Professional Documents
Culture Documents
Bench Bulletin Issue 24
Bench Bulletin Issue 24
01 Editors Note
Where does stuff come from? Ideas
02 CJs Keynote Address by the Chief
Justice at the Members of County
Assemblies Forum
p.
45
07 Cityzen Nenkai
10 Witness Protection: The Kenyan
Context
09 What they Said
COMMENTARIES
p.
23
p.
25
Lifestyle
31 The impor tance of Per formance
Measurement in Organisations
32 Employee Happiness: Does it Matter?
p.
36
44
Caseback Service
46
Cases
Editor
| Longet Terer |
p.
40
Contributors
| Michael Murungi | Monica Achode | Linda Awuor | Cornelius Lupao | Janette Watila | Eric Odiwuor | Edna Kuria |
| Wambui Kamau | Nelson Tunoi | Emma Kinya | Moses Wanjala | Phoebe Ayaya | Lydia Midecha | Andrew Halonyere |
| Martin Andago | Teddy Musiga | Victor Kipyegon | Lynett Jakakimba | Beryl Ikamari | Dudley Ochiel | Lisper Njeru |
| Caroline Wairimu | Mary Waruguru | Ruth Ndiko | Naomi Mutunga | Cicilian Mburunga | Thomas Muchoki |
| Humphrey Khamala |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
The Council
ii
Editors Note
tepping into the new offices of Kenya Law this February a physical
space far more spacious and elegant than I have worked in in more
than a decade I couldnt help but look back into the enormous
physical and intellectual labour that went into establishing the
offices. Yet all that started with a very simple idea to improve access to
justice by nurturing Kenyas jurisprudence through the establishment of a
government-funded institution that would have the physical, intellectual
and financial resources to effectively and sustainably undertake the official
publication of the law reports of Kenya.
This idea probably had its first experience with physical reality when it was
presented and debated as a Bill before the National Assembly in the mid
1990s. I would imagine that the vision of the future of that idea that some
of the parliamentarians saw in their minds eyes at that time may have been
something close to the picture presented by these new premises. But for
others, the vision may have been grander, and this represents the amount
of progress and growth that lies ahead of Kenya Law.
In the series of events that led to the establishment of the new offices, I
recognised the familiar pattern that defines how ideas get transmuted from
mere thoughts in the minds of humans into reality: an idea is entertained in
the mind of one human being; that idea is shared with other humans; the
idea is collaboratively refined and enriched with the knowledge of others; it
is then expressed into a tangible medium of expression (often by an author
who is compelled to do so by the force of the ideasgathered power) and
then physical matter (or resources if you like) begins to swirl and gather
around the idea with a speed that is proportionate to the progressive power
behind the idea.
If this sounds simple, it is because it is. The raw materials from which
the offices were built and from which skyscrapers and other works of
architecture are made is not new stuff. It is stuff that has always been lying
around but has been brought together by the physical and intellectual
labour of human beings working under the spell of a great and progressive
idea. There is no doubt that more stuff remains to be mined and shored up
than the stuff that has already been used - more is the iron ore that has yet
to be extracted and deeper is the quarry that has yet to be dug. The amount
of this dormant stuff is a measure of the many progressive ideas that human
beings havent even started to think.
So, what new and progressive idea do you want to entertain today?
Editors Note
CJs Message
Keynote Address by the Chief Justice
at the Members of County Assemblies
Forum
Mr President,
Chairman of the County Speakers Forum;
Secretary of the County Speakers Forum;
Speakers of the County Assemblies;
Honourable Members of the 47 County Assemblies from around Kenya;
Distinguished Guests;
Ladies and Gentlemen:
CJs Message
CJs Message
and
constituents,
proportional
representation
increases the presence of groups that would otherwise
be excluded from decision-making -- such as women,
other marginalised groups, and minority interests. In
this respect, therefore, County Assemblies have proved
that the constitutional design that requires no more
than two-thirds representation of one gender, as well
as the inclusion of minorities, is not only desirable,
but also possible. You are the face of the new and
future Kenya youth, men, women, and people with
disabilities.
It is hoped that the success in establishing diverse
and inclusive assemblies at the county level inspires
changes in other State organs to do what is necessary
to complete Kenyas transition to a constitutional
democracy. You have a great opportunity to act as
beacons of patriotic, progressive, and transformative
governance.
Ladies and gentlemen, the survival of Kenya as a
nation-state is tied to the success of devolution. It has
been designed not to fragment the country, but rather
to foster national unity by recognising diversity. Yet,
because it deposes a system of control, dominance
and authority established by the colonial powers
and subsequently perpetuated by successive postindependence administrations, it will have enemies
few but powerful and cunning. The success of
devolution cannot be guaranteed if vigilance at the
individual and institutional level flags. In this patriotic
struggle the County Assemblies become our great foot
soldiers.
Recall that the first attempt at dispersing power in 1963
was stillborn in one year. Fifty years of centralised
government delivered its verdict, and the people of
Kenya did not like it. Rising poverty and inequality,
institutionalised marginalisation and exclusion
characterised its results --and there are still many areas
of our nation that remain untouched by development.
Devolution is an attempt to reverse these and attempt
a new model of power and development. The question
is what verdict it will deliver, and what will be your
role in that
outcome? In answering this question County Assemblies
have a pivotal and fundamental role to play.
Whereas it is proven that centralised government
hasnt worked, there is no guarantee that devolution
will work, unless you play your part to make it work.
The failure of devolution and the failure of centralised
government will only mean one thing: a shameful
4
interests. We called for the protection of devolution
by the Senate. We believe also that dialogues between
county governments and the national government over
county and national resources is at the very core of our
sustainable development, a value in our Constitution.
It would be a great shame if the opportunity for all Kenyan
communities to govern themselves, to participate more
robustly in decisions affecting them, and to direct their
development were to be undermined by corruption
and greed, sloth and incompetence or even poor
management of resources. These threats loom large
and it is your constitutional duty to safeguard against
them. County assemblies occupy a critical position
in protecting the purity of devolution by enhancing
oversight and entrenching checks and balances at the
local level. By promoting the constitutional values
of good governance, integrity, transparency and
accountability and sustainable development, county
legislatures can hasten the moulding of Kenya into one
cohesive nation.
I summon you to the defence of the devolved system
of government as by law established lest it falls into
disuse and dies a second death due to negligence,
corruption and the notoriously numerous Kenyan
issues of division: ethnicity, gender, generation, class,
clan, nepotism, region, region and race. Your defence
of devolution must show in the laws you make to
enable the county governments to function. It must
be evident when you exercise oversight over county
governments. And it must be seen as you receive and
approve plans and policies for the management and
exploration of resources. It must never be in doubt
as you consider the development and management
of infrastructure and institutions. This is the duty you
swore to do.
Beyond focusing on the roles assigned to county
governments in the Constitution, County Assemblies
have a duty to facilitate the decentralisation of State
organs, their functions and services away from the
capital. Not only does this enhance socio-economic
development and ease access to services for all
Kenyans, but it also creates equality for all citizens
wherever they are.
As head of the Judiciary, I am keenly aware of the
constitutional obligation to establish a High Court in
every county. Let me express the profoundest gratitude
to those county governments, with the support of
their respective legislatures that have provided land
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your counties.
Our nation is founded on the Constitution and the rule
of law: It means all of us, great and small, institutions
and individuals, must live by the law, upholding it and
promoting it, or descend into anarchy. The line in our
national anthem, Justice be our shield and defender,
is not ornamental; it is profound. We all need it.
And as the first generation of leaders under the new
Constitution, we must know that future generations
will never forgive us if we fail to validate and animate
their aspirations as contained in the new Constitution.
If we let a document so
progressive in its provisions unravel to the peoples
disadvantage, no penance can suffice to cleanse our
sin.
The year 2013 has been a milestone for Kenya as it is the year in which all the provisions
of the Constitution of Kenya 2010 have come into effect. The aspiration of the Kenyan
people for better governance and a more responsive public service was brought closer
to reality in March 2013 with the coming into effect of the two levels of Government at
the national and the county level.
Kenya Law is happy to have been part of this process through the discharge of its mandate.
Most importantly we have also been able to improve ourselves through the establishment
of new offices and a growth in our human resource compliment. These improvements
are aimed at ensuring that Kenya Law is able to offer its services in a more efficient and
responsive manner for the benefit of the Kenya people. Our aspiration to ensure that
legal information is public knowledge is now more than ever very critical for the country.
Supreme Court
Judges Tunoi,Ibrahim,
Ojwang, Wanjala &
Njoki Ndungu
Courts are the wellsprings of justice, the bastion to which recourse in law is
sought. Whenever a party seeks to vindicate infringed rights at any tier of Courts,
the duty to do justice is always the rule of thumb. It was also a cardinal principle
that flowed from the Constitution, and which demanded that the ends of justice
be met when any Court of justice in the Republic of Kenya has been properly
seized of a pertinent question. Interest of justice cannot therefore be an isolated
criterion, on the basis of which the Court may be urged to allow an appeal as
a matter of general public importance. Supreme Court Judges Tunoi, Ibrahim,
Ojwang, Wanjala & Njoki Ndungu in Koinange Investments & Development Ltd
V Robert Nelson Ngethe
Persons in general did not have a right to an advisory opinion of the Supreme
Court. Rights declared under article 22 (such as access to justice) were
enforceable by way of ordinary court proceedings. Such proceedings did not
necessarily include the Supreme Courts advisory opinions. By their very nature
and design, Advisory opinions were meant to serve as a device in aid of the main
tasks of the institutional conduct of governance. And thus, those entitled to resort
to such opinion werethe national government, any state organ or any county
government. Supreme Court Judges P K Tunoi, M K Ibrahim, J B Ojwang, S C
Wanjala & S N Ndungu, In the Matter of Kenya National Commission on Human
Rights & 2 others
BB Issue 24, January - March 2014
Longet Terer
Editor/CEO,
Kenya Law
Supreme Court
Judges P K Tunoi, M K
Ibrahim, J B Ojwang,
S C Wanjala & S N
Ndungu
It was the Judges and Magistrates Vetting Board that had the exclusive jurisdiction
to determine questions about the suitability of a judge or magistrate to continue
serving in office and such jurisdiction was exclusive of the appellate or original
jurisdiction of any court in Kenya. Court of Appeal Judges P O Kiage, A K
Murgor, F Sichale, J Mohammed & Otieno-Odek, in Dennis Mogambi Mongare
v Attorney General & 3 others
Justice F. Tuiyott
Supreme Court
Judges Kalpana Rawal
DCJ, PK Tunoi, M K
Ibrahim, JB Ojwang&
N Ndungu
Justice Edward M
Muriithi
Sections 2, 6 and 7 of the Matrimonial property Act, 2013 fleshed out the right
provided by article 45(3) of the Constitution of Kenya, 2010. By recognizing
that both monetary and non-monetary contribution must be taken into account,
it was congruent with the Constitutional provisions of article 45 (3) of the
Constitution that parties to a marriage are entitled to equal rights at the time of
the marriage, during the marriage and at the dissolution of the marriage. Justice
F. Tuiyott in UMM v IMM
Feature Story
10
CONTENTS:
1. Concept &Rationale of protection
2. Historical Context(Local &international)
3. Legal grounding(Local & international)
4. Achievements/Operations
5. Conclusion: look-ahead
2. Historical Context
Joseph Valachi, a member of the American-Italian Mafia
turned justice collaborator is documented as the first
witness accorded quasi-formal Government protection
when he testified in 1963 to a US Congressional
Committee on the structure of the Mafia. Not until the
early 1970s was The Witness Security Program of the
11
3. Legal Grounding
a) The Constitution
In Kenya witness protection remains a fundamental
human right as clearly captured under the Bill of Rights
(Chapter Four) in the Constitution.
Article 48 guarantees the right to access to Justice
while Article 50(9) has provided for the need to have
legislation to provide for protection, rights and welfare
of victims of offences.
The two Articles read together, therefore, obligate the
Government to protect witnesses in Kenya.
Specific sections of the Constitution that
provides for the right to protection include: Article 29, which provides
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12
Feature Story
proper registries of birth,
marriage(section 13)
ii. Information of a participants
identity not to be disclosed
(section 22)
iii. Non-disclosure
of
former
identity of protected person
(section 23)
iv. Identity of participant not to be
disclosed in legal proceedings
(section 24)
c)Sexual Offences Act(SOA)
4. International Co-operation
A successful resolve to check crime must entail
collaboration both local and international WPA has
entered into various partnerships to help achieve its
mandate.
According to the Kenyan Constitution, international
treaties/instruments to which Kenya subscribes/
signatory automatically becomes part of our Laws and
are binding.
Among these is the United Nations Convention against
Organized Crime (2005 UN General Assembly,
Resolution 55/25, Articles 6&7) which requires partner
States such as Kenya to provide measures to protect
witnesses from intimidation, coercion, corruption, or
injury.
Perhaps the better known of these international
instruments is the Rome Statute of the International
Criminal Court (ICC) which requires co-operation
with ICC on the protection of witnesses and victims,
preservation of evidence, facilitation of a witness
voluntary attendance before the ICC. Kenya ratified
the Rome Statute in 2005. In addition the same was
domesticated by provisions of the International Crimes
Act of Kenya (ICA) of 2008. Under Section 89 and 105
of the International Crimes Act 2008 of Kenya, the
Government is under obligation to protect the witness
during the ICC investigations and ensure that they are
facilitated to appear before the ICC to testify. Section
89 of the International Crimes Act states:The Attorney General shall assist in the making of
arrangements to facilitate a witnesss attendance
before the International Court arrange the travel
of witness to the ICC ..
Other collaborative frameworks of WPA include the
United Nations Office on Drugs and Crime (UNODC)
which has seconded an expert to help build technical
capacity. The other is the Institute of Security Studies
(ISS) of South Africa, which has been very instrumental
in developing of IEC material as well as staff training.
There are very strict admission criteria to the witness
protection programme since its capacity (financial,
material) is not open-ended.
But with frameworks for finance sourcing from
13
Running
its
own
Finance
Vote(previously relied on Attorney
Generals Office)
Mass Awareness
Television
Campaign
using
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14
t some point in
the course of
your
everyday
life, you probably
encounter plastic smiles.
It could be at the supermarket when that cashier
has no more smiles left in her after a hard days
work. But as she hands you your change, she
smiles fleetingly. Her plastic smile is dutiful but
insincere. Her aide, who is even more tired after
standing for more than seven hours, neatly packs
your wares in a plastic bag and hands it over to you
with a matching plastic smile.
15
economy forward.
Peter Drucker, the famed management guru
once said that ,efficiency is doing the thing right.
Effectiveness is doing the right thing. The question
then becomes, how can Kenya generate, distribute
and sustain energy in the right manner? This is the
right thing to do.
Email:kalua@greenafricafoundation.org
16
Law Reporting
Put simply,
a Will is a
legal instrument that permits a person, the testator, to
make decisions on how his estate will be managed and
distributed after his death.
Testators Intent
17
Second,
putting
too
ambitious a workload on
counties that already lack the
capacity to handle modest spending may be opening
the door to financial mismanagement and service
delivery failure.
If counties fail, public backlash and re-centralisation
could set back devolution for years to come, causing
long term damage to the project.
Pursuant to this3, on the 22nd October 2010, the
then Deputy Prime Minister and Minister for Local
government established the Task Force on Devolved
Government (TFDG) to help think through the
implementation of the devolution process and advise
the Government on policy and legal frameworks of
devolving power, resources and responsibilities to the
people of Kenya for effective local development.
However their Interim Report4 came under heavy
criticism for reasons that it proposed a multiplicity
of laws to be passed which were likely to fragment
implementation, introduce contradictions within
various legislations and make it difficult for county
administration to understand the legal provisions for
the county.
The report failed to take cognizance of legislative
provisions in Part IV of Schedule 65 of the Constitution
and how its proposals would fit into each, particularly
those which were already under development such as
the electoral laws, vetting of public officers and public
finance legislation.
The report also mentioned some 700 laws to be
drafted/revised to operationalise the Counties without
substantiating this seemingly alarmist proposal.
It made specific recommendations for some
legislation not provided for in the constitution, such
3
4
1
2
Law Reporting
18
as the functional assignment policy and the County
development planning and facilitation bill.
Currently there are about 14 legislations that guide the
workings of County Governments. These are just a few
among some 700 proposed laws on devolution. They
are:
The Constitution of Kenya 2010- It lays the basic
ground work for the implementation of devolution by
empowering parliament to enact laws in that regard.
The County Government Act (No. 17 of 2012)provides the county governments power, functions,
and responsibilities to deliver services and to provide
for other connected purposes.
The Intergovernmental Relations Act (No. 2 of 2012)gives effect to article 187 and 200 of the constitution,
in respect of transfer of functions and powers by one
level of government to another, including the transfer
of legislative powers from the national government to
the county governments.
The Public Finance Management Act (No. 18 of 2012)ensures that public finances are managed at both the
national and county levels in accordance with the
principles set out in article 201 of the constitution and
that those public officers who are given responsibility
for managing those finances are accountable to their
management to public through parliament and county
assemblies.
The Transition to Devolved Government Act (No.
1 of 2012)- Ensures smooth transfer of powers and
functions from the national government to the
county government. Provides a legal and institutional
framework for a coordinated transition to the devolved
system of government.
The Transition County Appropriation Act (No. 7
of 2013)
The Urban Areas and Cities Act (No. 13 of 2011)
The Basic Education Act (No. 14 of 2013)
The Constituencies Development Fund Act (No.
30 of 2013)
The County Governments Public Finance
Management Transition Act (No. 8 of 2013)
The Division of Revenue Act (No. 31 of 2013)
The National Government Co-ordination Act
(No.1 of 2013)
The Transition County Allocation of Revenue Act
(No. 6 of 2013)
All these laws are not cast in stone. They are meant
to provide a legal basis for the functioning of county
governments. But Kenyans are a disillusioned lot and
Law Reporting
6
7
Section 5(c)
Petition No. 486 of 2013
Law Reporting
Finance, Commerce and Economic Affairs declaring
that taxes introduced by the county governments were
unconstitutional and demanded their revocation.
Even though the survey paints a different picture from
what I was expecting, I still believe as a country we are
on the right path in implementing devolution. Article
10(2) of the constitution establishes the founding
values of the state and includes as part of those
values, transparency, accountability and participation
of the people. It is thus clear that the constitution
contemplates a participatory democracy that is
accountable and transparent and makes provisions for
public involvement.
However, there is no proper way of quantifying what
constitutes little participation. In my humble opinion,
I think it is a relative word; relative in the sense that it
might be construed to mean either of the following:
1. No public advertisements were made hence less
people were aware of the county development
plans or;
2. Public advertisements were made; many
people were aware of the said plans but chose
not to or did not participate in its formulation.
In the wake of current civilian activism, where people
have a tendency and without second thought, of rushing
to court whenever they think their constitutional
rights have been infringed, it becomes increasingly
difficult for county governments to meet the minimum
threshold for public participation.
I am alive to the fact that Article 22 of the Constitution
safeguards ones right to institute court proceedings
on an infringement of a right or fundamental freedom
in the Bill of Rights while Article 258 hinges on ones
right to institute proceedings on any contravention of
the Constitution itself.
However this civilian reaction in my humble view
amounts to a blatant disregard of Article 159(2)(c) of
the Constitution which provides for aggrieved parties
19
20
I.C.T Department
21
managing change, and thereby crucially minimizing
its associated risk.
ITIL is a business aspiration; An aspiration for
organizations to move towards. It is not a compliancebased regulation, nor an enterprise certification. There
is no ITIL awarding body to visit your organization,
hand over a certificate, and warmly shake your CEOs
hand as he proudly has his photo taken for the Daily
Nation.
Additionally, there is no ITIL secret police ready
to break down your door in the middle of the night
because you raised a change request without the
necessary documentation attached. ITIL cannot be
achieved by any one individual. It is no use making
one person responsible for implementing ITIL within
an organization, because that person will undoubtedly
fail.
The value of ITIL must be recognized at the very top
of the organization, and a firm resolution to embrace
its principles into the company culture must run down
from the highest echelons of management.
Only with this kind of corporate buy-in does ITIL stand
any chance of being successfully implemented and
adhered to. This may not be an easy thing, but the
rewards are vast.
I.C.T Department
22
HR Department
HR Department
23
The Move to Kenya Laws New Office at Ack Garden Annex Becomes a Reality
24
HR Department
Ms.
Janette
Watila,
Human
Resources
&
Administration
Manager
Wambui Mwei,
Department
Intern
Finance
25
HR Department
26
Introduction:
hapter Eight of
the
Constitution
of Kenya, 2010
at Article 93(1)
establishes a bi-cameral Parliament of Kenya to
consist of a National Assembly and Senate. The Role
of Parliament is stipulated in Article 94(1), to exercise
the legislative authority of the Republic of Kenya at the
national level. The following Acts were enacted in the
period August-December, 2013.
Laws of Kenya
This Act repeals and replaces the Value Added Tax Act,
Chapter 476, Laws of Kenya. It aims at addressing the
challenges faced in the administration of the existing law
by simplifying the law and thereby enabling tax payers
to comply with ease. It also provides for the adoption
of information technology in the administration of the
tax regime and the advancements that have been made
in the business environment while taking into account
international best practices. This is expected to reduce
the costs related to the administration and compliance
while raising the revenue obtained from value added
tax.
Laws of Kenya
Media Council Act (No.46 of 2013):
27
28
Laws of Kenya
his
Article
presents a brief
summation
of
Legislative
Supplements, published in the Kenya Gazette, on
matters of general public importance. The outline
covers the period between 26th July, 2013 and 31st
December, 2013
Legislative
Supplement
Citation
Preface
Number
26th July, 2013
102
Public
Procurement
(Revocation)
Regulations,
2013 (L.N. 121/2013)
102
Traffic
(Amendment)
(No.2)
Rules,
2013
(L.N. 122/2013)
118
122
Mining
(Prescription
of
Royalties
on
Minerals)
Regulations, 2013
(L.N. 187/2013)
29
124
125
126
Regulation of Wages
(Agricultural
Industry)
(Amendment) Order, 2013
(L.N. 196/2013)
129
142
Children
Order,
(L.N. 206/2013)
(Exemption)
2013
145
161
Public
Procurement
and
Disposal (Preference and
Reservations)
(Amendment
No. 2) Regulations, 2013
(L.N. 210/2013)
161
Prevention
of
Terrorism
(Implementation of the United
Nations Security Council
Resolutions on Suppression of
Terrorism) Regulations, 2013
(L.N. 211/2013)
173
175
Medical
Practitioners
and Dentist (Disciplinary
Proceedings)
(Procedure)
(Amendment) Rules,
2013 (L.N. 223/2013)
Laws of Kenya
30
*The Legal Notice, granting the Moi University Charter,
erroneously but repetitively mentions the University
of Nairobi (See L.N. 192/2013 published on 16th
August, 2013 in Legislative Supplement Number 124,
cited above).
Laws of Kenya
31
Issue
Issue24,
24,January
January--March
March 2014
2014
SQAP
32
conducive working
environment,
an
encouraging
climate, and a
favorable atmosphere, is
every employees dream in the organization they work
for. Happiness at work is a matter worth much thought
as no one goes to work to be unhappy. The question we
ask ourselves is who is responsible for our happiness
at work?
Lifestyle
Emotional intelligence
employee happiness
can
predict
Lifestyle
intelligence level were less likely to use forceful and
aggressive forms of persuasion while attempting to
persuade their supervisors, Meisler said in a statement.
Those employees tended to use much softer influence
tactics.
It is also important to understand that the success
of an organization itself depends on the success of
people
whose
interventions
either
assuage
individuals
pain
or eliminate it
completely.
The
ability to effectively
deal with emotions
and
emotional
information
in
the
workplace
assists employees
in
managing
occupational stress
and
maintaining
psychological
well-being.
This
indicates that stress
reduction
and
health protection
could be achieved
not
only
by
decreasing
work
demands, but also
by increasing the
personal resources of employees, including emotional
intelligence. The increasing of Emotional Intelligence
(EI) skills like empathy, impulse control are necessary
for successful job performance that help employees
to deal more effectively with their feelings, and thus
directly decrease the level of job stress and indirectly
protect their health which results to happiness.
33
34
out or bored in a repetitive or boring tasks.
Lifestyle
Lifestyle
35
website
committed
to
creating positive change
through research and articles
on emotional intelligence, organizations such as
American Express, Avon, Shell etc, have turned to
emotional intelligence to improve organizational
performance. It further explains that EQ defines our
capacity for relationship.
to
36
Lifestyle
The Power of Our Temperaments
By Naomi W. Mutunga
Sancholor.
Sanmel
37
Sanphleg.
Cholersan.
Lifestyle
38
completely to activity, most of his efforts are productive
and purposeful. He is so activity prone it borders on
being violent. A natural promoter and sales man with
enough charisma to get along well with others.
The best motivator of people and one who thrives on a
challenge he is almost fearless and exhibits boundless
energy. He is the court room attorney who can charm
the coldest hearted judge, the fund raiser who can get
people to contribute what they intended to save.
His weaknesses chief of which is hostility are as
broad as his talents. He explodes in anger and the
long burning resentments of a choleric, he gets ulcers
himself as well as gives it to others. Impatient with
those who dont share his motivation and energy and
prides himself on being brutally frank. It is difficult for
him to concentrate on one thing very long.
Cholermel.
Cholorphleg.
Lifestyle
Melsan.
Melchlor.
Lifestyle
mind, emotions and mouth. Extremely difficult people
to please. Once they start thinking negatively about
something or someone they are intolerable to live
with, their moods follows their thought process.
They usually lapse into depressed mood more,
haunted by self persecution, hostility and criticism. Its
not uncommon for him to get angry at God as well
as his fellow men and such thoughts persisting long
enough he becomes maniac depressive. His penchant
for detailed analysis and perfection tends to make him
a nitpicker who drives others up the wall.
Melphleg.
Phlegsan.
39
Phlegcholor.
Phlegmel.
40
ost
drivers
3. Increase following distance when there are
think that good
adverse weather conditions. Dont drive
driving depends
normally in poor conditions; slow down and
on good roads,
be more cautious.
but that is not the case. The
4. Exercise courtesy and respect to other road
safety of other road users depends on your skilled good
users: Dont get upset about the behaviour of
driving. To be a good driver, you must not only see
other road users; it can distract you and cause
every detail as you drive along, but you must also be
you to make poor driving decisions.
able to assess its value and act accordingly. We are
5. Drive at a maximum speed limit stipulated
always reminded that our vehicles are our working
for your vehicle, depending on
tools, and just like any other tool,
the traffic and road conditions at
we should always think about the
Speed
Song
the time. Do not drive at too high
value of our tools. As you enjoy
speed to endanger the lives of
that ride, consider the following 80 Kph- God will take care of you
100 Kph- Guide me o Thou Great Jehovah other road users or too low speed
road safety tit bits:
120 Kph- Nearer my God to Thee
so as to cause obstruction to other
140 Kph- This world is not my home
motorists.
Dos:1. Wear seat belts at all times
while driving.
Lifestyle
alcohol
Lifestyle
41
42
timeline .......
>>> 1
>>> 2
>>> 3
>>> 4
43
Inspiration
We wait for what we long for
We long for what we need
Impatience and Anxiety
Give root to errant deed
Which grows to yield but heartache
The fruit that poisons trust
And so to shadow we recede
And hope descends to dust
But somehow from the ashes
The will to try again
Doth mend the heart
And forge the path
In search of that one friend
Who never will betray us
Who never will go astray
But fear still lurks upon the thought
While waiting for that day
Well simply stumble once again
For we know not who to trust
Thus thoughts becomes an enemy
But conquer them we must
For surely there is someone
Whether Shining Knight or Bride
Then all shall have been worth it
Our Last Hope justified
Cityzen Nenkai
Farewell to Cityzen Nenkai
44
Hon. Justice
K. Rawal
Hallo there Kenyalaw, Thank you for this and other judgments shared via
caseback. It is very useful to get feedback on judgments made and outcome of
appeal so we can improve our development of jurisprudence. And further, that
we are able to reaffirm we made the right decision as in this case, or improve
where there us feedback we were wrong. Merry Xmas to the team and looking
forward to another great year. Regards, Lorot
Hon. Lillian A.
Arika
How are you doing? Thanks a lot for Issue 22 of the Bench Bulletin
which I have received at Naivasha Law Courts.
It has great articles. Kudos to you and your team.
Have a great week ahead.
Caseback
Hon. A. Lorot
Hon. S. M. Mwinzi
SRM
Naivasha
Caseback
Meresia Opondo
45
Dear CaseBACK,
I have just learnt of this service.Am Meresia Opondo, an Ag. Principal
Magistrate. I make judicial decisions as part of my duties in Court. Am never
updated on decisions arrived at on appeal.
Kindly update me on the decisions arrived at from the Judgements from my
Court. Thank you.
Thanks Caseback for a good job you are doing, kindly endeavor to get all
decisions of appeal in all my judgments. Have a good day.
Elizabeth J. Osoro
Magistrate
46
Guiding Principle in the interpretation of any law touching on the Supreme Courts
appellate jurisdiction
Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission &4
others (IEBC)
Civil Application No 2 of 2014
Supreme Court at Nairobi
March 18, 2014
MK Ibrahim and JB Ojwang, SCJJ
Reported by Andrew Halonyere & Anne Mbuthia
Brief facts
The Applicants brought an application before the
Supreme Court seeking orders for extension of time
within which to file a Notice of Appeal. According to
the Applicants, the said Notice of Appeal was for the
purpose of appealing against the judgment and orders
of the Court of Appeal.
The Applicants argued that they were unable to file a
Notice of Appeal in time because of an implementation
timeline given by the Court of Appeal of submitting a
proper list of candidates to the Independent Electoral
& Boundaries Commission.
Issues
I. Whether the Supreme Court had the power to
extend the time within which to file a Notice of
Appeal at the Court of Appeal, for an intended
appeal to the Supreme Court?
II. What is the guiding principle when interpreting
any law touching on the Supreme Courts
appellate jurisdiction?
Constitutional Law jurisdiction of the Supreme
Court to entertain an appeal from the Court of Appeal
- guiding principle in the interpretation of any law
touching on the Supreme Courts appellate jurisdiction
Constitution of Kenya 2010, Article 163(4)(a)
Civil Practice and Procedure appeal application
to the Supreme Court to file Notice of Appeal out of
time - what is the guiding principle when interpreting
any law touching on the Supreme Courts appellate
jurisdiction - whether the Supreme Court has the power
to extend time within which to file a Notice of Appeal
at the Court of Appeal, for an intended appeal to the
Supreme Court Supreme Court Rules, 2012, Rule 53
Held:
1. Under the Constitution, an appellant could
proceed from the Court of Appeal to the Supreme
Court in well specified circumstances, where
BB Issue 24, January - March 2014, Supreme Court Cases
47
48
4.
5.
6.
7.
8.
9.
49
50
Issues:
I. Whether a petition could be filed at the High
Court challenging rules made by the Supreme
Court.
II.
III.
amicus curiae.
(In the Matter of the Interim Independent
Electoral
Commission:
Constitutional
Application No. 2 of 2011)
2. The Reference as filed was not one seeking an
advisory opinion within the meaning of article
163(6) of the Constitution of Kenya, 2010.
Because, there was no matter concerning
county government in the issues framed by
the applicant. The reference for an advisory
opinion was actually a constitutional
reference in disguise. The main objective was
to elicit a declaration from the Supreme Court
regarding the Constitutionality or otherwise of
Rule 41(1). It ought to have been filed at the
High Court.
3. There was no hierarchical impropriety if a party
were to challenge a Supreme Court rule in the
High court. In such a case, what would be at
stake was not the reputation of the Supreme
Court but the unconstitutionality of the rule
in question. The High court was seized with
original jurisdiction to determine whether a
piece of legislation or subsidiary legislation
was unconstitutional.
4. Rule 41(1) of the Supreme Court Rules, 2012
was a replica article 163(6) of the Constitution.
Therefore, it could not be said to be either
restrictive or discriminative in any manner.
5. Persons in general did not have a right to an
advisory opinion of the Supreme Court. Rights
declared under article 22 (such as access to
justice) were enforceable by way of ordinary
court proceedings. Such proceedings did
not necessarily include the Supreme Courts
advisory opinions. By their very nature and
design, Advisory opinions were meant to serve
as a device in aid of the main tasks of the
institutional conduct of governance. And thus,
those entitled to resort to such opinion were
51
Issues
I. Whether the appeal raises a question of
constitutional interpretation or application,
and whether the same had been canvassed
in the Superior Courts and had progressed
through the normal appellate mechanism so
as to reach the Supreme Court by way of an
appeal, as contemplated under article 163(4)
(a) of the Constitution.
II.
III.
IV.
52
Held
1. If a question regarding the interpretation or
application of the Constitution arises from a
multiplicity of factors and interrelationships in
the various facets of the law, the Constitution
should be interpreted broadly and liberally
so as to capture the principles and values
embodied in it.
2. The chain of Courts in the constitutional set
up, running up to the Court of Appeal, have
the professional competence and proper
safety designs to resolve all matters turning on
the technical complexity of the law and only
cardinal issues of law or of jurisprudential
moment will deserve further input of the
Supreme Court. On that basis alone the case
was properly before the Supreme Court because
the High Court conclusively dealt with the
issues arising in the interlocutory application
and rendered a ruling which did not terminate
the main petition.
3. As the apex Court, the Supreme Court must
always be ready to settle legal uncertainties
whenever they are presented. But in so doing,
it must protect the Constitution as a whole.
Election Courts and the Court of Appeal, have
discretion in ascertaining justice of each case,
but that discretion must be concretized in
enforcing the Constitution.
4. In defending the Constitution and the
aspirations of the Kenyan people, the Supreme
Court must always be forward-looking, bearing
in mind the consequences of legal uncertainty
upon the enforcement of any provision of the
Constitution. That aspect of defending the
Constitution is replicated under article 163
(4) (a) which allows appeals from the Court of
Appeal to the Supreme Court as of right in any
case involving the interpretation or application
of the Constitution. Such is the approach that
the Supreme Court in hearing the appeal must
seek to apply.
5. The decision of the Supreme Court should
serve the objectives laid out in section 3 of the
Supreme Court Act that is to inter-alia provide
authoritative and impartial interpretation of
the Constitution,develop rich jurisprudence
that respects Kenyas history and traditions and
facilitates its social, economic and political
53
54
The constitutionality of the vetting process carried out by the Vetting of Judges and
Magistrates Board.
Dennis Mogambi Mongare v Attorney General & 3 others
II.
IV.
V.
VI.
VII.
VIII.
IX.
55
vetting process would undermine the judiciary by
interfering with the security of tenure of judges and
magistrates-Constitution of Kenya 2010; articles
167(1), 168 & section 23 of the Sixth Schedule.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsfreedom from discrimination on any prohibited
ground-whether it was discriminatory to subject the
judicial arm of government to a vetting process without
subjecting the other arms of government to vettingConstitution of Kenya 2010; articles 27 & section 23 of
the Sixth Schedule.
Constitutional Law-interpretation of constitutional
provisions-retroactive application of constitutional
provisions-the constitutionality of a vetting process
based on the past conduct and decisions of judges and
magistrates-whether a constitutional provisions could
have retroactive applicability and could ordain the
retroactive applicability of certain statutory provisionsConstitution of Kenya 2010; section 23 of the Sixth
Schedule, Vetting of Judges and Magistrates Act, No.
2 of 2011; section 18, and Interpretation and General
Provisions Act (Cap 2); section 2.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-the
right to a fair trial and the right to fair administrative
action-whether the vetting process carried on by
the Judges and Magistrates Vetting Board met fair
trial requirements and fair administrative action
requirements-Constitution of Kenya 2010; articles 47
& 50, and Vetting of Judges and Magistrates Act No. 2
of 2011; sections 19(3), 19(4) & 19(6).
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsfreedom from torture, cruel, inhuman or degrading
treatment-whether the vetting process carried on by the
Judges and Magistrates Vetting Board subjected judges
and magistrates, who were being vetted, to torture,
cruel, inhuman or degrading treatment-Constitution of
Kenya 2010; articles 29(d) & 29(f).
Constitutional Law-prescribed time-frame-whether the
vetting process carried on by the Judges and Magistrates
Vetting Board was unconstitutional as it had extended
beyond the prescribed time-frame provided for in lawVetting of Judges and Magistrates Act No. 2 of 2011;
section 23.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsright to fair administrative action-absence of a right
56
57
58
Appeal dismissed.
59
Court of Appeal nullifies the election of Othaya Member of the National Assembly
Peter Gichuki Kingara v Independent Electoral and Boundaries Commission & 2 others
[2014] eKLR
Civil Appeal 31 of 2013
Court of Appeal at Nyeri
A Visram, M K Koome & J Otieno-Odek, JJA
February 13, 2014
Reported by Nelson K. Tunoi
Issues
I.
II.
III.
Electoral Law-election petition-parliamentary electionappeal against decision of the election court upholding
the election of the 3rd respondent as the Member of
National Assembly for Othaya Constituency held on 4th
March 2013-grounds of appeal, inter alia, the election
court erred in law by upholding results espoused by the
respondents despite glaring anomalies, irregularities
born out of the evidence and that the election failed
to order a scrutiny and recount of the votes despite
overwhelming evidence of admitted irregularitieswhether the evidence on record supported the
appellants prayer for a recount-whether the appeal
had merit-Civil Procedure Act (cap 21) section 72;
Electoral Law- electoral qualifications - academic
qualifications-claims that the 3rd respondent was
inadequately educated to be a parliamentary
representative at a constituency level-whether the 3rd
respondent was eligible to vie for the post of Member
for National Assembly for Othaya Constituency during
the 4th March, 2013, elections-Election Act, 2012,
section 22(1)(b);
Electoral Law-election petition-standard and burden
60
the request.
7. The aim of a recount was to assist the Court
to establish the correctness or otherwise of
the allegations by a petitioner. Also a recount
is meant to assist the Court in its duty to
investigate the validity of alleged breaches of
the law and the irregularities. Therefore, there
was justification to order a recount and scrutiny
in that election so as to ascertain the materiality
of the errors alleged by the appellant and those
which were admitted by the respondents. [See:
Said v Hemed (2008) eKLR (EP) 323].
8. In civil matters the burden of proof was upon the
appellant to provide proof of all the allegations.
However, since election petitions touched on
the determination of the collective democratic
will of the people, and some allegations were
quasi criminal, the test to be applied was
higher than a balance of probabilities but
not beyond reasonable doubt as in criminal
matters. [See: Raila Odinga Vs IEBC & others
[2013] eKLR]. Further, Regulation 83(1)(a) of
the Election Act was clear and unambiguous, it
was not necessary to invite the 2nd Respondent
to give reasons why there was over voting
which was tantamount to changing goal posts.
The election court erred by placing a further
burden upon the appellant to prove a matter
beyond what was provided for in the law.
9. Following the admission by the 2nd respondent
on cross-examination that the seals the
appellant and his agents had collected at two
polling stations belonged to the 1st respondent,
it was the duty of the 1st and 2nd respondents
to secure them, and demonstrate how some
accountable election materials left the custody
of those who were entrusted with them. To
expect the appellant to prove that the seals
were not removed in a bid to tamper with
the ballot boxes, when the election court
declined to allow recount and scrutiny and
the production of the polling day diaries was
a clear misdirection on the part of the election
court.
10. Due to the many breaches of the law and
regulations during the 4th March, 2013
elections for Member of the National Assembly
for Othaya Constituency, the process was not
administered in an efficient, accurate and
accountable manner.
61
The Court of Appeal sets aside High Courts decision nullifying the election of the
Member of Parliament for Matungulu Constituency
Independent Electoral and Boundaries and another V Stephen Mutinda Mule and 3 Others
Civil Appeal No. 219 Of 2013
Court Of Appeal at Nairobi
G.B.M. Kariuki, P.O. Kiage, K. Minoti JJA
January 31, 2014
Reported By Njeri Githanga
Brief facts
Issues
I.
II.
III.
Regulations,
Regulation
69
62
election official
shall ---
f. Stamp the counterfoil of the ballot paper
on the face with the official mark of the
commission; and
g. Stamp the ballot paper at the back with official
mark of the Commission.
Held;
1. Parties were bound by their pleadings which
in turn limits the issues upon which a trial
court may pronounce. The judge, no matter
how well-intentioned, went well beyond the
grounds raised by the petitioners and answered
by the respondents before her and thereby
determined the petition on the basis of matters
not properly before her. To that extent, she
committed a reversible error.
2. Under Regulation 73 (3) (c) the presiding
officer was required to seal the counterfoils of
the used ballot papers. Under sub regulation
(4) he was required to deliver the ballot boxes
and the tamper proof sealed envelopes to
the returning officer who should take charge
thereof. It was quite clear that the ballot boxes
were separate and apart from the sealed tamper
proof envelopes. The two items were required
to be delivered separately to the returning
officer. There was no requirement that one be
in the other.
Court of Appeal Reinstates Timamy Issa Abdalla as the Duly Elected Governor in the
Lamu Gubernatorial Elections
Timamy Issa Abdalla v Swaleh Salim Imu & 3 others [2014] eKLR
Civil Appeal No 36 of 2013
Court of Appeal at Malindi
H M Okwengu, M A Makhandia & F Sichale, JJA
January 13, 2014
Reported by Nelson K. Tunoi
III.
63
64
65
Entry requirements to the Kenya School of Law are not subject to exemptions
Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others
Civil Appeal No 121 of 2013
Court of Appeal at Nairobi
D K Maraga, G B M Kariuki, S Gatembu Kairu, JJA
November 22, 2013
Reported by Nelson K Tunoi & Beatrice Manyal
Brief Facts
The appellant (Eunice Cecilia Mwikali Maema) upon
completion of her Bachelor of Laws (LLB) at Coventry
University in England and Master of Laws (LLM) degree
in University of Warwick in England in 2011 applied
to be admitted to the Advocates Training Programme
(ATP) for the 2013/2014 Academic Year. She however
received a regret letter from the Kenya School of Laws
(KSL) Director on the basis that her LLB degree did not
meet the threshold of the 16 core subjects as prescribed
by law for purposes of admission to ATP.
Aggrieved by that decision she petitioned the High
Court seeking declarations that she had complied with
all requirements for admission to the ATP under Legal
Notice 169 of 2009. She sought an order of certiorari
to quash the decision contained in the letter rejecting
her application for admission to the ATP; an order of
mandamus to compel KSL and the Council to admit
her to ATP. The High Court (Isaac Lenaola J) dismissed
the appellants petition hence the appeal.
It was argued by the appellants counsel that when the
appellant applied for admission the law did not require
completion of the 16 core subjects; that the requirement
only came with the enactment of the Legal Education
Act of 2012, which could not apply retrospectively.
They submitted that Legal Notice 170 of 2009 had
nothing to do with admission to the ATP but only
66
67
Brief facts
The appellant was a candidate in the March 4, 2013
elections for Member of National Assembly, Nyando
Constituency where the Independent Electoral &
Boundaries Commission (IEBC) declared the 3rd
respondent as the winner. However, according to the
appellant, the results of the elections would have been
in his favour had the elections been conducted freely
and fairly. He thus petitioned the election court where
he sought an order for scrutiny and recount of votes for
purposes of establishing the validity of the votes cast
in 14 of the polling stations in Nyando Constituency.
After hearing the parties, the election court determined
that no sufficient reasons had been demonstrated
by the petitioner to cause the court to order scrutiny
and recount in the results of the polling stations in
the Nyando Constituency election and proceeded to
dismiss the motion. Aggrieved by that decision, the
appellant lodged an appeal in the Court of Appeal at
Kisumu. Subsequently, the 3rd respondent filed and
served a notice of preliminary objection in which he
intimated that at the hearing of the appeal that he would
apply for the appeal to be struck out on the grounds
that all interlocutory issues were the preserve of the
Election Court and not the Court of Appeal. During
the hearing, the appellant sought an adjournment of
the hearing to enable him apply to the President of the
Court of Appeal to constitute a bench probably with
more judges to consider the matter of jurisdiction.
Thereafter, The President of the court duly constituted
a bench of five Court of Appeal judges to hear and
consider arguments on jurisdiction and determine
whether the Court of Appeal could entertain an appeal
on an interlocutory decision of an election court.
Issue:
I.
II.
Statutory provisions
Article164(3)oftheConstitution ofKenya,2010provides
The Court of Appeal has jurisdiction to hear appeals
froma. theHighCourt;and
b. any other court or tribunal as prescribed by an
Act of Parliament.
Section 64(1)of the repealed Constitution provided
that
ThereshallbeaCourt o fAppeal which shall be
a superiorcourtofrecord,andwhichshallhavesu
ch jurisdiction andpowers in relation to appeals
fromtheHighCourtasmaybeconferred onitby
law.(Emphasissupplied).
section80(3)ofthe Election Act4providesasfollows:
Interlocutorymatters inconnectionwithapetition
challengingresultsofpresidential,parliamentary or
countyelectionsshallbeheardanddetermined bythe
electioncourt.
Constitutional law jurisdiction application for an
interlocutory appeal from the decision of the High
Court on election disputes whether the Court of
Appeal had jurisdiction to entertain such an appeal.
Civil Practice and Procedure striking out preliminary objection application seeking to strike out
an appeal grounds; that interlocutory raised issues
were the preserve of the Election Court and not the
Court of Appeal whether the court had jurisdiction to
entertain a preliminary objection which had not been
brought by way of a notice of motion whether the
application had merit.
68
Cases
10. There are various provisions of the Constitution
that underline the value of the timelines
in dispute resolution as a Constitutional
imperative. The Court of Appeal therefore
interpreted the Constitution on the one hand
bearing in mind the clear provision of Article
164 (3) that vests the Court of Appeal with
jurisdiction to hear and determine appeals from
the High Court and the importance of access to
justice and on the other hand the uncontested
constitutional value in timely resolution of
disputes generally and in electoral disputes in
particular. A stream of election interlocutory
appeals which would clog the election process
had to be avoided to ensure that that the ability
of both the High Court and the Court of Appeal
to dispense with the election petitions was met
in their stipulated periods of six months.
11. Taking into account all the provisions of the
Constitution as well as those of the Elections
Act which had been enacted pursuant to an
express power donated by the Constitution to
Parliament to advance specified values, the
Court of Appeal had jurisdiction to hear and
determine appeals from election disputes,
69
Brief facts
In exercise of powers provided in article 186 and the
Fourth Schedule of the Constitution of Kenya 2010,
the Mombasa County Government removed hawkers
and prevented them from operating their businesses
at certain places in Mombasa. The powers exercised
included trade development and regulation. The
affected hawkers constituted part of the membership of
the Micro and Small Enterprises Association, Mombasa
branch, which was the association which sought reliefs
from the court.
The petitioner, Micro and Small Enterprises Association,
Mombasa branch, explained that there had been
previous arrangements, with the Municipal Council of
70
Issues
i.
ii.
iii.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomssocioeconomic rights-right to freedom from hunger
and right to social security-protection offered to
the opportunity to earn a living through hawkingConstitution of Kenya 2010; article 43.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-right
to fair administrative action-notice and consultationsfair administrative action guarantees relating to
demolition of hawking tables for street hawkersConstitution of Kenya 2010; article 47.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsavailability of injunctions against the government as
a remedy for a violation of fundamental rights and
freedoms-whether the Government Proceedings Act
provision preventing the grant of injunctions against
the government could make an injunction unavailable
in a fundamental rights and freedoms enforcement
suit- Constitution of Kenya 2010; article 23(3) and
Government Proceedings Act (Cap 40); section 16.
Held
1. In spite of the provisions of section 16 of the
Government Proceedings Act (Cap 40), an
injunction would be available as a remedy
for the violation of fundamental rights and
freedoms by the state or the states organs.
2. While the petitioners claimed that there had
been a violation of the right to life on the basis
of the metaphysical causation of death by
BB Issue 24, January - March 2014 F Court of Appeal Cases
71
Brief facts:
By a letter to all County Directors of Education, District
Education Officers and all principals of secondary
schools in Kenya, the 2nd respondent issued guidelines
for form one selection in 2014 aimed at ensuring
placement of candidates in schools of their choice and
through merit, equity in school placement through
quotas and affirmative action where applicable,
proportionate sharing of national schools places
between public and private schools candidates in
every district based on the number of candidates
taking KCPE from either category of primary schools
and harmonization of the selection polices throughout
the county at all levels; national, county and district.
The extra-county schools (high performing schools
with a mean score of 6.5 in KCSE) and county schools
were supposed to admit students as follows: Extra
County: 40% National, 40% from within county and
20% from the district hosting the school and County:
20% from the district hosting the school and 80% from
the rest of the county.
The petitioner stated that the circular was not followed
in schools within Nyeri county thereby violating
the constitutional provision under article 27 of the
Constitution of Kenya, 2010 by discriminating against
the students from Nyeri County and its various districts
by having negligible students admitted from its host
district schools and a staggering of students from other
counties admitted in its schools over and above the
40% prescribed in the guidelines.
Issues:
I.
II.
III.
Cases
72
Disputes as:
a dispute between different governments
or between organs of state from different
governments concerning a matter:
Cases
a. arising from
i.
ii.
parties
Held:
3. Section
Cases
5. In determining the question as to whether the
73
Division of Matrimonial Property as provided for under the Matrimonial Property Act
Vis--vis Article 45(3) of the Constitution of Kenya, 2010
U M MV I M M
Issues
1. Whether the equality contemplated by Article
45(3) of the Constitution of Kenya 2010 was
an automatic 50:50 sharing of matrimonial
property upon dissolution of the marriage.
2. Whether the Court could apply Article 45(3)
in resolving the dispute where the disputed
properties were all acquired before the
promulgation of the Constitution of Kenya,
2010.
74
Cases
75
Members of a Parallel Social Security Scheme which Sufficiently Caters For Their
Social Security Interests Cannot Be Compelled to Contribute to the National Social
Security Fund (NSSF)
Republic v National Social Security Fund Board of Trustees & another ex parte Town Council
of Kikuyu [2014] eKLR
Judicial Review No 81 of 2013
High Court at Nairobi
G V Odunga, J.
January 20, 2014
Reported by Nelson K. Tunoi
Issues:
i) Whether an application for judicial review
orders where the applicant had filed a
supporting affidavit instead of a verifying
affidavit was incompetent and procedurally
irregular in the circumstances?
Cases
76
Judicial review-certiorari, mandamus and prohibitionapplication seeking judicial review orders against the
respondent-whether an application for judicial review
orders where the applicant had filed a supporting
affidavit instead of a verifying affidavit was
incompetent and procedurally irregular-whether or not
an affidavit used in support of the application for leave
could be used to support the substantive judicial review
application-whether the applicant was obligated to
contribute to NSSF where it was a member of another
statutorily recognized social security provider-whether
the application had merit-Civil Procedure Rules (cap
21 Sub Leg), Order 53; National Social Security Funds
Act (cap 256), sections 2, 5, 7; Pensions Act (cap
189); National Social Security Fund (Registration)
Order, Rules 2 & 3; Local Authorities Pensions Trust
Rules, 2007, Rule 8
Brief Facts:
The Town Council of Kikuyu (applicant) sought judicial
review orders of prohibition stopping the National
Social Security Fund (1st respondent) from demanding
contributions from the applicant in respect of its
employees who were members and contributors of the
Local Authorities Pension Trust Fund (2nd respondent);
certiorari to quash the notices of demand issued by the
1st respondent; and order of mandamus to compel the
2nd respondent to seek a refund from the 1st respondent
of all the monies contributed to it since 1963 when the
Pension Act was enacted.
It was the applicants case that its employees were
registered members of Local Authorities Pension Trust
(LAPTRUST), a social security provider statutorily
registered and that they should be exempted from
remitting statutory contributions to the 1st respondent
on the sole basis that its employees remitted their
contributions to Local Authorities Provident Fund.
It was the 1st respondents case that it was not merely
a pension scheme but the first pillar social security
scheme that provided mandatory cover for all workers
except the expressly exempted employers and it did not
matter that an employee not exempt was contributing
to other schemes.
Held:
Cases
Cases
to the grounds relied upon, the requirement
that the applicant set out the grounds upon
which the application was to be based in the
statement was meant to put the other parties
on notice in order to enable them address the
issues which the applicant intended to rely on.
Where the grounds, though not clear enough
were sufficient to bring the matter within the
purview of judicial review and where there
was no prejudice occasioned by the failure
to plead the grounds with clarity, it would be
stretching the requirement too far to disallow
the application solely on that ground.
6. A legal opinion by the Attorney General was
like any opinion of an expert, and was entitled
to the highest possible regard. However, the
Court was not bound to accept and follow it
as it should form its own independent opinion
based on the entire evidence before it but like
other expert evidence, the said opinion must
not be rejected except on firm grounds. Such
opinion evidence, like all opinion evidence
would be considered by the Court and acted
upon if the Court was satisfied that it could be
but true on consideration of the surrounding
circumstances. [Juliet Karisa vs. Joseph Barawa
& Another Civil Appeal No. 108 of 1988;
Maina Kiama vs. Peter Kiama Mutahi Civil
Application No. Nai. 25 of 2001; John Cancio
De SA vs. V N Amin (1934) 7 EACA 13 at 15].
7. It was clear that if the applicants were
members of a scheme (statutory or nonstatutory) approved by the Minister in writing
for the purposes of providing comparable
benefits, being persons in the public service,
local government authority or any corporation
or body established for public purposes, the
members of the applicant who had subscribed
to the 2nd respondent would be exempt from
contributing to the Fund since section 7(3) of
the NSSF Act under which a Gazette Notice
was required only applied to situations where
the Minister intended to add to, delete from or
vary any class or description of exempt person
in the Second Schedule. Where the Second
Schedule had already provided that a certain
class of persons were exempted, then it was not
necessary for the already exempted persons be
Gazetted.
8. The 2nd respondent was one of the schemes
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78
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Application allowed; order of certiorari issued
to quash the notices of demand issued by the 1st
respondent, and prohibition orders against the 1st
respondent from demanding payments from the
Issue
Whether presumption of marriage could entitle one to
take out letters of administration.
Law of Succession Probate and Administration
intestate succession - Objector proceedings objectors
claim to be made sole administrator of the estate of the
deceased scope of powers of administrators to estate
of deceased persons - Law of Succession Act, section
66
Held:
1. There was an irrefutable legal presumption
of marriage between the objector and the
deceased. The objector was therefore declared
the sole administrator of the estate of the
deceased.
2. When a person died intestate, the estate of the
deceased could not be effectively distributed
outside the court. Effective distribution meant
the exercise which could thereafter enable
each beneficiary to get their lawful title to the
portion which had been given to him or her.
3. The Chiefs and members of the respective
families had a role to play in trying to help in
resolving issues of distribution, but without
an order from the court, the Commissioner of
Lands or the Registrar of Lands could not issue
a title to any beneficiary.
79
High Court declines to suspend the switch-off date for digital migration pending an
appeal
Royal Media Services Ltd and 2 others v Attorney General and 8 Others
Constitutional Petition No.557 of 2013
High Court at Milimani
D.S Majanja J
December 23, 2013
Reported by Emma Kinya Mwobobia and Obura Paul Michael
Issues
I.
II.
III.
Application dismissed.
Cases
80
Republic v Cabinet Secretary for the Ministry of Interior and Coordination of National
Government & 2 others Ex-parte Patricia Olga Howson
Misc Civil Application No 324 of 2013
High Court of Kenya at Nairobi
G V Odunga, J
December 20, 2013
Reported by Beryl A Ikamari
Brief facts
The applicant made an application for registration as
a citizen of Kenya as she was the spouse to a Kenyan
citizen and her application was submitted to the
Ministry of State for Immigration on April 22, 2013.
She complained that there had been no response
or communication received from the relevant
authorities except that she had been issued with two
acknowledgement slips. She was not aware of the
status of her application and her inquiries had gone
unanswered. Her complaint was that there had been a
refusal and neglect to grant citizenship which she was
entitled to under the law.
In reply, on behalf of the respondents, it was explained
that a confidential security report, which was to be
prepared by the National Intelligence Service for
persons seeking Kenyan citizenship, was yet to be
received in the case of the applicant. For that reason,
there had been a delay in processing the application
for citizenship.
Issues
I.
II.
Cases
Cases
offence and sentenced to imprisonment for a
term of three years or longer;
d) the marriage was not entered into for the
purpose of acquiring a status or privilege in
relation to immigration or citizenship; and
e) the marriage was subsisting at the time of the
application.
5. Furthermore, the provision of confidential
security reports about persons who had applied
for citizenship was among the functions of the
National Intelligence Service recognized under
section 5(1)(g)(ii) of the National Intelligence
Service Act, No 28 of 2012.
81
Jurisdiction of the Public Procurement Administrative Review Board does not extend
to enforcement of intellectual property rights.
R v Public Procurement Administrative Review Board & 2 others
High Court at Nairobi
Misc.Appl.No. 204 of 2013
M Ngugi.J
December 19,2013
Reported by Andrew Halonyere & Cynthia Liavule
Brief facts
The applicants case was that the decision of the
1st Interested Party, Kenyatta University in which
it awarded the tender for supply of sanitary bins,
should be reviewed on the grounds that it had acted
contrary to the provisions of section 27 of the Public
Procurement and Disposal Act which provides for
responsibility to comply with the Act. They argued that
the 2nd Interested Party, Pinpoint Hugience Services,
had not met the mandatory requirements for award of
the tender which included the technical and general
requirements; that the sample bin used by the 2nd
Interested Party was a patented product owned solely
by the applicant; that the 2nd Interested Party did not
have a manufacturers authorization to use the bin and
its use by the 2nd Interested Party was in violation of
the applicants intellectual property rights.
Issue
1. Whether the High Court had jurisdiction to
review a decision of the Public Procurement
Administrative Review Board where there was
allegation of non-compliance of technical and
general requirements including a violation
of intellectual property rights in awarding a
tender.
Judicial Review-mandamus and certiorari-jurisdiction
of the Public Procurement Administrative Review
Board-whether jurisdiction of the tribunal extended
to enforcement of intellectual property rights- Public
Procurement and Disposal Act section 64
Cases
82
83
Republic v The Transition Authority & Another exparte Kenya Medical Practitioners,
Pharmacists and Dentists Union (KMPDU) & 2 Others
High Court of Kenya at Nairobi
JR No. 317 of 2013
W Korir, M Ngugi, G V Odunga
December 18, 2013
Reported by Teddy Musiga
Issues
I.
II.
III.
Cases
84
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85
Freedom of religion of students in public schools can be limited in the interest of the
right to education
Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others
Petition No. 431 of 2012
High Court at Nairobi
I Lenaola, J
December 18, 2013
Reported by Lynette A Jakakimba
Brief facts
The Petition concerned the alleged violation of the
right to freedom of religion as guaranteed under article
32 of the Constitution of Kenya, 2010 of students in
public schools professing the Seventh Day Adventist
(SDA) faith across the country.
The petitioner claimed that most of the public schools
in the country had curtailed the SDA students right to
worship and fellowship during the Sabbath hours, thus
violating their right to practice their faith in accordance
with the fundamental tenets of their religion. In most of
the public schools, the petitioner claimed that the SDA
students were made to attend Saturday classes, sit for
examinations on Saturday and were not exempted from
cleaning on Saturdays and that those who did not abide
by these regulations, were not offered compensatory
classes or make up examinations. These students were
instead suspended from school or given an option of
leaving the school or make an undertaking that they
would abide by the Schools program.
The Minister for Education (the respondent) however
submitted that the freedom of religion was one of
the fundamental rights and freedoms that were not
absolute and could be qualified by a reasonable
and justifiable criterion. Moreover there was need to
balance between religious freedom and the right to
education. The Minister submitted that the Adventist
students had the right to education and if education
was not to be offered on any day on account of their
religious beliefs that would be tantamount to denying
them the right to education.
Issues
I.
II.
III.
IV.
86
Cases
of constitutional rights. Further the Constitution
had to also be interpreted as an integrated whole
so that no single provision of the Constitution was
segregated from others and considered alone, but
that all provisions bearing upon a particular subject
were brought into view and to be interpreted so as
to achieve the greater purpose of the Constitution.
(Smith Dakoila v North Carolina 192 U.S. [1940]
LED 448. John Harun Mwau & 3 Others v Attorney
General and 2 Others, Petition No. 65 of 2011)
limitation.
6. The Constitution at article 8 provided that
there would be no state religion. The import of
this provision was that no religion would have
prevalence over any other and no particular
one was to be seen as the one each citizen was
obligated to follow including on the observance of
a day of worship. (Nyakamba Gekara v Attorney
General and 2 Others, Petition No. 82 of 2012.)
7. Freedom of religion included two closely related
but distinguishable entitlements: freedom to adopt
a religion or belief of ones choice and freedom
to manifest that religion or belief in worship,
observance, practice and teaching; To hold a
religious belief related to the inner act of believing
and to manifest related to the external acts of
giving expression of ones faith. The entitlement to
hold belief was absolute in nature and could not
be subjected to limitations or suspensions.
8. The Sabbath according to Seventh Day Adventists
began at sunset on Friday evening and ended at
sunset on Saturday evening. They professed that
those Sabbath hours belonged to God and were to
be used for Him alone. Those were the beliefs of
the Adventists as regards the Sabbath and the Court
could not question the sincerity of the petitioners
beliefs as religion was a matter of faith. It was their
constitutional right to hold such belief and freedom
to believe was an absolute right. (R (Williamson) vs
Secretary of State for Education and Skills [2005]2
AC 246)
9. The holding and manifestation of beliefs could
be intrinsically
bound up with each other.
Manifestation could occur through worship,
teaching and proselytism observation by
wearing symbols or special clothes, or by
eating or avoiding certain foods. The right
to manifest a belief was a qualified right and
was subject to limitations. Interferences with
the manifestation of belief could consist, for
example, of uniform policies at work or school, or
requirement to work at certain times or carry
out certain tasks. Limitations on an individuals
freedom to manifest his or her religion or belief
were only permissible if prescribed by law
and necessary in a democratic society in
the interests of public safety, the protection
of public order, health or morals, or the protection
of the rights and freedoms of others. (Nyakamba
87
Cases
88
High Court Stays Presidents Decision to form a Tribunal to investigate the issue of
removal of 6 Judicial Service Commissioners
Judicial Service Commission v Speaker of the National Assembly & another
Petition No 518 Of 2013
High Court at Nairobi
Constitutional & Human Rights Division
G V Odunga J
December 3, 2013
Reported By Njeri Githanga
Brief Facts
On October30, 2013 the Court issued orders restraining
the Justice and Legal Affairs Committee of the National
Assembly (hereinafter referred to as the Committee)
from debating a Petition for the removal of six
commissioners of the Judicial Service Commission (the
Petitioner) pending inter partes hearing of the matter.
However the Committee proceeded to deliberate on
the Petition and forwarded its report to the House.
On November6, 2013, the Court issued further orders
restraining Parliament from deliberating on the report
by the Committee.
In violation of the Court orders, the Speaker permitted
the debate and the House via a resolution adopted
the Committees report and forwarded a Petition to
the President to constitute a Tribunal to investigate
the issue of the removal of the subject Commissioners
of the Petitioner. On November29,2013, a special
Gazette Notice was issued in which the said Tribunal
was set up to be chaired by Hon. (Rtd) Justice Aaron
Gitonga Ringera and composed of Jennipher Shamalla,
Ambrose Weda and Mutua Kilaka as members.
The Petitioner moved the court seeking orders staying
the said Gazette Notice, grant of leave to join the
Chairman and members of the Tribunal to the petition
and orders of injunction jointly and severally against
them from being sworn in and commencing any work
in the way of investigating the six Commissioners of
the Petitioner. The Petitioner also sought further orders
clarifying that in light of the orders of the Court the said
six Commissioners to remain in the office thus staying
their suspension.
Issues
I. Whether in light of the earlier orders
restraining the Parliamentary Committee
from tabling its report before the National
Assembly, it was proper to constitute a
Tribunal pursuant to a resolution passed in
blatant breach of an existing court order.
Cases
II.
III.
IV.
V.
Cases
to a resolution passed in breach of an existing court
order - Constitution of Kenya 2010; articles 10(2) and
255.
Constitutional Law - conservatory orders - nature
of conservatory orders - factors to be considered by
the court in determining whether or not to grant the
orders - principle of proportionality - whether in the
circumstances of the case continuing the operations of
the petitioner would be the lower risk as opposed to
bringing the petitioners operations to a halt.
Held
1. Whether in light of the earlier orders restraining
the Parliamentary Committee from tabling its
report before the National Assembly, it was proper
to constitute a Tribunal pursuant to a resolution
passed in blatant breach of an existing court order
was a matter which was still at large and would be
dealt with it at a later stage.
2. The intended 3rd to 6th respondents were appointed
members of theTribunal tasked with investigating the
issue of the removal of the subject Commissioners
of the petitioner. Whether their mandate would be
in furtherance of disobedience of a Court order
would await the determination of the issues raised
in the petition. However, it was clear that the
issues could not be investigated without the said
persons being given an opportunity to be heard in
the petition as to do so would amount to a breach
of the rules on natural justice.
3. Since the Kenyan nation had chosen the path of
democracy rather than dictatorship, the Courts had
to stick to the rule of law even if the public may in
any particular case want a contrary thing and even if
those who were mighty and powerful might ignore
the Courts decisions. The courts had to continue
to give justice to all and sundry irrespective of their
status or former status. (Christopher Ndarathi H
Murungaru vs. Kenya Anti-Corruption Commission
& another Civil Application No. Nai. 43 of 2006
[2006] 1 KLR 77).
4. Under article 1(1) of the Constitution of Kenya,
2010 all sovereign power belongs to the people of
Kenya and shall be exercised only in accordance
with the Constitution and since the courts were the
temples of justice and the last frontier of the rule of
law, Court decisions had to be respected and the
dignity of the Court upheld at all times.
5. The Judiciary as a bastion of the rights of the people
89
90
Cases
it is not only bad but incurably bad and there is
no need for an order of the Court to set it aside,
though sometimes it would be convenient to have
the Court declare it to be so. Where the Court
found that to be so, the actions taken in pursuance
of actions taken in breach of a Court order had
to therefore break-down once the superstructure
upon which it was based was removed since one
cannot put something on nothing and expect it to
stay there as it would collapse. Macfoy vs. United
Africa Co. Ltd [1961] 2 ALL ER 1169 at 1172 &
Omega Enterprises (Kenya) Ltd. vs. KTDC & 2
Others Civil Appeal No. 59 of 1993.
91
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92
Brief facts
On 1st October 2013, the Respondents published in
the Kiambu County Gazette Supplement Bills 2013 a
Bill for introduction into the Kiambu County Assembly
known as The Kiambu County Finance Bill. 2013.
The petitioners (members of Jamofastar Welfare
Association) were unhappy with the said Bill and thus
filed the instant proceedings.
The petitioners contended that before the publication
of the said Bill there was no consultation with the
residents of Kiambu County in contravention of various
articles in the Constitution and County Governments
Act No. 17 of 2012 under which the public participation
in such matters was a mandatory requirement. It was
therefore contended by the petitioners that the said Bill
was unconstitutional not only for failing to adhere to
the principle of public participation and inclusiveness
but also that the issues dealt with in the said Bill
were not within the mandate of the Respondents. It
was further contended that the intended increase in
rents contained in the said Bill were a negation of the
provisions of Article 43(1)(b) under which every person
had the right to accessible and adequate housing, and
to reasonable standards of sanitation. To the petitioners
the intended developments were not by the people of
Kiambu but by the Executive Committee.
Together with the petition the petitioners filed Chamber
Summons in which they sought an order staying the
introduction into Kiambu County Assembly of the
said Kiambu County Finance Bill, 2013 pending the
hearing of the instant petition.
Issues
I.
II.
Cases
III.
IV.
Cases
3. The supervisory powers of the High Court were
enshrined in article 165(6) of the Constitution
under which the High Court had supervisory
jurisdiction over the subordinate courts and
over any person, body or authority exercising
a judicial or quasi-judicial function, but not
over a superior court. Where however a body
was constitutionally empowered to legislate,
Courts would not ordinarily interfere with
the exercise of the legislative authority of the
body concerned in line with the doctrine of
separation of powers. Courts were not to make
the law but only interpreted the same.
4. Courts were to exercise judicial restraint in
matters dealing with legislative authority of
County Governments. The rational basis test
involved restraint on the part of the Court. It
respected the respective roles of the Courts and
the Legislature. In the exercise of its legislative
powers, the Legislature had the widest possible
latitude within the limits of the Constitution.
In the exercise of their power to review
legislation, courts were to strive to preserve to
the Legislature its rightful role in a democratic
society. This equally applied to executive
decisions. (Mumo Matemu v Trusted Society of
Human Rights Alliance & 5 others Civil Appeal
No. 290 of 2012 [2013] eKLR)
5. Under article 2(4) of the Constitution, any law,
including customary law, that was inconsistent
with the Constitution was void to the extent of
the inconsistency, and any act or omission in
contravention of the Constitution was invalid.
Under article 165(3)(d)(i) and (ii) the High
Court was clothed with the jurisdiction to hear
any question respecting the interpretation of
the Constitution including the determination of
the question whether any law was inconsistent
with or in contravention of the Constitution
and the question whether anything said to be
done under the authority of the Constitution
or of any law was inconsistent with, or in
contravention of, the Constitution.
6. Whereas the legislative authority vested
in Parliament and the county legislative
assemblies, where a question arose as to
whether an enactment was inconsistent with
the Constitution or was passed in contravention
of the Constitution the High Court was the
institution constitutionally empowered to
93
94
Cases
appear. If the issues raised by the petitioners
were not addressed during the debating of the
said Bill the petitioners would still be at liberty
to move the Court for appropriate orders.
III.
95
merely by virtue of having been infected
by HIV. Therefore, the respondent grossly
erred in refusing the claimant employment
on a permanent basis on the ground of her
HIV status. They also breached her right to
employment and equal treatment by subjecting
her continuously to casual employment and
inferior remuneration purely on the basis of her
HIV status. Further that the respondent erred by
terminating her employment under the pretext
that her short term contract had expired when
the sole reason for the adverse decision was
her HIV status.
6. Section 29 of the Employment Act, 2007
provided that female employees were entitled
to three months maternity leave with full
pay. Therefore, the respondents unlawfully
withheld the claimants salary while she was
on maternity leave.
7. The cumulative effect of the respondents
actions against the claimant constituted gross
affront on her dignity contrary to article 28
of the Constitution of Kenya, 2010, a gross
violation of her right to fair labour practices
which included a right to fair remuneration
and to reasonable working conditions contrary
to article 41 of the constitution. Further, that
the respondent grossly violated article 27 of
the Constitution and in particular her right to
equal benefit of the law and equal enjoyment
of all rights was grossly violated by the
discriminative conduct of the respondent in
spite of the specific provisions of labour laws
that guaranteed the claimant specific rights
and equality at the work place.
Industrial cause allowed. Respondents to pay
claimant total of Ksh. 6,971,346/= being damages for
discrimination of the claimant on the basis of her HIV
status and gross violation of her human dignity.
Cases
96
Brief Facts
The Grievant in this case was a former employee of
the Respondent, (Kenya Petroleum Refineries Ltd). The
Claimant (the Grievants Union) instituted a claim on
behalf of the Grievant alleging that the Respondent
had unfairly terminated the Grievants employment.
The Respondent had summarily dismissed the Grievant
on grounds of poor work quality and performance
among others. The termination letter had elaborately
stated that the Grievant had lacked work quality
and performance, that he had been deliberate on
non - completion of training requirements by failing
to attend training sessions and that he had refused
to correct unacceptable behavior, demonstrated by
erratic work attendance, absenteeism and lack of
sincerity and integrity. The Respondent had relied on
several warning letters and disciplinary notices issued
to the Grievant and which had been cancelled, in the
termination proceedings. They included a warning
letter after he had failed an assessment for promotion.
The Respondent had required that the Grievant re-sits
the assessment and had threatened that if he did not
meet the stipulated conditions his services would be
determined.
Issues
I.
II.
III.
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that process was both an assessment of the Grievants
performance and a disciplinary process. That course
of action was not in compliance with the dictates of
procedural fairness of section 41 of the Employment
Act and provisions of the Collective Bargaining
Agreement in question.
4. The Employment Act of 2007 placed an onerous
legal obligation upon employers in claims for unfair
termination or wrongful dismissal. Section 43 of
the Act required the employer to prove the reasons
for termination or dismissal, section 45 required
the employer to prove that the reasons were valid
and fair while section 47(5) of the Act expected the
employer to justify the grounds for the termination or
dismissal. The scheme created by the Employment Act
was fundamentally different from that created by the
Evidence Act and the Civil Procedure Rules, bearing
in mind that the Industrial Court was not strictly bound
by the rules of evidence.
5. The reasons for termination given in the termination
letter lacked clarity, verged on vagueness and referred
to what appeared to have happened over a long period
of time. Procedural fairness envisaged informing an
employee with clarity, of the nature of charges he
was facing and giving him an opportunity to state his
case or respond. Some of the reasons related to poor
performance and some to misconduct. Vague and
numerous reasons could prejudice an employee in
responding to the allegations.
6. It was also not possible for the Court to know how
and whether the allegations were the subject of distinct
disciplinary hearings, considering that they had been
mentioned in the termination letter itself.
7. It was very easy to discern what a poor performance
in a drama play was, but not in the workplace.
Many employers confused poor performance
with negligence, incapacity or misconduct. Poor
performance did not relate to an employees behavior
in the work place. Behavior was addressed under
misconduct in employment disciplinary process while
poor performance examined whether the job which
an employee was expected to perform, was performed
properly (ability).
8. Performance was therefore gauged on the basis of
sufficient job output, acceptable quality, compliance
with employer operating procedures, sufficient
employee effort and ability to perform the job at the
97
gross
wages
98
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Constitutional claims on violation of fundamental rights and freedoms have no
limitation period within which to be filed
David Gitau Njau & 9 others v Attorney General
Petition No 340 of 2012
High Court at Nairobi
I Lenaola, J
November 1, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka
Brief facts:
The petitioners were ex-service officers of the Kenya
Air Force who were serving officers at the time of the
attempted coup of 1st August 1982. In their petition,
they alleged that they were all arrested by officers
of the Kenya Army on diverse dates between 1st and
4th August 1982 on suspicion of participating in the
attempted/failed coup on the mere account of their
being officers of the Kenya Air Force. They alleged a
violation of their fundamental rights and freedoms as
enshrined in the Constitution of Kenya (Repealed) and
the Constitution of Kenya, 2010 by the officers of the
Kenya Army on diverse dates in 1982 and 1983.
Issues:
I. Whether a constitutional claim on alleged
infringement of fundamental rights and
freedoms had a limitation period within which
the claim ought to have been filed.
II. Whether the petitioners herein established
a violation of their fundamental rights and
freedoms.
III. What amount in damages was to be awarded.
Constitutional Law fundamental rights and freedoms
violation of fundamental rights and freedoms
claim that the petitioners protection from Torture and
other Cruel and Degrading Treatment was violated
claim that the petitioners right to personal liberty was
violated where the petitioners were arrested and
held in custody for a period of 8 months without being
brought to court whether the petitioners claim was
time barred having been brought to court 30 years
later whether constitutional claims had a limitation
period attached whether the claim for infringement
had been established and what amount of damages
could be awarded Armed Forces Act, sections 48,
72(2)&(3) and 176; Constitution of Kenya (Repealed)
sections 72, 74(1), 84, 86(2)&(3).
Held:
1. A claim made under the Constitution was
neither a claim in tort nor contract that would
necessitate the application of the Limitation of
Actions Act, Cap 22 Laws of Kenya.
2. There was no law or particular provision of
BB Issue 24, January - March 2014 Feature Case
99
Extent to which the Retirement Benefits Appeals Tribunal may Determine issues of
Employment
Republic v Retirement Benefits Appeals Tribunal ex-parte Mogaha & 12 others
Misc Appl No 415 of 2012
High Court at Nairobi
D S Majanja, J
October 4, 2013
Reported by Andrew Halonyere
Brief facts
The 1st interested party lodged a complaint about
payment of pension with the Retirement Benefits
Authority. The complaint was challenged by her
employer on the grounds that she had been dismissed
for acts of fraud and gross misconduct, and therefore
not eligible for pension. The Authority found that she
had been paid her retirement benefits in accordance
with the provisions of the employers pension scheme
and the rules applicable when her services were
terminated.
She was aggrieved by the Authoritys decision and
lodged an appeal to the Retirement Benefits Appeal
Tribunal. The Tribunal noted that the main bone of
contention was the manner in which the 1st interested
partys services was terminated and it concluded that
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100
Employment law pension complaint of nonpayment of pension appeal to the Retirement Benefits
Appeal Tribunal jurisdiction of the Retirement Benefits
Appeal Tribunal extent to which the Retirement
Benefits Appeals Tribunal may determine issues of
employment Retirement Benefits Act (Cap 197)
Held
1. All inferior courts and tribunals had only
limited jurisdiction whose limits they had to
observe, otherwise the doctrine of ultra vires
would come into play, and any decision by
such a court or Tribunal was bound to be
declared null and void and would be quashed.
Jurisdiction was the root of all causes and
where it was lacking, any decision made by
the Court or Tribunal would be null and void
ab initio.
2. Where the proceedings were regular upon their
face and the inferior tribunal had jurisdiction
in the original narrow sense i.e, it had power
to adjudicate upon the dispute and did not
commit any errors which went to jurisdiction
in the wider sense, the quashing order of
certiorari would not ordinarily be granted on
the ground that its decision was considered
wrong either because it misconceived a point
of law or misconstrued a statute, except a
misconstruction of a statute relating to its own
jurisdiction.
3. The dispute before the Retirement Benefits
Appeals Tribunal concerned an appeal from a
decision of the Retirement Benefits Authority,
finding, that the 1st interested party was entitled
to certain pension benefits. The issue of her
entitlement was intimately connected with
the manner in which she was terminated. The
Tribunal had jurisdiction to deal with and
apply its mind to all the issues necessary for
the determination of the core issue before it.
4. The jurisdiction of the Retirement Benefits
Appeals Tribunal was to hear appeals from
the Chief Executive of the Retirement Benefits
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5.
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101
Issues
I. Whether the appointment of the petitioner as
the Chairperson of the Embu County Public
Service Board was effective notwithstanding
the fact that the appointment was not gazetted
in the Kenya Gazette and there was no
appointment letter issued.
II.
III.
Constitutional
Law-County
Government-County
Public Service Boards-requirements relating to the
appointment of members to County Public Service
Boards-whether an appointment would be effective
without the issuance of an appointment letter and the
gazettement of the appointment-Constitution of Kenya,
2010; Chapter 6 & County Governments Act, No 17 of
2012; sections 58 & 67.
Constitutional
Law-County
Government-County
Public Service Boards-requirements relating to the
removal of members to County Public Service Boards
from office-whether a letter rescinding an appointment
and indicating the existence of a County Assembly
resolution for the rescission, would suffice- Constitution
of Kenya, 2010; article 151(1) & County Governments
Act, No 17 of 2012; sections 58(5).
Held
1. In accordance with the terms of section 58(3)
of the County Governments Act, No 17 of
2012, the petitioner met the requirements for
appointment as the Chairperson of the County
Public Service Board. Upon his appointment,
the petitioner was to hold office for a nonrenewable term of 6 years.
102
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the grounds provided for in law and that there
was a decision for removal passed by 75%
of the members of the County Assembly. The
removal via a letter rescinding the appointment
was not in compliance with the prescribed
procedure.
e) Bankruptcy.
8. There was a failure to demonstrate that the
petitioners removal from office was related to
Petition allowed.
Brief Facts
The petitioner was a former intermediary for the
International Criminal Court prosecutor in the context
of investigations relating to the 2007 post elections
violence. It was alleged that he was criminally
responsible for interfering with prosecution witnesses
by attempting to corruptly influence the witnesses, in
contravention of article 70(1)(c) of the Rome Statute.
He was therefore being sought by the ICC to answer
to those charges. The ICC Registrar issued a request
for arrest and surrender of the Petitioner which was
received by the Cabinet Secretary of Interior and
National Co-ordination and forwarded to the High
Court of Kenya for execution in accordance with
section 29 of the International Crimes Act No. 16, of
2008 (the ICA).
The issuance of the warrant is what triggered the
petitioner to file the petition.
International law treaties and conventions nature
and extent of application of treaties supremacy of the
Constitution and sovereignty of the people vis--vis the
Rome Statute and conventions ratified by Kenya
BB Issue 24, January - March 2014 Feature Case
II.
III.
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IV.
V.
VI.
Held
1. It was trite that under the Rome Statute the
ICC did not exercise police powers, nor did
its personnel have a direct right of arrest. The
request therefore together with accompanying
documentation and identifying information
under article 91 of the Rome Statute was
transmitted for execution to the Cabinet
Secretary, Ministry of Interior and Co-operation
of Kenya, by way of a request for co-operation
pursuant to article 89 of the Rome Statute.
2. To acquire the force of law under the Kenyan
Constitution, treaties and conventions had to
undergo domestication. It was recognized
that treaties were laws, consented to by all
parties in the comity of nations who sign them,
obligating States that have ratified or acceded
to them comply with them particularly when
dealing with other States parties as well as
relevant international organizations. The 1969
Vienna Convention on the Law of Treaties (the
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7. Kenya, through a process of domestication,
and the people of Kenya in exercise of their
sovereign will through their constitutionally
mandated representatives in Parliament, had in
exercise of such sovereignty, ratified, adopted,
incorporated and received the Rome Statute,
excluding the provisions not domesticated, as
part of the law of Kenya under the supremacy
of the Constitution. That being so, the effect
was that the Rome Statute formed part of
the laws of Kenya. Being a statute through a
process of ratification and domestication the
Rome Statute was in terms of article 2(6) of the
Constitution subordinate to the Constitution
8. When an Act of parliament is appropriately
challenged in the courts as not conforming
to the constitutional mandate, the judicial
branch of the government has only one duty;
to lay the article of the Constitution which is
invoked beside the statute which is challenged
and to decide whether the latter squares with
the former. All the court does, or can do, is
to announce its considered judgment upon
the question. The only power it has, if such it
may be called, is the power of judgment. The
High Court neither approves nor condemns
any legislative policy. Its delicate and difficult
office is to ascertain and declare whether
the legislation is in accordance with, or
in contravention of, the provisions of the
Constitution; and, having done that, its duty
ends.
9. In impugning a provision of law as
unconstitutional, the complainant must
juxtapose the article of the Constitution which
is invoked against the provision challenged and
show how they do not square with each other.
The petitioner did not demonstration as to
how Part IV of the ICA on arrest and surrender
when juxtaposed with Art 27,28 and 29 of
the Constitution, were flawed. Under the ICA,
once the Cabinet Secretary had received the
transmitted warrant and supporting documents
from the ICC, he was required to satisfy himself
that the request was duly supported, and if so,
to notify the Judge of the request and seek
issuance of an arrest warrant.
10. The ICC is a court which is, as far as Kenya
is concerned, one established by a statute
acceded to and ratified pursuant to article
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15. Under the Kenyan laws there is no provision
that a person at the pre-arrest stage is entitled to
a hearing or to be provided with material that
is to form the basis of the charge. Those rights
are available to the petitioner after arrest and
throughout the process thereafter. That includes
the process before the ICC if, eventually, an
order of surrender were to be finally made
against the petitioner after his arrest.
16. An arrest in Kenya is lawful with or without
the issuance of a warrant. All that is required
is either the production before a magistrate of
an arrested person or a complaint signed by
a magistrate. It is not unusual, however, that
a person suspected of having committed an
offence is arrested without the opportunity
of being heard. There is no doubt that arrest
interferes with the fundamental rights of a
person, in that upon arrest he may be placed
in custody, and his movements limited and
freedoms restricted. Therefore, the right to
liberty can only be deprived on such grounds
and in accordance with such procedure as
established by law.
17. Upon arrest, under the Constitution, a persons
right to a hearing and to challenge the grounds
for arrest cannot be curtailed, except under law.
In some countries such as the United States of
America, before being arrested a person has
rights that accrue to them, which are read to
them by the arresting officer. Such pre-arrest
rights are commonly referred to as Miranda
Rights or the Miranda Rule.
II.
III.
IV.
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sections 172 or 173 of the ICA.
INTERNATIONAL
JURISPRUDENCE
Indias Supreme Court commutes the sentences of 15 death row prisoners to
life in jail on the grounds of delay
Shatrughan Chauhan & another V Union of India & Others
2014 STPL(Web) 41 SC
Supreme Court of India
P. Sathasivam, Cji., Ranjan Gogoi And Shiva Kirti Singh, JJ
Reported by Linda Awuor
Brief Facts
The Petitioners filed a writ petitions, under Article 32 of
the Constitution of India, which had been filed either by
the convicts, who were awarded death sentence or by
their family members or by public-spirited bodies like
Peoples Union for Democratic Rights (PUDR) based
on the rejection of mercy petitions by the Governor
and the President of India.
Issues
i. Whether delay in the decision of mercy plea
was a relevant ground for commuting death
sentence to life imprisonment.
ii.
iii.
iv.
v.
107
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution
Held:
1) The power vested in the President under Article
72 and the Governor under Article 161 of the
Constitution is a constitutional duty. As a result, it
is neither a matter of grace nor a matter of privilege
but is an important constitutional responsibility
reposed by the people in the highest authority.
The power of pardon is essentially an executive
action, which needs to be exercised in the aid of
justice and not in defiance of it. Further, it is well
settled that the power under Articles 72 and 161
of the Constitution of India was to be exercised
on the aid and advice of the Council of Ministers.
2) The right to life is the most fundamental of all
rights. The right to life, as guaranteed under
Article 21 of the Constitution of India, provides
that no person shall be deprived of his life and
liberty except in accordance with the procedure
established by law. Inasmuch as Article 21 was
available to all the persons including convicts
and continued till last breath if they establish
and proved the supervening circumstances, such
as undue delay in disposal of mercy petitions,
undoubtedly, this Court, by virtue of power under
Article 32, can commute the death sentence into
imprisonment for life. As a matter of fact, it is the
stand of the petitioners that in a petition filed under
Article 32, even without a presidential order, if
there is unexplained, long and inordinate delay in
execution of death sentence, the grievance of the
convict can be considered by this Court
3) Undue long delay in execution of sentence of
death would entitle the condemned prisoner to
approach this Court under Article 32. However,
this Court would only examine the circumstances
surrounding the delay that had occurred and
those that have ensued after sentence was finally
confirmed by the judicial process. This Court
cannot reopen the conclusion already reached
but may consider the question of inordinate delay
to decide whether the execution of sentence
should be carried out or should be altered into
imprisonment for life.
4) Keeping a convict in suspense while consideration
of his mercy petition by the President for many
years was certainly an agony for him/her. It created
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adverse physical conditions and psychological
stresses on the convict under sentence of death.
Indisputably, this Court, while considering
the rejection of the clemency petition by the
President, under Article 32 read with Article 21
of the Constitution, cannot excuse the agonizing
delay caused to the convict only on the basis of
the gravity of the crime.
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Manuals for providing legal aid, for preparing appeals
or mercy petitions or for accessing judicial remedies
after the mercy petition has been rejected. Various
judgments of this Court have held that legal aid is a
fundamental right under Article 21. Since this Court
has also held that Article 21 rights inhere in a convict
till his last breath, even after rejection of the mercy
petition by the President, the convict can approach a
writ court for commutation of the death sentence on
the ground of supervening events, if available, and
challenge the rejection of the mercy petition and legal
aid should be provided to the convict at all stages.
Accordingly, Superintendent of Jails are directed to
intimate the rejection of mercy petitions to the nearest
Legal Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before
the President: The Government of India has framed
certain guidelines for disposal of mercy petitions filed
by the death convicts after disposal of their appeal by
the Supreme Court. As and when any such petition is
received or communicated by the State Government
after the rejection by the Governor, necessary materials
such as police records, judgment of the trial court,
the High Court and the Supreme Court and all other
connected documents should be called at once fixing
a time limit for the authorities for forwarding the same
to the Ministry of Home Affairs. Even here, though
there are instructions, we have come across that in
certain cases the Department calls for those records
in piece-meal or one by one and in the same way,
the forwarding Departments are also not adhering to
the procedure/instructions by sending all the required
materials at one stroke. This should be strictly followed
to minimize the delay. After getting all the details,
it is for the Ministry of Home Affairs to send the
recommendation/their views to the President within a
reasonable and rational time.
Even after sending the necessary particulars, if there is
no response from the office of the President, it is the
responsibility of the Ministry of Home Affairs to send
periodical reminders and to provide required materials
for early decision.
4. Communication of Rejection of Mercy Petition by
the Governor: No prison manual has any provision for
informing the prisoner or his family of the rejection of
the mercy petition by the Governor. Since the convict
has a constitutional right under Article 161 to make
a mercy petition to the Governor, he is entitled to
be informed in writing of the decision on that mercy
petition.
The rejection of the mercy petition by the Governor
should forthwith be communicated to the convict and
his family in writing or through some other mode of
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communication available.
5. Communication of Rejection of the Mercy Petition
by the President: Many, but not all, prison manuals
have provision for informing the convict and his family
members of the rejection of mercy petition by the
President. All States should inform the prisoner and
their family members of the rejection of the mercy
petition by the President. Furthermore, even where
prison manuals provide for informing the prisoner of
the rejection of the mercy petition, we have seen that
this information is always communicated orally, and
never in writing. Since the convict has a constitutional
right under Article 72 to make a mercy petition to the
President, he is entitled to be informed in writing of
the decision on that mercy petition. The rejection of
the mercy petition by the President should forthwith be
communicated to the convict and his family in writing.
6. Death convicts are entitled as a right to receive
a copy of the rejection of the mercy petition by the
President and the Governor.
7. Minimum 14 days notice for execution: Some
prison manuals do not provide for any minimum
period between the rejection of the mercy petition
being communicated to the prisoner and his family
and the scheduled date of execution. Some prison
manuals have a minimum period of 1 day, others have
a minimum period of 14 days. It is necessary that a
minimum period of 14 days be stipulated between the
receipt of communication of the rejection of the mercy
petition and the scheduled date of execution for the
following reasons:(a) It allows the prisoner to prepare himself mentally
for execution, to make his peace with god, prepare his
will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final
meeting with his family members. It also allows the
prisoners family members to make arrangements to
travel to the prison whichnmay be located at a distant
place and meet the prisoner for the last time. Without
sufficient notice of the scheduled date of execution,
the prisoners right to avail of judicial remedies will
be thwarted and they will be prevented from having
a last and final meeting with their families. It is the
obligation of the Superintendent of Jail to see that the
family members of the convict receive the message of
communication of rejection of mercy petition in time.
8. Mental Health Evaluation: We have seen that in
some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and suffering
experienced on death row. There should, therefore,
be regular mental health evaluation of all death row
convicts and appropriate medical care should be given
to those in need.
BB Issue 24, January - March 2014 Feature Case
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of mercy for convicted person. The article provides
that:
133. Power of mercy
(1) On the petition of any person, the President may
exercise a power of mercy in accordance with the
advice of the Advisory Committee established under
clause (2), by-(a) granting a free or conditional pardon to a person
convicted of an offence;
(b) postponing the carrying out of a punishment,
either for a specified or indefinite period;
(c) substituting a less severe form of punishment; or
(d) remitting all or part of a punishment.
(2) There shall be an Advisory Committee on the
Power of Mercy, comprising-(a) the Attorney-General;
(b) the Cabinet Secretary responsible for correctional
services; and
(c) at least five other members as prescribed by an Act
of Parliament, none of whom may be a State officer or
in public service.
(3) Parliament shall enact legislation to provide for-(a) the tenure of the members of the Advisory
Committee;
(b) the procedure of the Advisory Committee; and
(c) criteria that shall be applied by the Advisory
Committee in formulating its advice.
(4) The Advisory Committee may take into account
the views of the victims of the offence in respect of
which it is considering making recommendations to
the President.
Power of Mercy Act, 2011
The Power of Mercy Act, 2011hasgenerously
provisioned that the operations of the Committee
be conducted under the most transparent and
accountable procedures and contains quite a few
convict-friendly legislation as well. Part II of the Act:
Anyone may lodge such a petition on behalf of
another, and such a petition is valid even if it is
not professionally done - a truly convict-friendly
provision:
19. (1) Any person may, subject to the
Constitution and this Act, petition the
President, through the Committee, to exercise
the power of mercy and grant any relief
specified in Article 133(1) of the Constitution.
(3) For the avoidance of doubt, a petition that
provides the requisite information shall not
be incompetent only for the reason that (a)
it does not accord strictly with the prescribed
format; or (b) it has been commenced in
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person or through a representative other than
an advocate.
The 1-year limitation period in Article 12 of the Convention on the Civil Aspects of
International Child Abduction is not subject to equitable tolling.
United States Supreme Court
113
was to ascertain the intent of the parties by looking
to the documents text and context.
3. The parties to the Hague Convention did not intend
equitable tolling to apply to the 1-year period in
Article 12. Unlike federal statutes of limitations,
the Convention was not adopted against a shared
background of equitable tolling. Even if the
Convention was subject to a presumption that
statutes of limitations may be tolled, the 1-year
period in Article 12 was not a statute of limitations.
Therefore absent a presumption in favor of
equitable tolling, nothing in the Convention
warranted tolling the1-year period.
4. There was no general presumption that equitable
tolling applied to treaties. Congress was presumed
to incorporate equitable tolling into federal statutes
of limitations because equitable tolling was part
of the established backdrop of American law. It
did not follow, however, that such background
principles of United States law to contexts could
be exported outside their jurisprudential home.
5. Even if a background principle was relevant to the
interpretation of federal statutes, it had no proper
role in the interpretation of treaties unless that
principle was shared by the parties to an agreement
among sovereign powers. (Zicherman v. Korean
Air Lines Co., 516 U. S. 217, 226 (1996).
6. Petitioner had not identified a background
principle of equitable tolling that was shared by the
signatories to the Hague Convention. The American
presumption that federal statutes of limitations can
be equitably tolled therefore did not apply to the
multilateral treaty.
7. It did not matter that Congress had enacted a
statute to implement the Hague Convention.
International Child Abduction Remedies Act
(ICARA) did not address the availability of
equitable tolling. Nor did it purport to alter the
Convention. In fact, Congress explicitly recognized
the need for uniform international interpretation
of the Convention. Congress mere enactment of
implementing legislation did not somehow import
background principles of American law into the
treaty interpretation process, thereby altering the
understanding of the treaty itself.
8. Even if the presumption in favor of equitable tolling
had force outside of domestic law, it could only be
applied to statutes of limitations. The 1-year period
in Article 12 was not a statute of limitations.
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EACJ Dismisses Case on Alleged Arrest and Detention of Kenyan Advocate in Uganda
The East African Court of Justice, Arusha First Instance Division
Mbugua Mureithi V. The Attorney General of the Republic Of Uganda & 2 Others
Reference No 11 of 2011.
Before: Jean Bosco Butasi (PJ) John Mkwawa, J and Faustin Ntezilyayo J.
24th February 2014
Reported by Vellah Kedogo
Brief Facts
The Applicant an Advocate of the High Court of
Kenya arrived in Uganda on 15th September, 2010
seeking to represent his six clients who had been
arrested for alleged act of terrorist bombings. Upon
arrival at Entebbe Airport, he was arrested, detained
incommunicado and interrogated by agents of the 1st
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Community
Article 23
1) The Court shall be a judicial body which shall
ensure the adherence to law in the interpretation
and application of and compliance with this Treaty;
2) The Court shall consist of First Instance Division
and an Appellate Division;
3) The First Instance Division shall have jurisdiction
to hear and determine, at first instance, subject
to a right of appeal to the Appellate Division
under Article 35A, any matter before the Court in
accordance with this Treaty.
Article 27
1) The Court shall initially have jurisdiction over the
interpretation and application of this Treaty
2) The Court shall have such other original,
appellate, human rights and other jurisdiction as
will be determined by the Counsel at a suitable
subsequent date. To this end, the Partner States
shall conclude a Protocol to operationalize the
extended jurisdiction.
Article 30
1) Subject to the Provisions of Article 27 of this Treaty,
any person who is resident in a Partner State may
refer for determination by the Court, the legality
of any Act, directive, decision or action of a
Partner State or an institution of the Community
on the grounds that such Act, regulation, directive,
decision or action is unlawful or is an infringement
of the provisions of this Treaty;
2) The proceedings provided for in this Article
shall be instituted within two months of the
enactment, publication, directive, decision or
action complained of, or in the absence thereof, of
the day in which it came to the knowledge of the
complainant, as the case may be.
HELD
1. Treaty for the Establishment of the East African
Community was an International Treaty subject
to International Law of Treaties and in particular,
Article 31(1) of the Vienna Convention on the
Law of Treaties which set up the general Rule of
Interpretation of Treaties as, A Treaty shall be
interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the
Treaty in their context and in the light of its object
and purpose.
2. Article 27 of the Treaty provided for the jurisdiction
of the Court. It was not in dispute that East African
Court of Justice (EACJ) had jurisdiction over
interpretation and application of the Treaty.
3. The contention by the Respondents that the
4.
5.
6.
7.
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8. EACJ was bound by the Law (Treaty) and had to take
cognizance of the fact of the limitation. Therefore,
the Reference was time-barred.
Reference dismissed.
Since the reference was time barred, the court refrained
from entertaining the issue on the remedies sought by
the applicant
Each party to bear its own costs
Relevance to the Kenyan Situation
Kenya is a member state of the East African
Community (EAC), and by virtue of Article 2(5),
(6) of the Constitution of Kenya, it is bound by the
Treaty for the Establishment of the East African
Community .The applicant, being Kenyan is also
bound by the provisions of the treaty by virtue of
his citizenship.
The Constitution provides for the bill of rights
which clearly states out the fundamental rights
and freedoms one is entitled to. It also provides for
redress mechanisms for violations of human rights
of its citizens. It however does not limit as to time
an application to seek redress for human rights
infringement. In the absence of a statutory limitation
in place, no limitation period is applicable.
The treaty on the other hand bars applications for
redress lodged past the prescribed two months
under the treaty. It does not give the court power
to condone, waive or modify the prescribed limit
for any reason.
Kenya as a member state to the EAC should
together with the other member states speed up
the conclusion of a Protocol to operationalize
the extended jurisdiction of EACJ to adjudicate
violations of human rights in the region.
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