relationship between the
muslims who had hereditary proprietary rights
parents – whether by the fact that, the Applicants
in the estate of a deceased Muslim - whether
were children of the deceased, entitled them to
Sharia Law which excluded women, children and
inherit their father’s share in the estate of the
non-muslims from inheriting their fathers’ and
deceased
husband’s estates was a violation of article 27 of
the Constitution – Constitution Of Kenya, article Brief Facts
27 CBH, the deceased, was survived by 2
Constitutional Law - fundamental rights and widows and 18 children. A grant of letters
freedoms – rights of children – best interests of of administration was issued to the sons
children - whether the best interests of children and widow of the deceased. The grant was
was a primary consideration in distribution of later confirmed and the estate was to be
estate of a deceased as required by the Constitution, distributed in accordance with Islamic Sharia
Convention on the Rights of the Child (CRC) and as the deceased and his family were Muslims.
the Children Act - whether Sharia Law which Succession Cause No. 82 of 2012 was
excluded children from inheriting their fathers’ instituted in the Kadhi’s Court for purposes
estates was a violation of the best interests of of determining the shares of the heirs of the
children - Constitution of Kenya, article 53; deceased. On December 18, 2012, one of the
African Charter on the Rights and Welfare of sons (S) died. Upon his death, he was survived
the Child (ACRWC), article 3; Convention on by his children (the Applicants) and their
the Rights of the Child (CRC), article 2; Protocol mother who was not a Muslim. In a ruling of
To The African Charter On Human and Peoples’ October 2, 2014, the Kadhi’s Court made a
Rights On The Rights Of Women In Africa (The determination that the share in the estate of
Maputo Protocol), article 1(j); Children Act, 2001, the deceased (S, son of CBH) was 9.21%.
section 4(2)
The Kadhi’s Court found that the Applicants
Constitutional Law – construction of the were not entitled to inherit the 9.21% under
Constitution - Interpretation of the Constitution Islamic law as their mother was not legally
- whether the validity of the Constitution was married to the deceased. As a result the
subject to any challenge- whether certain articles Applicants were ‘illegitimate children’ as they
of the constitution could be unconstitutional were born out of wedlock. The Kadhi’s Court
– whether the validity of the Constitution was decided that the Applicants were at liberty to
subject to any challenge apply to the High Court for determination of
Family Law - inheritance- who is entitled to the issue.
inherit under Islamic Sharia - whether the failure Issues
to legalize a marriage was a disqualification from
inheriting under the tenets of Islamic Sharia i. Whether a person’s religion and
- whether the Court could presume a marriage marital status was ground for
between the Applicants’ parents and thereby disinheritance in Sharia Law.

22
BB Issue 40, January - March 2018

ii. Whether Sharia Law which excluded culture, dress, language or birth.”
women, children and non-Muslims Convention on the Rights of the Child
from inheriting their fathers’ and (CRC)
husband’s estates was discriminatory
and a violation of the best interests of Article 2
children and right to property. “States Parties shall respect and ensure the
iii. Whether the Court could presume rights set forth in the present Convention
a marriage between the Applicants’ to each child within their jurisdiction
parents and thereby confer legitimacy without discrimination of any kind,
upon the Applicants. irrespective of the child’s or his or her
iv. What were the rights of non-muslims parent’s or legal guardian’s race, colour,
who had hereditary proprietary rights sex, language, religion, political or other
in the estate of a deceased Muslim? opinion, national, ethnic or social origin,
property, disability, birth or other status.”
v. Whether the failure to legalize a
marriage was a disqualification from African Charter on the Rights and Welfare
inheriting under the tenets of Islamic of the Child (ACRWC)
Sharia. Article 3
vi. Whether the validity of the
“Every child should be allowed to enjoy
Constitution was subject to any
the rights and freedoms in this Charter,
challenge.
regardless of his or her race, ethnic group,
Relevant provisions of law colour, sex, language, religion, political or
Law of Succession Act, Cap 160, LoK other opinion, national and social origin,
fortune, birth or other status.”
Section 2(3)
Protocol To The African Charter On
“Subject to sub section (4), the provision
Human and Peoples’ Rights On The Rights
of this Act shall not apply to testamentary
Of Women In Africa (The Maputo Protocol)
or intestate succession to the estate of any
person who at the time of his death is a Article 1(j)
Muslim to the intent that in lieu of such “Violence against women” means all
provisions the devolution of the estate acts perpetrated against women which
of any such person shall be governed by cause or could cause them physical,
Muslim law.” sexual, psychological, and economic
Constitution of Kenya, 2010 harm, including the threat to take such
acts; or to undertake the imposition of
Article 2
arbitrary restrictions on or deprivation of
(1) This Constitution is the supreme law of fundamental freedoms in private or public
the Republic and binds all persons and all life in peace time and during situations of
State organs at both levels of government armed conflicts or of war”
(2) … Held
(3) The validity or legality of this 1. The Convention on the Rights of the Child
Constitution is not subject to challenge by (CRC), the African Charter on the Rights
or before any court or other State organ. and Welfare of the Child (ACRWC), and
Article 27 The Protocol To The African Charter
On Human and Peoples’ Rights On The
“(1) Every person is equal before the law
Rights Of Women In Africa (The Maputo
and has the right to equal protection and
Protocol) were part of Kenya’s law by
equal benefit of the law…
dint of article 2(6) of the Constitution
(4) The State shall not discriminate of Kenya, 2010 and Kenya was bound
directly or indirectly against any person thereby. The rights of the child were also
on any ground, including race, sex, protected by the Constitution. Article 53
pregnancy, marital status, health status, provided that in all matters concerning
ethnic or social origin, colour, age, a child, that child’s best interests were
disability, religion, conscience, belief, of paramount importance. That was

23
BB Issue 40, January - March 2018

reiterated in section 4(2) of the Children non-Muslim was permitted to inherit


Act 2001. Article 27 of the Constitution the estate of a Muslim. A person could
embodied the principle of equality and not inherit a share of the estate of her
non-discrimination and provided that deceased father, a Muslim, by reason of
every person was equal before the law her being a non-Muslim.
and had the right to equal protection 5. An illegitimate child could not inherit
and equal benefit of the law. The State the estate of his or her father but was
was not to discriminate directly or permitted to inherit from his or her
indirectly against any person on any mother. The reason for that was that
ground, including race, sex, pregnancy, the Law of parentage which included
marital status, health status, ethnic paternity and maternity was the
or social origin, color, age, disability, result of the institution of marriage. A
religion, conscience, belief, culture, dress, Mohammedan marriage was a contract,
language or birth. which conferred the status of husband
2. Article 259 of the Constitution required and wife on the parties and of legitimacy
the Court to interpret the Constitution on the children. Parentage gave rise to the
in a manner that promoted the concepts of legitimacy and illegitimacy.
Constitution’s purposes, values and Illegitimacy was totally unaccepted and
principles and in a manner that advanced sexual-relations outside marriage were
the rule of law, and the human rights condemned as illicit and the woman,
and fundamental freedoms in the Bill who involved in it, was punishable for
of Rights. The rights and fundamental Zina (fornication).
freedoms in the Constitution were wide 6. Islam did not tolerate illicit sexual-
and touched on numerous aspects of relations outside marriage. Any child
human life. However, those rights were born out of an illicit and condemned
not absolute and certain limitations relationship was considered illegitimate
had been imposed thereon by article 24 and did not qualify for inheritance of
of the Constitution. In particular the his or her father’s estate. Indeed Islamic
provisions on equality were limited in scholars were unanimous that whoever
relation to persons who professed the had an illegal intercourse with a lady,
Muslim religion. Article 24 (4) provided free or slave, the child was illegitimate
that the provisions of Chapter four on and was not entitled to inherit or be
equality had to be qualified to the extent inherited. Even where children born
strictly necessary for the application of out of wedlock depended on their father
Muslim law before the Kadhi’s courts, while he was alive, such dependency did
to persons who professed the Muslim not qualify them to inherit from their
religion, in matters relating to personal father.
status, marriage, divorce and inheritance. 7. Fault was on the deceased and S. That
3. Islamic Sharia had to be applied to was because, they being Muslims, were
Muslims in matters relating to personal well aware that the Applicants were not
status, marriage, divorce and inheritance recognised as heirs of either the deceased
notwithstanding the equality provisions or S under Islamic Sharia. To forestall the
in the Bill of Rights in the Constitution. sorry situation the Applicants were in,
Islamic Sharia was derived directly from the deceased and S ought to have made
the Quran. Any application of the law provision for them by way of will. Islam
relating to a Muslim’s personal status, recognised the testamentary freedom
marriage, divorce and inheritance of Muslims. A Muslim could dispose of
outside Islamic Sharia could have his estate by will to non-heirs but up to
been interpreted as an affront to a a third thereof. The limit on a Muslim’s
Muslim’s freedom of religion which was testamentary freedom, up to one-third of
guaranteed by the Constitution. one’s estate, was seen in Islam as a means
4. Section 2(3) of the law of Succession to ensuring balance between a Muslim’s
Act provided that the applicable law freedoms in that regard and responsibility
in relation to a deceased Muslim was to his or her heirs. Deriving sanction
Muslim law. Under Islamic Law, no from a Prophetic tradition, it reflected

24
BB Issue 40, January - March 2018

indications in the noble scripture that a favour of the Applicants.


Muslim could not dispose of his property 10. Article 2 of the Constitution declared
by will as to leave his heirs destitute the supremacy of the Constitution
8. Presumption of marriage as a concept over all other laws of Kenya including
was unknown in Islamic Sharia. Any international treaties and conventions
cohabitation outside marriage was that formed part of Kenyan law. The
considered as condemned as illicit and validity of the Constitution was not
the woman involved in it, was punishable subject to any challenge whatsoever.
for Zina (fornication). On the basis of the provision of article
9. Referring to any child as illegitimate 2 and article 24(4) of the Constitution,
appeared to be outrageous. However, as the exclusion of the Applicants from
long as the estate belonged to a deceased inheriting S’s share of the estate of the
Muslim and as long as article 24(4) deceased was not inconsistent with the
remained in the Kenyan Constitution provisions of the Constitution. To find
and further as long as section 2(3) in favour of the Applicants would be to
remained in the Law of Succession Act, challenge articles 2(3) and 24(4) of the
the Court’s hands were tied. In any other Constitution.
circumstances, the Court would not Application dismissed, no order as to costs.
require elaborate persuasion to find in

The Consumer Rights of Consumers of Soft Drinks Include the Right to


Nutritional Information and Storage Directions
Mark Ndumia Ndung’u v Nairobi Bottlers Ltd & another
Petition 325 of 2015
High Court at Nairobi
Constitutional and Human Rights Division
January 30, 2018
J L Onguto, J
Reported by Beryl A Ikamari

Constitutional Law-institution of a suit in a suit in the form of a constitutional petition-


the form of a constitutional petition-locus availability of alternative remedies-the
standi (right to sue)-extent of locus standi in a requirement that alternative remedies would
constitutional petition-whether a petitioner who have to be efficacious-where alternative remedies
was unable to consume a soft drink for medical were in existence but their effectiveness was in
reasons could institute a suit to enforce consumer question-whether under those circumstances the
rights by claiming that the failure to provide constitutional petition would be dismissed.
nutritional information, storage directions and
Constitutional Law-fundamental rights and
contact details of the manufacturer, where the soft
freedoms-enforcement of fundamental rights
drink was packaged in glass bottles, was a breach
and freedoms-consumer rights-the right to
of consumer rights-Constitution of Kenya 2010,
information necessary for consumers to gain
article 22.
full benefit from goods and services-whether
Constitutional Law-constitutional petition- consumers of soft drinks had a right to nutritional
form and content of a constitutional petition- information, storage directions and customer
particulars to be pleaded in a constitutional service mobile number and email address-
petition-the requirement that a Petitioner ought Constitution of Kenya 2010, article 46; Food,
to set out with a reasonable degree of precision Drugs and Chemical Substances (Food Labelling,
that which he complained of, the provisions said Additives and Standards) Regulations, 1978 ,
to have been infringed, and the manner in which regulation 4; Standards Act (Cap 496), section 9.
they were alleged to be infringed-how the Court
Statutes-interpretation of statutory provisions-
would assess whether that degree of precision
meaning of a supplier for purposes of consumer
was achieved in the drafting of a constitutional
protection-the nature of entities were within
petition.
the definition of a supplier under the Consumer
Civil Practice and Procedure-institution of Protection Act-whether an entity with the sole

25
BB Issue 40, January - March 2018

mandate of promoting and marketing products the consumers of the glass bottle soft drink.
was a supplier-Consumer Protection Act, No 46 The Petitioner therefore sought mandatory
of 2012, section 2. and declaratory reliefs.
Constitutional Law-fundamental rights and In response, the 1st Respondent explained
freedoms-enforcement of fundamental rights that the Coca Cola crown glass bottle caps
and freedoms-right to equality and freedom from bore the physical and postal address of the
discrimination-nature of conduct that would manufacturer, brand of trade name, as well
constitute discrimination-provision of beneficial as optional ingredients such as carbonated
information only to a certain class of consumers- water, sugar, colour, caramel, acidulant,
where nutritional information, storage directions phosphoric acid, flavouring and caffeine.
and contact details were availed to consumers of The 1st Respondent also explained that the
a soft drink packaged in plastic bottles and not price difference in the soft drinks packaged
to consumers of the same soft drink packaged in in glass bottles as compared to those in
a glass bottles-whether such conduct amounted plastic bottles was based on the fact that glass
to discrimination-Constitution of Kenya 2010, bottles were re-usable.
article 27.
The 2nd Respondent asserted that the
Brief facts Petitioner had no cause of action against it.
It stated that its mandate was the promotion
The Respondents manufactured soft drinks
and marketing of the 1st Respondent’s
under the brand names Coca Cola, Krest,
products. It also stated that it had complied
Fanta, Sprite and Stoney and packaged them
with the food labelling and specification
in glass bottles as well as plastic bottles.
requirements under the Food, Drugs and
The Petitioner preferred consuming Coca
Chemical Substances Act and the Standards
Cola found in glass bottles but he stopped
Act. Further, it stated that the Petitioner
consuming the drink upon being diagnosed
wrongly assumed that there was a legal
with ulcers by a doctor. The doctor advised
obligation on a manufacturer, packer or
him to stop consuming products with acidic
distributor of soft drinks to display the
content. That advice sparked his curiosity
nutritional information, email address and
relating to the ingredients and nutritional
storage directions on the food label. The
value of foods and drinks which he consumed.
2nd Respondent also stated that the petition
The Petitioner discovered that the did not set out the Petitioner’s claim to a
Respondents’ soft drinks, in plastic bottles, reasonable degree of precision. It additionally
unlike those in glass bottles, had the nutritional said that the Petitioner had not exhausted the
content listed as well as the Respondents’ available alternative remedies.
contact details for its customers and storage
Issues
information. He said that the omission of
such information in the glass bottles violated i. Whether a person who was unable
consumer rights as provided for in article to consume a soft drink for medical
46 of the Constitution. The Petitioner said reasons had the locus standi to institute
that the nutritional information would a suit to enforce an alleged breach of
enable customers to know of the benefits of consumer rights in relation to the
consuming the drink and the contact details soft drink.
would help them give feedback including ii. Whether the petition was drafted
complaints that would enable them to derive with a reasonable degree of precision
optimum benefit from the products. He so as to enable the Court and
added that knowing information on storage the Respondents to know of the
would help the consumers retain the drink’s Petitioner’s case with respect to what
freshness and other qualities. was complained of, the constitutional
provisions that had been violated
The Petitioner added that due to the price and the manner in which they were
difference in the soft drinks packaged in violated.
glass bottles as opposed to those packaged iii. What was the effect of claims of
in plastic bottles, low income earners would availability of alternative remedies to
opt for the glass bottles. The information gap the admissibility of the constitutional
would therefore be discriminatory against petition?

26
BB Issue 40, January - March 2018

iv. Whether consumers of soft drinks alleging that any consumer right or
had a right to nutritional information, fundamental freedom in article 46
storage directions and customer of the Constitution had been denied,
service mobile number and email violated or infringed or threatened.
address. 4. A reading of the petition and affidavits
v. What were the considerations that disclosed a claim by the Petitioners
the Court would factor in when which was easily discernible. The
interpreting a statute? articles of the Constitution which
vi. Whether an entity with the mandate had been violated were identified and
of marketing and promoting certain they related to consumer rights. The
beverages was within the definition petition was drafted to a reasonable
of a supplier under the Consumer degree of precision and it was
Protection Act. such that the Respondents could
vii. Whether provision of beneficial understand the issues in controversy.
information only to a certain portion 5. It is trite law that where there is an
of consumers of a given product was efficacious or alternative remedy
a form of discrimination. a dispute should be resolved in
Held accordance with the alternative
procedure. The alternative remedy
1. As a person who did not consume
would have to be accessible,
the soft drinks in question, the
affordable, timely and effective.
Petitioner’s locus standi to institute the
6. If the availability of a remedy was
proceedings was in question. Article
not evident, it would not be invoked
22 of the Constitution provided
to the detriment of a Petitioner.
for the locus standi or legal standing
The party that sought to rely on the
to institute proceedings for the
availability of alternative remedies in
enforcement of the Bill of Rights. The
order to make a petition inadmissible,
right to institute proceedings would
bore the burden of showing that
be held by individuals including those
the alternative remedies were in
who were acting in public interest of
existence and that they had not been
as members of, or in the interest of, a
exhausted.
group or class of persons.
7. The alternative remedies, whose
2. It was apparent that there was no
existence was claimed included
limit as to the manner and nature
prosecutions by the Director of Public
of persons that could approach the
Prosecutions , withdrawal of a license
Court under article 22. A generous
under the Standards Act and section
approach to the issue of standing
90 of the Consumer Protection Act,
had to be adopted for purposes of
did not provide an effective remedy
enforcing fundamental rights and
to the questions raised in the petition.
freedoms. The Petitioner brought
8. The Court had to determine the
the petition as a law abiding citizen,
question as to whether, under
public spirited individual and a
article 46 of the Constitution,
strong believer in the rule of law and
consumers had a right to nutritional
constitutionalism (public interest);
information, storage directions and
on his own behalf (personal interest)
customer service mobile number and
and on behalf of the consumers of the
email address. Under article 20(3)
glass bottled beverages produced by
(a), the Court was bound to develop
the Respondents (class interest).
the law, including the Food, Drugs
3. The Petitioner did not have to
and Chemical Substances Act and
show that he was affected by the
the Standards Act to the extent that
alleged violation in order to have
it did not give effect to consumer
standing to sue under article 22 of
rights. The Court had to adopt an
the Constitution. Nothing prevented
interpretation which favoured the
a non-consumer of a product with a
enforcement of consumer rights.
well-established right to sue under
Article 259(1)(c) of the Constitution
article 22 of the Constitution, from

27
BB Issue 40, January - March 2018

also provided for the obligation of form that would be understood by


the Court to develop the law through the consumer. The provision did
constitutional interpretation. not demand any specific kind of
9. The theory of a holistic interpretation information but merely related to
of the Constitution mainstreamed the quality, clarity and utility of such
by the Supreme Court required an information.
interpretive approach that took into 13. Regulation 4 of the Food, Drugs and
account, alongside a consideration Chemical Substances (Food Labelling,
of the text and other provisions in Additives and Standards) Regulations,
question, non-legal phenomenon 1978 required food labels to state the
such as Kenya’s historical, economic, brand of trade name, common name
social, cultural and political context. of the food, correct declaration of
In determining the Petition, the the net contents in weight, volume
Court had to take judicial notice of or number as well as the name and
the prevalence of non-communicable address of the manufacturer, packer
and nutrition-related diseases or distributor of the food. The
including malnourishment and Respondents’ products complied
obesity. with that regulation.
10. Section 3(1) of the Consumer 14. The Respondents also complied with
Protection Act, 2012 stipulated that the Kenya Standard KS EAS 29:200
the Act had to be read in a manner that (Carbonated (Beverages) Soft Drinks
gave effect to the purposes set out in – Specification, 2000) prescribed
subsection 4 of the Act including the under section 9 of the Standards Act.
improvement of consumer awareness The specification required labels to
and information and encouragement contain the date of manufacture as
of responsible and informed well as the best before date. Under
consumer choice and behaviour. the provision, the labels were also
It was of assistance in interpreting required to contain the brand of
consumer rights. trade name, common name of the
11. A close reading of article 46(1) of the food, correct declaration of the
Constitution disclosed at least three net contents in weight, volume or
different obligations imposed on number and as well as the name and
public and private manufacturers, address of the manufacturer, packer
promoters or marketers of any or distributor of the food.
consumer product or service. First, 15. The information that the Petitioner
there was an obligation to provide sought in furtherance of consumer
goods and services of reasonable rights was information necessary for
quality. Secondly, there was an consumers to gain the full benefit
obligation to avail to the consumer, from the Respondents’ drinks under
any information necessary for the article 46(1)(b) of the Constitution and
consumer to gain full benefit from that information included nutritional
any goods or services. Thirdly, a information, storage directions and
manufacturer, promoter or marketer customer service mobile number and
had an obligation to ensure the email address. What the Petitioner
protection of consumers’ health, sought went beyond the labelling
safety, and economic interests. requirements of the Food, Drugs and
12. Section 87 of the Consumer Chemical Substances Act and the
Protection Act outlined the obligation Standards Act.
of suppliers to disclose information. 16. Nutritional information contained
Where disclosure was required in food labels, guaranteed consumer
under the Consumer Protection rights provided for in article 46 of the
Act, the disclosure had to be clear, Constitution in three ways. It assured
comprehensible and in accordance them of products of reasonable
with the standards set under the quality, it provided information
Standards Act and delivered in a necessary for them to gain full benefit

28
BB Issue 40, January - March 2018

from goods and services and finally, it mobile number and email address to
ensured the protection of consumers’ consumers of a product, it had to do
health, safety, and economic interests. so uniformly to all consumers of that
17. Providing information to consumers, product without distinction.
on ingredients, nutrition claims and 21. The 2nd Respondent had the mandate
declaration of potential allergens as of marketing and promoting the
well as nutrition or health claims, beverages in question. It was within
food warnings and labels inform the definition of a supplier under
consumption by enabling consumers the Consumer Protection Act which
to make informed decisions. Under provided that a supplier meant a
article 46 of the Constitution, person who was in the business of
nutritional information provided selling, leasing or trading in goods
on labels ought to be truthful and or services or was otherwise in
not misleading to consumers. the business of supplying goods or
Food ought not to be described or services, and included an agent of
presented in a manner that was false, the supplier and a person who held
misleading or deceptive. Therefore, himself out to be a supplier or an
the Respondents had an obligation to agent of the supplier. Therefore, the
provide nutritional information on 2nd Respondent was a supplier within
their beverages to enable consumers the terms of section 2 of the Act and
to gain full benefit from the beverages. it bore the obligations provided for in
18. Information on safe storage, article 46 of the Constitution.
preparation and handling of food 22. The Petitioner’s attempt to ground his
products was of critical importance case in article 35 of the Constitution
to consumers and had to be provided lacked merit. There was no evidence
by the suppliers on the food label. that he sought and was denied the
It would assure consumers of food information he wanted prior to
products of reasonable quality, filing the action. With respect to the
protect their health and safety, and right to access information, it is trite
safeguard their economic interests. that coercive orders of the Court
The Respondents had an obligation should only be used to enforce the
to supply consumers with the storage Constitution where a request has
directions. been made to the person holding the
19. There would be no specific legal information and such request has
obligation to provide an email or been declined.
phone address to consumers. The 23. Article 27 of the Constitution
Food, Drugs and Chemical Substances entitled all persons to equal benefit
Act, as well as the Standards Act, and protection of the law as well
merely required the name and as freedom from discrimination.
address of the manufacturer of A practice, policy or law would be
beverages. The Respondents’ glass discriminatory either as a result of
bottles and crown bottle caps were its motive or arising from its effect
in compliance as they contained the on the identified class or category.
Respondents’ address. The former would constitute direct
20. The Respondents supplied their discrimination and the latter indirect
mobile phone number on their discrimination
beverage’s plastic bottles and 24. The Respondent’s plastic soda bottles
omitted it from the glass bottles. It contained nutritional, customer
would be discriminatory to supply contact and storage information
customer service mobile numbers which was missing from the glass
and email addresses to a class of bottles of equivalent quantity and
consumers while denying the same brand. The effect of that was that
to a different class of consumers of whereas consumers of the beverages
the same product. Where a supplier in the plastic bottles could readily
opted to avail its customer service know and tell the nutritional

29
BB Issue 40, January - March 2018

content of the beverages they were reasonable distinction, the same was
consuming, consumers of the discriminatory, unconstitutional and
beverages in the glass bottles were unlawful.
denied that benefit. Therefore in so 25. The Petitioner did not lay a basis for
far as the Respondents conferred an award of damages. Given that the
the privilege of adequate nutritional petition was filed in public interest,
information and consumer contact it would be odd for the Petitioner
addresses to consumers of the plastic to claim damages for himself
bottled beverages while denying the from the untoward conduct of the
same privilege to the consumers Respondents.
of glass bottled beverage without Petition partly allowed.

The Options Available to The Court in Resolving a Situation Where a


Party was in Contempt of Court.
Miguna Miguna v Director of Public Prosecutions & 2 others
Misc. Criminal Application No 57 of 2018
High Court at Nairobi
Criminal Division
February 15, 2018
L Kimaru, J
Reported by Beryl A Ikamari

Civil Practice and Procedure-contempt of Applicant was not released as ordered by the
Court-definition of contempt of Court-conduct Court and on February 5, 2018 he did not
that would amount to contempt of Court-failure appear before the High Court.
to comply with an order of the Court-Contempt
On February 5, 2018, the High Court made
of Court Act, No. 46 of 2016, section 4(1)(a).
orders for the Applicant to appear before it
Civil Practice and Procedure-contempt of at 9.00 a.m. and for the Inspector General
Court-punishment for contempt of Court- of Police and the Director of Criminal
circumstances in which the Court would opt not Investigation, to appear before the Court
to punish an alleged contemnor despite a finding personally to show cause why they ought
that the contemnor was in contempt of Court- not be punished for being in contempt of
where the Court opts to give a contemnor an the orders of the Court. On February 6,
opportunity to purge his contempt-Contempt of 2018, the High Court was informed that the
Court Act, No. 46 of 2016, section 28. Applicant was scheduled to appear before
the Chief Magistrate’s Court at Kajiado to
Constitutional Law-fundamental rights and
answer to charges. The Chief Magistrate’s
freedoms-enforcement of fundamental rights and
Court made orders for the police to produce
freedoms-right to liberty, right to freedom and
the Applicant before the High Court at 3.00
security of the person and rights of an arrested
p.m. on February 6, 2018. On that date at
person-remedies available for alleged breaches of
3.00 p.m., the High Court was informed
fundamental rights and freedoms-anticipatory
that by Court orderlies that the Applicant
bail-Constitution of Kenya 2010, articles 23(3),
was within the Court precincts in a holding
29(a) & 49(1)(f).
cell. Nonetheless, the Applicant was not
Brief facts produced before the High Court on that day.
On February 2, 2018, the Applicant was The High Court directed that the Applicant
arrested. The Applicant then successfully be produced before the Court by 11.00 a.m.
made an application for release on on February 7, 2018.
anticipatory bail. On the same day, February On February 7, 2018, the Deputy Director of
2, 2018, the High Court ordered him to pay Public Prosecutions informed the Court that
Kshs. 50, 000/= as cash bail. He was also the Applicant had been deported upon receipt
ordered to appear before the High Court on of a letter written to the Ministry of Foreign
February 5, 2018, if the Respondents intended Affairs by the Canadian High Commission.
to charge him with an offence. However, the The deportation was undertaken pursuant to

30
BB Issue 40, January - March 2018

a declaration issued by the Cabinet Secretary Court at 3.00 p.m. on February 6,


for Interior and Coordination of National 2018, they released him at the Inland
Government under sections 43 and 33(1) of Container Depot Police Station at
the Kenya Citizenship and Immigration Act Embakasi on that day at 6.00 p.m.
2011. The Canadian High Commission was Therefore the 2nd and 3rd Respondents
concerned that they were unable to verify or acted in contempt of Court.
confirm the wellbeing of the Applicant due to 4. The 2nd and 3rd Respondents were
fact that he was being kept incommunicado. mandated under article 232 of the
Constitution to uphold, inter alia,
The High Court directed the 2nd and 3rd
high standards of professional
Respondents to swear affidavits showing the
ethics, responsiveness, promptness,
circumstances under which the Applicant
effectiveness, impartiality and equity
was removed from the Court’s custody and
in the provisions of service to the
handed over to the Director of Immigration.
public. They were also required to be
The High Court received affidavits from the
accountable for their administrative
2nd and 3rd Respondents and also from the
actions done in the course of their
Director of Immigration.
duties. Additionally the national
Issues values and principles of governance
i. Whether the 2nd and 3rd Respondents as espoused in article 10(2) of the
failed to comply with Court orders Constitution required the 2nd and 3rd
and acted in contempt of Court. Respondents, in the course of their
ii. What were the consequences of a duties, to respect human dignity,
finding by the Court that a party was equity, social justice, inclusiveness,
in contempt of Court? and equality.
iii. When would the Court grant an 5. The Applicant made the application
Applicant anticipatory bail? for anticipatory bail to secure his
Held liberty and to enforce his right to
freedom and security of the person
1. The 2nd and 3rd Respondents said
and the right not to be deprived of
that they did not intend to disobey
freedom arbitrarily or without just
Court orders but it was apparent
cause as recognized in article 29(a)
that they had engaged in deliberate
of the Constitution. The Court’s
disobedience of the orders. They
jurisdiction to grant anticipatory
creatively interpreted the orders in
bail was based on the Constitution.
order to avoid liability for contempt
Anticipatory bail would be an
of Court.
appropriate remedy for a person
2. The averments in their affidavits
constantly subjected to harassment
confirmed that the 2nd and 3rd
and in fear of being unjustifiably
Respondent were aware that the
arrested. It was available as an
orders of the High Court required
appropriate relief fashioned by the
them to produce the Applicant
Court for purposes of enforcing
before the Court to be dealt with in
fundamental rights and freedoms.
accordance with the law. They were
6. Under article 49(1)(f) of the
also aware of the orders of the Kajiado
Constitution, after being arrested, the
Chief Magistrate’s Court to produce
Applicant had the right to be brought
the Applicant before the High Court
before a Court as soon as reasonably
on February 6, 2018 by 3.00 p.m.
possible, but not later than twenty-
The Office of the Director of Public
four hours after being arrested; or if
Prosecutions was represented in
the twenty-four hours ended outside
Court and communicated to the 2nd
ordinary Court hours, or on a day
and 3rd Respondents about the orders
that was not an ordinary Court day,
that the High Court issued.
the end of the next Court day.
3. The 2nd and 3rd Respondents claimed
7. The Applicant was arrested in
to have complied with the orders
February 2, 2018. On the day of his
of the High Court but instead of
arrest he was granted anticipatory
producing the Applicant before the
31
BB Issue 40, January - March 2018

bail for his release with directions the Applicant was removed from the
that he would present himself before Court’s custody and handed over to
Court on February 5, 2018. February the Director of Immigration. Asking
2, 2018 was on a Friday. Despite being the 2nd and 3rd Respondents to show
required to release the Applicant cause was in fulfilment of the duty
on February 2, 2018, the 2nd and 3rd of the Court to give a hearing before
Respondents did not release him. issuing a final verdict on contempt.
After being served with the Court 11. Section 28 of the Contempt of Court
orders they ought to have released Act provided for the punishment
the Applicant on February 3, 2018 or that would be meted out where a
February 4, 2018 but they did not. person was convicted for contempt
8. When the matter was mentioned of the orders of the Court. The
before the High Court on February punishment included a fine not
5, 2018, the 2nd and 3rd Respondents exceeding two hundred thousand
did not present the Applicant before shillings or imprisonment for a term
court as required under article 49(1) not exceeding six months, or both.
(f) of the Constitution. That was the Additionally, such a person could be
reason why the High Court directed detained in police custody until the
the 2nd and 3rd Respondent to appear rising of the Court.
before the Court on February 6, 12. The Court had other options for
2018 and present the Applicant to purposes of securing respect of
the Court so that he could be dealt Court orders and meeting the ends
with in accordance with the law. of justice. The Court could direct the
On February 6, 2018, in spite of the contemnor to take positive action to
order issued by the High court, twice purge the contempt.
during the same day, the 2nd and 3rd 13. The 2nd and 3rd Respondents would
Respondents did not present the be granted an opportunity to purge
Applicant before Court so that he the contempt of the orders of the
could be released in accordance with Court. Committing the 2nd and
the orders of the Court. 3rd Respondents to prison would
9. Contempt of Court proceedings not serve the ends of justice in the
were necessary for the rule of law particular circumstances of this case.
and administration of justice to be 14. The Court had power to hold
effective and efficacious in securing accountable third parties who
compliance with the orders of the assisted primary contemnors to
Court. Failing to comply with Court commit contempt of Court. It was
orders was a form of contempt clear that the 2nd and 3rd Respondents
of Court. Under section 4(1)(a) of acted together with the Director of
the Contempt of Court Act 2016, Immigration to defeat the orders of
contempt of Court included civil the High Court that required the 2nd
contempt which meant wilful and 3rd Respondents to produce the
disobedience of any judgment, Applicant before the Court. It is trite
decree, direction, order or other that any action done in contempt of
process of a Court or wilful breach of the orders of the Court is illegal and
an undertaking given to a Court. could not be given recognition in the
10. When the High Court found that eyes of the law. It was evident that
the 2nd and 3rd Respondents were the action taken by the Director of
apparently in contempt of Court, it Immigration in furtherance of the
required them required to personally contempt of the orders of the High
appear before the Court to show Court was illegal, null and void and
cause why they acted in contempt of did not have any legal effect.
the orders of the Court and why they The 2 and 3rd Respondent guilty of contempt of
nd

ought not be punished for being in Court.


contempt. They were also required
to swear affidavits explaining how Orders: -

32
BB Issue 40, January - March 2018

i. The declaration dated February 6, Applicant had to be surrendered to the


2018 issued by Fred Matiang’i, Cabinet Deputy Registrar of the Court by the
Secretary, Ministry of Interior and Director of Immigration within seven
Coordination of National Government, (7) days of the Ruling. That Passport
in respect of the Applicant, on the advice had to be dealt with by the Court with
of the Director of Immigration, under jurisdiction in accordance with the law.
section 33(1) of the Kenya Citizen and iv. The 2nd and 3rd Respondents had to
Immigration Act 2011 was declared null personally give a written undertaking to
and void and of no legal effect because it the Court that they would comply and
was issued in contempt of the orders of give effect to the orders of the Court. The
the Court. undertakings would have to be presented
ii. The declaration dated February 6, to the Court within seven (7) days of the
2018 issued by Fred Matiang’i, Cabinet Ruling.
Secretary, Ministry of Interior and v. For avoidance of doubt, upon compliance
Coordination of National Government with the orders of the Court, the 2nd
in respect of the Applicant, on the advice and 3rd Respondents and the Director of
of the Director of Immigration, under Immigration would be at liberty to defend
section 43 of the Kenya Citizenship and the validity of their actions before a Court
Immigration Act 2011 was declared null of competent jurisdiction.
and void and of no legal effect because it vi. Leave was granted to the 2nd and 3rd
was issued in contempt of the orders of Respondents and any aggrieved party to
the Court. appeal against the decision of the Court.
iii. The valid Kenyan Passport of the

Constitutionality of Sections 3(3) and 11(2) of the Auctioneers Act


Josephat Musila Mutual & 9 others v Attorney General & 3 others [2018] eKLR
Petition No 120 of 2017
High Court at Nairobi
February 23, 2018
E.C. Mwita, J
Reported by Kakai Toili

Constitutional Law – interpretation of the 10, 11(2)


Constitution - what were the principles to be
Constitutional Law - national values and
applied in the interpretation of the Constitution
principles of governance - public participation –
– Constitution of Kenya, 2010, article 259 (1)
public participation in amending statutes - what
Constitutional Law – fundamental rights was the standard to be applied in determining
and freedoms – equality and freedom from whether Parliament had met its obligation of
discrimination – membership to the Auctioneers facilitating public participation - Constitution of
Board - exclusion of persons appointed to be Kenya, 2010, article 10 & 118
judges - whether exclusion of persons appointed to
Statutes - Statute Law (Miscellaneous
be judges from being members of the Auctioneers
Amendments) Acts – purpose - making substantial
Board amounted to discrimination and therefore
amendments to a statute - whether Statute Law
unconstitutional – Constitution of Kenya, 2010,
(Miscellaneous Amendments) Acts could be used
article 24 (1) & 27 (4); Auctioneers Act section 3
to make substantial amendments to a statute –
(3)
Auctioneers Act, section 3(3) & 11(2)
Constitutional Law – fundamental rights
Brief Facts:
and freedoms – equality and freedom from
discrimination – retirement of auctioneers In 2016, the National Assembly through the
- whether the mandatory requirement for Statute Law (Miscellaneous amendment)
licensed auctioneers to retire at the age of 70 Act 2016, amended various statutes one
years amounted to discrimination and therefore of them being the Auctioneers Act (No. 5)
unconstitutional - Constitution of Kenya, 2010, of 1996(the Act). Various provisions of the
articles 4 (2), 10, 27 & 57; Auctioneers Act section Act were amended including introduction

33
BB Issue 40, January - March 2018

of section 3(3) which prohibited persons and devolution of power, the rule of
appointed to be judges from being members law, democracy and participation of
of the Auctioneers Board and section 11(2) the people;
which made it mandatory for licensed (b) human dignity, equity, social justice,
auctioneers to retire at the age of 70 years. inclusiveness, equality, human rights,
The Petitioner alleged that the amendments non-discrimination and protection of
were discriminatory and therefore the marginalised;
unconstitutional. It was also alleged that (c) good governance, integrity,
there was no public participation in the transparency and accountability; and
process leading to the amendment of the Act. (d) sustainable development.
Issues: Article 24 – Limitation of rights and
i. What were the principles to be fundamental freedoms
applied in the interpretation of the (1) A right or fundamental freedom in the
Constitution? Bill of Rights shall not be limited except
ii. Whether section 3 (3) of the Auctioneers by law, and then only to the extent that
Act prohibiting persons appointed the limitation is reasonable and justifiable
to be judges from being members in an open and democratic society based
of the Auctioneers Board amounted on human dignity, equality and freedom,
to discrimination and therefore taking into account all relevant factors,
unconstitutional. including—
iii. Whether section 11(2) of the (a) the nature of the right or fundamental
Auctioneers Act on the mandatory freedom;
requirement for licensed auctioneers to (b) the importance of the purpose of the
retire at the age of 70 years amounted limitation;
to discrimination and therefore (c) the nature and extent of the limitation;
unconstitutional. (d) the need to ensure that the enjoyment
iv. What was the standard to be applied in of rights and fundamental freedoms by
determining whether Parliament had any individual does not prejudice the
met its obligation of facilitating public rights and fundamental freedoms of
participation. others; and
v. Whether Statute Law (Miscellaneous (e) the relation between the limitation
Amendments) Acts could be used to and its purpose and whether there are
make substantial amendments to a less restrictive means to achieve the
statute. purpose.
Relevant Provisions of the Law: Article 27- Equality and freedom from
Constitution of Kenya, 2010 discrimination
Article 4 - Declaration of the Republic (1) Every person is equal before the law and
(2) The Republic of Kenya shall be a multi-party has the right to equal protection and equal
democratic State founded on the national values benefit of the law.
and principles of governance referred to in Article (2) Equality includes the full and equal
10. enjoyment of all rights and fundamental
Article 10 - National values and principles freedoms.
of governance (3) Women and men have the right to equal
(1) The national values and principles of treatment, including the right to equal
governance in this Article bind all State opportunities in political, economic,
organs, State officers, public officers and all cultural and social spheres.
persons whenever any of them— (4) The State shall not discriminate directly
(a) applies or interprets this Constitution; or indirectly against any person on any
(b) enacts, applies or interprets any law; ground, including race, sex, pregnancy,
or marital status, health status, ethnic
(c) makes or implements public policy or social origin, colour, age, disability,
decisions. religion, conscience, belief, culture, dress,
(2) The national values and principles of language or birth.
governance include— (5) A person shall not discriminate directly or
(a) patriotism, national unity, sharing indirectly against another person on any

34
BB Issue 40, January - March 2018

of the grounds specified or contemplated in Auctioneers Act


clause (4).
Section 3 - Establishment and membership
(6) To give full effect to the realisation of
of the Board
the rights guaranteed under this Article,
the State shall take legislative and other (1) Where a member of the Board nominated
measures, including affirmative action under section 3(1)(a), (b), (c) or (d) is
programmes and policies designed to redress nominated to the position of High Court,
any disadvantage suffered by individuals Court of Appeal or Supreme Court of
or groups because of past discrimination. Kenya, the appointee shall cease to serve as
(7) Any measure taken under clause (6) shall a member of the Board immediately upon
adequately provide for any benefits to be on assumption of office or elevation.
the basis of genuine need. Section 10 - Eligibility for licence
(8) In addition to the measures contemplated (1) Subject to subsection (2) of this section and
in clause (6), the State shall take legislative to section 11, a person who satisfies the
and other measures to implement the Board that he—
principle that not more than two-thirds (a) is a Kenyan citizen;
of the members of elective or appointive (b) has obtained sufficient knowledge and
bodies shall be of the same gender. experience for a continuous period of
Article 57 - Older members of society not less than three years under or from
The State shall take measures to ensure the a reputable licensed auctioneering firm;
rights of older persons— (c) has not been convicted in the ten years
(a) to fully participate in the affairs of immediately preceding the application
society; of an offence involving fraud, dishonesty
(b) to pursue their personal development; or immorality and is otherwise of good
(c) to live in dignity and respect and be character and reputation;
free from abuse; and (d) is not disqualified under the provisions
(d) to receive reasonable care and of this Act from obtaining or holding
assistance from their family and the a licence, may, on application to the
State. Board, be licensed to carry on the
Article 118 - Public access and participation business of an auctioneer.
(1) Parliament shall— (2) Notwithstanding the provisions of
(a) conduct its business in an open subsection (1), a person who—
manner, and its sittings and those of its (a) is a judge or a magistrate or is
committees shall be open to the public; employed in any capacity as an
and executive or subordinate officer of a
(b) facilitate public participation and court; or
involvement in the legislative and (b) deleted by Act No. 2 of 2002, Sch.;
other business of Parliament and its (c) is an advocate deemed under section
committees. 30A of the Advocates Act (Cap. 16)
(2) Parliament may not exclude the public, to be practising in his professional
or any media, from any sitting unless in capacity or is employed in any
exceptional circumstances the relevant capacity by such advocate; or
Speaker has determined that there are (d) is a public officer or an officer or
justifiable reasons for the exclusion. employee of any local authority,
statutory body or state corporation,
Article 259 - Construing this Constitution
(e) shall not be eligible to be licensed
(1) This Constitution shall be interpreted in a under this Act.
manner that— (3) A person who is a Member of the National
(a) promotes its purposes, values and Assembly, Senate or County Assembly
principles; shall be entitled to hold a general licence
(b) advances the rule of law, and the enabling him to realise securities and
human rights and fundamental carry out repossessions in such parts of the
freedoms in the Bill of Rights; country as may be specified therein.
(c) permits the development of the law; (4) A person who obtains or holds a licence
and contrary to any of the provisions of this
(d) contributes to good governance.

35
BB Issue 40, January - March 2018

section commits an offence and shall on Board under that bracket could easily
conviction be liable to a fine not exceeding be appointed as judges at the same
one hundred thousand shillings, or to time which would render the Board
imprisonment for a term not exceeding two non-functional. It was not clear the
years, or to both. mischief the Legislature intended to
Section 11 - Issue of licence in special cure through the amendment.
circumstances 5. A law requiring a member of the Board
(2) A licensed auctioneer shall retire at the age of in to leave his position because he or
seventy years. she had been appointed a judge on the
Held: face it appeared discriminatory based
1. Article 259(1) of the Constitution on status or class. However, it was
provided for the manner in which the not the Court’s duty to inquire into
Constitution was to be interpreted. The the policy or Parliament’s wisdom in
entire Constitution had to be read as enacting a particular legislation. The
an integrated whole with no particular Court’s duty was to determine whether
provision destroying the other but the law squared with the Constitution.
each sustaining the other. That was There could be underlying reasons or
the rule of harmony, the rule of justification but which the Respondent
completeness and exhaustiveness and postulated. There could be reasons
not one provision destroying another. such as conflict of interest, busy
The Constitution had to be given a schedule among others.
holistic interpretation and read as one 6. There was no serious conflict between
entity to give value to the aspiration of section 3 (3) of the Auctioneers Act (the
the people, constitutional provisions Act) and article 27 (4) of the Constitution.
ought to have been interpreted broadly Excluding judges from being members
or liberally and give values and of the Board of Auctioneers could
aspirations of the people. not be said to be unconstitutional for
2. The Court had to look at both reasons of discrimination. The Chief
purpose and effect to ascertain the magistrate, the member appointed
constitutional validity of a statute by the Chief Justice and the member
or statutory provision. A statute or representing the Law Society were
provision of a statute challenged had capable of discharging the duties the
to be laid against the constitutional persons appointed judges would have
provision said to have been violated to performed.
enable the Court determine whether 7. It was not every little violation that
that was the Case. could be declared unconstitutional.
3. A constitutional provision containing Article 24(1) of the Constitution
a fundamental human right was a allowed limitation of rights so long
permanent provision intended to cater as the limitation was by law and was
for all times to come and therefore had reasonable and justifiable in an open
to be given a dynamic, progressive, and democratic society. The limitation
liberal and flexible interpretation introduced by section 3 (3) of the Act
keeping in view the ideals of the people, was by law and was reasonable and
their socio economic and political, justifiable. It could have been that
cultural values so as to extend the same judges were busy, often transferred to
to the possible maximum. places and they could face challenges
4. It was not clear why a person required in attending Board meetings. A statute
to have qualification for appointment carried with it a presumption of
as a judge had to relinquish his constitutionality, such presumption
position in the Auctioneers Board (the extended in relation to a law which had
Board) once appointed a judge. The been enacted for imposing reasonable
Chief Magistrate and even members restrictions in the fundamental right.
of the Law Society all qualified for 8. There was no constitutional invalidity
appointment as judges and there was with regard to section 3 (3) of the Act.
a possibility that all members of the The only problem was with section

36
BB Issue 40, January - March 2018

3(3) (b) of the Act. One person who was fullest extent.
to join the Board by virtue of position 12. Article 27(4) of the Constitution
in government was the Permanent was clear that the state could not
(cabinet) Secretary in the Office of the discriminate directly or indirectly
President for the time being responsible against any person on any ground.
for matters relating to National The Constitution therefore prohibited
Security or his representative. The all forms of discrimination and
section stated that even that person had grounds of discrimination were not
to relinquish his position in the Board exhaustive. Discrimination was that
on being appointed to the position of act of subjecting a person to different
judge. It was not clear if the National treatment from the others on any of
Assembly really realized the oversight. the grounds stated in article 27(1) of
9. There was no serious conflict the Constitution. When a person was
between section 3 (3) of the Act subjected to a different standard of
and the Constitution to render it treatment because of his age that was
unconstitutional. There was an element open discrimination.
of discrimination but it was not a grave 13. A person alleging a violation of article
violation to warrant a declaration of 27 of the Constitution had to establish
invalidity. It was a reasonable limitation that because of the distinction made
and was justifiable to avoid burdening between the Claimant and others
judges with administrative matters of the Claimant had been denied equal
the Board. Moreover, decisions of the protection or benefit of the law. It did
Board especially those of auctioneers’ not necessarily mean that different
discipline being quasi- judicial were treatment or inequality would per
appealable to the Court and thereafter se amount to discrimination and a
to the Court of Appeal. It was only violation of the Constitution.
reasonable that judges be exempted 14. Auctioneers were human beings,
from sitting on the Board. they carried out business just like any
10. Section 10 of the Act provided for other person for purposes of earning a
qualifications for one to be licensed as living. They were in private business
an auctioneer, he had to be a Kenyan as opposed to public engagement.
citizen, experienced, of good moral Although they served clients, theirs
character, not convicted of a criminal was private business which they did as
offence and not disqualified from individuals. The fact that they had to
holding a licence. Section 11(2) of the retire on attaining the age of 70 years
Act however provided that a licensed was not based on any sound legal logic.
auctioneer had to retire at the age of 70 They had offices, staff and clientele to
years. serve. They were in private business
11. Article 27(1) of the Constitution and not public. They earned what they
guaranteed equality and freedom made in their private business. There
from discrimination. It provided that was no justification to require them to
every person was equal before the law fold their businesses simply because
and had the right to equal protection they had attained the age of 70 years.
and equal benefit of the law, equality 15. Article 4(2) of the Constitution declared
included the full and equal enjoyment Kenya a multi-party democratic state
of all rights and fundamental freedoms. founded on the national values and
The import of article 27 (1) was principles of governance referred to
that human rights and fundamental in article 10. Any government founded
freedoms were guaranteed to all on national values and principles of
persons by virtue of being human and governance such as the rule of law,
had to be enjoyed without limitation. human equality, social justice and
Rights and fundamental freedoms non-discrimination could not legislate
were guaranteed by the constitutions to discriminate against a section of
and had to be enjoyed by all human its citizens on account of age and
beings in equal measure and to the that they could not pursue private

37
BB Issue 40, January - March 2018

business engagement through which principles of governance under article


they earned a living simply because 10 of participation of the people could
they had attained a certain age. That not be undermined.
was an obvious violation of clear 19. In undertaking its legislative mandate,
constitutional provisions and such the National Assembly was required
legislation would be null. to follow the principles articulated in
16. Article 57 of the Constitution behooved article 10(2) (b) of the Constitution on
the Government to take measures to public participation. Article 118(1) (b)
ensure the rights of older persons to of the Constitution was mandatory
fully participate in the affairs of society, that Parliament had to facilitate public
pursue their personal development participation and involvement in
and to live in dignity and respect and the legislative and other business of
be free from abuse. Auctioneers were Parliament and its committees.
citizens in private business working 20. Public participation was not an option
to earn a living. They engaged in when it came to legislative matters.
personal development and wanted The National Assembly was under a
to live in dignity by earning a decent constitutional obligation to facilitate
and reasonable income to enable them public participation. No evidence
sustain their dignity. They required was produced to show that there had
respect and not discrimination. They been public participation. There was
were not a bother to society and least evidence to show that the Committee
of all the Government regulated their of the Board of Auctioneers was still
conduct while they were in business. engaging with stake holders and was
Unless one had violated the law that yet to finalize deliberations when it
governed the business of auctioneers, noticed that amendments had been
there could be no reason to prescribe done.
age limit for persons engaged in 21. Public participation was a fact and
private business such as auctioneers. not by name. Anyone who alleged that
Section 11(2) violated the auctioneers there was public participation had the
right under both articles 27(4) and solemn duty to show through evidence
57 of the Constitution. A statute or that indeed there was such public
statutory provisions that violated participation. The National Assembly
rights and fundamental freedoms was had a broad measure of discretion on
unconstitutional to the extent of the how it would achieve the object of
inconsistence. public participation and how it was
17. Public participation and stake holder to be affected would vary from case
engagement during legislative process to case but it had to be clear that a
was a constitutional requirement. reasonable level of participation was
Laws were enacted to serve the society afforded to the public.
and therefore members of the public 22. The standard to be applied in
had a right to participate and give determining whether Parliament
their input prior to legislation. That had met its obligation of facilitating
was a constitutional requirement and public participation was one of
could not be overlooked since it was reasonableness. The reasonableness
one of the values and principles of the of Parliament’s conduct depended on
Constitution. the peculiar circumstances and facts at
18. Article 10 of the Constitution was clear issue. When determining the question
that the national values and principles whether Parliament’s conduct was
of governance bound all state organs, reasonable, some deference had to be
state officers, public officers and all paid to what Parliament considered
persons wherever they applied or appropriate in the circumstances as the
interpreted the Constitution, enacted, power to determine how participation
applied or interpreted any law or in the legislative process would be
made or implemented public policy facilitated rested upon Parliament.
decisions. The national values and The Court had to have regard to

38
BB Issue 40, January - March 2018

issues like time constraints and be introduced through a normal Bill


potential expense. It had to be alive and after being subjected to public
to the importance of the legislation in participation. The National Assembly
question and its impact on the public. could not introduce substantive
The amendments were made without amendments that violated rights of
public’s involvement in violation of individuals in the manner it was done
article 118 as well as the values and to the Act. They were not correcting an
principles of the Constitution. error, inconsistency or anomaly. The
23. The amendments were made amendments were critical and affected
through Statute Law (Miscellaneous rights and fundamental freedoms of
Amendments) Act, (No 11 of 2017). The auctioneers who were not consulted
preamble to the Act stated that it was as the class of persons to whom
an Act of Parliament to make minor the amendment was directed. They
amendments to statute law. Statute needed to give their in -put before the
Law (Miscellaneous Amendments) Acts amendment was effected.
were omnibus legislations involving 27. The amendments and more particularly
several statutes used to correct minor section 11(2) of the Act limited the
anomalies, inconsistencies and errors right of auctioneers in violation of
that had no significant effects or article 24(1) of the Constitution. The
change to the meaning and import of amendment was not only unreasonable
the Statute. but also unjustifiable in an open and
24. Omnibus amendments in the form of democratic society based on human
Statute Law Miscellaneous legislations dignity, equality and freedom.
both on policy and good governance, 28. Both the Petition and Responses only
which was one of the values and targeted the amendments in the Act.
principles of governance in article It was not possible to fault the other
10 of the Constitution, which values statutes that were affected by the Statute
and principles formed the foundation Law (Miscellaneous Amendment) Act
of the State and Nation as decreed in because they were not the focus of both
article 4(2) of the Constitution, ought Pleadings and Submission. The Court
to have been confined only to minor was not told to what extent if at all,
non-controversial and generally amendments to those statutes violated
house-keeping amendments.. the Constitution to enable it make a
25. Statute Law (Miscellaneous sound decision. The invitation was
Amendments) Act could not be therefore declined.
used to make serious or substantial 29. Section 11(2) of the Act violated the
amendments to a statute or legislation Petitioners’ rights and fundamental
as Parliament did in the instant case. freedoms it was inconsistent with
The amendments effected through the Bill of Rights and was therefore
the Statute Law (Miscellaneous unconstitutional. The amendments
Amendments) Act were quite substantial to the Act though substantive, were
and affected the composition of the introduced through a Statute Law
Auctioneers Board at any one time (Miscellaneous Amendments) Act and
circumstances necessitated change of without the involvement and benefit
status of a member or members of the of Public participation in violation
Board as contemplated by section 3(3) of the values and principles in the
of the Act. The introduction of section Constitution.
11(2) in particular, affected rights and Petition allowed
fundamental freedoms of citizens yet Orders:
it was done as though it was a minor (i) A declaration issued that sections 3 (3)
and inconsequential amendment and and 11 (2) of the Auctioneers Act (No.
without engaging the public and more 5 of 1996) were inconsistent with and in
so those who would be affected by the contravention of the Constitution and were
new sub section. therefore unconstitutional.
26. Sections 3(3) and 11(2) could only (ii) Costs to the Petitioners.

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BB Issue 40, January - March 2018

Abagusii Customary Law Relating to Burial of Deceased Men


Jerusa Basweti Ogeisia v Jenifer Nyamoita Achoki & another [2018] Eklr
Case No. 98 of 2017
Environment and Land Court at Kisii
January 19, 2018.
J.M. Mutungi, J
Reported by Kakai Toili

Customary Law – Abagusii customary law – Issues:


burial rites – what were the burial rites under the i. What were the burial rites under the
Abagusii customary law Abagusii customary law?
Customary Law – Abagusii customary law – ii. Whether Abagusii burial rites were
burial rites –whether Abagusii burial rites were repugnant to justice and morality or
repugnant to justice and morality or inconsistent inconsistent with any law.
with any law iii. Whether a Deceased’s son had beneficial
interest in land where he resided but
Land Law – interests in land – beneficial interest
registered in his mother’s name.
– where a son resides on land registered in his
iv. Whether determining of a burial site of
mother’s name - whether a Deceased’s son had
a deceased conferred ownership rights
beneficial interest in land where he resided but
over the parcel of land.
was registered in his mother’s name
Relevant Provisions of the Law:
Land Law – ownership of land – conferment of
ownership rights over land -whether determining Judicature Act, Cap 8 Laws of Kenya
a burial site of a deceased conferred ownership
Section 3 - Mode of exercise of jurisdiction
rights over the parcel of land.
Brief Facts: (2) The High Court, the Court of Appeal and
all subordinate courts shall be guided by African
The Plaintiff was the mother in law of the customary law in civil cases in which one or more
1st Defendant and the mother of the 2nd of the parties is subject to it or affected by it, so far
Defendant. The Deceased husband of the as it is applicable and is not repugnant to justice
1st Defendant was the first born son of the and morality or inconsistent with any written
Plaintiff. The Plaintiff was the registered law, and shall decide all such cases according
proprietor of land parcels West Mugirango/ to substantial justice without undue regard to
Bogichora/323 (parcel 323) and West technicalities of procedure and without undue
Mugirango/Bogichora/970 (parcel970). delay.
At the time of his death in April 2017, the
Deceased was residing with his family in Held:
land parcel 323 but had been using land 1. The Plaintiff’s decision that the
parcel 970 for cultivation and was growing Deceased be buried on West Mugirango/
food crops thereon. Bogichora/970 (land parcel 970)
appeared to have been belatedly made
The Defendants intended to inter the
and had the hallmarks of being an
Deceased’s remains on land parcel 323. The
afterthought brought about by the
Plaintiff was opposed to that arrangement
unfortunate demise of the Deceased.
and as a result filed the instant suit on the
While the Plaintiff could have intended to
grounds that she had allocated both the
allocate land parcel 970 to the Deceased
Deceased and the 2nd Defendant land parcel
and the 2nd Defendant that intention was
970 and was of the view that the Deceased
not manifested during the lifetime of the
should be buried on that parcel of land and
Deceased.
that she had allocated land parcel 323 to
2. The Deceased being a son of the Plaintiff
her other two children. The Plaintiff also
had a beneficiary interest over the
successfully filed an application to restrain
land held in the name of his mother.
the Defendants from burying the Deceased
Thus even though the Plaintiff was the
in land parcel 323 pending hearing and
registered owner of West Mugirango/
determination o fthe Suit.
Bogichora/323 (land parcel 323) and
land parcel 970 her rights of ownership

40
BB Issue 40, January - March 2018

were subject to her children’s beneficiary an Egesamo constructed so that he could


interest and in that regard the Plaintiff be buried beside it. Normally married
could be said to hold the land on her own men would be expected to have homes
behalf and in trust for her children. As where they would be buried when they
the registered owner of the subject land, died.
the Plaintiff had the right to determine 7. The Deceased was married and had a
how to allocate and distribute the land to house on land parcel 323 in which he
her children. resided with the 1st Defendant for over
3. Burial in the majority of Kenyan tribes 35 years. It would be a travesty of justice
was a communal affair undertaken in to have required that he be relocated in
accordance with the customary rites of his death from his parents’ land where he
the various communities. The Court had established a home and had resided
was not called upon to determine land all his life. Though the Plaintiff was the
rights respecting the Plaintiff’s family registered owner of land parcel 323 as
members, such a time would have arisen well as land parcel 970, the Deceased had
if the suit related to succession or if any of a beneficial interest in land parcel 323
the parties had sued claiming an interest and a right of use over land parcel 970.
or right of entitlement over the land to 8. The Plaintiff had no basis to demand that
the exclusion of some other person. the Deceased be buried on land parcel
4. The applicable law in determining the 970 while all along the Deceased had
issue of the burial site was the Abagusii resided on land parcel 323 where he had
Customary Law relating to burial of established his home. The Plaintiff held
deceased persons. Both the Plaintiff and the two parcels of land in trust for herself
the Deceased as well as the Defendants and her children and was not entitled to
were Kisii and therefore the Abagusii exclude the children from the use of the
Customary Law applicable to deceased’s portions of land they occupied and had
persons applied. Section 3(2) of the been using. The Deceased was entitled
Judicature Act, Cap 8 Laws of Kenya to be buried on land parcel 323 next to
enjoined the courts to be guided by his house in accordance with Abagusii
African Customary Law in civil cases Customary Law.
where the parties were subject to or were 9. By determining the burial place of the
affected by the custom. Deceased, the Court had not determined
5. An Abagusii man who died and had a any ownership rights respecting the
home was buried within his homestead. parcels of land 323 and 970 registered
Where such a person, died without in the Plaintiff’s name. That had to await
having established a home, an Egesamo or appropriate proceedings in that regard
Omucii was constructed so that he could in another forum.
be buried next to it. There was nothing 10. Ownership of land and distribution
repugnant to justice and morality or of land could not be done in the guise
inconsistent with any written law of a burial dispute. The considerations
regarding the Abagusii Customary were totally different in determining
burial rites. The community had for ownership of land and determining
time immemorial practiced those burial a burial site. In the instant case the
rites and they served a good purpose Court determined the burial site for
in enabling the community to come to the Deceased which necessarily did not
terms with the death and the loss of loved confer any ownership rights over the
ones. It was not the Court’s intention to subject parcel of land.
disturb the practice which had been well Suit dismissed
entrenched amongst the Abagusii.
i. Court order issued on April 25, 2017
6. A homestead played a central role in
restraining the burial of the Deceased on
burials amongst the Abagusii. A married
land parcel West Mugirango/ Bogichora/323
Abagusii man with a homestead was
discharged and vacated.
supposed to be buried next to his house
ii. Burial to be carried on land parcel West
in accordance with the custom. Only
Mugirango/ Bogichora/323.
a person who died without a house,
iii. Each party to bear its own costs.
usually unmarried persons, would have

41
Feedback For Caseback Service
By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department

Hon. Bartoo Jerop Brenda Happy New year, thank you so much for the
R.M, Thika Law Courts
feedback. Looking forward to getting more
on cases decided and Appealed on.

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C.M, Eldoret Law courts
always look forward to the updates. Keep up
the good work.

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S.R.M, Siaya Law Courts
Keep it up. God bless you all.

Hon. P. Mayova Thank you .This service is highly


S.R.M, Homabay Law
Court appreciated.
BB Issue 40, January - March 2018

The Law Making


Process in The County
Level of Government
in Kenya
By June Migizi Jumbari, Laws of Kenya Department

Introduction members, the number of members of

T
marginalized groups, including persons with
he Constitution of Kenya, 2010 disabilities and the youth, and the Speaker,
introduced the concept of devolution, who is an ex officio member. The elections
which was the most transformative of members of the county assembly are
change experienced by the Kenyan people. conducted on the same day as the election of
It created a decentralized system of members of the National Assembly.
Government with two levels: the national
government and the county government, to The process of law making may be defined
exercise functions and powers as vested and as the process by which a legislative proposal
within the provisions of the Constitution. is brought before it is translated into the law
These provisions and the objects of of the land. All such legislative proposals are
devolution as outlined in article 174, invoke tabled in the form of Bills.
the spirit of the Constitution to create on
one hand, shared functions between the two
Legislative Authority
levels of government and on the other hand The legislative authority of a county is vested
of the spectrum, decentralizes executive and in, and exercised by, its county assembly as
legislative powers from the national level to provided by article 185 of the Constitution. A
be exercised entirely by the county level of county assembly may make any laws that are
government. necessary for, or incidental to, the effective
performance of the functions and exercise of
As concerns law making, devolution gives
the powers of the county government under
powers of self-governance to the people and
the Fourth Schedule. County legislation
enhance the participation of the people in
refers to a law passed by a county government
the exercise of the powers of the State and
or under authority conferred by a county
in making decisions affecting them. Article
assembly. A county assembly exercises its
6(1) of the Constitution divided Kenya into
legislative power through Bills passed by
47 counties which have been specified in
the county assembly and assented to by the
the First Schedule. The Constitution also
governor. In the case of a money Bill, the
created a county executive and a county
county assembly proceeds only in accordance
assembly for the county governments to
with the recommendation of the relevant
exercise executive and legislative authority,
committee of the county assembly after
respectively. The county executive consists
taking into account the views of the county
of the county governor and the deputy
executive committee member responsible
county governor, and members appointed
for finance. Money bill, in this context, refers
by the county governor, with the approval
to a Bill that contains provisions dealing
of the county assembly, from among persons
with taxes, the imposition of charges on a
who are not members of the assembly.
public fund or the variation or repeal of any
The county assembly consists of members of those charges, the appropriation, receipt,
elected by the registered voters of the wards, custody, investment or issue of public money,
each ward consisting of a single member the raising or guaranteeing of any loan or its
constituency, the number of special seat repayment or matters incidental to any of

43
BB Issue 40, January - March 2018

those matters. the county Gazette and Kenya Gazette, unless


the legislation stipulates a different date on
Process or time at which it shall come into force.
A Bill may be introduced in the county County legislation may prescribe additional
assembly either as a private member’s requirements in respect of the publication
or as a government (executive) Bill by an of county legislation. A county assembly
Executive Committee Member in charge of legislation that confers a direct benefit
the respective department. A Bill introduced whether financial or in kind on members of
in the county assembly shall be identified the county assembly shall come into force
by a title placed at the beginning of the Bill after the next general election of members of
and the title shall include the subject matter the county assembly. This, however, does not
of the statute to be enacted. The official apply to an interest that members of county
languages of a county assembly shall be assembly have as members of the public.
Kiswahili, English and Kenyan sign language
and the business of the county assembly may
Functions and Powers of the
be conducted only in the official languages County Government
as provided under section 18 of the County The functions and powers of the county
Governments Act, No. 17 of 2012. are outlined in the Fourth Schedule of
A Bill is published by including the Bill as the Constitution. Under Article 185(2) as
a supplement in the county Gazette and the read together with the Fourth Schedule,
Kenya Gazette. The Speaker of the respective a county assembly may make any laws on
county assembly, within 14 days, forwards matters relating to: agriculture, county
a Bill passed by the county assembly to the health services, control of air pollution,
Governor. The Governor is, within 14 days noise pollution, other public nuisances and
after receipt of a Bill, required to assent to outdoor advertising, cultural activities,
the Bill or refer the Bill back to the County public entertainment and public amenities,
Assembly with a memorandum outlining county transport, animal control and
reasons for the referral. If the Governor welfare, trade development and regulation,
refers a Bill back to the county assembly, the county planning and development, pre-
county assembly may amend the Bill, taking primary education, village polytechnics,
into account the issues raised by the Governor home craft centers and childcare facilities,
or pass the Bill without amendment. If a implementation of specific national
county assembly amends the Bill taking government policies on natural resources and
into consideration the issues raised by the environmental conservation, county public
Governor, the Speaker shall within fourteen works and services, fire-fighting services and
days submit the Bill to the Governor for disaster management, control of drugs and
assent. If a county assembly passes the Bill pornography, ensuring and coordinating the
a second time, without amendment, or with participation of communities and locations
amendments which do not accommodate in governance at the local level and assisting
the Governor’s concerns by a vote supported communities and locations to develop the
by two-thirds of members of the county administrative capacity for the effective
assembly, the Speaker shall within seven days exercise of the functions and powers and
re-submit the Bill to the Governor and the participation in governance at the local level.
Governor shall, within seven days, assent to
the Bill. If the Governor does not assent to a
Conflict of Laws
Bill or refer it back within stipulated period, The exclusive functions of the national
the Bill shall be taken to have been assented government and the county government may
to on the expiry of that period. overlap and in areas of concurrency, the two
levels of government may legislate on the
Coming into Force and same matter differently leading to conflict
Publication of County Legislation of laws that requires resolution. Article
191 comes into play in respect of matters
Under the County Governments Act, No.17
falling within the concurrent jurisdiction
of 2012 a county legislation comes into force
of both levels of government. The national
on the fourteenth day after its publication in
legislation prevails over county legislation if;
44
BB Issue 40, January - March 2018

(a) the national legislation applies between legislation of different levels of


uniformly throughout Kenya and government, a court shall prefer a reasonable
any of the following conditions is interpretation of the legislation that avoids
satisfied: a conflict to an alternative interpretation
that results in conflict. A decision by a court
i. the national legislation
that a provision of legislation of one level
provides for a matter that
of government prevails over a provision of
cannot be regulated effectively
legislation of another level of government
by legislation enacted by the
does not invalidate the other provision, but
individual counties;
the other provision is inoperative to the
ii. the national legislation extent of the inconsistency.
provides for a matter that,
to be dealt with effectively, Conclusion
requires uniformity across i. This article sets off to enhance
the nation, and the national understanding of how the county
legislation provides that assembly performs its legislative
uniformity by establishing function in line with the legislative
norms and standards; or authority vested in it by the Constitution.
national policies It outlines the law making process in
(b) the national legislation is aimed at the county from introduction of a Bill
preventing unreasonable action by a up to the time the Bill becomes county
county that— legislation. It has set to clarify the areas
in which the county assembly can
i. is prejudicial to the economic,
legislative on and the remedy in case of
health or security interests of
an overlap when the national assembly
Kenya or another county; or
and the county assembly legislate on the
ii. impedes the implementation same matter. The county assembly has
of national economic policy. substantial powers which are necessary
In considering an apparent conflict for the development of the country.

“There is no time to waste. We must either unite now or perish.” -- Julius Nyerere

Some rights reserved by George Lamson

45
BB Issue 40, January - March 2018

Legislative Updates:
By Christine Thiong’o, Laws of Kenya Department

T
his is an outline of legislation in the form of Bills that have been gazetted in the period
between November, 2017 and February, 2018.

A. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY KENYA COAST GUARD SERVICE BILL, 2017


BILL

Dated 22nd November, 2017


Objective This Bill seeks to provide for the establishment, functions, discipline, organiza-
tion and administration of the Kenya Coast Guard Service. The Kenya Coast
Guard Service shall have the mandate of law enforcement and security in Ke-
nya’s internal and territorial waters.
The functions of the Service shall include enforcing maritime security and safe-
ty, pollution control and sanitation measures as well as prosecuting maritime
offenders. It shall also be responsible for port and coastal security, search and
rescue, the protection of maritime resources including fisheries and shall per-
form any other function conferred on it by any written law.
The Bill provides for the establishment of the Council of the Service, the Techni-
cal Committee of the Service as well as the appointment and qualifications of the
Director-General of the Service. It also outlines their functions.

Sponsor Aden Duale, Leader of Majority Party.

NATIONAL ASSEMBLY KENYA ROADS BILL, 2017


BILL
Dated 6th December, 2017
Objective The principal object of this Bill is to give effect to the Fourth Schedule to the
Constitution in relation to the roads sub-sector. It is proposed to review, con-
solidate and rationalize the legal and institutional framework for management
of the road network and roads sub-sector in a more efficient and effective man-
ner. With this object it is also proposed to amend the Kenya Roads Board Act,
1999(Cap. 408A), repeal the Kenya Roads Act 2007 (Cap. 408), and the Public
Roads and Roads of Access Act, 1920 (Cap. 399).
This Bill further provides for the classification, management, construction and
maintenance of public roads. It seeks to establish the Kenya National Highways
Authority, Kenya National Urban Roads Authority and Kenya National Second-
ary Roads Authority; and to provide for their functions and powers.
Sponsor Aden Duale, Leader of Majority Party.

NATIONAL ASSEMBLY PETROLEUM (EXPLORATION, DEVELOPMENT AND PRODUCTION)


BILL BILL, 2017
Dated 6th December, 2017
Objective This Bill proposes provision for a framework for the contracting, exploration,
development and production of petroleum; cessation of upstream petroleum
operations; and to give effect to relevant articles of the Constitution in so far as
they apply to upstream petroleum operations.
The principal object of this Bill is to provide a framework for the contracting, ex-
ploration and development of petroleum together with production of petroleum
discovered within licensed petroleum exploration blocks. The Bill also provides
a framework for the safe cessation of upstream petroleum operations. The Bill
proposes to repeal the Petroleum (Exploration and Production) Act (Cap. 308) of
the Laws of Kenya.
Sponsor Aden Duale, Leader of Majority Party.

46
BB Issue 40, January - March 2018

NATIONAL ASSEMBLY COUNTY PENSION SCHEME BILL, 2017


BILL
Dated 29th December, 2017
Objective The principal object of the Bill is to establish the County Pension Scheme as
a mandatory umbrella pension scheme for all county government officers. The
Bill provides for establishment of the Scheme’s Board of Trustees and provides
for the Scheme’s management and administration. The Bill proposes to have the
Scheme offer lump sum payments as provident, periodic payments as pension
and income drawdowns.
Sponsor Muriuki Njagagua, Member of Parliament.

NATIONAL ASSEMBLY ENERGY BILL, 2017


BILL
Dated 29th December, 2017
Objective The Bill seeks to consolidate the laws relating to energy, and align the legal and
regulatory framework of the energy sector with the Constitution of Kenya,
2010. It does this by setting out with clarity the specific roles of the National and
County Government in relation to energy.
The Bill proposes to repeal the Energy Act (No. 12 of 2006) and the Geothermal
Resources Act (No. 12 of 1982) of the Laws of Kenya.
Sponsor Aden Duale, Leader of Majority Party.

NATIONAL ASSEMBLY WAREHOUSE RECEIPT SYSTEM BILL, 2018


BILL
Dated 7th February, 2018
Objective This Bill seeks to provide a legal framework for the development and regulation
of a warehouse receipt system for agricultural commodities to address market-
ing challenges associated with cereals and grain subsectors in Kenya. It seeks to
establish the Warehouse Receipt System Council and outlines its functions and
powers.
The Bill provides for the licensing and inspection of warehouses; for the ap-
plication for a licence to operate within the Warehouse Receipts System, the
revocation and suspension of the licence. It also provides for the issuance of
a warehouse receipt for agricultural produce deposited in a warehouse, the es-
tablishment of a Central Registry operated by the Council for the purpose of
registering transactions relating to a warehouse receipt issued, the replacement
of lost, stolen or destroyed receipts and the status of the duplicate receipts issued.
Further provision is made for the rights and obligations of the warehouse opera-
tor on their rights including the liability for loss of goods to persons not lawfully
entitled to the goods and the operator’s lien over goods covered by a warehouse
receipt or proceeds of the goods for lawful charges in the storage contract. In
addition, it provides for the negotiation and transfer of receipts, negotiation by
endorsement and delivery, the rights acquired by negotiation of warehouse re-
ceipts, rights and obligations of transferors and transferees of negotiable ware-
house receipts and warranties on negotiations of the warehouse receipts.
Sponsor Aden Duale, Leader of Majority Party.

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BB Issue 40, January - March 2018

NATIONAL ASSEMBLY LAND VALUE INDEX LAWS (AMENDMENT) BILL, 2018


BILL
Dated 12th February, 2018
Objective The Bill proposes to amend the Land Act, the Land Registration Act and the Pre-
vention, Protection and Assistance to Internally Displaced Persons and Affected
Communities Act in order to provide for the assessment of land value index in
respect of compulsory acquisition of land. The Land Value Index will standardise
and harmonize the value of land across the country for the primary purpose of
determining land rent, land rates, stamp duty on conveyance of land and com-
pensation of expropriated land.
The Bill seeks to make land rates, rent, stamp duty and compensation predict-
able, rational and not prone to subjective valuations. It also seeks to regulate
the long and protracted process of compulsory acquisition and harmonize and
standardize the compensation thereof.
The Bill proposes to amend the Land Act in order to ease the acquisition of and
access to land or rights over land in order successfully implement public infra-
structure projects.
Sponsor Aden Duale, Leader of Majority

NATIONAL ASSEMBLY THE CONSTITUTION OF KENYA (AMENDMENT) BILL, 2018


BILL
Dated 12th February, 2018
Objective The principal object of this Bill is to amend the Constitution to ensure that the
membership of the National Assembly and the Senate conforms to the two-
thirds gender principle provided for in Article 81(b) of the Constitution. The Bill
seeks to give effect to the two-thirds gender principle through the creation of
special seats that will ensure that the gender principle is realized in Parliament
over a period of twenty years from the next general election. The Bill therefore
proposes to amend Articles 90, 97 and 98 of the Constitution.
Sponsor Aden Duale, Leader of Majority

NATIONAL ASSEMBLY PARLIAMENTARY SERVICE BILL, 2018


BILL
Dated 23rd February, 2018
Objective This Bill seeks to repeal and re-enact the Parliamentary Service Act, Act (No. 10
of 2000) in order to ensure that it complies with the provisions of the Constitu-
tion of Kenya, 2010. The current Parliamentary Service Act, 2000 was enacted
under the former Constitution and the Act was therefore enacted to give effect
to the provisions of sections 45A and 45B of the former Constitution which es-
tablished the Parliamentary Service and the Parliamentary Service Commission,
respectively. These provisions of the Constitution are no longer in force. Article
127 of the Constitution of Kenya, 2010 currently establishes a Parliamentary
Service Commission and Article 128 of the Constitution provides for the offices
of the Clerks of the Houses of Parliament and the offices of members of staff of
the Clerks as offices in the Parliamentary Service.
This Bill proposes to establish the Parliamentary Service as a non-partisan and
apolitical Service. It provides for the values of the Parliamentary Service which
are in addition to the national values and principles set out in Article 10 of the
Constitution and the values and principles of public service set out under Article
232(1) of the Constitution.
Sponsor Aden Duale, Leader of Majority

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NATIONAL ASSEMBLY THE CONSTITUTION OF KENYA (AMENDMENT) (NO. 2) BILL, 2018


BILL
Dated 22nd February, 2018
Objective The principal objective of the Bill is to amend Articles 101 (1), 136 (2) (a), 177 (1)
(a) and 180 (1) of the Constitution of Kenya by changing the existing date for the
general election for members of Parliament, the President, members of County
Assembly and the County governors and deputy county governors from the sec-
ond Tuesday of August in every fifth year to the third Monday in December in
every fifth year.
This Bill seeks to introduce a new date for conducting a general election that
would be more favourable to Kenya’s circumstances. The current date for the
general elections unduly disrupts the education calendar and most importantly
the conduction of national examination in case of either a fresh election or a
“run-off” or an invalidation of a Presidential election. Also, the tradition of read-
ing the Budget concurrently in East Africa has been disrupted by the current
election date.
The amendment further seeks to restore the tourism high season and the as-
pirations of a section of Kenyans who are not able to get time out of their busy
schedules to take part in the general elections at their places of preference. The
amendment will also clarify and put to rest all doubts regarding the exact date of
the next general elections and the term of the current Parliament.
Sponsor Chris Wamalwa, Member of Parliament

B. SENATE BILLS

SENATE BILL COUNTY ALLOCATION OF REVENUE (AMENDMENT) BILL, 2017


Dated 7th November, 2017
Objective The principal object of this Bill is to amend the County Allocation of Rev-
enue Act, No. 23 of 2017. It seeks to replace the Third Schedule of the Bill
on Conditional allocations to County Governments from Loans and Grants
from Development Partners in Financial Year 2017/2018.
Sponsor Kipchumba Murkomen, Senate Majority Leader.

SENATE BILL FOOD SECURITY BILL, 2017


Dated 29th December, 2017
Objective This Bill proposes to give effect to Article 43(1) (c) of the Constitution on the
freedom from hunger and the right to adequate food of acceptable quality;
Article 53(1) (c) of the Constitution on the right of every child to basic nutri-
tion and Article 21 of the Constitution on the implementation of rights and
fundamental freedoms under the Constitution.
This Bill provides a framework and mechanism for the National and County
governments to fulfill their obligations in relation to food security.
Sponsor Kipchumba Murkomen, Senate Majority Leader.

SENATE BILL ASSUMPTION OF THE OFFICE OF COUNTY GOVERNOR BILL, 2018


Dated 12th January, 2018
Objective The principal object of this Bill is to provide for the procedure and ceremony
for the assumption of the Office of Governor by a Governor elect. There is
presently no legal framework governing the assumption of the office of the
Governor. The framework is important as it would ensure a successful and
smooth transition into the office of Governor by a Governor-elect.
Sponsor Paul Kimani Wamatangi, Senator

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Legal Supplements
By Christine Thiong’o, Laws of Kenya Department

T
his is a brief summary of Legislative Supplements published in the Kenya Gazette. The
outline covers the period between 10th November, 2017 and 19th February, 2018.

DATE OF L E G I S L A T I V E CITATION PREFACE


PUBLICATION SUPPLEMENT
NUMBER
10th November, 82 Kenya Institute of This Order is made by the Cabinet Secretary in
2017 Primate Research the Ministry of Education in exercise of the pow-
Order, 2017 ers conferred by section 16 (1) and 17 (1) of the
Science, Technology and Innovation Act, 2013.
L.N. 273/2017 It establishes the Kenya Institute of Primate Re-
search as a successor to the Institute of Primate
Research. The Institute shall be the national
centre undertaking biomedical and preclinical
research in primates for development of health
products and other services that meet local and
international standards.
The Order sets out:
i. The functions and powers of the Institute;
ii. The Board of the Institute, which shall
have the responsibility of managing the In-
stitute; and
iii. Financial provisions.
22nd November, 85 Land Registration This Order is made by the Cabinet Secretary for
2017 (Registration Units) Land, in consultation with the National Land
Order, 2017 Commission and the county governments in ex-
ercise of the powers conferred by section 6 of the
L.N. 277/2017 Land Registration Act.

It provides for the-


i. establishment of registration units;
ii. survey and other activities in a registration
unit; and
iii. migration of registries and titles.
The First Schedule sets out the land registration
units and land registries in respective counties.

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22nd November, 86 Land Registration The Cabinet Secretary, after taking into account
2017 (General) Regula- the advice of the National Land Commission,
tions, 2017 makes these Regulations in exercise of the powers
conferred by section 110 of the Land Registration.

L.N. 278/2017 The Regulations provide for matters relating to


the following:
i. Organisation and administration of
registries;
ii. Power of attorney;
iii. Registration under the register;
iv. Boundaries;
v. Disposition affecting land;
vi. Charges;
vii. Leases;
viii. Inhibitions, restrictions and cautions;
ix. Easement and analogous rights;
x. Official searches;
xi. Electronic registration and conveyancing;
xii. Corrections, rectifications and indemnity;
xiii. Forms; and
xiv. Miscellaneous provisions on fees.
24th November, 87 Community Land The Cabinet Secretary for Land and Physical
2017 Regulations, 2017 Planning makes these regulations in exercise of
the powers conferred by section 48 of the Com-
munity Land Act, 2016.
L.N. 279/2017
These Regulations provide for:
i. Recognition, protection and registration of
community land rights;
ii. Conversion of community land to public
land or private land;
iii. Conversion of private land or public land
to community land;
iv. Setting aside community land for public
purposes;
v. Special rights and entitlement in
community land;
vi. Environment and natural resources
management;
vii. Settlement of disputes relating to
community land; and
viii. Conversion of group representatives.
24th November, 88 Land Regulations, These Regulations are made by the Cabinet Sec-
2017 2017 retary for Land and Physical Planning in exer-
cise of powers conferred under section 160 of
L.N. 280/2017 the Land Act. They deal with following matters,
among others:
i. Administration of public land;
ii. Conversion of freehold and leasehold
tenure over ninety-nine years owned by
non -citizens;
iii. Administration of private land;
iv. Compulsory acquisition of interests in
land;
v. Settlement programmes; and
vi. Easements and analogous rights.

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1st December 89 Land (Extension These Rules are made by the National Land Com-
2017 And Renewal of mission in exercise of the powers conferred by
Leases) Rules, 2017 section 13(2) of the Land Act, 2012. They provide
for:
L.N. 281/2017 i.) Extension of Lease - A lessee may apply to
the Commission at any time before expiry
of a lease for extension of lease;
ii.) Notification of approaching expiration of the
Lease - Within five years before the ex-
piry of a leasehold tenure, the Commis-
sion shall notify the lessee that the lease is
about to expire;
iii.) Renewal of lease before expiry - A person
who wishes to renew a lease shall apply to
Commission for renewal; and
iv.) Renewal of expired leases after expiry.
1st December 89 Land (Conversion The National Land Commission makes these
2017 of Land) Rules, Rules in exercise of the powers conferred under
2017 section 9(5) of the Land Act.

L.N. 282/2017 The Rules deal with the identification of land to


be converted either from public land to private or
community land. They also address planning and
surveying of the land intended to be converted
and public consultation on viability of the con-
version.
1st December 89 Land (Assessment These Rules are made under section 111(2) of the
2017 of Just Compensa- Land Act. They list the factors the Commission
tion) Rules, 2017 shall consider when assessing compensation, in-
cluding the market value of the land.
L.N. 283/2017
These Rules further outline the considerations
the Commission shall take when determining an
award based on the assessment of market value of
the land to be acquired.
1st December 89 Land (Allocation of The National Land Commission makes these reg-
2017 Public Land) Regu- ulations pursuant to section 12(11) of the Land
lations, 2017 Act, 2012. The Regulations outline the methods
of allocation of public land, which are-
L.N. 284/2017 i. public auction;
ii. application confined to a targeted group of
persons or groups;
iii. public notice of tenders;
iv. public drawing of lots;
v. public request for proposals; and
vi. public land exchange of equal value.
In determining the method of allocation the
Commission shall, in consultation with the na-
tional government or respective county Govern-
ment as the case may be, take into consideration
all prevailing circumstances including the pur-
pose for the allocation.

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29th December, 95 Political Parties The Registrar of Political Parties makes these
2017 (Staff Mortgage and Regulations in exercise of the powers conferred
Car Loan Scheme) by sections 33 and 49 of the Political Parties Act.
Regulations, 2017 These Regulations apply to the Registrar of Po-
litical Parties and members of staff of the Office
L.N. 294/2017 of the Registrar of Political Parties.

The objective of the Scheme shall be to provide a


loan scheme for members of staff for-
i. purchase of an existing residential
property;
ii. purchase of land and construction of a
residential property;
iii. construction, renovation and
improvement of an existing residential
property;
iv. takeover of loans on existing mortgages;
v. equity release;
vi. purchase of cars; and
vii. takeover of existing car loans.
29th December, 96 Capital Markets The Cabinet Secretary for the National Treasury
2017 (Securities Lend- makes these Regulations in exercise of the powers
ing, Borrowing conferred by section 12 (1) of the Capital Markets
and Short-Selling) Act.
Regulations, 2017 These Regulations deal with:
i. Securities lending and borrowing - including
L.N. 295/2017 the criteria for identifying securities to be
lent or borrowed; and persons to undertake
securities lending and borrowing.
ii. Short-selling of securities - including
securities permitted in short sales; persons
permitted to undertake short-selling; and
requirements for short-selling.
26th January, 1 National Transport The Cabinet Secretary for Transport,
2018 and Safety Author- Infrastructure, Housing and Urban Development,
ity (Operation of in consultation with the Board, makes these
Commercial Ve- Regulations in exercise of the powers conferred
hicles) Regulations, by section 54 of the National Transport and
2017 Safety Authority Act, 2012.
These Regulations apply to any commercial
L.N. 3/2018 vehicle whose tare weight is more than three
thousand and forty eight kilograms and operating
on a public road in Kenya.
19th February, 6 Criminal Procedure The Attorney-General makes these Rules in exer-
2018 (Plea Bargaining) cise of the powers conferred by section 137O of
Rules, 2018 the Criminal Procedure Code. The Rules provide
for:
L.N. 47/2018 i. The Plea Agreement;
ii. How to handle information obtained from
an accused person;
iii. Private prosecutor entering into plea ne-
gotiations with an accused person;
iv. Approval of plea agreement;
v. Initiation of plea negotiations;
vi. Option for a compensation clause for the
payment to a victim by an accused person;
and
vii. Plea Agreement Forms are set out in the
Schedule and shall comply with the pro-
visions of sections 137E and 137F of the
Criminal Procedure Code.

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Law Reform
Compilation
Penal sanctions imposed on children accused of sexual offences should be re-
examined in the criminal justice system
P O O (A Minor) v Director of Public Prosecutions & another
High Court of Kenya at Homa Bay,
Constitutional Petition No 1 of 2017
H A Omondi, J
August 17, 2017

Brief Facts the Petitioner was a minor.

T
he Petitioner was arrested and charged Issues
at Senior Resident Magistrates Court,
i. Whether minors had the legal
Mbita with the offence of defilement
capacity to consent to sex.
contrary to section 8(1) as read with 8(4)
of the Sexual Offences Act. He faced an ii. Whether minors who had sexual
alternative charge of committing an indecent intercourse should both be
act with a child contrary to section 11(1) of charged with defilement.
the same Act. He pleaded not guilty to the iii. Whether age assessment of an
charges and the matter proceeded to hearing accused person could be done by
where the complainant and a clinical officer observation and common sense.
testified. He was unrepresented. The matter
was listed during the Children’s Service iv. Whether the state discriminated
Week and that was when the advocate was against the Petitioner by charging
appointed to represent him. The Petitioner him alone as opposed to alongside
told his advocate that at the time of the alleged the complainant for defilement
offence he was 16 years of age, whereupon as they were both minors and
the advocate made an application for the age incapable of consent.
assessment report on November 17, 2016. Holdings pertinent to Law Reform
The Petitioner claimed that he had informed
1. Article 23(1) of Constitution provided
the Trial Court on March 15, 2016 that he
that the High Court had the jurisdiction
was a minor being held in a prison for adults
in accordance with article 165 to
and although the Trial Magistrate directed hear and determine applications
that he be held at a police station so as to be for redress of denial, violation and
escorted to hospital for age assessment, the infringement of, or threat to, a right
order was not complied with nor did the or fundamental freedom in the Bill
Trial Court follow up on the issue. of Rights. In particular, article 165(3)
The Respondents contended that charging (d) of the Constitution stated that the
the Petitioner in Mbita had not violated his High Court had jurisdiction to hear any
rights as there was no consensual intercourse question respecting the interpretation
between adolescents and that the advocate of the Constitution including the
who was appointed could have made an determination of the question whether
anything said to be done under the
application before the Trial Court for recall
authority of the Constitution or
of the witnesses who had already testified or
any law was inconsistent with, or in
had the hearing de novo so as to be provided
contravention with the Constitution.
with the necessary documents before trial. The High Court had supervisory
The Respondents also contended that no jurisdiction over administrative actions
evidence had been presented to prove that in ensuring that the Constitution of the

54
BB Issue 40, January - March 2018

Republic of Kenya was upheld by all one pegged a certain figure to his age.
the administrative bodies as well as the There had to be a rational basis for
lower Courts. making that presumption.
2. The Petitioner did not submit any 6. The Court did not have the advantage
document upon arrest or before the Trial of seeing the Petitioner and making
Court to indicate that he was a minor, an assessment so as to make the
neither was any evidence submitted by presumption being suggested. The
his relatives to indicate his age. Apart entire conduct of the Trial Magistrate
from medical evidence, age could also be in relation to the Petitioner indicated
proved by birth certificate, the victim’s that the Court was actually persuaded
parents or guardian and by observation that he was a minor. That was why he
and common sense. However, it was on was assigned an advocate at the State’s
record in the Trial Court’s proceeding expense to represent him, and his matter
that the Petitioner brought to the Trial was listed during the Children’s Service
Magistrate’s attention that he was Week. There was a presumption made
a minor. The Trial Magistrate gave by the Trial Court that the Petitioner
an order to have the Petitioner’s age was a child and the provisions of section
assessed at Homa Bay District Hospital 143 of the Children’s Act applied.
on March 15, 2016. Unfortunately, from
7. Article 2(6) of the Constitution provided
the Trial Court’s records, there was no
that any treaty or convention ratified
evidence of follow-up by either the 1st
by Kenya would form part of the law of
or the 2nd Respondent in relation to
Kenya. Article 2(5) of the United Nations
whether age assessment of the Petitioner
Convention on the Rights of the Child,
was conducted.
which Kenya had ratified, provided
3. On the Children’s Service Week, an that no child was to be subjected to
advocate was appointed by the Senior discrimination on the grounds of sex.
Principal Magistrate of Mbita for the The discriminatory application of a
Petitioner; that clearly showed that the law, if it was established, was wrong.
Magistrate considered the Petitioner But such a conduct by the person who
a minor, bearing in mind that the exercises it did not render the law itself
Petitioner’s age was yet to be assessed. discriminatory.
That fitted in with the cited observation
8. In exercising its prosecutorial powers,
and common sense that could be used to
the DPP ought to have paid fidelity to
presume age.
section 4 of the Office of the Director of
4. It would be fallacious to vilify the Prosecutions Act, 2013 which provided
Respondents for not getting the doctors that in fulfilling its mandate, the Office
to conduct an age assessment considering would be guided by the Constitution
that the time the Magistrates Court issued and the fundamental principles of-
the order for age assessment the doctors a. impartiality and gender equity;
were on strike. The 1st Respondent b. the rules of natural justice; and
had no power to force the striking c. the need to serve the cause of justice,
defiant doctors to comply. However, the prevent abuse of the legal process and
Petitioner made the same application in public interest.
his first appearance in Court, almost a
9. What transpired in the instant matter
month before the doctors went on strike
did not live up to the ideals espoused in
and still the age assessment report was
the ODPP Act. The mere assertion by
yet to be provided.
the Petitioner that he was a child ought
5. Section 143(1) of the Children’s Act was to have been investigated at the first
clear on the presumption of childhood, instance and a children’s officer should
but it was not at the Court’s instance that have been assigned the duty of getting
the issue of the Petitioner’s status arose. more information about the minor. The
The Petitioner was the one who raised Appellant was discriminated against on
it, and the court simply acted on that. the basis of sex in that he was charged
The basis of making the presumption alone but in reality they both needed
under section 143 could be the person’s protection against sexual activities.
physical appearance and not just because

55
BB Issue 40, January - March 2018

10. The order to provide the Petitioner offence or a child in conflict with the law.
with witness statements was made in Policy No 5.10 of The National Children
the Trial Court; however the same was Policy stated that all children deserved
not complied with. The 1st Respondent protection in matters regarding the law,
was not keen on prosecuting that matter whether they were in conflict with the
and most especially in upholding the law or required legal assistance.
Constitution, and as such infringed on
the Petitioner’s rights. 15. It ought to have been clear to the
Respondent that the Petitioner being a
11. The 2nd Respondents commenced the minor and the fact that the Children’s
Trial without taking into account the fact Officer was not assigned the work of
that the Petitioner was not represented, locating his next of kin, it was close to
even after noting that he alleged to be impossible for him to be bailed out of
a minor and making an order that an remand.
age assessment report be furnished by
the 1st Respondent. Moreover, there 16. It was not in the best interest of the
was no evidence indicating that the 2nd children in conflict with the law to be
Respondent assigned the Children’s mixed up with adult offenders. That
Officer to locate the Petitioner’s adult was why the law was unambiguous
relatives in order to assist him. that they ought to be put separately, as
was provided in article 53(1)(f) of the
12. The criminal justice system ought to Constitution as well as Bail and Bond
take account of a defendant’s age, level of Policy Guidelines. The conduct of
maturity, and emotional capacity. It was the Respondents contravened article
only by doing so that the system could 53(2) of the Constitution of Kenya; the
redress the imbalance which was the best interest of the child was not taken
inevitable result where a child or young into consideration. The right of the
person was confronted by the power of Petitioner not to be detained and when
the criminal justice. The Petitioner was detained to be held separate from adults
left on his own to conduct a hearing in an was infringed; the said contravention
offence which was complex and which might bruise the Petitioner for the rest
attracted a minimum prison sentence of his life.
of 15 years. He certainly suffered
substantial disadvantage. 17. [Obiter] “The complainant knew the
Petitioner as they attended the same
13. Article 50(2)(h) of the Constitution; that church, and they would spend a long
provided that every accused person had time talking. He requested her to go to
the right to a fair trial which included his home and she obliged. They removed
the right to have an advocate assigned their clothes and had sex. This kind of
to the accused person by the State and scenario has bothered my mind ever
at State expenses if substantial injustice since the harsh penalties in the Sexual
would otherwise result; and article 37(d) Offences Act came into operation.
of the United Nations Convention on These are minors-both in their teens
the Rights of the Child, which provided when hormones are raging madly. They
that any child deprived of his/her decide to experiment on their prowess
liberty had a right to prompt access to mutually-then lo and behold the girl
legal and other appropriate assistance; gets pregnant and an enraged parent
unambiguously illustrated that the reports to the police, who in turn arrest
Petitioner being a minor with limited the boy [I say this because the prosecutor
knowledge of his rights and even how to addressed the court on 17/11/2016
express those rights suffered substantial as follows “I pray DNA test be done. A
injustice in the absence of legal aid or child has been born out of the offence.”
assistance from an adult. There was a Does a boy under 18 years have the legal
basis for presuming that the Petitioner capacity to consent to sex” Haven’t both
was a minor, the Petitioner’s right to be children defiled themselves” Shouldn’t
provided with legal representation at the both then be charged or better still
expense of the State was violated. shouldn’t the Children’s Officer be
14. There was need to emphasize that a child involved and preferably a file for a child
remains a child whether the victim of an in need of care and protection ought to

56
BB Issue 40, January - March 2018

be opened for both of them. I think these sanctions. “I really think in this kind of
are children who need guidance and situation should be re-examined in the
counseling rather than criminal penal criminal justice system.”

Magistrates’ Courts have jurisdiction to hear and determine employment and


labour relations claims and environment and land matters.
Law Society of Kenya Nairobi Branch & another v Malindi Law Society & 6 others
Court of Appeal at Nairobi,
Civil Appeal No 287 of 2016
P N Waki, R N Nambuye, D K Musinga, S Gatembu Kairu & A K Murgor, JJ A
October 19, 2017
Brief facts the notices of appeal filed by branches of the
Law Society of Kenya struck out on grounds
The Statute Law (Miscellaneous
that those branches had no right of appeal
Amendments) Act, 2015 introduced several
as they were not parties to the High Court
amendments which were challenged on
proceedings.
grounds of unconstitutionality. It amended
the Environment and Land Court Act by Issues
allowing the Chief Justice to transfer judges i. Whether Respondents who were not
from the Environment and Land Court to the party to High Court proceedings
High Court and vice versa. Additionally, the had the locus standi to challenge the
Statute Law (Miscellaneous Amendments) High Court’s decision at the Court of
Act, 2015, introduced amendments to section Appeal.
101 of the Land Registration Act and section ii. Whether provisions in the Statute
150 of the Land Act, allowing subordinate Law (Miscellaneous Amendments)
Courts to have jurisdiction in environment Act, 2015 which allowed the Chief
and land matters. Justice to transfer judges from the
The Magistrates’ Court Act was also the Environment and Land Court to
subject of a challenge on the constitutionality the High Court and vice versa, were
of some of its provisions. Section 9 gave constitutional.
Magistrates’ Courts jurisdiction to deal iii. Whether Parliament, through
with environment and land matters and also legislation, could confer jurisdiction
employment and labour relations claims. upon Magistrates’ Courts to hear
and determine environment and land
Generally, it was argued that environment matters and also employment and
and land matters and also employment and labour relations claims.
labour relations claims were within the
Holdings pertinent to Law Reform
exclusive jurisdiction of specialized Courts
which were of the same status as the High 1. The Law Society of Kenya was a party
Court and were provided for under article to the High Court proceedings but its
162(2) of the Constitution. The specialized branches were not. Section 24 of the
Courts included the Environment and Land Law Society of Kenya Act introduced
Court and the Employment and Labour branches as organs of the Law Society
Relations Court. The High Court’s judgment of Kenya. The branches were semi-
was to the effect that the provisions autonomous, if not autonomous.
that allowed for transfer of judges from Sections 15 and 24(2) of the Law
specialized Courts to the High Court and Society of Kenya Act did not suggest
that they did not have autonomy. The
those that granted subordinate Courts
issues that the branches sought to
jurisdiction to handle environment and
raise in the appeal were in line with
land matters and employment and labour
section 24(2)(a) of the Law Society of
relations claims were unconstitutional. Kenya Act.
Against the judgment, an appeal at the Court
of Appeal was filed. 2. Under article 3(1) of the Constitution,
every person had the obligation
During the hearing of the appeal a preliminary to respect, uphold and defend the
issue arose. The Malindi Law Society wanted Constitution. Article 260 of the

57
BB Issue 40, January - March 2018

Constitution defined a person as certain matters would lay with


including a company, association the specialized Courts, conferring
or other body of persons whether jurisdiction on Magistrates’ Courts
incorporated or unincorporated. to hear and determine those matters
The right to institute proceedings would not diminish the specialization
to enforce fundamental rights and of specialized Courts. The doctrine
freedoms was guaranteed under of judicial precedent would bind
article 22(1) of the Constitution and the Magistrates’ Courts and would
the right to institute proceedings in undoubtedly imprint specialized
order to defend the Constitution was jurisdiction on Magistrates’ Courts.
guaranteed under article 258(1) of the
6. As a cannon of interpretation the
Constitution. Article 258(2) allowed
Constitution would have to be
for the institution of proceedings by
considered as a whole. It ought to
a person acting on his own behalf, or
be interpreted to ensure that the
as a member of or in the interests of a
outcome of the interpretation would
group or class of persons, or in public
not give rise to an absurdity or
interest or as an association acting
illogical result.
in the interests of one or more of its
members. 7. Devolution, access to services
and access to justice were critical
3. Article 259 of the Constitution
pillars of Kenya’s constitutional
provided that the Constitution ought
architecture. Article 48 of the
to be interpreted in a manner that
Constitution demanded that the
promoted its purposes, values and
State had to ensure access to justice
principles, advanced the rule of law
for all persons. One facet of that was
and human rights and fundamental
the geographical location of Courts
freedoms in the Bill of rights,
and their proximity to the people that
permitted the development of the law
would be served by the Courts.
and contributed to good governance.
The Constitution ought to also be 8. Kenya had more Magistrates’ Courts
interpreted in accordance with than specialized Courts or High
the doctrine that the law is always Court stations. The close proximity
speaking. of Magistrates’ Courts to the people
ensured efficiency and access to
4. The Court was unable to interpret
justice at a reasonable cost. It would
article 162(2) of the Constitution as
be illogical and unreasonable to
a provision which limited the power
prohibit Magistrates’ Courts from
of Parliament to confer jurisdiction
determining land and employment
on subordinate Courts which were
disputes, when it was undeniable that
established under article 169(1)(a), (b)
their reach to the citizenry was wider
and (c). Article 169(2) provided that
than that of specialized Courts.
Parliament had to enact legislation
conferring jurisdiction, functions 9. Had the framers of the Constitution
and powers on the subordinate intended to restrict Parliament’s
Courts. A distinction ought to be power to enact legislation conferring
drawn between the power granted to jurisdiction on Magistrates’ Courts
Parliament under the Constitution with respect to disputes relating to
to establish Courts, which was employment and labour relations and
restricted, and the power to confer the environment and land matters,
jurisdiction on Courts. In enacting the restriction would have been
the Magistrates’ Court Act, as stated provided for expressly.
in its preamble to give effect to 10. Under article 165(5) of the
article 169(1)(a) of the Constitution, Constitution, the High Court would
to confer jurisdiction, functions and not have jurisdiction in respect of
powers on the Magistrates’ Courts, matters reserved for the exclusive
Parliament did not exceed its powers jurisdiction of the Supreme Court
or act ultra vires. under the Constitution or those
5. Considering that appeals over the falling within the jurisdiction of the

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specialized Courts contemplated in Courts could not administratively be


article 162(2) of the Constitution. The transferred to serve in the High Court
provision did not say that the matters, and vice versa. The High Court was
in the case of specialized Courts were right in holding that the Chief Justice
reserved to the exclusive jurisdiction had no mandate to transfer judges of
of those Courts, it stated that the the High Court to specialized Courts
matters fell within the jurisdiction of and vice versa.
the specialized Courts.
Appeal partly allowed.
11. Although article 162(2) of the
Orders: -
Constitution mandated Parliament
to establish Courts with the status of 1. The judgment and order of the High
the High Court to hear and determine Court declaring section 2 of the Statute Law
disputes relating to employment and (Miscellaneous Amendments) Act 2015; sections
labour relations and environment 7(3), 8(d) and 26(3) and (4) of the ELC Act;
and the use and occupation of, and sections 9(a) and (b) of the Magistrates’ Court Act,
title to land, that in itself did not 2015 as unconstitutional, null and void was set
confer exclusive jurisdiction to aside.
those specialized Courts to hear and
determine the specified types of cases. 2. The order of certiorari issued by the High
Court quashing Gazette Notice Numbers 1472
12. The Supreme Court in Republic v dated March 1, 2016 published on March 11,
Karisa Chengo & 2 others conclusively
2016 and 1745 dated March 14, 2016 published
settled the question as to whether the
on March 18, 2016 was set aside.
Chief Justice could transfer a judge
from the High Court to specialized 3. Each party had to bear its own costs of the
Courts and vice versa. A judge appeal.
appointed to serve in specialized

There is need for amendment of the Constitution to align the tenure of the
MCAs with that of the MPs and other elective constitutional State Officers of
the National and County Governments
Andrew Kiplimo Sang Muge & 2 Others v Independence Electoral and Boundaries
Commission & Another
High Court of Kenya at Nairobi,
Petition No. 576 of 2015(as consolidated with Petition 118 of 2016 and Petition 148 of
2016)
E.M.Muriithi, J
April 27, 2017

Brief facts: premature as the notice of the holding of the


election had not been gazetted in the Kenya
The Petitioners challenged the general
Gazette; that the Court lacked jurisdiction
election date appointed by IEBC as August 8,
to deal with a question of the date for the
2017, with regard to the election of Members
general election and that the election date
of the County Assemblies (MCAs), claiming
of August 8, 2017 was in accordance with
that the tenure of the MCAs was fixed by
the provisions of article 177(1)(a) of the
article 177(4) of the Constitution as a term of
Constitution and that to uphold the petition
five (5) years. It was contended that the effect
would be discrimination to the offices of the
of holding of the general elections on August
President, Governor and MPs. According
8, 2017 was unconstitutionally reducing the
to the 2nd Respondent, the matters before
term by a period of 8 months. They pointed
the Court were res judicata by virtue of the
to the conflict of articles 177 (1) (a) and article
decision in John Harun Mwau .v. Attorney
177 (4). It was contended that in accordance
general & Others [2012] eKLR.
with article 255, the tenure of the MCAs
could only be altered by an amendment to Issues:
the Constitution through a referendum. i. What was the term of office of the
The IEBC responded that the petitions were MCAs and was it different from the

59
BB Issue 40, January - March 2018

term of office of holders of other every fifth year unless Parliament


elective offices. in times of war extends the life of
ii. Whether there was a conflict between Parliament for up to 12 months in
the provisions of articles 177 (1) (a) accordance with article 102 (3) of the
and 177 (4) of the Constitution. Constitution.
iii. Whether holding the elections for 4. For the MCAs, the position was
the position and office of the MCAs muddied by the provisions of article
on August 8, 2017, would constitute 177 (4) of the Constitution, which
deprivation of their property without provided for a fixed term of five
compensation. years. There was need to resolve that
iv. Whether the petitions were premature apparent conflict in article 177(1) (a)
as the notice of the holding of the and article 177 (4) of the Constitution.
election had not been gazetted in the It was contended that the Offices of
Kenya Gazette. the MCAs did not become vacant
Holdings pertinent to Law Reform: until in accordance with article 194
(1) (f), which article provided that the
1. In accordance with the decree of office of a MCA became vacant at the
article 102 (1) of the Constitution, end of the term of the assembly.
the term of each House of Parliament
expire on the date of the next general 5. One provision of the Constitution
election. That contrasted with the could not be unconstitutional
provisions of the former Constitution as measured against another.
of Kenya (1969) where MPs had, under Importantly, there was, a case for
section 59 (4) thereof, a specific tenure amendment of the Constitution to
of five years, subject to dissolution of align the terms of all elective offices,
Parliament by the President or upon but that did not mean that the
a vote of no confidence as provided provision defining the term of MCAs
for in section 59 (2) and (3) of the as five years was unconstitutionally
1969 Constitution. discriminatory of the holders of other
elective offices.
2. There had been a misconception that
MPs under the Constitution of Kenya, 6. The term of the office of the MCAs
2010 had a definite period of five was plainly set out in unambiguous
years, which accordingly delimited constitutional text of articles 177 (4)
their tenure and reduction of which and 194 (f) of the Constitution so that
by earlier elections should, therefore, a County Assembly was elected for a
attract compensation for the loss of term of five years expiring at the end
months of their tenure. While the of the term of the assembly.
repealed Constitution provided for 7. In accordance with the Mischief
MPs tenure as a fixed term of five Rule of interpretation of statute, the
years, the Constitution of Kenya, provisions of the Constitution for
2010 provided for tenure for the ascertainment of the election date
MPs reckoned by reference to a date, were understandably geared towards
being the 2nd Tuesday in August, in certainty of the election date, lest it be
every fifth year, rather than to a fixed used, as in the past, a secret weapon
term. For that reason, the holding by the ruling political party against
in John Harun Mwau’s decision that other parties to the election.
the term for the next President,
8. All the constitutional provisions for
MPs, Governors and MCAs would
elections under the Constitution
be shorter than five years as a
of Kenya, 2010 appointed the 2nd
consequence of the transitional
Tuesday of August of the fifth year
provisions appeared to be erroneous.
as the election date and decreed
The President, MPs and Governors
that all the elections for the various
did not have a five year term under
elective positions in the national and
the Constitution of Kenya, 2010.
county levels had to be held on the
3. There was no tenure for the MPs very same date. The general election
after the 2nd Tuesday in August, in cycle for MPs was set out in article

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101 of the Constitution, election of 2nd Tuesday in August, in every fifth


the President was provided for under year.
article 136, whereas election of county
11. There was need for amendment of
governor was provided for under
the Constitution to align the tenure
article 180. For County Assembly, the
of the MCAs with that of the MPs
election cycle was aligned to that of
and other elective state officers of the
the MPs by the provisions of article
National and County Governments
177 (1) (a) of the Constitution. Any
in order not only to remove the
other interpretation would lead to
liability to pay for the remainder of
constitutional chaos.
the MCAs term of office that would
9. The President, MPs and the always remain unexpired when
Governors would be elected on one elections were held as they had to be
date while the County Assembly on the 2nd Tuesday of August of every
would have to await eight months fifth year, but also to clarify the term
for new MCAs to be elected, and the of office of MCAs to coincide with
new governor, who would have a those of other constitutional elective
fresh mandate of the people, would state officers. The Constitution could
serve under the accountability of old be amended to delete the provisions
MCAs whose mandate traced back of article 177 (4) without affecting
to the general elections of 2013. The the provisions of article 177 (1) (a)
Constitution would not support such which provided for election of MCAs
an absurdity. together with that of the MPs on
the 2nd Tuesday of August of every
10. Harmony and consistency in
fifth year. Whether such amendment
constitutional provisions had to
required the referral to a referendum
dictate that the election date for all
under article 255 of the Constitution
the elections of the general election
was not before the instant Court for
under the Constitution be held
determination.
as stipulated on the same day as a
general election of MPs, being the

“Cooperation and conflict are two sides of the same coin; both arise out of man’s relationship
with his fellows. The larger the group, the greater the possibility of development through
cooperation, and the greater the possibility of conflict” -- Julius Nyerere

Some rights reserved by Wildcatsff

61
BB Issue 40, January - March 2018

Difference in Judicial
Reasoning
A. Introduction on the lower courts.
• Horizontal: this means same court
Judicial Reasoning refers both to the process
is bound to follow its own prior
of thought by which a judge reaches a
decision and prior decision of a
conclusion as to the appropriate result in a
court of the same level whether past
case, and to the written explanation of that
or present.
process in a published judgment.
The major reason for compliance with
The reasons for a decision give an objective precedent is that a higher court in the
analysis and the underlying processes of superior cadre laid down the principle as
thought involved in exploring and resolving applicable law. If the lower court disobeys
a legal problem. Legal problems are usually the principle, on appeal, the higher court can
so complex and variable that there is no one- correct or reverse the decision of the lower
way of reaching a set conclusion. Various court.
judges may use different reasoning to come
up with conflicting decision over similar However Judgments of Courts of law are not
facts of a case. computer outputs ensuring consistency and
absolute precision, but they are the products
A typical written judgment begins by of human thoughts based on the given set of
outlining the facts of the case, and then facts and the interpretation of the applicable
proceeds to a discursive exploration of law. This brings about differing reasoning
the relevant legal doctrines and principles. as a product of the judge’s philosophy, logic,
Implicit in this structure, though rarely understanding of history, social reality, sense
spelled out explicitly, is the idea that the final of right and perceptions of justice come
stage in the process of judicial reasoning will into play. This compilation therefore sets
produce the relevant propositions of law to highlight instances where there has been
(which constitute the major premise) and a difference of judicial opinion on common
analyze the facts of the case (which are the issues by courts of concurrent jurisdiction.
minor premise) and the conclude by applying
this law to the facts. C. Cases Showing Differences in Judicial
Reasoning that are yet to be Settled
B. Doctrine of Stare Decisis
1. Whether the Listing of Deputy
The principle of stare decisis is a juridical Governors as Respondents in
command to the courts to respect decision Gubernatorial Election Petitions
already made in a given area of the law. is Mandatory
The practical application of the principle
of stare decisis is that courts are bound by Kenyan election laws are not clear on
their previous judicial decisions, as well as the position of Deputy Governors in
decisions of the courts superior to them. In gubernatorial election petitions. This has
other words a court must follow the decisions led to confusion in the handling of the issue
of the courts superior to it. Basically, under of whether listing of Deputy Governors
the, the decision of a higher court within the as respondents in gubernatorial election
same provincial jurisdiction acts as binding petitions is mandatory as different courts
authority on a lower court within that same have dealt with the issue and resolved it
jurisdiction. differently and in the process arrived at
different conclusions.
The doctrine of stare decisis operates in two
ways; The Constitution of Kenya, 2010 under
article 180 (5) states that each candidate for
• Vertical: this means that prior
election as county governor should nominate
decision of a higher court is binding

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a person who is qualified for nomination for who had been directly elected in the election
election as county governor as a candidate and was therefore the one who would cease
for deputy governor. Article 180 (6) goes to hold office if the election was validly and
on to state that the Independent Electoral successfully challenged and that the Deputy
and Boundaries Commission should not Governor would only be collateral damage.
conduct a separate election for the Deputy
Similarly in Hassan Omar Hassan & another
Governor but should declare the candidate
v Independent Electoral & Boundaries
nominated by the person who is elected
Commission & 2 others [2017] eKLR the Court
county governor to have been elected as
held that the joinder of the Deputy County
the Deputy Governor. Article 182 (1) (c)
Governor was not crucial to the instant
and (e) provide that the office of the County
Petition. The Court further held that article
Governor shall become vacant if the holder
180(1) of the Constitution indicated that it
of the office ceases to be eligible to be elected
was the Governor who was elected directly
county governor under article 180 (2) and is
by the voters registered in the County and as
removed from office under the Constitution.
such, in the event an election petition against
Article 182(2) states that if a vacancy occurs
a County Governor results in a nullification
in the office of county governor, the deputy
of the results, the Deputy County Governor
county governor shall assume office as
no matter how compelling a case he or she
county governor for the remainder of the
might put forward, suffered the same fate
term of the county governor.
as the Governor by dint of having assumed
The issue of whether listing of Deputy office through the same irregularly declared
Governors as respondents in gubernatorial ticket.
election petitions is mandatory has come up
In Mwamlole Tchappu Mbwana v Independent
in various courts and the courts have handled
Electoral & Boundaries Commission & 4
this issue differently.
others [2017] eKLR the Court in rendering
In M’nkiria Petkay Shen Miriti v Ragwa the non-joinder of a Deputy Governor
Samuel Mbae & 2 others [2013] eKLR the to an Election Petition incompetent and
Court held that the non-inclusion of the incurably defective, held that to proceed to
Deputy Governor in the Petition was not hear the Petition without notice to or the
fatal to the Petition as the Court had the participation of the Deputy Governor, was
power under section 80(1)(b) of the Elections to go against the principles of natural justice.
Act to compel the attendance of any person The Court went on to caution itself that any
as a witness who appeared to the Court to decision it might make in violation of the
have been concerned in the election or in said principles however right the decision
the circumstances of the vacancy or alleged might be, such a decision had to be declared
vacancy. Whether the failure to include the to be no decision. The Court further held
Deputy Governor in the Petition was fatal that no law provided that upon removal of
would be considered fully at a later stage in the County Governor by way of nullification
the Petition. of the election the Deputy Governor should
by that removal also be removed.
In Wavinya Ndeti & another v Independent
Electoral and Boundaries Commission (IEBC) Conclusion
& 2 others [2017] eKLR the Court while
As shown by the above decisions, though a
finding that the non-joinder of the Deputy
majority of the courts have held that it is not
Governor to the Petition was not offensive
mandatory for Deputy Governors to be listed as
and neither did it make the Petition defective
respondents in gubernatorial election petition,
in any way held that unless there was an
there seems to be an emerging and contrary view
election act or omission alleged against a
to this stance. In the medium term it is expected
Deputy Governor during the election of
that the Legislature or the Independent Electoral
a Governor then he would not become a
and Boundaries Commission should settle this
necessary party in the Election Petition filed
matter by providing expressly in its Election
against that Governor. The Court went on
Petition Rules the position of Deputy Governors
to hold that the Deputy Governor would
in the Petitions.
not be a respondent in the Petition but the
Governor would be because he was the one

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The Applicability of the Government that sharing and devolution of power was
Proceedings Act to County Governments recognised as one of the national values
and principles of governance in Article
The Constitution of Kenya, 2010 created
10 of the Constitution. The Court should
devolved units known as county governments.
therefore protect devolution and promote its
With the creation of the county governments,
principles. It should stop actions, which were
courts have been faced with the issue of
likely to onslaught a county government and
whether or not to apply the Government
grind its operations to a halt and paralyse it
Proceedings Act to county governments.
from realising and fulfilling its constitutional
This is because the word ‘government’
mandate.
has not been defined in the Constitution
of Kenya, 2010 nor was it defined in the The Court finally held that the extent
Government Proceedings Act. However, the of the immunity granted under section
Interpretation and General Provisions Act, 21(4) of the Government Proceedings Act
Cap 2 Laws of Kenya defines government should necessarily extend to the county
as meaning the Government of Kenya. That governments.
definition does not aid much with regard to
The High Court in its ruling at Embu in
applicability of the Government Proceedings
Josphat Gathee Kibuchi v Kirinyaga County
Act to county governments.
Council Civil Case No. 184 of 2009 took into
This issue has found its way to the courts and consideration the definition of a government
various courts have ventilated on this issue. as provided for in the Constitution of Kenya,
Article 176 which states that:
In Republic v The Attorney General & another
ex-parte Stephen Wanyee Roki Misc Civil 1. There shall be a county government for each
Application No. 93 of 2015, the Court held county, consisting of a county assembly and a
that section 7 of the Sixth Schedule to the county executive.
Constitution of Kenya (Transitional And 2. Every county government shall decentralize
Consequential Provisions) provided that all its functions and the provisions of its services
law in force immediately before the effective to the extent that it is efficient and practicable
date continued to be in force and should be to do so.
construed with the alterations, adaptations, The Court also considered the Black’s Law
qualifications and exceptions that were Dictionary, 8th Edition definition of the
necessary to bring it into conformity with term “government” as being:
the Constitution and that It followed that the 1. The structure of principles and rules
provisions of the Government Proceedings determining how a State or organization
Act, a legal instrument enacted before the is regulated.
effective date should be construed with 2. The sovereign power in a Nation or State.
the alterations, adaptations, qualifications 3. An organization through which a body
and exceptions necessary to bring it into of people exercises political authority; the
conformity with the Constitution. The Court machinery by which sovereign power is
went on to state that one such construction expressed.
would be the reality that Government was
The Court further considered the definition
now at two levels and that Article 189(1)
of a state officer under article 260 of the
(a) of the Constitution requires that the
Constitution of Kenya 2010. The definition
constitutional status and institutions of
includes “member of a county assembly,
government at both the National and County
governor or deputy governor of a county, or other
levels be respected. It was the Court’s view
member of the executive committee of a county
that such respect could not be achieved
government”.
unless both levels of Government were
treated equally and one such area would have The Court then went on to hold that in
been with respect to execution proceedings. view of the foregoing definitions, a county
government is part of the state or government
The Court further held that it was therefore
and that the Constitution of Kenya
clear that the importance of devolution of
established two levels of government being
government could not be underestimated
the national and the county government.
and that It was therefore not by coincidence
The Court further held that the provisions of

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Section 21 of the Government Proceedings with Article 1 of the Constitution of Kenya


Act were therefore applicable to proceedings clearly brought out the picture that County
relating to a county government. Government was equally Government.
Article 1 of the Constitution provides that:-
In Kilimanjaro Safari Club Limited v
Governor- Kajiado County(In Place Of County (3) Sovereign power under this Constitution
Council Of Ol Kejuado Misc. Application No. is delegated to the following State organs,
442 of 2011, the Applicant in his submissions, which shall perform their functions in
provided that the County Government was accordance with this Constitution—
not a ‘Government’ as per the Government a) Parliament and the legislative
proceedings Act. This was based on Section assemblies in the county governments;
5 (i) of the Office of the Attorney General b) the national executive and the
Act (No. 49 0f 2012) which provides, inter executive structures in the county
alia, the functions of the Attorney General governments; and
as follows:-“representing the National c) the Judiciary and independent
Government in all civil and constitutional tribunals.
matters in accordance with the Government
(4) The sovereign power of the people is
proceedings Act (Cap 40).” The Applicant
exercised at—
argued that the said Act was specific that
the Attorney General shall represent the (a) the national level; and
National Government in accordance with (b) the county level.
the Government Proceedings Act. According The Court noted that it was clear that
to the applicant, the County Government the Constitution created two levels of
Act was silent about the Attorney General Government, which were distinct and
representing the County Government inter-dependent. It is not in dispute that the
in accordance with the Government representation of the County Government
Proceedings Act. by the Attorney General as provided for
in section 43 of the County Government
The court held that it was common ground
Act does not mention the Government
that the Government Proceedings Act
proceedings Act. However, to interpret
came into force before devolution and that
the same to mean that the Government
there was no express definition of the term
proceeding Act does not apply to the County
‘Government’ in the said Act. In that case
Government was, in the courts view a
the term Government as used in the said act
narrow approach. The court went on further
was inclusive and there was no reason why
to state that the said section only provides
the County Government should be excluded
that the Attorney General may represent
from the operations of the said Act.
the County Government in Court or in
The Court, in defining what Government any other proceedings other than criminal
referred to the Interpretation and General proceedings. The section did not in any
provisions Act, under section 3(1) which way provide for the substantive procedures
states that the Government means ‘the of proceedings against Government. The
Government of Kenya’ and the Black’s law draftsman in coming up with the Government
Dictionary, 8th Edition which defines the Proceedings Act had in mind the interests
term “ Government” as: of the Government as a whole. The County
1) The structure of principles and Government was not an exception.
rules determining how a State or The Environment and Land Court at Eldoret
Organization is regulated. in Petition No. 18 of 2015 between Kenneth
2) The sovereign power in a Nation or Kiplagat Kimaiyo & 3 others and County
State. Government of Elgeyo Marakwet & 2 others
3) An Organization through which a citation was of a contrary opinion. The
body of people exercises political Court in this case held that the Government
authority; the machinery by which Proceedings Act forbade courts from giving
sovereign power is expressed” injunctive orders against the Government.
According to the Court, the second and The Court further held that the said Act was
third definition above when read together in place even before the devolved system of

65
BB Issue 40, January - March 2018

Government came into force and that the Court Under Article 170 (5) of The
County Governments were body corporate Constitution of Kenya
entities with power to sue and be sued.
The Constitution of Kenya under article
The Court further held that there was no
170 (5) provides that the jurisdiction of
provision in the County Governments Act of
the Kadhis’ Court shall be limited to the
2012, which protected them from injunctive
determination of questions of Muslim
orders. The Court took the view that it was
law relating to personal status, marriage,
not the intention of the legislature that the
divorce or inheritance in proceedings in
county governments were to enjoy the same
which all the parties profess the Muslim
status as the national government. If this was
religion and submit to the jurisdiction of the
to be the intention, then the Government
Kadhis’ Court. The Kadhis’ Court Act, Cap
Proceedings Act would have been amended
11 Laws of Kenya establishes the Kadhis’
to include County Governments. The Court
Court under section 4. Section 5 of the Act
finally held that the county governments
provides the jurisdiction of the Court and
could not come under the protection of the
states that a Kadhis’ court shall have and
Government Proceedings Act.
exercise the following jurisdiction, namely
The Environment and Land Court at the determination of questions of Muslim
Kitale in James Muigai Thungu v County law relating to personal status, marriage,
Government of Trans-Nzoia & 3 others, Land divorce or inheritance in proceedings in
Case No. 31 of 2015 took a similar view to which all the parties profess the Muslim
the above case in determining whether or religion; but nothing in the section shall limit
not to apply the Government Proceedings the jurisdiction of the High Court or of any
Act to county governments. The Court subordinate court in any proceeding which
held that the aforementioned Act was in comes before it.
place even before the devolved system of
Various courts have been faced with the
Government came into force and that the
issue of whether it is essential for Muslims to
county governments were body corporates
submit to the jurisdiction of Kadhis’ Courts
with power to sue and be sued. The Court
for the Court to entertain a matter involving
further held that there was no provision in
them.
the County Governments Act, 2012 which
protected them from injunction orders. The In R.B & another v H.S.B & another, Succession
Court was of the view that it was not the Cause No 301 of 2014, the Court held that It
intention of the legislature that the county was clear from the textual provision of Article
governments were to enjoy the same status as 170(5) of the Constitution that the jurisdiction
the national government. The Court further of the Kadhis’ Court is limited to questions
held that if this was the intention, then the relating to personal status, marriage, divorce
Government Proceedings Act would have or inheritance, in proceedings where all the
been amended to expressly include County parties profess Muslim religion and submit
Governments. The Court then went on to to the jurisdiction of the Court. The Court
state that it did not find that the County also held that the Constitution of Kenya,
Government could come under the umbrella 2010 recognised and gave effect to the right
of the Government Proceedings Act, when it of Muslims to choose to utilize the regular
comes to injunctions against them as well as system of adjudication through the High
their officers. Court. This right of choice is consistent with
the constitutional values of liberty of the
From the above decisions it is clear that the
person embodied in the principles of human
applicability of the Government Proceedings
dignity, equity, social justice, inclusiveness,
Act to county governments has not yet
equality, human rights, nondiscrimination
been clearly settled. It appears that the
and protection of the marginalized under
Environment and Land Courts have taken a
Article 10 (2) (b) of the Constitution.
different trajectory on this issue by holding
that the Government Proceedings Act does The Court further held that to compel
not apply to County Governments. all Muslims to subject themselves to the
jurisdiction of the Kadhis’ Court would be
4. The Applicability of Submission
contrary to all notions of choice which is
to The Jurisdiction of The Kadhis’

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the basis of rights and freedoms in the Bill of letter of Section 5 of the Kadhis’ Court Act
Rights hence the provision for the Muslims was replicated in Section 2 of the Law of
to submit, rather than compulsion to subject Succession Act which provides that except
themselves, to the jurisdiction of the Kadhis’ as otherwise expressly provided in the Act or
Court. any other written law, the provisions of the
Act shall constitute the law of Kenya in respect
The Court stated that the jurisdiction of the
of, and shall have universal application to, all
High Court in civil matters is unlimited by
cases of intestate or testamentary succession
virtue of Article 165(3) of the Constitution
to the estates of deceased persons dying after
except where the matter reserved for the
the commencement of the Act and to the
exclusive jurisdiction of the Supreme Court
administration of estates of those persons,
under this Constitution; or ) falling within
that the estates of persons dying before the
the jurisdiction of the courts contemplated
commencement of the Act are subject to the
in Article 162 (2). The Court further stated
written laws and customs applying at the date
that the High Court is the succession court
of death, but nevertheless the administration
under section 47 of the Law of Succession
of their estates shall commence or proceed
Act, which provides that the High Court shall
so far as possible in accordance with the Act,
have jurisdiction to entertain any application
that subject to subsection 4, the provision
and determine any dispute under the Act and
of this Act shall not apply to testamentary
to pronounce such decrees and make such
or intestate succession to the estate of any
orders therein as may be expedient, provided
person who at the time of this death is a
that the High Court may for the purpose
Muslim to the intent that in lieu of such
of this section be represented by Resident
provisions the devolution of the estate of any
Magistrates appointed by the Chief Justice.
such person shall be governed by Muslim
The Court held that jurisdiction of the law. That notwithstanding the provisions
Kadhis’ Court over the estates of deceased of subsection 3, the provisions of Part VII
Muslims was saved under section 48 (2) of of the Act relating to the administration of
the Act which provides that it shall continue estates shall where they are not inconsistent
to have and exercise jurisdiction in relation with those of Muslim law apply in case of
to the estate of a deceased Muslim for the every Muslim dying before, on or after the
determination of questions relating to 1st January, 1991.
inheritance in accordance with Muslim law
However, the High Court In In The Matter
and of any other question arising under the
Of The Estate Of Maryam Juma Kibanda
Act in relation to such estates.
(Deceased) & another v Karar Omar & 3
The Court went on to state that in interpreting others, Succession Cause No.689 of 2010 while
Article 170 (5) of the Constitution the referring a dispute in which the deceased
court should purposefully give effect to the and all other parties were Muslims to the
tenor of the addition of the requirement of Kadhis’ Court for hearing and determination
submission of the Muslims to the jurisdiction was not persuaded by the argument that
of the Kadhis’ Court by the Constitution a person professing the Muslim faith has
of Kenya 2010 by upholding choice of the an option of either submitting or refusing
Court before which to file proceedings of to submit to the jurisdiction of the Kadhis’
personal nature. Court. The Court went on to hold that the
The Court in Fauzi Said Ali & 3 others v raison d’etre for the recognition of the Kadhis’
Said Ahemed Ali (Deceased) & another, Civil Court by the Constitution was the demand
Appeal 130 of 2009 understood section by Muslims that matters relating to personal
5 of the Kadhis’ Court Act to mean that status, marriage, divorce and inheritance be
even where all parties profess the Muslim governed by Islamic Law and that disputes
faith, in matters relating to personal status, involving persons of Islamic faith can only
marriage divorce or inheritance, they may be determined by the Kadhis’ Court because
nevertheless file their proceedings before the the holders of the office of Kadhi are required
High Court or a subordinate court as nothing under Article 170(2) of the Constitution to
under the aforesaid Act bars them from so be persons who profess the Muslim religion,
doing. The Court stated that the spirit and and further, possess such knowledge of the
Muslim Law as is applicable to the particular

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sect of Muslims. The Court further held Act, there was no provision, which excluded
that the only exception to this requirement inherited property from the definition of
that persons of Muslim faith submit to the matrimonial property. The Court further
jurisdiction of the Kadhis’ Court was where held that section 5 of the Act impliedly
both parties to the dispute indicate to the includes it in the definition. According to
court their preference that the dispute be Section 5, the only time such property would
heard and determined by the court. not form part of matrimonial property
was where the inheritance was before the
Conclusion
marriage.
From the above decisions it is clear that the court’s
In Divorce Cause No. 122 Of 2008 Between
interpretation of article 170 (5) of the Constitution
J W N T AND C J T, the Court stated that
of Kenya, 2010 is not yet clear and thus there is
there was a qualification to the definition
need for uniformity in interpretation of this article
of matrimonial property in section 5 of the
so as to ensure consistency and predictability in
Matrimonial Property Act, to the effect that
the development of jurisprudence.
interests acquired by any person in property
5. Whether Inherited Property Forms acquired or inherited before marriage does
Part of Matrimonial Property not form part of matrimonial property. The
In Kenya the main statute dealing with Court then went on to hold that whatever
matrimonial property is the Matrimonial property was acquired during coverture
Property Act, No. 49 of 2013, Laws of Kenya. qualifies to be matrimonial property,
Section 5 of the Act provides that subject to especially if it was acquired specifically for
section 6, the interest of any person in any the purpose of the family. The Court further
immovable or movable property acquired held that inherited property was excluded
or inherited before marriage shall not form from matrimonial property unless the
part of the matrimonial property. Section claimant improved the inherited property.
6 (1) provides the meaning of matrimonial In Leah Njoki Kiboko v Justus Kiboko Muriuki
property as the matrimonial home or ELC Case No. 275 of 2013 the Court held that
homes, household goods and effects in the the Plaintiff’s claim that the suit property
matrimonial home or homes or any other was matrimonial property could not be true
immovable and movable property jointly because there was cogent evidence in the
owned and acquired during the subsistence form of a grant that the said properties were
of the marriage. part of the Defendant’s inheritance from his
Section 14 provides that where matrimonial father and thus the suit properties were not
property is acquired during marriage in acquired by the Plaintiff in the cause of her
the name of one spouse, there shall be a marriage to the Defendant
rebuttable presumption that the property is In F W K v N K, Civil Suit No. 11 of 2002,
held in trust for the other spouse and in the the Court agreed with the argument that
names of the spouses jointly, there shall be a spouse to whom property was gifted
rebuttable presumption that their beneficial should be allowed to retain it however
interests in the matrimonial property are where improvements had been made to
equal. the property using matrimonial resources,
Various Courts in Kenya have ventilated which increased the value thereof, courts
on the issue of whether inherited property consider such property as a contribution and
forms matrimonial property. thus forming part of matrimonial property.

In E N K v J N K, Civil suit 11 of 2007, the Court In Muthembwa v Muthembwa Civil Appeal


stated that what constitutes matrimonial No. 74 of 2001, the Court held that no spouse
property was stated in section 6(1), as read could acquire an interest in any property
with Section 14 of the Matrimonial Property inherited by the other spouse from his or
Act, 2013. It is essentially the property her parent unless the property had been
acquired by either spouse during marriage as improved with finances provided by the
where the property is acquired jointly, or is other spouse.
registered in the joint names of the parties. Conclusion
The Court held that from the language of the
From the above cases it is clear that the courts
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position on whether inherited property forms redundancy policies to seek and obtain the
matrimonial property is not yet settled as section exemption as was the claimant’s legitimate
5 of the Act is framed in such a way that it is expectation that the respondent would act in
not clear whether property inherited by a spouse their best interest in view of the impending
during the subsistence of the marriage qualifies to redundancy. Finally, the court found that
be matrimonial property. it was discriminatory for the Respondent
to have failed to access and accord the
6. The Imposition of Income Tax on
claimants the tax exemption as was the case
Retirement Benefits
prevailing in favour of public officers who
The Constitution of Kenya, 2010 under were proceeding on redundancy.
article 210 (1) provides that no tax or licensing
In Paul Ngotwa v Telkom Kenya Limited,
fee may be imposed, waived or varied except
Cause No 798 of 2010 the Court found that
as provided by legislation. The Income Tax
Legal Notice No 73 of 14th May 2010 had
Act, Cap 470 Laws of Kenya under section 3
extended a tax exemption to some one
(1) and (2) (c), provide that subject to, and in
thousand and thirty eight employees of
accordance with, the Act, a tax to be known
Telkom Kenya Limited retrenched on various
as income tax shall be charged for each year
dates ranging from 31st December 2008 to
of income upon all the income of a person,
28th February 2010. The Court held that the
whether resident or non-resident, which
exemption was specific to those employees
accrued in or was derived from Kenya. And
and the exemption could not therefore be
that subject to the Act, income upon which
lawfully extended to any other employee.
tax is chargeable under this Act is income
in respect of any withdrawals from, or In Samson Njigoya Mbutu V Kenya Marine &
payments out of, a registered pension fund Fisheries Research Institute, Cause No. 250 of
or a registered provident fund or a registered 2013, the Court held that the Claimant had
individual retirement fund. Section 13 (2) failed to lay any statutory foundation for his
of the Act provides that the Minister may, claim to be paid monies deducted/retained
by notice in the Gazette, provide that any on account of income tax/PAYE. The Court
income or class of income which accrued in further held that income Tax Act was clear
or was derived from Kenya shall be exempt that retirement benefits are subject to tax
from tax to the extent specified in such unless exemption has been granted. The
notice; that any exemption under subsection Court went further and stated that under
(1) of this section shall cease to have effect section 49 of the Employment Act, 2007,
either generally or to the extent specified in even court awards were subject to statutory
the notice. deductions.
Various courts have ventilated on the issue of In James Mwangi Kirangathi V Kenya Marine
whether to subject retirement benefit income & Fisheries Research Institute Cause No. 245
to income tax, and although these decisions of 2013, the Court held that the Manyara
have always upheld that these benefits are decision made a sweeping generalization
subject to tax there is need to highlight the and that it was made per incuriam regarding
difference in opinion, noting that this is a tax exemption question. The Court further
subject that is bound to often come up in held that the general policy and which had
future litigation. statutory foundation is that retirement
benefits are subject to tax unless exemption
In Timothy Manyara & 144 others v Pyrethrum
is granted. It finally held that a government
Board of Kenya, Cause No 106 of 2013, the
policy cannot supersede the express
Court found that there was no dispute that
provisions of a statute.
there existed a general government policy
that public officers subjected to redundancy Conclusion
were entitled to tax exemption and that in
These cases demonstrate that though the
absence of evidence that the government
jurisprudence on this subject is clear, there is a
declined to grant the tax exemption, the
possible differing judicial stance on whether
respondent failed on its leadership and
income tax should be charged on income received
managerial responsibility as an employer
as retirement benefits especially for public officers
benefiting out of the general Government
who have been declared redundant in the public

69
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interest. Court agreed with the decision in Hawkins


Wagunza Musonye v Rift Valley Railways
7. Time Limit for Instituting Suits in
Kenya Limited and held that there could arise
Labour Disputes
intervening circumstances which would
The Constitution of Kenya, 2010, under affect limitation of action in employment
article 159 (2) provides that in exercising situations and that conciliation as provided
judicial authority, the courts and tribunals for under the Labour Relations Act, 2007
shall be guided by the following principles: was one such case. The Court further held
justice shall be done to all, irrespective of that that was the essence of the doctrine of
status; justice shall not be delayed; alternative stare decisis.
forms of dispute resolution including
In Benjamin Wachira Ndiithi V Public Service
reconciliation, mediation, arbitration and
Commission & another, Cause No 953 of
traditional dispute resolution mechanisms
2010 the Claimant took the view that the
shall be promoted, subject to clause (3);
cause of action in his case did not accrue
justice shall be administered without undue
until August 8, 2006 when he was notified
regard to procedural technicalities; and the
that his employment file had been closed,
purpose and principles of this Constitution
thus dashing any hopes of his reinstatement
shall be protected and promoted.
to the public service. However the Court held
Limitation of time to institute proceedings that the Claimant’s termination from the 1st
where parties are involved in a labour dispute Respondent’s employment took effect on
is provided for under the Employment October 1, 2000 as communicated by letter
Act, section 90 which provides that dated September 29, 2000. The Court further
notwithstanding the provisions of section held that it followed therefore that the cause
4 (1) of the Limitation of Actions Act, no of action upon which the Claimant’s claim
civil action or proceedings based or arising was based accrued on October 1, 2000 and
out of this Act or a contract of service in that was the date when time began to run as
general shall lie or be instituted unless it is against the Claimant’s claim.
commenced within three years next after the
In Hilarion Mwabolo v Kenya Commercial
act, neglect or default complained or in the
Bank Cause 1375 of 2012 the Court held that
case of continuing injury or damage within
the accrual of the cause of action in a claim
twelve months next after the cessation
emanating from an employment contract
thereof.
takes effect from the date of termination
Various courts have ventilated on the issue as stated in the letter communicating the
of when the time issue of when time within termination. The Court further held that the
which to institute court proceedings in fact that an employee whose employment
employment disputes starts running and had been terminated sought a review or an
they have arrived at different conclusions. appeal did not mean that accrual of the cause
In Hawkins Wagunza Musonye v Rift of action was held in abeyance until a final
Valley Railways Kenya Limited, Misc Civil verdict on the review or appeal.
Application No. 11 OF 2014 the Court From the above decisions it is clear that the courts
held that where parties to a labour dispute position on the time in which to institute a suit in
were engaged in conciliation, negotiation a labour dispute begins to run is not yet clear as
and other non-adjudicatory dispute this has been interpreted in two ways:
settlement mechanisms before going to o That time begins to run immediately
Court, the ‘limitation of time’ clock stops the act, neglect or default complained of
running. The Court further held that occurs
those non-adjudicatory mechanisms were o That time begins to run immediately
commonplace in labour disputes and were the act, neglect or default complained
anchored on article 159 of the Constitution. of occurs but this clock of ‘limitation of
The Court further held that clock restarted time’ may be stopped when conciliation,
when such mechanisms broke down. negotiation and other non-adjudicatory
In Kenya Union of Commercial, Food and dispute settlement mechanism (which are
Allied Workers v Water Resource Management commoplace in labour disputes) are being
Authority & another, Cause No. 1 of 2015, the undertaken.

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8. Action for Violation of Fundamental In Mike Rubia & another v Moses Mwangi
Rights Against Private Citizens. & 2 others, Petition No 70 of 2012 the Court
agreed with the findings of the Court in
The Kenyan position on whether a
Jeminah Wambui Ikere v Standard Group Ltd
private citizen can maintain an action for
and another and held that there is nothing in
violation of fundamental rights as against
the Constitution that draws the distinction
another private citizen is not yet clear. The
between vertical and horizontal application
Constitution of Kenya, 2010 under article
of the Bill of Rights and that the Bill of Rights
21 (1) provides that it is a fundamental duty
applies to all persons and binds everybody.
of the state and every state organ to observe,
respect, protect, promote and fulfill the In Uhuru Muigai Kenyatta v The Nairobi Star
rights and fundamental freedoms in the Bill Publications Limited, Petition Number 187 of
of Rights. The Constitution under article 22 2012, the Court considered article 21 of the
(1) provides that every person has the right Constitution, 2010 and held that it is the
to institute court proceedings claiming that state and every state organ that is required
a right or fundamental freedom in the Bill of to observe, protect, promote and fulfill the
Rights has been denied violated or infringed, rights and fundamental freedoms in the
or is threatened Bill of Rights and that no such obligation
is imposed on an individual including a
A number of High Court decisions had dealt
company.
with the issue whether a private citizen
could maintain an action for violation of In Kenya Bus Service Ltd & 2 Others vs. The
fundamental rights as against another private Attorney General & 2 Others, Misc Civil
citizen. Suit No 413 of 2005, the Court held that
fundamental rights and freedoms were
In Jeminah Wambui Ikere v Standard
contained in the Constitution and were
Group Ltd and another, Petition No. 466
principally available against the state because
of 2012 the Court held that the Constitution
the Constitution’s function was to define
of Kenya, 2010 in articles 2 and 20 and the
what constitutes government and it regulates
definition of the term “person” under article
the relationship between the government and
260 envisaged both vertical and horizontal
the governed. On the other hand the rights
application of the Bill of Rights; vertical
of individual interests are taken care of in the
application between the citizen and the state
province of private law and are invariably
and horizontal application between one
redressed as such. The Court further held
citizen and another citizen. The Court stated
that fundamental rights and freedom set out
that article 2 of the Constitution provides
in the Bill of Rights were enforceable by a
that the Constitution is the supreme law of
private individual by way of a constitutional
the land and binds all persons and all state
reference only as against the state and state
organs at both levels of government. Similarly,
organs and not by a private individual as
Article 20 provides that; ‘The Bill of Rights
against another private individual and that if
applies to all and binds all state organs and
any party had a claim against another then
all persons. The Court further held that no
the parties should pursue such action under
person was above the Constitution and that
private law.
every person is bound by the provisions of
the Constitution including the Bill of Rights. Conclusion
The Court finally held that it therefore meant
From the above cases it is clear that there is
that the Petitioners were entitled under
divergent opinion on the approach to use in
article 22 of the Constitution to institute a
handling the issue of whether a private citizen can
claim alleging a violation of the Constitution
maintain an action for violation of fundamental
whether those violations were by a private
rights as against another private citizen.
citizen or the State.

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BB Issue 40, January - March 2018

International Court
Ruling: A Safe
Climate is a Human
Right
T
he Inter-American Court of Human countries committed to cutting emissions
Rights on February 8, 2018 issued and capping global warming to within 2
a landmark opinion that equates degrees Celsius above the pre-industrial
environmental protection with human rights, levels.
a conclusion that could force countries in
The opinion is considered advisory because
Latin American and beyond to tackle climate
it isn’t a ruling about a legal dispute. It’s an
change more aggressively.
answer to a question from Colombia, which
The advisory opinion represented the wanted to know how human rights law
first time the Inter-American Court has applies to large-scale infrastructure projects
recognized a fundamental right to a healthy in the Caribbean. Colombia had posed the
environment, a concept that may seem question after it was upset with decisions by
abstract but could impact interpretations of the International Court of Justice over an
existing laws and improve environmental ongoing territorial dispute with Nicaragua.
protection. Nicaragua plans to boost oil drilling off
its coast and build a $50 billion canal that
That concept isn’t new, but it hasn’t been
aims to rival the Panama Canal to increase
widely applied by courts. The opinion
maritime trade and generate revenue for
comes at a time when a number of climate
the country.   Colombia did not mention
lawsuits  have been filed around the world
Nicaragua in their petition and asked instead
to try to establish the same or similar legal
that the review cover the Caribbean. But the
principles and pressure fossil fuel companies
judges went far beyond that and came up with
and governments to cut emissions.
a list of do’s and dont’s about the role of the
The court was created in 1979 to enforce governments in protecting the environment
the American Convention on Human and human rights.
Rights, which has been ratified by most
The Court established that the obligation
of the countries in Central and South
of States to respect the rights to life
America. The court hears cases brought by
and personal integrity, in relation to
those governments or the Inter-American
environmental protection, implies that they
Commission on Human Rights.
must:
While the court’s opinions have legal impact, • Avoid causing “significant”
they can also influence decisions made in environmental damage in and outside
other jurisdictions, especially given that their territory, for which they must
human rights protection is considered a regulate, supervise and monitor
global issue that’s addressed through a activities that could cause harm.
number of international agreements and • Assure, among other things, the
legal systems, such as the International Court realization of effective and independent
of Justice in The Hague. environmental impact studies, as well
The seven judges of the Inter-American as mitigation and contingency plans for
court took particular care to mention climate potential damages.
change in their opinion. They cited the Paris • Cooperate with other States and provide
Climate Agreement, in which nearly 200 them with information regarding risks

72
BB Issue 40, January - March 2018

to their natural environment. allow  Juliana v. United States to proceed to


• Apply the precautionary principle to trial. The case, filed by 21 people in their
protect the rights to life and personal teens and early 20s, contends that the
integrity due to serious and irrevocable U.S. government is failing to protect their
environmental degradation, even when constitutional rights to life, liberty and
scientific uncertainty exists. property because it continues to champion
• Guarantee the rights to public energy policies that subsidize and promote
participation, access to information fossil fuels.
related to potential environmental
Colombia’s Constitutional Court gave its take
harms, and access to justice in
in 2016 when it struck down provisions of
decision-making that could affect the
federal laws that allowed exemptions for
environment.
mining and oil and gas drilling in high-
Courts in a handful of countries, such as altitude areas with fragile ecosystems. The
Ireland, the Netherlands and Pakistan, court ruled that the provisions violated the
have acknowledged that connection. More public’s right to clean water because these
climate lawsuits are underway in other areas provided as much as 70 percent of the
countries, including Norway and the United country’s drinking water and were capable
States, to try to push for that recognition as a of capturing more carbon dioxide emissions
human or constitutional right. from the atmosphere than a rainforest of
The 9th Circuit Court of Appeals in San comparable size.
Francisco is set to decide whether to

“Education is not a way to escape poverty; it is a way of fighting it.” --


Julius Nyerere

Some rights reserved by fiverlocker

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BB Issue 40, January - March 2018

Tribute to the Late


Hon. Justice J. L Onguto
Memorable Quotes

“W
here non-compliance with statutory provisions
and requirements is alleged, the question
to be answered is not whether there has
been ‘substantial’ or ‘exact’ compliance. It is:
was there compliance? The decision whether there has been
compliance is not pegged to a mere textual reading of the statute,
in my view, but rather what is the object sought to be achieved
by the statutory provision and whether that object has been
achieved. It is about the statute’s objective and purpose and this
test, in my view, will countenance any deviation from statutory prescriptions provided
the purpose of the statute has been achieved. In that regard therefore, the purpose of
the statute as a whole as well as the specific provision is to be gathered and identified.”
Anthony Otiende Otiende v Public Service Commission & 2 others [2016] eKLR

“The President is enjoined by the Constitution to dismantle the uneven gender attributes
of our society when the Constitution demands that public appointments to be made
with the two third gender rule in the fore. The National Assembly that approves of the
President’s nominees is likewise enjoined. The National Assembly must exercise that
perfect overseer role and tap the President on the shoulder where he is about to slip.
The National Assembly ought to apply a strict scrutiny in approving of any action of the
executive and where the action involves appointment to public posts a most searching
examination in all aspects must be invoked by the National Assembly. In the instant case,
the National Assembly failed to do so.” Marilyn Muthoni Kamuru & 2 others v Attorney
General & another [2016] eKLR

“The Constitution allows every person to picket, demonstrate, assemble and present
petitions. Picketing and demonstrations themselves invite the right to express opinions.
The opinions may be controversial. The opinions may appear contrary to the law. The
opinions may not find favor with others. Yet the Constitution anticipates and expects
that such unpopular opinions howsoever expressed be respected. Even if they invite
disagreements and counter-demonstrations. The Constitution thus far declines to stifle
even the most unpopular view unless it is intended to incite persons to violence, propagates
hate speech, is propaganda for war or advocates hatred through ethnic incitement.”
Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others [2016] eKLR

“It is clear that public officers are expected to ensure public confidence is maintained in
the public service generally and in the integrity of their respective offices individually.
Public officers must also exercise objectivity and impartiality in decision making and
ensure that their decisions are not influenced by favoritism or other improper motives.
Their personal interest must also not conflict with their public duties. Additionally,
the national values and principles of governance enshrined under Article 10 of the
Constitution ought to guide the public officer all the times. These include accountability,
transparency, integrity, equality and equity. The same principles are partly reiterated
under Article 232 of the Constitution and additionally expounded by the Public Service

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(Values and Principles) Act No. 1A of 2015.” Felix Kiprono Matagei v Attorney General &
3 others [2016] eKLR

“The process of the removal of governors is also subjected to a senatorial process because
the Senate is expected to protect the interest of the counties and their governments.
Counties constitute people, the residents. In the circumstances of this case, a balance
between the public interest on the one hand that demands that there be proper order,
proper governance, accountability and proper management of counties through the
oversight of the Senate and of the other hand, public interest policy that subservient
bodies like the County Assembly are never allowed to misconduct themselves must be
struck and weighted. The scales would dictate that the Senate be allowed to proceed on
with its process with little hindrance.” Mwangi Wa Iria & 2 others v Speaker Murang’a
County Assembly & 3 others[2015] eKLR

“The Senate is truly, what I may call, the Impeachment Court. The Senate is expected not
only to investigate the nexus of the allegations to the 1st Petitioner. The Senate must also
interrogate the entire process as it scurried through the County assembly. I have seen no
law that restrains the Senate from returning a verdict that the process was not conducted
as detailed under the Constitution or any law for that matter. Pray, the Senate rises to the
occasion and is practical and realistic in its investigations.” Mwangi Wa Iria & 2 others v
Speaker Murang’a County Assembly & 3 others[2015] eKLR

“Affirmative action programs require members of disadvantaged groups to be offered


preferential treatment. Women Representatives may be deemed to represent disadvantaged
groups. It is for that reason that special seats were reserved for them in Parliament with
the aim of amending inequity. The extent of their agenda, in my view, was to do more than
merely participating in legislation and oversight under Article 95 of the Constitution.
Programs involving them ought to be seen in that light and appropriately contextualized,
especially where the program is intended to achieve equality or to protect and advance
disadvantaged groups.” Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4
others [2016] eKLR

“Merely bringing a suit does not stop statutory periods from running. If the suit is
prosecuted of course time stops to run as the action is complete. If the suit is withdrawn
or discontinued then, a fortiori, the parties revert to the same position as if the suit had
never been filed. The same position would obtain where a suit is dismissed for want of
prosecution. That means that time never stops running by the mere filing of the suit.
It was counting.” Lilian Njeri Muranja & John Muranja Mahinda v Virginia Nyambura
Ndiba & Kajiado County Government [2014] eKLR

“IEBC timelines cannot bind the dispute resolution process being undertaken by
independent organs established under the Constitution. The PPDT and this court may
not be held hostage by the timelines set purely for administrative purposes so long as
the dispute is still alive and before the two bodies constitutionally mandated to resolve
political disputes. Only statutory time lines may direct this court whilst determining a
matter. This court as well as the PPDT will not be swayed into declining a complaint
or dispute simply because the parties are set to be caught up with time set by the IEBC
which may itself fly in the face of statutory timelines. Disputes will be determined on
their merits and all factors considered including the timelines and appropriate orders
made as each individual case may be deserving of.” Eric Kyalo Mutua v Wiper Democratic
Movement, Kenya & another [2017] eKLR

75
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