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Kenya Law Reports
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The Council Members

The Council Members ................................................................ Citizen Jane ................................................................................... Editors Note .................................................................................. What They Said............................................................................. New Era With Mutunga, Baraza Appointment .................. Access To Legacy Public Legal Information in Kenya.......................................................................... Strategic Planning Quality Assurance And Performance Department......................................................... Editorial Department.................................................................. Information Computer Technology (ICT) Department....................................................................... Laws Of Kenya Department.................................................... Human Resources And Administration Department.................................................... Research And Development Department................................................................................... Finance Department.................................................................. Sales And Marketing Department................................................................................... Feature Case ................................................................................ Court of Appeal Cases .............................................................. High Court Cases ........................................................................ Supreme Court ............................................................................
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The Hon. Dr. Justice W.M. Mutunga,S.C. Chief Justice, President of the Supreme Court & Chairman, National Council for Law Reporting.
THE NATIONAL COUNCIL FOR LAW REPORTING THE BOARD OF THE COUNCIL The Hon. Dr. Justice W.M. Mutunga,S.C. Chief Justice, President of the Supreme Court & Chairman, National Council for Law Reporting. The Hon Mr Justice P. K. Tunoi
EDITOR Michael Murungi EDITORIAL ASSISTANT Esther Nyaiyaki
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Judge of the Supreme Court

The Hon Lady Justice J. W. Lesiit
Judge of the High Court

Mrs L. A. Achode
Registrar, High Court of Kenya

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

Mr. Antony Otengo Ombwayo
CONTRIBUTORS Michael Murungi Monica Achode Esther Nyaiyaki Ann Asugah Nicholas Okemwa Cornelius Lupao Mtindi Musuva Andrew Halonyere Njeri Githanga Kamau Nelson Tunoi Emma Kinya Petronella Mukaindo Wambui Kamau Linda Awuor Andrew Kiarie Lucy Wamatu Christian B. Ateka Wanjala Sikuta DESIGN AND LAYOUT Catherine Moni, John Muriuki, Geoffrey Andare PROOFREADERS Phoebe Ayaya, Innocent Ngulu Contacts National Council for Law Reporting, Milimani Commercial Courts, Ground Floor, 4th Upper Hill Close, Ngong Road Email: info@kenyalaw.org, Tel: (+254) (020) 271 27 67, 271 92 31 Fax: (+254) (020) 2712694, Nairobi, Kenya, www.kenyalaw.org Facebook: Kenya Law Reports, www.youtube.com/kenyalawreports
Attorney-Generals Representative
Mr. P. Sang
Goverment Printers Representative

Mr. Evans Monari
Law Society of Kenya

Ms Florence Muoti Mwangangi
Law Society of Kenya

Mr. M.M. Murungi
Editor/C.E.O
Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the omission of any information. Transforming Legal Information Issue15: April-June 2011 into Public Knowledge. Issue15: April-June 2011
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TECHNOLOGY IN GOVERNMENT IN AFRICA (TIGA) AWARD, 2011.
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What They Said
Issue15: April-June 2011
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Editors Note
column to saying farewell ch Bulletin, I devoted this J.E. In the last edition of the Ben an, The Hon. Mr. Justice Chief Justice and Chairm r me for ate edi imm our n. to cessor, The Ho Dr. asure in welcoming his suc ple e tak I w, No .H. E.G Gicheru, of the newly established ., who is also the President ef Justice W.M. Mutunga, S.C N. Baraza, the Deputy Chi and The Hon. Lady Justice on ted Supreme Court of Kenya, oin who were app ent of the Supreme Court, Justice and the Vice Presid congratulate them on we l, staff of the Counci the of alf beh On 1. 201 June 16, lcome the renewed spirit n more importantly, we we e their appointment and eve participation in governanc accountability and citizen ce. offi of constitutionalism, public in s and their first day of both their appointment that has been the hallmark to be the recipient of the Law Reporting is proud The National Council for 0. The TIGA Award, which in Africa (TIGA) Award, 201 Technology in Government mission for Africa (ECA) ited Nations Economic Com Un the by red nso spo cois vice delivery as part e use of ICTs for public ser ctiv effe s ent nm ver Go n ent Cooperation land, recognizes Africa ent of Finlands Developm nm ver and the Government of Fin Go the and SI) (AI e ements by Information Society Initiativ ognizes outstanding achiev of fulfilling ECAs African category of the award rec vice ser lic pub delivery The . ica vice pment in Afr government ser Strategy on ICTs for develo projects to improve online tive ova inn ng enti lem ceremony held in Addis developing and imp The Award was given at a organizations or teams in nt. me ern gov of nts clie zens or businesses as with a specific focus on citi 2011. Ababa, Ethiopia on May 2, of the der in the 2011 edition an even stronger conten l nci Cou the kes ma t in a move tha and later the Hansard ering the years 1905-2011 In the previous month, and cov e zett Ga ya Ken the h Google, the the online archive of ertaken in partnership wit TIGA Awards, we launched s initiative, which was und Thi . 011 0-2 196 ica but also rs Afr in yea for the edented not only (Parliamentary Debates) Kenya ICT Board, is unprec the and bly em Ass al ya Nation Google Books technology Government Press, the Ken the user-friendliness of the and t ten con the of h adt terms of the bre in the rest of the world in t is served. ten platform on which the con present al evolution of Kenya and e the political, social and leg tur cap d sar Han ilable the ava and not Kenya Gazette t was previously The online archives of the and cross-referencing tha ing rch sea of e eas an citi h .H, MP, stated, zens l format and wit Mr. Kenneth Marende, E.G the content in its origina n. Ho The , bly em Ass al ative to not only r of the Kenya Nation that is heralded by this initi dge to Kenyans. As the Speake wle kno and n atio rm acy. the democratization of info e in governance and democr should take advantage of also to effectively participat but e itag her al leg and al unique politic understand our countrys . inside pages of this edition se developments on the the of one h eac ut abo gs You will find ample readin
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What They Said
The Court is duty bound to give breath to any case which is capable of showing a tint of life in it Lady Justice Rawal in J.O.O suing through J.O (His father as the next friend & Guardian & 2 others vs Dr. Praxades Mandu Okutoyi, Dr. Chimmy Omamo Olende & the Kenya Hospital Association [2011] eKLR) (www.kenyalaw.org) the removal of some portions from the Draft Constitution which would have given the Courts certain powers over the media could not be construed as taking away the Courts power to do justice. In any case, the Constitution amply granted the Courts the power to exercise its primary duty of preserving and safeguarding justice, equity and equality... Lady Justice Rawal in Kwacha Group of Companies & another v Tom Mshindi & 2 OthersCivil Suit 319 of 2005.
Land retains a focal point in Kenyas history. It was the basis upon which the struggle for independence was waged. It has traditionally dictated the pulse of our nationhood. It continues to command a pivotal position in the countrys social, economic, political and legal relations... Justice Omondi quoting from the Ndungu Report, 2005 in Prof. Samson Kagero Ongeri v. Greenbays Holdings and 2 Others Civil suit 30 of 2006
Under the new Constitution, state funded legal representation is a right in certain instances. An accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result. In addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. E. O. Okubasu, P. N. Waki & A. Visram, JJ A in David Njoroge Macharia v Republic [2011] eKLR (www.kenyalaw.org)
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New Era With Mutunga, Baraza Appointment
DEPUTY CHIEF JUSTICE
Judiciary set for changes with new CHIEF JUSTICE AND

(By Michael Murungi)
They assume office at a time of great steer the Judiciary through the vetting opportunities and challenges. As the process - an evaluation of the suitability President and Vice of all sitting judicial President of the officers to continue to newly established serve in their offices 29 Years After S u p re m e C o u r t o f by an independent Kenya, they have a Mutunga v Republic, body established for clean slate in leading that purpose. its Mutunga, in the development Chief Justice of the A l l t h i s i n a n of new constitutional Republic jurisprudence. As the at m o s p h e re o f a leaders of the judicial citizenry that has arm of Government, relished the spectacle they are to collaborate with other of an open and Michael Murungi, Editor/C.E.O institutions in the chain of justice transparent system for recruiting and erhaps nothing is more symbolic in formulating, implementing and appointing persons to constitutional of the break with tradition monitoring policies and measures for offices and is increasingly active in its that has been heralded by the the administration of justice through the enjoyment of the expanded appointment of Dr. Willy Mutunga as Kenyas Chief Justice than the fact that almost three decades ago, he was processed through t h e c r i m i n a l j u s ti c e system on a charge of sedition. His nomination by the Judicial Service Commission and the subsequent approval of his nomination by Parliament classically illustrates one of those instances when a The Hon. Lady Justice N.M. Baraza, Deputy The Hon. Mr. Justice W.M. Mutunga, S.C. criminal record is, well, not Chief Justice & Vice President Chief Justice, President of the Supreme Court & a criminal record. When of the Supreme Court Chairman, National Council for Law Reporting. the offence of sedition was repealed in 1997 the alternative eulogy described it as a The Principles of Judicial Authority - The Constitution of notorious tool for the political repression Kenya, 2010 159. and persecution that was characteristic of the 1980s and 90s. Viewed in this (1) Judicial authority is derived from the people and vests in, and shall be exercised light, Dr. Mutungas criminal record by, the courts and tribunals established by or under this Constitution. would be no more a stain on his moral (2) In exercising judicial authority, the courts and tribunals shall be guided by the and professional standing than was following principles Kapenguria for Mzee Jomo Kenyatta or (a) justice shall be done to all, irrespective of status; even Robben Island for Nelson Mandela.
The first appointee to the new position of Deputy Chief Justice, Ms. Nancy Baraza, is the immediate former Vice Chairperson of the Kenya Law Reform Commission. Kenyas new Chief Justice and Deputy Chief Justice bring together years of experience in legal scholarship, National Council on the Administration democratic space engendered by the l e ga l p ra c ti c e , d e m o c ra c y a n d of Justice established under the Judicial new Constitution. governance advocacy and management. Service Act, 2011. They are also to
Transforming Legal Information into Public Knowledge. Issue15: April-June 2011
(b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.
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Even though opinions may be divided on the conclusions of research conducted on public perceptions of the Judiciary in Kenya, popular media discourse and political co m m e nta r y h a s co nve ye d t h e impression, whether true or false, that public confidence in the Judiciary has, at best, remained on the south side of the gauge. Not surprisingly then, the appointments of Dr. Mutunga and Ms. Baraza have been described as the strong prescription that Kenyans ordered for a Judiciary that embodies the national values, principles of public service and the principles of exercising judicial authority set out in the new Constitution of Kenya. As an employee of a state corporation in the Judiciary, I have formed my opinion, built upon my professional interactions over several years of service, that there has been a deeply embedded power culture in the Judiciary that has engendered rigid unspoken rules of social behavior. Not surprisingly, these rules have come to define not only the Judiciarys engagement with the demand side of Justice but also the interpersonal relationships of its own staff. As much as I have witnessed Judicial Officers, judicial administrators and para-legal staff relating to each other as people with a genuinely shared understanding to create a workflow value chain that ultimately contributes to efficiency and effectiveness in the administration of justice, I have also witnessed others relating to their colleagues, particularly their juniors, only on the basis of the power and authority that they exercise over them. Related to this has been the overt formalism of the judicial system from the robes and silk worn by Judges to the complexity of the administrative procedures that govern the filing of proceedings. While formalities of dress and address have their place in all judicial traditions, many consumers of Justice may find the scarlet robes and the other elements of the working dress of our Judges rather intimidating if not exaggerated. The authority and the heritage of our judicial system may still be expressed with a modernized, Africanized and significantly simplified working dress. Thankfully, the new constitutional guidelines on the exercise of judicial authority (which are complemented by the overriding objective clauses in the procedure statutes and the new Civil Procedure Rules and Court of Appeal Rules) lay a good basis for making the Judiciary and its systems less formal and more approachable. During their swearing in, the Chief Justice and Deputy Chief Justice put aside the rules of convention by dispensing with the ceremonial judicial dress that is modeled on or descended from the ceremonial dress of English Judges. About a fortnight after the appointment, Dr. Mutunga appeared on a morning radio talk show in a lighthearted interview that was interspersed with pop music and listener call-ins. As far as I could recall, this was a first for a sitting Chief Justice. These are, perhaps, glimpses of what may be the leadership style and the emerging organizational culture of the new Judiciary.
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Access To Legacy Public Legal Information In Kenya
Providing Access to Historical legal information in Kenya: A PUBLIC - PRIVATE PARTNERSHIP BETWEEN THE
(By Michael Murungi, Editor/C.E.O) disseminate it. Editor/CEO, National Council for Law Reporting, Kenya (incorporating Kenya Legal Because the various public institutions Information Institute (KenLII)) that create the different species of public legal information in Kenya use different technology platforms, they have hitherto worked more like a cluster of distinct units rather than a chain and quite frequently, documents that are born digital are available only in paper form This paper examines the state of access to the Council, the citizens and other to public legal information in Kenya, downstream users. with a commentary on the underpinning constitutional and legal propositions, This paper gives an account of how and gives an account of how Kenyas the Council has partnered with other National Council for Law Reporting government agencies, the private sector has embarked on what may be Africas and the United Nations Department for largest initiative for online access to Economic and Social Affairs (UNDESA) to historical public legal information and firstly, provide online access to historical the development of an open standard public legal information and secondly, to for the creation, management and work on creating an open, technologydeployment of future releases of such neutral and inter-operable standard information. for creating, sharing and disseminating at the paper presented (A paper presented at the Law via Internet Conference 2011, University of Hong Kong, Hong Kong, June 8-10, 2011) ABSTRACT hile the Constitution of Kenya 2010 establishes the citizens right of access to public information, actual access to public legal information in Kenya is limited by, among other factors, the nature of the platforms on which this information is deployed. The creation, management and deployment of Kenyas public legal information is not predicated on a common standard that would allow easy exchange and aggregation of the information and reduced time-lags in making the information accessible to the public through current and emerging ICT technologies. Kenyas National Council for Law Reporting (the Council) is the official publisher of both the Laws of Kenya and the judicial opinions of Kenyas superior courts as well as other related information. It is therefore the countrys focal point institution in the collection and publication of public legal information. However, the text of the legal information is created by other agencies of government and the Council is only a downstream user of the information, its role being to collect and i. The Laws of Kenya which include: a. Statutes; b. Bills of Parliament; c. Legal Notices; d. Gazette Notices and e. Tr e a ti e s & I n t e r n a ti o n a l Instruments; ii. Judicial Opinions; and iii. The Parliamentary Hansard.
NATIONAL COUNCIL FOR LAW REPORTING AND GOOGLE INC
These distinct species of public legal information are created and distributed by government institutions found in all the three arms of the government: the Legislature, the Judiciary and the Executive. The text of the Laws of Kenya originates from or is first created and typeset in the Department of Legislative Drafting in the office of the Attorney General while the Kenya Gazette originates from the office of current and future information. the Government Printer, a department under the office of the President. Judicial 1. Introduction opinions originate from the Judiciary On August 27, 2010, Kenya promulgated and the Parliamentary Hansard from the a new constitution that ushered in office of the Clerk of the Kenya National a new set of national values, bill of Assembly. rights and system of government. Under the countrys new constitutional The National Council for Law Reporting order, the citizens right of access to is a downstream user of the information public information leapt out of legal created by these institutions. Even obscurity to claim its place among though the other public institutions elite constitutional rights such as the that create this content have their own right to life and freedom of expression. mechanisms for providing citizen access Under section 35, the new constitution to the information, the Council, as the provides that: official publisher of the countrys laws and law reports, is the principal bearer Every citizen has the right of of the legal obligation to disseminate the access to information to the public. (a) information held by the State; and 2. Access to Legal Information: The (b) information held by another metrics of access person and required for the Even though the new Constitution exercise or protection of any establishes the citizens right of access right or fundamental freedom. to public information, actual access to public legal information in Kenya is (3) The State shall publish and limited by a number of factors. These p u b l i c i ze a ny i m p o r t a n t include: information affecting the a. The medium used to store and nation. access the information; b. The effort, time and speed of Public legal information includes: access;
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and this difference is attributed to the of the Government Press in Kenyas medium on which either content is capital, Nairobi. Save for a number of stored and accessed. individuals and institutions who receive their editions by postal mail under 2.2. Effort, time and speed of access a subscription service provided by The accessibility of public records the Government Press, many citizens can also be measured by the amount have to purchase their editions at the of effort that a citizen has to expend departments bookshop in Nairobi The Kenya Gazette is an official in order to access them. The Kenya during the official working hours on publication of the government of Kenya. Gazette has traditionally been accessed weekdays. It contains notices of new legislation, in print copies purchased at the office notices required to be published by law or policy as well as other announcements that are published for general public information. It is published at least once every week, usually on Friday, with occasional releases of special or supplementary editions within the week. It has hitherto been distributed exclusively in print format. On the other hand, the Laws of Kenya are published both in print and online through a relational database created and updated by the Council. c. The architecture or environment in which it is provided; d. The contextual relevance of the information; and e. The ease with which the information may be shared and exchanged. I will illustrate the relevance of each metric above using the print editions of the Kenya Gazette and the online database of the Laws of Kenya as reference points. 2.1. Medium of storage and access Hitherto, the historical records of the Kenya Gazette as well as a portion of more recent records have existed almost exclusively in paper form. This is because a majority of the records were born analogue i.e. created before the advent of desktop computer using analogue word processors and printing equipment such as manual typewriters and stencilbased duplicators. Also, a number of the more recent records that were born digital may no longer be available. Necessarily, these paper records could only be accessed at the physical location where they are preserved, namely, the archives of the Government Printer or the Kenya National Archives. The online database of the Laws of Kenya is published on and accessed through the Internet. This means that multiple persons in separate locations can have simultaneous access to the content using a computer or a wap-enabled mobile communication device. So on the scale of accessibility, the online database of the laws would be more accessible than the paper records of the Gazettes 8
Fig. 1. Litigants read The Daily Cause List, a schedule of cases due to be heard in court, at a notice board placed outside the Milimani Commercial Courts in Nairobi, Kenya.
Comparatively, to the extent that access to an Internet connection would present a lower expenditure of effort than gong to a government office, there should be a differential in effort, time and speed of access between a citizen who accesses the online database of the laws and one who accesses the print edition of the Kenya Gazette. 2.3. Architecture/Technology Platform Related to the medium of storage and access is the architecture or the technology platform on which the public information is served. For the Kenya Gazette, this platform has been the A4-sized, multi-page, magazine-style presentation with a table of contents on the first page and the inside pages featuring the content of the notices arranged chronologically by notice number in two columns.
up for an ideal, or acts to improve the lot of others,or strikes out against injustice,he sends forth a tiny ripple of hope. (Robert F. Kennedy (1925-1968, American Attorney General, Senator)
Each time a man stands
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Fig. 2: The cover and inside pages of the print edition of the Kenya Gazette
On the other hand, the online version of the Laws of Kenya is presented in a text-based relational database. Its accessibility features include an alphabetical index of the laws, a search-by Act number, name or keyword, a full text search as well as a theme-based table of contents.

Fig. 3: A screen grab of the Laws of Kenya database on the National Council for law Reporting website (www.kenyalaw. org) showing various search options.
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While the database my present an improvement in the level and quality of access in comparison to paper records, it carries with it the technical disadvantages of relational databases: i. S t a t u t e s h a v e m u l ti p l e hierarchies and it is difficult to capture and represent hierarchies in a database; ii. The database is proprietary and is not predicated on an open standard; iii. It does not lend itself to easy crawling by internet search engines; and iv. It is rigid with poor scalability and extensibility. 2.4.Contextual relevance: drowning in information but thirsty for knowledge The accessibility of a stockpile of archival information may also be measured by the ease with which a person searching it can retrieve the particular piece of information that is directly and contextually relevant to his or her inquiry. For the Kenya Gazette, an attempt is made to contextualize the content by including a table of contents on the cover page with references to particular pages on which notices on certain subjects may be found and by its editorial style of presenting the notices in the order of their unique numbering and subject matter. However, a reader will need to know the particular number of the relevant notice or the editions number and year of publication in order to access a contextually relevant data set. By comparison, the full-text search feature of the online database of the laws along with the alphabetical and thematic listing of statutes involves less presumed knowledge on the part of the user. For instance, a user who seeks information about the law relating to the registration of persons may query the database with the search term birth registration. The database returns paginated results to relevant laws listed in order of relevance or affinity to the search term. 2.5.Sharing and collaboration: The
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democratization of information and knowledge Public information cannot be fully democratized unless citizens are able to freely and easily share it across ge o g ra p h i ca l a n d te c h n o l o g i ca l boundaries. Thus, the role of government, at its minimum, should be to put out basic and authoritative information to the public without imposing any restrictions on the redistribution of the information. Perhaps this would be the rationale behind the exclusion of the text of national legislation and judicial opinions from the protection of copyright law in many jurisdictions1 . While paper-based representations of information have been an improvement from the smoke signals of the Native Americans and the hieroglyphics of ancient Egypt, they are no longer the fastest and easiest way to share i n f o r m a ti o n . C o m p u t e r - b a s e d representations of information can be duplicated many times over at minimal cost and effort, without a diminution in the quality of the copy and they can be shared almost instantaneously across many users in different parts of the world. By reference to the online database of the laws, scholars and students of comparative international law in different jurisdictions can go into a discourse on the Kenyan legal system as easily as any two contracting parties wishing to submit themselves to the law of Kenya can simultaneously crossreference pertinent provisions of Kenyan legislation. 3. Bridging the actual access divide Perhaps the fullest realization of the citizens access to public legal information in Kenya would be to present that information on a technology platform on which: i. public institutions that create the information collaborate on standardized representations of data and metadata and on document life-cycle management; ii. serves the information to the public on an open, technology-
neutral and interoperable architecture; iii. is intuitive and interactive so that far from providing easy search and retrieval, it can also push to the citizen contextually relevant data elements on demand; and iv. is accessible through a variety of current and emerging access media. Mobile phones have become a symbol of the use of new information and co m m u n i cati o n te c h n o l o g i e s i n the developing world. Due to their portability, their relative affordability, increasing mobile penetration in rural areas and their high functionality, mobile devices have the potential to be the most effective technology for stimulating and satisfying the demand and supply of public information services2 . However, the potential for using mobile devices for the delivery of government-oriented content, particularly contextually relevant, on-demand and subscriberunique information, has not been fully exploited by public agencies in Kenya. The Councils approach towards realizing full and actual citizen access to public legal information is two-pronged: i. Phase I: With regard to the legacy/historical information which exists in paper form, to digitize the content and providing online access to it through an archival database that provides easy search and retrieval; and ii. Phase II: With regard to future information, establish common standards or models for creating public legal documents and build an information system that provides open access to them through existing and emerging access media, including mobile devices. 3.1: Digitizing historical legal information: The Kenya Gazette 1900-2011 and The Parliamentary Hansard, 1960-2011 3.1.1: The Kenya Gazette
See for example Kenyas Copyright Act, 2001, section 1, available at http://www.kenyalaw.org/kenyalaw/klr_app/frames.php
2 Commonwealth Telecommunications Organization: The Economic Impact of Telecommunications on Rural Livelihoods and Poverty Reduction A study of rural communities in India (Gujarat), Mozambique and Tanzania, October 2005
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The Kenya Gazette (formerly known as the Official Gazette of the Colony and Protectorate of East Africa) has been published from the turn of the 20th century, when Britain formally assumed

colonial power over the territory that distributed by the Government Press is now Kenya. Today, even though it exclusively in print form. is prepared using word processing software and forwarded to a digital press in PDF format, it is published and
Title
Range of years 19062008 20092011 2012?19601994
How record created Typewritten/ Stencil Word processed MS Word XML? Typewritten Word processed MS Word XML?
Average page count (A4) 50
No. of Digital editions format
Kenya Gazette Kenya Gazette Kenya Gazette Parliamentary Hansard
Parliamentrary 1994Hansard 2011 Parliamentary Hansard 2012?-
Scanned PDF image 1.5MB 70 180 PDF generated from MS Word Open standard to be agreed and adopted for future editions. 570 164 Scanned 50MB PDF Image 200KB 30 1,588 PDF generated from MS Word Open standard to be agreed and adopted for future editions.
5,000+
Average Memory load of digital edition 4.7MB
Table 1: The range, format and size of the historical editions of the Kenya Gazette and the Parliamentary Hansard. Current editions have a page count of about seventy pages and a memory load of about 1.5 megabytes. The entire collection of the Gazettes is comprised of over 5,000 editions. A typical edition contains statutory, government and private notices ranging from government appointments and nominations; declaration of standards for goods and services; notices of licensed professionals such as advocates, land surveyors, engineers; issue of land title certificates (title deeds); intention to de-gazette forest land or to acquire private land for a public purpose; notices of applications for licenses for mining, broadcasting, etc; probate and succession notices; change of names by individuals; bankruptcy and winding up orders and notices about new Bills and Statutes to be considered by Parliament. Evidently, the information in the collection is of enormous value to Kenyas social, legal and political heritage.
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Fig. 4: From left to right: The cover pages of an old (1907) and a recent (2011) edition of the Kenya Gazette. 3.1.2. The Parliamentary Hansard The Hansard is the record of the proceedings of Parliament. The archival records of the Hansard are preserved by the office of the Clerk of the Kenya National Assembly and the Kenya National Archives. Kenyas first Wesminster-type legislature was the Legislative Council (the LEGCO) of the East African Protectorate which began its deliberations in 1907. The LEGCO was the legislative organ of the British Crown Colony and it was formed after Britain formally assumed colonial rule over most of the territory that is now East Africa. In 1962, a new Constitution replaced the LEGCO with a bi-cameral legislature collectively known as the Kenya National Assembly. It was comprised of the House of Representatives and the Senate. In December 1963, Kenya became an independent state and the following year, it became a republic. The bi-cameral system was eventually replaced with a single house, the National Assembly. Under a new system of government introduced by Kenyas new constitution promulgated in August 2010, Kenya will re-introduce the bi-cameral system with two new houses of Parliament (the National Assembly and the Senate) after the general elections due to be held in 2012.
Fig. 5: From left to right: The cover pages of an old (1960) and a recent (2011) edition of the Hansard 12
Issue15: April-June 2011 Transforming Legal Information into Public Knowledge.
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Up to the mid-90s, the Hansard was created and preserved in paper form. Subsequent editions were wordprocessed and preserved in PDF format. The paper records of the Hansard dating back to 1960 have subsequently been converted into digital records through scanning by the Kenya National Assembly and the National Council for Law Reporting. 3.1.3. Technology platform For a number of years after the historical records were digitized through scanning, the Council searched for a technology platform that would enable easy online access to and cross-referencing inside a stockpile of scanned paper documents. A number of commercial solutions deployed in both the Kenyan and regional markets were explored but they were either overpriced or their functionalities were overstated by the vendors. In 2010, the Council approached the Kenya Information and Communications Technology Board with a view to obtaining funding for a suitable solution through international competitive procurement. The Board is a state corporation established to advise the government on all relevant matters pertaining to the development and promotion of the ICT industries and to promote Kenya as an ICT destination. The Board manages the Transparency Communication Infrastructure Project (TCIP), a government project supported by a grant from the World Bank aimed at improving ICT connectivity, improving the delivery of government services to citizens and increasing the type and quality of information from and to citizens. Two of the guiding principles of the project are to leverage on publicprivate partnerships and to capitalize on multi-channel delivery of services, including via mobile phones. Google Incs Google Books service offers an online platform for indexing and browsing of documents, books and magazines in the cloud. It searches the full text of books that Google has scanned and converted to text using optical character recognition. The initiative has been hailed for its potential to offer unprecedented access to what may become the largest online corpus of human knowledge and promoting the The major benefit for this initiative democratization of knowledge3. is that it has provided to the Kenyan citizen, and indeed to the world, a Through a public-private partnership, treasure trove of public information on Google Inc. offered to gratuitously a scale and with a level of functionality index the scanned historical records and utility that is unprecedented. For a of the Kenya Gazette and the Hansard country where there is a dearth of local and to provide online access to them online content, there is no doubt that through the websites of the Council, the both the online and the offline political, Government Press and on the Google social and historical discourse in Kenya Books platform. The features of the will be quickened by the improved ability online platform include: to access, cross-reference and share this Full text search across all information. editions; Pa g i n ate d s e a rc h re s u l t s If any concerns would be raised about showing the search words in the decision of the Council to source out context; the indexing and hosting of the countrys Keyword search within an informational crown jewels to a private edition; enterprise, then perhaps such concerns Highlighting of search words in may be settled by several statements the edition; of fact: A hyperlinked table of contents; The initiative is aligned with Look-and-feel similar to the one of the guiding principles of original paper records; the government of Kenyas TCIP Quick and easy scrolling through project, namely, to leverage editions; on public-private partnerships Sharing of contextual page in increasing the type and information through emailed quality of online government links; information; Low bandwidth demand. Under the partnership, Google
Table 1: The range, format and size of the historical editions of the Kenya Gazette and the Parliamentary Hansard.
3 See: http://en.wikipedia.org/wiki/Google_Books; Bergquist, Kevin (2006-02-13). Google project promotes public good. The University Record (University of Michigan). Retrieved 2007-04-11; Malte Herwig, Googles Total Library, Spiegel Online International, Mar. 28, 2007.
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Inc. has undertaken to take all commercially reasonable efforts not to display or link Googles online advertisements or sponsored links with the content; The content is public domain information to which Google Inc. and indeed any other corporate or individual citizen would be entitled to have without restrictions on its use and distribution; The National Council for Law Reporting is also exploring opportunities for partnerships with non-commercial online open libraries for the further distribution of the content. In that regard, the Council has formally approached JSTOR, Project Gutenberg and the Internet Archive4 ; and The Council is working with its partner government institutions to develop and implement an open, technology-neutral online platform for publishing future editions of both the Kenya Gazette and the Hansard. 3.1.4. Cost The majority of the costs expended in this initiative were in the nature of professional contractual fees charged for converting the historical records from paper to digital records through document scanning. This cost was 1.2 million Kenya Shillings (aprox. USD 15,000). Discounting the value of the working hours invested by each partner in the initiative and the administrative costs of convening the reference group meetings, there were no further direct costs involved in this initiative, particularly because Googles indexing service was provided gratuitously. 3.2. Developing and implementing a new platform for current and future public legal information. In the second and final phase of the initiative, the Council, as the convenor of a reference group involving the Government Press, the Kenya National Assembly, the Judiciary, the Directorate of e-Government and UNDESA, will lead in the development and implementation o f a n o p e n , i nte ro p e ra b l e a n d technology-neutral platform for current and future public legal information. Already, attention is being directed at Extensible Mark-up Language (XML), a standard technology for Open Document Formats. XMLs design goals emphasize simplicity, generality, and usability over the Internet. It is a textual data format with strong support for a diversity of languages. Although the design of XML focuses on documents, it is widely used for the representation of arbitrary data structures, for example in web services. The major advantages of XML are: i. Accessibility It contains machine-readable contextually relevant information; ii. Simplicity - Information coded in XML is easy to read and understand and it easily lends itself to reading by computers and computing devices; iii. Technologically neutral and inter-operability XML is an open standard that is vendorneutral and is compatible across a variety of technology p l a tfo r m s . B e c a u s e i t i s less prone to technological obsolescence, XML is an ideal format for both short-term and long term archival of public information. iv. Openness and universality - XML is a W3C standard, endorsed by the software industry market leaders. It can embed a multiplicity of data types - from multimedia data (image, sound, video) to active components (Java applets, ActiveX). v. Extensibility - XML is highly flexible extensible and may be easily manipulated for to accommodate exceptional data structures.5 The reference group will be looking at the feasibility of adopting XML as the common standard for all public legal information. If a consensus is reached in that regard, resources will be applied in the development of XML schemas for the various species of public legal information and for the incorporation of the standard in the document management workflows of the relevant institution. 4. Conclusion In conclusion, as a government institution that is the custodian of both historical and current public information, the Council has appreciated that commensurately with advances in access technologies, there is a higher threshold of accessibility that public information has to meet. With increasing Internet and mobile penetration, citizen demand for local online content and in particular government content that is rich in relevance and functionality
4 JSTOR (www.jstor.org) (short for Journal Storage) is a not-for-profit organization with offices in New York, USA, founded in 1995. It provides full-text searches of digitized back issues of several hundred well-known academic journals. In January 2009, it was announced that JSTOR would merge with ITHAKA, a non-profit organization founded in 2003 and dedicated to helping the academic community take full advantage of rapidly advancing information and networking technologies.
Project Gutenberg (www.gutenberg.org) is a volunteer effort to digitize and archive cultural works, to encourage the creation and distribution of eBooks. Founded in 1971 by Michael S. Hart, it is the oldest digital library. Most of the items in its collection are the full texts of public domain books. The project tries to make these as free as possible, in long-lasting, open formats that can be used on almost any computer. The Internet Archive (www.archive.org) is a non-profit digital library based in San Francisco, USA, with the stated mission of universal access to all knowledge. It offers permanent storage and access to collections of digitized materials, including websites, music, moving images, and books. The Internet Archive was founded by Brewster Kahle in 1996. Its a member of the IIPC (International Internet Preservation Consortium). The Archive allows the public to both upload and download digital material to its data cluster, and provides unrestricted online access to that material at no cost. The Archive also oversees one of the worlds largest book digitization projects. It is a member of the American Library Association and is officially recognized by the State of California as a library. Source: http://en.wikipedia.org/
5
http://en.wikipedia.org/wiki/XML
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will need to be satisfied. Recognizing that as a single government agency, the Council would be challenged in conceptualizing the most technologically feasible ways of providing citizen access to that information, our approach is that releasing copies of this information to the public and even to private enterprise, in whatever form the information might be, not only fulfils our constitutional obligation to our citizens but it also helps to accelerate the search for a solution by the creative enterprise of the private sector. In the face of challenges, it is enough if the government merely opens up access to raw, basic and authoritative information and leaves it to the creative enterprise, whether actuated by commercial or more altruistic intentions (such as the Open Source developer community) to develop applications that meet citizen demands for improved access. The better if beyond providing easy access to the information, the government leads in the adoption of an open, neutral and interoperable technology platform that scores highly on all the metrics of access. As much as possible, government agencies should strategically position themselves to fully leverage on publicprivate partnerships that contribute to improved citizen access to public information.
Mr . M. Murungi, the C.E.O/Editor of the National Council for Law Reporting, presents his paper at the Law via Internet Conference at the University of Hong Kong on June 10.2011
Members of the Free Access to Law movement (FALM) during the Law via Internet Conference at the University of HongKong in June 2011.
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Strategic Planning Quality Assurance And Performance Department
Taking Stock of NCLRS PERFORMANCE
JUNE 2010 JUNE 2011

Organisational Performance Index Report prepared by the Kenya Institute of Management in 2010. NCLR ascribed to the OPI process in June 2010 as part of its long term strategic objectives to establish a reference point for departmental activities for quality assurance, knowledge management and continuous. The OPI recommendations were adopted and incorporated by the Team leaders as part of the organisational targets. Some of the recommendations included preparing a Board Charter and Code of Ethics to promote high standards of corporate governance for the NCLR Board. The Report also recommended that the Council to implement best practices for implementing knowledge management systems. To do so the Council had to review and evaluate the existing systems and processes and making recommendations. Six months after crafting the 2011 Action Plan and a year since coming to life of the NCLR Strategic Plan, I can report that the Council has made considerable strides implementing the NCLR Strategic Plan targets and the OPI recommendations. The Council has completed the development of various policy documents notably the Human Resources Manual, revised the NCLR Organizational Structure, Employee Job Titles and Terms of Reference, Draft Board Charter and Code of Ethics, the NCLR Finance Manual, Marketing Manual and the NCLR Corporate Social Responsibility (CSR) and Environmental Policy. These policies are critical for the achievement of the Councils business goals, strategies and objectives. The Council prides itself on its use of new technologies to avail public legal information. In the past the Council implemented a web-based enterprise d o c u m e nt m a n a ge m e nt syste m (NCLR DMS) which introduced a more comprehensive and efficient method of Document Management; Web Content Management; and Collaboration.In
Esther Nyaiyaki Onchana, Snr Assistant Editor/Deputy C.E.O
onitoring and Evaluation forms b. The Schedule of Standards a critical component for the and Guidelines filed with successful implementation the Department by other of the NCLR Strategic Plan 2009 -2012. departments; The Plan identifies that Monitoring and c. The Calendars of the other Evaluation will be done at three levels departments outputs that is: iii. Governance Monitori. Departmental Monitoring ing and Evaluation The and Evaluation AlongBoard is the supreme side the departmental governance organ of the strategic plan, every deCouncil. It provides polipartment has established cy leadership and direcand documented its tions on the affairs of the workflow processes, the Council. The Board will standards and guidelines enter into a performance to be to be applied in the contract with the Governworkflow, and a calenment of Kenya. The broad dar of the departments strategies and objectives outputs. This forms the of the Council will be monitoring and evalumapped into the perforation framework at the mance contract translatdepartmental level. ing them into objective, measurable results that ii. Organizational Monitorwill form the indices for ing and Evaluation One a Monitoring and Evaluof the functions of the ation Framework at the Strategy, Quality Control Board level. and Performance Evaluation Department is to Since formally launching the Strategic continuously monitor and Plan in June 2010 the Council has evaluate the implemenconducted quarterly performance tation of the Councils reviews to take stock of departmental strategic plan. Under this and organisational performance. At function, the Department the beginning of this year the Team will use three monitoring leaders met at Methodist Guest House and evaluation tools: in Nairobi, to map out the Action a. The Implementation Matrix of Plan for 2011. The 2011 NCLR Action this Strategic Plan; Plan was informed by the Councils
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Strategic Planning Quality Assurance And Performance Department

January 2011 the Council released a new version of its website that features more interactivity, easier and even more relevant searches, a friendlier and easier updates management interface, blogs, news management modules and forums. The key departments that are tasked with the mandate of publishing the Kenya Law Reports and the revising and consolidating Laws of Kenya have achieved remarkable results in preparing various publications both in electronic and print format. The Editorial Department has completed preparing eleven volumes of the Kenya Law Reports volumes including 2008, 2009 and 2010 editions. The Laws of Kenya Department has gone to press with the following thematic areas; Land Laws, Commercial Laws, Public Finance Laws, the Grey Book and Family related Laws. The Research and Development Department launched the online archive of the Kenya Gazette legacy issues dating back to 1906. Elsewhere in this Bench Bulletin Edition, the reader will have the opportunity to review the specific departments reports for the period March to June 2011. More recently on May 3 2011 the NCLR Heads of Department convened at Lenana Conference Centre in Nairobi to discuss the progress in implementing the departmental and organisational plans for the period January March 2011. To crystallise the findings arrived at during the retreat, the team leaders attended a two day training session on Leadership, Management and Staff Motivation, a program that was conducted by the Kenya Institute of Management consulting team. The training was tailor made to enhance the capacity of the Councils senior and middle Managers in the areas of governance, management, strategic planning, leadership, performance management, customer relationship management and staff motivation. The first day of training was facilitated by Mr. Sultan Amri Nassor Sultan, a Fellow at the Kenya Institute of Management who commenced the day by emphasising the significance of developing communication and people skills. He also focused on the role of enhancing managers competencies in todays changing business environment. The second day of training was facilitated by Mr. Nyaloti who brought to bear his expertise on motivating employees. The session targeted managers with a view of impacting them with skills that would enable them to inspire their employees and reawaken employee zest and gain commitment for improved performance.
(NCLR members of staff at Leadership, Management and Staff Motivation Training at Lenana Conference Centre Back Row from left Mr. Nicholas Okemwa, Ms. Rachel Mwaura, Mr. Pascal Othieno, Mr. Michael Mayaka, Mr. Cornelius Lupao, Mrs. Siphirah Gatimu, Ms. Petronella Mukaindo, Ms. Esther Nyaiyaki, Ms. Monica Achode, Ms. Mutindi Musuva and Mr. Martin Mbui. Front Row from left Mr. Michael Murungi Editor/CEO, Mr. Sultan Amri Nassor Sultan Fellow - Kenya Institute of Management, Mrs Ann Asugah and Ms. Linda Awuor
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Editorial Department
Case search TUTORIAL

change the text on our home page. With the new website of course came your comments and compliments. One of the most frequently asked question is how to look for cases on the new website. In response to this we have decided to redo our case search quick guide on the case search page. This guide now reads as below. We hope it will enable you By Monica Achode navigate our website more By Monica Achode,Snr. Law Reporter, easily and to access the Team leader ,Editorial Department. cases you are looking for in a less stressful manner. f youve visited the NCLR website a few times over these last few Case Search Quick Guide months, youve probably already noticed that weve given our website 1) General Search: a fresh look. Weve revamped our site This general search has been with our customers in mind. This was integrated with the Google done for several reasons none the least custom search. The Google of which is that it was about time. We search is simple, just type in felt it was in keeping with the Councils whatever you are looking for, dynamic culture to make sure that case name, number, judges the website reflects who we are. Over name, cause list, date etc, the last year the Council has evolved click the search button to significantly, in terms of our message the right of the tab or hit the (Transforming Legal Information into enter key on your key board Public Knowledge) and in terms of the and Google will search the range of new products offered (the KLR website for content that is Monthly, the Laws of Kenya and the new relevant to your search. look Bench Bulletin). Since our website is To make your search more the first extended contact that most of useful keep your search our prospective customers have with us criteria simple. The search we felt it necessary that it communicate engine is not human, it is a our core messages. program that matches the words you give to pages on Added to this is a new content the website so use the words management system (CMS) which is that are most likely to appear. about to be deployed for use by the The goal here is to provide department. This CMS has been designed you with results that are clear to simplify the publication of web content and easy to read. specifically the judgments to our web Re m e m b e r e ve r y wo rd sites and mobile devices. In particular matters. Generally, all the it allows the members of the Editorial words you put in the query Department, who are the content will be used. The search is case creators to create, submit and manage insensitive and punctuations contents without requiring technical are generally ignored but knowledge of any Web Programming ensure all your search terms Languages or Markup Languages such are spelt correctly. as HTML or the uploading of files. With Searching in general mode just a few clicks the reporters can update is suited for finding any or judgments to the website, articles, all cases that contain a given upload and update judicial profiles, or word, set of words or phrase used. 2) Specific Search Searching in the specific search mode is suited for finding a particular case when you have details that describe the case at hand e.g. (names of parties, case number, and date of delivery) To find a case according to its details (names of parties, case number, and date of delivery) one need not fill in all the fields. You may use any one or more search criteria; search using whatever information you have. Using only one or two search criteria will yield a high number of results using more search criteria significantly reduces the number of results yielded. When searching for a case using the names of parties (specific search mode) you need not fill in all the names. Any or two names of either party will suffice. Similarly, if you are searching for a case by case number, do not type in the entire length of the case number (e.g. instead of entering Miscellaneous criminal Application No. 94 of 2004, you may simply enter 94 of 2004) Ensure all your search terms are spelt correctly. Try to use alternative spellings of names, words or acronyms appearing in your search terms. 3) Boolean Search This is an advanced search that allows one to search the database for the keywords that best describe your area of querry. The power of Boolean searching is based on combinations of keywords with connecting terms called operators. The three basic operators are the terms AND, OR, and NOT. The operator AND narrows a
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search by combining terms and retrieves every document that contains both of the words specified. For example to locate cases on advocate taxation using this search the engine will search the database and retrieve every record containing both of the words advocate and taxation and only the records containing both words will be retrieved. The OR operator broadens or widens a search to include documents containing either keyword. The OR search is particularly useful when there are several common 1) General Search synonyms for a case or variant spellings of a name. For example to locate cases involving murder the engine will search the database for all cases containing murder and all cases containing manslaughter and retrieve them all. The OR searches often produce large numbers of documents. Combining search terms with the NOT operator narrows a search by excluding unwanted terms. To find cases on children but not infants the engine will search for cases containing the word children and exclude all cases with the word infant. Boolean search terms may be combined in various ways to carefully refine searches.
Examples: Murder OR manslaughter AND sentence Advocate AND taxation NOT KRA Children NOT infants AND adoption
2) Specific Search
3) Boolean Search
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Information Computer Technology (Ict) Department
New revamped NCLR WEBSITE

Internal PROJECTS displayed in the back end in a page-tree format that duplicates the structural layout of the site. File management functions are displayed in a directory-tree format that duplicates the directory structure of the installation. This makes finding pages and files easy for content editors. Spell checker is built into the Rich Text Editor Front end or Back end Editing: Users can choose to edit in By Michael Mayaka, Systems developer, Team leader , I.T. Department. either the front end (directly on the web page) or the website back end. he NCLR, in collaboration with Google, has continously endevoured Preview Content: Hidden, time- or access to revamp the new website to restricted content can be previewed mainly improve the following aspects: online before publishing. database. Those can be rolled back to previous changes with by clicking the history brush. Content Approval: Simple workflow life cycle can be set up so that the work of an editor must be approved by a reviewer. User Privileges: An administrator can grant as little or as much control to content editors or groups as needed. They can remove buttons and extensions that are not needed for different editors.
Standards Compliance and Single Source Publishing

Accessibility/WAI Compliant: Using an open source framework, there is a project team dedicated to making all aspects of the site meet international accessibility standards, including the core and extensions. Content Syndication: It is possible to syndicate to external audiences via exporting or importing RSS feeds
Search Engine Ranking Apart from enabling users to quickly search for content through google, Yahoo! and other search engines, the new website achitecture enables more relevant, accurate and organised search results. The new architecture exposes more content to web crawlers using Search Engine Friendly URLs. Case Search It is now possible to do full-text search and complex Boolean searches to find cases online. With this new functionality, one can view the snippet of the case and download if it is the right one. General Search The new website (Content Management System) allows global search of all content at www.kenyalaw.org. This is owed to the technical framework that has been employed.
Minimal Training Required: Editing content in the new CMS is as easy as editing in a Word Processor. Menu links are automatically generated as an editor adds pages and most content elements feature wizards for further ease-of-use.
Other Compliance Features: FTP Support, UTF-8 Support, WML Support, WAP Support, Plain Text Support, Wizards: Content wizards exist for forms, Printer-friendly Support, PDF support, tables and image manipulation. XHTML Support, XML Support, Multilanguage Support, Task Center: Ability to create and manage projects, email project members, edit Website Performance recent pages, view/manage inbox, insert notes onto webpages and create special Advanced Caching: Navigation, content actions for downloading CSVs of parts object or template caching; Caches can of the database or setting up backend be cleared in the backend manually or users quickly. pages can be set on individual schedules. Internal Search Engine: Editors can perform a search for a keyphrase within a section of the site. The results will return all the content elements with the phrase included. These can be edited at the same time. An extension performs a similar function, but allows the string to be replaced. Page Caching: The wesbite has page content caching Static Content Export: It is possible to publish pages to physical HTML files
Ease of Use for Content Editors

Rich Text Editor (RTE): Multiple RTEs with Microsoft Word-like icons, support for Win/IE, Mac/Safari and Mozilla Firefox on all platforms; WYSIWYG editors are highly configurable -- buttons and CSS styles can be added and removed Intuitive UI: The site is organized and
Integrated Service Desk

The NCLR has now fully deployed and integrated all internal/external service desk functions under one ITIL-Compliant uniform platform. The Service Desk has all departments integrated seamlessly to allow ease of ticket handling. This platform has three interfaces.
Security Features
Audit Trail: Administrators have access to one log in the backend or individual logs on each page where they can view changes that have been made to the
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i. Customer Interface. This interface allows both internal/external registered users to raise queries. It also has an electronic suggestion box for anonymous posting. ii. Agent Interface: This allows internal users to login solutions for any raised tickets. iii. FAQ Interface: This supports administration and display of categorised and searchable FAQs. on (e. g. HTTPBasicAuth or LogonTickets) Multi language support Webinterface with multi attachment support Easy and logical to use Custom queue view and queue view of all requests Ticket locking, Ticket replies (standard responses), Ticket autoresponders per queue Ticket history, evolution of ticket status and actions taken on ticket and ability to add notes (with different note types) to a ticket Tickets can be bounced or forwarded to other email addresses or to a different queue. Ticket priority, Ticket time accounting, Ticket print view (PDF) Ticket pending feature, Ticket responsible feature, Ticket bulk feature Generic agent to do automatically actions on tickets (based on scheduled jobs) Content fulltext search, Ticket ACL support, Ticket workflow feature
Main System Features:

Web-Interface: Agent web interface for viewing and working on all customer requests Admin web interface for changing system con Customer web interface for viewing and sending infos to the agents Webinterface with Single sign
Email-Interface: MIME support (attachments) PGP support SMIME support Dispatching of incoming email via email addess or x-header Autoresponders for customers by incoming emails (per queue) Auto convert of incoming html only emails to text/plain (to get it easier searchable) Email-notification to the agent by new tickets, follow ups or lock timeouts Follow up check based on references and in-reply-to header Ticket:
External PROJECTS In line with NCLRs ICT Department Vision of being an exemplar in providing advanced, innovative technology solutions to support the ongoing mission and goals of the National Council for Law Reporting, the following projects have been rolled out a presentation of the system to all the Judges of the Seychelles Supreme Court. This presentation covered aspects of: E l e c t ro n i c L e ga l C o nte nt Management and challenges involved Electronic Case Management Systems introduction Seychelles Judiciary Information System Case Study The Eldoret Chief Magistrate Case Management (JINFOSYS) System As reported in our last Bench Bulletin, Actual system Seychelles JINFOSYS Michael Mayaka of NCLR had carried out a Systems Analysis which was later conceptualised in a System Design that A tour of the System was presented and was deployed as a prototype for the clarifications made on queries raised by the Judges Present. The Chief Justice of Seychelles Supreme Court. Seychelles shared the following message The next phase in the project (17th of gratitude: 27th March, 2011) involved further customisation of the system stemming I want first of all to express my gratitude from user requirements. Instrumental to you for allowing us to share your in this process was the Chief Justice case management software that is of Seychelles, His Lordship Fredrick now referred to as JINFOSYS, Judiciary Egonda-Ntende. This phase also involved Information Systems Seychelles, that has been successfully installed by Mr. further training of the registry clerks. Mike Mayaka. We have been working It is during this visit that Michael made 24
with Mr. Mayaka to customise to our needs and he has gone to a considerable extent in doing so that will allow us now to start making use of the system. He has trained our staff on it, leaving us with the obligation to determine the next steps forward with regard to data entry of both legacy records and current records which we shall do in due course. It is clear that the programme is fairly modern and has the ability to be developed further to incorporate a number of other facets of a judiciary i n f o r m a ti o n s y s t e m i n c l u d i n g maintaining a record of fees paid on each file, maintaining an electronic docket for each file with all records of pleadings, trial, rulings and decisions in one place, and expandable to electronic filing. We would like to work with you in moving into all these areas. The time Mr Mayaka has been with has been short but well spent while at the same time for your organisation it must be quite considerable given his absence
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This project will eventually go a long way is opensource and non-proprietary. The especially in Africa. in availing public legal information to all. vision is to have a common software Being a collaborative effort, the project platform for Legal Case Management
New revamped
NCLR WEBSITE
deserve redress for injury to personal property . . . Promote the public good through concerted efforts to secure safe products, a safe work place, a clean environment, and quality health care . . . Further the rule of law in a civil justice system, and protect the rights of the accused . . . Advance the common law and the finest traditions of jurisprudence . . . and uphold the honor and dignity of the legal profession and the highest standards of ethical conduct and integrity.
Mission Statement - Association of Trial Lawyers of America
Seek justice for all . . . Champion the cause of those who
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Making local public sector information
EASIER TO ACCESS
where to put them. Your site will not become a hodgepodge of pages without any relation to one another. 2. No page will be left unvisited. The search engine spiders will be able to visit all the pages in your website if you have a Sitemap. Your pages will then be included in the search engines databases, increasing your ranking. 3. Visitors will have an easier time to navigate your site. One factor why visitors stay on a site is the ease to navigate through the site. With a Sitemap, visitors will have an idea on what the contents are in your site. They can also easily access those pages within your site. Without a Sitemap, your visitors may even leave
By Lameck Oyare, Web developer & Andago Martin, Asst Web developer.
ear in, year out, thousands of documents are churned out by various government ministries, parastatals and other public sectors in forms of reports, concept papers, studies, judgments, among others. Information of this nature is supposed to be readily accessible to members of the society. Many people use search engines like Google to find public information that is available on the World Wide Web. However, public information is not always easily accessible by search engines. In other words, some webpages may not be discoverable by Googles normal process of following links; hence well find it hard to make them available to Googles users in search results. Herein lies the problem: Of what use is it to have information on your website if it is not easily accessible via search engines? A Webmaster (the person in charge of running a website) can solve this problem by adopting a Sitemap protocol. So, what is a Sitemap? Strictly speaking, it is a graphical representation of the structure of your website. It shows how the pages are linked to one another and lists all the documents and files found in a website. These links are typically organized in a hierarchical manner, thus improving readability.
well. These robots, or spiders, crawl the Internet, getting data on web pages for a specific keyword. They crawl by following links and giving importance to pages that are linked to. Hence, a good Sitemap is also used for search engine optimization.
A screen shot of Google Webmaster Tools used to manage the sitemap.
your site, going back to the search engine pages, to look for Creating a Sitemap takes time and effort, information that may be in your so why have one? website. The following lists some of the benefits 4. A Sitemap may encourage more for creating a Sitemap for your website. traffic. 1. You can use a Sitemap as a As your website grows, you planning tool for web design. must update your Sitemap. Even if you have a website with This way, visitors will know that few pages, it is good to have a content is being added to your Sitemaps not only benefit your human structure of your website. This website, encouraging them to visitors but if done correctly, they will way, if you are to add more return. This is also true if you help your search engine ranking as pages later on, you will know are selling products or offering
Benefits of a Sitemap
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services. Potential buyers will immediately know your latest products or services by visiting your Sitemap. 5. There is potential advertising value when using a Sitemap. With a Sitemap, potential advertisers will find it easy to best position themselves in the different pages of your website successfully completed the project. The result: Over 22,000 pages (and more coming up) of Kenyan court cases, both High Court and Court of Appeal are The National Council for Law Reporting now fully available to users and search partnered with Google Inc. to create engines with the adoption of the open a Sitemap for their website: www. Sitemap protocol. kenyalaw.org. Operating on dedicated video conference training sessions for two months, the team involved where they can advertise. This will mean additional income for you.
National Council for Law Reporting

SITEMAP
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Laws Of Kenya Department
Legislative drafting training for THE LAWS OF KENYA
DEPARTMENT HELD ON THE ON 15TH AND 16TH MARCH 2011

reported by a lawyer revealed use of unnecessary legal jargon which ought to be avoided when drafting legislation. Other notable points when drafting legislation are to take into account the end user of the law-the end user being the public, a legislative sentence should be simple and contain only one idea. Legislation should use gender-neutral language and have internal consistency to ensure that similar terms carry the same meaning within the particular legislation and across any referential legislation.
By Ann Asugah, Team leader, Laws of kenya Department & Lucy Wamatu Laws of Kenya Department Copy reader.
he Laws of Kenya Department is one of the Departments in the National Council for Law Reporting with the mandate of updating and revising the Laws of Kenya. The vision and mission of the Department is to establish the National Council for Law Reporting as a centre of excellence in the revision, updating and consolidation of national legislation and to ensure the continuous revision and updating of all the laws of Kenya and to provide their affordable, efficient and timely access respectively. In preparing its strategic plan, the Department recognised the knowledge gap in legislative drafting and listed training in the same as one of the activities. In this regard, the National Council for Law Reporting sought the expertise of one of the renowned legislative drafters, Johnson Okoth Okello, Director of Legislative Drafting at the Kenya Law Reform Commission to facilitate the training on 15th and 16th March 2011 at the Kenya Comfort Hotel Nairobi. Members of staff from other departments in Council such as Information Technology, Research and Development also attended the training. To ensure that the training had relevance to members of the department, the Head of Department listed the expectations of the members before the training began. Some of the expectations were to learn more about legislative drafting, inconsistencies in legislative drafting, transitional provisions in subsidiary 28
legislation and understand the nexus When does drafting begin? between policy development and The second session kicked off on 16th March 2011 where the team was taken legislation through the structure of a Bill. Key The training sessions were in the form of facts to note were that drafting begins interactive discussions and highlighted with receiving of instructions from the the various facets of Legislative drafting Ministry or Department of Government, and especially the requirement that a which would like to formulate legislation, drafter be aware of the policy guideline ideally from an existing policy. In ideal behind every legislation. Below is a circumstances, every Bill should be highlight of the key issues that emerged preceded by a policy but in Kenya this has not been the case. The facilitator from the training. gave examples of the Sexual offences Act 2006, which was drafted in the absence Definition of Legislative drafting The facilitator, Mr. Okello opened the of a policy and has undergone several training by going through introduction amendments to accommodate emerging to legislative drafting where he began by issues. Also the Alcoholic Drinks Control defining legislative drafting as a process Act 2010, which has raised furor over its where policy statements are converted implementation implications with many into law that stipulate duties, rights, business persons citing huge business powers, privileges and obligations. He losses. then proceeded to outline the role of legislation where he stated that law is Structure of a Bill supposed to promote good governance The facilitator pointed out four main parts contained in a Bill, namely: and stimulate development. preliminary principal, miscellaneous, Drafting rules; Simple clear and and Final provisions. These were further precise language: Exodus 7: 20-21 broken down; preliminary provisions There were a number of key notable contains the arrangement of sections, points outlined that ought to be in a long title, preamble- especially in civil legislative drafters mind when it comes jurisdictions that contains aspirations to drafting legislation. For instance of the people, enacting formula- which legislation should be drafted in simple, acknowledges the authority that is clear and precise language. To drive this legislating etc. point home, Mr. Okello used an excerpt from the bible i.e. Exodus 7:20-21; where Further, under preliminary provisions the language used is simple, clear and there is also commencement (which gives precise but a contrast to the same being the date when it comes into operation and where it is not stated the general
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rule is that it comes into operation 14 days from the date of assent), short title which describes the name of the Act, interpretation provisions which define terms and phraseology used in the Act and application (where certain statutes may apply only in certain areas or to certain categories of persons). Principal provisions are divided into substantive provisions and administrative provisions whereas miscellaneous provisions and supplementary provisions include financial matters, offences, power to make regulations, search, seizure and arrest. Final provisions include savings (save what has happened under the old law), transitional provisions, repeals and consequential amendments. used in a disjunctive sense i.e. to give i n n ew m ateri a l w i t h o u t alternatives. In drafting therefore, the necessarily having removed any two should not be used together. In material from the existing law cases where the law imposes a duty, removing, repealing or omitting. words such as must and shall are invoked d) Revoke is used when referring to communicate a mandatory process. to subsidiary legislation such Where the law is to impose discretion, as gazette notice, regulations, words such as may are used. etc. Regulations are usually revoked in their entirety and the term delete is used if only AMENDMENTS some of the regulations are The participants had expressed strong being removed. expectation of going through the various terminologies related to amendments. The facilitator elaborated on the subject The participants stated that they training and stated that an amendment either had met most of their expectations but repeals or alters/ substitutes existing that it should have been allocated more provisions in legislation or it incorporates time. It was indeed a fruitful training new provisions in the text. In particular, he for the participants and has equipped noted that before drafting amendments, the law revision team with necessary one had to understand; the purpose of skills and knowledge to carry out statute that amendment, the substance of the revision and consolidation. proposed changes and the effect of the amendment for all other existing laws, i.e. consequential amendments. This sometimes leads to repeal by implication yet as a general rule, the repeal of a law ought to be through an express Legislative literature, provision. As a general rule, the language which governs our in the amending Act must reflect the language in the principal Act. activities in almost all
Legislative sentences
This was one of the highlights of the training. Some of the attributes of the legislative sentence expounded were that the sentence should be short, preferably between 12-15 words and should have one central message, should use the narrative style rule which states that if a sentence refers to a person and thing, the person becomes the subject not the thing), use of active rather than passive voice, use present tense, etc. Participants with the help of the facilitator carried out an exercise in drafting legislative sentences to actualize what they had learnt.
Choice of words
The facilitator cautioned on the choice of words when it comes to drafting. In particular, he noted that drafting ought to be in simple and familiar words, and use of Latin and French expressions ought to be avoided Eg Mutatis mutandis. Further, some terminologies only served to confuse the readers more Some common expressions in and should not be used; aforesaid, above amendments; mentioned, aforementioned, and or, a) Repeal is the complete removal foregoing, forthwith, hereafter hereby, of a stand-alone provision. One hereinbefore, hereinafter, hitherto, can repeal an Act, part, subpursuant to, whatsoever, wheresoevers, part, schedule, and section. whomsoever, jointly and severally, aid This therefore means that if one and abet, etc wants to remove a sentence, you dont talk of repeal but Disjunctive and conjunctive words rather delete or omit e.g. The facilitator took the participants paragraph, sub-paragraph. through the use of disjunctive and b) Substitute refers to bringing in conjunctive words in drafting. He something new to replace what particularly focused on the word you have repealed, deleted or and which should only be used in a omitted. conjunctive sense while or should be c) Insert or add refers to bringing
Amendments can be textual amendment or referential. Textual also known as direct amendment, is where the amendment expressly alters or changes the text of the existing law either by repeal, insertion, addition, incorporation or replacement. Referential amendments also known as indirect amendment gives a reference to an existing law and gives a narrative description or statement in the amending law which simply declares the effect of the amendment.
spheres, has a considerable control over our lives and puts every citizen on the alert to obey the law. Ignorance of law is no excuse. The State must, therefore, make the meaning of legislation easily legible especially because legal literacy is limited in our people. The paramount social value of juristic lucidity and legislative clarity springs from the need to avoid the litigative potential and interpretive ambiguity of ill-drafted bills.
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Mr Okello during on e of the training sessions

rs Membe keenly
ning he trai t p u follow
sessio
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t bers of departmen em m h it w se u pa Mr Okello (left) after the training
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Statute revision and consolidation: ALLOCATION OF
CHAPTER NUMBERS TO VARIOUS ACTS OF PARLIAMENT

As legislation quickly goes through the various stages from its drafting to debate and subsequent amendments to the final print, many times the law is visited with several errors ranging from simple typographical errors to complex errors affecting the substance of the law. Until we devise an alternative mode of referencing our Acts, the chapter numbers (usually referred to as Cap. Numbers) remain an integral part in identifying legislation.
By Ms Petronella Mukaindo Asst. Law Reporter
aw is not static and will continuously and constantly develop in response to changing societal needs.
The Revision of the Laws Act, Chapter 1 of the Laws of Kenya is the core legislative framework governing law revision in Kenya. The Act empowers the Attorney General to carry out certain actions in relation to the updating and revision of the Laws of Kenya. It also offers guidelines on how the revision of the laws is to be done and stipulates what powers the Attorney General has in relation to the mandate of law revision. Furthering defines the content of laws of Kenya, legislation that may be omitted from the Laws of Kenya and the method of compiling the laws.
Law Revision Defined

Blacks Law Dictionary (8th edition) defines revision as A re-examination or careful review for correction or improvement; while the Thesaurus online dictionary defines it as the act of revising or altering (involving reconsideration and modification); and a revision as [a] change, review, amendment, modification, alteration, or re-examination.
Law Revision Vis-a-Vis Law making

Power of law revision is not synonymous with legislative making authority. Whereas power to make (or amend substance of the law) is primarily vested in the legislature, the power to revise laws is vested in the Attorney General:
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Under section 8(1) (b) of the Revision of the Laws Act, the Attorney General has power to allocate chapter numbers to Breadth of Law Revision Under section 8 of the Act, the Attorney new Acts of parliament and even arrange General has wide powers to clean up the chapter numbers in certain groups. statute law by altering the form and The relevant paragraph provides thus: applying other methods necessary for purposes of perfecting the Laws of 8. (1) In the preparation of the annual Kenya. He has powers for instance, to supplement to the Laws of Kenya alter the form or arrangement of any the Attorney-General shall have the section of law, to renumber the sections following powers of law, to divide any law into Parts (b) to allocate Chapter numbers to or other divisions, to supply or alter newly included Acts and subsidiary marginal notes and tables showing the legislation and generally to arrange arrangement of sections, to shorten or simplify the phraseology of law, to add the Acts by Chapters in such sequence short title or citation to any law which and groups and generally in such order requires it, to correct grammatical and and manner as the Attorney-General typographical mistakes and to correct thinks proper, and to leave unallocated between groups or in groups such the punctuation in law amongst other Chapter numbers as he considers may powers. be required for Acts to be enacted in the future. Under Section 13 of the Act, the Attorney General is empowered to rectify any clerical or printing errors appearing in The Attorney General has in the recent the Laws of Kenya. The section provides past allocated new chapter numbers to several Acts of parliament. The as follows: trend being that newly enacted Acts of The Attorney-General may, by order parliament have assumed the chapter numbers belonging to the respective in the Gazette, rectify any clerical repealed Acts. or printing error appearing in the Laws of Kenya, or rectify in a manner Furthermore, Acts addressing same not inconsistent with the powers of revision conferred by this Act any other or similar subject matter have been categorized in the same grouping. For error so appearing. instance, a majority of Acts governing However, under section 8 (4) of the Act, the various Universities share similar the Attorney-General cannot make any chapter number, being put apart only alteration or amendment which affects by a different letter of alphabet so that we have Chapter 210(University of the substance of any law. Nairobi), Chapter 210A(Moi University) up to Chapter 210F (Masinde Muliro Allocation of Chapter Numbers Apart from names of Act, chapter University of Science and Technology numbers or Act numbers in case of new Act) . legislation have formed an important part in the legislative nomenclature.
The power of law revision was in year 2009 delegated to the National Council for Law Reporting through Legal Notice number 29 of 2009.
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The table below reflects some of the various Acts that have been allocated new chapter numbers in the recent past:
NAME OF ACT
OLD NUMBER
NEW CHAPTER NUMBER
1. 2.
Accountants Act Anti-Corruption and Economic Crimes Act Arbitration
15 of 2008 3 of 2003
531 65
3.
4 of 1995
49
4.
Auctioneers Act
5 of 1995
526
5.
Childrens Act
8 of 2001
141
6.
Coffee Act
9 of 2001
333
7.
Constitution of Kenya Review Act
9 of 2008
3A
8.
Copyright Act
12 of 2001
130
9.
Electric Power Act (now Repealed)
11 of 1997
314
10.
Employment Act
11 of 2007
226
11.
Fiscal Management Act
5 of 2009
412D
12.
Forest Act
7 of 2005
385
13.
Industrial Property Act
3 of 2001
509
14.
Investment Promotion Act
6 of 2004
485B
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NAME OF ACT
OLD NUMBER
NEW CHAPTER NUMBER
15. 16.
Jomo Kenyatta University of Agriculture and Technology Act Kenya Information and Communications Act Kenya Roads Boards Act
8 of 1994 2 of 1998
210E 411A
17.
7 of 1999
408
18.
Labour Relations Act
14 of 2007
234
19.
Land Disputes Tribunals Act
18 of 1990
303A
20.
Maseno University Act
7 of 2000
210D
21.
Masinde Muliro University of Science and Technology Act
18 of 2006
210F
22.
Media Act
3 of 2007
411B
23.
Narcotic Drugs and Psychotropic Substances (Control) Act
4 of 1994
245
24.
National Museums and Heritage Act Occupational Safety and Health Act Parliamentary Service Commission Act Political Parties Act
6 of 2006
216
25.
15 of 2007
514
26.
10 of 2000
185A
27.
10 of 2007
7A
28.
Postal Corporation Act
3 of 1998
411
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NAME OF ACT
OLD NUMBER
NEW CHAPTER NUMBER
29. 30.
Privatization Act Public Audit Act
5 of 2004 12 of 2003
485C 412A
31.
Public Officer Ethics Act
4 of 2003
183
32.
Public Procurement and Disposal Act Retirement Benefits Act
3 of 2005
412C
33.
3 of 1997
197
34.
Sacco Societies Act
14 of 2008
490A
35.
Sugar Act
10 of 2001
342
36.
Water Act
8 of 2002
372
37.
Witness Protection Act
16 of 2006
79
38.
Work Injury Benefits Act
13 of 2007
236
*The new chapter numbers have been allocated pending their publication in the Annual Supplement.
That old law about an eye for an eye leaves everybody blind. The time is always right to do the right thing.
Martin Luther King, Jr.
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Synopsis of BILLS AND ACTS OF PARLIAMENT

(By Ms Petronella Mukaindo Asst. Law Reporter) 1 . I n d e p e n d e n t E l e c t o ra l a n d C o m m i s s i o n s f u n c ti o n s , t h e appointment and terms of service of its Boundaries Commission Bill, 2011 members and staff and the creation of rticle 88 of the Constitution internal structures for the performance establishes the Independent of its functions. Electoral and Boundaries Commission (IEBC) whose mandate is Part III of the Bill provides for the to conduct and supervise referenda and establishment and administration of the elections to any elective body or office Independent Electoral and Boundaries established by the Constitution. Commission Fund and other financial procedures of the Commission. The Commission has constitutional mandate to among other things ensure 2. Unclaimed Financial Assets Bill, regular revision of the voters registers 2011 and continuous registration of voters, The large amounts of unclaimed assetsthe delimitation of constituencies and liquid or otherwise held by financial and wards, settlement of electoral disputes, other institution has necessitated this voter education and registration of legislative framework to particularly deal candidates for election. with such unclaimed assets. governs disposal of court records. Before destroying any record, book or paper, the court or officer desiring to destroy is required to give at least three months notice in the Gazette of his intention to apply to the Chief Justice for leave to destroy the material, together with a summarized description in the notice of the record, book or paper in question. Under rule 6 of the Records Disposal (Courts) Rules, all records, books and papers to be destroyed are to be burnt in the presence of a magistrate or a deputy registrar of the High Court, or any other officer authorized by either a magistrate or a deputy registrar who is to make appropriate entries in appropriate court register.
Under Article 89 of the Constitution, the IEBC is tasked with reviewing the names and boundaries of constituencies at intervals of between eight and twelve years while the reviewing of the names and boundaries of wards is to be done periodically. The Article goes further to detail the criteria to be used in determining the electoral boundaries. The object of the Bill is to provide for the operations, powers and functions of the Commission to supervise elections and referenda at County and National government levels, to provide a legal framework for the identification and appointment of the chairperson, members and the secretary of the Commission, provide for the manner of the exercise of the powers and functions of the Commission, establish mechanisms for the Commission to facilitate consultations with interested parties and establish mechanisms for the Commission to address the issues arising out of the first review. Clause 5 gives the composition of the Commission. The Commission is to consist of a chairperson and eight other members who are to be appointed in accordance with the First Schedule for a non-renewable term of six years.
The First Schedule to the Rules provides The Unclaimed Financial Assets Bill a description of records that may be provides for the reporting and dealing destroyed and the period after which the same may be destroyed. with unclaimed financial assets. The only present legislation that comes close to addressing issues of disposal of assets is the Disposal of Uncollected Goods Act (Chapter 38) whose application is limited to goods in the possession or under the control of a custodian under certain types of contracts enumerated under section 3 of the Act. The Act requires that the custodian of the goods gives notice in writing to the depositor/owner of the goods that the goods are ready for delivery. Such notice may also be accompanied or subsequently followed by a notice terminating the obligation as custodian. There must however be a notice period of at least 30 days after the date on which notice to take delivery is given before the custodian can then go ahead to take further action in respect of the goods in his custody which includes starting proceedings for selling the goods under the Act. The custodian is expected to comply with the provisions of sections 6 and 7 of the Act before selling the goods which includes a written notice of intention to sell. Public Archives and Documentation Service Act, (Chapter 19) of the Laws of Kenya briefly makes reference to destruction of Public Archives or records in the custody of the Kenya National Archives and Documentation Service. Part IV of the Bill establishes and incorporates the Unclaimed Financial Assets Authority whose mandate is to enforce the provisions under the Act, make and receive payments to/ out of the Fund, manage and invest the funds of the Authority and advise the Minister responsible for matters related to finance) on the national policy to be followed with regard to unclaimed assets and to implement all government policies relating to it. The Authority is required to maintain a database of all the unclaimed assets vested on it under the Bill Part III of the Bill provides for the manner in which unclaimed financial assets are to be dealt with and the duties incumbent upon holders of unclaimed assets. In particular, a duty is imposed on such a holder to make reasonable efforts to locate the owner of the unclaimed assets and notify such owner accordingly of the existence of the assets. Similarly, the holder of unclaimed assets which
The other legislation that remotely Part II contains provisions on the relates to the disposal of items is the Records Disposal Act (Chapter 14). administration of the Commission. These include provisions on the This piece of legislation however only 36
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are presumed to be abandoned is placed under an obligation to compile a report setting out various details pertaining to the assets and submit the same to the Unclaimed Financial Assets Authority. The Authority is also empowered under this Part to seek information from the holder of unclaimed assets which are deemed to have been abandoned. A person filing a report under this Part is obligated to deliver the unclaimed assets to the Authority at the time of making the report and the Authority is thereby required to take custody of the unclaimed assets. public offices, determining the cycle of salaries and remuneration review upon which Parliament may allocate adequate funds for implementation, making recommendations on matters relating to the salary and remuneration of a particular public officer and making recommendations on the review of pensions payable to holders of public offices. The Commission is to have wide powers in the performance of its mandate including power to gather, by any means appropriate, any information it considers relevant, including requisition of reports, records, documents or any information from any source, including governmental authorities, interviewing any individual, group or members of organizations or institutions, holding inquiries and taking any measures it considers necessary to ensure equity and fairness in the harmonization of salaries and remuneration in the public sector. Section 18 of the Act provides for the criteria for determining suitability of judges and magistrates. Some of the considerations include: whether the judicial officer meets the Constitutional criteria for appointment to the respective position, past judicial pronouncements, pending or concluded criminal cases before a court of law against the judicial officer, recommendations for prosecution of the judge or magistrate by the AttorneyGeneral or the Kenya Anti-Corruption Commission and pending complaints received from any person or body. This latter criterion was qualified so that the admissible pending complaints are those made not less than two weeks before vetting of the judicial officer concerned. The Amendment Act also amends section 9(2) of the Act by requiring that vacancies to the Judges and Magistrates Vetting Board be advertised not only in the Kenya Gazette but also in at least two newspapers of national circulation. 5.Supreme Court Acts 2011 This legislative framework seeks to operationalise Article 163 of the Constitution which establishes the Supreme Court. The Supreme Court is to consist of the Chief Justice as the president of the court; Deputy Chief Justice was the vice-president of the court and five other judges. The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President. It also has appellate jurisdiction to determine appeals from the Court of Appeal or any other court or tribunal where the issue for determination involves the interpretation or application of the Constitution or if the Supreme Court or court of appeal certifies that the matter is of general public importance. The Bill makes further provisions with respect to the operation of the Supreme Court as a court of final judicial authority, exercise of the Court s appellate jurisdiction and the administrative mechanisms for the Court.
Under this Part, the Authority is empowered to sell unclaimed assets in its custody, upon expiry of three years from the time it took custody of the assets, by way of public auction. Similarly, a person claiming an interest in unclaimed assets in the custody of the Authority is allowed to lodge a claim with the Authority, and if the claim succeeds, the Authority is required to deliver the assets the subject of the claim to the The Bill provides for additional powers claimant. and functions of the commission, qualifications and procedures for the Clause 39 establishes the Unclaimed appointment of the members of the Financial Assets Trust Fund into which commission. Clause 7 provides for the all moneys that form part of unclaimed procedure of appointment and requires assets and the moneys realized from the that all vacancies be advertised in at least sale of unclaimed assets by the Authority two local dailies of national circulation are to be paid. Such moneys are to be and individuals given opportunity to used to pay or defray the various costs apply. Applicants can then forward in the administration of the Fund. their applications to their respective nominating institutions, which shall 3. Salaries and Remuneration interview and nominate accordingly. Commission Bill, 2011 The names will then be forwarded to A r ti c l e 2 3 0 o f t h e C o n sti t u ti o n the President who will in turn forward e s t a b l i s h e s t h e S a l a r i e s a n d them to the National Assembly for Remuneration Commission and outlines approval. Upon approval by the National the qualifications and appointment of Assembly, the President will appoint the members. Under Article 230(4), the chairperson and the members. Before Commission is empowered to set and taking office members are required to regularly review the remuneration and subscribe to an oath of office. benefits of all State officers and advise the national and county governments 4.Vetting of Judges and Magistrates on the remuneration and benefits of all (Amendment) Act, 2011 other public officers. This Act amends the Vetting of Judges Clause 11 of the Bill provides for additional functions of the Commission which include keeping under review all matters relating to remuneration of public officers, conducting comparative surveys on the labour markets and trends in remuneration to determine the monetary worth of the jobs of
and Magistrates Act (No. 2 of 2011) by introducing the definition of pending complaints as criteria for determining suitability of judicial officers under section 18(e) of the Act, so as to limit the complaints to ones filed at least fourteen days before the vetting of a The Supreme Court is to be the court judicial officer. of final judicial authority and is tasked
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with asserting the supremacy of the Constitution and the sovereignty of the people of Kenya, providing authoritative a n d i m p a r ti a l i nte r p retati o n o f the Constitution, developing rich jurisprudence that respects Kenyas history and traditions and facilitates its social, economic and political growth, determining important constitutional and other legal matters requiring to be determined having due regard to the circumstances, history and cultures of the people of Kenya, improving access to justice and providing for the administration of the Supreme Court. Under Clause 14, the court has special jurisdiction to within one year after the commencement of the Act, either on application of any person or on its own motion review the judgments and decisions of any judge who is removed from office on account of a recommendation by a tribunal appointed by the President, whether before or after the commencement of the Act or removed from office pursuant to the Vetting of Judges and Magistrates Act; or who resigns or opts to retire, whether before or after the commencement of the Act, in consequence of a complaint of misconduct or misbehaviour. Such decision should have been the basis of the removal or complaint against the judge for it to qualify for review. An application for review is not to be entertained after two years of the commencement of this Act. 6. Independent Offices (Appointment) Bill, 2011 Independent Offices are the AuditorGeneral and the Controller of Budget as stipulated under Article 248(3) of the Constitution. Each is a body corporate with perpetual succession and a seal, capable of suing and being sued in its corporate name (see Article 253 of the Constitution). Article 228 of the Constitution provides for a Controller of Budget who is to be appointed by the President on approval by the National Assembly. The Controller of budget is to hold office for only one term of eight years. The purpose of the controller of Budget is to oversee the implementation of the budgets of the national and 38
county governments. The Controller of Budget will authorize withdrawals from Equalization Fund, Consolidated Fund and the Revenue Fund as provided under Articles 204, 206 and 207 of the Constitution respectively. Article 229 of the Constitution establishes office of the Auditor General who is to be appointed by the President after on approval by the National Assembly for a non-renewable tem of eight years. It will be the Auditor-Generals mandate to audit and report the accounts of the national and county governments, courts, commissions, National Assembly, political parties and any entity funded from public funds within a period of six months after the end of each financial year. The audit report will then be submitted to parliament or the relevant county assembly who should then debate the report and take appropriate action within three months.
of considering the applications. Three qualified persons are to be selected and names forwarded to the President within seven days of the selection. The President within seven days then nominates one person to the relevant office(s) and forwards the name(s) to National Assembly for approval. The Nation Assembly is to debate within fourteen days and forward names to the President for appointment and gazettement. 7. National Drug Control Authority Bill, 2011 Drugs and substances abuse including drug trafficking have been rampant in todays modern Kenya raising concerns over the fate of a young society, with questions as to who shoulders the responsibility and what mechanisms were in place to deal with the the vice.
The purpose of this Bill is to make legal provisions for the coordination of efforts The President, the National Assembly or to manage drug and chemical substances even the senate may require a holder of and other related abuse addictions in an independent office to submit a report society. on a particular issue. Such report is to be The Bill proposes to set up the National published and publicized. Drug Control Authority as the successor The Bill seeks to prescribe the to the National Campaign Against Drug procedure for the identification and Abuse Authority (NACADAA) so as to give recommendation for appointment of it more statutory recognition and power independent offices holders, pursuant to to superintend over organizations, bodies and departments empowered Article 250(2) of the Constitution. Clause 5 of this Bill outlines the by various statutes to deal with drugs and chemical substances and ensure nomination procedure as follows:The President is to within seven days the applicable laws and legal sanctions of the commencement of the Act, re enforced. or occurrence of a vacancy in an independent office, put a notice in the The present NACADAA was established Gazette, at least two newspapers of through a presidential Order as a state national circulation and in at least two corporation under the State Corporations national radio and television stations, Act (Cap. 446) through legal notice declaring vacancies in the independent number 140 of 2007 effectively replacing the then National Campaign Against offices and inviting applications. Drug Abuse Advisory Board . Its mandate Such application is to be forwarded to involved more of advisory role and the Public Service Commission within developmental programmes geared fourteen days of the notice. Names of against substance abuse but lacked the all applicants are to be published in the teeth to bite to ensure compliance Gazette. Within seven days, the Public from relevant agencies. If this Bill is Service Commission is then to convene passed into law, the Authority will be a committee comprising representatives able to facilitate compliance and ensure from the office of the president, office of coordination of the implementing the Prime Minister, Ministry responsible agencies of government in the control for finance matters, state law office and elimination of drug and chemical and ministry responsible for matters substance abuse. relating to public service for purposes Clause 5 of the Bill confers on the
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Authority wide powers which includes power of receiving complaint or allegation of the production, trafficking, consumption or concealment of drugs or chemical substances of abuse and referring to the relevant institutions for investigation and necessary action, facilitating and promoting the tracing of proceeds and assets acquired through drug trafficking and advocating for forfeiture, liaising with law enforcement agencies in the enforcement of legislation against production of narcotic drugs or psychotropic substances, trafficking and abuse, extradition of suspects, training and assets forfeiture, ensuring and supporting the relevant bodies of government in developing strategies for the surveillance of emerging patterns of abuse, new precursors, new reagents, new solvents, new drugs and their variants as well as emerging modes of production, importation, trafficking, d i s t r i b u ti o n a n d c o n c e a l m e n t , monitoring trends in the control of drugs abuse at national, regional and international levels and facilitating and ensuring the formulation of national policies and plans of action on drugs and chemical substances of abuse control for the relevant bodies, organs or department of Government. Part IV of the Act makes room for enforcement provisions. Clauses 19, 20, 21 and 22 of the Bill make provision for appointment of authorized officers who have power of search and seizure. Such officers can make application to court to obtain search warrants in ensuring compliance to any relevant legislation. 1. CAPITAL MARKETS (AMENDMENT) BILL, 2011 The Bill, sponsored by the Minister for Finance, amends several provisions of the Capital Markets Act; Chapter 485A of the Laws of Kenya. The Bill introduces the concept of futures market for trade in commodity derivatives. The definition of the word securities is expanded to include futures contracts and options contracts on securities, indices, interest, currency, futures or commodities. futures contract is a contract for the acquisition or disposal of securities or other instruments under which delivery is to be made at a future date and at a price agreed upon when the contract Authority over the central depositories is made. including power to license supervise and monitor the activities of central The Bill seeks to introduce Part IIA depositories, setting standards of which recognizes self regulatory competence for central depository organizations and provides mechanisms agents, approving rules of central for their operations. An organization depositories, and countering any illegal seeking to operate as a self regulatory or unfair practices amongst other authority must apply to the Capital powers. Markets Authority in the prescribed form. The Authority will then gazette Clause 6 of the Bill seeks to introduce such organization as recognized self- new sections 5A, 5B, 5C and 5D. Section regulatory organization where it is 5A requires every central depository satisfied amongst other things that the to make CDS Rules providing for the organization has a Constitution and deposit, registration, and transfer of internal rules and policies consistent with securities, settlement of transactions the Act, that the organization has the involving securities, its default process, financial and administrative resources establishment of a settlement guarantee necessary to carry out its functions as a und, and qualifications for appointment self regulatory organization and that it of central depository agents amongst has competent personnel. other issues. Sections 5B, 5C and 5D detail the default process and default It is an offence for an organization to measures. operate as a self regulatory organization without being recognized as such. The The Bill proposes to introduce a new Capital Markets Authority may in writing Part VIII A to address Settlement delegate any of its powers or functions Guarantee Arrangements. A central to a self regulatory organization. depository is required to establish adequate arrangements to guarantee The Bill also intends to introduce the the settlement of all transactions relating concept of over-the counter market for to securities through its system. A central bonds. Thus, bonds need not necessarily depository may for instance establish be traded at an approved securities a Central Depository Guarantee Fund. exchange as this can be done over the A central depository will also be required counter. to maintain an insurance policy to cover loss and damage. 2.CENTRAL DEPOSITORIES (AMENDMENT)) BILL, 2011 3. THE WATER (AMENDMENT) BILL, The Central Depositories Act, No. 4 2011 of 2000 is the legislation that governs Water is life or so the saying goes. The central depositories in Kenya. The Water Act; No.8 of 2002 (now chapter Central Depositories (Amendment)) 372) is the key legislation that governs Bill introduces vast amendments to the the management of water in the country. Act and details out the mechanisms This Amendment Bill, sponsored by the for the establishment, operations and Hon. John Mbadi (MP) aims to amend regulation of central depositories. the Water Act so as to increase public participation in the management and The Bill seeks to amend the Central administration of water as a natural Depositories Act to provide for the resource. The Bill aims at encouraging licensing and operations of central localization and building concerted depositories. A central depository is efforts in the management of the defined as a company licensed by the resource, right from grass root level. Capital Markets Authority to establish and operate a system for the central The Bill proposes to introduce a new handling of securities. Part IVA to deal with constituency water services. Section 78A seeks to establish Furthermore the proposed law provides a Constituency Water Services Trust for the regulation and management of Fund in place of the present Water the central depositories by the Authority. Services Trust Fund which is established The Bill details out the powers of the under section 83 of the Water Act. The
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Constituency Water Services Trust Fund is the fund to facilitate the provision of water services at the constituency level. If the Bill becomes law, there will be a Constituency Water Services Committee in each constituency with the function of advising the Constituencies Water Services Trust Fund on the formulation of the annual water services programmes for the relevant constituency. There will also be a Constituency Water Services Tender Committee for each constituency for purposes of procuring water services for the respective constituency. It is proposed that each Constituency Water Services Committee consist of twelve members; four members (two men and two women) from the Constituency Development Committee established under the Constituencies Development Fund Act, constituencys member of parliament, two members(one man and one woman) of the respective county assembly, two members representing special interests with regard to water services and an officer each from the Ministries responsible for water and Finance, and an officer of the regional office of the Water Resources Management Authority who is to be the secretary to Furthermore, the Bill seeks to introduce section a new section 26A to the Act to the committee. authorize entry of authorized persons 4. SUGAR (AMENDMENT) BILL, 2011 and inspection of land, premises The Bill, sponsored by Hon. John occupied by a miller, grower or importer Mututho (MP) seeks to amend the of sugar for purposes of making such Sugar Act, No. 10 of 2001(now chapter inspection and enquiries as may be 342) by reviewing the composition of necessary to ascertain whether the the sugar Board. The Bill follows some provisions of the Act are being complied of the recommendations made by the with. Committee on Agriculture, Livestock and Co-operatives of the National Assembly A new section 28A is also proposed to after a fact finding exercise to assess the Sugar Act which addresses the issue impact of cane farming in Kenyas sugar of payment to growers. The formula to be used in determining the payment due belts. to growers by millers is to be determined It seeks to amend section 5 of the Sugar by the Minister in consultation with the Act so as to bring about professionalism Board. Such formula is to be based on in the composition of the Board by the weight of the sugar cane, the sucrose including members with expertise content and the value of the by-products in agriculture, finance or marketing, obtained from the sugarcane. business management, and law. The Bill further seeks to amend section *The status of the Bills is as at the date of 19 of the Sugar Act so as to specify the publication of the Bench Bulletin. purposes for which the monies in the Sugar Development Fund are to be applied. This includes the development of infrastructure in sugar growing regions, research in matters relating to the sugar industry and advancement of credit facilities to millers and growers.
cause and effect. And he himself will not violate the law. We need to be thinking less in terms of what God did and more in terms of whether or not we are following those laws.
God created the law of free will, and God created the law of
(Marianne Williamson)
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Legislative supplements: A DIGEST OF THE LEGAL
NOTICES RECENTLY PUBLISHED IN THE KENYA GAZETTE.
By Christian Ateka and Wanjala Sikuta DATE OF PUBLICATION IN KENYA GAZETTE KENYA GAZETTE SUPPLEMENT NUMBER NAME OF LEGISLATION
REMARKS
25th March, 2011
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The Industrial Training These Rules amend the Industrial Training (Trade ( T r a d e T e s ti n g ) Testing) Rules of 1977 by deleting the existing Second (Amendment) Rules, 2011 Schedule and inserting a new Schedule that provides for Grade of Trade Test Application Fees. Legal Notice. 24/2011
1st April, 2011
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The Children (Adoption) These Regulations amend regulation (27) of the (Amendment) Regulations, Children (Adoption) Regulations of 2005 by inserting 2011 a new sub-regulation (4) which provides that an Adoption Committee shall issue a Certificate of Legal Notice. 27/2011 Conformity to the adopter in accordance with the Hague Convention. Further, it introduces a new Schedule (Fourteenth Schedule) which outlines the format of the Certificate of Conformity.
8th April, 2011
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T h e P u b l i c F e e s These Regulations amend regulation (11) of the (Amendment) Regulations, Public Fees Regulations of 1988, which provide for the fee payable for the issuance of Kenyan visas. The 2011 amendments take effect on 1st July, 2011. Legal Notice. 31/2011
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The Hotels and Restaurants Act-Notification of Classes o f a n d S ta n d a rd s o f Hotels and Restaurants Classification-Revocation
The Hotels and Restaurants Authority revoked the Notification of Classes and Standards for Hotels and Restaurants Classification of year 2001. This revocation was made in accordance with regulation (2) of the Hotels and Restaurants (Classification of Hotels and Restaurants) Regulations, 1988, which mandates the Hotels and Restaurants Authority to classify hotels into classes in accordance with set standards and principles.
Legal Notice. 33/2011
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21st April, 2011 27 The Privileges and Immunities (Norwegian Refugee Council) Order, 2011 Legal Notice. 35/2011 Under this Order, the Norwegian Refugee Council (NRC) was declared to be an Organization to which section 11 of the Privileges and Immunities Act is to apply and is thus to enjoy the privileges and immunities as specified in paragraphs 3 to 5 of Part I of the Fourth Schedule to the Act. Further, the Regional Director and internationally recruited staff members of the Organization, while residing in Kenya and performing duties in the service of the Organization, are to enjoy the privileges and immunities specified in paragraphs 2 to 7 of Part III of the Fourth Schedule to the Act. 27 The Meat Control Act (Local Slaughterhouses) (Licensing) Regulations, 2011 Legal Notice. 36/2011 27 The Income Tax Act - The Guidelines provide for the definition of a bad debt Guidelines on Allowability for the purposes of tax collection and conditions that render a debt uncollectible. of Bad Debts Legal Notice. 37/2011 29th April, 2011 28 The Customs and Excise (Amendment of the Fifth Schedule) Order, 2011 Legal Notice. 38/2011 31 The Africa International University Charter This Order amends the Fifth Schedule by deleting the existing rate of duty in respect of Illuminating Kerosene and Gas Oil and substituting therefore new rates of duty. These Regulations provide for the procedure of application of a licence by local slaughter houses; renewal of licences; categories of local slaughter houses and licence fees.
The Legal Notice provides for the Charter granted to Africa International University under the provisions of section 14 of the Universities Act (Cap. 210B).
Legal Notice. 41/2011 32 The Africa International University Charter Legal Notice. 42/2011 13th May, 2011 33 T h e A n ti - C o r r u p ti o n and Economic Crimes (Amnesty and Restitution) Regulations, 2011 Legal Notice. 44/2011 Lastly, it provides for procedure for restitution of property irregularly acquired to rightful owners. These Regulations provide for interest chargeable to property or money irregularly obtained. Further, it provides for the procedure for application for Amnesty by interested persons who obtained property or money irregularly. The Legal Notice provides for the Charter granted to Africa International University under the provisions of section 14 of the Universities Act (Cap. 210B).
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27th May, 2011 36 The Architects and Quantity These By-Laws amend the Sixth Schedule to the Surveyors (Amendment) Architects and Quantity Surveyors By-Laws in the following clauses: By-Laws, 2011 In clause 1 (a) by deleting the expression two hundred and substituting therefor the expression ten thousand; In clause 1 (b) by deleting the expression one hundred and twenty and substituting therefor the expression seven thousand five hundred and lastly by deleting the expression September and substituting therefor the expression July. 8th June, 2011. 45 The Provisional Collection of Taxes and Duties Order, 2011 (L.N. 46/2011) Through this Order, the Deputy Prime Minister and Minister for Finance ordered that all provisions of the 2011 Finance Bill relating to tax and duties shall have effect as though the Bill were passed into law. The Order came into effect from the 9th June, 2011. These Orders are made pursuant to section 2 of the Provisional Collection of Taxes Act(Cap. 415) which provides as follows: If a Bill is published in the Gazette whereby, if such Bill were passed into law, any tax or duty, or any rate allowance or administrative or general provision in respect thereof, would be imposed, created, altered or removed, the Minister may, subject to this Act and notwithstanding the provisions of any other written law relating to taxes and duties, make an order that all or any specified provisions of the Bill relating to taxes or duties shall have effect as if the Bill were passed into law. The Traffic (Amendment) Traffic Rules are amended by inserting a new rule Rules, 2011. (6A) immediately after rule (6). The new rule makes provision for a Deregistration Certificate. Further, L.N. 47/2011. these Rules provide for a new Form (XXIX) which outlines the format of Deregistration Certificate as set out in the Second Schedule. T h e N a ti o n a l S o c i a l Security Fund (Claims and Payments) (Benefits) ( A m e n d m e n t s ) Regulations, 2011. L.N. 50/2011. The Customs and Excise (Petroleum Oils) (Excise) (Amendment) Regulations, 2011. Regulation (13) of the National Social Security Fund (Claims and Payments) (Benefits) Regulations is amended by deleting the words, or detention in legal custody. Further, these Regulations insert a proviso at the of Regulation (13) which sets out a way on how a person undergoing imprisonment may obtain his/ her benefits during the term of imprisonment. Regulation (8) of the Customs and Excise (Petroleum Oils) (Excise) Regulations, is amended by deleting the expression thirty (30) appearing in the proviso to paragraph 1 and substituting therefor the
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27th May, 2011 36 The Architects and Quantity These By-Laws amend the Sixth Schedule to the Surveyors (Amendment) Architects and Quantity Surveyors By-Laws in the following clauses: By-Laws, 2011 In clause 1 (a) by deleting the expression two hundred and substituting therefor the expression ten thousand; In clause 1 (b) by deleting the expression one hundred and twenty and substituting therefor the expression seven thousand five hundred and lastly by deleting the expression September and substituting therefor the expression July. 8th June, 2011. 45 The Provisional Collection of Taxes and Duties Order, 2011 (L.N. 46/2011) Through this Order, the Deputy Prime Minister and Minister for Finance ordered that all provisions of the 2011 Finance Bill relating to tax and duties shall have effect as though the Bill were passed into law. The Order came into effect from the 9th June, 2011. These Orders are made pursuant to section 2 of the Provisional Collection of Taxes Act(Cap. 415) which provides as follows: If a Bill is published in the Gazette whereby, if such Bill were passed into law, any tax or duty, or any rate allowance or administrative or general provision in respect thereof, would be imposed, created, altered or removed, the Minister may, subject to this Act and notwithstanding the provisions of any other written law relating to taxes and duties, make an order that all or any specified provisions of the Bill relating to taxes or duties shall have effect as if the Bill were passed into law. The Traffic (Amendment) Traffic Rules are amended by inserting a new rule Rules, 2011. (6A) immediately after rule (6). The new rule makes provision for a Deregistration Certificate. Further, L.N. 47/2011. these Rules provide for a new Form (XXIX) which outlines the format of Deregistration Certificate as set out in the Second Schedule. T h e N a ti o n a l S o c i a l Security Fund (Claims and Payments) (Benefits) ( A m e n d m e n t s ) Regulations, 2011. L.N. 50/2011. Regulation (13) of the National Social Security Fund (Claims and Payments) (Benefits) Regulations is amended by deleting the words, or detention in legal custody. Further, these Regulations insert a proviso at the end of Regulation (13) which sets out a way on how a person undergoing imprisonment may obtain his/her benefits during the term of imprisonment.
The Customs and Excise (Petroleum Oils) (Excise) (Amendment) Regulations, 2011.
Regulation (8) of the Customs and Excise (Petroleum Oils) (Excise) Regulations, is amended by deleting the expression thirty (30) appearing in the proviso to paragraph 1 and substituting therefor the expression ten.
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L.N. 55/2011. Further, these Regulations insert a proviso which provides for a maximum time limit upon which tax shall be paid after Petroleum Oils are transferred to the owners by the Kenya Petroleum Oil Refineries Limited immediately after paragraph 2. These Regulations provide for target groups to which procurements by public entities apply when soliciting tenders. Also provide for eligibility criteria for qualification by the target groups; their registrations, general principles and compliance.
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The Public Procurement and disposal (Preference a n d R e s e r v a ti o n s Regulations, 2011. L.N. 58/2011.
17th June, 2011
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The Preservation of Public Pursuant to the provisions of section 3 (1), the Security Act-Declaration, President declared the current drought being experienced in most parts of the country as a national 2011 calamity and disaster. L.N. 59/2011 Pursuant to the provisions of section 3 (1), the President declared the current drought being experienced in most parts of the country as a national calamity and disaster. This Notice expires on 31st December, 2011.
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The Regulation of Wages This Order amends the Regulation of Wages (General) (General) (Amendment) Order by deleting a Schedule thereto and inserting a new Schedule. The new Schedule provides for Basic Order, 2011 Minimum Monthly Wages (Exclusive of Housing Allowance) and Minimum Daily and Hourly Rates L.N. 64/2011 (Inclusive of Housing Allowance). This Order was made following the announcement by the Government on 1st May, 2011 that the minimum wage for Kenyan workers will be increased by 12.5 per cent.
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T h e E m b u U n i ve rs i t y The President made this Order that establishes the College Order, 2011 Embu University College, a constituent College of the University of Nairobi. L.N. 65/2011 The Embu University College, being the successor to Embu Agricultural Staff Training College, automatically assumes all rights, liabilities and assets held by or on behalf of Embu Agricultural Staff Training College at the commencement of this Order. The Traffic Rules (Speed G ove r n o rs fo r P u b l i c Service and Commercial Vehicles with Tare Weight of over 3048 kg), 2011 L.N. 66/2011 The Minister for Transport approved PHS-01 Top Speed Limiter Autograde-dass 86 to be fitted in Public Service and Commercial Vehicles with tare weight of 3048 kg and above. This approval was made after the said speed governor was tested and passed as a competent speed limiter.
24th June, 2011
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51 The Traffic Rules (Speed G ove r n o rs fo r P u b l i c Service and Commercial Vehicles with Tare Weight of over 3048 kg), 2011 L.N. 66/2011 The President made this Order that establishes the Rongo University College, a constituent College of the Moi University. The Rongo University College, being the successor to Moi Institute of Technology, Rongo automatically assumes all rights, liabilities and assets held by or on behalf of Moi Institute of Technology, Rongo at the commencement of this Order.
nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed. (Abraham Lincoln)
Let me not be understood as saying that there are no bad laws,
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Summary of appointments UNDER THE KENYA GAZETTE

The functions of the Board will include organizing, regulating and developing the efficient production, marketing, distribution and supply of dairy produce as set out in section 17. Industrial Property Act. Appointment of Henry Kibet Mutai (Dr.) as Director. This is done in pursuant to section 11 (1) of the Industrial Property Act, 2001, by the Board of Directors of Gazette Notice No. 2919, Dated 25th the Institute. It is from the 1st April, 2011. March, 2011 Kenya Veterinary Vaccine Production Institute Appointment of Bernard Saidumu Lenaronkoito to be a member of the Board of Directors. Gazette Notice No. 2912, Dated 18th April, 2011
By Wambui Kamau, Legal Researcher.
he Kenya Gazette is the official way of communication by the Government of Kenya. The following is a summary of notable appointments made under the Kenya Gazette from period March 25th, to May 2011. A) STATE CORPORATIONS AND PARASTATALS State Corporations are by order established by the President and generally regulated by the State Corporations Act (Cap. 446). The President or the Minister under whose docket the particular body lies, makes various appointments to the various state corporations, parastatals and even commissions. State Advisory Committees established under section 26 of the Act and whose functions are mandated in section 27 to advise the president on the establishment, reorganization and dissolution of the State Corporations. Gazette Notice No. 2918, Dated 25th March, 2011 Kenya Dairy Board Appointment of Abdullahi Idris Maalim Yusuf as a member of the Kenya Dairy Board. The Minister for Livestock Development made this appointment pursuant to the Dairy Industry Act. The appointment is for a period of one year and four months as from 14th February, 2011. The Boards main objective is to provide for the improvement and control of the dairy industry and its products.
Industrial Property Tribunal The following were appointed as members of the Board of Directors for This appointment was made by the the Tribunal. Minister for Livestock Development for a period of three years pursuant to section David N, Kamau (Eng.), Timothy Mtana Lewa (Dr.), 6(1) (e) of the State Corporations Act. Job Juma Weloba, This appointment is for a period of Gazette Notice No. 2926, Dated 25th three years commencing on the 21st March, 2011 and Gazette Notice No. March, 2011. This notice also bore the 2912, Dated 18th April, 2011 revocation of the filling as members of the Board of Directors. Kenya Industrial Property Institute The Industrial Property Act provides Amos Korir, for the promotion of inventive and Andrew Mbaya, innovative activities and facilitates the Raymond Kipkoech Chelulei acquisition of technology through the grant and regulation of patents, utility Gazette Notice No. 3265, Dated 1st models, technovations and industrial April, 2011 and Gazette Notice No. 2911, designs. The Kenya Industrial Property Dated 15th April, 2011 Institute is also established therein and its powers and functions provided for. The National Standards Council and the Standards Tribunal The Institute whose headquarters is The Standards Act (Cap. 496) provides in Nairobi is established in section for the establishment of the National 3 of the Industrial Property Act and Standards Council and the Standards its functions include considering Tribunal in section 6 and 16A respectively. applications for and to grant industrial property rights, screening technology The National Standards Council is transfer agreements and licenses, charged with the mandate of supervision p r o v i d i n g i n d u s t r i a l p r o p e r t y and control of the administration and information for technological and financial management of the Bureau of economic empowerment to the public Standards which is set up to promote and to promote inventiveness and standardization in industr y and commerce. On the other hand, the innovativeness in Kenya. Tribunal hears appeals from persons The Industrial Property Tribunal is also aggrieved by a decision of the Bureau established to hear appeals against or the Council. These appeals must be decisions of the Managing Director who submitted in writing to the Tribunal is to grant, register and publish every within fourteen days of the notification patent that has met the registration of the act. requirements as according to the Industrial Property Regulations, 2000. The Minister for Industrialization appointed the following to be members Therefore the following is a summary of the above Council in exercise of the of the appointments made under the powers conferred by section 6 (c) and (d)
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of the Standards Act 2004. Brigid Boyani Monda (Dr.), Emily Jeptanui Kogos (Dr.), Salim Chingabwi, Nene Nzyuko, Yasin Haji Hussein, Joshua Lonyaman Angelei, Nyawira O. Njeru (Ms.), Ahmed Hashi, Jeridah K. Sinange (Ms.), Andrew Muriuki, Kennedy Odera Obar, Nazir Gulam Yusuf, The appointments were to take effect from 21st March, 2011 for a period of three years effectively revoking earlier appointments made via Notices Numbers G.N. 1265/2010, 11797/2009, 10618/2010, 4555/2009.Gazette Gazette Notice No. 2911, Dated 15th April, 2011 Standards Tribunal Appointment of Aggrey Shitsama Ambwenga Shikanga as the Chairman of the Tribunal. Gazette Notice No. 3264, Dated 1st April, 2011 Kenya Information and Communication Technology Board The following members were appointed to the aforementioned Board as from 21st February, 2011 for a period of three years. David Mugo, Tom K. Kandagor, John Lodepe Nakara, Esther Njeri Kibera The responsibilities of the Board include the management, control and administration of the assets of the Communications Commission of Kenya, to receive gifts, grants and donations made to the Commission and to determine provisions to be made for capital and recurrent expenditure and for reserves of the Commission. mandate to supervise, control and manage all the assets of the Fund, to operate in the name of the Board such bank accounts as it may deem necessary and to invest from time to time the moneys of the Fund.
Appointments under The Retirement Benefits Act The following appointments were made The Commission is charged with the in respect to the Retirement Benefits mandate of licencing and regulating Act (No. 3 of 1997) with effect from 1st postal information and communication April, 2011. services. Gazette Notice No. 3933, Dated 15th Gazette Notice No. 3941, Dated 15th April, 2011 April, 2011 Retirement Benefits Appeals Tribunal Re-appointment of Barnabas Kariuki Kenya Broadcasting Corporation Appointment of Steve Areba as a to this Tribunal by the Deputy Prime member of the Board for a period Minister and Minister for Finance for a of three years with effect from 21st period of three years with effect from 1st April, 2011. February, 2011. T h e C o r p o ra ti o n i s t o p ro v i d e independent and impartial broadcasting services of information, education and entertainment in English and Kiswahili and in such other languages as the Corporation may decide. This Tribunal is established in section 47 of the Act and it is responsible for hearing appeals under the Act.
Gazette Notice No. 3942, Dated 15th April, 2011. The Communication Commission of Kenya The following were appointed to serve as Directors of the Board of the Directors of the Communication Commission of Kenya for a period of three years with effect from 21st February, 2011. Peter Ldhituachi Simani, Alloys Angasa, Monica J. Kerrets-Makau.
Board of the Retirement Benefits Authority Gazette Notice No. 3934, Dated 15th Gazette Notice No. 3540, Dated 1st April, 2011 April, 2011 Jacob N. Onkunya, and Thamuda O. Hassan (Mrs.), as members of the Board Board of The Provident Fund The Deputy Prime Minister and Minister for a period of four years of Local Government appointed the following persons to the above Board Gazette Notice No. 3939, Dated 15th with effect from 2nd April, 2011 for a April, 2011 period of three years. Samuel K. Gichigi for a period of three years effective 1st April, 2011. Robert Njenga Mwaura (Chairman), The Authority is responsible for the Mohamed Adan Khalif(Viceregulation and supervision of the Chairman), establishment and management of Adan Halake Wario, retirement benefits schemes, protecting Frank Sabwa, the interest of members and sponsors of Rita Ngeno, retirement benefits schemes,promoting Boniface M. Munyao, the development of the retirement Rehana Ismail, benefits sector and advising the Minister Patrick Wangamati, on the national policy to be followed Permanent Secretary, with regard to retirement benefits Ministry of Local Government schemes also fall within the mandate of or his representative, the Authority. C h i ef E xe c u ti ve O ffi c e r (Secretary). The Provident Fund is established Gazette Notice No. 3935, Dated 15th by section 4 of the Local Authorities April, 2011 Provident Fund Act (Cap. 272) whose Insurance Regulatory Authority Board of Directors is charged with the Deputy Prime Minister and Minister for
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Finance appointed the following persons the State Corporations Act (Cap. 446) for a period of three years with effect and its function is to consider and determine appeals against decisions of from 21st April, 2011. the Inspector- General(Corporations). Joseph M. Murage, Gazette Notice No. 3943, Dated 15th Chemutai Murgor, April, 2011 Moses B. Obonyo, Abdulaziz Mohamed, Agricultural Information Centre Grace A. Ngigi, Revolving Fund The Authority is established in Part The Minister for Agriculture appointed II of the Act and its functions include Caleb Atemi to be a member of the ensuring the effective administration, Board of Directors for a period of three supervision, regulation and control of years. This appointment took effect from insurance and reinsurance business in 19th April, 2011. Kenya. The formulation and enforcement of standards for the conduct of insurance This is in exercise of powers under and reinsurance business in Kenya is also regulation 8 (1) (f) (i) of the Exchequer and Audit (Agricultural Information within the mandate of the Authority. Centre Revolving Fund) Regulations, Gazette Notice No. 3937, Dated 15th 2000. The Fund consists of monies appropriated by Parliament and the April, 2011 object of the Fund is to provide monies Board of The Kenya Post Office Savings for the development of agricultural information centres to meet the demand Bank Appointment of Gordon Jallango Onyango for agricultural training and media as Director of the aforementioned materials within and outside the Ministry Board. This is for a period of three years of Agriculture. with effect from 1st April. Gazette Notice No. 3944, Dated 15th The Bank is responsible for encouraging April, 2011 thrift and providing means and opportunities for Kenyans to save, to Agricultural Development Corporation open, maintain or close branches at Edward E. Edung was appointed as a such places as the Board may determine member of the member of the Board of amongst other duties set out in section Agricultural Development Corporation 4 of the Kenya Posts Office Saving Bank for a period of three years. This is with effect from 1st April, 2011. Act (Cap. 493). Gazette Notice No. 3938, Dated 15th The functions of the Corporation include the promotion of Kenyas essential April, 2011 agricultural inputs and undertaking Board of The Capital Markets Authority activities for the purpose of developing Appointment of the following to the agricultural production. aforementioned Board for a period of Gazette Notice No. 3555, Dated 8th three years from 1st April, 2011. April, 2011 Humphrey Muga, Agricultural Finance Corporation Mahmood P. Manji The Minister of Agriculture appointed Gazette Notice No. 3940, Dated 15th Lucas Meno to be a Director for a period of three years with effect from April, 2011 11th March, 2011. Appointment of Sam Kruschev Sholle via Gazette Notice State Corporations Appeal Tribunal Appointment of Samuel O. Onyango as Number 15587/2010 is revoked. a member of the Tribunal for a period of three years with effect from 1st April, This entity is established by the Agricultural Finance Corporation Act 2011. The State Corporations Appeal Tribunal (Cap. 323) for purposes of assisting is established under section 22 of the development of agriculture and
agricultural industries by making loans to farmers, co-operative societies, incorporated group representatives, private companies, public bodies, local authorities and other persons engaging in agriculture. Gazette Notice No. 5370, Dated 20th May, 2011 Pyrethrum Board of Kenya The Board is established under the Pyrethrum Act (Cap. 340) which provides for the reorganization and regulation of the pyrethrum industry and the control of the growing, processing and marketing for scientific and agronomic research. The board is then charged with the mandate of ensuring that it promotes the pyrethrum industry. This notice bore the appointment of the following as members of the Board for a period of two (2) years, with effect from the 25th May, 2011. a) Nyakiba Erneo William (Dr), b) Joseph Kipkorir Kimetto, c) Stephen K. Ngugi. Gazette Notice No. 5604, Dated 27th May, 2011 The National Irrigation Board The National Irrigation Board is responsible for the development, control and improvement of national irrigation schemes in Kenya. Hesbon Mwendwa Aligula and Jack Wambiga Mwaura were appointed as members of the Board for a period of three years commencing 20th May, 2011. Gazette Notice No. 3945, Dated 15th April, 2011 Public Archives Advisory Council The Public Archives and Documentation Service Act establishes the Council in section 14. It is charged with the mandate of advising the Minister on all matters relating to location, preservation and use of public archives, access by members of the public to the public archives and the export under licence of any public archives, public or historical records.
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The following were appointed to be April, 2011 and Gazette Notice No. 5599, members of the Council under the Dated 27th May, 2011 respective regulations for a period of Transport Licensing Board two years: Appointment of the following as licensing officers of this Board for a period of three Under regulation 3 (a) years Jacob ole Miaron (Dr.); Under regulation 3 (b) Moses Mjomba, Margaret Wangui Gachichi; Nancy Rono, Under regulation 3 (c) Edward Kisingu, Jacob Nturibi, Hannington Wandera Maureen M. Karisa, Bwana A. Warrakah, David Kilesi, Joseph Kamau Thuo, Kimpei Munei (Dr.), Astariko O. Atika, Robert Kanai Saidimu, Ledishah Jebichii Kipseii, Benjamin Mutugi, Under regulation 3 (d) The appointment of Joseph Kariuki Francis K. Muthaura; Kamiri via Gazette Notice Number Under regulation 3 (e) 1509/2011 is revoked. Joseph Kinyua; Under regulation 3 (f) Gazette Notice No. 4574 and 4935, Hudson A. Liyayi; Dated 29th April, 2011 Gazette Notice No. 2913, Dated 18th Export Processing Zones April, 2011 The Export Processing Zones Act (Cap. 517) provides for the promotion Kenya Industrial Estates The following were appointed as and facilitation of export oriented members of the Board of Directors for investments and the development of a period of three years commencing 21st enabling environment for investment. It further provides for the establishment March, 2011 of export processing zones and the Export Processing Zones Authority. The Marstella Bahati Kahindi (Ms.), Authority which is established in section John Mugo Nyagah (Dr.), 3, is thus charged with the development Susan N. Kairima (Ms.), The following appointments were of all aspects of the export processing zones. revoked. The Minister of Trade made the following Abdirahman Abdinur, appointments for a period of three years Brig (Rtd.) Chris Kuto, with respect to the Export Processing Rhoda Rotino (Ms.) Zones Board and Authority. Gazette Notice No. 2914, Dated 18th 1.Board Member April, 2011 Appointment of Jane Florence Otieno Industrial Development Bank (Capital) as a member of the Board with effect Appointment of the following as from 12th April, 2011.Kibaaya Laibutas members of the Board of Directors for appointment of Gazette Notice Number a period of three years with effect from 11428/2009 was revoked. 21st March, 2011. 2.Chief Executive Officer Appointment of Richard Mutule Kilonzo Stephen Masha Ngowa, as from 21st April, 2011 Peterson Munene Mwai the preamble to the Kenya Maritime Authority Act (No. 5 of 2006). The following were appointed as Directors of the Board for a period of three years commencing from the 12th May, 2011. a) Beatrice Akinyi Oyomo, b) Joseph Kariuki Kamiri. Gazette Notice No. 5371, Dated 20th May, 2011 Director General of The National Museums of Kenya The establishment, control, management and development of national museums are provided for in the National Museums and Heritage Act (No. 6 of 2006). Section 14 of the Act provides for the post of a Director General who shall be appointed by the Minister and shall hold the minimum of a doctorate and have experience in any field or work relating to the work of the national Museums. Thus, Idle Omar Farah (Dr.) was appointed for a period of three years with effect from 1st June, 2011. Gazette Notice No. 5372, Dated 20th May, 2011 Moi Teaching and Referral Hospital Board The Moi Teaching and Referral Hospital Board is established via Legal Notice Number 78/1998. It is responsible for the administration, management and development of the hospital established in Eldoret. Thus, through this notice, Winston J. O. Orege was appointed as a member of the Moi Teaching and Referral Hospital Board, for a period of five (5) years, with effect from the 5th May, 2011. The appointment of Philip O. Ombidi (deceased)* who was appointed via Gazette Notice number 9626/2008 is revoked.
The following appointments were Gazette Notice No. 5369, Dated 20th APPOINTMENTS UNDER THE WATER May, 2011 ACT revoked: The Water Act was established to provide Kenya Maritime Authority for the management, conservation, Henry K. Kiplangat, The Authority is mandated to monitor, use and control of water resources. In Joel K. Chemiron. regulate ad co-ordinate activities in the addition, it provides for the acquisition Gazette Notice No. 4252 Dated 21st maritime industry as provided for in and regulation of rights to use water 50
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and the regulation of water supple and of Trustees of the Fund. sewerage services. In line with this, Water Services Boards are responsible for the THE JUDICIARY: MILIMANI LAW COURTS efficient and economical provision of Gazette Notice No. 4579, Dated 29th water services April, 2011 Section 51 of the Water Act provides that the Minister may by notice in The Registrar of the High Court of the Gazette constitute Water Services Kenya notified all Advocates, litigants Boards and specify the members to and members of the public on the be appointed therein. Therefore, the relocation of the operations in the High following appointments were made Court divisions at Nairobi including the on the respective dates for a period of Commercial and Tax Division Milimani three years commencing on the 20th and the Chief Magistrate Courts at Nairobi Law Courts to Milimani Law May, 2011. Courts (Former Income Tax building) Gazette Notice No. 5600, Dated 27th with effect from 2nd May, 2011. May, 2011 FINANCIAL MATTERS The Coast Water Services Board Appointment of Antony Charo Mrima as Gazette Notice No. 3261, Dated 1st April, 2011 Chairman of the Board. Gazette Notice No. 5601, Dated 27th May, 2011 The Athi Water Services Board Appointment of Aden S. Ali and John Giathi Charles, to be members of the Board of Directors of Athi Water Services Board. Gazette Notice No. 5602, Dated 27th May, 2011 The Tana Water Services Board Appointment of Geofrey Wachira Mahinda as a member of Board of Directors. Gazette Notice No. 5603, Dated 27th May, 2011 The Lake Victoria South Water Services Board Appointment of Joshua O. Rangi as a member of the Board of Directors. Gazette Notice No. 5605, Dated 27th May, 2011 The Tanathi Water Services Board Appointment of Joseph Lenku as a member of the Board of Directors. Gazette Notice No. 5606, Dated 27th May, 2011 The Water Services Trust Fund Appointment of Kiema Mwandia and Sophie Oguna to be Trustees in the Board April, 2011 The Policyholders Compensation Fund The Insurance Act (Cap. 487) provides for compensation of policyholders of an insurer that has been wound up by the High Court. This Fund is administered by a Board of Trustees who are to hold the office for a term of three years. Section 179 o f the Act provide for the functions of the Board which include providing compensation to policyholders of an insolvent insurer, monitoring the risk profile of any insurer and to advise the Minister on the national policy on matters of compensation.
The following were appointed as Trustees of the Fund for a period of three years: Frank Muchiri, Shehnaz N. Sumar (Mrs.), Kanyi Gachoka, Tom Mulwa, Non-Executive Directors of The Central Morrison J. Okumu, Bank of Kenya The following were appointed by the Revocation of Forex Bureau Licences President and Commander in chief of The Central Bank of Kenya( Foreign the Kenya Defence Forces; Exchange Business) Regulations that came into force in 2007 regulate the William Otiende Ogara (Dr.), legal affairs and conduct of the Forex Mbui Wagacha (Dr.), Bureaus in Kenya. Vivienne Yeda Apopo (Ms.), Regulation 6(1) provides for instances The appointment is for a period of four where the Central Bank may suspend or years commencing on 14th March, 2011. revoke the licenses of a foreign exchange Non-Executive Members form part of bureau which include where the bureau the Board of the Central Bank of Kenya fails to: which is responsible for determining the policy of the Bank and the formulation a) submit, not later than three of monetary policy amongst other months after the end of its objectives of the Bank. financial year, to the Central Bank of Kenya, its annual Gazette Notice No. 3262, Dated 1st audited accounts and a copy April, 2011 of the auditors report in the prescribed form; Specified Institution The Housing Finance Company of Kenya (b) furnish, at such time and was licensed as a mortgage finance manner as the Central Bank of company licensed under the Banking Kenya may direct and require, Act. This is in pursuance to the provisions any information in an accurate of sections 34 (3) (c) and 38 (6) (c) of the and complete manner to Central Bank of Kenya Act. These sections discharge its functions under provide for the legal establishment of a the Act; and person or body of persons as prescribed by the Minister of an institution as long (c) comply with such guidelines as as it is Gazetted. This is to enable the may be issued by Central Bank Central Bank of Kenya have relations of Kenya through circulars. with these institutions. Through the Kenya Gazette, the Governor of the Central Bank revoked the licenses Gazette Notice No. 3936, Dated 15th of the following:
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Gazette Notice No. 3269, Dated 1st Gazette Notice No. 3267, Dated 1st James J. Mwongera, April, 2011 April, 2011. This appointment was done by the T H E S O U T H N YA N Z A T R A D E District Commissioner of Tharaka North G re e n s p a n Fo rex B u re a u DEVELOPMENT JOINT BOARD District pursuant to section 26 (4) of the Limited Appointment of the following by the Public Procurement and Disposal Act 1st March, 2011 Permanent Secretary in the Ministry and Second Schedule (2) of the Public Mint Bureau De Change Limited of Trade: Procurement and Disposal Regulations, 1st March, 2011 Judith Akinyi Oyugi (Mrs.) 2006. (Chairperson), DEVELOPMENT JOINT BOARDS Gazette Notice No. 3556, Dated 8th The Local Government Act (Cap. 265) in District Commissioner, Homa Bay(Ex officio), April, 2011 section 104(1) provides that the Minister District Trade Development may constitute a joint Board where Officer, Homa Bay(Secretary), THE LAKE BASIN DEVELOPMENT a local authority is desirous of acting Tobias Warema Range, AUTHORITY ACT (CAP. 442) jointly with the Government in exercise Chairman, Kenya National of the powers conferred upon it by or Chamber of Commerce and Lake Basin Development Authority under this Act or any other written law. Industry, Homa Bay Branch, Appointment of Peter A. Kabok (Eng.) as In pursuance of the delegation of powers to be members of the Board for a period Managing Director and Secretary to the set out in section 38(1) the Minister of three (3) years. Board of the Authority. This was done by constituted the following Boards and the Minister for Regional Development the membership in the recent months. Gazette Notice No. 3268, Dated 1st Authorities for a period of three (3) years from 8th April, 2011. The Wajir Trade Development Joint April, 2011 Board Appointment of the following as THE KISUMU MUNICIPALITY TRADE Gazette Notice No. 3557, Dated 8th April, 2011 members of the aforementioned Board. DEVELOPMENT JOINT BOARD Appointment of the following by the a) Mohamed Ali Mohamed Permanent Secretary in the Ministry The Tana And Athi Rivers Development (Chairman), of Trade: Authority Act (Cap. 443) b) District Commissioner, Wajir Appointment of Peter Ndegwa Muturi (Ex officio), C h a r l e s O ti e n o A n g u o (Eng.) as a Board member to the c) District Trade Development (Chairman), Authority. Appointment made pursuant Offficer, Wajir(Secretary), District Commissioner, Kisumu to section 4 (1) (f) of the Tana and Athi d) Batula Noor Adan (Ms.), East(Ex officio), Rivers Development Authority Act by e) Chairman, Kenya National District Trade Development the Minister for Regional Development Chamber of Commerce and Officer, Kisumu(Secretary), Authorities. This is for a period of three Industry, Wajir Branch Jayne Adhiambo Ochieng (Ms.), years as from 8th April, 2011. Chairman, Kenya National The appointment is for a period of three Chamber of Commerce and Gazette Notice No. 3558, Dated 8th years. Industry, April, 2011 Kisumu Branch, Gazette Notice No. 2922, Dated 25th to be members of the Board for The Kilifi Trade Development Joint Loan March, 2011 a period of three (3) years as Board from 21st March, 2011. Appointment of the following to be The Taita Taveta Trade Development members of the Kilifi Trade Development Joint Board. Joint Loan Board for a period of three Gazette Notice No. 2923, Dated 25th (3) years. Appointment of the following for a March, 2011 period of three years: Sarah Dama Chitavi (Mrs.) Sylvester M. Mwamburi Tharaka North District Tender Board (Chairperson), (Chairman), District Commissioner, Kilifi(Ex officio), District Commissioner, Taita Appointment of; District Trade Development Officer, Taveta(Ex officio), Evans K. Ogamba(Chairman); Kilifi(Secretary), District Trade Development Members: Nathaniel Masha Luganje, O ff fi c e r, Ta i t a Ta v e t a Alfred N. Murango(Secretary) Chairman, Kenya National Chamber of (Secretary), Benson Wachera, Commerce and Industry, Kilifi Branch. Judith W. Mwamburi (Ms.), Rosemary K. Kirambia, Gazette Notice No. 4249 Dated 21st Chairman, Kenya National Katiria Mbinda, April, 2011 Chamber of Commerce and Mohammed M. Mukundi, The Mandera Trade Development Joint Industry, Taita Taveta Branch, Simon Igweta, Loan Board 52
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Appointment of the following to be members: Kisii Level 5 Hospital Patrick Monyenye(Chairman) i) Hussein I. Barrow(Chairman), Mellen Kebati ii) D i s t r i c t C o m m i s s i o n e r, Teresa Nyanchoka Ontumi Mandera(Ex officio), Benson Memba iii) D istrict Trade Development Offficer, Mandera(Secretary), The appointment of Davidson Manyibe iv) Bishaara Ali Hirsi (Mrs.), Mairura, Reuben Omambia, Magdaline v) Chairman, Kenya National Nyaboke Mwebi and Jamil Shamji are Chamber of Commerce and revoked. Industry, Mandera Branch. Suba District Gazette Notice No. 4250, Dated 21st April, 2011 Mbita Sub-District Hospital George Bor(Chairman) The Baringo Trade Development Joint John Otieno Osodo Board Appointment of the following to be The appointment of John Elisha Ngari members: Macharia as Chairman is revoked. Mathew Kipyator Tuitoek (Chairman), Rongo District D i s t r i c t C o m m i s s i o n e r, Baringo(Ex officio), Awendo Sub-District Hospital District Trade Development Susan Akinyi Offficer, Baringo(Secretary), Dinah J. Tallam (Ms.), The appointment Margaret Otieno is Chairman, Kenya National revoked. Chamber of Commerce and Industry, Baringo Branch, Coast Province Lamu District Gazette Notice No. 4247, Dated 21st Lamu District Hospital April, 2011 Ahamed Said Abdulrahman (Chairman) The Town Council of Nyamira Salim Ali Mohamed The following were appointed to Fatma Salim Elbusaidy conduct an extraordinary inspection The appointment of Ali Fani, Idruis Alwy, of the accounts and records and to Christine Chao and Sharifa Abubakar are conduct investigations, researchers and revoked. inquiries into the general administration and financial management of the Town Mwatate District Council. Mwambirwa Sub-District Hospital i) Joseph Ondiek Ayim, ii) Amos Omari Shadrack Mwalukuku (Chairman) Gazette Notice No. 4248, Dated 21st Peter Mdawida April, 2011 Sharllete Givan Alfred Odongo Warangi (Rev.) Appointment of Provincial, District Rose Mkamburi and Sub-District Hospital Management Beatrice Msae Fundi Committee Members Central Province The Government Financial Management Nyeri Central District Act (No. 5 of 2004) provides for the Mt. Kenya Sub-District Hospital establishment of provincial, District and Sub- District Hospital Management Daniel Wamahiu Kiongo(Chairman) Committees who are to their functions The appointment of James Waibochi as in relation to public hospitals. The Chairman is revoked. following were appointed: Othaya District Nyanza Province Othaya District Hospital Kisii Central District
The appointment of Muchiri Ngatia (Dr.) as Chairman is revoked. Western Province Kakamega East District Shamakhubu District Hospital The appointment of Shisundi Shitichi, Gabriel Muganda, Elizabeth Butoy and Mauris Milimo is revoked. Butere District Butere District Hospital Grace Namai(Chairman) Byroze Lubanga Otsumbo The appointment of Samuel Twalwa is revoked. Gazette Notice No. 4574 Dated 26th April, 2011 Revocation of Nomination Of Councillors The Deputy Prime Minister and Minister for Local Government revoked the nominations of the following as Councillors:
Name Name of Local Authority
Muriithi Kangara John Njiru Njue
County Council of Kirinyaga Municipal Council of Thika
Gazette Notice No. 4575, Dated 26th April, 2011 NOMINATION OF COUNCILLORS The following were nominated as Councillors for the respective Local Authorities:
Name County/Town/Municipal Council
Cyrus Murage Gichira Andrew Muthee Wasimara Janet Wamalwa Samuel Mwatha Kamau
Kirinyaga Naivasha Sirisia Thika
Gazette Notice No. 4576, Dated 26th April, 2011 Appointment The following persons were appointed to represent the Government in the following local Authorities: Fanuel Amolo County Council of Busia Paul Mugethi County Council
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of Maragua a) Willy Munywoki Mutunga (Dr.) b) Nancy Makokha Baraza (Ms.) Kenya Gazette Volume No. 55, Dated Appointment of Director of Public 16th June, 2011. Prosecutions Appointment of Chief Justice and Through this Gazette Notice, Keriako Tobiko was appointed as the Director Deputy Chief Justice Chapter ten of the Constitution of Kenya of Public Prosecutions. This office is makes provision for the establishment of established under Article 157 of the the Judiciary as an arm of Government. Constitution. Article 166 of the same provides for the appointment of the Chief Justice and The same article makes provision on Deputy Chief Justice by the President and the functions of the Office of Public in accordance with the recommendation Prosecution which include: of the Judicial Service Commission subject to the approval of the National a) Power to direct the InspectorGeneral of the National Police Assembly. Service to investigate any information or allegation of Section 29(2) of the Sixth Schedule criminal conduct. to the Constitution further dictates b) Exercise state powers by that appointments to be made by instituting and undertaking the President with the approval of criminal proceedings against any the National Assembly under the person before any court(other Constitution must be in consultation than a court martial) with the Prime Minister until after the c) Ta ke o v e r a n d c o n ti n u e first elections under the Constitution any criminal proceedings are held. This is subject to the National commences in any court with Accord and Reconciliation Act (No. 4 the permission of the person or of 2008) which was enacted to foster authority national accord and reconciliation by d) Discontinue at any stage giving effect to the Agreement on the before judgment is delivered Principles of Partnership of the Coalition any criminal proceedings Government. instituted by the Director or taken over by him. However, Thus with regard to the above, the if the discontinuance takes following were appointed to the offices place aster the close of the of Chief Justice and Deputy Chief Justice prosecutions case, then the respectively; defendant shall be acquitted and the discontinuance must be with the permission of the court. Appointment of Judges of The Supreme Court Article 166(1) (b) of the Constitution of Kenya provides that the President will appoint Judges with the recommendation of the Judicial Service Commission. Therefore, through this Gazette Notice, the following were appointed to be Judges of the Supreme Court of Kenya: a) Philip Kiptoo Tunoi b) Jackton Boma Ojwang (Prof.) c) Mohamed Khadhar Ibrahim, d) Smokin Wanjala (Dr.) e) Njoki Ndungu Susanna (Ms.) The qualifications of a Supreme Court Judge are stipulated in the Constitution as they have to: a) Hold a degree in law from a recognized university, or are advocates of the High Court of Kenya or possess an equivalent qualification from a commonlaw jurisdiction; b) Have fifteen years experience as a superior court judge, distinguished academic, judicial officer, or legal practitioner and c) Have high moral character, integrity and impartiality.
law of life, and a man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position. (Mohandas Gandhi)
Constant development is the
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Establishment of TASK FORCES & COMMITTEES

(By Wambui Kamau, Legal Researcher)
ask Forces are established so as to work on a defined task or activity. In the recent past, the Kenyan Government has established Task Forces to aid in certain tasks and more especially in the formulation of new laws. Once formed, they are published in the Kenya Gazette for the notification to the general public. The following is a summation of the taskforces established by the relevant ministries formed during the period of March and May, 2011
of the Ministry. Gazette Notice No. 3550, Dated 8th April, 2011. 1. Establishment of The Task Force to Draft The Victims of Offences Bill and The Bail Information and Supervision Bill On the 31st of March, 2011, the office of the Vice-President and Ministry of Home Affairs established a Task Force to Draft the Victims of Offences Bill and the Bail Information and Supervision Bill.
A. OFFICE OF THE VICE-PRESIDENT AND MINISTRY OF HOME AFFAIRS The mandate of the Task Force will be to propose two Bills on Victim of Offences These Task Forces established under this and Bail Information and Supervision. In Ministry are accountable to the Vice- addition, the Task Force will propose the President and Minister for Home Affairs structures, processes and regulations by making monthly progress reports and for the protection of the rights of presenting a final report at the end of victims of offences and the provision of their four month term. The four months psychosocial support services and the commence the date after gazettement generation and use of Bail information of this notice. for the Supervision of persons admitted to bail. To achieve their mandate, the Taskforces This Task Force will be chaired by will have to collect and collate information Dorcas Kitaa Shikuku as chairperson necessary for the development of the and Charles Wanyoike assisting as the legislations by holding stakeholder Vice- Chairperson. workshops to validate the Draft Bills and also making other appropriate The members are: recommendations for the fulfillment of its objectives. John Makau. Elecah M. Mbithi. They will regulate their own procedures Kennedy Nyagudi. by developing a work plan. It will Josephine Muthami. also receive relevant information and Amina Abdallah. documents that it requires and seek Nicholas Mulila. assistance from a consultant as it may Josephat Ituka. deem appropriate. Kennedy Odipo. Rhoda Amulele-Ogoma. In relation to the membership, quorum Paul K. Gachiri. for any meeting for the purposes of Stephen N. Mbungi. conducting business other than to Bishop Chabuga. appoint a temporary chairman shall be Peter Maundu. seven (7) excluding the Chairman. Secretariat: Any member of the Task Force other than John Bii. Public officers may resign in writing to Carole Atieno. the Minister and such resignation shall Moses Mabonga. take effect upon such letter of resignation being received by the Minister. Gazette Notice No. 3551, Dated 8th April, 2011 and Gazette Notice No. 3931, The costs incurred by the Task Forces, Dated 15th April, 2011. shall be defrayed from the voted funds
2. Establishment of The Task Force to Propose A National Lottery Bill, Propose Amendments to The Betting Lotteries And Gaming Act, Cap 131 of The Laws of Kenya; and Prepare a Draft National Gaming Policy The Betting , Lotteries and Gaming Act (Cap. 131) provides for the control and licensing of betting and gaming premises and the imposition and recovery of tax on betting and gaming and authorization of public lotteries. In line with the objectives of this Act, this Task Force is established to amend the Betting Lotteries and Gaming Act, propose a National Lotteries Bill, prepare a draft National Gaming Policy and to determine functions and powers of the National and County governments in respect of Betting, Casinos and other forms of gambling. In addition to these objectives the Task Force is to determine the transfer of functions and powers between the National and County governments in respect of betting, casinos and other forms of gambling and determine the levels of cooperation between National and County governments in respect of Betting, Casinos and other forms of gambling. The Task Force will be chaired by Pamela M. Tutui who was appointed via Gazette Notice number 3931, dated 15th April, 2011 which revoked the earlier appointment of Matemu Mumo. She will be assisted by Nakhali WaOpembe as Vice- Chairperson. The members of the task force are: Victor Ogeto. Wilson Mamboleo (Rev.). John Katiku. Geoffrey Segero. Wilberforce Kisiero. Herbert Misigo (Dr.). John W. Njogu. Charles Wambia. Titi Ayiera. Christoper Oisebe. Mutua Muthusi. Afya Rama. Elizabeth Nganga. Secretariat:
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Fredrick Mbasi. Alice Macharia. Thuo Githinji. Gazette Notice No. 3552, Dated 8th April, 2011. 3. Establishment Of The Task Force To Draft The Bill On The Rights Of Persons Detained, Held In Custody Or Imprisoned This Task Force is established so as to propose the Bill on the rights of persons detained, held in custody or imprisoned. It will also make provision for the proper care, protection of the rights of persons held in correctional institutions and places of detention and make other appropriate recommendations on the rights of persons detained, held in custody or imprisoned. The Task Force is established so as to study existing legislation, policies and other relevant documents regarding the management of water catchment areas and identify any document gaps in the existing legislation, policies and other relevant documents. It is also charged with mandate to identify, map and document water catchment areas in the country including areas that have ceased to be catchment areas, document the environmental status of each water catchment area. Gazette Notice No. 4936, Dated 29th April, 2011. 2. Taskforce To Implement Land Use Environment And Natural Resources Provisions Of The Constitution This Task Force was established through Gazette Notice Number 13880 of 2010 which mandated it to review existing legislation and making recommendations concerning provisions to be repealed by new bill(s), deleted and replaced with alternative provisions. It is also tasked with the drafting of new bills in areas under which the Ministry is taking the role of Lead Agency under the Action Plan Relating to Enactment of Legislation by Parliament. It will perform its duties by developing checklists for reviewing and consulting on other bills under the Action plan that are the oversight of other Ministries and those under review by other bodies such as the Kenya Law Reform Commission Thus this notice bore the following additional appointments to the Task Force as members i) ii) iii) Akunga Momanyi Nathans Browne Mathew Kimanzi
In its findings, the Task Force should recommend appropriate intervention measures for each water catchment a r e a a n d p r e p a r e a n a c ti o n plan for implementation of the recommendations. In addition, it should draft a master plan for the sustainable management of the water catchment areas and identify potential sources of This Task Force will be chaired by Paul resources, both financial and human Musili Wambua (Dr.) and Titus Mwenda for undertaking the recommended interventions. Karani as Vice- Chairperson. The term of the task force shall be a period of six (6) month with effect from The membership include: 16th March, 2011. Fatuma Dullo. The membership which will comprise Lucas Mwaura (Fr. Dr.). of the following should elect its own Jones Mwanzia Kikuyu. chairperson and identify and co-opt Janet Kotut. other members or any other resources Charles Kisembe. provided that the co-opted members do Mary Kangethe. not exceed one-third of the Task Force. Marlene A. Ayiro. Mohamed Munyanya. Members: Ole Masi (Rev.). Hassan Noor Hassan. Charles Obulutsa. Esther Kathure Magambo. Everlyn Arisi. Esther N. Ndirangu. Waikwa Wanyoike. Henry Njuguna. Grace Murungi. Zaverio N. Njeru. Beatrice Manyonge. Secretariat Erastus W. Wahome. Charles Kigotho. Lornah Akoth Odero. Christine Ochieng. Anne Nyakihu Mukoma. Rose Komu. Fransica Wamboi. B. MINISTRY OF ENVIRONMENT AND Michael Gachanja. Esther Muiruri. MINERAL RESOURCES Through the Minister, the following Task Moses Imo (Prof.) Forces were established and the terms Joy Obando (Dr.). Francis N. Gachathi. extended. Gazette Notice No. 3554, Dated 8th Secretary: Alice A. Kaudia (Dr.). April, 2011.
C. ESTABLISHMENT OF COMMITTEES Gazette Notice No. 4937, Dated 29th April, 2011. M.I.C.E COMMITTEE MEMBERS AND SECRETARIAT M.I.C.E is an acronym for Meetings, Incentives, Conferences and Exhibitions. It is a product of the Ministry of Tourism and Wildlife for purposes of diversifying its tourist product and source markets in a bid to further promote Kenya as the Preferred Tourist destination. Therefore, through this notice, the following were appointed by the Minister for a period of three years with effect from 16th June, 2010. Les Baille-Chairman Dick Omondi S.K Maina Wturi Matu Jane Chege( Ms) Mike Macharia Gina Din Kariuki(Ms)
1. Extension Of The Term For The Task The Secretariat of the Task Force shall Force To Develop A Master Plan For be situated at the National Hospital Conservation Of Water Catchment Insurance Fund Building, 12th Floor, Nairobi. Areas 56
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Johnson Weru Fred Kaigua Directore of Tourism Chief Executive, Public Relations Society of Kenya (PRSK), university recognized by the relevant Kenyan authority b) A t l e a s t fi ft e e n y e a r s distinguished post-qualification experience in their field of study c) Satisfy the requirements of Chapter Six of the Constitution which provides for Leadership and Integrity provisions. The dissimilarity between the Chairperson and members is in the qualifications where the Chairperson has to have at least twenty years experience as a judge of a superior court, a distinguished legal scholar, a senior administrative judicial officer or twenty years experience distinguished careers as a legal practitioner whereby the members have the same but for fifteen years. (a) Provisions to be repealed by new bill(s). (b) Provisions to be deleted and replaced with alternative provisions. (ii) Drafting of new bills in areas under which the Ministry of Environment and Mineral Resources is taking the role of Lead Agency under the Action Plan Relating to Enactment of Legislation by Parliament; (iii) Developing checklists for reviewing and consulting on other bills under the: (a) Action plan that are the oversight of other Ministries under the Action Plan. (b) Action Plan that are under review by other bodies e.g. the Kenya Law Reform Commission.
The Secretariat are: Muriithi Ndegwa Beatrice Makawiti (Mrs.) Fred Simiyu Bernard Asoro
Gazette Notice No. 3261A and 3260B, Dated 29th March, 2011 and Gazette Notices 5366 and 5367, Dated 19th May, 2011 Declaration of Vacancy in The Offices of The Chairperson and Members of The Judges and Magistrates Vetting Board. Through the Special Gazette Notice No. 3261A and 3260B, dated 29th March, 2011, vacancies were advertised for the positions of Chairperson and Members of the Judges and Magistrates Vetting Board. The advertisement is made pursuant the Vetting of Judges and Magistrates Act, No. 2 of 2011 section 9(2) which provides that the President in consultation with the Prime Minister shall by notice in the Gazette declare the vacancies in the Board.
However, an amendment to section 9(2) of the Act by the Vetting of Judges and Magistrates (Amendment) Act(No. 6 of 2011) was passed that had the effect including advertisements of the vacancies in the Board in at least two newspapers of national circulation in addition to the one advertised in the Kenya Gazette. This amendment was followed by a re-advertisement of the Gazette Notice No. 3263, Dated 1st vacancies in the second Gazette Notice April, 2011. listed above. The Steering Committee on Nairobi The Act in section provides that the International Financial Centre members of the Board will be nine in Through Gazette Notice No. 15891/2010, number, of whom, six will be citizens of dated 19th November, 2010, the Kenya, three of whom are lawyers and Minister for Environment and Mineral the other three will be non- citizens Resources, appointed a taskforce for of Kenya. The qualification of the non- drafting Legislation Implementing Land citizens are set out in Section 9(13) which Use, Environment and Natural Resource states that they should be serving or Provisions for the Kenya Constitution. retired judges, each of whom has served The terms of reference of the Taskforce as a Chief Justice or judge of a superior include: (i) Reviewing existing legislation court in the Commonwealth. and making recommendations Other qualifications include: concerning: a) A holder of a degree from a
However, there are persons who are not Therefore, this notice bore the additional eligible to for appointment who include: appointment of the Permanent Secretary to the Ministry of Information and a) Member of Parliament Communications to be a member of b) Member of a local Authority the Steering Committee on Nairobi c) M e m b e r o f a n exe c u ti ve International Financial Centre (NIFC) member of a political party and d) A person serving as a judge or Gazette Notice No. 3271 and 3272, magistrate in Kenya as of 27th Dated 1st April, 2011. August, 2010. Vacancies for The Offices of Judge of Applications should have been sent by Supreme Court and High Court of Kenya the 2nd of June, 2011 addressed to the The Constitution of Kenya, 2010 provides Public Service Commission and names for the establishment of the Supreme of all applicants were to be published in Court in section 163. A total of seven the Kenya Gazette. Judges will constitute this Court. As for the High Court, it is established in section A point to note is that persons who had 165 and it will consist of such number applied through the earlier notice need of judges as the Judicial Service Act will not re-apply. determine. Thus, the Judicial Service Commission of Kenya through this notices invited applications from qualified persons for the following positions in Constitutional office of the Judge of the Supreme Court (5 Posts) and Judge of the High Court (26 Posts). The retirement age is capped at 70 years with an election to retire at the age of 65 years. The functions of a Judge of the Supreme Court are set out as having exclusive original jurisdiction to hear and determine disputes relating to the elections of the Office of the President
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arising under article 140, and to hear and academic, judicial officer, legal determine in its appellate Jurisdiction practitioner or such experience appeals from the Court of Appeal and in other relevant legal field; or any other Court or tribunal as prescribed ten year(10) for a High Court by the National Legislature. Judge. A Supreme Court Judge is also to give c) Held the qualification specified an Advisory opinion at the request of in paragraphs (a) and (b) for a the national government, any state period amounting, in aggregate, organ, or any county government with to fifteen years (experience respect of any matter concerning county gained in Kenya or in another government. Commonwealth common law jurisdiction will be considered). The duties of a High Court Judge include d) Have a high moral character, having unlimited original jurisdiction in integrity and impartiality. criminal and civil matters, jurisdiction (In addition to the above to determine the question whether a qualifications, the applicants right or fundamental freedom in the must demonstrate a high degree Bill of Rights has been denied, violated, of professional competence, infringed or threatened. I addition, a communication skills, fairness, High Court Judge will have jurisdiction good temperament, making to hear an appeal from a decision of a of good judgments in both tribunal appointed under Article 144 of legal and life experiences and the Constitution. commitment to public and community service). A high Court Judge will have jurisdiction to hear any question respecting the In addition to interested and qualified interpretation of the Constitution persons forwarding their letter of including the determination of application, and a detailed and updated curriculum vitae summarizing (i) The question whether any the applicants bio-data including, l a w i s i n co n s i ste nt w i t h background information. They were or in contravention of the to submit completed application for Constitution; employment forms in triplicateJCS (ii) The question whether anything 2A (for public officers) or JSC 2 (for said to be done under the other applicants),five (5) samples of authority of the Constitution any writings by the applicant, including or of any law is inconsistent but not limited to judgements, scholarly with, or in contravention of, the writings or any legal publications that the Constitution. applicant has authored. (iii) Any matter relating to constitutional powers of State Applicants were to submit a declaration organs in respect of county of income and liabilities as at the time governments and any matter of making the application using the relating to the constitutional prescribed form (The Declaration of relationship between the levels Income, Assets and Liabilities Form of government; and JSC 2b). For those in Government (iv) A question relating to conflict employment, attach copies of returns of laws under Article 191 of the of declaration of income and liabilities Constitution. and for those in private practice attach income tax returns, for the last three (3) As for the Constitutional and statutory years and certified copies of testimonials requirements for appointment, the and professional certificates and applicants must possess the following academic transcripts. qualification: a) At least fifteen (15) years Gazette Notice No. 5368, Dated 20th experience as a superior court May, 2011. Judge; or ten (10) for a High Court Judge. Establishment of The Imarisha Lake b) At least fifteen (15) years Naivasha Management Board experience as a distinguished The Prime Minister of the Republic 58
of Kenya has appointed the Imarisha Lake Naivasha Management Board to manage the Lake Naivasha Catchment Restoration Programme. The objective of the Programme is to restore Lake Naivasha and its catchment area. The mandate of the Board is to develop a programme to: a) D e v e l o p a p r o g r a m m e (Imarisha Naivasha Programme) to co-ordinate the activities of various players engaged in the conservation of the lake and its catchment, and for that purpose to review and approve projects; b) Monitor compliance with the laws and regulations governing the environment of the lake and its catchment in collaboration with the relevant Ministries; c) Develop and enforce codes of conduct to be observed by the players in order to improve the environment and establish sustainability of the lake and its catchment in partnership with the relevant stakeholders; d) Develop, adopt and execute a Trust or other instrument to receive financial resources from within or outside Kenya to finance the implementation of programmes, for which the Board shall be fully accountable fo r p ro p e r a n d p r u d e n t management and for the loss of which it shall be liable; e) C o l l a b o rate w i t h a l l t h e stakeholders, including research institutions and promote their active participation in the Imarisha Naivasha Programme w i t h i n t h e l a ke a n d i t s catchment. The Board is accountable to the Inter Ministerial Technical Committee by reporting on a quarterly basis. The Board serves for a renewable one year term and its membership is as follows: a) The Permanent Secretary in Ministry responsible for the environment; b) The District Commissioner, Naivasha District; c) The Mayor of the Naivasha Municipal Council;
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d) Andrew Koisamoi, representing pastoralists; e) Mary Njoki, representing C atc h m e nt Wate r U s e r Associations; f) L o rd A n d re w E n n i s ke l i n , representing Lake Naivasha Riparian Association; g) Richard Fox, representing Lake Naivasha Growers Group; h) Mary Njuguna, representing Community Forest Association; i) Raphael Ikiba, representing Beach Management Units; j) Mark Kariuki, representing Naivasha local business community and tourism industry; k) Anderson Koyo, representing civil society organizations. a) C h a i r p e rs o n : Pe r m a n e n t S e c r e t a r y, M i n i s t r y o f Environment and Mineral Resources. b) Co-chairperson;Economic Advisor to the Prime Minister. c) Secretary; Assistant Director of Programmes in the Ministry responsible for the environment. d) one representative each from the Ministries responsible for 1.finance; 2.local government; 3.water and irrigation; 4.agriculture; 5.tourism; 6.forestry and wildlife; 7.energy; 8.fisheries; development; 9.livestock development; 10.public health and sanitation; and 11.lands. or researches to be undertaken as may inform the Board of its mandate, may co-opt such individual or institutions as it may deem appropriate and shall report serious breaches of the law to the Minister responsible for matters relating to the environment and the Prime Minister. In general, the Board may regulate its own procedures and may issue guidelines with respect to the orderly conduct of its proceedings, the quorum for the transaction of its business and other related matters. (2) The Committee shall a) provide policy and technical guidance to the Board; b) facilitate the implementation of the Imarisha Naivasha Programme; c) co-ordinate actions required by the Government to resolve m atte rs b ro u g ht to t h e Committee by the Board; d) undertake any other tasks that may be assigned by the Prime Minister.
The Secretariat of the Board shall be based at the Office of the Prime Minister and shall comprise a Secretary and such number of staff as may be deemed appropriate by the Board.
T h e I nte r- M i n i ste r i a l Te c h n i ca l For the performance of its functions, Committee reports to the Prime Minister the Board shall meet at such places and and it is has the following membership: times as it deems fit, cause such studies
Let every man remember that to violate the

law is to trample on the blood of his father, and to tear that charter of his own and his childrens liberty. (Abraham Lincoln)
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Human Resources And Administration Department
Uwazi cup SOCCER TOURNAMENT, 2011

prosperous Kenya. The guest of honor was Hon. Martha Karua M.P. for Gichugu and former Minister for Justice, National Cohesion and Constitutional Affairs. for transparency and accountability through access to information. The Council earnestly participated in this tournament and narrowly missed the cup and reached the semi finals.
By Mutindi Musuva, Team Leader, HR and Admin.
he second annual Uwazi Cup Soccer Tournament by the International Commission of Jurists Kenya section (ICJ) was held on May 7, 2011 at the Impala Club Grounds. The theme of the tournament was An informed citizen, a transparent Government, a
The tournament was well attended with 21 teams participating drawn from law The Council presented a formidable firms, corporate, civil society and the team for the six a side match to secure second best position for the Losers plate. media. Kituo Cha Seria won the tournaments cup The Kenyan Section of the International while Kenya Broadcasting Corporation Commission of Jurists (ICJ Kenya) is a non- won the tournaments Losers plate title. governmental, and not for profit making organization. Its tripartite mandate is to Members of staff made the families and promote and protect the Rule of Law, friends who had joined the Council to cheer and play left the Impala grounds Human Rights and Democracy heads high and in good spirits. It had Last year ICJ-Kenya launched the annual been a great day with good weather and Uwazi Cup Football Tournament which an excellent opportunity to network and seeks to bring the private sector, legal mingle with colleagues and professionals fraternity and civil society together in from other firms. a move to raise awareness on the need
(1-7) The National Council for Law Reports team at different stages of the tournament.
2
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4 5
7
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Gichugu Mp and former Justice and Constitutional Affairs Minister the Hon Martha Karua (left) during the official opening of the Justice cup.
(1-3) The National Council for Law Reports team in action.
3
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Research And Development Department
NCLR launches ONLINE ARCHIVE OF KENYA GAZETTE AT
THE CONNECTED KENYA SUMMIT
By Nicholas Okemwa, Snr. Law Reporter, (H.O.D) Research and Development Department
he Connected Kenya Summit (previously known as the Connected Government Summit) is the brainchild of the Kenya ICT Board in consultation with industry players and key government decision makers. The Summit aims to establishing a platform for collaboration, capacity building and priority sharing between government and the IT sector with a view of linking and hastening implementation of government IT projects to world class standards. The theme for the 2011 Connected Kenya Summit was Innovating for the Citizen. It was held at Leisure Lodge, Mombasa between 18th and 21st of April. NCLRs presentation was made by its Editor and CEO Mr. Michael Murungi together with representatives from Google and the Government Press. Other representatives of the Council included Ms. Linda Awuor, Mr. Michael Mayaka and Mr. Nicholas Okemwa. Some of the entities that had presentations included Safaricom, IBM, Telkom Orange and the Judiciary of Kenya. NCLRs mission is to provide access to public legal information in order to aid the administration of and access to justice, the knowledge of the law and the development of jurisprudence. Our ethos is that public legal information is part of the common heritage of humanity. It is our belief that maximizing access to such information promotes justice and rule of law in society. On that note, we believe that public legal information should be accessible to all free of charge and on
into digital documents and then leveraged on Googles unique indexing and search engine technology to provide user friendly online access. Through state-of-the art OCR (object character recognition) technology, historical issues developed with typewriters or in image formats now have their text indexed and fully searchable. This exposes readers to While section 35 of the Constitution information they might not otherwise of Kenya 2010 establishes the citizens find, in the same visual format that the right of access to public information, documents exist. actual access to public legal information is limited by among other factors, the So far, the earliest edition of the Kenya nature of the platforms on which this Gazette collected and indexed is dated information is deployed. The creation, January 15th 1906 whilst the latest management and deployment of edition is dated December 22, 2006. The Kenyas public legal information (the tracing and inclusion of earlier decisions Laws of Kenya; Judicial Opinions; the than 1906 and later decisions that are Parliamentary Hansard; Legal Notices; missing is currently underway. In fact Gazette Notices; Bills of Parliament and the earliest edition in Kenyas history, Treaties & International Instruments) is Volume 1 of 1899 has been traced and not predicated on a common standard is in the process of being scanned and that would allow easy citizen access indexed. to the information using current and emerging technologies. Considering the The importance of these early records diversity of the institutions in the public cannot be gainsaid. The records contain legal information domain, there is need information of enormous value to Kenyas to adopt a standardized technology social, legal and political heritage-from platform to improve data exchange, the laws and policies of the British document life-cycle automation and settlers in the Colony and Protectorate of standardized representations of data East Africa, to the notices capturing the transition to internal self government and metadata. and the birth of the Republic of Kenya; To that end NCLR has partnered with from the declaration in 1952 of the the Kenya National Assembly, the Mau Mau as an unlawful society to the Government Press, Kenya ICT Board and lifting of the declaration in 2003. The Google Inc. under an initiative named records are an invaluable repository of Open Access to Public Legal where NCLR knowledge and information on Kenyas is the convener of the reference group governance. Citizens can now easily and implementation leader. Under the search, access and cross-reference initiative, NCLR has spearheaded the contextually relevant information. efforts to provide access to the Kenya Gazette on a platform that makes it NCLR is currently in the process of easy to search and browse through the using the same technology to make records while retaining their original the records of Parliamentary debates (Hansard) accessible and user friendly. look and feel. a non profit basis. To this end, in 2007, NCLR joined the Free Access to Law Movement which is the umbrella name for a number of initiatives and projects across several common law countries aimed at providing free online access to legal information such as case law and legislation. Beforehand, the early editions of the Kenya Gazette have been previously available to the public in paper form as part of the public records of the Kenya National Archives. However, because they were preserved in paper form, public access to them was limited. NCLR in conjunction with the Government Printer converted these paper records CALL FOR ARTICLES NCLR is calling on judicial officers, scholars, advocates, law students and other interested parties who wish to have their papers published online on the NCLR website www.kenyalaw.org to kindly email the same to the Editor at editor@kenyalawreports.or.ke. The article should be accompanied with a
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statement of originality. NOTICE OF PUBLICATION OF THE 2ND VOLUME AND CALL FOR PAPERS FOR 3RD VOLUME NOTICE OF PUBLICATION The National Council for Law Reporting is pleased to announce that the second edition of the Kenya Law Review Journal is out. The Journal is published annually and has established itself as a leader for both international and local readers in discussions on Kenyan law. As we wait for the print edition of the journal to roll off the printing press, the online version may be accessed for free under the KLR Journal segment of our website - www. kenyalaw.org . be non-ideological and with a multidisciplinary outlook, to include articles showing the interplay between the law and other disciplines. The Editor of the Kenya Law Reports therefore welcomes scholarly work from legal scholars, judicial officers, legal practitioners, students, law and society scholars (including criminology, psychology, sociology, and other social sciences) and finance and economics s c h o l a rs to s u b m i t a r ti c l e s fo r consideration. an editable word - processed computer file. They should conform to academic citation standards, be no longer than 12,000 words, and include an abstract of up to 350 words.
The submissions should include: I. The authors full names and contacts; II. A declaration of originality; III. A statement of whether the work has been previously published or tendered for publication in any other publication and where this is the case, the name of the publisher and the date of Submissions for publication must be publication; received on or before the following IV. A statement that the author dates: consents to the publication of the work by the National For Volume III of the Journal: 30th CALL FOR PAPERS Council for Law Reporting. December, 2011. The Council is calling for papers for the third edition of the Journal. The Journal provides a forum for the The selection committee, composed of All submissions and enquiries should be scholarly analysis of Kenyan law and the editorial board of the Journal, will addressed to: interdisciplinary academic research on review and consider all submissions for publication and the contributors will be The Editor the law. given notification of the acceptance of National Council for Law Reporting The focus of the Journal is on studies their works for publication in the Journal. Milimiani Commercial Courts, Ground Floor, of the legal system and analyses of Off Ngong Road Each submission should be peer contemporary legal issues with particular P.O. Box 10443-001000 reviewed by an eminent scholar or emphasis on the articles substantive Nairobi professional in the subject covered, be contribution to understanding some Email: editor@kenyalawreports.or.ke written in English and submitted both aspect of the countrys legal system. in signed paper copy and in soft copy as The Editorial Policy of the Journal is to
Dennis Gikunda, Ory Okolloh (Google Inc) Michael Murungi, C.E.O NCLR at the NCLR stand
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Michael Mayaka of NCLR conducting a live run of the Kenya Gazette portal
Linda Awuor (NCLR), Denniss Gikunda, Ory Okolloh (Google Inc) and Martin Mbui (NCLR)
Various participants stands at the auditorium.
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KENYA LAW
www.kenyalaw.org
NATIONAL COUNCIL FOR LAW REPORTING

A service state corporation in the Judiciary.
THE OFFICIAL LAW REPORTS OF
REPORTS
100 00 - YEAR ARCHIVE OF THE KENYA GAZET GAZETTE
THE REPUBLIC OF KENYA
FROM 1906
To
THE PRESENT TIME
Now available on: www.kenyalaw.org

With the speed and functionality of GOOGLE BOOKS unique technology platform
What is the big news? Kenyans now have online access to the archival records of the Kenya Gazette Notices dating back to 1906 in an easily searchable and reliable platform. What is contained in these records? The Kenya Gazette is an official government publication containing notices of new legislation, notices required to be published by law or policy as well as other announcements that are published for general public information. Presently, the Kenya Gazette is published by the Government Press every week, usually on Friday, with occasional releases of special or supplementary editions within the week. What is the relevance of these records? The records contain information of enormous value to Kenyas social, legal and political heritage - from the laws and policies of the British settlers in the Colony and Protectortate of East Africa, to the notices capturing the transition to internal self governent and the birth of the Republic of Kenya; from the declaration in 1952 of the Mau Mau as an unlawful society to the lifting of the declaration in 2003. Where have the records been?These records have been previously available to the public in
paper form as part of the public records of the Government Press. However, because they were preserved in paper form, public access to them was limited. How did the records become available online?The availability of these historical records online is one of the initiatives of a project aimed at improving citizen access to public legal information involving the National Council for Law Reporting, the Kenya National Assembly, the Government Press, the Kenya ICT Board and Google Inc. What about current and future records, will they be continuously provided on the portal? The portal has been established to provide the historical content of the Gazette Notices, the bulk of which was prepared and preserved exclusively in paper form. The portal is a unique platform for enabling easy access to and cross-referencing inside a stockpile of scanned paper documents. Since current and future records are generated and distributed as computer documents, they can be provided on a different online platform that provides even more functionality and better access. This new platform for the current content is what the National Council for Law Reporting and its partners in this initiative are working on. What makes the online platform on which
In partnership with:
these records provided unique? The online platform provides a robust hosting, indexing and browsing solution for documents, books and magazines, in the cloud. Through state-of-the-art OCR (object character recognition) technology, historical issues developed with typewriters or in image formats now have their text indexed and fully searchable.This exposes readers to information they might not otherwise find, in the same visual format that the documents exist. How accurate are the records? The records are actual representations of the original paper records from which they were derived. Are the records copyrighted or sold? The archival records of the Kenya Gazette notices are public information. They are published by the Government Press and provided freely to its citizens. There are no restrictions on the use of this content. Current editions of the Gazette can be purchased at the Government Press. Can one download, print and save the records? Downloading and saving is not enabled but users will be able to copy and share a link to any record in the archive. However, by using the print+screen feature on ones computer, a user is able to obtain a screen grab of any portion of the content displayed on the screen, to save it and to print it out.
Milimani Commercial Courts /4th Upper Hill Close/off Ngong Rd, P.O. Box 10443 - GPO 00100, Nairobi,Kenya / Tel: (+254 020) 2712767 Email: info@kenyalaw.org www.kenyalaw.org
Technology in Government in Africa

Award, 2011
KENYA NATIONAL ASSEMBLY GOVERNMENT PRESS
Company of the Year Award
Transforming Legal Informaon into Public Knowledge.
(COYA) Judges Award, 2010
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Finance Department
NCLR UNDERTAKES MAIDEN MERCHANT APPRAISAL

Secretary, Evaluation Committee/ Procurement
the assistance of the Judiciary and the Directorate of Public Procurement, we secured two procurement specialists, Mr. Eliud Koome (Senior Supply Chain Management Officer,SSCMO) and Mr Patrick Kipngeno (Procurement Officer, High Court). It is worth noting that the list of prequalified suppliers was prepared one month prior to the end of the financial year 2010-2011 in readiness for the next financial year (1st July 2011-30th June 2012). This elucidates the dedication of the procurement secretariat in regards to ensuring timeliness of the For purposes of undertaking the procurement processes, while abiding exercise, the CEO/Editor appointed to the rules and regulations governing two committees; the Tender Opening public procurement in Kenya. Committee comprising Pascal Othieno, Emmah Kinya, Wambui Kamau, Patrick With the approved list of pre-qualified Kipngeno, Catherine Moni , Andrew suppliers, the Council will be assured Kiarie and the Evaluation Committee of quality and timely supplies which comprising; Cornelius Lupao, Lameck will enable it realize its mandate and Oyare, Catherine Moni, Wambui Kamau, objectives as indicated in its strategic Eliud Koome, Patrick Kipngeno, Linda plan for the years 2009-2012. Awuor, Mutindi Musuva and I. The procurement secretariat and evaluation committee would like to T h e A d v e r ti s e m e n t f o r t h e thank Mr. Eliud Koome and Mr. Patrick prequalification of suppliers was Kipngeno for their support and expertise published in the Daily Nation and the throughout the entire process. In Standard on 26th April 2011 and the bids addition, we would like to appreciate were received on the 17th May 2011 and the contribution of the management of were opened by the Tender Opening NCLR in providing us with the necessary Committee in the presence of bidders. financial and human resources to The evaluation of the bids commenced undertake the appraisal process. on 18th May and was done at the Lenana House Conference hotel and it comprised two phases: Phase 1 was the evaluation of the prequalification documents based on the following criteria; evidence of registration documents and tax We are like dwarfs compliance, data on past experience, sitting on the shoulders 3rd party certification, availability of financial and human resources, status of giants. We see more, of litigation history relating to contracts and things that are more entered into by bidders as well as the extent to which the prospective bidders distant, than they did, would apply Information Technology to not because our sight is achieve enhanced product and service delivery. superior or because we
By Andrew Kiarie, Asst procurement officer
ne of the functions of the procurement unit according to Regulation 8, Subsection(3), Paragraph (a) of the Public Procurement and Disposal Regulations, 2006 is to maintain a standing list of suppliers which shall be used to source for the entities supplies for a given financial period. Since NCLR became operational in 2001, it has relied on the standing list of suppliers from the Judiciary. But over time, the NCLR has developed unique needs and the list of suppliers from the Judiciary has been inadequate in meeting the specialized needs of the Council.
In this regard, for the financial year 2011-2012, management of the council resolved to prequalify merchants with a view of obtaining adept suppliers capable of meeting the requirements of the council while keeping in mind the need for the supplier to meet specific principles of procurement applicable to merchants (value for money in terms of costs and quality as well as timely The second phase comprised of site deliveries). visits to selected strategic categories of suppliers who were responsive in In order to ensure compliance with phase 1. the Public Procurement and Disposal Act, 2005 and Public Procurement On the 27th May 2011, the evaluation and Disposal Regulations, 2006, as committee wound up its proceedings well as being the first time that NCLR and handed over a report to the was undertaking the exercise, it was Procurement Secretariat for presentation necessary to obtain assistance from to the tender committee in regard to experienced procurement specialists recommendations made with respect who would assist the procurement unit to the merchants that were considered and evaluation committee of NCLR. With responsive.
are taller than they, but because they raise us up, and by their great stature add to ours. John Salisbury Metalogicon, 1159.
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n) elius w. Lupao (chairma mbers : From left;Corn me ee itt mm and Co n are tio Oy lua Technical Eva Cathrine Moni, Lameck Kipngeno, Andrew Kiarie, Wambui Kamau, Patrick committe at work Eliud Koome; below, the
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Sales And Marketing Department
National Council for Law Reporting WINS CONTINENTAL
TECHNOLOGY AWARD
T
By Linda Awuor , Sales Marketing and Customer Care Department
he National Council for Law Reporting (NCLR) on May 2, 2011 won the prestigious Technology in Government in Africa (TIGA) Award, 2011. The award was presented to Mr. Michael Murungi, the CEO/Editor of the NCLR at a Gala Dinner held at
the Sheraton Hotel in Addis Ababa, Ethiopia during the Second Meeting of the Committee on Development Information, Science and Technology (CODIST-II), a committee of the United Nations Economic Commission for Africa (UN-ECA).
Mr. Michael Murungi (left), the CEO/Editor of the National Council for Law Reporting (left) receives the TIGA Award Trophy from Mr. Mohammed R. Tutai, Regional Technology Officer, Microsoft Asia (right). The National Council for Law Reporting is a state corporation under the Judiciary charged with the mandate of publishing the decisions of the courts of Kenya and also the Laws of Kenya. The TIGA Awards were launched in 2007 by UN-ECA and their aim is to recognise outstanding achievements by organizations or teams that develop and implement innovative projects to improve online government service delivery (such as service application forms, tax payments, revenue collection, birth & death registration, other forms of government eServices, etc.); with a specific focus on citizens or businesses as clients of government. The prizes are awarded in three levels - national, provincial and local. The awards are given in four categories - public service delivery to citizens/communities; improved health services through the use of ICTs; improved educational services through the use of ICTs and Public Private Partnership (PPP) in economic and financial eServices delivery. The Award recognises African Governments effective use of ICTs for public service delivery as part of fulfilling ECAs African Information Society Initiative (AISI) and the Government of Finlands Development Cooperation Strategy on ICTs for development in Africa. The public service category of the award recognizes outstanding
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achievements by organisations or teams in developing and implementing innovative projects to improve online government service delivery with a specific focus on citizens or businesses as clients of government. reciprocal advantages that obtain from access to each others laws; helping each other and to support, within their means, other organizations that share these goals with respect to promotion of public policy conductive to the accessibility of public legal information, technical assistance, advice and training, development of open technical standards, and academic exchange of research results. In their congratulatory remarks to the awardees, the Executive Secretary of the UN-ECA, Mr. Abdoulie Janneh; the Ambassador of Finland to Ethiopia and the UN-ECA, Mr. Leo Olasvirta and the Director of ICTs, Science and Technology Division in UN-ECA, Ms. Aida Opoku-Mensah, observed that the awards had established themselves as the barometer of e-government trends in Africa and an indication of the move by African Governments to support citizens access to vital information. The ceremony was attended by heads and members of country delegations to CODIST-II, civil society and private sector representatives and members of the diplomatic corps.
The NCLRs award fell under the Public Service Delivery to Citizens/ Communities (G2C) category particularly for its initiative in providing Free and Open Access to Public Legal Information in Kenya. In their citation of the NCLR, This years edition of the awards had the TIGA Award Judges stated: attracted over 89 entries from 24 African countries, 44 of which had The [NCLRs initiative] aims at been shortlisted. The other awardees recognizing the primary role of local under the public service category were initiatives in free publishing of their own Rwandas e-Soko project and Mauritius national information; co-operating in Government Online Centre for Enhanced order to achieve these goals; recognizing Public Service Delivery.
Mr. Murungi (second from right) is joined by some members of the Kenyan delegation to CODIST-II, Eng. James Rege, MP & Chairman of the Parliamentary Committee on Energy, Communications and Information (second left); Eng. John Kariuki, a Communications Technology Expert at the National Communications Secretariat (extreme left) and Mr. Leonard Oloo of the East African Law Society (extreme right).
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Feature Case Feature Case

AMENDMENT OF CHARGES AT THE TIME OF WRITING JUDGMENT FAULTED
Jon Cardon Wagner v Republic and 2 others High Court at Nairobi (Nairobi Law Courts) Criminal Appeal 405 & 406 of 2009 M Warsame J, March 22, 2011 By Esther Nyaiyaki Onchana
publicised conviction case against Jon Cardner Wagner (1 stAppellant), Fedha Nyamweru (2 ndAppellant) l case against Jon Cardner WagnerThe (1st highly Appellant), Fedha Nyamweru (2nd Appellant) Judyon Nyaguthe 3rd2011. Appellant) was overturned llant) was overturned by the High& Court March 22, The court set aside theby the High Court on March 22, 2011. The court set aside the sentence againsterrors the three on the grounds that the trial court made fundamental errors among them, nst the three on the grounds that theconviction trial courtand made fundamental among them, amending the charged preferred against the respondents red against the respondents at the time of writing its judgment. The rationale and the at the time of writing its judgment. The rationale and the logicwhen of amending the charges atno theopportunity time of writing when the 1 st appellant had no opportunity to s at the time of writing the judgement the 1st appellant had to the judgement reply or contest is not clear to me. I therefore think the 1 st appellant was justified in attacking the amendment to me. I therefore think the 1st appellant was justified in attacking the amendment undertaken by the trial court at the stage of writing the judgement presiding Justice Warsame held. at the stage of writing the judgement presiding Justice Warsame held.
The court also faulted the interference by third parties who were directing police as to the circumstances and mode erference by third parties who were directing police as to the circumstances and mode of investigations. There was a departure from the central principle which is that there must be independent and a departure from the central principle which is that there Such mustabe independent and for concern and would damage a significant aspect of public impartial investigations. departure is a ground h a departure is a ground for concern and would a significant aspect public interest in thedamage administration of justice theof court warned. n of justice the court warned.
The 1 stappellant was charged with three principal counts of defilement under section 8(1) as read with section 8(4) d with three principal counts of defilement underOffences section Act 8(1) as read with section of the Sexual No.3 of 2006. He was 8(4) also charged with three alternative counts under section 11(1) of the o.3 of 2006. He was also charged with three alternative counts under section Sexual Offences Act. On the other hand,11(1) the of 2 ndthe and 3 rdappellants were charged and convicted on two counts of other hand, the 2nd and 3rd appellants chargedcontrary and convicted on two of Offences Act No.3 of 2006. The 1st appellant was sentenced childwere prostitution to section 15(a) counts of the Sexual section 15(a) of the Sexual Offences Act of 2006. The 1st on appellant was sentenced to 15 No.3 years imprisonment each count and sentenced ordered to run concurrently. The 2nd and 3 rd appellants were each count and sentenced ordered sentenced to run concurrently. The 2nd and 3rd appellants to 10 years in jail for each count. The sentence was ordered to run concurrent. All the appellants were jail for each count. The sentence was orderedby tothe run concurrent. All the appellants aggrieved conviction and sentence made on 11th September 2009 by the trial court thereby filing an appeal. The 1 stappellant setthe outtrial 51 grounds of appeal whilean the 2 nd and 3 rd appellants each put up 11 similar grounds of appeal ction and sentence made on 11th September 2009 by court thereby filing against conviction and sentence. For purposes of clarity et out 51 grounds of appeal while the 2nd and 3rd appellants each put up 11 similar and simplicity, the appeals were consolidated and argued in a concise manner the advocates for the appellants. onviction and sentence. For purposes of clarity and by simplicity, the appeals were concise manner by the advocates for the appellants. On January 28 2011, the High Court granted Mr. Wagner and the two appellants bail pending the the instant appeal. Mr.the Wagner was required to deposit Kshs.1 million in court and in 011, the High Court granted Mr. Wagner and hearing the twoof appellants bail pending addition deposit his passport thein Deputy Registrar of the Court. At the time the court emphasized stant appeal. Mr. Wagner was required to deposit Kshs.1 million in court to and that in defilement case it was essential t his passport to the Deputy Registrar of the Court. At the time the court emphasized to prove the age of the complainant either by way of medical evidence or through evidence since the Sexual Offences Act had different categories of offences ent case it was essential to prove the age of complainant either by other way of medical and sentences for different ages. In ough other evidence since the Sexual Offences Act had different categories of offences order to determine the conflict between the allegations by the defence and the evidence by the prosecution, the appeal had to be heard conclusively. for different ages. In order to determine the conflict between the the defence and the evidence by the prosecution, the appeal had to be heard conclu-
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Prosecution Evidence before the trial court During the hearing in the trial court the prosecution called 25 witnesses. Chief among the prosecution witnesses was, Dr. Ketra Muhombe, who told the court that on different dates between June and July 2008 she examined and prepared medical reports for N. K. and G.W. Both complainants had been brought to her by the officials from Women Rights Awareness Programme. She told the court that on July 24 2008, she prepared N.K. medical report, whose date of birth was given as 1995. The complainant informed her that she had been sexually assaulted in April 2008 on a date she could not remember. The alleged assault occurred in Loresho and the perpetrator was described as a white man. On examination, she formed the opinion that the victim had been defiled on several occasions. On June 17 2008 the doctor attended to G.W. The victim gave her age as 14 years and stated that she had been sexually assaulted by a mzungu in his house. The said victim also informed the doctor that she had been there with her younger sister and that they were both drugged at the time of the sexual assault. On examination of the second victim the doctor formed an impression of defilement against the complainant. The said victim also informed the doctor that she was defiled on 5th June 2008 in a mzungu house. G.W. testified that on July 5 2008 two ladies, described as Marks mother and Wavinya, falsely led her to believe that they were taking her to a place to work. On alighting from a matatu the ladies informed her that she would sleep with a man. Her attempts to escape were allegedly stopped by a watchman and the two ladies. She was then handed over to a white man who sprayed something on her face and she immediately became unconscious. On gaining her consciousness, she found the man on top of her. Upon her return to her home in Mwiki she shared her ordeal with her friend L. She recounted that her report to the police was not taken seriously until a lady at her church reported the matter to the area chief whereupon the first appellant was taken into custody by the police. She confirmed that it was L. and her who led the police to the white mans house. L .W, was the complainant in count 2 preferred against the 1st appellant. She contended that G.W. informed her that she was taken to a white man by Marks mother and Wavinya on the day they went together. She also contended that she was taken by Wavinya, Marks mother and another lady to a white mans house. Similarly on reaching the place, she was told she would sleep with a white man. The mzungu then came and sprayed something on her face. Later she found herself bleeding from her private parts. She contended that after leaving the house, they all went to Gikomba for shopping as they were given money by the mzungu. She identified the 2nd appellant through an identification parade. The fourth prosecution witness, N. K. was the complainant in count 3. She narrated that in November 2007, a lady by the name Faith picked her and asked her whether she wanted a white man to be her sponsor. Together with another lady by the name Jacqueline, they went with her to the white mans house. She was allegedly blindfolded and sexually assaulted by the white man. He then gave her Kshs.8,000/= which they all shared. The same night her grandmother found her bleeding from her private parts but no immediate report was made to the relevant authorities. She took time to inform her immediate relatives, teachers and even her grandmother. When her grandmother
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She took time to inform her immediate relatives, teachers and even her grandmother. When her grandmother discovered, she did not immediately report the matter to the police. Other witnesses called by the prosecution included the N. K. grandmother, L.W. headteacher, two assistant chiefs and the District Childrens Officer Kasarani District. Peter Gicharu Gichangi a representative from Men for Gender Equity - an NGO that is concerned with human rights abuses and Rebecca Musisi, a social worker with Womens Rights Awareness Programme, testified in support of the prosecutions case. A number of police officers were also called to testify. The running thread of the evidence by Police Constable Caroline Kanimukur, Julius Ikamatis evidence - Chief Inspector of Police in charge of Mwiki Police Post and Julius Ikamatis evidence - Chief Inspector of Police in charge of Mwiki Police Post was that there was no formal complaint of defilement in the police records, the procedure for reporting and investigating complaints was not followed, the arrest of the 1st appellant was un-procedural, pressure was inserted on investigators, thorough independent and conclusive investigations were not carried out. They also contended that the complainants were unreliable. The P3 forms were not authentic but forgeries without any police stamps. The defence, at a later stage of the case stated that the cumulative effect of the evidence tendered by the investigators at the very best cast doubt as to the guilt of the appellants. Appellants Grounds of Appeal The following were the appellants grounds of appeal; 1.That the trial court unilaterally and without affording the 1st appellant or the prosecution the right to be heard amended the charge sheet at the time of writing the judgement. According to section 214 of the Criminal Procedure Code a charge sheet can only be amended before the close of the prosecution case. 2.That the essential element of the crime of defilement under section 8 was not established by the prosecution. It was essential to establish that the victims were under the age of 18 and secondly there was penetration which is legally defined as partial or complete. 3.That there was massive intermeddling with the investigations and the prosecution of the case. The power to prevent and detect crime including investigations is vested in the Kenya Police Courts finding In the High Courts view it was clear that the court decided to amend the charges against the 1 st appellant at the time of writing itsjudgement. The trial amended the charges after confirming that there was material defect in the charges subject of its determination. The court acknowledged the grave st defect and proceeded to amend the charges. The court confirmed that the 1 appellant was charged under section 8(1) as read with section 8(4). Section 8(1) defines what amounts to defilement. On the other hand, section 8(4) creates an offence of defilement committed with a child between the age of 16 and 18. And any person found guilty under section 8(4) is liable upon conviction to imprisonment for a term not less than 15 years. The
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essential ingredients in a charge under section 8, is that the age of the child is of paramount and fundamental importance. The importance is created because section gives a specific and mandatory each category and of fundamental imporessential ingredients in the a charge under section 8, is that the age ofsentence the childfor is of paramount defilement committed a child. The trial court acknowledged that thereawas no age assessment report but for each category of tance.against The importance is created because the section gives specific and mandatory sentence went further and stated that there was against no dispute as to The the age ofcourt the complainants. was central theassessment report but defilement committed a child. trial acknowledged That that there was noto age amendment undertaken at the time writing the judgement. went further and of stated that there was no dispute as to the age of the complainants. That was central to the amendment undertaken at the time of writing the judgement. Did the trial court have jurisdiction to amend the charges against the 1 stappellant at the time of writing the judgement? Did the amendment occasion a miscarriage of justice in respect of the rights of the 1st appellant? Did the trial court have jurisdiction to amend the charges against appellant at the time of writing the judgeThe court held that while it the is perfectly proper and indeed desirable to especially when there a ment? Did amendment occasion a miscarriage ofamend justicecharges in respect of the rights of theis appellant? minor defect, it was tothat establish whether the court has jurisdiction to do so. In this case, the issue of the Theimportant court held while it is perfectly proper and indeed desirable to amend charges especially when there is a ages of the complainants were material elements in all the evidence given by the prosecution witnesses and it was minor defect, it was important to establish whether the court has jurisdiction to do so. In this case, the issue of the one which must have been within the knowledge of the persons giving If it wasgiven demonstrably untrue that witnesses and it was age of the complainant were material elements inevidence. all the evidence by the prosecution the age of the children was must contrary tobeen what was stated in the charge sheet, the value of evidence. the evidence a whole one which have within the knowledge of the persons giving If as it was demonstrably untrue that was destroyed and not be children relied upon. thecould age of the was contrary to what was stated in the charge sheet, the value of the evidence as a whole was destroyed and could be relied upon. It was clear to the that the 1st appellant was under section 8(1) as under read with section he defended It court was clear to the court that the charged 1st appellant was charged section 8(1)8(4), as read with section 8(4), he defended himself and gavehimself his defence legitimate that everything had that and could be taken into considerand with gaveahis defenceexpectation with a legitimate expectation everything had and could be taken into consideration in arriving ation at a decision. In at the opinion he could only be convicted and sentenced under that in arriving acourts decision. In the courts opinion he could only be convicted and section. sentenced under that section. The court also agreed with the appellants second ground of appeal. The non-production by the prosecution of age The court also agreed with the appellants second ground of appeal. The non-production by the prosecution of age assessment evidence of the complainant was a material defect in the courts assessment. Justice Warsame assessment evidence of the complainant was a material defect in the courts assessment. Justice Warsame categorically stated that age assessment must substantiated bybe birth certificate or direct and that theand that the age of the categorically stated that age be assessment must substantiated by birthevidence certificate or direct age of the victimvictim was a fundamental requirement under the Sexual Offences Act. was fundamental requirement in under the Sexual Offences Act.
The court noted that the three police officers who were directly concerned with the matter expressed grave difficulThe court noted that three police officers who were directly concerned withblamed the matter expressed grave difficulties the in the management and the control of the case. They their superiors for not giving directions and they ties in the management and the control of the case. They blamed their superiors for not giving directions and also blamed third parties who were directing police as to the circumstances and mode ofthey investigations. The court also blamed thirdwas parties who were directing police as to the circumstances andinvestigation mode of investigations. The in court impelled to say there was no proper and an impartial that resulted the charging and the trial was impelled to say there was no proper and an impartial investigation that resulted in the charging and the trial conducted against the appellants. It was perfectly a case of third parties deciding what the police ought to do. conducted against the appellants. was perfectly case of third deciding what the police oughtheld to do. Having critically It examined and a re-valued all parties the evidence on record, the court that the appellants were Havingwrongly criticallyand examined and re-valued all the evidence on record, the court held that the appellants improperly convicted. It made a determination that the prosecution did not prove its case beyond were wrongly and improperly convicted. It made a determination that the prosecution did not prove reasonable doubt. Consequently, appeals allowed, convictions quashed and the respective sentences its case beyond against reasonable Consequently, appeals allowed, convictions quashed and the the doubt. appellants were set aside. respective sentences against the appellants were set aside.
Appellants Grounds of Appeal
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STRONG SUSPICION NOT SUFFICIENT BASIS FOR A CONVICTION Republic v Elizabeth Gitiri Gachanja & 8 others Criminal Appeal No. 51 of 2004 Court of Appeal at Nairobi E.O. OKubasu, P.N. Waki & J.W. Onyango Otieno JJ. A May 20, 2011
The Hon. Mr. Justice E.O. OKubasu, J.A
Reported by Michael Murungi prosecution and never on the accused. Further, it is necessary for the court to be sure that there are no other co-existing circumstances which could weaken or destroy the inference of guilt. In its analysis of the evidence, the Court of Appeal placed the appellants in five categories relative to their alleged role in the alleged conspiracy to murder Magondu. First, Elizabeth Gachanja was said to have been the source of funds which was allegedly passed to Francis and Rose Muruatetu for onward transmission to Mwangi, who would pay it to Njuguna, Kamau and Njoki allegedly for killing Magondu. The second category is composed of Francis and Rose Muruatetu. They had not gone to Kitengela on the day when the offence was said to have been committed but they were allegedly the conduit through which finances flowed to Mwangi who in turn gave it to the foot soldiers to eliminate Magondu. In the third category, Mwangi and Ngonyo were said to have lured Magondu to his death and also received the dirty money for the assignment. Then there was Kamau, who remained in the car that Harrison Kingori was driving and never left it except after Kingori had been seriously assaulted and left for dead. Kingori would later be a valuable witness for the prosecution. Finally, Mwangi, Ngonyo, Njuguna and Njoki were said to be the last people seen with Magondu before he was found dead in an area not far away from where they had been sighted. Perhaps the strongest circumstantial evidence was that of Harrison Kingori, who had been brutally assaulted immediately after the disappearance of Magondu and before the discovery of his body. Harrisons evidence was that on the material day in Kitengela, he had seen Magondu inside a car that was driven by Mwangi and in which Ngonyo and Njuguna were riding. The fundamental question of evidence that arose was whether King oris identification of these appellants was reliable such that his evidence on that issue could oust their alibi defenses that they had been somewhere else at the time. Secondly, how was the court to treat the identification evidence of a single witness? The Court of Appeal recalled that in law, there is no set number of witnesses required to prove a fact, and that even the evidence of one witness can form the basis for a conviction as long as the court finds that evidence credible. Where such evidence is on the identification of a person who says that he was not properly identified, then the court must examine such evidence with the greatest care. The Court found no reason to doubt Kingoris evidence that he had observed and talked to these appellants in Kajiado in broad daylight and thus he had good recollection of their features. He also identified them at identification parades which had subsequently been organized by the police. The chain of evidence from the time they were seen with Magondu to the time that he was found dead was not broken and in the absence of any other reasonable explanation as to how he had met his death, fingers pointed to them and to no others as the perpetrators of the murder. The Court was satisfied that even without any other evidence, the circumstantial evidence that they were the people last seen with Magondu in their vehicle was enough to point a finger at them to the exclusion of any other persons. Moreover, Njuguna had made a detailed inquiry statement to the
he Court of Appeal recently allowed an appeal challenging a sentence of death pronounced by the High Court upon Elizabeth Gachanja, the wife of former Commissioner of Lands, Wilson Gachanja, after the Court found that even though the circumstantial evidence against her may have raised some suspicion, it was not sufficient to establish the charge of murder beyond all reasonable doubt. The Gachanjas, along with ten other alleged co-conspirators, had been charged on May 10, 2000 with the murder of Lawrence Githinji Magondu, a land agent, which was said to have occurred on February 4, 2000 in Kitengela, Kajiado District. Wilson Gachanja and three other persons had been acquitted by the High Court while his wife and seven other persons had been convicted and sentenced to death. These seven were Francis Muruatetu, Rose Muratetu Elizabeths half brother and half sister respectively - Wilson Mwangi, Annah Ngonyo, David Njuguna, Stephen Kamau and Stephen Njoki alias Blackie. The appellants had argued that the High Court had wrongly based its conviction on insufficient and uncorroborated circumstantial evidence. Indeed, by the admission of both the High Court and the Court of Appeal, there had been no eye witnesses to the death of Magondu. In such a case, the Court of Appeal observed, the test to be applied was clear: In order to draw an inference of guilt from circumstantial evidence, the facts of the case must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt, and the burden of proving facts which justify the drawing of this inference is always on the 76
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police in which he admitted taking part in the killing and adversely mentioned Mwangi, Ngonyo, Njuguna, Kamau and Njoki. As for Kamau, his role was to distract Kingori particularly from pursuing the vehicle that was used to kidnap Magondu. As the judges noted, such assignments are not out of the ordinary in the criminal world and we take judicial notice of it was one of the murderers and only played a different role with a common purpose in the whole episode. All these appellants were found to have been properly convicted by the High Court and their appeals were dismissed. However, the Court was not persuaded that the same could be said of Elizabeth Gachanja. The main evidence against her was that the money allegedly used to pay the killers appeared to have come from the accounts of a company where she was a director and from her childrens bank accounts. The other evidence was of statements from her co-accused that she had given money to her two relatives and co-accused persons, Francis and Rose Muruatetu, some of which found its way in Mwangis bank account and was eventually partly paid to Ngonyo, Njuguna, Kamau and Njoki. In convicting her, the High Court had relied on the evidence that she had withdrawn Kshs. 1 million from her childrens account without the knowledge of her husband; that she had contradicted herself in her explanation as to why she had given some of that money to one of the coaccused persons, and that she had been implicated as a co-conspirator by her two relatives, Francis and Rose Muruatetu. On this, the Court of Appeal faulted the manner in which the High Court had relied on the statements of Elizabeths co-accused persons. The Court referred to the established principle of law of evidence: a statement which does not amount to a confession is only evidence against the person who makes the statement. If it is a confession and implicates a co-accused person, it may, in a joint trial, be taken into consideration against that co-accused person. However, it is the evidence of an accomplice and evidence of the weakest kind which might not stand on its own but can only best be used to support other evidence. The Court felt that in the absence of any other evidence, the extra-judicial statements of Elizabeths co-accused persons should not have been relied on as the sole evidence of how the money allegedly withdrawn from her account and her childrens accounts was spent. Further that evidence was circumstantial and the chain needed to be complete and point to no other person, and there had to be no other co-existing circumstances that would weaken or destroy any adverse inference against her. Ultimately, the Court observed that as much as there may have been a strong suspicion that Elizabeth may have financed the conspiracy, that remained only a suspicion and there was no tangible evidence to show that she knew that whatever money she gave out, if she gave out any, was to facilitate the murder of Magondu. The benefit of this doubt had to operate in her favour. While the appeals of her co-accused were dismissed, her appeal was allowed and an order issued that she be set at liberty. Elizabeth was represented by Professor Githu Muigai while the other appellants were separately represented by Mr. Ondieki, Mr. Nyachoti, Mr. Wamwayi and Mrs. Rashid. The state was represented by Mr. J Kaigai, principal state counsel.
KACC OBTAINS ORDERS BARRING STATE OFFICIAL FROM DEALING WITH HIS PROPERTY
The Hon. Mr. Justice Waki , J.A
A Kenya Anti-Corruption Commission vs Stanley Mombo Amuti Civil Application No. Nai. 39 of 2011 (Ur.25/2011) Tunoi,OKubasu & Waki JJ.A Court of Appeal, at Nairobi May 13, 2011. Reported by Andrew Halonyere Corruption and Economic Crimes Act (ACECA) which deal with declaration of wealth by public officials was inconsistent with the new Constitution. In their ruling, Court of Appeal Judges Philip Tunoi, Emmanuel Okubasu and Philip Waki said the appeal would be rendered nugatory if the interim orders were not issued.
he Court of Appeal has allowed an application by the Kenya Anti Corruption Commission (KACC) and ordered that the assets acquired by Mr. Stanley Mombo Amuti , a state official,be preserved until an appeal challenging a High Courts decision which was granted to the respondant barring KACC from freezing his assets is determined. The ruling suspended a High Court decision which declared The injunction orders touched on that section 55 (5) and (6) of an Anti- houses and plots in Ngong, Umoja
innercore,Nairobi and four motor vehicles. Mr Amuti was also stopped from withdrawing funds from his accounts held in Barclays Bank and Standard Chartered Bank. According to KACC, the properties were allegedly acquired corruptly by Mr Amuti while working as the financial controller of the National Water Conservation and Pipeline Corporation. The Kenya Anti-Corruption Commission
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had filed a case before the High Court seeking determination of whether Mr Amuti had in possession unexplained assets and whether he should have been condemned to pay the government the cash and value of properties acquired corruptly or in the alternative whether the cash, landed properties and motor vehicles should have been forfeited to the government. KACC also sought an interlocutory injunction to preserve the subject matter of the suit. Both parties recorded a consent to the effect that the subject matter of the suit should have been preserved until its determination of the suit. Lady Justice Kalpana Rawal however declared the case null and void saying the trial against Amuti was not fair .The High Court also declared section 55 (5) and (6) of the Anti-Corruption and Economic Crimes Act (ACECA) upon which the case was predicated, inconsistent with the provisions of Articles 20,25,40(3) of the Constitution. The High Court stated that the absence of a fair trial in the process stipulated under the ACECA Act rendered the trial inconsistent with the supreme law of the land. The Articles related to the application of the Bill of Rights, fundamental rights and freedoms that may not have been limited, such as fair trial, and protection of the right to property. Section 55(5) of the ACECA gave KACC the powers to forfeiture of unexplained assets. KACC through its Advocate Mr. Oscar Angote then moved to the Court of Appeal seeking injunctive orders pending the hearing and determination of an intended appeal. In its application KACC submitted that the consent order made in the High Court that the money held in the respondents bank accounts and by KACC be placed in a joint interest earning account in the names of both parties, and that the immovable properties to remain as they were, should have been maintained, otherwise the success of the intended appeal would have been rendered nugatory. KACC further submitted that there was only one bank account holding the sum of Kshs.13 million and a bankers 78
cheque of Kshs.4.3 million, totaling to 17.3 million, which was seized by KACC and which was sought to be preserved, arguing that the money in the other bank accounts had already been moved by Mr Amuti. As for the immovable properties, KACC submitted that if the properties were disposed off before the intended appeal was finalized, the appeal would have no basis and the success of it would have been pyrrhic arguing that It would have irreversibly affected the substance of the case which sought forfeiture of the properties and monies the subject matter of the anti-graft bodys case. Although Mr. Kilukumi who appeared for Mr Amuti conceded that the intended appeal was arguable, he however argued that the success of the appeal, if such be the eventuality, would not be rendered nugatory since the parameters for grant of the orders sought had not been fully met. He further submitted that there was no evidence of corrupt acquisition of property or other assets by the respondent, arguing that in any event the respondent had fully explained the source of his property and was entitled to Constitutional protection.
principle that in order for one to succeed in an applications brought under rule 5 (2) (b) of the Court of Appeal Rules, one had to show that the intended appeal was not frivolous, that was to say, it was arguable even on a solitary ground. One also had to show that if the orders sought were not granted, the success of the intended appeal would have been rendered nugatory. The Court further reminded itself that it had to be guided by the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of the dispute as stipulated in sections 3 A and 3 B of the Appellate Jurisdiction Act.
The Court of Appeal while considering the application noted that the presiding Judge, Lady Justice Rawal had not dealt with the factual issues raised in the case or in the submissions of both Advocates, but dwelt on the constitutional issue raised on section 55 of the Anti-Corruption and Economic Crimes Act. The Court of Appeal further noted that since the facts and merits of the case were not considered, the court that would have been seized with the intended appeal would have grappled with the legal issues which both parties Furthermore, he submitted, the had conceded were arguable. investigations in issue were limited to a period of 10 months and it would The Court was of the view that an order have been unjust and inequitable to for forfeiture could only have been made issue an injunction on two plots of land if the property was still available for and two motor vehicles which were such forfeiture and that if there was no acquired before that period. Mr Kilukumi conservatory order, the property might submitted that an injunction would have have ceased to exist thus rendering the been issued in vain since Mr Amuti had success of the appeal pyrrhic. The Court already sold some of the plots and the of Appeal in considering Mr. Kilukumis vehicles, some other plots were not part argument, which included that some of the original investigations, while other of the properties were not the subject plots listed in the application were only matter of investigations, were acquired equitably owned by the respondent as before investigations commenced, had they had not been legally transferred since been sold or were only equitably to him. As for the money which had held by the respondent, was of the been deposited in a joint account by opinion that the said properties were consent of the parties, Mr. Kilukumi those which formed part of the subject submitted that there had been no matter of the case against Mr Amuti. appeal against that consent order and an injunction should not have therefore In conclusion Court of Appeal Judges been issued, arguing that at any rate the Philip Tunoi,Emmanuel Okubasu respondent was suffering more hardship and Philip Waki were satisfied that and prejudice and ought not to have the success of the intended appeal been punished further. would have been rendered nugatory if the orders sought were not granted. The issue before the Court of Appeal Accordingly orders of injunction were was whether the intended appeal was granted. arguable. The court reiterated the
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COURT DECLARES THAT LIFE IMPRISONMENT CANNOT BE SUBSTITUTED WITH A DEFINITE TERM
AJoseph Kiplimo v R eKLR Criminal Appeal No. 416 of 2010 Court of Appeal at Eldoret Omolo, Bosire & Onyango Otieno, JJ.A March, 25, 2011
The Hon. Mr. Justice
R.S.C Omolo, J.A
Reported by Emma Kinya. with the sentence if the High Court had sentenced the appellant to life imprisonment. While the Court of Appeal appreciated that the issue as to whether a mandatory life sentence as provided for in section 8 (2) of the Sexual Offences Act was a matter that required further research and possibly a different approach, it stated that that may have to await a different forum. The judges observed that as the law stands, section 8(2) of the Sexual Offences Act had not allowed for substitution of a definite period of imprisonment. It had only provided for life imprisonment. In addition, they observed that if the legislature had intended to have allowed for any discretionary term, it would have proceeded the way it had in section 8(3) and 8(4) of the same Act. In answer to the issue as to whether the action of the Magistrate in substituting a definite term of imprisonment namely 50 years imprisonment in place of life imprisonment provided for in section 8(2) of the SOA was a matter of law or of fact, the court held that it was a matter of law as the sentence that had been impossed was not the lawful sentence provided. It was not a question of severity of sentence but whether a lawful sentence had been impossed. The court further held that it had jurisdiction to interfere with such a sentence. The court thus dismissed the appeal and set aside the sentence of 50 years imprisonment and in its place sentenced the appellant to life imprisonment.
he Court of Appeal at Eldoret has held that the law as it stands is that life imprisonment is the only sentence provided for the offence of defilement of a girl aged 5 years,contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
that the appeal had no iota of merit and that it was to fail in its totality. Kiplimo sought a further appeal to the Court of Appeal on the grounds that the sentence of 50 years was harsh and uncalled for in the circumstances since he was a first offender and therefore prayed for the court to consider reducing Court of Appeal Judges Omolo, Bosire the sentence to a minimum level. and Onyango Otieno further held that the sentence of 50 years imposed to The Court of Appeal noted that the the appellant by the Magistrates Court case before them was a second appeal was unlawful and should have been and according to section 361(1) (a) of interfered with by the High Court as it the Criminal Procedure Code, the Court should have done. had no jurisdiction to entertain a second appeal based on severity of sentence. Joseph Kiplimo the appellant had been However, the court observed that charged with the offence of defilement Kiplimo had been sentenced to 50 years of a girl contrary to section 8(1) as read imprisonment for an offence where with section 8(2) of the Sexual Offences the only sentence provided for was life Act No. 3 of 2006. He pleaded guilty imprisonment which was a mandatory to the charge and confirmed that the sentence. facts that had been read out by the prosecutor were true. The Magistrate The Court also took interest with the convicted him and in sentencing the legal interpretation of life sentence appellant stated that she had noted the and how the courts in this country appellants mitigation. The Magistrate should approach the issue when the however observed that the appellant had only sentence spelt out in respect of an committed a beastly act that required a offence is life sentence. Judges Omolo, deterrent sentence and thus sentenced Bosire and Onyango Otieno noted that him to serve 50 years imprisonment. a sentence of imprisonment for life is not defined in Kenya but is defined in However, Kiplimo was not satisfied several other jurisdictions e.g. Uganda, with that sentence and he preferred an Australia, Argentina and Belgium and appeal to the High Court against both particularly with regard to substitution conviction and sentence. His grounds of a number of years for imprisonment of appeal were that he had innocently for life. pleaded guilty without knowing the The issue before the Court of Appeal consequences and that the sentence was whether the Magistrates Court given by the Magistrates Court was was right in sentencing the appellant harsh and would have ruined his life. The to 50 years imprisonment instead of appeal was heard by Justice Mwilu who life imprisonment and whether the after a full hearing dismissed it holding Court of appeal would have interfered
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COURT AFFIRMS RIGHT TO A FREE LAWYER UNDER NEW CONSTITUTION
The Hon. Mr. Justice
R.S.C Omolo,David JA Njoroge Macharia v Republic
The Hon. Mr Justice A. Visram, J.A
Criminal Appeal No. 497 of 2007 Court of Appeal at Nairobi E. O. Okubasu, P. N. Waki & A. Visram (JJ. A) March 18, 2011 Reported by Monica Achode the court is satisfied that substantial countries such as Kenya, where court proceedings are left between the two injustice would otherwise result. parties to fight it out with the Judiciary The Court was deciding a case in which serving as the referee (as opposed to David Macharia had filed a second an inquisitorial system followed in most appeal against his conviction for robbery Civil Law countries where the court is with violence and a sentence of death actively involved in investigating the which was imposed by the Kibera Chief facts of the case). However, the Court Magistrates Court and later affirmed by observed that legal representation the High Court in May 2007. He had not may not always be required in criminal been represented during his trial and in proceedings because in less complicated the second appeal, his lawyers, T. Bryant and less serious proceedings an accused and G. Kitonga, argued that his rights person may receive sufficient protection had been violated and that he should from the operation of the institutional be retried. The State was represented by processes of the courts. Mr. V.S. Monda, a Senior State Counsel. Was there a right to governmentOn the issue of the Right to Legal sponsored legal representation? Representation per se before going into The Court of Appeal found that while the question of whether an accused many international treaties may not person is entitled to government- specifically provide for the duty of the funded legal representation, the State to provide legal aid, a range of Court acknowledged that the right international norms and standards are to be represented by a lawyer per se to be found in international covenants, was universally acknowledged as a treaties, guidelines, declarations and fundamental right and that trials in many recommendations which are relevant jurisdictions were considered unfair and to the question. While treaties bind the fatally irregular if the court failed to countries that ratify them, the other inform the accused person of the right instruments have been accepted by or if it restricted or denied it. Further, a large number of countries and are a lawyers knowledge of the rules of considered to have moral force. These procedure and his ability to relate treaties and other instruments include them to the facts and to determine the the International Covenant on Civil and admissible evidence to give and the Political Rights, European Convention manner of giving it made his role very for the Protection of Human Rights and important in the trial process. That role Fundamental Freedoms, The African is not merely to disprove the allegations Charter on Human and Peoples Rights, against his client, but as an officer of The United Nations Body of Principles for that court, he is to assist the court in the Protection of All Persons under Any the effective and fair administration of Form of Detention or Imprisonment and justice. The Court also observed that the The United Nations Standard Minimum right to representation was fundamental Rules for the Treatment of Prisoners. particularly in an adversarial trial system While the court noted that Kenya used in many Commonwealth Law has had a dualist system in which international law does not become part
he Court of Appeal has affirmed that under the new Constitution, an accused person has the right to have a lawyer provided at the expense of the government in cases where substantial injustice would otherwise result. Such cases would be those involving complex issues of fact or law; where the accused is unable to effectively conduct his own defence owing to disabilities or language difficulties; where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence and also in cases involving an offence punishable by death (such as murder, robbery with violence or treason). While section 77 of the repealed Constitution recognized the right of an accused person to be represented by a lawyer of his choice, it clearly stated that this provision was not to be interpreted as entitling a person to legal representation at public expense. However, under the new Constitution which was promulgated in August last year, Article 50(1)(h) provides that Every accused person has the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the State at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly. In the first case of its kind under the new Constitution, the Court of Appeal has affirmed that under the new Constitution, any accused person, regardless of the seriousness of the crime with which he his charged, may receive the services of a lawyer appointed by the court where 80
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of the national law until it is formally incorporated by national legislation, it stated that this position may have changed after the coming into force of the new Constitution which provides in Article 2(6) that Any treaty or convention ratified by Kenya shall form part of the law of Kenya... In making its conclusion, the Court turned to the wording of Article 50 (1) of the new Constitution that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result. Finding that substantial injustice was not defined in the Constitution, the Court ruled that the provisions of international conventions to which Kenya was a signatory were applicable. The Court pointed out that the International Covenant on Civil and Political Rights and the commentaries of the United Nations Human Rights that he had been properly convicted Committee may provide instances where and the question of the legality of the mandatory sentence of death imposed legal aid is mandatory. on him was no longer an issue since the However, the Court was quick to President had reduced the sentences caution that it was not suggesting that of all death row convicts to sentences every accused person convicted of a of life imprisonment. Moreover, his capital offence since the coming into trial had taken place under the old effect of the new Constitution would Constitution and as such, he would automatically be entitled to a re-trial not have been entitled to free legal where no such legal representation representation during his trial. The was provided. The reasons for this are appeal was accordingly dismissed. that, firstly, the provisions of the new Considering that the Courts decision Constitution were not to be applied carried major policy and financial retroactively, and secondly, before every implications for the Executive branch case must be decided on its own merit to of the Government, it was directed determine if there was serious prejudice that the decision should be served on occasioned by reason of such omission. the Attorney General, the Minister for Justice and Constitutional Affairs, the As far as Davids case was concerned, the Commission for the Implementation of Court was satisfied, upon evaluating the the Constitution and the Law Reform findings of the trial court and the High Commission for their records and Court which had decided his first appeal, necessary action.
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COURT DECLARES PUBLIC-PRIVATE PARTNERSHIP ILLEGAL FOR FLOUTING PROCUREMENT LAWS
The Hon. Mr Justice J. B. Ojwang, J
Kenya Transport Association v Municipal Council of Mombasa & another Constitutional Petition No. 6 of 2011 High Court at Mombasa J. B. Ojwang, J May 20th, 2011 Reported by Monica Achode According to the petitioner, failure to provide such information amounted to breach of Article 35 of the Constitution which provides that citizens have a right to access information held by the state. The petitioner also viewed the alleged failure to provide information as want of fair administrative action, of good governance, transparency and accountability contrary to the terms of Articles 10, 21 and 47 of the Constitution of Kenya. It was the petitioners contention that the publicprivate partnership entered into by the respondents did not comply with the terms of the Public Procurement and Disposal Act, 2005 and was contrary to the Constitution. The petitioner stated that the local authoritys action of designating parking yards at Kibarani, Magongo, Changamwe and Miritini to be operated by 2 nd respondent without inviting bidders, or expression of interest by competitors, among them the petitioners members, was inconsistent with the Constitution and infringed on the petitioners rights to equal protection and equal benefit of the law as contemplated by Article 27 and was therefore void. Counsel submitted that the 1st respondent had provided no evidence of fulfillment of the condition for resorting to an alternative method of procurement, in place of open tendering. Indeed, counsel urged that such evidence did not exist, as 1st respondents Town Clerk had already been arraigned in Court on a criminal charge, for failure to comply with the Public Procurement and Disposal Act. Section 74 of the Act provides that a procurement entity could use direct procurement as allowed under the Act as long as the purpose was not to avoid competition. Counsel submitted that, this was sheer preference or discrimination. The petitioners advocate submitted that the action taken by the respondents could not claim protection under the Local Government Act, for the reason that that Act came into force on April 30 1963, while the Public Procurement and Disposal Act entered into force on January 1 2007. Thus Parliament was aware of the terms of the Local Government Act when it enacted the Public Procurement and Disposal Act, which gave a definition of procuring entity incorporating a local authority such as Mombasa Municipal Council. Consequently, the 1st respondent was required to undertake procurement within the terms of the Public Procurement and Disposal Act. The Public Procurement and Disposal Act superseded the Local Government Act as expressly provided for in section 5 (1) of the Public Procurement and Disposal Act.
n May 20 2011 the High Court in Mombasa declared a publicprivate partnership between the Municipal Council of Mombasa (the 1st Respondent) and a private limited company, Summit Cove Lines Ltd (2nd respondent) unlawful. The private partnership concerned regulating motor vehicle parking, collection of parking fees and clamping of motor vehicles at Kibarani, Magongo, Changamwe and Miritini within Mombasa County. The petitioner, the Kenya Transport Association told the court that the said parking yards were allocated by the local authority without inviting bidders contrary to the law. Honourable Justice Ojwang issued orders restraining the respondents and their agents from collecting parking fees on the basis of the public-private partnership recorded in Gazette Notices. Members of a registered society, Kenya Transport Association, had moved the High Court seeking the various remedies under the new Constitution among them a declaration that the existing publicprivate partnership between 1st and 2nd respondents to regulate motor vehicle parking, collection of parking fees, and clamping of motor vehicles within Mombasa County as being unlawful and an order prohibiting the respondents from collecting parking fees on account of the existing public-private partnership recorded in various gazette notices. The basis of the petitioners suit was that the parking charges plan was reached in secrecy and without transparency. The petitioner alleged that it unsuccessfully s o u g h t i n fo r m a ti o n re l a ti n g t o partnership from the local authority. 82
It was submitted on behalf of the petitioner that a public-private arrangement between the respondents had been entered into in breach of the petitioners rights as enshrined in the former and the current Constitution. The petitioners counsel submitted that both Constitutions outlawed discrimination and they provided that all parties were to be treated equally, by a public authority while exercising its powers. Further, that the petitioner had been The 1st respondent on its part filed its denied equality before the law. pleadings in the form of an answer-to-
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petition and stated for the significant part that the basis of the impugned public-private partnership between the respondents was a meeting at which all issues as to levies and designated parking bays were discussed and thereafter the services in question were gazetted by the 1st respondent. Therefore the petitioner had an obligation to pay for such services. It further stated that it had not failed to provide information to the petitioner, and had not impeded the petitioner in accessing public information held by the 1st respondent and that due to congestion and traffic jams within the Central Business District and in the residential areas, the 1st respondent approached 2nd respondent to use their parking facilities since the said facilities fell within the stakeholders operation areas including truck and fuel-tanker owners. This was instead of asking the Central Government to acquire the said facilities which were already developed and which would have taken time to construct. It was the 1 st respondents opinion that the petition had been brought in bad faith by the petitioner merely for the purpose of frustrating the 1st respondents operations and that the petitioner, being an agent of several persons, had not brought the petition as a representative, and had failed to publish the names of the members or to show the authority to represent them. The 2 nd respondent stated that an association, such as Kenya Transport Association, could not institute a constitutional petition, it could only do so in the interests of one or more of its members. Counsel urged that the litigant had not disclosed the members in whose interest the action had been lodged and, therefore, there was no valid constitutional petition, in the terms of Article 22 (2) (d) of the Constitution. Counsel for the 2nd respondent submitted that the right created by Article 22 for laying a claim was a personal right, not a group right; he gave as examples Article 19(2) and 19(3), and urged that fundamental rights belong to each individual. counsel for the respondents contended that the impugned public-private partnership between them had been conceived in accordance with the Local Government Act, this would not spare their act from the mandatory obligations created by the Constitution, which were well reflected in the procedures of the Public Procurement and Disposal Act. This statute, in relation to the Local Government Act, was superior in its operation, for it faithfully reflected the terms of the highly progressive Constitution of 2010, and on this account, was in every sense an organic law to the Constitution. Compliance with the safeguards of the Constitution was, simultaneously, compliance with the procedures of that Act. The High Court found that the respondents in the instant The court in reaching its decision found suit were in breach of both documents. that although the petitioner, as an unincorporated body, lacked locus On the issue of insufficient defenses, the standi, their counsel had shown that, by respondents had contended that the virtue of Article 22(2) of the Constitution petitioner had been represented during it was open to an association to institute the preliminary discussions leading to proceedings based on the Bill-of-Rights, the making of the impugned publicin the interest of one or more of its private partnership; they urged that the members. Although the petitioners said partnership had served the public members were not individually named, interest, by eliminating the widespread the rubric of the petition stated that it parking problem in Mombasa, and by was acting in the interest of its members. enhancing 1 st respondents revenue In view of the importance of any Bill base. The respondent termed the of Rights claim, and as no convincing partnership idea as very noble and reason had been shown such as would beneficial to the members of the public. bar the petitioner from instituting action The court noted that all these claims, on behalf of its members, there was no which were not even supported by impropriety in the joinder of parties, evidence, had no significance in legal in this matter, and, consequently, the terms and, especially, in view of the violation of the fundamental-rights petitioner has locus standi. guaranteed by the Constitution. A further issue on jurisdiction was raised by the respondents, who contended Based on this the court declared as that no proper constitutional question unlawful, null and void the existing had been laid and therefore the Court public-private partnership between acting as a Constitutional Court, lacked the 1st and 2nd respondents, regulating jurisdiction. This objection could not be motor vehicle parking, collection of sustained, firstly, because the petitions parking fees/charges, and clamping rubric also referred to the individual of motor vehicles within Mombasa rights and fundamental freedoms of County for having been secured in the Constitution and secondly, because breach of the Constitution and the law. the petitioner had named specific rights It further proceeded to issue an order forming the gravamen equality and the respondents and their agents from freedom from discrimination and the collecting parking fees on the basis of right to fair administrative action. It the existing public-private partnership followed that the court had jurisdiction recorded in the Kenya Gazette. as a Constitutional Court to hear and determine the petition. that the petition had no legal basis, and so the Court lacked the jurisdiction to entertain it. He urged that the courts jurisdiction, in relation to fundamental freedoms was conferred by Article 23(1) of the Constitution. Counsel submitted that the evidence on record did not show the 1st respondent to have been in breach of the Public Procurement and Disposal Act. Whereas open tendering was provided for in Part 5 of the Act, alternative procedure for procurement were provided for under the Act. For instance section 72 (a) of the Act provided for alternative tendering. The lawyer urged that the use of any of these procedures did not entail breach of fundamental freedoms under the Constitution.
The 2nd respondent further told the court The court also found that although
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WHY THE HIGH COURT BARRED THE KAMUKUNJI BY-ELECTIONS
Paul Waweru Mwangi v The Interim Independent Electoral Commission & Another [2011] High Court at Nairobi Petition No. 71 of 2011 Date: 20th May, 2011. D. Musinga, J.
The Hon. Mr Justice D. Musinga J.
Reported by Emma K. Kinya null and void ab initio. In addition, he submitted that Article 88(4) (e) of the Constitution required the Independent Electoral and Boundaries Commission (IEBC) to settle all electoral disputes including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. He further stated that in view of the breach of his constitutional rights and freedoms, the conservatory orders sought ought to have been granted failing which his petition would have been rendered nugatory. H oweve r, t h e Ret u r n i n g O ffi c e r denied having wrongfully rejected the nomination of Mr. Waweru as a candidate for the NVP. He also denied that he was influenced by any person or party to reject Wawerus nomination. He added that the collection of nomination forms was not a clearance as a candidate for an election and if that were the case there would have been no need to fix a date for the delivery and scrutiny of the accompanying documents by a Returning Officer on the nomination day. He therefore urged the court to dismiss the petition. The High Court considered whether the Returning Officer had complied with the mandatory provisions of Regulation 18 (4) of the Presidential and Parliamentary Elections Regulations which had required him, upon deciding that Wawerus nomination papers were invalid, to immediately record that decision and the reasons on the nomination papers, append his signature and return the papers to the petitioner. Justice Musinga found that failure
he High Court granted an order of injunction restraining the Interim Independent Electoral Commission (IIEC) from holding, directing, conducting or otherwise supervising the parliamentary byelection for Kamukunji Constituency which had been scheduled for 23rd May 2011 until the petition by petitioner was heard and determined.
He alleged that the nominations had been conducted in a manner that had violated his constitutional rights and freedoms as secured by Articles 27, 38, 47 and 50 of the Constitution of Kenya, 2010 and sought a declaration to that effect. The petitioner further sought a declaration that the nominations exercise was null and void in view of the fact that the Gazette Notices vide which the nominations were allegedly Following the nullification of the election held contravened Article 88(4)(e) of the of Mr. Mbugua, the former Member of Constitution of Kenya, 2010. Parliament for Kamukunji Constituency in an election petition, the speaker of the In addition, the petitioner also filed an National Assembly had declared the said application seeking the court to restrain Parliamentary seat vacant. As a result, IIEC from holding the Parliamentary IIEC issued a Gazette Notice stating that by-election for Kamukunji Constituency a by-election was to be held and each pending hearing and determination of political party wishing to participate the petition. Mr. Waweru alleged that in the by-election must finalize the when he asked the Returning Officer why nomination of its candidate before a he had refused to accept the nomination given period. Mr. Waweru averred that papers, the Returning Officer verbally he was a life member of the National informed him that the papers could Vision Party (NVP) and that he had been not be accepted because he had been issued with a certificate of nomination informed by persons whose identity by the said party. It was on the basis he did not disclose, that Waweru was of having been nominated by the NVP either not eligible to contest the byas its candidate for the Kamukunji election as he was a member of the Parliamentary by-election that the Party of National Unity (PNU) or could Returning Officer issued Mr. Waweru not be validly nominated by the NVP. with nomination papers which he had The petitioner further alleged that subsequently filled. However, when Mr. Article 88(4) (e) of the Constitution Waweru sought for an allocation of time enjoined the IIEC to settle all electoral to deliver his nomination papers, no slot disputes arising from nominations but was allocated to him and the Returning IIEC failed to do so. He added that the Officer did not give any reason for respondent should have made provision refusing to allocate him a specific time for a reasonable time after the dates of to present his nomination papers. nominations for settling of any disputes arising from the nomination process. Subsequently Mr. Waweru filed a He therefore contended that failure petition challenging the nominations of IIEC to do so rendered the Gazette that were held for the parliamentary Notice announcing the election to be by-election for Kamukunji Constituency. conducted in Kamukunji Constituency 84
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to do so was a very serious omission which hindered transparency in the nomination process. The judge observed that parliament had a noble intention in approving the election regulations and that the regulations were important in promoting a free, fair and transparent electoral process. The court stated that in conducting the nomination process, the Returning Officer was not exercising his discretion as to whether to accept or reject nomination papers of the various candidates but performing a statutory duty and therefore was under an obligation to follow the requirements of regulation 18 of the Presidential and Parliamentary Elections Regulations to the letter. The judge observed that the sixth schedule of section 2 (1) of the Constitution had listed various provisions of the new Constitution which had been suspended until the final announcement of all the results of the first elections for parliament under the Constitution. He further observed that such provisions included Chapter seven, except that the provisions of the chapter only applied to the first general elections under the new Constitution. In his opinion, that meant that the provisions of the Article could not apply to the conduct of Kamukunji by- election since it was not a by-election arising after the first general election after promulgation of the new Constitution. The judge therefore held that Article 88(4) (e) could only have been exercised by the IEBC and not the IIEC and to that extent, reliance on the provisions of the same could not have been of any assistance to Mr. Waweru. He further found that although IIEC was required to settle minor electoral disputes during an election, it was not clear whether such disputes included those which may have arisen during the nomination process. Justice Musinga observed that Article 22 of the Constitution gave every person a right to institute court proceedings to enforce his constitutional rights and further that the High Court was granted jurisdiction to determine such matters by the provisions of Article 23. The court therefore found that Mr. Waweru rightly came to court when the Returning Officer failed to address his complaint. Therefore held that in view of the aforegoing, the IIEC violated Mr. Wawerus right to be a candidate in the scheduled Kamukunji by-election. Justice Musinga added that the court could not trivialize breach of a mandatory requirement relating to the nomination process of candidates and further that without transparent nomination of candidates there could not have been transparent elections. The judge found that the Returning Officers must have been held to account for their actions in discharge of their lawful duties. He observed that if the court found that the nomination exercise was flawed and failed to grant an order of injunction to restrain the respondents from holding the by-election, it would have been frustrating all the gains that had been so far made in our electoral process towards a free, fair and transparent elections based on universal suffrage and the free expression of the will of the electors to choose a candidate of their choice. In conclusion, the judge granted an order of injunction restraining the respondents from holding, directing, conducting or otherwise supervising the parliamentary by-election for Kamukunji Constituency until the petition is heard and determined.
COURT REVOKES PRIVATE TITLE TO PUBLIC LAND
Prof. Samson Kagengo Ongeri vs. Greenbays Holdings & 2 Others High Court at Malindi H.A. Omondi, J. May 10, 2011. Reported by Petronilla Mukaindo
he issue of irregular public land allocations in Kenya reared its head yet again as the High Court at Malindi declared a 0.8257 hectares plot in the Town Council of Kilifi to public land rather than private property, and issued orders revoking the title to the land issued to the plaintiff, Prof. Samson Ongeri, presently the Minister for Education and Member of Parliament for Nyaribai Masaba in Kisii, Nyanza Province.
Prof. Ongeri had filed the suit against Greenbays Holdings (1 st defendant), Edward Karezi trading as Kazrad Agencies (2nd defendant) and the Registrar of Titles (3rd defendant).
The question of possible double registration of titles and/or fraud emerged as the Court heard that in 2003, the Commissioner of Lands had issued Kazrad Agencies a Grant for 99 years dating back to 1996 over the plot Thereafter the Town Council of Kilifi
in dispute and the Grant registered at Mombasa Lands Registry. The court further heard that Kazrad Agencies subsequently effected a transfer over the plot to Greenbays Holdings in June 2004 and the same was registered at the Land Registry in Mombasa, making Greenbays the owner of the property. Greenbays Holdings then proceeded to develop the land.
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gave notice to Greenbays to demolish the walls and structures erected on the plot as it was public land. This led the latter suing the Council alleging that its decision was in bad faith as other residential premises had been built next to the plot and sought an injunction in High Court to stop the Council from carrying out the demolition. On their part, the Town Council had through its Counsel Miss Mango contended that the plot was a public utility and produced Part Development Plan dating back to 1980 and showing that the land had already been set apart as public utility land. It further stated the plot in question had neither been advertised as being available for allocation nor had the Council received any applications for allocation. The Council urged the court to cancel the Titles issued to the plaintiff and the 1st defendant. The plaintiffs testimony in the present case was that he had been allocated the land by the former President way back in 1990 and thereafter issued with a Title Deed. He stated that when he received information that the property was being interfered with, he initiated correspondence with the Ministry of Lands officials who confirmed that the title issued to Kazrad Agencies was fraudulent. He further stated that he never received a notice from the Director of Physical Planning to surrender the land, and that the plot was not part of a public beach as alleged by the Town Council because it was registered to him as a residential plot and in any case no proceedings had been instituted against him to take away the land. He called upon the court to nullify the 2nd title issued to Greenbays Holdings Ltd and that he be declared the legal owner of the plot. Mr. Kilonzo representing Greenbays denied the plaintiff s claims and asked the court to hold the 2nd and 3rd defendants liable for all the costs and expenses it had incurred in developing the property in the event the plaintiffs claims succeeded. favour of Kazrad Agenies came to being and asserted that he had never sold his land and that the property had been used as collateral in favour of a bank with consent from Lands office. An officer at the Lands Office testified that the allocation to Kazrad Agencies did not originate from their office as it did not even have an allotment letter or a file in Nairobi. He further stated that the second title to the Agency was dubious and fraudulent as the title was issued to a trade name, which was not a limited company (In law, unlike a company, an Agency is not a legal person capable of owning and transferring property in its own name). In what the Court referred to as seemingly sibling rivalry between the Land Commissioners office and the Town Council of Kilifi (both government entities) contradictory evidence was given as to the status of the said plot, with the Council asserting that it was public property and indeed produced Development Plan dating back to 1981 and the Lands Office stating that it duly allotted the said plot as it was Government land and did not require consent of the Town Council before allocating the land. noted that a first in time title in this case the plaintiffs was superior to any subsequent title and that there could be no two titles over the same piece of land. Furthermore, the court ruled, Greenbays title was invalid as Kazrad Agencies who purported to sell the property to the company had no title in the first place. The Agency could not thus pass a title it did not have. The court referred to the Registration of Titles Act on the issue of absolute ownership. The relevant section provided: The certificate of title issued by the Registration to a purchaser of land, upon a transfer or transmission by the proprietor thereof, shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land, is the absolute and indefeasible owner thereofand the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party
How then did the second title come to being? The plaintiff, represented by Mr. Shah and Miss Onyinkwa denied knowledge of how the second title in On the issue of ownership, the court 86
The element of lack of good faith and collusion on the part of the officers at the Registrar of Titles and the Commissioner of Lands in dealing with the allocations came to question given the contradictory information and the evidence of certificate of search revealing the 2nd The court had the several issues to defendant as the registered owner of consider including whether the plot property. was public land, who was the legitimate owner of the suit property? How the In conclusion, the court declined second title to Kazrad Agencies come to Greenbays prayer to issue orders restraining Town Council of Kilifi being and the issue of costs. from demolishing the perimeter wall In considering the first question, the constructed by Greenbays on the plot court took note of the Part Development and ordered immediate revocation of Plan for the whole of Kilifi which the the plaintiffs title. Council had relied on and which dated back several years before allocation of On the issue of compensation, the court the plot to the plaintiff. Further evidence ordered that the purchase price by of an earlier letter sent from the Lands Greenbays be recovered from the 2nd office confirming the plot as public land defendant. However, the costs incurred even before the first title was issued in developing the plot would be met by was taken into account. The court the Registar of Titles. further took notice of Article 40(3) of the Constitution which recognized the The court further ordered that the office doctrine of public interest in relation of the Registrar and Commissioner of to illegal alienation of public land. The Lands bear the plaintiffs costs of the court evaluated all evidence before it suit as well as a third of the costs each and concluded that indeed, the plot was to Greenbays, having been the genesis of the wrangle at hand. public land.
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CONSTITUTIONALITY OF SECTION 100 (4) OF THE PUBLIC PROCUREMENT AND DISPOSAL ACT
Republic v The Public Procurement Administrative Review Board & 2 others ex parte Hyosung Ebara Company Limited [2011] eKLR Misc. Civil Application No. 362 of 2010 High Court at Nairobi D Musinga, J. May 10, 2011 Reported by Nelson K. Tunoi The speed at which matters are resolved is dependent on many factors and there are instances where the parties cannot file all the necessary pleadings, submissions and authorities and argue the case within the given period of time. Therefore, it will amount to abdication of its constitutional mandate for a court to fail to give its determination simply because the hearing has lasted more than thirty days from the date the matter was filed. grounds that it was non-responsive and ought not to have proceeded for the detailed technical evaluation stage for want of manufacturers authorization. The grounds of disqualification related to a letter allegedly written to the 2 nd respondent which disclosed the termination by mutual consent of a joint venture agreement between the applicant and an international entity in Japan known as Ebara Corporation. The applicant was aggrieved by the action of the 2nd respondent and filed an application for review before the 1st respondent, which application was dismissed hence the instant application for judicial review orders. The applicants major complaint was that its bid, having gone through the technical evaluation process and subsequently submitted to the 2 nd respondents tender committee, the latter unlawfully disqualified the same on the strength of a letter from Ebara Corporation. An issue arose as to whether the tender committee had capacity to disqualify the bid, the same having been evaluated and approved by the technical evaluation committee. Prof. Mumma, counsel for the applicant submitted that the action by the 2nd respondent was contrary to the evaluation criteria as set out in the tender document and offended section 66 (2) of the Act for the reason that a procuring entity had no power to solicit for information from third parties and apply the same to disqualify competitive bids. In response, Mr Lilan, counsel for the 2nd respondent submitted that his client acted beyond reproach and promoted the objects of the Public Procurement and Disposal Act by acting fairly and with extreme caution to ensure that public interest was enhanced in awarding the tender to parties whose capacity to perform the intended contract was not in dispute thereby promoting integrity and public confidence in the entire process. The court held that the spirit of confidentiality stated under Section 44 of the Act and the strict adherence to the evaluation criteria of tenders in the tendering process as required in Section 66 of the Act had to be guarded jealously if the objectives of the Public Procurement and Disposal Act were to be realized. The judge noted that if that was not the position, nothing would prevent a competitor from causing damaging information to be sent to a procuring entity or its committees during the various stages of the procurement process with a view to causing disqualification of other competitors. Therefore, the procuring entity had breached important provisions of the Act and the Regulations since no other criteria apart from the ones set out in the tender documents should have been relied upon in carrying out the evaluation. The 2nd respondents tender committee, having disqualified the applicants bid initially gave the reason as failure of the applicant to attain the required qualifying mark. It was only after the applicant sought clarification that the 2 nd respondent changed the story and stated that its tender had been disqualified because of failure to comply with a mandatory requirement of a manufacturer s authorization and alluded to the letter from Ebara Corporation. Thus, on the aspect of
he High Court has ruled that the provisions of section 100 (4) of the Public Procurement and Disposal Act, 2005 are unconstitutional. This was after Hyosung Ebara Company Limited, the ex parte applicant made an application seeking for judicial review orders of certiorari and mandamus, the former order quashing the decision of the Public Procurement Administrative Review Board, the 1 st respondent, dismissing the applicants application for review, and the latter order compelling the Kenya Pipeline Company Limited, the 2nd respondent, to tender afresh the project in issue. The applicant had responded to the 2nd respondents open tender advertisement and its bid, upon completion of the technical evaluation process, was found to be responsive by the 2nd respondents Technical Evaluation Committee. The bid was subsequently forwarded together with four others that had passed through that evaluation process to the Tender Committee with recommendations that those bids proceed to the financial eva l u ati o n sta ge . H oweve r, t h e applicants bid was disqualified on
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confidentiality, Prof. Mumma submitted that the consideration of the said letter by the tender committee was in violation of section 44 (1) of the Act, which guaranteed total confidentiality in the tendering process. The court held that the act of the 2nd respondent engaging in communication with a third party during the tender processing exercise was prejudicial to the applicants interests and thus a violation of section 44 (1) of the Act. The judge observed that the aspect of giving two conflicting reasons for disqualifying the applicants bid by the tender committee did not inspire confidence in the tendering process and created doubt as to whether the process was transparent. Rules of natural justice required the 2nd respondent to grant the applicant an opportunity to comment on the said letter before taking any adverse action against it. Besides, the rules of natural justice were applicable by virtue of the provisions and regulations under the Public Procurement and Disposal Act, which were intended to promote integrity, fairness and transparency in tendering processes. On the issue as to whether the applicant had met the mandatory requirements to qualify for the tender process, Mr Menge, counsel for the 1st respondent submitted that the applicant had failed to provide sufficient and accurate information to support its bid. The court ruled that the 1st respondent could not competently determine whether the applicant had met the mandatory requirements because this was an issue that fell within the mandate of the technical evaluation committee, which committee had already approved of the applicants bid. Further, the 1st respondent had failed to take into consideration the issue whether the 2 nd respondents tender committee complied with the mandatory requirements of Regulation 11 (2) and particularly the one that required it not to modify any submission or reject without justifiable or objective reasons. The Court further observed that the applicant was not subjected to fair and transparent evaluation process as required under the Act and that the decision of the 1st respondent took into consideration some irrelevant factors and disregarded some relevant ones. The court considered the provisions of section 100 (4) of the Act requiring the decision of the Review Board to have effect if judicial review was not declared within thirty (30) days from the date of filing for review. This issue was pointed out by Flowserve B.V. Netherlands, the interested party in this case as it sought to have the applicants application for judicial review orders dismissed. The court ruled that although the intention of the Legislature was to ensure that judicial review proceedings relating to public procurement were disposed of expeditiously, the provisions of Section 100 (4) of the Act was unconstitutional. The court reiterated that the Constitution required the court to render substantial justice in all matters that came before it and that the determination of some of the disputes could take a very long time, even where the court was ready and able to determine them much faster. Further, the speed at which matters were resolved was dependent on many factors and there are instances where the parties could not file all the necessary pleadings, submissions and authorities and argue the case within the given period of time. Therefore, it would amount to abdication of its constitutional mandate for a court to fail to give its determination simply because the hearing had lasted more than thirty days from the date the matter was filed. Although granting orders sought by the applicant would cause delay and expense in implementing the intended project, the court held that this was an unavoidable consequence which could not bar it from granting any deserved orders. The provision of Section 27 of the Act required a public entity to ensure that the Act, the Regulations and any direction of the Authority were complied with respect to each of its procurements. Where that was not done the court would act accordingly in an effort to ensure that the objects of the Act were realized.
HIGH COURT BREATHS LIFE IN AN ALLEGED MEDICAL NEGLIGENCE CASE
J.O.O suing through J.O (His father as the next friend & Guardian & 2 others vs Dr. Praxades Mandu Okutoyi, Dr. Chimmy Omamo Olende & the Kenya Hospital Association [2011] eKLR) (www.kenyalaw.org) High Court of Kenya at Nairobi, K.H. Rawal J. 13th April 2011. Reported by Ann Asugah Advocate
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The Court is duty bound to give breath notices of motion to strike out the suit. to any case which is capable of showing a tint of life in it Mr. Inamdar, Counsel for Mr. Olende commenced his submissions with the he High Court sitting in Nairobi provisions of Medical Practitioner and has reiterated the duty of the Dentists Act, particularly section 20, Court to sustain proceedings, which makes provision for disciplinary which would otherwise be considered proceedings. The section provides dead by dismissing two applications that if a medical practitioner or dentist filed by the defendants to strike out registered or a person licensed under a suit by the plaintiff arising out of the Act is convicted of an offence under alleged negligence by the defendants this Act or the Penal Code, whether in a surgery gone wrong. The facts of the offence was committed, or is, after the case, which are not disputed, are inquiry by the Board, found to have that J.O.O, at the relevant time a young been guilty of an infamous or disgraceful male of 17 years of age, sustained a nasal conduct in an professional respect the fracture in the course of a basketball Board may, remove his name from the match. He underwent an elective nasal register or cancel any license granted surgery on 11th February 2005 at the to him. Nairobi Hospital Day-Surgery Unit. Dr. Olende, the 2nd Defendant, undertook He further submitted that the board the surgical procedure being a licensed having heard the complainants evidence medical practitioner specialized as an it called on his client to answer to one Ear, Nose and Throat (ENT) Surgeon. Dr. charge - that of failing as the chair of Okutoyi, the 1st Defendant, a licensed the surgery team to ensure that the medical practitioner, administered surgical operation was carried out in anesthesia. During the procedure, J.O.O accordance with known standards. It sustained a cardiac arrest resulting in was his contention that drawing from brain damage by reason of a hypoxic Professor Asad Rajas evidence before incident. the Board, the surgeon does not take part in prior preparation of surgery and The Kenya Hospital Association, the 3rd that hypoxia (the cause of the condition defendant in this case launched its own of J.O.O) could only have happened at investigation into the matter through its the beginning or immediately prior to Standard Audit and Ethics Committee the surgery and that there was nothing (SAEC) which concluded that the cardiac to alert the surgeon that something arrest resulted from an anesthetic was amiss. accident resulting from inadequacy of intra-operative physiological monitoring. Further, Mr. Inamdar contended that J.O and M. M .O, the plaintiffs herein the charges before the Board and those filed a complaint to the Medical in the plaint covered the same scope Practitioner and Dentists Board, a and there was no new evidence upon statutory body established under the which the plaintiffs could rely on. In any Medical Practitioners and Dentists Act case, the defendants had already gone Chapter 253 of the Laws of Kenya. The through a process of inquiry before the Board is set up pursuant to section 4 of Board and the plaintiffs had not faulted the Act and its disciplinary powers are the Boards findings either in facts or spelt out under section 20 of the Act. law. He urged the court to strike out The Board set up a preliminary inquiry, the suit for being scandalous, frivolous which recommended a full inquiry in or vexatious and thus an abuse of the respect of the three defendants. The court process. Board after its inquiry concluded that Dr. Okutoyi was guilty of misconduct as It was further argued that irrespective alleged. The Board absolved Dr. Olende of the standard of proof applicable from any misconduct and also found that in disciplinary proceedings before the facts produced were insufficient to the Board and the plaintiffs failure to prove charges against Kenya Hospital challenge the findings of the Board, Association. Following these findings, a collateral attack through the suit the plaintiffs filed the present suit while would bring in the same parties, same the 2 nd and 3 rd defendants filed the evidence. He argued that the plaintiffs suit was oppressive to the defendants because the Board only blamed Dr. Okutoyi. Since the Board had arrived at conclusive findings, the plaintiffs were debarred from bringing any new evidence. Counsel further argued that the contention by the plaintiffs that the Board was not a court could not stand since the concept of abuse of court process was not confined to litigation arising out of a previous court litigation. Counsel for the plaintiffs, Mr. Wekesa in opposing the two applications, submitted that the Board inquiry and the civil proceedings were different. He observed that during the hearings before the Board, the defendants had highly emphasized that the proceedings were not a trial but merely an inquiry. He argued that the Board was mandated to inquire into disciplinary proceedings of its membership while the suit before the High Court was brought under its civil jurisdiction to hear and determine tortuous liability on negligence and damages under breach of contract. Mr. Wekesa observed that the Civil Procedure Act was specific in its definition of a court, which was restricted to the High Court and subordinate courts. With regard to the contention by the defendants that the plaintiffs had not challenged the Boards findings, Mr. Wekesa submitted that lack of appeal on the Boards findings could not constitute a bar to the present suit. The Court agreed with this submission. Mr. Wekesa argued that the purpose of the proceedings was to determine negligence, which could lead to tortuous liability against the defendants. Indeed, in an earlier case Jagdish Sonigra v Medical Practioners & Dentists Board & 2 others [2008] eKLR, the court seized of a similar matter observed that the case in the civil courts is in a totally different jurisdiction from the matter before the Board. In analyzing the evidence before it, the court came to the conclusion that although the Board exercised powers as a quasi-judicial tribunal, its jurisdiction cannot be assimilated with the industrial tribunal or other similar tribunals, which hear and determine civil claims of the party. The court was of the view that the penalty attached to the inquiry before the Board and the circumstances of the
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inquiry removed the Board from the found to have been guilty stated in section 20. This meant that the ambit of a civil tribunal. Board while hearing the matter did With regard to the defendants not have to look at the complainants submission that the issue of negligence statutory or common law rights. The was inextricably tied up with the issue Medical Practitioners and Dentists of professional misconduct, the court Board Act used the terms infamous observed that the charges of infamous and disgraceful conduct disjunctively or disgraceful conduct were serious but these were serious charges that misconduct as connoted by the words needed to be considered serious and contextually. The Court in conclusion found that the plaint was not scandalous, vexatious or without reasonable cause of action and not an abuse of the court process and that the Court was duty bound to give breath to any case which has a tint of life in it.
CONSTITUTIONAL FREEDOM OF THE MEDIA NOT A BAR TO A DEFAMATION SUIT
The Hon. Lady
Kwacha Group of Companies & another v Tom Mshindi & 2 Others Civil Suit No. 319 of 2005 High Court at Nairobi K. Rawal, J. April 13, 2011. Reported by Linda Awuor on any ground of discrimination. It is also provided that in the exercise of the right to freedom of expression, every person shall respect the rights and reputations of others. Article 34 also bars the State from exercising control over or interfering with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information or penalizing any person for any opinion or view or the content of any broadcast, publication or dissemination. of the Constitution barring the State from interfering with the media and from penalizing, whether by way of an award of damages or otherwise, any person engaged in the dissemination of information. It had been further argued that in the circumstances of this case, no question of the limitation of the freedom of the media arose because the allegedly defamatory words did not amount to propaganda for war; incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others After the close of the evidence in the case or incitement to cause harm. and in the course of final submissions, the defendants had challenged the The defendants advocate related to the jurisdiction of the Court to hear the Court the history of the Constitutioncase and raised an issue touching on the making process particularly on the interpretation of the provisions of the inclusion of the freedom of the media Constitution relating to media freedom. in the Bill of Rights and submitted that Through their lawyer, Mr. Wambugu throughout that process, the people of Gitonga, the defendants argued that Kenya had demonstrated that they did under the new constitutional order, not want any forms of state control over any publication in the media cannot the media. be challenged in a court of law on the The application was opposed by Mr. grounds of defamation because the State Mansur Issa, the lawyer for the plaintiffs, and the Courts were constitutionally on several grounds. Most substantively, deprived of any control over broadcasts he argued that the freedom of the media and all other media. He submitted that was not an absolute constitutional the Court had no jurisdiction to hear right but a right which, along with the matter because the Judiciary being several other rights, was subject to an organ of the State, to hear the case certain limitations. These limitations would be to contravene the provisions were those which, in the words of
Justice K. Rawal, J.
he High Court has ruled that even though the new Constitution provides for press freedom and forbids the State from exercising control over or penalizing the media, this freedom is not to be interpreted to mean that a court of law may not hear and determine cases of defamation brought against the media. The Court was deciding a constitutional issue raised in a case in which Kwacha Group of Companies and Mr. Jimi Wanjigi (the plaintiffs) have sued Messrs. Tom Mshindi, David Makali and The Standard Ltd (the defendants) claiming damages for allegedly defamatory words published in a newspaper. Lady Justice K. Rawal, who presided over the case, held that the enjoyment of the freedom of the media is subject to the limitations imposed by the new Constitution, which include the need to be considerate of the rights and freedoms of other individuals. Under Articles 33 and 34 of the new Constitution of Kenya, freedom and independence of electronic, print and all other types of media is guaranteed. However, the Constitution states that this freedom does not extend to any expression relating to propaganda for war; incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based 90
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Article 24 of the Constitution, were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Mr. Issa also submitted that because Article 165(3)(a) gave the High Court unlimited original jurisdiction in all criminal and civil matters, the High Court had the jurisdiction to hear the case as it was a civil claim for damages for defamation. In deciding the application, Lady Justice Rawal first noted that Kenyas Constitution was unique among the constitutions of many other states in that rather than including the freedom of the media under the general framework of the freedom of speech and expression, it specifically provided for it as a distinct and separate right among the Bill of Rights. However, she noted that the same Constitution also made provisions guiding the courts in the interpretation and application of the Bill of Rights. Article 20(4) provides that: In interpreting the Bill of Rights, a court shall promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and the spirit, purport and objects of the Bill of Rights. Referring further to Article25 of the Constitution, the Judge observed that freedom of the media was not one of the rights that cannot be limited. The article provides that Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited- freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair trial; and the right to an order of habeas corpus. While recognizing the freedom of the media under Article 34, Lady Justice Rawal affirmed that the freedom was not absolute and that limitations could be imposed on its enjoyment as long as those limitations met the requirements of the Constitution. She turned to the wording of Article 24 of the Constitution which cited several factors that should be taken into consideration in limiting the enjoyment of a constitutional right and emphasized on the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Considering the value and spirit of the Constitution and the foregoing Articles, and also taking into account the spirit of human dignity, equality and equity, Justice Rawal found that it came out clearly that the rights granted by the Constitution should be enjoyed as well as governed equally amongst all persons. In her opinion, to accept the argument that a suit challenging the publication of defamatory matter is barred by Article 34 of the Constitution would be a travesty of justice and the rule of law and a disregard of the need to safeguard human dignity and reputation. The Court adopted a passage from the South African case of Del Plessis and Others vs- De Clerk and another (1997) LRC 1, 637 at 672which stated: Any law of defamation is a restriction on freedom of speech in the interest of other rights worthy of protection. More particularly, in cases of defamation, Courts have tried to strike a balance between the protection of reputation and the right of freedom of expression. In conclusion, the Court held that the removal of some portions from the Draft Constitution which would have given the Courts certain powers over the media could not be construed as taking away the Courts power to do justice. In any case, the Constitution amply granted the Courts the power to exercise its primary duty of preserving and safeguarding justice, equity and equality. The Court therefore rejected the argument that it had no jurisdiction to hear and determine defamation cases filed against the media.
APPLICATION TO DECLARE PART OF THE HIV AND AIDS PREVENTION AND CONTROL ACT UNCONSTITUTIONAL
Aids Law Project v The Hon. The Attorney General & Another Petition No. 97 of 2007 High Court at Nairobi D. Musinga, J. 7th April, 2011
Reported by Monica Achode the hearing. The court proceeded to direct that an early hearing date for the petition be set so that the issues raised could be comprehensively dealt with by a three judge bench. Section 24 spells out penal consequences to anyone who knowingly and recklessly places another person at risk of becoming infected with HIV. The section provides that if found guilty, the convicted person shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years. The contested section came
arly this month the High Court declined to suspend the implementation of section 24 of the HIV and AIDS Prevention and Control Act (the Act) citing that public interest outweighed the applicants interests at the interim stage of
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into operation on December 1,2010 The applicant submitted that the law had through Legal Notice 180 of 2010 issued to be precise, clear and capable of giving by the Minister for Special Programs. sufficient notice to the ordinary citizen of what was the forbidden act or omission. Following an interim application by the Thus section 14 was unconstitutional applicant, Aids Law Project, seeking to because it failed to conform to the fact suspend the enforcement of section 24 that every person had the right to have pending hearing and of the substantive any dispute that could be resolved by the petition the court balanced two possible application of law decided in a fair and outcomes. On one hand the court public hearing before a court, and that considered the risk of issuing orders its wording put the liberty of persons to suspend a section of a statute, in infected or carrying the HIV and AIDS the event that upon hearing of the virus in jeopardy - in the sense that the petition the interlocutory orders were said liberty could be deprived arbitrarily not confirmed, the effects of the earlier without just cause and on the basis of a order would be irreversible. On the vague and imprecise law lacking in due other hand, if the conservatory orders notice. were not granted and at the conclusion of the hearing the orders sought in the In its affidavit the applicant swore that petition were granted, the applicant an offence could arise, under section would suffer irreparable loss in the 24(1) as read with section 24(3) of interim period. the Act, from a failure to disclose information to a sexual contact. Mr. Justice Daniel Musinga presiding According to the applicant this meant over an interim application stated that that there was a risk to the realization of the court had to proceed with great the rights to a fair hearing under section caution before granting conservatory 50 of the Constitution of the Republic orders which would have the effect of Kenya. The affidavit further deponed of halting enforcement of an existing that the law did not define what any law. This was because there was sexual contact was, nor did it place any presumption that in debating a bill corresponding duty of confidentiality and eventually enacting the same into on the sexual contact or say what in law, the legislature considered all the advance meant. relevant factors. Justice Musinga ruled. The applicant through its advocate, In the substantive petition Aids Law Mr. Omwanza, further deponed Project, was seeking the court for that no transmission or intent was the aforesaid section to be declared required; making it extremely difficult unconstitutional. Further the petition for the average person to determine sought for a declaration that section precisely what behaviour was subject 24 was very wide and vague and was to prosecution. The concept of sexual therefore discriminatory as against contact was of a very broad scope that people with HIV/AIDS. was extremely difficult to define, and its definition would be dependent upon the Pending determination of the substantive subjective views of the particular judicial petition, the applicant sought an officer trying the case. The applicant injunction against the Attorney General further stated that criminalization of and the Director of Public Prosecutions HIV transmission was ineffective at (the respondents) from enforcing preventing transmission and was also section 24 of the Act as related to penal unconstitutional. provisions therein. The application was based on several grounds among On the unconstitutionality of sections them; that the provisions of section 24 24(1) and 24(3) of the Act, the of the Act were worded in a vague and applicant told the court that section 24 overbroad manner incapable of giving discriminated against people living with the ordinary citizen sufficient notice of HIV, women and members of vulnerable the criminalized act or omission and groups. He pointed out that Article the intended objective it was meant to 31 of the Constitution provided that achieve and that the section failed to every person had the right to privacy adhere to the principles of legality. which included the right not to have 92
information relating to ones family or private affairs unnecessarily required or revealed or the privacy of their communications infringed. Regarding criminalization of HIV transmission, the applicant submitted that there were other applicable laws such as the the Sexual Offences Act that prohibited willful infection of HIV. He cited Section 26 of the Sexual Offences Act which provided that any person, having actual knowledge that he/she was infected with HIV or any other life threatening disease and who sexually transmitted the disease intentionally knowingly and willfully was guilty of an offence and was liable to imprisonment for a term of not less than 15 years but which sentence could be imprisonment for life. It was argued therefore that in view of the unconstitutionality of Section 24 of the HIV and AIDS Prevention and Control Act and in view of the fact that there was already in existence other provisions of the law dealing with deliberate and willful transmission of HIV, the orders sought in the application ought to be granted pending hearing and determination of the petition. In opposing the application Mr. Onyiso for the respondent stated that the applicant had not set out a prima facie case with a probability of success. In his view sections 22 and 24 of the HIV and AIDS Prevention and Control Act were not vague or ambiguous and that the rules of statutory interpretation militated against the grant of orders sought. He urged the court not to lose sight of the good intentions of the Act in particular section 24. He reminded the court that the applicant had not demonstrated the irreparable damage that HIV/AIDS infected persons would suffer if conservatory orders were not granted as sought. The court weighed the competing interests of the applicant and the persons they represented against those of the wider public, and held that the latter had to prevail. The court declined to grant the orders sought by the applicant instead proceeding to direct that an early hearing date for the petition be set so that the issues
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raised could be comprehensively dealt with. In reaching its decision the court stated that under Article 165 (4) of the Constitution of Kenya, 2010, any matter certified by court as raising a substantial question of law had to be heard by at least three judges assigned by the Chief Justice. The Court further added that in an application of this nature it had to endeavour to uphold and protect the rights of the applicant as guaranteed by the Constitution keeping in mind that on the other hand, the enjoyment of those rights had to be within the confines of the law.
FORMER PRESIDENT HELD PERSONALLY RESPONSIBLE FOR ILLEGALLY DETAINING EX SPY CHIEF
Mwangi Stephen Mureithi v Daniel Toroitich arap Moi Petition No. 625 of 2009 High Court, at Nairobi J. Gacheche, J. April 6, 2011.
The Hon. Lady Justice
J. Gacheche, J.
Reported by Cornelius Wekesa Lupao partner and that they owned shares in three companies and several properties namely Fourways Investments Limited, Sheraton Holdings Limited and Mokamu Limited. Mr. Muriithi, a former Deputy Director of Intelligence and Deputy Commissioner of Police in Kenya alleged that sometime in 1982, the former president, while using his powers as the President of the Republic of Kenya, without any lawful cause and excuse, ordered and caused his detention without trial for the purpose of illegally and unconstitutionally depriving him of his rights to the said companies. He further averred that the reasons for his detention were meant to achieve ulterior commercial advantages for the respondent and that in detaining him without trial, the respondent acted in abuse of office as President of the Republic of Kenya. Mr. Muriithi alleged that the former president caused to be sold and ravaged his interests in the aforementioned companies without accounting for the same to him. Mr. Muriithi asserted that the aforementioned acts negated his constitutional rights and values as enshrined by the Bill of Rights in Chapter v of the repealed Constitution. among other things, that it was bad in law and an abuse of the court process for the petitioner to seek constitutional redress against an individual who was not the custodian of the Fundamental Freedoms under the Constitution. The former president contended that he was not a guarantor of the fundamental rights under Chapter V of the repealed Constitution and that the fundamental rights and freedoms were owed, guaranteed and secured by the State and that they were enforceable as against the Government as a respondent. He further argued that since the properties in issue were owned by companies which were distinct entities from the petitioner, therefore the court would have no jurisdiction under S. 84(1) of that Constitution or under Fundamental Rights and Freedoms of the Individuals (High Court Practices and Procedure Rules) 2006, to adjudicate on fundamental rights or grant relief to persons or entities who were not before the court. He maintained that the petitioner had raised several issues of company law which could best be addressed through the avenues of commercial courts as provided by under the Companies Act, Cap 486 Laws of Kenya, and that the filing of this petition had a collateral purpose.
he High Court has ordered former President, H.E. Daniel arap Moi (the respondent) to pay Mr. Stephen Mwangi Muriithi Sh50 million as punitive damages and Sh80 million, as compensation for violating his constitutional rights. The Sh80 million compensation was to earn compound interest at 12 per cent from July 1982. In the precedent setting case, the court held the former president personally responsible for the unlawful detention of the ex spy chief and refused to accept the respondents argument that fundamental Rights and Freedoms are owed by the State and are only enforceable as against the State. The court stated that the rigid position that the human rights applies vertically is being overtaken by the emerging trends in the development of human rights law and litigation. The court stated that private individuals and bodies such as clubs and companies wield great power over the individual citizenry, who should be protected from such non-State bodies who may for instance discriminate unfairly. The ruling was delivered by Lady Justice Jeanne Gacheche following a petition by Mr. Stephen Mwangi Muriithi(the petitioner) which alleged that the former president, who was at all material times the President of the Republic of Kenya, was his business
On the other hand, the former President, represented by Mr. Ochieng Oduol opposed the petition by way of a The petitioners counsel, however, made preliminary objection, contending
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a strong response thereto, arguing that the court had jurisdiction to determine the matter under section 84 of the repealed Constitution which provided that constitutional petitions could be made and entertained without prejudice to any other action in respect of the same matter which is lawfully available. Finally, the respondent contended that the petitioners detention was underpinned in the Statute and in particular section 4(2)(a) of the repealed Preservation of Public Security Act, Cap 57 of the Laws of Kenya as read together with the repealed Public Security (Detained and Restricted Persons) Regulations. The relevant Regulations provided, that if the Minister was satisfied that it was necessary for the preservation of public security to exercise control beyond that afforded by a restriction order, over any person, he could order that that person be detained. He argued that under the relevant law the Minister in charge of Internal Security at the material time was responsible for the petitioners detention and the President of the Republic was not mentioned anywhere in the Regulations save all that was required of him was to sign the relevant Gazette Notice so as to operationalise section 85 of the then Constitution of Kenya. Therefore the petitioner ought to have sued the said Minister, not in his personal capacity, but as an agent of the State. repealed Constitution which stated inter alia that anyone who was unlawfully arrested or detained by another person would be entitled to compensation therefore from that other person. He maintained that Article 9 Rule 5 of the International Covenant on Civil and Political Rights reiterates the position and that it provides inter alia that anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation. It was his submission that his client was detained for closely over 3 years and that the only question would be whether his detention was caused by the respondent and also whether it was unlawful. The petitioners case turned on these questions - who actually detained the petitioner? Could the former president he held personally liable for violating the petitioners constitutional rights. The petitioner had averred in his affidavit that the respondent had in the past apologised for the alleged wrongdoings and that the Minister of State could not detain any person under the preservation of Public Security Act without the knowledge and consent of the President of the Republic. His affidavit contained a presumption to the effect that since the petitioner was a Deputy Director of Intelligence and Deputy Commissioner of Police in Kenya and a business partner he could not be detained without the knowledge and consent of the President of the Republic. Since the respondent did not file a response to these allegations it was taken that the respondent had accepted all the matters raised in the petitioners affidavit. held that human rights are applicable vertically this was at variance with the practice in other jurisdictions, where the fundamental rights are applicable both vertically and horizontally. The court referred to a South African case where the Constitutional Court held that the applicant had been unfairly discriminated by a non state actor in being denied employment on the basis of his HIV status which action was held unconstitutional. While finding in favour of the petitioner, the court stated, among other things, that the facts revealed tended to show that the petitioners detention was intended by the respondent to secure a personal and ulterior commercial advantage and that there was no reason at all to believe that the said detention was carried out for the purposes which were laid down in the Preservation of Public Security Act. Quoting the decision in the Second Circuit of the United States Court of Appeals in Filartiga vs- Pena Irala which upheld a suit for damages against a former official of Paraguay for acts of torture leading to death, the Court concluded that although the case dealt with the issue of torture leading to death, the decision would most appropriately apply in the circumstances where denial of fundamental human rights leads to a loss, be it physical or economic, thus the court would in worthy cases award punitive and exemplary damages, in order to punish a respondent, for his irrational, arbitrary, oppressive and unlawful acts.
Mr. Mwangi, counsel for the petitioner, however argued that the right to personal liberty was one of the internationally recognised fundamental civil liberties The court noted that while in Kenya and was protected by section 72 of the the courts have on several occasions
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WHY COURT ORDERED INQUIRY INTO KRAS PROCUREMENT OF INSURANCE BROKERAGE SERVICES
Republic v Public Procurement Oversight Authority & 2 others Miscellaneous Civil Application No. 261 of 2010 ex parte Getrio Insurance Brokers Ltd [2011] eKLR High Court at Nairobi D. Musinga, J. April 1, 2011
The Hon. Mr Justice D. Musinga J.
he High Court has ruled that even where the performance of a statutory duty by a public entity was discretionary, the court could intervene where the discretion was not exercised judicially or fairly. This was held in a judicial review matter where Getrio Insurance Brokers Limited had sought for orders of mandamus compelling the Public Procurement Oversight Authority (PPOA) to carry out investigations as to the circumstances surrounding and leading to the award of a tender for provision of Insurance Brokerage Services by the Kenya Revenue Authority(KRA) and in particular whether KRA violated the Public procurement Disposal Act, 2005, the Public Procurement and Disposal Regulations,2006 and the directions issued by the respondent to procuring entities. Justice D Musinga, who presided over the case, held that it was the intention of Parliament that the Public Procurement of goods and services was done in a manner that was efficient, fair, competitive, accountable, and transparent and in a way that inspired public confidence in the procurement procedure. He added that the process required to be conducted with integrity and that PPOA had to display outstanding honesty and integrity in all its undertakings. PPOA was established under section 8 of the Public Procurement and Disposal Act, 2005 and its functions set out in section 9. The functions include ensuring that the procurement procedures established under the
Act are complied with and also to monitor the Public Procurement System and make appropriate reports to the Minister with recommendations for improvement as may be deemed necessary. Section 102 to 105 of the PPDA gave PPOA unfettered powers to order investigations of procurement procedures for purposes of determining whether there has been a breach of the Act, the regulations or directions relating to procuring entities. The background of the case is that Getrio insurance Brokers Ltd (applicant) had participated in two tenders issued by KRA which tenders the applicant had reason to believe were not undertaken in a fair, accountable and transparent manner as had been envisaged under the provisions of section 2 of the Public Procurement and disposal Act. The applicant further stated that it had on several occasions brought to the attention of PPOA, cases of breach of the Act and the regulations by KRA, with a request that the respondent carries out investigations as mandated by the Act but the respondent had failed to carry out the investigations.
circumstances under which the tender had been advertised, evaluated and awarded. The applicant submitted that the letter was responded to by the Interim Director General of PPOA, Mr. Juma who acknowledged receipt and stated that they were still reviewing the issues raised and would revert back to them. However, the applicant averred that PPOA had not given any substantive response to them despite a reminder.
In a separate instance, Getrio Insurance stated that it had submitted its bid for a tender issued for the award of Insurance Brokerage Services for KRAs staff Pension Scheme. However, it did not receive any communication and thus wrote to PPOA requesting for Investigations into the matter as it believed that KRA had again awarded the tender without informing the unsuccessful bidders. However, PPOA did not respond to the said letter but later on, Getrio Insurance received a letter from KRA informing it that its tender for provision of Insurance Brokerage services to KRA was unsuccessful. Getrio Insurance wondered when the award was made since the period of Insurance was to run from 1st July, 2010 yet the award was Getrio Insurance Brokers Ltd submitted made on 14th July, 2010 as portrayed by that they had cited a tender notice the letter from KRA. where KRA had invited bids for provision of Insurance Brokerage Services. The The applicant therefore submitted that applicant averred that pursuant to the PPOA had neglected to execute its section 46(2) of the Act, PPOA published express mandate as stipulated under in the Daily Nation newspaper that the Public Procurement and Disposal KRA had awarded another tender Act and further, that PPOA had failed for provision of Insurance Brokerage to discharge its mandate to Kenyans as Services to Canopy Insurance Brokers. envisaged by parliament in enacting the Subsequently, the applicant wrote a Act and regulations there under. letter to PPOA seeking to enquire the On the other hand, PPOA opposed the
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application on the grounds that section 102 of the Public Procurement and Disposal Act gave the Director General of PPOA discretion to order investigations to procurement proceedings to determine whether there had been a breach of the said Act. PPOA also submitted that a judicial review order could not have issued to compel the performance of discretionary functions and duties and further that if the applicant was dissatisfied with the way the impugned procurement process was conducted, its remedy lay in the Appeal Board as was provided for by the Act. The court noted that section 103 of the Act granted wide powers to PPOA to investigate procurement proceedings. Justice Musinga thus agreed with the applicant by finding that PPOA ought to have exercised the mandate bestowed on it by section 102 of the Act and carried out investigations to ascertain whether KRA had breached the provisions of the Act in its award of the various tenders referred to by the applicant. He further found that the applicants complaint that it was severally not informed in time of their unsuccessful bids was a breach of the provisions of section 67(2) of the Act which required the procuring entity to return the tender security as soon as the contract which was the subject matter of the tender was executed. The court further found that PPOA was under a legal obligation to investigate the claims by the applicant and make an appropriate response to the applicant and to the Minister. The court noted that Canopy Insurance may have been winning the tenders fairly, but once a complaint had been raised about the award, PPOA ought to have carried out thorough investigations in the spirit of the Act as stated in section 2, and responded to the applicants letters. The court emphasized that that was the only way of inspiring public confidence in the procurement exercise. In dealing with the opposed grounds, the court found that inasmuch as the performance of a statutory duty of a public entity was discretionary, the court could intervene where the discretion was not exercised judicially. Justice Musinga relied on Article 47 of the Constitution which provided that every person had the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. As regards the argument by PPOA that the applicants remedies lay in an appeal to the Appeals Board, it was clear that no decision was made by PPOA and consequently no appeal could have been filed by the applicant. In conclusion, the court was satisfied that PPOA had not exercised its discretion in a judicial manner considering the fact that the applicant had raised weighty and very relevant complaints which required thorough investigations. The court found that whether or not such complaints had any validity was not for the High Court to determine. The orders of mandamus were therefore granted as prayed.
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Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 23 On appeal from the Court of Appeal [2008] EWCA Civ 1204 JUSTICES: Lord Hope (Deputy President), Lord Rodger, Lady Hale, Lord Brown, Lord Kerr exercised. It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised. The policy also provided for detention to be subject to review at regular intervals. It specified the frequency of review and the grade of official who was to carry them out. The policy required the Appellants detention to be reviewed on five occasions during the first month and then monthly thereafter. The Appellants detention was not reviewed in accordance with that policy. By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month. His detention had been reviewed only ten times. Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact. The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him. had been lawful throughout. Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention.
BACKGROUND TO THE APPEAL The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment. Shepherd Masimba Kambadzi is a Zimbabwean national. He entered the UK lawfully, but remained here after his leave to remain expired. In 2005, he was convicted of assault and sexual assault, sentenced to one years imprisonment and ordered to be registered as a sex offender for five years. Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006. On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. In all, he was detained for 27 months until 13 June 2008, when he was granted bail. He has not yet been returned to Zimbabwe because of conditions in that country. The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904). The Respondent had a policy which detailed how the power to detain was to be
JUDGMENT The Supreme Court, by a majority, allows the appeal. Lord Hope gives the leading judgment; Lady Hale and Lord Kerr issue separate concurring judgments. The majority holds that the Appellants detention was unlawful for the periods in respect of which no review was carried out and that he does have a claim in tort for false imprisonment in respect of those periods. The amount of damages is yet to be ascertained, but will be nominal if it is found that the Appellant would have been detained even if his detention had been reviewed as the policy required. Lord Brown gives While still detained, the Appellant raised a dissenting judgment, with which Lord a judicial review, seeking a declaration Rodger agrees. that he was unlawfully detained and damages. At first instance, Munby J REASONS FOR THE JUDGMENT granted a declaration that the Appellant The Secretary of State was under a public had been unlawfully detained for law duty to adhere to the terms of the various periods amounting to about policy relating to reviews unless there 19 months and gave directions for the were good reasons not to: [36], [39], assessment of damages, but he declined [66]. The majority of the Court holds to order his release. (The Appellant that the Respondents unlawful failure was subsequently granted bail in other to review the Appellants detention, as proceedings.) The Court of Appeal required by the policy, resulted in his allowed the Secretary of States appeal detention being unlawful. The court and held that the Appellants detention rejects the argument that because
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the breach of public law related to a procedural requirement, it did not affect the legality of the detention: [69] [73], [85]. Some procedural requirements go to the legality of the detention and some do not: [71]. The policy was sufficiently closely related to the authority to detain to qualify the Secretary of States discretion under the 1971 Act: [51]. The very point of the review was to ensure that the detention was lawful: [73], [86]. The public law error bore directly on the decision to detain the Appellant and therefore satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful: [42], [88]. The Appellants detention was not unlawful, however, where the only defect in the decision to continue detention was that the review had been carried out by an official of the wrong grade: [60]. As the Court also held in Lumba, it was no defence to the claim that there were grounds which justified the Appellants detention: [54], [73], [88]. False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage: [74]. The result of the reviews which should have taken place is, however, relevant to assessing damages. A defendant is liable only for the loss which his wrongful act has caused. The full facts of this case are yet to be established, but if it is found that the claimant would not have been released had proper reviews been carried out, he will only be entitled to nominal damages: [55] [56], [74], [89]. Lord Brown (with whom Lord Rodger agrees) would have held that the failure to review the Appellants detention did not result in the Appellants detention being unlawful. They hold that the policy did not confer upon the Appellant an entitlement to be released, but only an entitlement to be reviewed for release: [107]. Once properly detained, a detainee remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction, or he establishes a substantive entitlement to release: [111]. Lumba does not compel the majoritys result, because it was concerned with a substantive entitlement under the policy and not a procedural one, and because it also held that not every breach of public law resulted in detention being unlawful: [116] [118].
NOTE This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html
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