BBIssue 43

Issue 43
October - December 2018
Circumstances in which the Supreme Court can assume

jurisdiction over an issue of constitutional interpretation
which was not an issue at the High Court or the Court of
Appeal
Rights and interest previously vested in a group, family or individual under African Customary
Law are not extinguished upon registration of trust land Pg 11
Ingredients needed to be satisfied to prove common intention in an offence Pg 17

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CONTENTS
Authoritative work made by the

agents of the people in the legitimate The Kenya National Examinations Council has the
exercise of delegated, sovereign mandate to equate foreign certificates that were
power is not eligible for copyright acquired from local institutions. Pg 30
protection Pg 53
EDITORIAL TEAM 1. Editors Note 1

Editor /CEO 2. CJ’s Message 2
| Long’et Terer | 3. What they Said 5
Senior Assistant Editor/DCEO 4. Feature Case 7
| Janet Munywoki |
5. Cases 11
Editorial Assistant
| Linda Awuor | 6. Caseback 44
Contributors 7. Legislative Updates 45
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legal Supplements 50
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. International Jurisprudence 52
| Kevin Kakai | Christine Thiong’o |
| Patricia Nasumba |Musa Okumu| Lisper Njeru | 10. Law Reform Compilation 59
Design and Layout 11. Pictorial 63
|Catherine Moni | Josephine Mutie | Cicilian Mburunga |
| Robert Basweti |
Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala | Disclaimer:
While the National Council for Law Reporting has made every effort
to ensure both the accuracy and comprehensiveness of the information
contained in this publication, the Council makes no warranties or guarantees
in that respect and repudiates any liability for any loss or damage that may
arise from an inaccuracy or the omission of any information.
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 Director, Financial Expert, The Judiciary
Accounting Services, National Treasury
vi
BB Issue 43, October - December 2018
Editor’s Note
Long’et Terer
CEO/Editor
T
The past year has been an exciting one for Kenya Law. The year saw the
organization grow in leaps and bounds within the public and legal space as
Kenya Law continues to establish itself not just a publisher of the Kenya Law
Reports but also as the focal point institution in the collection, management
and dissemination of all species of public legal information. This calendar year (2018)
we managed to collect and upload onto the website a total of 16,158 judicial decisions
which were delivered by the superior courts of record. On the laws of Kenya front, we
managed to keep our Laws of Kenya database up to date by uploading 244 legal notices,
which amended 86 pieces of legislation. These amendments were incorporated into the
Laws of Kenya thus ensuring an up to date database that is relevant to all stakeholders.
In this issue of the Bulletin, we feature interesting and progressive jurisprudence from
the Supreme Court in the case of Geoffrey M. Asanyo & 3 others v Attorney General, [2018]
eKLR. In this case, the Apex Court dealt with the circumstances in which the Supreme
Court could assume jurisdiction over an issue of constitutional interpretation which
was not an issue at the High Court or the Court of Appeal. In rendering its decision, the
court held that the inherent jurisdiction of the Supreme Court to right jurisdictional
wrongs committed by the Superior Courts in executing their constitutional mandates
would necessitate that the court assumes jurisdiction and interrogate the alleged
wrongs. This decision interrogates the supremacy of the Constitution and affirms that
statute law does not override the Constitution and that the rules on withdrawal of an
appeal could not override the clear provision of Article 159 of the Constitution on
promotion of Alternative Dispute Resolution.
Further afield, there has been a rising debate on whether copyright could be attached
to public records including statute and case law. The U.S. Court of Appeals for the 11th
Circuit, dealt with the issue on whether the annotations contained in the official Code
of Georgia authorized by the Georgia General Assembly could be copyrighted by the
State of Georgia. The court ruled that there was no copyright in the law i.e. legislation
and case law. More importantly, the court held that consolidated and annotated versions
of legislation, as commissioned or completed by the State, are not copyrightable. The
summary of the decision, which is lauded by many as one of the many steps towards
enhancing open access to public legal information, is highlighted in this issue of the
Bench Bulletin.
We hope that you will find this issue both enlightening and enjoyable.
Happy reading!
Long’et Terer
Long’et Terer
1
BB Issue 43, October - Decemb er 2018
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Speech by Hon. David K. Maraga, Chief Justice and President of the

Supreme Court of Kenya during the opening of the KWJA regional
conference for women justice actors on knowledge sharing, creating
partnerships and combating systemic impunity towards gender based
violence on November 29, 2018
I am delighted to join you today in this Regional Conference for Women Justice Actors on
“Knowledge Sharing, Creating Partnerships and Combating Systemic Impunity towards
Gender Based Violence.” Let me add my voice to those who have already spoken and
welcome our visitors to Kenya and to this Conference. Across the globe, the International
Day for the Elimination of Violence against Women was marked this past Sunday, the
25th of November 2018 amidst increasing concern about the continuing fear, violence,
insecurity, unfairness and inequality that face girls and women in our societies every day.
From domestic violence, to sexual violence and harassment, human trafficking, sexual
exploitation, female genital mutilation and child marriage, the widespread, persistent and
devastating human rights violations that afflict our girls and women are an inexcusable
and unacceptable stain on our communities.
I am sure most of you are aware of this appalling situation. Nevertheless, allow me to
re-state some alarming statistics recently reported by the United Nations that further
underscore 3 the importance of the discussions, deliberations and outcomes of this
crucial forum. Globally, 1 in 3 women and girls experience physical or sexual violence in
their lifetime, most frequently by an intimate partner or neighbour. Worldwide, almost
750 million women and girls alive today were married before their 18th birthday; while
200 million women and girls have undergone female genital mutilation (FGM). Seventy
one per cent (71%) of all human trafficking victims worldwide are women and girls, and
3 out of 4 of these women and girls are sexually exploited. It is in the context of this
deplorable state of affairs that this crucial conference is being held and as jurists and
especially women jurists, you are at the front line of devising policies and strategies that
can significantly improve this grave situation. Hence the theme of this year’s conference,
“Strengthening the Role and Contribution of Women Justice Actors in the Adjudication
of GBV cases” is very appropriate.
In Kenya, both the print and electronic media daily are replete with reports of different
kinds of violence against women and girls, some resulting in death and others in life-
threatening injuries. Clearly, we live in a country, and indeed in a world where women
and girls live under well-founded fears of violence or harm.
It is clear, however, that Gender Based Violence (GBV) persists not for a lack of relevant
legislation; indeed, the legislation exists and is strict and punitive. There are strict
punishments for offences committed under the Sexual Offences Act 2006; and so are
the sentences and punishments for offences under the Prohibition of Female Genital
Mutilation Act 2011. The provisions under the Protection Against Domestic Violence
Act 2015 in regard to protection orders and compensation are progressive and so too
2
is the Act’s robust definitions. Additionally the Children Act 2001 also provides for
various protective institutions and orders to assist child victims of violence. Despite these
provisions, the challenge of GBV persists in Kenya and indeed the world over.
One can only come to a conclusion that we clearly need strategies that go beyond legislative
and policy reforms. Furthermore, the sharing of lessons (both negative and positive) has
a great potential to enrich strategies employed to combat GBV. I am therefore happy to
note that this conference has brought a rich diversity of players from across the globe in
order to facilitate the sharing of lessons and strategies. For instance, the deterrent effect
of well investigated, well prosecuted, promptly adjudicated cases concerning Gender
Based Violence, and, ultimately, severe punishment of lawfully convicted offenders
cannot be underestimated. Such a system will go a long way towards imbuing survivors
of GBV with the confidence to report and prosecute its incidences. Currently a majority
of such offences go unreported in part because of a nonconducive justice system or heavy
stigma and harmful norms and attitudes that lead to silence of their victims. What are the
challenges that stand in the way of countries or societies that want to ensure an efficient
system of rights protection? What strategies have worked and what experiences can be
turned into lessons for countries with similar systems? In what contexts can these lessons
be shared or applied? These are some of the questions that we need to prod over the next
three days.
Organisations such as the Kenya Women Judges Association provide a platform where
women judges can reflect, beyond their bench duties on their role and contribution to a
society where the rights of women and girls are upheld. Beyond adjudication of disputes
brought before them, especially, in those concerning GBV, the membership of the
KWJA goes beyond professional duty to promote and enhance human rights specifically
focusing on gender parity and access to justice for women and children. Through the
impactful activities of KWJA, the public sees more vividly the genuine concern for justice
and human rights that imbues our institution. These activities reflect the sensitivity and
concern that the Judiciary has for the challenging realities that face Kenyans, particularly
the most marginalized and disenfranchised amongst us.
Through passion, innovation and partnerships, KWJA can play a key role in enhancing
those preventive measures that will positively impact our families and communities
thereby reducing incidences of GBV and thus the number of these matters being
adjudicated in our courts. In creating an enabling environment for access to justice for
the most vulnerable, enhancing the skills and knowledge of judges and judicial officers on
human rights 6 and gender parity, promoting equal representation and solidarity amongst
judges, judicial officers, partners and stakeholders, KWJA has had a positive impact on the
administration of justice and is an additional avenue through which the Judiciary does
not just interpret the emancipatory provisions of our Constitution, but actively lives and
breathes them through jurisprudence that reflects a gendered perspective.
Over the next two days, you will share experiences on the investigation, prosecution
and adjudication of GBV cases, discuss pathways, models and effective strategies for
overcoming barriers to their resolution, and develop a more formal regional platform
for the exchange of good practices and common approaches towards their adjudication.
From novel approaches to ‘sextortion’ in Tanzania, to methods of fast-tracking GBV cases
in Zambia, to the use of ADR in GBV matters in Somalia, to comparative analyses of the
implementation of the Sexual offences Act in Kenya and South Africa, this conference
will provide an invaluable forum to benchmark, understand contextual nuances, learn
innovative strategies, and identify and highlight best practices.
GBV is not just a national crisis, it is a continental one, and we have a lot to learn from
each other. The launch during this Conference of a regional partnership framework for
women judges and magistrates to facilitate cross sharing of best practices and lessons for
3
replication; and foster collaborations, will be a crucial step to ensuring the sustainability
and operationalization of the ideas and innovations that emerge from this Conference.
Importantly it will provide a tool through which initiatives and proposals can be more
effectively implemented and monitored going forward.
Allow me to conclude by restating the need to eliminate GBV and promote the full
involvement of women in every aspect of growth and development. Here in Kenya, the
statistics on the number of defilement cases filed in our courts last year make harrowing
reading. Recent reports of rape in boarding school and of teenage pregnancies amongst
our schoolgirls often at the hands of teachers and other adults in positions of trust and
authority point to a dire state of affairs. There is a lot of GBV happening in our schools
and these matters ought not to be treated as disciplinary issues resulting in the transfer or
dismissal of a person; they are crimes under our laws and perpetrators must face the full
force of the law. The abuse of power and authority rampant across our society resulting
in the exploitation of young, vulnerable girls must also be addressed.
It is apparent that we must go beyond reactive strategies towards the elimination of GBV. By
the time these matters reach our courts, our women and girls have suffered unfathomable
harm and violations. In a manner of speaking, it is too late, the suffering has occurred,
the woman or girl is now a victim or a survivor, and the fabric of our community has
been further rent apart. As jurists, we must therefore look to formulating more effective
preventive strategies especially those formulated around education, sensitization and
enhancing public understanding and awareness around these issues.
I appeal to all those in positions of authority and responsibility, particularly those in

fiduciary relationships with women and girls, whether in schools, homes, workplaces,
to exercise leadership through example. It is important that we (especially we men) are
impeccable role models for our young boys and men, as the best type of guidance is
guidance by example. We cannot preach water and drink wine; we cannot purport to
express vacuous indignation when GBV is committed and our behavior has no one to
speak to that respects the dignity of women and girls.
For us in the Judiciary we are ready to play our part in implementing the laws. However
as has already become apparent this is not enough to combat GBV. There must be other
strategies and in this regard change of attitude and support from all quarters is crucial.
I therefore urge that each individual either as a parent or person in authority, and all
agencies and duty bearers put in place strategies geared towards prevention, even as we
upscale the investigation and prosecution of GBV cases. With these remarks, it is now my
singular honour to declare this conference officially opened. I wish you constructive and
fruitful deliberations, and look forward to your recommendations. I thank you all
Hon. David K. Maraga, EGH,
Chief Justice and President of the Supreme Court of Kenya
4
What they said
“
… the language of Section 117 (2) of the retired Constitution, was wrongly imported
into Sections 27, 28 and 30 of the Registered Land Act (now repealed) by the Judges
in the cited decisions. Had the judges’ view been informed by a proper appreciation
of the nature, scope and content of the rights, interests and benefits to land under
African customary law, subsisting before individualization of tenure, both the
proviso to Section 28 and Section 30(g) of the Registered Land Act, would have been
contextually interpreted. In this regard, there would have been no difficulty in construing a
“customary trust” under the proviso to Section 28 of the Act. Surely, before a first registration,
what other trust, if not “a customary one”, could have subsisted over land held under African
customary law as to bind a registered proprietor?”
Supreme Court Judges - D K Maraga, CJ; M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SCJJ in Isack
M’inanga Kiebia v Isaaya Theuri M’lintari & another - Petition No. 10 of 2015
“
…the 1st and 2nd respondents have urged us to find that the Magistrates Court is not
the proper forum to hear and determine Bill of Rights disputes on violation of minority
rights and protection and enforcement of rights of marginalized communities even
if the substance of the dispute arises from or is related to nomination or elections.
We decline to make such a finding. The Magistrate’s court has original jurisdiction
to hear and determine post-gazettment election disputes on membership to the
County Assembly. Whatever ground that is raised in an election petition properly before
the Magistrates court, the court has jurisdiction to hear and determine the same. There is
no principle or rule of law that in an election petition properly before a Magistrates court,
the court shall not have jurisdiction to hear and determine any ground urged in violation of
the Bill of Rights. It is opportune to recall that an election court is a court with specialized
jurisdiction and in this context, a Magistrates court sitting as an election court hearing
disputes on Membership to the County Assembly is a specialized court. As an election court,
the magistrate has jurisdiction to hear and determine any and all grounds raised in an election
petition properly before it.”
Court of Appeal Judges – E M Githinji, J Mohammed, Otieno-Odek, JJA in Orange Democratic Movement v Yusuf Ali
Mohamed & 4 others [2018] eKLR Civil Appeal No 37 of 2018 Court of Appeal at Eldoret
“
…the proviso to Section20 (1) simply means that the trial court has discretion to mete
out a maximum term of life imprisonment. Read in conjunction with the general
provision in Section 20 (1) the Court of Appeal stated that the correct interpretation
of the proviso in Section 20 (1) is that a person convicted of incest when the female
victim is under the age of eighteen years is liable to a term of imprisonment between
10 years and life imprisonment.”
High Court Judge – R Mwongo, J in P M M v Republic - Criminal Appeal No 24 of 2017
5
“
Before one is admitted to the Roll he/she must attend ATP at the interested party
and at that stage the interested party has to decide whether the applicant meets
qualifications in section 16 as read with the Second Schedule to its Act. It cannot
therefore be the mandate of the 2nd respondent to determine whether or not the
person who seeks recognition and approval of his/her foreign qualification had
attained university admission criteria otherwise the interested party would have
nothing to do in terms of section 16 of the Act as read with the Second Schedule to the Act. If
it had been the intention of the legislature that the 2nd respondent performs such a function,
it would not have conferred on the 1nterested party mandate together with qualifications
and elaborate application procedures to follow while considering applications from those
seeking admission to ATP.”
High Court Judge – E C Mwita, J in Dennis Kabuaya Mucheke v Kenya National Examinations Council & 2 others
- Petition No 487 of 2017
“
… (Post-partum psychosis)this is a disease affecting the mind and is caused by hormonal
imbalances especially to women after giving birth or while lactating. It is an illness.
It will only be suffered by women, as they are the only ones who can suffer such
imbalances. My conscience tells me that there is inherent in the treatment of women
with this condition under the law a lack of parity and equality. It is discriminative.
It flies in the face of Constitutional provisions on right to equal treatment before the
law; right to equal enjoyment of rights under the law and general discrimination by virtue of
the fact only the women gender will ever suffer from such a condition.”
High Court Judge – Lesiit, J in Republic v C M W - Criminal Case No. 43 of 2015
“
Under the foregoing provision (section 105(5) of the Children Act), where the Court
is satisfied that a party has wilfully refused or culpably neglected to make payment of
any financial provision under a maintenance or a contribution order, the Court may
order the attachment of the party’s earnings including any pension payable to the
party. When it comes to the enforcement of the best interests of the child, Parliament
in its wisdom found that nothing is sacred, not even that party’s pension.”
High Court Judge – M Thande, J in Local Authorities Pension Trust Registered Trustees v C A O & 2 others - Civil
Appeal No. 37 of 2016
“
The commencement of other criminal trials before the Subordinate Court, as opposed
to the High Court, is a matter that is regulated by statute, in this case, section 4 of the
CPC and the impugned Schedule. To my mind therefore, the mere fact that trials of
all criminal cases, except murder and treason, commence before the lower court does
not make section 4 of the CPC unconstitutional.”
High Court Judge – W A Okwany, J in Peter Kariuki Muibau & 11 others v Attorney General & another – Petition
No. 81 of 2016
6
Feature Case
Circumstances in which the Supreme Court can assume Jurisdiction over
an issue of Constitutional interpretation which was not an issue at the
High Court or the Court of Appeal
Geoffrey M Asanyo & 3 others v Attorney General
Petition No 21 of 2015
Supreme Court of Kenya at Nairobi
November 20, 2018
M K Ibrahim, J B Ojwang, S C Wanjala, N S Njoki & I Lenaola, SCJJ
Reported by Long’et Terer
The appellants challenged a Court of Appeal pay the appellants Kshs. 42, 800,000/=. The
ruling which dismissed an application that consent was filed in court on September
sought orders for the Court of Appeal to 18, 2015. The Court of Appeal’s judgment
withhold the delivery of judgment and for was delivered in November 13, 2015,
the consent entered by the parties in Civil despite attempts by the appellants to have
Appeal No. 260 of 2014, on September 18, the consent adopted as the judgment of the
2015 to be adopted as the judgment of the Court. An application by the appellants to
Court. They also prayed for the setting aside have the consent adopted was dismissed via
of the judgment delivered on November 13, a ruling delivered on November 12, 2015.
2015 in Civil Appeal No. 260 of 2014. In the The judgment entailed decisions delivered
alternative to having the consent adopted by only two out of the three judges of appeal
as the judgment of the Court, they prayed on the bench as one of them declined to issue
for the reinstatement of the High Court a judgment on the basis that the parties had
judgment made on May 21, 2014. filed a consent to settle the matter.
The 1st appellant owned 80 - 90% of the The appellants were aggrieved by the
shareholding in the 2nd, 3rd and 4th appellants. Judgment and filed a Notice of Appeal
He was charged in an anti-corruption case dated 24th November, 2015 at the Court of
for allegedly corruptly giving money to Appeal on 25th November, 2015 signaling
the Nairobi town clerk to induce the town their intention to appeal the whole of that
clerk to facilitate payments due to the 2nd Judgment to the Supreme Court under
appellant. After 6 years, the charges were Article 163(4)(a) of the Constitution. In
withdrawn by the Attorney General on their petition, the appellants sought that the
the basis that there was no evidence to entire judgment of W. Ouko & A.K. Murgor,
support the charges. At the High Court, in in the absence of P. Kiage JJA dated 12th
HCCC No 671 of 2009, the appellants sued November 2015 be set aside and the same
the Attorney General seeking general and be substituted with the Consent judgment
special damages for unlawful arrest and dated 11th September 2015 and filed on the
detention, as well as malicious prosecution. 18th September 2015 hence the Appellant
herein be awarded damages in the sum of
The appellants were successful and they Kshs. 42, 800, 000/- (Forty Two Million,
obtained monetary compensation from the Eight Hundred Thousand Only).
Court. The Attorney General then filed an
appeal at the Court of Appeal. While the Through a unanimous judgment, the
appeal was pending, the parties entered into Supreme Court held that the subject matter
a consent wherein the respondent was to of an appeal at the Supreme Court filed
7
under the provisions of article 163(4)(a) the appellants had urged it to adopt the
of the Constitution, had to have been the consent as an order of the Court, as it was
subject of litigation at the High Court and required to promote alternative dispute
it had to have risen through the judicial resolution under the provisions of article
hierarchy on appeal. In this case, the appeal 159(2)(c) of the Constitution. However,
before the Supreme Court did not stream the Court of Appeal did not interrogate or
from the subject matter before the High otherwise render judgment on the issue
Court, a claim for damages for wrongful of the applicability of article 159(2)(c) of
prosecution. The subject of the appeal the Constitution to the circumstances of
was on the mode of delivery of the Court the case. That curious development in the
of Appeal judgment and not the substance Court of Appeal’s analysis legitimately
of the judgment. That peculiarity called anchored the appeal at the Supreme Court
for a pragmatic approach in determining within the ambit of article 163(4)(a) of the
whether the Court had jurisdiction. To Constitution.
determine the question of jurisdiction, the
Court would be guided by the principle The Supreme Court noted that the issue
that each case had to be evaluated on its relating to the effect of a decision by one
own facts. The question as to whether the judge in a three judge bench declining or
Court had jurisdiction under article 163(4) otherwise withhold the delivery of his
(a) of the Constitution was a broad question judgment entailed a serious factual and
involving a multiplicity of factors. legal issue that required a Supreme Court
determination. The issues raised were
The Supreme Court noted that the such that if the Supreme Court declined
appellant’s plea was that the parties entered to exercise jurisdiction the appeal would
into a consent but the Court of Appeal be left in limbo. The importance of the
disregarded the consent in breach of article issues raised meant that the case warranted
159(2) of the Constitution. A concise the Supreme Court’s consideration. The
reading of the judicial principles in article Supreme Court was obligated to consider
159(2) of the Constitution showed that they and settle the issue of how the Court of
were non-derogable and had to be adhered Appeal delivered its judgment. There were
to by all courts and tribunals exercising exceptional circumstances in the case that
judicial power/authority. Where there was warranted assumption of jurisdiction by
a prima facie case of derogation, it behoved the Supreme Court.
the Court to intervene so as to safeguard the
Constitution within its jurisdiction under The Supreme Court held that a judgment
article 163(4)(a). Whereas the issue before was a determination or decision of a court,
the Supreme Court was not articulated at the that finally determined the rights and
Court of Appeal, the inherent jurisdiction obligations of the parties to a case, and it
of the Supreme Court to right jurisdictional included any decree, order, sentence, or
wrongs committed by the Superior Courts essential direction for the execution of
in executing their constitutional mandates the intent of the Court. It was only valid
would necessitate that the Court assumes and binding when delivered in accordance
jurisdiction and interrogate the alleged with the law. For a judgment to be valid
wrongs. The Supreme Court had inherent it would have to be dated, signed and
powers which it could invoke, under delivered in open court. Rule 32(3) of the
appropriate circumstances, to do justice. Court of Appeal Rules, 2010, provided that
separate judgments could be delivered by
The Supreme Court held that it should the remaining members of the bench where
only depart from the principle that issues one judge was unable to pen his judgment
of constitutional interpretation had to due to reasons that included delays, death,
rise through the Superior Courts to the ceasing to hold office or inability to perform
Supreme Court in the clearest of cases the functions of his office because of an
and the exception to that principle should infirmity of mind or body. The terms of the
be carefully considered by the Court. rule had to be met in order to show that the
The Supreme court stated that in its two judges of appeal had validly delivered a
judgment, the Court of Appeal noted that judgment on November 13, 2015.
8
The Court held that the judge who did of a matter or recording a consent between
not write his judgment did not fail to do parties before delivery of judgment and
so for reasons stated in rule 32(3) of the making the judgment moot. The rules of the
Court of Appeal Rules 2010. He failed to Court were handmaidens of the Court in its
write a judgment because in his opinion delivery of justice. The epitome of justice
a judgment should not be delivered as the between parties before a court was when
Court was functus officio, after the parties the parties finally and voluntarily came
filed a consent. A matter duly heard by a to an amicable settlement of the dispute
bench of three judges, could not have a between them. The Court only came in as an
judgment delivered by two judges without impartial arbiter when the parties failed to
the exceptions in rule 32(3) of the Court of agree amongst themselves. In considering
Appeal Rules 2010 being established. Such the matter between the parties, the Court
a practice clearly violated the Constitution, should not close the door for parties to
particularly article 10 on the principle continue negotiating in order to reach
of adherence to the rule of law. Such at an amicable settlement. Parties had to
a pronouncement could not be a valid remain at liberty to withdraw or consent to
judgment of the Court and was a nullity. It terms of the settlement of the matter before
could not be said that the Court spoke in the Court. However, alternative dispute
unanimity. The anomaly was grave and it resolution should be free of coercion and
rendered the judgment fatally defective. malice and be entered into with free will.
The Supreme Court noted that the copy The Supreme Court noted that the Court
of the email sent by one judge, to explain of Appeal had interpreted the consent
why he did not pen a judgment, was not narrowly and found that it (the consent)
part of the judgment. It did not matter could not be adopted because it did not
that it was read at the time the impugned specifically provide for the withdrawal of
judgment was read. The indication that he the matter. The Supreme Court provided
concurred with the orders issued by the that a holistic interpretation of the consent
other judges as expressed in the judgment showed that the consent was intended to
was a misrepresentation of the views of settle the matter and that the Court should
that judge. The pronouncement made on not have proceeded to enter judgment in
November 13, 2015 did not amount to a a settled matter. While stating that Courts
Court of Appeal judgment. It had no legal could only resolve live disputes between
basis and it infringed on rule 32(3) of the parties, the Supreme Court held that where
Court of Appeal Rules 2010. parties consented to the settlement of their
dispute, in light of article 159(2)(c) of the
The Court found that in dismissing the Constitution, the Court had no right to
application to adopt the consent order, the insist on determining the matter. The Court
Court of Appeal was concerned with the of Appeal should have paid due regard to
rules of the Court only and failed to consider the principle in article 159 (2) (c) of the
them in light of constitutional principles Constitution while interpreting its Rules.
embodied in article 159 of the Constitution. It should have adopted the consent as filed
A rule of procedure should not be applied or in court and thereafter if need be, it should
interpreted in a manner that derogated from have invoked its Rules, particularly rule 96
the spirit of the constitutional principles it of the Court of Appeal Rules and marked
related to. Article 159 of the Constitution the appeal as withdrawn.
was the foundation of the exercise of
judicial authority as donated by the people. The Court further held that the fact that an
It outlined principles that guided any person appeal had been heard and the judgment was
or body that exercised judicial authority. It reserved did not mean that the parties had
provided for alternative dispute resolution lost their chance to withdraw the matter.
as a principle in article 159(2)(c). A party/litigant before the Court should
not at any time feel that he was no longer
The Supreme Court held that there should in-charge of his matter even as the Court
be no rule of procedure that precluded a proceeded to determine such a matter.
court of law from allowing a withdrawal
9
The Supreme Court finally noted that it Petition allowed.

was a principle of law that costs followed
Orders:-
the event. The effect was that the party that
instituted the suit would bear the costs if the i. A declaration was issued to the effect
suit failed but where the suit was successful, that the Court of Appeal judgment dated
the defendant or respondent would bear November 13, 2015 in Nairobi Civil
the costs. However, the Supreme Court Appeal No. 260 of 2014 was null and
had discretion to decide on how to award void.
costs and could be guided by the peculiar ii. The ruling of the Court of Appeal dated
circumstances of the case. None of the November 12, 2015 in Nairobi Civil
parties could be faulted. The manner in Appeal No. 260 of 2014 was set aside.
which the impugned judgment was issued iii. An order was issued for the matter to be
was solely a judicial activity while the remitted back to the Court of Appeal for
ruling declining to adopt the consent was a the adoption of the consent filed by parties
misdirection by the Court of Appeal. It was on September 18, 2015 on a priority basis.
therefore appropriate for each party to bear iv. Each party had to bear its own costs.
his or its costs.
“You and I must work together to develop our country, to get education for our children, to have doctors, to build roads, to improve
or provide all day-to-day essentials.” - Jomo Kenyatta
10
Supreme Court
Rights and interest previously vested in a group, family or individual
under African Customary Law are not extinguished upon registration of
trust land
Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR
Petition No. 10 of 2015
Supreme Court of Kenya
October 5, 2018.
D K Maraga, CJ; M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SCJJ
Reported by Kakai Toili
Land Law-registration of land-registration of averred that the suit was allocated to their
trust land-where the rights and interest in the grandfather’s household and registered in
land were previously vested in a group, family the names of the Respondents’ uncles to hold
or individual under African Customary Law- in trust on behalf of the entire household.
whether upon registration of trust land, rights As such, the Respondent claimed that the
and interest previously vested in a group, family Appellants held one third of the suit property
or individual under African Customary Law were in trust on behalf of their deceased father.
extinguished-what were the circumstances in They averred that they had lived on the said
which African customary rights to trust land could property, were in possession of it and had
be excluded-Constitution of Kenya(repealed), made substantial developments on the same.
section 115, 116 & 117; Registered Land
Act(repealed), section 27, 28(b) & 30 (g) The High Court while entering judgment for
the Respondents held that the Respondents
Land Law – interests in land- overriding interests had established the existence of a trust
in land-customary trusts-what were the factors to in their favour on the basis of their being
consider in determining whether a claim of a right in actual occupation and also as bona-fide
to land qualified as a customary trust- whether it members of the household. Aggrieved by the
was mandatory for one to be in actual physical decision, the Appellants filed an appeal to
possession and occupation of the land in order the Court of Appeal which affirmed the High
to prove a customary trust in land- what were Court’s decision. Aggrieved by the Court of
the differences between the Registered Land Act Appeal’s decision, the Appellants filed the
(repealed) under the Constitution (repealed) and instant Appeal.
the Land Registration Act under the Constitution
with regard to overriding interests on land- Issues
Registered Land Act (repealed), section 28(b) & i. Whether upon registration of trust land,
30 (g) rights and interest previously vested in a
group, family or individual under African
Brief Facts Customary Law were extinguished.
ii. What were the circumstances in which
The Respondents filed a suit at the Chief
African customary rights to trust land
Magistrate’s Court; however, the suit
could be excluded?
was transferred to the High Court. The
iii. What were the factors to consider in
Respondents were members of a clan, which
determining whether a claim of a right
owned a large parcel of ancestral land. They
to land qualified as a customary trust?
averred that during the process of land
iv. Whether it was mandatory for one to
adjudication, it had been agreed that the
be in actual physical possession and
land would be sub-divided and each portion
occupation of the land in order to prove
registered in the name of an appointed
a customary trust in land.
member who would then hold the land
v. What were the differences between the
in trust on behalf of a specific household.
Registered Land Act (repealed) under
Pursuant to that agreement, the Respondents
the Constitution (repealed) and the Land
11
Registration Act under the Constitution Registered Land Act(repealed)

with regard to overriding interests on Section 27
land?
(a) The registration of a person as the
Relevant Provisions of the Law proprietor of land shall vest in that person
the absolute ownership of that land
Constitution of Kenya (repealed)
together with all rights and privileges
Section 115 belonging or appurtenant thereto”
1. All Trust land shall vest in the county council Section 28
within whose area of jurisdiction it is situated.
2. Each county council shall hold the Trust The rights of a proprietor, whether acquired on
land vested in it for the benefit of the persons first registration or whether acquired subsequently
ordinarily resident on that land and shall give for valuable consideration or by an order of court,
effect to such rights, interests, or other benefits shall not be liable to be defeated except as provided
in respect of the land as may, under the in this Act, and shall be held by the proprietor,
African customary law for the time being in together will all privileges and appurtenances
force and applicable thereto, be vested in any belonging thereto, free from all other interests and
tribe, group, family or individual provided claims whatsoever, but subject-
that no right, interest or other benefit under (a) to the leases, charges and other
African customary law, shall have effect for encumbrances and to the conditions and
the purposes of this sub-section so far as it is restrictions, if any, shown in the register; and
repugnant to any written law.” (b) unless the contrary is expressed in the
Section 116 register, to such liabilities, rights and interests
as affect the same and are declared by Section
1. A county council may, in such manner and
30 not to require noting on the register;
subject to such conditions as may be prescribed
by or under an Act of Parliament, request that Provided that nothing in this section shall be
any law to which this sub-section applies taken to relieve a proprietor from any duty or
shall apply to an area of Trust land vested in obligation to which he is subject as a trustee.”
that county council, and when the title to any
parcel of land within that area is registered Section 30
under any such law otherwise than in the Unless the contrary is expressed in the register,
name of the county council it shall cease to be all registered land shall be subject to such of the
Trust land. following overriding interests as may for the time
Section 117 being subsist and affect the same, without their
being noted on the register-
(2) Where a county council has set apart an area
of land in pursuance of this section, any rights, (f) rights acquired or in the process of
interests or other benefits in respect of that land being acquired, by virtue of any written
that were previously vested in a tribe, group, law relating to the limitation of actions
family or individual under African customary or by prescription.
law shall be extinguished.
(g) the rights of a person in possession or
(4) No setting apart in pursuance of this section actual occupation of land to which he is
shall have effect unless provision is made by the entitled in right only of such possession or
law under which the setting apart takes place for occupation, save where inquiry is made
the prompt payment of full compensation to any of such person and the rights are not
resident of the land set apart who- disclosed.”
(a) under the African Customary law for the Held

time being in force and applicable to the land, 1. Three statements of legal principle were
has a right to occupy any part of the land; deducible from the Bennett J, doctrine in
Obiero v Opiyo (1972) E.A 227(Obieroo v
Opiyo), which decreed that rights to land
under customary law became extinguished
upon registration of the land in question.
12
They were: the members could be inferior to, or co-

a. The registration of land under the terminus with, or indeed superior to the
Registered Land Act (repealed) sum total of the rights of a group. Hence,
extinguished customary rights to that customary law did not vest ownership, in
land for all purposes. land in the English sense, in the family,
b. Rights under customary law or such but ascribed to the family the aggregate
rights as existed prior to registration of the rights that could be described as
were not overriding interests under ownership.
section 30 of the Registered Land Act
4. The decisions in Obiero v Opiyo and Esiroyo
(repealed).
v Esiroyo (1973) E.A 388 were based on
c. The trust envisaged under the proviso
faulty conceptual and contextual premises.
to section 28 of the Registered Land
Faulty conceptually because, they did not
Act(repealed) was the trust known
take into account the complex nature
under English common law and
of customary rights to land, and faulty
doctrines of equity. In other words,
contextually because in interpreting
customary law was incapable of
sections 27, 28 and 30 of the Registered
creating a trust to which a registered
Land Act(repealed), the courts paid little
proprietor would be subject after
or no attention to the relevant provisions
registration.
of the Constitution(repealed) regarding
2. The Bennett doctrine was a jurisprudence trust land. It was the registration of land
borne out of colonial land tenure policy. in the trust land areas that had triggered
It was a jurisprudence, whose unstated the enduring tension between registered
contrivance was to consign customary proprietors and claimants under
land law and rights flowing therefrom, to customary law.
the dustbins of eternity. It was a judicial
validation of the Swynnerton Plan whose 5. Neither section 115 nor 116 of the
architect argued that sound agricultural Constitution (repealed) stipulated that
development was dependent upon a upon registration of trust land, any rights,
system of land tenure which would make interests or other benefits in respect of
available to the African farmer, a unit that land that were previously vested
of land and a system of farming whose in a tribe, group, family or individual
production would support his family. He under African Customary Law had to be
had to be provided with such security of extinguished. All that the section provided
tenure through an indefeasible title as was that no right, interest or other benefit
would encourage him to invest his labour under African Customary Law had to
and profits into the development of his have effect for the purposes of section 115
farm and as would enable him to offer it (2)) of the Constitution(repealed)so far as
as security for such financial credits as he it was repugnant to any written law. On
could wish to secure. the contrary, the Constitution(repealed)
was categorical that each county council
3. Land in a traditional African setting, was had to give effect to such rights, interests
always the subject of many interests and or other benefits in respect of the land
derivative rights. The content of such as could, under African Customary Law
interests and rights was often a complex for the time being in force or applicable
area of inquiry. Such rights could be thereto, be vested in any tribe, group,
vested in individuals or group units. The family or individual.
rights and interests frequently co-existed
with each other, for example, the rights of 6. The obligation imposed upon a county
members of a family did not necessarily council to give effect to rights under
derive from the corporate rights of the African Customary Law applicable to trust
family as such, but by operation of the land did not cease upon the application of
applicable law and customs. Besides, the the Land Consolidation Act and the Land
enjoyment of the rights was dependent Adjudication Act to that land. In fact, the
on the fulfilment of certain conditions duty to give effect to those rights, became
unique to the group unit. Several rights of more pronounced, during the land
registration process. Given the fluidity
13
and complexity of those rights, such rights African Customary Law, put differently,
could not find expression in the register the rights of a person arising under
in their totality. Such customary rights as African customary law as evidenced by
could not be noted on the register would his/her being in possession or actual
have to be recognized somehow, for occupation of the land were overriding
they had already been recognized by the interests under section 30 (g) of the
Constitution. Registered Land Act(repealed). Such
rights of a person that subsisted at the
7. The obligations of a registered proprietor
time of first registration, as evidenced
upon a first registration, as embodied
by his being in possession or actual
in section 28(b) and section 30 (g) of the
occupation, were rooted in customary
Registered Land Act (repealed), could
law. They arose under African Customary
only logically, be traceable to the rights,
Law. They derived their validity from
interests or other benefits under African
African Customary Law. They were rights
Customary Law. Given that historical
to which one was entitled in right only of
context and the constitutional and
such possession or occupation. They had
statutory provisions, it could not have
no equivalent either at common law or in
been so easy to declare that rights under
equity. They did not arise through adverse
customary law were extinguished for all
possession; neither did they arise through
purposes upon the registration of a person
prescription. If they arose through those
and that none could survive whatsoever.
processes, they would be overriding
8. The only situation where the Constitution interests, not under section 30(g), but
(repealed) envisaged the extinction of under section 30(f) of the Registered Land
African customary rights to trust land Act (repealed).
was where such land had been set apart
11. It was customary law and practice
for a public purpose under section 117.
that clothed the rights of a person in
Besides, the setting apart of trust land
possession or actual occupation with legal
under section 117, hence the extinction
validity. If customary law and practice did
of rights under African customary law,
not recognize such possession or actual
could only take effect upon the prompt
occupation, then it could not be a right to
payment of full compensation. The only
which a person was entitled.
situation where African Customary
Law would be excluded was where such 12. A customary trust, as long as the
law was determined to be repugnant to same could be proved to subsist, upon a
any written law. Repugnancy was such first registration, was one of the trusts to
a polemical and subjective notion that which a registered proprietor was subject
it could hardly have provided a stable under the proviso to section 28 of the
yardstick for the extinction of customary Registered Land Act(repealed). Under that
land rights. legal regime, the content of such a trust
could take several forms. For example,
9. Courts vide section 163 of the Registered
it could emerge through evidence that
Land Act(repealed) had been more willing
part of the land registered was always
to import the doctrines of implied,
reserved for family or clan uses, such
resulting and constructive trust as known
as burials and other traditional rites. It
in English law, into section 28 of the Act.
could also be that other parts of the land,
The notion of a customary trust, which
depending on the specific group or family
should have been the first port of call
setting, were reserved for various future
had only been gradually and hesitatingly
uses such as construction of houses and
embraced. Due to that judicial hesitancy,
other amenities by youth graduating into
the vital elements and content of a
manhood. The categories of a customary
customary trust had yet to be fully and
trust were therefore not closed. It was for
clearly developed.
the Court to make a determination on the
10. The rights of a person in possession basis of evidence as to which category
or actual occupation of trust land before of such a trust subsisted as to bind the
registration were rights arising under registered proprietor.
14
13. Each case had to be determined on into the circumstances of registration to

its own merits and quality of evidence. It establish whether a trust was envisaged.
was not every claim of a right to land that Since the two courts were satisfied that
would qualify as a customary trust. In that indeed elements of a customary trust in
regard, what was essential was the nature favour of the Respondents pertaining to
of the holding of the land and intention the parcel existed, there was no reason to
of the parties. If the holding was for the interfere with their conclusions.
benefit of other members of the family,
17. Legislative intent could not always
then a customary trust would be presumed
be attributable to what the Legislature
to have been created in favour of such
said through statute. To assume that
other members, whether or not they were
what Parliament did not say in the final
in possession or actual occupation of the
legislative edict was never meant to be,
land. Some of the elements that would
was to tread the dangerous path of judicial
qualify a claimant as a trustee were:
cynicism. Parliament could not legislate
a. The land in question was before for every exigency of human existence.
registration, family, clan or group Indeed, there was nothing easy when the
land. Legislature sat to make laws; just as there
b. The claimant belonged to such family, was never a straight-forward or clear-
clan, or group. cut route when a court embarked on the
c. The relationship of the claimant to interpretation of a written law.
such family, clan or group was not so
remote or tenuous as to make his/her 18. The provisions of section 28 of the
claim idle or adventurous. Registered Land Act(repealed) including
d. The claimant could have been entitled the proviso thereto, were re-enacted
to be registered as an owner or other as section 25 of the Land Registration
beneficiary of the land but for some Act. The provisions of section 30 of the
intervening circumstances. Registered Land Act(repealed) were
e. The claim was directed against the re-enacted as section 28 of the Land
registered proprietor who was a Registration Act. However, Parliament
member of the family, clan or group. introduced two categories of overriding
interests namely;
14. Rights of a person in possession
or actual occupation of land under a. Spousal rights over matrimonial
section 30(g) of the Registered Land property.
Act (repealed) were customary rights. b. Trusts including customary trusts.
Once it was concluded that such rights
subsisted a court needed not to fall back The rights of a person in possession or
upon a customary trust to accord them actual occupation of land to which he was
legal sanctity since they were already entitled in right only of such possession
recognized by statute as overriding or occupation as previously provided for
interests. under section 30 (g) of the Registered
Land Act(repealed), were no longer on the
15. To prove a trust in land one needed list of overriding interests under section
not be in actual physical possession and 28 of the Land Registration Act.
occupation of the land. A customary
trust fell within the ambit of the proviso 19. Customary trusts as well as all other
to section 28 of the Registered Land trusts were overriding interests. Those
Act(repealed) while the rights of a person trusts being overriding interests were
in possession or actual occupation were not required to be noted in the register.
overriding interests and fell within the However, by retaining the proviso to
ambit of section 30(g) of the Registered section 28 of the Registered Land Act
Land Act(repealed). (repealed) in section 25 of the Land
Registration Act, it could be logically
16. Although the Respondents were not assumed that certain trusts could be noted
in possession or actual occupation of suit in the register. Once so noted, such trusts,
property, both the High Court and the not being overriding interests, would bind
Court of Appeal were entitled to enquire the registered proprietor in terms noted
15
on the register. of a specific category of a customary

trust, one of which could arise, although
20. The rights of a person in possession
not exclusively from the fact of rightful
or actual occupation of land, as envisaged
possession or actual occupation of the
under section 30 (g) of the Registered
land. The instant Judgment was forward
Land Act (repealed), had been subsumed
looking and had no effect on cases already
in the customary trusts under section 25
decided.
(b) of the Land Registration Act. Under
section 25 (b) of the Land Registration Appeal dismissed, Appellant to bear costs of the
Act, a person could prove the existence Appeal.
“Our children may learn about the heroes of the past. Our task is to make
ourselves the architects of the future.” - Jomo Kenyatta,
Some rights reserved by dachalan
16
Court of Appeal
Ingredients needed to be satisfied to prove common intention in an
offence
Stephen Ariga v Republic [2018] eKLR
Court of Appeal at Nairobi
Criminal Appeal No 49 ‘A’ of 2017
Consolidated with
Criminal Appeal No 49’b’ of 2017
September 21, 2018
R N Nambuye, M Warsame, A K Murgor
Reported by Ian Kiptoo
Statutes-interpretation of statutes-interpretation Relevant Provisions of the Law
of section 21 of the Penal Code-common Penal Code
intention-ingredients of common intention-
Section 21
what were the ingredients needed to be satisfied
to prove common intention in an offence-Penal “When two or more persons form a common
Code, section 21 intention to prosecute an unlawful purpose
in conjunction with one another, and in the
Criminal Law-common intention-ingredients prosecution of such purposes an offence is
of common intention in an offence-where it committed of such a nature that its commission
was held Appellants had a common intention in was a probable consequence of the prosecution
the commission of the offence of manslaughter- of such purpose, each of them is deemed to have
what were the ingredients needed to be satisfied committed the offence”.
to prove common intention in an offence-Penal
Code, section 21 Held
1. Being a first appeal, the Court had a duty
Brief facts
to re-hear and reconsider the case that
The Appellants were jointly charged before was before the Trial Court and arrive at its
the High Court with four (4) others for the own conclusion thereon, bearing in mind
offence of murder contrary to section 203 that it neither saw nor heard the evidence
as read with section 204 of the Penal Code by the prosecution’s witnesses. It would
(Cap 63), Laws of Kenya. The Appellants not be sufficient for the Court to merely
appealed against the High Court’s Judgement scrutinize the evidence to see if there was
and conviction for the lesser offence of some evidence to support the Trial Court’s
Manslaughter contrary to section 202 of the findings and conviction. Furthermore,
Penal Code, and sentence of three (3) years when it came to a question arising as to
imprisonment each. which witness should be believed rather
than another and that question turned
The Appellants contended that the Trial on the manner and demeanor of such a
Court erred in finding the Appellants guilty witness, the Court had to be guided by the
of the disclosed offence of manslaughter impressions made by the Trial Court who
contrary to section 202 of the penal code; saw and heard the witnesses who testified.
holding that the Appellants had a common 2. The Trial Court correctly found that the
intention in the commission of the offence Appellants and their colleagues were
they were ultimately found guilty of and present at the scene of the second shooting
convicted of, namely, manslaughter. incident and that the unlawful cause of
death of the deceased was attributable to
Issue
the Appellants only.
i. What were the ingredients needed 3. It was plausible that the deceased who was
to be satisfied to prove common seated in the back seat of PW2’s vehicle
intention in an offence? as per the uncontroverted testimony of
PW 1, 2 and 5 definitely turned as it was
17
humanly probable to face the direction not state that the said forming of a common
of the shooting and that was how the intention had to be before the execution
fatal bullet entered his body through the of the act complained of. Both Appellants
front of his chest. Therefore, it was the were categorical in their testimonies and
Appellants who shot the deceased from correctly so, that their sole but separately
the front. formed reason for shooting at PW 2’s
4. Section 21 of the Penal Code defined vehicle from the rear was to immobilize
common intention. Common intention it. There was no evidence that the two
generally implied premeditated plan, but consulted each other before firing at PW
that did not rule out the possibility of a 2’s vehicle. The common intention which
common intention developing in the was to immobilize the vehicle was formed
course of events though it might not have in the course of their separately intending
been present to start with. Therefore, in to shoot at the rear of the vehicle with a
line with the definition and principle, view to immobilizing it. Ingredient two
the Appellants’ meeting at the scene of (2) was therefore also satisfied.
the second shooting incident was not for 7. As for the third ingredient, the unlawful
an unlawful purpose. Neither was it for purpose in the instant appeal did not
purposes of targeting PW 2’s vehicle as result from the decision to shoot but
they were neither aware of its approach from the end result of the shooting act
in the vicinity nor did they have any prior complained of. There was nothing in
anticipation that their colleagues in the the said ingredient to suggest that the
police Land Cruiser ahead of them would unlawfulness of the act complained of
flag it down to stop for whatever reason, could only result from factors that went
or that PW 2 would defy the orders to to prove the onset of the action and not
stop. Furthermore, there was no evidence from the end result of the action. Thus,
that the Appellants consulted each other ingredient three (3) was satisfied.
before directing their firearms at the rear 8. As for the fourth ingredient, it was
of PW 2’s vehicle as borne out from their undisputed and as correctly found by the
own testimonies. Trial Court that the action resulting in
5. The ingredients of common intention the fatal shooting was not premeditated.
were as follows:- That was why the Trial Court termed it
a. There had to be two or more persons; unlawful, because it was unintentional.
b. The persons had to form a common What the Appellants intended by shooting
intention; at the rear of PW2’s vehicle, which
c. The common intention had to be was accepted by the Trial Court was to
towards prosecuting an unlawful immobilize the vehicle. Unfortunately
purpose in conjunction with one for them, one bullet fatally injured the
another; deceased. Therefore, Ingredient four (4)
d. An offence had to be committed in the was satisfied.
process; 9. As for the fifth ingredient, PW2’s vehicle
e. The offence had to be of such a nature was in motion. The intention to fire at
that its commission was a probable PW2’s vehicle was on impulse, allegedly
consequence of the prosecution of the provoked by the alleged failure by PW2
unlawful purpose. to stop. The Appellants ought to have
Applying the ingredients of the elements known that since it was at night, there was
of common intention as against the the possibility of their ability to focus only
Appellants. It was not disputed that the on the rear tires of the vehicle could have
Appellants were the only members of the been impaired, resulting in the bullets
patrol crew who shot at PW 2’s vehicle landing on other parts of PW2’s vehicle as
during the second shooting incident. That it in fact did happen. That was why there
satisfied the first ingredient of the need of were bullet holes at the rear of the vehicle
two or more persons being participants in instead of those being concentrated on the
the execution of the act complained of. tires as the Appellants intended target. In
6. The second ingredient required the that regard, the very fact that PW2’s vehicle
forming of the common intention. It did was in motion should have been warning
18
enough for the Appellants to anticipate directed at a moving vehicle.

the possibility of the presence of a person 10. Upon consideration of the record and
or persons other than the one propelling the rival submission, the Appellants were
it. Likewise, there was the possibility of rightly convicted and sentenced. There
the occupants of PW2’s vehicle being was no basis to interfere and disturb the
injured in the process of the Appellants’ findings of the Trial Court which were
attempt to immobilize it which was not based on sound evidence and correct
also remote and could not be ruled out. application of the law to that evidence.
Therefore, the Appellants had to be taken
Appeal dismissed; both the conviction and
to have intended the consequences of their
sentences as handed down by the Trial Court
actions, and especially for their failure to
were upheld.
exercise some restraint when discharging
their firearms, especially at night and
Magistrates’ Courts have jurisdiction to hear and determine disputes

which concern allegations of violations of the rights of minorities and
marginalized groups in election petitions.
Orange Democratic Movement v Yusuf Ali Mohamed & 4 others
Civil Appeal No 37 of 2018
Court of Appeal at Eldoret
October 4, 2018
E M Githinji, J Mohammed, Otieno-Odek, JJA
Reported by Beryl A Ikamari
Jurisdiction-jurisdiction of the Magistrates’ Turkana County and the 4th Respondent’s

Courts-extent of the Magistrates’ Courts nomination violated articles 90 and 177 of the
jurisdiction in election petitions which included Constitution. The 2nd Appellant challenged
allegations on violations of fundamental rights the nomination of the 5th Respondent while
and freedoms-disputes emanating from elections stating that he was a public servant-the
and nomination to County Assemblies-claim Assistant Chief of Nachukui sub-Location,
that the nomination of certain persons to the Ng’isiger Location, Turkana North Sub-
membership of a County Assembly entailed County.
violations of the rights of minorities and
marginalized groups-whether the appropriate The 2nd Appellant contended that the
forum for the hearing and determination of the nomination of the 4th and 5th Respondents
dispute was the Magistrate’s Court-Constitution was a violation of the right to fair
of Kenya 2010, articles 87(1) & 165(3); Elections administrative action as they were far below
Act, No 24 of 2011, sections 75(1A) & 75(4); in priority in their respective categories of
Magistrates Courts Act, No 26 of 2015, section 8. Gender and Marginalized people and their
nomination entailed discrimination against
Brief facts the other applicants in their respective lists.
By Gazette Notice dated August 28, 2017, In response, the 4th Respondent and 6th
Vol. CXLX- No. 124, the IEBC gazetted the Respondent each filed a Notice of Preliminary
4th Respondent and the 5th Respondent as Objection and the common contention was
the duly nominated Members of Turkana that the High Court lacked the jurisdiction to
County Assembly under the Party List of hear and determine the matter under section
the Orange Democratic Movement (ODM.) 75 (1A) of the Elections Act. The Preliminary
ODM submitted the Party List under the Objection was dismissed as the High Court
provisions of section 35 of the Elections Act. found that the claim was for a violation of
constitutional rights over which the High
The 1st Appellant challenged the nomination Court had jurisdiction under article 165 of
of the 4th Respondent. He stated that his the Constitution. The High Court also found
right to representation was prejudiced as the that the Preliminary Objection was premised
4th Respondent was not a registered voter in on disputed facts which would be clarified at
19
the hearing of the Petition. Court entailed questions to be determined

upfront. A question on jurisdiction would
The Appellants were aggrieved by the High not be determined at the end of a full
Court’s ruling and they filed an appeal at the hearing of the merits of the case. It was a
Court of Appeal. Their main contention was preliminary issue to be determined at the
that the appropriate forum for the dispute, in outset. Therefore, the High Court erred in
which the nullification of the nomination of determining that it could only decide on
the 4th and 5th Respondents as Members of whether it had jurisdiction after hearing
Turkana County Assembly was sought, was the parties and having the disputed facts
an election court and not the High Court. clarified.
Issue 5. The prayers sought at the High Court, in the
petitions filed, included the nullification
i. Whether the jurisdiction of of the nomination and gazettement of
Magistrates’ Courts in election the 4th and 5th Respondents as members
petitions included jurisdiction of the Turkana County Assembly. That
over questions concerning alleged nullification was only available as a relief
violations of the rights of minorities in an election petition. Such prayers
and marginalized communities. would be granted by an election court.
6. What was before the High Court
Held
was an election petition couched as a
1. It was a misconception of law to state constitutional petition. Pleadings would
that remedies in an election petition not confer jurisdiction upon a court
were in personam whereas remedies in a where none existed. Jurisdiction was
constitutional petition were in rem. The conferred by law and not pleadings or
electoral and nomination process and draftsmanship. Both the substance of the
the declared results thereof were in rem. claim and relief sought would determine
Similarly any election petition judgment the jurisdictional competence of a court.
or relief was a judgment or relief in rem. 7. Any contest to an election, whatever its
The outcome would bind the whole world manifestation, would have to be by way
and alter the legal status of the candidate of an election petition. A judicial review
in so far as it related to the election application or constitutional petition
outcome and petition. could not resolve or initiate electoral
2. The High Court was not the only forum dispute resolution after gazettement of
vested with jurisdiction to determine nomination or election results.
questions related to a violation of 8. Upon gazettement, both nominated
fundamental rights and freedoms. There candidates as well as persons elected
were other fora but the existence of by way of universal adult suffrage were
those fora did not oust the jurisdiction deemed to be elected members of either
of the High Court. Under section 8 of the County Assembly or Parliament.
the Magistrates’ Courts Act, Magistrate’s Section 75 (1A) of the Elections Act
Courts were vested with jurisdiction entailed a statutory bar against the
to deal with human rights claims that handling of electoral disputes relating
were guaranteed under article 25 of the to Membership to the County Assembly
Constitution. by the High Court as part of its original
3. The appeal raised a jurisdictional jurisdiction. The said section 75(1A)
question on whether the High Court had provided that a question as to the validity
jurisdiction over a dispute relating to of the election of a Member of a County
membership to a County Assembly where Assembly shall be heard and determined
it involved alleged violations of minority by the Resident Magistrate’s Court
rights or protection and enforcement designated by the Chief Justice. Section
of the rights of marginalized groups. 75 (4) of the Elections Act provided for
Jurisdiction was everything and without the High Court’s appellate jurisdiction to
it the Court would not continue to hear hear appeals from the Magistrate’s Court,
a dispute. relating to the elections based on matters
4. Disputes relating to the jurisdiction of the of law only.
20
9. The grounds raised at the High Court Appeal allowed.

against the nomination of the 4th and 5th
Respondents included the protection and Orders:-
enforcement of the rights of minorities i. The Ruling of the High Court dated April
and marginalized communities. The 4, 2018 and all consequential orders were
Magistrate’s Court had jurisdiction to hear set aside.
and determine a dispute on membership ii. All the preliminary objections filed before
to a County Assembly which was based the High Court were upheld.
on any ground properly raised before it. iii. It was declared that the High Court
There was no principle or rule of law that lacked jurisdiction to entertain, hear and
in an election petition properly before a determine Constitution Petition Nos. 2
magistrate’s court, the Court shall not and 3 of 2017 filed at the Lodwar High
have jurisdiction to hear and determine Court.
any ground urged in violation of the Bill iv. Each party was to bear his//her/its costs
of Rights. in the appeal.
God said this is our land, land in which we flourish as people... we want our cattle to get fat on our land so that our children grow up
in prosperity; and we do not want the fat removed to feed others.” - Jomo Kenyatta
21
High Court
The mandate of the Public Private Partnership Petition Committee to
consider all petitions and complaints submitted by private parties before
it included the power to award costs.
Kenya National Highways Authority v PPP Petition Committee & 2 others [2018] eKLR
High Court at Nairobi
November 8, 2018.
W A Okwany, J
Constitutional Law-fundamental rights and specified period of time. The petitioner

freedoms-right to fair hearing- rules of natural prepared and issued tender documents
justice-ingredients-what were the ingredients after which bids were received from three
of fairness or natural justice that guided all entities and thereafter a preferred bidder
administrative decisions-Constitution of Kenya, determined. The 2nd interested party’s bid
2010, article 47 failed triggering a petition by the said 2nd
interested party to the 1st respondent( the
Jurisdiction-jurisdiction of tribunals-jurisdiction committee) challenging the procurement
of the Public Private Partnership Petition process and seeking to be declared the
Committee- jurisdiction to award costs when preferred bidder and to be awarded the tender
determining petitions and complaints-whether together with costs. The committee annulled
the mandate of the Public Private Partnership the entire tender process and awarded costs
Petition Committee to consider all petitions and of the petition to the 2nd interested party.
complaints submitted by private parties before it Aggrieved by the decision the petitioner filed
included the power to award costs-whether the the instant petition. The petitioner averred
Public Private Partnership Petition Committee that the committee did not have the requisite
was a specialized tribunal capable of performing jurisdiction to make an award for costs.
judicial functions–Constitution of Kenya, 2010,
article 169(1)(d); Public Private Partnership Issues
Act, section 67(1); Civil Procedure Act, section i. What were the ingredients of fairness
27: Public Private Partnerships Regulations, or natural justice that guided all
regulation 60 (1)(e) administrative decisions?
ii. Whether the mandate of the Public
Statutes-interpretation of statutes-interpretation
Private Partnership Petition Committee
of regulation 60(1(e) of the Public Private
to consider all petitions and complaints
Partnerships Regulations-whether regulation
submitted by private parties before it
60(1)(e) of the Public Private Partnerships
included the power to award costs.
Regulations was inconsistent with the Public
iii. Whether regulation 60(1)(e) of the Public
Private Partnership Act by empowering the Public
Private Partnerships Regulations was
Private Partnership Petition Committee to award
inconsistent with the Public Private
costs when dealing with a petition or complaint-
Partnership Act by empowering the
Public Private Partnership Act, section 67; Public
Public Private Partnership Petition
Private Partnerships Regulations, regulation
Committee to award costs when dealing
60(1)(e)
with a petition or complaint.
Brief Facts iv. Whether the Public Private Partnership
Petition Committee was a specialized
The petitioner invited bids for the tribunal capable of performing judicial
development of roads in several counties functions.
under Public Private Partnership (PPP)
arrangement to finance, design, build,
maintain and transfer the projects over a
22
Relevant Provisions of the Law are to be paid, and to give all necessary
Constitution of Kenya, 2010 directions for the purposes aforesaid; and
the fact that the court or judge has no
Article 47
jurisdiction to try the suit shall be no bar
Every person has the right to have any to the exercise of those powers: Provided
dispute that can be resolved by the that the costs of any action, cause or other
application of law decided in a fair matter or issue shall follow the event
and public hearing before a court or, if unless the court or judge shall for good
appropriate, another independent and reason otherwise order.
impartial tribunal or body
Public Private Partnerships Regulations
Public Private Partnership Act
Regulation 60
Section 67
(1)(e) When dealing with a petition or a complaint,
1. There is established a committee to be
the petition committee may allocate costs of
known as the Petition Committee which
hearing the petition or petition to the parties to
shall consider all petitions and complaints
the petition or complaint.
submitted by a private party during the
process of tendering and entering into a Held
project agreement under this Act.
1. In cases where there was no express
2. The petition committee shall consist of-
requirement that a person be heard before
a) The chairperson who shall be a person
a decision was made, the tribunal or
qualified for appointment as a judge of
authority entrusted with the mandate of
the High Court of Kenya;
making the decision had to act fairly. The
b) Four other persons with such knowledge
values underlying the duty of procedural
and experience as the Cabinet Secretary
fairness related to the principle that the
shall, in consultation with the unit,
individual or individuals affected should
consider appropriate; and
have the opportunity to present their case
c) The unit director.
fully and fairly, and have decision affecting
3. The members of the Petition Committee
their rights, interests, or privileges made
shall hold office for a term of three years and
using a fair, impartial and open process,
shall be eligible for re- appointment for one
appropriate to the statutory, institutional
further term.
and social context of the decisions.
4. Where a petition is based on administrative
2. The ingredients of fairness or natural
decision of the Committee, the unit or the
justice that had to guide all administrative
contracting authority, such petition for a
decisions were;
review of the decision shall be made within
a. that a person had to be allowed an
fifteen days from the date of the decision in
adequate opportunity to present
the prescribed form.
their case where certain interests and
5. For the decision of the Committee shall be
rights could be adversely affected by a
final and binding on both parties.
decision-maker;
6. The Cabinet Secretary may by regulations,
b. that no one ought to be a judge in his
provide for the procedure for determining a
or her case .That was the requirement
petition under Subsection (1)
that the deciding authority had to be
Civil Procedure Act unbiased when according the hearing
or making the decision; and
Section 27 c. that an administrative decision had to
(1) Subject to such conditions and limitations be based upon logical proof or evidence
as may be prescribed, and to the provisions material.
of any law for the time being in force, the 3. Whatever form of proceedings adopted
costs of and incidental to all suits shall be by an authority had to meet the basic
in the discretion of the court or judge, and elements of fairness. As a component of
the court or judge shall have full power due process, it was important that a party
to determine by whom and out of what had reasonable opportunity to know
property and to what extent such costs the basis of the allegations against it.
23
Elementary justice and the law demanded final and binding on both parties.
that a person be given full information on 8. Regulation 60(1)(e) of the Public Private
the case against him and given reasonable Partnerships Regulations could not be
opportunity to present a response. That said to be in conflict with the Act as there
right was not limited only in cases of a was no corresponding provision in the
hearing as in the case of a court or before Act that provided that the committee
a tribunal, but when taking administrative could not award costs. The impugned
actions as well. Even where no actual regulation complimented the provisions
hearing was to be held in relation to the of the Act in so far as it clarified the
making of an administrative or quasi- mandate of the committee on the issue of
judicial decision, an individual could be the award of costs.
entitled to be informed that a decision
9. It was not necessary for the law makers
which would have adverse consequences
to make a provision for every possible
for him could be taken and to notification
determination/finding that the committee
of the possible consequences of the
could arrive at upon hearing such
decision.
petitions or complaints as every decision
4. The petitioner’s rights under article 47 and would then depend on the circumstances
50 of the Constitution were not violated. of each case. In the instant case, it was
The committee had the jurisdiction to not disputed that the committee was a
hear the dispute that was presented before specialized tribunal established by an
it and the mere fact that its decision did Act of Parliament in conformity with
not favour the petitioner did not mean the provisions of article 169(1)(d) of
that its rights under articles 47 and 50 of the Constitution. A look at the mandate
the Constitution were violated. and composition of the committee
5. A reading of section 67(1) of the Public especially its chairperson showed that it
Private Partnership Act (the Act) revealed was a committee mandated to decide on
that the committee was mandated to questions of law. The question of costs was
consider all petitions and complaints a legal issue and a natural consequence of
submitted by a private party during the litigation which ordinarily followed the
process of tendering. In the instant case, events. The court or tribunal hearing a
the issue of costs was one of the issues dispute could award costs to the winning
presented before the committee for party.
determination. 10. It would be inconceivable to have a
6. Section 67(1) of the Act was all scenario where a specialized tribunal,
encompassing and granted the committee such as the committee, could be granted
power to determine all complaints which powers to consider all complaints related
meant that the committee was not limited to the tendering process and be denied the
in the kind of the complaints that it could power to consider costs that arose from
consider and determine. In that regard, such proceedings.
it was not necessary for the Act to make 11. In the instant case, the impugned
a specific provision on the committee’s regulation was made by the 2nd
power to award costs. respondent (Cabinet Secretary) pursuant
7. Whether the committee was precluded to the clear provisions of section 67(6)
from determining the question of costs of the Act which was legislation within
or any other issue, was an issue that ought the meaning of article 94(5) of the
to have been raised by the petitioner Constitution and he could not therefore
before the committee, that was not done. be said to have acted in violation of the
Challenging the committee’s award in the said article. It was ironical and indeed
instant proceedings was an afterthought baffling that the Cabinet Secretary, who
and a belated attempt by the petitioner was the maker of the impugned Public
to appeal against the decision of the Private Partnerships Regulations, was the
committee contrary to the provisions of same state officer that was on the frontline
section 67(5) of the Act which stipulated in opposing the said regulations.
that the findings of the committee were 12. The claim that the impugned regulation
24
was unconstitutional was not proved. No costs.

material was placed before the Court to
Petition dismissed, interim orders issued on May
show that the procedure adopted in the
24, 2017 vacated, no orders as to costs
enactment of the said regulations did not
conform to the Constitution and neither
was it proved that the committee acted
outside the law in awarding the impugned
Whether life imprisonment is a mandatory sentence as opposed to
maximum sentence for the offence of incest under section 20(1) of the
Sexual Offences Act, where the complainant was below 18 years of age.
P M M v Republic
Criminal Appeal No 24 of 2017
High Court at Naivasha
November 6, 2018
R Mwongo, J
Criminal Law-sexual offences-incest- the complainant’s age was not proved.

sentencing-where the complainant was below the
age of 18 years-whether life imprisonment was Issues
a mandatory sentence as opposed to maximum i. Whether in a sexual offence case, the age
sentence under section 20(1) of the Sexual of the complainant was capable of being
Offences Act-Sexual Offences Act, No 3 of 2006, proved without documentary evidence.
section 20(1). ii. Whether life imprisonment was a
mandatory sentence for incest, where
Statutes- interpretation of statutes-interpretation the complainant was under the age of
of section 20(1) of the Sexual Offences Act- 18 years, in section 20(1) of the Sexual
interpretation of the phrase ‘shall be liable to Offences Act.
imprisonment for life’-whether section 20(1) of
the Sexual Offences Act required the imposition Relevant provisions of the law
of a mandatory sentence of life imprisonment for Section 20(1) of the Sexual Offences Act,
the offence of incest where the complainant was No 3 of 2006;
under the age of 18 years-Sexual Offences Act,
No 3 of 2006, section 20(1). (1) Any male person who commits an indecent act
or an act which causes penetration with a female
Criminal Law-sexual offences-incest-age of the person who is to his knowledge his daughter,
complainant-where the complainant was alleged granddaughter, sister, mother, niece, aunt or
to be 13 years old and documentary evidence was grandmother is guilty of an offence termed incest
not tendered-whether the age of the complainant and is liable to imprisonment for a term of not
was capable of being proved through the mother’s less than ten years:
oral testimony in the absence of documentary
evidence such as a birth certificate. Provided that, if it is alleged in the information or
charge and proved that the female person is under
Brief facts the age of eighteen years, the accused person shall
The appellant was found guilty of the offence be liable to imprisonment for life and it shall be
of incest contrary to section 20 (1) of the immaterial that the act which causes penetration
Sexual Offences Act and was sentenced to or the indecent act was obtained with the consent
life imprisonment. The appellant lodged of the female person.
a High Court appeal on grounds that the Held
Trial Court failed to objectively evaluate the
1. Age was a critical aspect in sexual offences
evidence, failed to exercise its discretion in
and it would have to be proved. The
setting the sentence as life imprisonment
complainant testified that she was 13
was the maximum sentence and not the
years old and her mother also testified that
mandatory sentence and failed to note that
she was 13 years old. In the proceedings,
25
a birth certificate copy marked PMF11 discretion to impose a sentence whose the
appeared to have been produced and it maximum duration was life imprisonment.
indicated that the complainant was 13 The correct interpretation of the proviso
years old. The actual document appeared in section 20 (1) of the Sexual Offences
not to have been produced as an exhibit as Act was that a person convicted of incest
it was not in the Lower Court’s file. when the female victim was under the age
2. Although documentary evidence to prove of eighteen years was liable to a term of
age was not tendered, the complainant imprisonment between 10 years and life
and her mother testified that she was 13 imprisonment.
years old. The evidence did not provide 6. The Court of Appeal in M K v Republic
a reason for the Court to find that the [2015] eKLR held that the term ‘shall be
complainant was an adult. liable to life imprisonment,’ in the proviso
3. It was the prosecution that had the burden to section 20(1) of the Sexual Offences
to prove the complainant’s age. A simple Act was not mandatory. An analogy was
statement from the complainant was not used to explain that and a distinction was
sufficient to prove age but the Court could made between the use of words ‘shall be
rely on other evidence other than an age forfeited’ which meant that forfeiture
assessment report or birth certificate to was mandatory and ‘shall be liable to be
prove age. Evidence from the victim’s forfeited’ which meant that the liability
parents or guardian and observation and was capable of being enforced and also
common sense could be used to prove age. not being enforced.
4. The best evidence on age was a birth 7. It was wrong for the Trial Court to make
certificate followed by age assessment, the the finding that life imprisonment was the
mother’s evidence of the complainant’s only sentence applicable to the offence.
age together with the combination of all However, the sentence imposed was
other evidence available. The medical within the range that was permissible.
evidence adduced by the clinical officer
Appeal partly allowed.
estimated the complainant’s age as 13
years. The question of age did not arise Order:-
during cross-examinations. i. Appeal remitted back to the Trial Court with
5. Section 20 (1) of the Sexual Offences Act the direction that the Trial Court would
provided for a sentence for incest which exercise its discretion given the material
depended on the age of the complainant. on record including the mitigation and
For an adult complainant, the Court probation officer’s report and, if appropriate,
had discretion to mete out a sentence of re-sentence the appellant, or uphold the
any length not being less than 10 years. sentence originally imposed.
For a child complainant, the Court had
Conditions governing the grant of an interim order as an alternative to
bankruptcy under the Insolvency Act
Rajenda Ratilal Sanghani v Schoon Noorani
Insolvency Cause Misc No 33 of 2018
October 26, 2018
F Tuiyott, J
Bankruptcy Law-alternative remedies to Bankruptcy Law-alternative remedies to
bankruptcy for natural persons-interim order- bankruptcy for natural persons-interim order-
effect of an application for an interim order- right of audience in proceedings relating to an
conditions governing the grant of an application application for an interim order-effect of failure
for an interim order-effect of failure by the by the rules committee to make the Insolvency
applicant to satisfactorily demonstrate that he Procedure Rules contemplated under section
was unable to pay his debts-Insolvency Act, No 697 of the Insolvency Act-whether proceedings
18 of 2015, sections 305, 306 & 307. relating to applications for interim orders should
26
be ex-parte and whether a creditor should have a months immediately preceding that day; and
right to be heard in those proceedings-Insolvency
Act, No 18 of 2015, section 697. (d) that the supervisor designated under the
debtor’s proposal is willing to act in relation to
Brief facts the proposal.
The applicant/debtor sought to use the Held
remedy of an interim order as an alternative 1. Section 304 of the Insolvency Act provided
to bankruptcy under section 305 of the for circumstances when an application
Insolvency Act. The interim order would for an interim order could be made. The
enable him to make a proposal to his creditors provision did not set out the procedure
for composition in satisfaction of the debts for making an application for an interim
or a scheme of arrangement of his financial order. The Insolvency Procedure Rules
affairs. The respondent, one of the creditors, contemplated under section 697 of the
raised a preliminary objection against the Insolvency Act were yet to be made by the
use of the interim order. The grounds of the Rules Committee.
preliminary objection included the assertion 2. Whether or not a creditor had a right of
that the application targeted only one creditor audience in an application for an interim
and failed to include all other creditors, it order was a question for which legal
had material non-disclosures, it was made in provision was required. An interim order
bad faith and was an abuse of court process, ought to last for a very short period.
it was premature and speculative as the Under section 306(5) of the Insolvency
creditor had not demanded payment for the Act, an interim order would cease to have
full debt and it did not comply with legal effect 14 days from the date on which the
requirements relating to an interim order order was made. The objective of the relief
under the Insolvency Act. was to grant the debtor breathing space
in which to present a viable proposal to
Issues
his creditors. There was no reason for
i. Whether a creditor had a right of creditors to be involved in proceedings
audience in proceedings related to an relating to an interim order and they
application for an interim order, as should be ex-parte proceedings.
an alternative remedy to bankruptcy, 3. The mere presentation of an interim order
under the Insolvency Act. had ramifications on the rights of creditors
ii. What were the conditions governing and landlords to commence or continue
the grant of an interim order, as an with certain proceedings. Under section
alternative remedy to bankruptcy, 305 of the Insolvency Act, the effect of the
under the Insolvency Act? interim order was that a landlord seeking
Relevant provisions of the law. rent payments would have to get court
approval and any proceedings against
Insolvency Act, No 18 of 2015, section the debtor could be stayed or allowed to
306(1); continue on certain terms. Under section
306. Power of the Court to make interim order 306(7) of the Insolvency Act, after an
interim order was made, a bankruptcy
(1) On the hearing of an application made under application could not proceed, a landlord
section 304, the Court may make an interim who was demanding rent payments could
order if satisfied— only exercise his rights over the leased
property with the Court’s approval and
(a) that the debtor intends to make a proposal any other proceedings against the debtor
under this Division; or his property could only be commenced
(b) that on the day of the making of the application or continued with the approval of the
the debtor was an undischarged bankrupt or was Court.
able to make an application for the debtor’s own 4. Due to the possibility of long delays in
bankruptcy; prosecuting an application for an interim
order and the extension of the order
(c) that no previous application has been made by for long periods, it was possible for the
the debtor for an interim order during the twelve landlord or creditor to suffer considerable
27
prejudice and hardship. Additionally, 8. An assessment of a debtor’s ability to pay

the immunity that the debtor enjoyed his debts could only be done where the
upon the presentation of the application debtor provided a true and full inventory
for interim order and the grant of the of his creditors and debtors and other
interim order meant that there was real liabilities and assets. The applicant failed
temptation for a debtor, acting in bad to provide such an inventory. He did
faith, to abuse the process. Therefore, not give particulars relating to creditors,
while the application for interim orders other than the respondent, and debtors
should be ex-parte, there were occasions and other liabilities and assets that he had.
when the participation of a creditor was 9. The allegations of the respondent, which
justified. Each matter would depend on were not disputed by the applicant,
its own circumstances. Considering the were to the effect that the applicant had
creditor’s objection and replying affidavit, valuable property which could be used
the circumstances were such that the in satisfaction of the debt. The challenge
creditor deserved a hearing. presented by the allegations meant
5. An application for an interim order would that the application failed a crucial test
be struck out where it was demonstrated relating to whether the applicant was able
that it was an abuse of court process or to pay his debts, given that he was not an
that it was so hopeless that it could not undischarged bankrupt.
possibly succeed. However, the Court 10. Upon the grant of an interim order,
would have to be slow in granting orders the appointed provisional supervisor
of striking out and do so only in the would make a report to court on the
clearest of cases. debtor’s proposal. The report would state
6. The conditions to be met for the grant an whether in the provisional supervisor’s
interim order were expressly provided in opinion, the proposal had a reasonable
section 306(1) of the Insolvency Act. With prospect of being approved and
regard to the making of the application implemented, whether a meeting of the
for an interim order, where the debtor debtor’s creditors should be convened
was not an undischarged bankrupt the to consider the proposal and whether
Court would have to be satisfied that that meeting should be convened as
the debtor was unable to pay his debts. stated in the proposal. Where the report
Additionally, before granting the interim considered a meeting favourable and
order, the Court would have regard to the Court directed that such a meeting
the overarching objective and satisfy should be held, the creditors would
itself that the order would facilitate the meet to consider the report for approval.
consideration and implementation of the Where the report was rejected the Court
debtor’s proposal. would discharge any subsisting interim
7. The debtor was not an adjudged bankrupt order. The circumstances were that the
and therefore he had to demonstrate that only named creditor was likely to reject
he was capable of making an application the proposal. If the debtor’s proposal was
for his own bankruptcy. Under section credible and viable, the process would be
32 of the Insolvency Act, that application allowed to run its course.
could be made by a debtor who
Preliminary objection upheld and application
demonstrated that he was unable to pay
dismissed.
his debts. Therefore, on a prima facie basis,
the evidence would have to show that the
debtor was unable to pay his debts.
28
The Kenya National Examinations Council has the mandate to equate

foreign certificates that were acquired from local institutions.
Dennis Kabuaya Mucheke v Kenya National Examinations Council & 2 others
Petition No 487 of 2017
September 17, 2018
E C Mwita, J
Constitutional Law-fundamental rights and petitioner’s application to have his ‘O’ Level
freedoms-right to equality and freedom from qualifications equated by the 1st respondent
discrimination-where equation of foreign was declined and he was casually informed
qualifications was offered to IGCSE candidates that the 1st respondent did not equate foreign
who received their qualifications from qualifications obtained locally. Additionally,
institutions outside Kenya and denied in the case the petitioner’s application for recognition
of IGCSE candidates who acquired their foreign and approval of his degree for purposes of
qualifications from institutions within Kenya- admission to ATP at KSL was declined by
whether such treatment was discriminatory- the 2nd respondent on grounds that it did
Kenya National Examinations Council (Equation not recognize his pre-university foundation
of Certificates) Rules 2015, rule 6(b). qualifications.
Statutes-interpretation of statutory provisions- Against the respondents’ decisions, the
inconsistency between an enabling statute and petitioner sought various reliefs while
the rules made under it-interpretation of section stating that there had been violations
10(2)(g) of the Kenya National Examinations of his fundamental rights and freedoms
Council Act as compared to rule 6(b) of the Kenya and legitimate expectations. Particularly,
National Examinations Council (Equation of violations of the right to equality and
Certificates) Rules 2015-whether the mandate freedom from discrimination, right to
of the Kenya National Examinations Council education and right to fair administrative
included equation of foreign certificates that were action were alleged.
acquired from local institutions-Kenya National
Examinations Council Act, No 29 of 2012, section Issues
10(2)(g); Kenya National Examinations Council i. Whether the Kenya National
(Equation of Certificates) Rules 2015, rule 6(b). Examinations Council had the mandate
to equate foreign certificates that were
Statutes-interpretation of statutory provisions- acquired from local institutions.
interpretation of section 17 & the second schedule ii. Whether in allowing the equation
of the Kenya School of Law Act-qualifications for of foreign qualifications obtained
admission to the Advocates Training Program outside the country while declining
at the Kenya School of Law-mandate to assess to equate the same qualifications
whether a candidate met the university entry where there were obtained from local
mark-whether the Council of Legal Education institutions, rule 6(b) of the Kenya
had the mandate to assess whether a candidate National Examinations Council
met the university entry mark-Kenya School of (Equation of Certificates) Rules 2015
Law Act, No 26 of 2012, section 17 & second was discriminatory.
schedule. iii. What were the qualifications required
for a candidate to join the Advocates
Brief facts
Training Program at the Kenya School
The Petitioner sat and passed International of Law?
General Certificate of Secondary Education, iv. Who had the mandate to determine
IGCSE, and was admitted to study law at whether a candidate seeking admission
Keele University. He graduated on July to the Advocates Training Program at
6, 2017 with an LLB degree. He sought the Kenya School of Law had obtained
to join the Advocates Training Program, the requisite university entry mark?
ATP, at the Kenya School of Law, KSL. The
29
Held arising from rule 6(b) of the Kenya

1. Under section 10 of the Kenya National National Examinations Council (Equation
Examinations Council Act, the 1st of Certificates) Rules 2015. It allowed the
respondent had the mandate to equate equation of foreign qualifications obtained
foreign acquired certificates to ensure that outside the country while declining
they met local standards. Accordingly, the equation of the same qualification
anyone with foreign secondary education where there it was obtained from local
who intended to pursue further education institutions. There was no compelling or
locally had to have his/her certificates reasonable justification for such a rule.
equated by the 1st respondent. 6. People who had done the same
2. Section 10(1)(g) of the Kenya National examinations should be treated equally
Examinations Council Act provided regardless of where they sat for those
that the council had to promote the examinations. Doing otherwise entailed
international recognition of qualifications acting in a discriminatory manner and
conferred by the council while subsection in violation of the principles of equality
2(g) of that provision stated that the recognized in the Constitution.
council had power to equate certificates 7. Under section 8(1)(e) of the Legal
issued by accredited foreign examining Education Act, 2012, it was within the
bodies with the qualifications awarded 2nd respondent’s mandate to recognise
by the council. That provision gave the and approve qualifications obtained
1st respondent a statutory obligation to outside Kenya. That entailed determining
equate foreign certificates but it did not whether the university attended by the
prohibit equation of foreign certificates petitioner was recognised to offer the
that were acquired locally. course taken and whether the petitioner
3. Rule 6(b) of the Kenya National sat and passed the core courses required
Examinations Council (Equation of to be offered in local universities. In the
Certificates) Rules 2015 provided that the petitioner’s case, the 2nd respondent
1st respondent should not equate foreign was required to decide whether Keele
qualifications obtained from institutions University was recognized and allowed
based in Kenya. Therefore, while the to offer LLB degree programmes and
parent Act did not prohibit equation whether the petitioner attended the core
of foreign certificates from institutions courses contained in part 11 of the second
in Kenya, the rules made under the Act schedule to the Legal Education Act.
prohibited it. To that extent, the rules went 8. The question as to whether the petitioner
against the general scheme of the parent had attained the required university entry
Act and were unreasonable. Arguing that mark was a matter for the interested
foreign qualifications obtained from local party, the Kenya School of Law (KSL), to
institutions could not be equated because determine. That was clearly provided for
they would encourage exodus from local under the Kenya School of Law Act.
examinations was unfair, unjustifiable 9. A reading of section 17 and the second
and unreasonable. schedule of the Kenya School of Law
4. Section 24(2) of the Statutory Instruments Act indicated that the qualifications for
Act stated that it was mandatory admission to the ATP were that one had
for a statutory instrument not to be to have an LLB degree from a recognized
inconsistent with the provisions of the university and to have attained a C plus
enabling legislation or any Act and that in KCSE with B plain in English or
where there was an inconsistency, the Kiswahili languages. Those who attended
statutory instrument would be void to foreign universities had to have similar or
the extent of the inconsistency. Section 2 equivalent qualifications, and to also sit
of the Statutory Instruments Act defined and pass pre-bar examinations set by the
“statutory instrument” to include a rule. If school.
indeed a rule was found to be inconsistent 10. The 2nd respondent was in dereliction
with the parent Act, it should be declared of its duty when it declined to recognize
void. and approve the petitioner’s degree on
5. There was an element of discrimination grounds that he had not qualified to
30
join university. Questions relating to R&QAS/A&R/EQN/16/0004 circular on

qualifications for joining a university were guidelines on equation of foreign certificates
within the interested party’s mandate and (Revised Edition IV) dated October 26, 2016
not the 2nd respondent’s mandate. were unconstitutional and invalid.
11. The 2nd respondent breached ii. An order of certiorari was issued to quash
the petitioner’s legitimate expectation the 1st respondent’s decision contained in its
that his degree qualification would be letter dated September 26, 2017 declining to
recognized and approved. Although there equate the petitioner’s IGCSE Certificate.
could be no legitimate expectation that iii. An order of certiorari was issued to quash
was contrary to the law, the law had to be the 2nd respondent’s decision contained in
reasonable and justifiable in an open and its letter dated September 11, 2017 declining
democratic society and not to infringe to recognize and approve the petitioner’s
on fundamental rights and freedoms. degree on grounds that he had not attained
In making the impugned decision, the university entry requirements which was
2nd respondent violated the petitioner’s outside its mandate.
legitimate expectation to be treated fairly. iv. An order was issued to direct the 1st
respondent to equate the petitioner’s O-
Petition allowed.
Level qualifications within thirty (30) days
Orders:- from the date of the judgment.
i. A declaration was issued to the effect that rule v. An order was issued to direct the 2nd
6(b) of the Kenya National Examinations respondent to make a decision whether or not
Council (Equation of Certificates) Rules, it recognized and approved the petitioner’s
2015 (Legal Notice No 130 of 2015) and LLB degree qualification within thirty (30)
clause 1.8 of Circular No KNEC/GEN/ days from the date of the judgment.
vi. Costs were awarded to the petitioner.
The proper way of sentencing an offender, who at the time of commission

of a serious offence was a minor above the age of sixteen years, but at the
time of sentencing was an adult
S C N v Republic [2018] eKLR
Criminal Appeal No. 55 of 2015
High Court at Naivasha
October 18, 2018
R Mwongo, J
Criminal Law-charges-defective charges- sentencing was an adult -what was the purpose
circumstances in which a charge could be defective- of the sentences provided for under the Children
variation with evidence adduced in support of the Act-Children Act, section 191; Sexual Offences
charge-effect of-rejection of evidence-whether a Act, section 8
charge could be defective if it was in variance with
the evidence adduced in its support-what were the Brief Facts
circumstances in which contradiction would lead The appellant was convicted for the
to rejection of evidence due to contradiction with offence of defilement and sentenced to life
charges preferred against an accused; Criminal imprisonment. At the time of commission of
Procedure Code, section 382 the offence the appellant was a child above
Criminal Procedure-sentencing-sentencing for sixteen years. In the Trial Court while giving
defilement-where the offender was a child above his evidence, the complainant, a nine year
the age of sixteen years at the time of committing old pupil, said that the accused removed his
the offence but an adult at the time of sentencing- trouser then removed his own trouser and
where the Children Act provided for ways of then did bad manners to him. When asked
dealing with child offenders-what was the proper what bad manners was, the complainant
way to sentence an offender who at the time of insisted that what was done to him was bad
commission of a serious offence was a minor manners. The Trial Court recorded that the
above the age of sixteen years but at the time of appellant inserted a pen in the complainant’s
31
buttocks and that the complainant did not Children Act

see the pen. The evidence before the Trial
Court showed that the appellant pressed Section 191
the complainant’s head onto the ground 1. In spite of the provisions of any other law and
so he could not scream. Aggrieved by his subject to this Act, where a child is tried for
conviction and sentencing, the Appellant an offence, and the court is satisfied as to his
filed the instant appeal. guilt, the court may deal with the case in one
or more of the following ways—
Issues (a) By discharging the offender under section
i. Whether a charge could be defective 35(1) of the Penal Code (Cap. 63);
if it was in variance with the evidence (b) by discharging the offender on his
adduced in its support. entering into a recognisance, with or
ii. What were the circumstances in which without sureties;
contradiction would lead to rejection (c) by making a probation order against
of evidence due to contradiction with the offender under the provisions of the
charges preferred against an accused? Probation of Offenders Act (Cap. 64);
iii. What was the proper way of sentencing (d) by committing the offender to the care of
an offender who at the time of a fit person, whether a relative or not, or a
commission of a serious offence was a charitable children’s institution willing to
minor above the age of sixteen but at undertake his care;
the time of sentencing was an adult. (e) if the offender is above ten years and
iv. What was the purpose of the sentences under fifteen years of age, by ordering him
provided for under the Children Act? to be sent to a rehabilitation school suitable
to his needs and attainments;
Relevant Provisions of the Law
(f) by ordering the offender to pay a fine,
Criminal Procedure Code compensation or costs, or any or all of them;
(g) in the case of a child who has attained
Section 382 the age of sixteen years dealing with him, in
Subject to the provisions hereinbefore accordance with any Act which provides for
contained, no finding, sentence or the establishment and regulation of borstal
order passed by a court of competent institutions;
jurisdiction shall be reversed or altered (h) by placing the offender under the care of
on appeal or revision on account of an a qualified counsellor;
error, omission or irregularity in the (i) by ordering him to be placed in an
complaint, summons, warrant, charge, educational institution or a vocational
proclamation, order, judgment or other training programme;
proceedings before or during the trial or (j) by ordering him to be placed in a probation
in any inquiry or other proceedings under hostel under provisions of the Probation of
this Code, unless the error, omission or Offenders Act (Cap. 64);
irregularity has occasioned a failure of (k) by making a community service order; or
justice. Provided that in determining (l) in any other lawful manner.
whether an error, omission or irregularity Held
has occasioned a failure of justice the
court shall have regard to the question 1. A charge could be defective if it was in
whether the objection could and should variance with the evidence adduced in
have been raised at an earlier stage in the its support. The Trial Court heard and
proceedings. saw the witness and his demeanour; his
outward behavior and bearing including
Sexual Offences Act movement, shame, eyes and posture.
The Trial Court appreciated that the
Section 8
complainant had been penetrated in
(2) A person who commits an offence of the buttocks in terms of section 8(1) of
defilement with a child aged eleven years the Sexual Offences Act. The idea that
or less shall upon conviction be sentenced a writing instrument, a pen, was used
to imprisonment for life to penetrate the complainant was not
32
consistent with the overall evidence and offences but attain the age of majority
comprehension of the child. It was a mere before sentencing, the statutory scheme
afterthought on the part of the appellant. stipulated that a child above sixteen years
could only be held in a borstal institution
2. It was not every contradiction that for a maximum period not exceeding
warranted rejection of evidence. The three years. However, section 191(1)(l)
law was that grave contradictions unless Children Act provided for an offender to
satisfactorily explained would usually be dealt with in any other lawful manner.
but not necessarily lead to the evidence The dilemma created by the instant
of a witness being rejected. Courts would case in which the Sexual Offences Act
ignore minor contradictions unless they provided for a specific sentence, but was
thought that they pointed to deliberate silent about the age of the offender, could
untruthfulness or if they did not affect be dealt with by reference to section 191
the main substance of the prosecution’s of the Children Act.
case. The instant Court did not have
an opportunity to observe the witness’ 5. The purposes of the sentences provided
demeanour and was therefore unable to for under the Children Act were meant to
find that there was no evidence connecting correct and rehabilitate a young offender,
the appellant to the offence. any person below the age of eighteen years
while taking into account the overarching
3. Oral evidence of a single witness was objective was the preservation of the life
sufficient to warrant a conviction. In the of the child and his best interest. A death
instant case, medical evidence was availed sentence or a life imprisonment were
by PW 3 who produced a P3 medical report not provided for but when dealing with
and post rape care report as exhibits. The an offender who had attained the age of
reports showed that the complainant was sixteen years, courts could sentence him
sexually abused and described in detail in any other lawful manner.
injuries to anus. There was therefore
proof of penetration beyond reasonable Appeal partly allowed
doubt. i. Appellant’s sentence reduced to a custodial
sentence of ten (10) years.
4. With regard to what courts were to
do in respect of minors who commit
The law is discriminatory by treating women suffering from post-partum

psychosis the same way as people not suffering from it when both commit
murder.
Republic v C M W [2018] eKLR
Criminal Case No. 43 of 2015
September 27, 2018.
Lesiit, J
Criminal Law-murder-defences to the offence consider in establishing a defence of insanity in

of murder- insanity-condition of post-partum a murder trial
psychosis-whether the law was discriminatory
by treating women suffering from post-partum Brief Facts
psychosis the same way as people not suffering The accused was charged with two counts
from it when both commit murder- Criminal of murder of two children. The accused held
Procedure Code, section 166; Penal Code section one of the deceased by the neck and threw
210 her down leading to her death. The accused
Criminal Law-murder-defences to the offence also held the other deceased, a 14 days old
of murder- insanity-factors to consider in child, by the throat before PW2 struggled
establishing insanity-what were the factors to to get the deceased from the accused, PW2
33
managed to free the deceased but by then death of her child who is under the age
the deceased was already dead. At the time of 12 months, if at the time of the act or
of committing the offence, the accused was omission the balance of her mind was
suffering from a mental illness known as disturbed by reason of;
post-partum psychosis. (a) depression as a result of
childbirth, post-partum or
Issues puerperal psychosis; or
i. What were the factors to consider in (b) previous history of depression
establishing a defence of insanity in a or psychosis triggered by a re-
murder trial? occurrence because of childbirth or
ii. Whether the law was discriminatory lactation/breastfeeding.
by treating women suffering from 2. Where the trial judge after ordering
post-partum psychosis the same way as a medical examination finds that the
people not suffering from it when both balance of her mind is still disturbed, he
commit murder. shall make a hospitalization order.
Relevant Provisions of the Law
Penal Code Held
Section 210 1. Post-partum psychosis fell into three
categories;
Where a woman by any willful act or omission a. baby blues which affected 70% of
causes the death of her child being a child under mothers and was characterized by
the age of twelve months, but at the time of the act crying and irritability. It was the
or omission the balance of her mind was disturbed mildest form of the disorder;
by reason of her not having fully recovered b. post-partum depression which
from the effect of giving birth to the child or affected 7 to 15% of mothers and was
by reason of the effect of lactation consequent characterized by crying, self-blame,
on the birth of the child, then, notwithstanding loss of control, irritability, anxiety and
that the circumstances were such that but for sleep difficulty;
the provisions of this section the offence would c. post-partum psychosis which was the
have amounted to murder, she shall be guilty of most severe and occurred in 1 to 2 of
a felony, to wit, infanticide, and may for that 1000 births. Onset occurred within
offence be dealt with and punished as if she had the first 3 months after childbirth,
been guilty of manslaughter of the child. majority of cases appeared within 3-14
days. The disorder was characterized
Criminal Procedure Code
by an extended period of loss contact
Section 166 with reality that could include auditory
visual hallucinations, delusions or
(1) Where an act or omission is charged against a rapid moods swings. Auditory or visual
person as an offence and it is given in evidence hallucinations could focus on violence
on the trial of that person for that offence that towards self or the infant.
he was insane so as not be responsible for the There was therefore sufficient evidence
acts or omissions at the time when the act was to establish that the accused was suffering
done or the omission made, then if it appears to from mental illness on the day the incident
the court before which the person is tried that in question took place. The nature of the
he did the act or made the omission charged mental illness was such that it affected the
but was insane at the time he did or made it, accused’s mind rendering her incapable of
the court shall make a special finding to the knowing what she was doing or knowing
effect that the accused was guilty of the act or what she was doing was wrong.
omission charged but was insane when he did
2. Section 210 of the Penal Code dealt with
the act or made the omission.
infanticide. There was no law in Kenya
Lagos State Criminal Law (Nigeria) dealing specifically with murder cases
Section 28 arising from post-partum psychosis where
1. A woman is not criminally responsible a patient killed someone else other than
for any act or omission which causes
34
her child. Section 210 did not apply in the it should be a hospitalization order. That
instant case for reason the two deceased showed that the sickness was taken so
were the children of a neighbour. The seriously that their Parliament had made it
accused’s own child whom she also killed mandatory for the Court order to include
was subject of a trial in the subordinate the order to have the Accused person
court. Section 203, read together with admitted in an appropriate institution for
section 9 of the Penal Code and section proper medical treatment and care.
166 of the Criminal Procedure Code 6. The instant Court had no power to
applied in the instant case. order for hospitalization, leave alone
3. To establish a defense on the ground of hospitalization in a mental hospital. The
insanity, it had to be clearly proved that power was left to the Minister of Interior
at the time of the committing the act, the and through him/her the President to
accused was laboring under such a defect determine what happened to such an
of reason, from disease of the mind, as not accused person. For the fact that those
to know the nature and quality of the act two offices came into the picture much
he was doing or if he knew it, he did not later so much harm or delay was caused.
know what he was doing was wrong. The The Court did not treat mothers who
law was binding on the Court. fell victim of that kind of mental illness
4. The Court recommended that since cases appropriately or timeously.
of post-partum psychosis were suffered 7. It was appropriate to recommend that
only by women, then there was inherent the law touching on that gender specific
in the treatment of women with that and unique condition be re-examined
condition under the law a lack of parity in a view to making provision for the
and equality. It was discriminative, it flew appropriate handling of such persons,
in the face of constitutional provisions on including treating such a person as having
right to equal treatment before the law; an illness needing special treatment and
right to equal enjoyment of rights under handling. It was time Kenya built a mental
the law and general discrimination by asylum where persons with mental illness
virtue of the fact only the women gender facing trial for various offences could be
would suffer from such a condition. held and consequently properly medically
5. Nigeria’s section 28 of Lagos State treated. As the law stood the accused
Criminal Law had one significance, it caused the deceased deaths but at the time
recognized that the woman with post- she was suffering from an illness of the
partum psychosis was sick and needed mind.
medical care. In fact, not only did that law Accused found guilty for both counts as charged
make it mandatory for the Court to make but found to be insane.
an order for treatment; the law said that
Pension benefits of a defaulter of a child maintenance order can be

attached to meet the maintenance order.
Local Authorities Pension Trust Registered Trustees v C A O & 2 others [2018] eKLR
Civil Appeal No. 37 of 2016
High Court at Mombasa
April 27, 2018.
M Thande, J
Family Law-orders-child maintenance orders- Family Law-orders-child maintenance orders-
default of child maintenance orders-consequences stay of child maintenance orders-effect of-what
of default-attachment of pension benefits- was the effect of stay of a child maintenance order
whether pension benefits of a defaulter of a child
maintenance order could be attached-Constitution Brief Facts
of Kenya, 2010, article 2, 4 & 53(2);Children The Trial Court granted maintenance
Act, section 4(2) & 101; Retirement Benefits Act, orders for 2 children. The orders were not
section 36
35
complied with prompting the respondent (i) the failure to make payment
to seek execution of the same through a was due to the wilful refusal
notice to show cause application. The matter or culpable neglect of the
could not proceed as the interested party respondent; and
was ill and bedridden. The respondent filed (ii) the respondent is gainfully
an application seeking orders that 60% of employed or is engaged in
the interested party’s lump sum benefits some business enterprise
be paid to her to cater for the children’s or undertaking or owns
upkeep. The Trial Court directed that a 1/3 property from which he
of the interested party’s benefits be attached derives an income.
and paid to the respondent. Aggrieved by
Retirement Benefits Act
the ruling, the applicant filed the instant
application. Section 36
Issues Notwithstanding anything to the contrary
i. Whether pension benefits of a defaulter contained in any other written law, where a
of a child maintenance order could judgement or order against a member of a scheme
be attached to meet the maintenance is made, no execution or attachment or process
order. of any nature shall be issued in respect of the
ii. What was the effect of stay of a child contributions or funds of the member or his
maintenance order? employer except in accordance with the scheme
Relevant Provisions of the Law rules and such contributions shall not form part
of the assets of the member or of his employer in
Article 53(2)
the event of bankruptcy.
A child’s best interests are of paramount
importance in every matter concerning Held
the child. 1. The instant application was filed in a
timeous manner. Article 53(2) of the
Children Act Constitution and section 4(2) of the
Children Act enjoined the Court to
Section 4(2)
give priority to the best interests of
In all actions concerning children, the children which interest were of
whether undertaken by public or private paramount importance. The Trial Court
social welfare institutions, courts of law, noted that the 1st interested party had
administrative authorities or legislative been unwell and required treatment, the
bodies, the best interests of the child shall Trial Court therefore balanced the needs
be a primary consideration. of all and attached 1/3 of the amount due
from the applicant. Although pension was
Section 101 protected under the Retirement Benefits
(5) Where the court is satisfied that the respondent Act (RBA), the best interests of the child
has failed to make payment of any financial overrode all other interests.
provision under a maintenance order or a 2. Under section 101 (5) of the RBA, where a
contribution order, the court may— court was satisfied that a party had willfully
(a) … refused or culpably neglected to make
payment of any financial provision under
(b) …
a maintenance or a contribution order,
(c) issue a warrant for distress on the the court could order the attachment of
respondent’s property forthwith or the party’s earnings including any pension
postpone the issue of the warrant payable to the party. When it came to the
until such time as the court may enforcement of the best interests of the
direct, or on such conditions as child, parliament in its wisdom found that
the court may deem fit and order nothing was sacred, not even that party’s
the attachment of the respondent’s pension.
earnings including any pension 3. The default on the part of the 1st interested
payable to the defaulter if the court party was not willful; the default was
is satisfied that— as a result of his illness. Nevertheless,
36
the obligation to maintain his children article 53(2) of the Constitution to the
remained. The constitutional imperative extent that it militated against the best
in article 53(2) of the Constitution was interests of the subject children. Parents
that in every matter concerning children, had a statutory and mandatory duty to
their best interests were of paramount provide for the needs of their children.
importance and that was the overriding Suspension of a maintenance order could
consideration. Further article 2(1) and never be in the best interests of children. A
4 of the Constitution laid down the stay of execution would cause substantial
supremacy of the Constitution over all loss to the subject children.
other laws.
Application dismissed, no order as to costs.
4. Section 36 of the RBA was consistent to
Commencing of all criminal cases, except murder and treason cases, as

provided for under section 4 of the Criminal Procedure Code and the fifth
column of the first schedule thereof was not unconstitutional.
Peter Kariuki Muibau & 11 others v Attorney General & another [2018] eKLR
October 9, 2018.
W A Okwany, J
Statutes-interpretation of statutes-interpretation Issues
of section 4 of the Criminal Procedure Code and i. What were the principles to be applied
the fifth column of the first schedule thereof- in interpreting the Constitution?
criminal offences triable in subordinate courts- ii. Whether commencing of all criminal
whether commencing of all criminal cases in the cases, except murder and treason cases
subordinate courts, except murder and treason in subordinate courts, as provided
cases, as provided for under section 4 of the for under section 4 of the Criminal
Criminal Procedure Code and the fifth column Procedure Code and the fifth column
of the first schedule thereof was unconstitutional- of the first schedule thereof was
Constitution of Kenya, 2010, article 159 (2) (e), unconstitutional.
165 & 259; Criminal Procedure Code, section 4 Relevant Provisions of the Law
& first schedule fifth column Constitution of Kenya, 2010
Article 165
Constitutional Law-interpretation of the
Constitution-principles of interpretation of (3) Subject to clause (5), the High Court shall
the Constitution-what were the principles to have—
be applied in interpreting the Constitution- (a) unlimited original jurisdiction in
Constitution of Kenya, 2010, article 159 (2) (e) criminal and civil matters;
& 259 (5) The High Court shall not have jurisdiction in
respect of matters—
Brief Facts
(a) reserved for the exclusive jurisdiction
The petitioners filed the instant petition of the Supreme Court under this
challenging the constitutionality of the Constitution; or
provisions of rule 24 of the Supreme (b) falling within the jurisdiction of the
Court Rules and section 4 of the Criminal courts contemplated in Article 162 (2).
Procedure Code and the fifth column of
Article 162
the first schedule thereof. The petitioners
averred that the commencement of their (2) Parliament shall establish courts with the
murder trials before the High Court instead status of the High Court to hear and determine
of the Chief Magistrate’s Court as was the disputes relating to—
procedure applied in other criminal cases (a) employment and labour relations; and
was discriminatory and contravened article (b) the environment and the use and
27(1) and (4) of the Constitution. occupation of, and title to, land.
37
Criminal Procedure Code top of the fifth column was that courts
specified therein were in addition to the
Section 4 High Court, that meant that the schedule
Subject to this Code, an offence under the Penal did not preclude the trial of any offence
Code (Cap. 63) may be tried by the High Court, from commencing at the High Court.
or by a subordinate court by which the offence is However, the practice in courts had been
shown in the fifth column of the First Schedule to that trials of all criminal cases commence
this Code to be triable. before the subordinate courts except trials
for the offences of murder and treason
Held which commenced before the High Court.
1. There was a general presumption of Indeed, the impugned column of the first
constitutionality of laws enacted by schedule of the CPC was categorical
parliament and declaring a statute to be that trials for all offences except murder
unconstitutional was a grave issue which and treason could commence before the
courts should be slow to do. Article 2 subordinate court.
(3) of the Constitution stipulated that 4. Section 4 of the CPC was clear that
the Constitution was the supreme law offences under the Penal Code could be
of the land and declared that any law or tried by the High Court or by a subordinate
conduct inconsistent with it was null and court by which the offence was shown in
void to the extent of its inconsistency. the fifth column of the first schedule. the
The supremacy of the Constitution and commencement of a case before the High
the guarantees in the Bill of Rights added Court or the subordinate court was not
depth and content to the rule of law. mandatory requirement and thus, use
When upholding the rule of law, courts of the word ‘may’ as opposed to ‘shall’
were required not only to have regard to which could have inferred a mandatory
the strict terms of regulatory provisions connotation.
but also to uphold the values underlying 5. Jurisdiction of a court to hear a matter
the Bill of Rights. flowed from the law or the Constitution.
2. In interpreting the Constitution, the first Jurisdiction was everything and a court
port of call was the Constitution itself. could not take any further step the moment
Under article 259 of the Constitution, it held that it had no jurisdiction. While
courts were enjoined to interpret the the High Court had original and unlimited
Constitution in a manner that promoted jurisdiction in all criminal matters, it
its purposes, values and principles, no longer had the same jurisdiction in
advanced the rule of law, human rights civil matters as it used to have under the
and fundamental freedoms in the Bill of Constitution (repealed). However, the
Rights and in a manner that contributed to jurisdiction of the High Court could only
good governance. In exercising its judicial be limited as provided by the Constitution
authority, the Court was obliged under itself and any purported limitation not
article 159 (2) (e) of the Constitution to founded on the Constitution and was null
protect and promote the purposes and and void. Section 4 of the CPC did not
principles of the Constitution. limit the jurisdiction of the High Court in
3. The fifth column of the first schedule of the criminal matters and therefore the claim
Criminal Procedure Code (CPC) specified that the said section was unconstitutional
the courts, in addition to the High Court, was unfounded.
by which offences under the Penal Code 6. The jurisdiction of the High Court,
were triable. The first schedule of the to hear murder trials and indeed any
CPC contained a table that was divided other criminal trial for that matter was
into 5 columns showing the section of the a mandate that was prescribed and
Penal Code, the offence under the said regulated by the Constitution. The
section, whether the police could arrest commencement of other criminal trials
the suspect with or without a warrant, the before the subordinate courts, as opposed
punishment under the Penal Code and, at to the High Court, was a matter that was
the fifth column, the court by which the regulated by statute, in the instant case
offence was triable. The wording at the section 4 of the CPC and the impugned
38
schedule. The mere fact that trials of all unconstitutional.

criminal cases, except murder and treason,
Petition dismissed.
commence before the subordinate court
did not make section 4 of the CPC
Requirements in the Mutunga Rules for litigants to pay court fees before
instituting constitutional petitions to enforce the Bill of Rights are not
unconstitutional.
Jacob Nyandega Osoro v Chief Justice of Kenya & another
Constitutional Petition 115 of 2017
September 17, 2018
E C Mwita, J
Constitutional Law-interpretation of The Petitioner contended that the impugned

constitutional provisions-interpretation of article rules violated his fundamental rights and
22(3)(c) of the Constitution-constitutionality of freedoms guaranteed under articles 19(3)(a),
payment of court fees for purposes of instituting 21(1), 22(1) and 22(3)(c) of the Constitution.
a constitutional petition for the enforcement of Inter alia, the Petitioner sought court
the Bill of Rights-whether the requirement that orders compelling the Chief Registrar of
no fees may be paid was the equivalent to a the Judiciary (the 2nd Respondent) and
requirement that no fees shall be paid, for purposes her agents to accept documents on the
of institution of petitions for the enforcement of enforcement of the Bill of Rights and to
fundamental rights and freedoms-whether it was undertake all the necessary procedures for
permissible for Rules promulgated by the Chief the proper commencement of proceedings
Justice under article 22(3) of the Constitution to without court fees being paid.
provide for the payment of court fees for purposes Relevant provisions of the law.
of the institution of petitions for the enforcement Constitution of Kenya 2010
of fundamental rights and freedoms-Constitution Article 22(3);
of Kenya 2010, article 22(3)(c); Constitution of
Kenya (Protection of Rights and Fundamental (3) The Chief Justice shall make rules providing
Freedoms) Practice and Procedure Rules, 2013, for the court proceedings referred to in this Article,
(the Mutunga Rules), rules 3(5)(c), 33 and 34. which shall satisfy the criteria that––
Brief facts (a) the rights of standing provided for in clause (2)
are fully facilitated;
The Petitioner challenged the
constitutionality of rules 3(5)(c), 33 and 34 (b) formalities relating to the proceedings,
of the Constitution of Kenya (Protection of including commencement of the proceedings, are
Rights and Fundamental Freedoms) Practice kept to the minimum, and in particular that the
and Procedure Rules, 2013, (the Mutunga court shall, if necessary, entertain proceedings on
Rules.) Those rules entailed stipulations on the basis of informal documentation;
the payment of court fees for persons filing (c) no fee may be charged for commencing the
constitutional petitions for the enforcement proceedings;
of fundamental rights and freedoms. Rule
3(5)(c) of those Rules provided for the timely (d) the court, while observing the rules of natural
disposal of such proceedings at an affordable justice, shall not be unreasonably restricted by
cost, rule 33 required parties to pay fees that procedural technicalities; and
were the same as those applicable to civil
(e) an organisation or individual with particular
proceedings at the High Court and rule 34
expertise may, with the leave of the court, appear
provided for applications to the Registrar
as a friend of the court.
for purposes of seeking an exemption from
paying court fees.
39
Constitution of Kenya (Protection of that no fees may be charged for

Rights and Fundamental Freedoms) commencing proceedings relating to
Practice and Procedure Rules, 2013 the enforcement of the Bill of Rights?
Rule 3(5); Held
1. Article 22(3) gave the 1st Respondent
(5) For the purpose of furthering the overriding power to make rules for the manner of
objective, the Court shall handle all matters initiating proceedings for the enforcement
presented before it to achieve the— of the Bill of Rights and it provided in part
(a) just determination of the proceedings; that no fee may be charged for commencing
such proceedings. Under that provision,
(b) efficient use of the available and administrative the Constitution of Kenya (Protection
resources; of Rights and Fundamental Freedoms)
Practice and Procedure Rules 2013, the
(c) timely disposal of proceedings at a cost
Mutunga Rules, were promulgated.
affordable by the respective parties; and
2. The Mutunga Rules provided for court fees
(d) use of appropriate technology. to be paid for constitutional petitions for
the enforcement of fundamental rights
Rule 33; and freedoms. Rule 3(5) of the Mutunga
Rules, inter alia, provided that the Court
33. Court Fees
should handle all matters presented before
There shall be paid in respect of all proceedings it for the purpose of achieving the timely
under these Rules the same court fees as are disposal of proceedings at a cost affordable
payable in respect of civil proceedings in the High by the respective parties. Rule 33 of those
Court in so far as the same are applicable. rules was to the effect that the court fees
payable in constitutional petitions for
Rule 34; the enforcement of fundamental rights
and freedoms would be the same as the
34. Waiver of court fees
fees payable for civil proceedings at the
(1) A person who wishes to be exempted from High Court. Rule 34 of the Mutunga Rules
paying court fees may apply to the Registrar. provided for applications for exemptions
from the payment of court fees to be made
(2) An application under sub-rule (1) may be to the Registrar.
made by informal documentation. 3. Rule 3(3) of the Mutunga Rules provided
(3) The reasons for the Registrar’s decision shall inter alia that the Rules would be
be recorded. interpreted in accordance with article
259(1) of the Constitution in order to
Issue advance the purposes and values that they
i. Whether the provisions of rules 3(5)(c), stood for. Therefore, the Rules should be
33 and 34 of the Constitution of Kenya given a purposive interpretation in order
(Protection of Rights and Fundamental to advance the values and principles in the
Freedoms) Practice and Procedure Bill of Rights.
Rules, 2013, (the Mutunga Rules) in 4. A statute or statutory provision should be
so far as they required litigants to pay read in a way that would aid in achieving
court fees before instituting petitions fundamental values. The reading of the
for the enforcement of fundamental statute or statutory provision should also
rights and freedoms, were inconsistent include an examination of the object and
with article 22(3)(c) of the Constitution purpose of the Act or statutory provision
and were therefore unconstitutional. including rules. As far as possible the
ii. What principles of interpretation were provisions should be read in conformity
applicable to a determination by the with the Constitution. A statute or
Court as concerned the constitutionality statutory provision should be read to be
of a statute? consistent with the Constitution and it
iii. What was the rationale of article 22(3) should only be declared unconstitutional
(c) of the Constitution which provided or void where it was impossible to
40
rationalize or reconcile it with the and context in order to ascertain the

Constitution or the Act. true legislative intent. Neither the text
5. Part of the criteria that the Rules made by nor the context could be ignored as both
the Chief Justice under article 22(3) of the were important and a statute would
Constitution had to satisfy was that no best be interpreted when there was an
fees may be charged for commencing the appreciation of why it was enacted.
proceedings. The Mutunga Rules required 7. The payment of court fees should not
fees to be paid before a constitutional be a hindrance to the right of access to
petition alleging violations of fundamental justice as provided for in article 48 of the
rights and freedoms was instituted. It Constitution. The exemption provided
was important to note that the provision for under rule 34 of the Mutunga Rules
provided that “no fees may be paid” enabled those who were unable to pay
and not that “no fees shall be paid.” The court fees to access courts.
words were permissive and they had to be 8. The rationale of article 22(3)(c) of the
interpreted to mean that fees should be Constitution was that all persons would
paid except where the circumstances may exercise their right of access to justice
not allow. Rule 34 of the Mutunga Rules regardless of their financial status.
made provision for an application for an However, those who were able to pay
exemption from paying court fees and court fees had to pay court fees while
that provision satisfied the requirements those that were unable, would not be
of article 22(3)(c) of the Constitution. denied the right to access courts.
6. In undertaking statutory interpretation,
Petition dismissed.
the Court had to look at both the text
The likelihood of interference with witnesses and political influence cited

as grounds for denial of bail for the Migori County Governor
Republic v Zacharia Okoth Obado [2018] eKLR
Criminal Case No. 46 of 2018
September 27, 2018.
Lesiit, J
Criminal Procedure-bail and bond-application and other relevant evidence meant that the
for bail-factors to consider in granting an prosecution had no case
application for bail-compelling reasons-political
influence and status of an accused person in Brief Facts
society-where there was a likelihood of witness The Applicant was charged with the offence
interference-whether political influence and of murder. He filed the instant Application
status of an accused person were compelling seeking an order of bail/bond pending the
reasons to deny granting of bail on the basis of hearing of the case based on the grounds that;
witness interference the offence was bailable, the Applicant had a
Constitutional Law–fundamental rights and qualified constitutional right to be released
freedom–rights of arrested persons–right to fair on bond/bail on reasonable conditions and
trial–right to be presumed innocent until proven that the Applicant would avail himself to
guilty-whether the opposition to granting of court as of when required to do so until the
bail was a violation of the right to be presumed matter was concluded among others.
innocent until proven guilty-Constitution of Issues
Kenya, 2010, article 50
i. Whether political influence and status
Evidence Law-witness statements-requirement of an accused person were compelling
to provide witness statements as part of evidence reasons to deny granting of bail on the
in bail applications-failure to provide witness basis of witness interference.
statements and evidence-effect of-whether failure ii. Whether the opposition to granting of
by the prosecution to provide witness statements bail was a violation of the right to be
41
presumed innocent until proven guilty. the law based on the status or lack of it
iii. Whether failure by the prosecution of an accused person. The International
to provide witness statements and Convention on Civic and Political Rights
other relevant evidence meant that the [ICCPR] provided that accused persons
prosecution had no case. had to, save in exceptional circumstances,
be segregated from convicted persons and
Held
had to be subject to separate treatment
1. The Criminal Procedure Bench Book appropriate to their status as unconvicted
outlined compelling reasons as stated persons. The segregation referred to did
in various cases, policy guidelines and not mean that it could only be realized by
others. Those were the likelihood that the the release of the Accused from remand. It
Accused could; meant the physical segregation within the
a. fail to attend court; place of detention. No complaint had been
b. commit or abet the commission of a raised in that regard. If raised it could be
serious offence; dealt with at any stage of the proceedings.
c. endanger the safety of victims; 5. The Prosecution was yet to provide
d. interfere with witnesses or evidence; witness statements, documentary and
e. endanger national security or public other relevant evidence they intended
safety; to rely on at the trial. Failure to provide
f. protection of the Accused person. them could not be interpreted to mean
That list was however not exhaustive. that the Prosecution had no case at all,
2. Under article 50 of the Constitution unless good grounds existed which could
an accused person should be presumed lead to such a conclusion.
innocent until proved guilty. The Accused
6. The seriousness of a charge and severity
person should be released on bail or bond
of the sentence to be meted out was a
whenever possible; those were the words
major consideration on issues of bail. It
from the Bail and Bond Policy Guidelines
was however considered alongside other
[BBPG]. Opposition to granting of bail
factors and could not, standing on their
was not a violation of that right. The
own be a ground to deny bail.
Constitution used the words, unless
there were compelling reasons, that put 7. It was not enough to say that the Accused
a duty on the Prosecution to place before influence was of a political nature and
the Court any relevant evidence they had nothing to do with the instant case.
could have on compelling reasons for When a person was elected as a leader or
consideration by the Court. a representative, he/she commanded a lot
of power both within the confines of that
3. The Prosecution had the onus and burden
particular area they represented and also
to prove presence of compelling reasons
outside of it. There were measures the
to deny bail. It was also the reason the
Court could apply to ensure such power
victims were given an opportunity to
did not affect the instant case, for instance,
be heard before bail was considered
by imposing strict terms.
and a mention made of the requirement
for victim impact statement in the 8. It was difficult to address the question of
Criminal Procedure Code. In the instant the likelihood of interference with the
Application, the victims were represented case, investigations and witnesses at that
by Counsel and made submissions at the stage. The nature of the case had been
bail hearing. To argue that any opposition changing and more and more additional
to a release of an accused person on bail persons were being brought and charged
was a violation of that right was erroneous. with the same offence. Interference
with the case was not constructively by
4. Dignity had to do with treatment of
meddling with the witnesses in a case, it
an accused, not his status. The binding
could be indirect by releasing some facing
constitutional principle of right to equal
the same charge while others were being
treatment before the law abode there.
arrested.
There could not be equal treatment before
42
9. The issue of confession was a matter for 10. The Application could not be
trial as it was not before the Court. The determined before witness statements and
issue of safety of a co-accused was not other relevant evidence were availed to all
a matter the Court could decide at that the parties. That was the only way that the
stage as there were no co-accused in the Court could fully exercise its discretion,
information before Court. The issue of applying factors for consideration in
public safety and security was another determining whether or not a compelling
the parties in the instant case could not reason existed to deny bail.
comment on for lack of material to form
a basis for an argument either way. There Application dismissed
was a threat to security in the area the
offence took place and that was what
informed the arraignment of the case in
Nairobi. Security was an issue, however, it
was difficult to draw a conclusive finding
at that stage.
43
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Well received, thanks.

I must appreciate the constant updates of the
Vincent Adet - SRM appeals emanating from the lower courts. At least
Kapenguria Law courts
we are kept abreast with the high court decisions
on appeals from our decisions.
Justice Samson Okongó

Environment and Land Thank you for the service. Much appreciated.
Court at Nairobi
Justice Thrispisa W.
Cherere Well received, thanks.
High Court of Kenya
at Kisumu
Peter W. Wasike - RM
Kitale Law Courts Well received, thanks
44
Legislative Updates
By Christine Thiong’o, Laws of Kenya Department
This is an outline of legislation gazetted in the period between the months of September and November, 2018.
All these pieces of legislation are available on the Kenya Law website, www.kenyalaw.org
A. ACTS OF PARLIAMENT
ACT FINANCE ACT, 2018

Act No. No. 10 of 2018
Commencement There are several dates for each of the Acts to be amended as provided for under
section 1 of the Act.
Objective This Act amends the following laws relating to various taxes and duties and for mat-
ters incidental thereto:
i.) Income Tax Act (Cap. 470);

ii.) Value Added Tax Act, 2013 (No. 35 of 2013);
iii.) Tax Appeals Tribunal Act, 2013 (No. 40 of 2013);
iv.) Excise Duty Act, 2015 (No. 23 of 2015);
v.) Tax Procedures Act, 2015 (No. 29 of 2015);
vi.) Miscellaneous Fees and Levies Act, 2016 (No. 29 of 2016).
vii.) Betting, Lotteries and Gaming Act (Cap. 131);
viii.) Marine Insurance Act (Cap. 390);
ix.) Air Passenger Service Charge Act (Cap. 475);
x.) Stamp Duty Act (Cap. 480);
xi.) Banking Act (Cap. 488);
xii.) Central Bank Act (Cap. 491);
xiii.) Kenya Revenue Authority Act, 1995 (No. 2 of 1995);
xiv.) Retirement Benefits Act, 1997 (No. 2 of 1997);
xv.) Accountants Act, 2008 (No. 15 of 2008);
xvi.) Proceeds of Crime and Anti-Money Laundering Act, 2009 (No. 9 of 2009);
xvii.) Employment Act, 2007 (No. 11 of 2007).
ACT KENYA COAST GUARD SERVICE ACT, 2018

Commencement 9th November, 2018
Objective This Act establishes the Kenya Coast Guard Service and provides for its functions,
discipline, organisation and administration. The functions of the Kenya Coast Guard
Service shall include enforcing maritime security and safety, pollution control and
sanitation measures as well as prosecution of maritime offenders. The Service shall
also be responsible for port and coastal security, search and rescue, the protection
of maritime resources including fisheries and shall perform any other function con-
ferred on it by any written law.
ACT DIVISION OF REVENUE (AMENDMENT) ACT

Commencement 25th October, 2018
Objective This Act amends the Division of Revenue Act, No. 1 of 2018, to provide for addition-
al conditional allocations to the county governments for financial year 2018/2019.
45
ACT SUPPLEMENTARY APPROPRIATION (NO.2) ACT, 2018

Act No. No.13 of 2018
Commencement 21st September, 2018
Objective This Act authorizes the issue of certain sums of money out of the Consolidated
Fund and their application towards the service of the year ending on the 30th June,
2019 and to appropriate those sums for certain public services and purposes.
B. NATIONAL ASSEMBLY BILLS
NATIONAL ASSEM- SUPPLEMENTARY APPROPRIATION (NO.2) BILL, 2018

BLY BILL
Dated 20th September, 2018
Objective This Bill makes provision for the issue of certain sums of money out of the Consoli-
dated Fund and their application towards the service of the year ending on the 30th
June, 2019, and to appropriate those sums for certain public services and purposes.
Sponsor Kimani Ichung’wah, Member of National Assembly.
NATIONAL ASSEM- NATIONAL YOUTH SERVICE BILL, 2018

BLY BILL
Dated 26th October, 2018
Objective This Bill seeks to provide for the establishment, functions, discipline, organization
and administration of the National Youth Service, and for connected matters.
It proposes the repeal of the National Youth Service Act (Cap. 208).
Sponsor Aden Duale, Leader of the Majority Party, National Assembly.
NATIONAL ASSEM- NUCLEAR REGULATORY BILL, 2018

BLY BILL
Dated 19th November, 2018
Objective The principal object of this Bill is to repeal the Radiation Protection Act (Cap. 243)
and provide for a comprehensive regulatory framework, for radiation and nuclear
safety, nuclear security and safeguards to control radiation sources, nuclear materi-
als and associated waste.
The Bill aims to protect the people, property and the environment from the harmful
effects of exposure to radiation and to provide for nuclear safety and nonprolifera-
tion in accordance with national and international obligations.
Sponsor Aden Duale, Leader Of The Majority Party, National Assembly.
C. SENATE BILLS
SENATE BILL COUNTY EARLY CHILDHOOD EDUCATION BILL, 2018

Objective The principal object of this Bill is to provide a framework for the implementation of
early childhood education by the county government in line with its functions as set
out under the Fourth Schedule of the Constitution.
The county governments are conferred with the responsibility of ensuring the im-
plementation of early childhood education in the counties.
Sponsor Christopher Lang’ at, Chairman, Standing Committee on Education, Senate.
46
SENATE BILL PRESERVATION OF HUMAN DIGNITY AND ENFORCEMENT OF ECONOM-

IC AND SOCIAL RIGHTS BILL, 2018
Objective The principal object of the Bill is to give effect to Article 43 of the Constitution in
order to ensure the preservation of human dignity as set out under Article 19 of the
Constitution.
The Bill seeks to establish a framework for national monitoring, benchmarking and
evaluation of progress made in fulfilling economic and social rights by all actors in
the country. Since the sectors relevant to these rights fall under the county govern-
ments, it is critical that mechanisms be established at the county level by the county
governments for the realisation of these rights. The mechanisms developed at the
county level should then be subjected to monitoring by the relevant national institu-
tions to ensure that progress is being made at the county level for the realisation of
economic and social rights.
Sponsor Abshiro Halake, Senator.
SENATE BILL COUNTY OVERSIGHT AND ACCOUNTABILITY BILL, 2018

Dated 21st September, 2018
Objective The principal object of the Bill is to provide a framework for effective oversight
over the county government by the Senate. The Bill aims to improve the efficiency,
economy and effectiveness of county government operations; enhance public finan-
cial accountability in the counties; promote accountability and transparency in the
acquisition and disposal of assets and incurring of liabilities by county governments.
This Bill proposes to provide a mechanism on how oversight over the County bud-
gets can be carried out. It provides the guiding principles that guide Senatorial over-
sight. The Bill also designates the roles of the responsible bodies and officers in the
oversight and public participation processes.
The Bill, therefore, gives effect to the Constitutional provisions on oversight, par-
ticipatory democracy and public participation as enunciated in Articles 96, 174 and
201 of the Constitution respectively.
Sponsor Ledama Olekina, Senator.
SENATE BILL NATURAL RESOURCES (BENEFIT SHARING) BILL, 2018

Dated 23rd October, 2018
Objective The Bill seeks to provide a legislative framework for the establishment and enforce-
ment of a system of benefit sharing in natural resource exploitation between natural
resource exploiters, the national government, county governments and local com-
munities.
It provides that the Commission for Revenue Allocation shall be responsible for the
implementation of the Bill.
Sponsor Agnes Zani, Senator.
47
SENATE BILL MENTAL HEALTH (AMENDMENT) BILL, 2018
Dated 1st November, 2018

Objective This Bill proposes to impose obligations on each level of government to address
the issue of accessibility to mental health services including care, treatment and
rehabilitation of persons with mental illness. Article 43 (1) (a) of the Constitution
guarantees every person the right to the highest attainable standard of health which
includes the right to health care services.
The Bill proposes to incorporate within the membership of Kenya Mental Health
Board representation of the county governments. The Bill, further, reviews the
membership of the Kenya Mental Health Board from the current fourteen executive
members to nine in order to make the workings of the Council more efficient and
representative.
Sponsor Sylvia Kasanga, Senator.
SENATE BILL ELECTION LAWS (AMENDMENT) BILL, 2018

Objective The Bill seeks to amend the Elections Act, No. 29 of 2012, to ensure that a document
containing election returns is signed by the candidates or the representatives of the
candidates.
The Bill proscribes failure to fill out election return forms as a means to ensure that
candidates in an election or their representatives are unable to deny being given the
opportunity to oversight the tallying of results.
Sponsor Ledama Olekina, Senator.
SENATE BILL COUNTY WARDS (EQUITABLE DEVELOPMENT) BILL, 2018

Objective The Bill seeks to promote the decentralization of development within the coun-
ties by providing a framework for the promotion of equitable growth in the wards
within the counties.
It proposes to provide-
i. allocation of funds for ward-based development projects;
ii. mechanisms for selection of projects; and
iii. an oversight mechanism for the utilization of funds allocated for ward-
based development projects.
Sponsor Mohamed M. Mohamud, Chairperson, Committee on Finance and Budget, Senate.
48
SENATE BILL NATIONAL COHESION AND PEACE BUILDING BILL, 2018

Objective The principal object of this Bill is to repeal the National Cohesion and Integration
Act (No. 12 of 2008). The main aim is to provide for a coordinated structure for
peace building and cohesion in Kenya.
The Bill, in amending the National Cohesion and Integration Act, seeks to create the
National Cohesion and Peace Building Commission. It will be charged with ensur-
ing the formulation of strategies, plans and programs for the promotion of national
unity. Under the Bill, the Commission is also mandated to investigate and make rec-
ommendations to the Director of Public Prosecution on complaints of hate speech,
ethnic or racial contempt and discrimination on the basis of ethnic, clan or religious
origins.
Sponsor Judith Pareno, Senator.
SENATE BILL TEA BILL, 2018

Objective The principal object of the Bill is to liberalize the tea industry. This will be done
through the reorganization of the tea industry by transitioning of the regulatory
and commercial roles currently undertaken by the Agriculture and Food Authority
to the Tea Regulatory Authority of Kenya.
The proposed headquarters of the Authority shall be in Kericho County.
Sponsor Aaron Cheruiyot, Chairperson, Ad-hoc Committee on Tea, Senate.
SENATE BILL ELECTION LAWS (AMENDMENT) (No. 2) BILL, 2018

Objective The principal object of this Bill is to amend the Elections Act, 2011, to provide for
the procedure for the revocation of the membership of a nominated member of Par-
liament or county assembly where it is necessitated by the variation in the member-
ship of the various political parties represented in the respective legislature.
Whereas the Elections Act provides for the nomination of members into a legisla-
ture based on the party lists submitted by political parties, it does not provide for
the manner in which the nomination of a member would be revoked where the
membership in the legislature changes upon the vacancy of a seat and where a by-
election leads to a change in the membership of a political party in that legislature.
This would have the result of varying the entitlements by the various political par-
ties represented in the legislature to nominate persons to serve in the legislature.
The Bill therefore seeks to address this gap by providing for the circumstances un-
der which a nomination may be revoked and the slot re-allocated to another party
following an outcome of a by-election.
Sponsor Agnes Zani, Senator.
49
Legal Supplements
By Christine Thiong’o, Laws of Kenya Department
This article presents a summary of Legislative Supplements published in the Kenya Gazette
on matters of general public importance. The outline covers the period between the 6th of
September and 13th November, 2018. All these pieces of legislation are available on the Kenya
Law website, www.kenyalaw.org
DATE OF PUBLICA- LEGISLATIVE CITATION PREFACE

TION SUPPLEMENT
NUMBER
6th September, 2018 59 Koitalel Samoei The Cabinet Secretary for Education makes
University College this Order in exercise of the powers conferred
Order, 2018 by section 20(3) of the Universities Act, No. 42
of 2012.
(L.N 177/2018) It establishes a university college to be known
as the Koitalel Samoei University College which
shall be a constituent college of the University
of Nairobi.
The Order provides for its:
i. Establishment, Powers and Functions;
ii. Membership and Governance;
iii. Financial Provisions; and
iv. Miscellaneous Provisions.
25th October, 2018 63 Retirement Ben- The Retirement Benefits Authority issues these
efits (Post-Re- guidelines in exercise of the powers conferred
tirement Medical by section 55 (3) of the Retirement Benefits Act,
Funds) Guidelines, No. 3 of 1997.
2018 The objective of these guidelines is to facilitate
the establishment, regulation and supervision
(L.N. 192/2018) of the management of post- retirement medical
funds by:
i. Setting out the framework for the
management and administration of
post-retirement medical funds;
ii. Providing guidance to schemes to

provide for additional voluntary con-
tributions by members in respect of
post-retirement medical funds;
iii. Providing guidance on transfers and

access to post-retirement medical
funds; and
iv. Other such guidance as may be re-

quired from time to time.
50
25th October, 2018 63 Retirement Ben- The Retirement Benefits Authority makes these
efits (Good Gov- guidelines to-
ernance Practices) a. enable sponsors, members, trustees
Guidelines, 2018 and service providers implement and
promote proper standards of conduct
(L.N 193/2018) and sound governance practices; and
b. to ensure that sponsors, members,

trustees and service providers exercise
their fiduciary duties effectively and
diligently.
These guidelines shall apply to all schemes

regulated by the Authority in respect of the du-
ties, responsibilities and expected behaviour
of sponsors, members, trustees and service
providers in the conduct of the affairs of the
scheme.
13th November, 2018 67 Statistics (Census The Cabinet Secretary for National Treasury
of Population) Or- and Planning makes this Order in exercise of
der, 2018 the powers conferred by section 17 of the Sta-
tistics Act, No. 4 of 2006.
(L.N 205/2018) The Order provides that there shall be a Na-
tional Population and Housing Census, which
shall be undertaken starting on the midnight of
the 24th/25th August, 2019, and the enumera-
tion in respect of which shall be completed on
the 31st August, 2019.
It provides further that the Census shall be con-
ducted by the National Census Coordinator
under the guidance of the Board.
The Board shall provide leadership to ensure
successful implementation of the 2019 Census
activities; and ensure establishment and opera-
tionalization of various census committees.
These committees include the:
i. National Census Steering Committee;
ii. Technical Working Committee; and
iii. County Census Committee.
Their membership and functions are outlined.
51
International
Jurisprudence
Authoritative work made by the agents of the people in the legitimate exercise
of delegated, sovereign power is not eligible for copyright protection
Code Revision Commission, (for the Benefit of and on behalf of General Assembly of
Georgia, State of Georgia) v Public Resource Org, Inc
United States Court of Appeals for the Eleventh Circuit
No. 17-11589
October 19, 2018
Marcus, Hull, CJJ; Bucklew, DJ
Reported by Faith Wanjiku
Intellectual property law-copyright law- annotated compilation of Georgia statutes

annotations-whether the annotations contained that had been published annually since
in the Official Code of Georgia Annotated 1982. The statutory text contained in the
(OCGA), authored by the Georgia General OCGA had been enacted and had the effect
Assembly and made an inextricable part of the of statutes enacted by the General Assembly
official codification of Georgia’s laws, could be of Georgia.
copyrighted by the State of Georgia- Copyright
Law of the United States and Related Laws The Commission (respondent/plaintiff) was
Contained in Title 17 of the United States Code, a body established by the Georgia General
§ 102 Assembly in 1977 that was originally
tasked with undertaking the recodification
Statutes-law making process-annotations- of all of Georgia’s laws, a project that had
Official Code of Georgia Annotated-what was the not been done since 1933. Following its
process by which the annotations contained in the successful recodification of Georgia law
Official Code of Georgia Annotated were created? and the publication of the OCGA in 1982,
the respondent was then responsible for
Intellectual property law- copyright-eligibility updating the OCGA and supervising Lexis’s
of copyright protection-what factors needed to editing and publication of the OCGA.
be considered to guide on eligibility of copyright
protection of work- Copyright Law of the United Public.Resource.Org (appellant/defendant)
States and Related Laws Contained in Title 17 of was a non-profit organization with a mission
the United States Code, § 102 of improving public access to government
records and primary legal materials. In 2013
Words and phrases-merge-definition of-to lose the appellant purchased all 186 volumes
or cause to lose identity by uniting or blending; of the print version of the OCGA and its
to combine or unite into a single unit -Random supplements, scanned them, and uploaded
House Dictionary of the English Language 1980; them to its website to be freely accessible to
to become combined into one; to lose identity by the public. It also placed digital copies of the
absorption or intermingling-Webster’s Third New OCGA onto USB drives and mailed them to
International Dictionary 1981;to be absorbed various Georgia legislators. Additionally, the
and disappear, to lose character or identity by appellant distributed copies of the OCGA to
absorption into something else; to join or blend; to other organizations and on other websites in
combine to form a single entity-Oxford English order to facilitate its further dissemination
Dictionary 3rd edition 2001 by other parties.
Brief Facts On multiple occasions the respondent sent
The present appeal entailed the Official Code letters to the appellant demanding that it
of Georgia Annotated (OCGA) which was an cease and desist from publishing the OCGA
on the grounds that publication infringed
52
on the State of Georgia’s copyright in the created when the Georgia General
work. The appellant refused to comply, Assembly explicitly chose to merge
arguing that there was no valid copyright the annotations contained in the
in the OCGA because the law could not be Official Code of Georgia Annotated
copyrighted. The respondent, acting on with statutory text?
behalf of the Georgia General Assembly and iv. What factors needed to be considered
the State of Georgia, sued the appellant on to guide on eligibility of copyright
July 21, 2015 in the United District Court for protection of work?
the Northern District of Georgia. The suit Relevant Provisions of the Law
sought injunctive relief against the appellant’s
Copyright Law of the United States and
widespread and unauthorized copying and
Related Laws Contained in Title 17 of the
distribution of the copyrighted annotations
United States Code
in the Official Code of Georgia Annotated
through the distribution of thumb drives § 102 - Subject matter of copyright: In
containing copies of the OCGA and the general
posting of the OCGA on various websites. (a) Copyright protection subsists, in accordance
with this title, in original works of authorship
The appellant counterclaimed seeking
fixed in any tangible medium of expression,
a declaratory judgment that the State of
now known or later developed, from which
Georgia had no valid copyright in any
they can be perceived, reproduced, or otherwise
portion of the OCGA because the OCGA
communicated, either directly or with the aid of
was in the public domain. The trial court
a machine or device.
concluded that because the annotations
in the OCGA lacked the force of law, they Held
were not public domain material. It further 1. In order to establish a prima facie case of
entered a permanent injunction against the copyright infringement, a plaintiff had to
appellant enjoining it from all unauthorized show that:
use, including through reproduction, display, a. it owned a valid copyright in the
distribution, or creation of derivative works, work; and
of the OCGA. The injunction also ordered b. defendants copied protected
the appellant to remove all versions of the elements from the work.
OCGA from its website, and to cease any A valid copyright registration constituted
fundraising activities connected with its prima facie evidence of the validity of the
publication of the OCGA. The Court of copyright. Once the plaintiff had produced
Appeal was presented with the question of a valid copyright registration, the burden
whether the annotations contained in the shifted to the defendant to establish that
Official Code of Georgia Annotated (OCGA), the copyright was invalid.
authored by the Georgia General Assembly 2. Authorship was central to the statutory
and made an inextricable part of the official scheme. Only original works of authorship
codification of Georgia’s laws, could be were eligible for copyright protection.
copyrighted by the State of Georgia. Authorship generally determined who had
Issues a possessory interest in a work. Copyright
in a work vested initially in the author or
i. Whether the annotations contained
authors of the work as provided in § 201(a)
in the Official Code of Georgia
of the Copyright Act (the Act). Authorship
Annotated (OCGA), authored by
allowed a person to claim copyright
the Georgia General Assembly and
protection regardless of whether the work
made an inextricable part of the
had been registered with the United States
official codification of Georgia’s laws,
Copyright Office. Copyright inhered in
could be copyrighted by the State of
authorship and existed whether or not it
Georgia.
was ever registered. In consequence, to
ii. What was the process by which the
ascertain who held a copyright in a work,
annotations contained in the Official
ordinarily the identity of the author had
Code of Georgia Annotated were
to be ascertained.
created?
3. The meaning of authorship took on
iii. What was the nature of the new work
53
special significance in cases like that that whatever use the citizens chose to make
the copyrightability of a government edict of it. Citizens could reproduce copies of
was considered. A long line of authority, the law for many purposes, not only to
stretching back more than 180 years, guide their actions but to influence future
established that, with respect to certain legislation, educate their neighborhood
governmental works, the term “author” association, or simply to amuse.
should be construed to mean “the people,” 7. There were certain things that made
so that the general public was treated as the law what it was. The law was
the owner of the work. That meant that written by particular public officials
a work subject to the rule was inherently who were entrusted with the exercise of
public domain material and thus not legislative power; the law was, by nature,
eligible for copyright protection. authoritative; and the law was created
4. Under democratic rule, the people were through certain, prescribed processes, the
sovereign, they governed themselves deviation from which would deprive it of
through their legislative and judicial legal effect. Each of those attributes was
representatives, and they were ultimately a hallmark of law. Those characteristics
the source of the law. Under that distinguished written works that carried
arrangement, lawmakers and judges were the force of law from all other works.
draftsmen of the law, exercising delegated 8. The respondent exercised direct,
authority, and acting as servants of the authoritative control over the creation
people, and whatever they produced the of the OCGA annotations at every stage
people were the true authors. When the of their preparation. The respondent
legislative or judicial chords were plucked provided initial instructions to Lexis,
it was in fact the people’s voice that was directly supervised Lexis’s work
heard. Not surprisingly, then, for purposes throughout the preparation process,
of copyright law, that meant that the and had to give its final editorial assent
people, as the constructive authors were to the annotations before they could
also the owners of the law. And in that become part of the OCGA. In that way,
way, any work of which the people were the respondent undeniably controlled the
the constructive authors was intrinsically creation of the OCGA annotations.
public domain material and was freely 9. The respondent intimated involvement
accessible to all so that no valid copyright in the creation of the annotations was
could ever be held in it. of great significance. That was because
5. The government proceeded directly from a close examination of the nature of
the people; was ordained and established, the respondent confirmed that it was
in the name of the people and was for all intents and purposes an arm of
emphatically and truly, a government of the Georgia General Assembly. Thus,
the people. In form, and in substance, it not only was the respondent funded by
emanated from them. Its powers were legislative branch appropriations, but its
granted by them, and were to be exercised staff was drawn from an office that was
directly on them, and for their benefit. itself an agency of the Georgia General
6. Lawmaking bodies in the country enacted Assembly. The OCGA annotations, once
rules and regulations only with the consent completed, were subject to the approval
of the governed. The very process of not only of the respondent, but also to
lawmaking demanded and incorporated the approval of the Georgia General
contributions by the people, in an infinite Assembly. The General Assembly actually
variety of individual and organizational voted and had to vote to make the OCGA
capacities. In performing their function, the official codification of Georgia’s laws
the lawmakers represented the public will, and, in doing so, also voted to incorporate
and the public were the final ‘authors’ of the the annotations as part of the OCGA.
law. The court discerned that there were The OCGA annotations were not only
strong public policy interests in giving the authored at the direction and under the
public unfettered access to the law. Public close supervision of the Georgia General
ownership of the law meant precisely Assembly, but they also obtained their
that the law was in the public domain for peculiar status as official annotations
54
because they were adopted annually by 13. In particular, Georgia law provided
the General Assembly. that the merged text would be published
10. The Georgia General Assembly by authority of the state and when so
was not simply composed of ordinary published would be known and could
government employees but rather of be cited as the Official Code of Georgia
public officials whose official duties Annotated. Thus, the product of the
peculiarly included the direct exercise of merger was an official state publication,
sovereign power. The legislative power labelled and cited as the authoritative
of the state would be vested in a General embodiment of the laws of the State of
Assembly which would consist of a Senate Georgia.
and a House of Representatives. Of the 14. It of course remained true that
many government workers employed by portions of the OCGA clearly carried
the state of Georgia, the creators of the the force of law while OCGA § 1-1-
OCGA annotations were unique insofar 7 disclaimed any legal effect in the
as they were entrusted by the sovereign annotations. Yet the significance of the
with legislative power. legislature’s decision to merge those two
11. While not carrying the force of law in things into a single edict remained. The
the way that the statutory portions of the Georgia legislature was not required to
OCGA did, the annotations were law-like merge the annotations with the statutes in
in the sense that they were authoritative order to create the OCGA, which it then
sources on the meaning of Georgia stamped with the imprimatur of the State.
statutes. Having been merged by the But the bicameral legislature chose to do
General Assembly with the statutory text so. By combining those two components
into a single, unified edict, stamped with into a unified whole, their attributes had
the state’s imprimatur, and created and been intermingled and their distinct
embraced by the same body that wrote the character altered. While that did not
text that they explicated, the annotations mean that the annotations, by virtue of
had been suffused with powerful indicia of appearing alongside statutory text, were
legal significance that was impossible to suddenly possessed of binding legal effect,
ignore. The annotations cast an undeniable, it did mean that their combination with
official shadow over how Georgia laws the statutory text imbued them with an
were interpreted and understood. official, legislative quality.
Indeed, Georgia’s courts had cited to the 15. The statutory text, having been
annotations as authoritative sources on merged with those legislatively authored
statutory meaning and legislative intent. expositions on the meaning of Georgia
The annotations’ authoritativeness made law, had to be read in pari materia with
them closely analogous to the types of them. The annotations’ combination with
works that ordinarily represented an the statutes meant that any understanding
exercise of sovereign authority. The of the statutory text arrived at without
nature of the work, like the identity of reference to the annotations was
its creator, therefore impelled the court axiomatically incomplete. Because
further toward the conclusion that those Georgia law told that the official
annotations were attributable to the codification of Georgia statutes contained
constructive authorship of the people. not only statutory text but also annotations
12. The nature of the OCGA annotations that had been combined and unified with
was spelled out in some detail by Georgia’s the statutory text into a single edict, a
General Assembly. While disclaiming full understanding of the laws of Georgia
any legal effect in the annotations, the necessarily included an understanding of
Georgia law providing for the creation of the contents of the annotations. In that
the OCGA also stated that the statutory way, the annotations were clearly laden
portion of such codification would be with legal significance.
merged with annotations, captions, 16. Their significance was strengthened
catchlines, history lines, editorial notes, further by the legislature’s decision to label
cross-references, indices, title and chapter the unified whole “Official.” The OCGA was
analyses, and other materials. not simply one of a number of competing
55
annotated codifications of Georgia laws. laws, which were binding upon all the
It did not stand on equal footing with citizens. Justice required that all should
West’s annotated Georgia code. Rather, have free access to the opinions, and
it was the official codification of Georgia it was against sound public policy to
laws, stamped with the imprimatur of the prevent that, or to suppress and keep
state. That status necessarily caused the from the earliest knowledge of the public
annotations to cast a long shadow over the statutes, or the decisions and opinions
how the statutory portions of the OCGA of the justices.
were understood. Because those were the 20. Whether or not a work was assigned
official comments to the Code, they were the authoritative weight associated
to be read as authoritative in a way that with law was deeply intertwined with
annotations ordinarily were not. the question of whether the work was
17. Demonstrating the importance made by the agents of the people in the
of the state’s decision to stamp the legitimate exercise of delegated, sovereign
OCGA with its imprimatur, the very first power. No legislative act contrary to the
annotation in the very first section of the Constitution could be valid. To deny
OCGA favorably cited to a court case that, would be to affirm, that the deputy
that warned that attorneys who cited was greater than his principal; that the
unofficial publication of 1981 Code did servant was above his master; that the
so at their peril. Similarly, the importance representatives of the people were superior
the Georgia legislature attached to its to the people themselves; that men acting
branding of the Code as “Official” was by virtue of powers, could do not only
further demonstrated by its enactment of what their powers did not authorize,
a law allowing the publisher of the official but what they forbade. As a result, the
Code to use the state emblem on the authoritativeness of a work was probative
cover of the publication, whereas all other on the question of whether a work was
private parties were prohibited from created in an exercise of sovereign power.
using the state emblem in any context. Thus, in addition to whether the work
Thus, while stamping the annotations was prepared by a judicial or legislative
with the state’s imprimatur and labelling body, an examination of the nature of the
it official did not suddenly elevate the work, which was another way of asking
annotations to the status of binding law, it whether it carried authoritative weight,
too enhanced their already potent cachet could indicate whether the work was
in a way that was undeniable and also uncopyrightable.
impossible to ignore. 21. As was the case with the identity of
18. The state courts frequently had the creator of the work and the nature
characterized OCGA comments as of the work, fundamental principles
conclusive statements about statutory that governed how sovereign power was
meaning and legislative intent. The exercised under a republican form of
nature and authoritativeness of the work, government suggested that the process
like the identity of the author, were by which an edict was promulgated was
material in determining whether the probative as well on the question of
work was attributable to the constructive whether a work was created through the
authorship of the people. After all, it was exercise of such power.
not only emphasized on the identity of 22. Just as an action was not deemed a
the creator of the work but also the nature legitimate exercise of sovereign power if
of the work, reasoning that the work was it was undertaken by the wrong official,
uncopyrightable precisely because it was so too it could be invalid if undertaken
an authentic exposition and interpretation outside the proper procedural channels.
of the law binding on every citizen. The converse followed naturally: if an
19. The law, as an authoritative work action was undertaken through the
that governed people’s lives, was ordinary procedural channels by which
uncopyrightable. The decisions and the sovereign power was exercised, it was
opinions of the justices were the authorized more likely that the action represented an
expositions and interpretations of the exercise of sovereign power.
56
23. A work made by a judge outside access to the annotations. Finally, the
the normal channels by which judicial General Assembly’s annual adoption
action was taken would not be subject of the annotations as part of the laws of
to copyrightability. The very process of Georgia was effected by the legislative
lawmaking demanded and incorporated process namely bicameralism and
contributions by the people. It was presentment that was ordinarily reserved
therefore fair to say that, just as the for the exercise of sovereign power.
justices of the Supreme Court of Ohio 26. The annotations in the OCGA
had authored the work in question in were attributable to the constructive
the discharge of their judicial duties, the authorship of the people. To advance the
Georgia legislature’s use of bicameralism interests and effect the will of the people,
and presentment to adopt the annotations their agents in the General Assembly had
as their own and merge them with chosen to create an official exposition on
statutory text indicated that the work was the meaning of the laws of Georgia. In
created by the legislators in the discharge creating the annotations, the legislators
of their official duties. had acted as draftsmen giving voice to
24. When the wrong public official the sovereign’s will. The resulting work
exercised a power delegated in the law, was intrinsically public domain material,
when the power exercised was of a type belonging to the people, and, as such,
not contemplated by the law, or when had to be free for publication by all. As a
the power was exercised outside the result, no valid copyright could subsist in
procedural channels prescribed by the those works.
law, the act could not be considered a
Appeal allowed.
valid exercise of the sovereign power.
From those principles, the corollary Orders
logically followed: when the action taken
was of the type entrusted by the people i. The judgment of the district court was
to their agents, when it was wielded by therefore reversed, judgment entered for the
a public official whose assigned duties appellant, the district court’s order granting
included the exercise of sovereign power, the State of Georgia injunctive relief vacated
and when it was exercised pursuant to and remanded for further proceedings
constitutionally designated processes, it consistent with the opinion.
more likely represented an exercise of the Relevance to the Kenyan Situation
sovereign authority.
25. The OCGA annotations were created The Constitution of Kenya, 2010 provides
by Georgia’s legislative body, which in article 35 (1) (a) that every citizen has
had been entrusted with exercising the right of access to information held by
sovereign power on behalf of the people the State and sub-article (3) provides that
of Georgia. While the annotations did the state shall publish and publicise any
not carry the force of law in the way that important information affecting the nation.
statutes or judicial opinions did, they
were expressly given legal significance There is also the Access to Information Act,
so that, while not law, the annotations No. 31 of 2015 whose one main object and
undeniably were authoritative sources purpose is to give effect to the right of access
on the meaning of Georgia statutes. The to information by citizens as provided under
legislature had stamped them official and article 35 of the Constitution.
had chosen to make them an integral part The Copyright Act, No. 12 of 2001 provides
of the official codification of Georgia’s in section 2 that literary work does not
laws. By wrapping the annotations and include a written law or a judicial decision.
the statutory text into a single unified
edict, the Georgia General Assembly had However, just like the appellant (Public
made the connection between the two Resource Organization) in the US case,
inextricable and, thereby, ensured that in Kenya we have the National Council
obtaining a full understanding of the laws for Law Reporting which is a service state
of Georgia required having unfettered corporation, whose mandate is to monitor
57
and report on the development of Kenya’s the Official Code of Georgia Annotated.
jurisprudence through the publication of the However if Parliament were to make such
Kenya Law Reports; to revise, consolidate and a code, it would be in the public domain
publish the Laws of Kenya; and to undertake as provided for in Kenyan law and thus
such other related publications and perform not copyrightable. As held in the US case,
such other functions as may be conferred lawmakers and judges were draftsmen of
by law. The organization under its creative the law, exercising delegated authority,
commons licence believes that public legal and acting as servants of the people, and
information is common property and should whatever they produced the people were
be accessible to all. the true authors thus making that produced
work uncopyrightable.
In Kenya there is no code that contains a
compilation of merged statutes and their
meanings created by Parliament such as
“You and I must work together to develop our country, to get education for our children, to have doctors, to build roads, to improve or
provide all day-to-day essentials.” - Jomo Kenyatta
Some rights reserved by sebastian.bolenius
58
Law Reform
Compilation
AREA OF LAW IN BRIEF FACTS & METADATA OF HOLDINGS PERTINENT TO LAW REFORM
NEED OF REFORM JUDGMENT
Parliament should Republic v Ahmad Abolfathi 1. The Court of Appeal erred in its observation that it
consider legislation Mohammed and another [2018] was not aware of any law that granted it jurisdiction to stay
where a higher court of eKLR an acquittal of an accused person so that he continued to be
appeal has jurisdiction to Supreme Court of Kenya, held in custody as a suspect awaiting a possible finding of
stay and order acquittal Criminal Application No 2 of guilt by the Supreme Court. In addition, the Appellate Court
of an accused from 2018 erred when it held that the inherent jurisdiction of the Court
another court of appeal. D K Maraga, CJ & President; could not be the basis for granting the orders of stay that had
M K Ibrahim; J B Ojwang; S C no constitutional or statutory basis but instead negated the
Wanjala; & S N Ndungu, SCJJ constitutional presumption of innocence until the contrary
The Respondents, Iranian was proved.
nationals, were charged with
2. Unlike in the Indian cases of Express of India v
and convicted for the offences of
Mangu & Others, (1880) ILR 2 ALL 342 and The State of UP
being in possession of explosives
v Poosu & Another, 1976 3 SCC 1 as well as the Malaysian
contrary to section 29 of the
case of Prosecutor v Bird Dominic Jude, Criminal Appeal
Explosives Act; committing an act
No. W-05-216-09/2012, where there were express statutory
intended to cause grievous bodily
provisions granting the Court discretionary authority to
harm contrary to section 231 of
arrest and detain a respondent pending the hearing and
the Penal Code; and preparing
determination of the State’s appeal against his acquittal,
to commit a felony contrary to
there was no express statutory provision in Kenyan statutes
section 308(1) of the Penal Code.
granting the Court jurisdiction to stay an acquittal. That did
They were each sentenced to life
not mean the Kenyan appellate courts were helpless in such
imprisonment on count 1, 10
matters.
years’ imprisonment on count
2 and 15 years’ imprisonment 3. An appellate court was not totally handicapped.
on count 3. The sentences were It may where satisfied grant an order staying an acquittal
ordered to run concurrently. pending the hearing and determination of the appeal by
The Respondents’ appeal to the the State. That power may be statutory provided for, like
High Court against conviction the case of Malaysia, or drawn from the Constitution, like
was dismissed. The one against the case of India. Kenya had no legal provision either in the
sentence was, however, partially Constitution or statute that directly spoke to the power of
allowed with the result that the an appellate Court, be it the High Court, Court of Appeal
sentences imposed upon them or Supreme Court, to grant orders of committal to prison
by the Trial Court were set aside of an acquitted person pending the hearing of the appeal.
and in lieu thereof they were However, the Supreme Court was not handicapped as to be
each sentenced to a consolidated totally curtailed from granting such an order.
term of 15 years’ imprisonment.
4. Time was ripe for the legislative arm of the
Their second appeal to the Court
government, Parliament, to consider such legislation.
of Appeal was allowed; their
Parliament, the Attorney General, Director of Public
convictions were quashed and
Prosecution and other stakeholders in the justice system,
the sentences imposed on them
including the Law Reform Commission and the Law Society
were set aside and the Court of
of Kenya were called upon to consider such a legislative
Appeal ordered their immediate
framework.
repatriation.
Its application for certification 5. Before the legislative framework was enacted,
having been dismissed by the the Supreme Court in exercise of its inherent jurisdiction
Appellate Court, the State applied and unfettered jurisdiction as pronounced by rule 3 of the
to the Court to review and set Supreme Court Rules, 2012 had the power to grant an order
aside the said decision and in staying an acquittal pending the hearing of an appeal filed
its stead to find that the State’s by the State, through the office of the Director of Public
intended appeal raised matters Prosecution. That jurisdiction was discretionary and had
of general public importance and to be exercised judiciously and not whimsically. That called
grant it leave to appeal to the for setting of guidelines/principles on how the Court(s)
Court. exercised that jurisdiction.
59
The law is discriminatory Republic v C M W [2018] eKLR 1. Section 210 of the Penal Code dealt with infanticide.
by treating women Criminal Case No. 43 of 2015 There was no law in Kenya dealing specifically with murder
suffering from post- cases arising from post-partum psychosis where a patient
partum psychosis the killed someone else other than her child. Section 210 did not
same way as people not Lesiit, J apply in the instant case for reason the two deceased were
suffering from it when September 27, 2018 the children of a neighbour. The accused’s own child whom
both commit murder. The accused was charged with she also killed was subject of a trial in the subordinate court.
two counts of murder of two Section 203, read together with section 9 of the Penal Code
children. The accused held one and section 166 of the Criminal Procedure Code applied in
of the deceased by the neck and the instant case.
threw her down leading to her 2. The Court recommended that since cases of
death. The accused also held the post-partum psychosis were suffered only by women,
other deceased, a 14 days old then there was inherent in the treatment of women with
child, by the throat before PW2 that condition under the law a lack of parity and equality.
struggled to get the deceased from It was discriminative; it flew in the face of constitutional
the accused, PW2 managed to provisions on right to equal treatment before the law; right
free the deceased but by then the to equal enjoyment of rights under the law and general
deceased was already dead. At the discrimination by virtue of the fact only the women gender
time of committing the offence, would suffer from such a condition.
the accused was suffering from
a mental illness known as post- 3. Nigeria’s section 28 of Lagos State Criminal Law
partum psychosis. had one significance; it recognized that the woman with
post-partum psychosis was sick and needed medical care. In
fact, not only did that law make it mandatory for the Court
to make an order for treatment; the law said that it should
be a hospitalization order. That showed that the sickness
was taken so seriously that their Parliament had made it
mandatory for the Court order to include the order to have
the Accused person admitted in an appropriate institution
for proper medical treatment and care.
4. It was appropriate to recommend that the law
touching on that gender specific and unique condition be re-
examined in a view to making provision for the appropriate
handling of such persons, including treating such a person
as having an illness needing special treatment and handling.
It was time Kenya built a mental asylum where persons with
mental illness facing trial for various offences could be held
and consequently properly medically treated. As the law
stood the accused caused the deceased deaths but at the time
she was suffering from an illness of the mind.
60
Section 304 of the Rajenda Ratilal Sanghani v 1. Section 304 of the Insolvency Act provided for
Insolvency Act does not Schoon Noorani circumstances when an application for an interim order
set out the procedure for Insolvency Cause Misc No 33 of could be made. The provision did not set out the procedure
making an application 2018 for making an application for an interim order. The
for an interim order. High Court at Nairobi Insolvency Procedure Rules contemplated under section
F Tuiyott, J 697 of the Insolvency Act were yet to be made by the Rules
October 26, 2018 Committee.
The applicant/debtor sought to
2. The mere presentation of an interim order had
use the remedy of an interim
ramifications on the rights of creditors and landlords to
order as an alternative to
commence or continue with certain proceedings. Under
bankruptcy under section 305 of
section 305 of the Insolvency Act, the effect of the interim
the Insolvency Act. The interim
order was that a landlord seeking rent payments would have
order would enable him to make
to get court approval and any proceedings against the debtor
a proposal to his creditors for
could be stayed or allowed to continue on certain terms.
composition in satisfaction of the
Under section 306(7) of the Insolvency Act, after an interim
debts or a scheme of arrangement
order was made, a bankruptcy application could not proceed,
of his financial affairs. The
a landlord who was demanding rent payments could only
respondent, one of the creditors,
exercise his rights over the leased property with the Court’s
raised a preliminary objection
approval and any other proceedings against the debtor or his
against the use of the interim order.
property could only be commenced or continued with the
The grounds of the preliminary
approval of the Court.
objection included the assertion
that the application targeted only
one creditor and failed to include
all other creditors, it had material
non-disclosures, it was made
in bad faith and was an abuse of
court process, it was premature
and speculative as the creditor
had not demanded payment for
the full debt and it did not comply
with legal requirements relating
to an interim order under the
Insolvency Act.
61
Rule 6(b) of the Kenya Dennis Kabuaya Mucheke v 1. Rule 6(b) of the Kenya National Examinations
National Examinations Kenya National Examinations Council (Equation of Certificates) Rules 2015 provided that
Council (Equation of Council & 2 others the 1st respondent should not equate foreign qualifications
Certificates) Rules, 2015 Petition No 487 of 2017 obtained from institutions based in Kenya. Therefore,
(Legal Notice No 130 High Court at Nairobi while the parent Act did not prohibit equation of foreign
of 2015) and clause 1.8 E C Mwita, J certificates from institutions in Kenya, the rules made under
of Circular No KNEC/ September 17, 2018 the Act prohibited it. To that extent, the rules went against
G E N / R & Q A S /A & R / The Petitioner sat and passed the general scheme of the parent Act and were unreasonable.
EQN/16/0004 circular International General Certificate Arguing that foreign qualifications obtained from local
on guidelines on of Secondary Education, IGCSE, institutions could not be equated because they would
equation of foreign and was admitted to study law at encourage exodus from local examinations was unfair,
certificates (Revised Keele University. He graduated on unjustifiable and unreasonable.
Edition IV) dated July 6, 2017 with an LLB degree.
2. There was an element of discrimination arising
October 26, 2016 were He sought to join the Advocates
from rule 6(b) of the Kenya National Examinations Council
unconstitutional and Training Program, ATP, at the
(Equation of Certificates) Rules 2015. It allowed the equation
invalid. Kenya School of Law, KSL. The
of foreign qualifications obtained outside the country while
petitioner’s application to have his
declining the equation of the same qualification where
‘O’ Level qualifications equated by
there it was obtained from local institutions. There was no
the 1st respondent was declined
compelling or reasonable justification for such a rule.
and he was casually informed
that the 1st respondent did not 3. The 2nd respondent was in dereliction of its duty
equate foreign qualifications when it declined to recognize and approve the petitioner’s
obtained locally. Additionally, degree on grounds that he had not qualified to join university.
the petitioner’s application for Questions relating to qualifications for joining a university
recognition and approval of his were within the interested party’s mandate and not the 2nd
degree for purposes of admission respondent’s mandate.
to ATP at KSL was declined by
4. The 2nd respondent breached the petitioner’s
the 2nd respondent on grounds
legitimate expectation that his degree qualification would
that it did not recognize his
be recognized and approved. Although there could be no
pre-university foundation
legitimate expectation that was contrary to the law, the
qualifications.
law had to be reasonable and justifiable in an open and
Against the respondents’
democratic society and not to infringe on fundamental rights
decisions, the petitioner sought
and freedoms. In making the impugned decision, the 2nd
various reliefs while stating that
respondent violated the petitioner’s legitimate expectation
there had been violations of his
to be treated fairly.
fundamental rights and freedoms
and legitimate expectations.
Particularly, violations of the right
to equality and freedom from
discrimination, right to education
and right to fair administrative
action were alleged.
62
Kenya Law donates 300 copies of the pocket size Constitution of Kenya to Tangaza
University College
By John Ribia
N
ational Council for Law Reporting The event which took place at the Tangaza
(Kenya Law) CEO Mr. Long’et Terer University College on October 30, 2018,
donated a total of 300 pocket sized saw faculty of Tangaza University College
Constitutions to the Vice Chancellor of the and representatives from the Catholic
Catholic University of Eastern Africa, Rev. University of Eastern Africa and the Marist
Prof. Stephen Mbugua; to the Principal of International University College receive
Tangaza University College, Br. Tom Kearney copies for their various institutions.
C.F.C; to the Dean of the Faculty of Law of
CUEA, Dr. Maurice Ajwang Owuor; to the Mr. Terer appreciated the role the educators
Principal Marist International University play in the society. He also delivered a talk
College, Dr. Joseph Udeajah; to the Registrar on the salient features of the Constitutions
of Tangaza University College, Ngure that are applicable to university students
Githinji and to student representatives of and administrators. He encouraged the
Tangaza University College for use by institutions to make use of the resources
the students and faculty of the respective availed by Kenya Law in their future
institutions. undertakings.
(Above) Kenya Law CEO Mr. Long’et Terer (third right) and the
Principal Tangaza University College Br. Tom Kearney C.F.C ( fourth
right) join various University administrators as they display Copies of
the Constitution donated to Tangaza University College, Nairobi, on
October 30, 2018.
(Right) Kenya Law CEO Mr. Long’et Terer (left) presents the
Constitution of Kenya,2010 to the Principal Tangaza University
College, Br. Tom Kearney C.F.C at Tangaza University College, Nairobi,
on October 30, 2018.
63
Kenya Law and AfricanLII conduct a training on Media Communication and

Judgment Reporting for the African Court on Human and Peoples’ Rights in
Arusha
By Njeri Githanga
T
he National Council for Law Reporting Human Rights at the University of
(Kenya Law) in conjunction with Pretoria.
AfricanLII conducted a training and  Ms. Carmel Rickard, Legal Journalist
capacity rationalisation for the African Court and Editor-in-Chief for the Judicial
on Human and People’s Rights in Arusha, Institute for Africa (JIFA).
Tanzania on the 18th and 19th of October 2018.  Ms. Amy Sinclair, International
The training was informed by the fact that Human Rights law project Coordinator
the jurisprudence of the African Court is of at AfricanLII and former law clerk to
paramount importance for the development of the Supreme Court of Appeal of South
the human rights framework in the continent. Africa and Supreme Court of Western
It is important that, as such, it is widely Australia.
disseminated, understood and incorporated,  Ms. Njeri Githanga. Senior Law
where applicable, by national justice sector Reporter, Kenya Law.
institutions, lawyers, judges, academics, etc. as Day 1
well as the media and, ultimately, the general The training on the first day kicked off with
public. African Court plans to develop a key note address from Mr. Long’et Terer,
authoritative judgment summaries to be CEO/Editor (Kenya Law). The address
released alongside official copies of judgments. focused on access to legal information and
The Registry was exploring options to enable it the opportunities for the collaboration that
to build internal capacity to digest, summarize expand and open new frontiers for the access
and index cases. The purpose of the training to law.
was therefore to ensure that the Court was
The presentations explored international
able to better prepare case summaries and
best practices for communicating case
communicate them to the general public.
materials and judgments to various audiences.
Kenya Law and AfricanLII having developed a Specifically, the presentation focused on: the
law reporting training programme which has lifecycle of an international court case, the
been in operation since 2012 convened and current practice of the African Court and the
coordinated the training. practice of other international and regional
The training session targeted African Court courts. The participants also reviewed
staff from the Legal Division, Language Unit, international best practices based on case
Communication Unit and the Office of the studies from the International Court of Justice
Registrar. (ICJ), International Criminal Court (ICC),
The training had input and participation from and International Criminal Tribunal for the
a wide range of experts across all aspects of former Yugoslavia (ICTY). Draft guidelines
legal publishing, such as: for preparation of Case information sheet and
 Mr. Long’et Terer, CEO/Editor, Judgment summaries were also discussed.
Kenya Law. In the afternoon, the participants in small
 Dr. Magnus Killander, Centre for groups prepared a pre-hearing/post-judgment
64
(From the Right;) Ms. Njeri Githang’a (Kenya Law), Dr. Robert Eno
(Registrar, African Court on H&PR), Grace Wakio(African Court on
H&PR), Ms. Amy Sinclair (African Lii) and Mr. Long’et Terer (Kenya Law).
Mr. Long’et Terer CEO/Editor- Kenya Law hands over books to Dr. R. Eno,
press release in line with principles and Registrar of African Court (3rd left) in Arusha.
strategies explored in the morning sessions. with principles and strategies explored in the
The lessons learnt from the practical exercise morning sessions. The lessons learnt from
were discussed and it was agreed that the draft the practical exercise were discussed and it
guidelines would be adopted subject to a few was agreed that there was need to further
amendments. benchmark with other regional courts and
Day 2 adopt the best practices.
On the second day, the training focused on African Court lawyers and key staff members
preparation of Law Reports. Kenya Law attending training on Media Communication
presented on the law reporting practices and and Judgment Reporting convened and
processes at Kenya Law. Detailed information coordinated by Kenya Law and AfricanLII
on the internal workflows, selection The Kenya Law and African Legal
procedures and rules as well as the editorial Information Institute (University of Cape
guidelines in judgment editing was shared. Town) coordinated 2-day training for African
Other issues discussed included, privacy in Court lawyers on Media Communication and
law reporting, medium neutral citation, plain Judgment Reporting
legal language and handling of versions in Day 2 of the joint Kenya Law and AfricanLII
translations and corrections. training at the African Court on Human and
In the afternoon, the participants in small People’s Rights. The group discusses judgment
groups prepared a judgment summary in line reporting.
65
CMA and Kenya Law Publish Capital Markets Case Digest
T
he Capital Markets Authority (CMA) judicial trends on key capital markets issues.
and the National Council for Law The Digest is expected to serve as a valued
Reporting (Kenya Law) jointly released reference point in guiding all players in the
a premier Digest of 27 capital markets capital markets, especially legal practitioners,
decisions delivered by Courts in Kenya. The Judges and Judicial officers, scholars, investors,
Digest, which summarizes critical milestones institutions and individuals on how disputes
in capital markets jurisprudence is the first arising from regulation of capital markets
of its kind to be published in the financial have been dealt with by the Courts.
sector in Kenya. It covers a ten-year period The Digest acknowledges that the Judiciary
from 2008 to 2018 and is indexed into seven is set to only grow in its importance as a
categories covering civil cases, civil appeals, critical pillar of a robust, reliable and globally
constitutional petitions, judicial review competitive capital market. The nature and
applications, miscellaneous applications, civil scope of judicial decisions will be instrumental
suits and criminal cases. in determining Kenya’s emergence as an
The Digest is intended to become a regular International Financial Centre in line with
publication noting that a number of the Vision 2030 and its development into ‘The
highlighted cases are currently the subject of Heart of African Capital Markets’ as envisaged
appeals. The Authority and Kenya Law remain in the Capital Market Master Plan 2014-2o23.
committed to making accessible evolving
(Above) Kenya Law CEO Mr. Long’et Terer (Third Left) and Capital Markets
Authority CEO Mr. Paul Muthaura Third right) are joined by Kenya Law and CMA
staff during the official hand over of the Capital Markets Case Digest at Kenya Law
offices on November 21, 2018.
(Right) Kenya Law CEO Mr. Long’et Terer (Left) and Capital Markets Authority
CEO Mr. Paul Muthaura (right) peruse through the premier Capital Markets Case
Digest during the official hand over of the at Kenya Law offices on November 21,
2018.
66
The National Council for Law Reporting (Kenya Law) donates copies of the
Constitution of Kenya 2010 to Starehe Boys Centre and school - Law Club
67
Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309

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Issue 43

October - December 2018

Circumstances in which the Supreme Court can assume

Ingredients needed to be satisfied to prove common intention in an offence Pg 17

Authoritative work made by the

EDITORIAL TEAM 1. Editors Note 1

The Hon. Mr Justice David K. Maraga, EGH

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

Ms Anne Amadi Mr Michael Sialai, EBS

Speech by Hon. David K. Maraga, Chief Justice and President of the

I appeal to all those in positions of authority and responsibility, particularly those in

Hon. David K. Maraga, EGH,

Chief Justice and President of the Supreme Court of Kenya

What they said

High Court Judge – R Mwongo, J in P M M v Republic - Criminal Appeal No 24 of 2017

The Supreme Court finally noted that it Petition allowed.

Registration Act under the Constitution Registered Land Act(repealed)

(a) under the African Customary law for the Held

They were: the members could be inferior to, or co-

13. Each case had to be determined on into the circumstances of registration to

on the register. of a specific category of a customary

Some rights reserved by dachalan

enough for the Appellants to anticipate directed at a moving vehicle.

Magistrates’ Courts have jurisdiction to hear and determine disputes

Jurisdiction-jurisdiction of the Magistrates’ Turkana County and the 4th Respondent’s

the hearing of the Petition. Court entailed questions to be determined

9. The grounds raised at the High Court Appeal allowed.

Constitutional Law-fundamental rights and specified period of time. The petitioner

was unconstitutional was not proved. No costs.

Criminal Law-sexual offences-incest- the complainant’s age was not proved.

prejudice and hardship. Additionally, 8. An assessment of a debtor’s ability to pay

The Kenya National Examinations Council has the mandate to equate

Held arising from rule 6(b) of the Kenya

join university. Questions relating to R&QAS/A&R/EQN/16/0004 circular on

The proper way of sentencing an offender, who at the time of commission

buttocks and that the complainant did not Children Act

The law is discriminatory by treating women suffering from post-partum

Criminal Law-murder-defences to the offence consider in establishing a defence of insanity in

Pension benefits of a defaulter of a child maintenance order can be

Commencing of all criminal cases, except murder and treason cases, as

schedule. The mere fact that trials of all unconstitutional.

Constitutional Law-interpretation of The Petitioner contended that the impugned

Constitution of Kenya (Protection of that no fees may be charged for

rationalize or reconcile it with the and context in order to ascertain the

The likelihood of interference with witnesses and political influence cited

Feedback For Caseback Service

Well received, thanks.

Justice Samson Okongó

ACT FINANCE ACT, 2018

i.) Income Tax Act (Cap. 470);

ACT KENYA COAST GUARD SERVICE ACT, 2018

ACT DIVISION OF REVENUE (AMENDMENT) ACT

ACT SUPPLEMENTARY APPROPRIATION (NO.2) ACT, 2018

B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEM- SUPPLEMENTARY APPROPRIATION (NO.2) BILL, 2018

Sponsor Kimani Ichung’wah, Member of National Assembly.

NATIONAL ASSEM- NATIONAL YOUTH SERVICE BILL, 2018

Sponsor Aden Duale, Leader of the Majority Party, National Assembly.

NATIONAL ASSEM- NUCLEAR REGULATORY BILL, 2018

Sponsor Aden Duale, Leader Of The Majority Party, National Assembly.

SENATE BILL COUNTY EARLY CHILDHOOD EDUCATION BILL, 2018

Sponsor Christopher Lang’ at, Chairman, Standing Committee on Education, Senate.

SENATE BILL PRESERVATION OF HUMAN DIGNITY AND ENFORCEMENT OF ECONOM-