Professional Documents
Culture Documents
PRODUCT
STA
TATUS
COSTS
Available
6,000
Out of stock
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
3,000
Available
4,500
Available
4,500
Available
4,500
Available
4,500
Available
4,500
Available
4,500
CONTENTS
BENCH BULLETIN
01 Ag Editor/CEOs Note
02 C h i e f
Message
Justices
34
15 Feature Case
18 Revisiting the KoinangeGachoka Case: Reflections
on Contempt of Court
under the Constitution of
Kenya, 2010
26 Parental Responsibility
and Child Maintenance in
Kenya
p.
40
76
Ag Editor /CEO
| Longet Terer |
Head of Law Reporting
| Cornelius Lupao |
Contributors
| Monica Achode | Linda Awuor | Cornelius Lupao | Wambui Kamau | Janette Watila | Mutindi Musuva |
| Eric Odiwuor | Edna Kuria | Nelson Tunoi | Emma Kinya | Collins Kiplimo | Phoebe Ayaya | Lydia Midecha
| Andrew Halonyere | Martin Andago | Teddy Musiga | Victor Kipyegon | Beryl Ikamari | Dudley Ochiel
| Lisper Njeru | Christian Ateka | Caroline Wairimu | Mary Waruguru | Ruth Ndiko | Naomi Mutunga |
| Julie Mbijiwe | Thomas Muchoki | Humphrey Khamala | Patricia Nasumba | Moses Wanjala | Winnie
Mbori | Phoebe Juma | Musa Okumu | Innocent Ayatollah |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
Law
The Reporting
Council
5i
Ms Christine Agimba
Deputy Solicitor General, State Law Office
Longet Terer
Ag Editor/CEO
Mr Jeremiah M Nyegenye
Clerk of the Senate Represented by Mrs Consolata
Munga
Disclaimer:
While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the
information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any
liability for any loss or damage that may arise from an inaccuracy or the omission of any information.
Issue 29, April - June 2015
ii
6
This Work by National Council for Law Reporting (Kenya Law) is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0).
Law Reporting
Law Reporting
Ag Editor/CEOs Note
The increase in the number of courts and more importantly, the increase in
the number of judicial officers, is having an immediate and positive impact
on the dispensation of justice. The justice@last initiative that is being
championed by the Hon. Chief Justice has also resulted in the clearance of
large number of backlog cases. We anticipate that we shall report the highest
number of judicial decisions in the history of Kenya this year.
This edition highlights various legal issues that are worthy of note. We have
an analysis of the law of contempt that lucidly presents this area of law
juxtaposed against the recent changes made to our understanding of our
legal regime and especially the Constitution of Kenya 2010.
The manner in which the various courts (High Court; Employment & Labour
Relations Court; Environment & Land Court) are staffed and constituted
has been the subject of a legal challenge and in this issue we highlight two
cases in which this matter has been considered. The decision of the Court
of Appeal holding that Judges of the ELRC and ELC cannot preside over
criminal and civil cases has a great ripple effect as we note that most of
these judges have presided over a large number of cases in the justice@last
initiative. This is an issue that will need further deliberation.
Kenya Law ended the financial year on a philanthropic note as we undertook
our headline CSR for the year. In recognition of the impact that our print
publications have on the environment, especially the depletion of trees, we
planted over 250 trees along the boundary of Nairobi National Park and
Nairobi City. We plan to follow up on this initiative to ensure that we not
only plant more trees but that also that the trees we plant are well tended
and grow to maturity.
I hope that you will enjoy reading this edition of the Bench Bulletin. In case
you have any comments or suggestions with regards to this publication, or
the work of Kenya Law, please feel free to get in touch with me via email at
Lterer@kenyalaw.org
Longet Terer
Ag Editor
Issue 29,
April - June
2015
Editors
Note
Issue
29, April
- June 2015
2015
Issue 26,
January
- March
CJs Message
Remarks by the Chief Justice on the Tribute Session
for the Late Justice Shaikh Amin at the Supreme
Court, Nairobi on July 01, 2015
onourable Colleagues, The President of the Court of Appeal, The Principal Judge of the
High Court, Judges of the Superior Courts, serving and retired, The Honourable Deputy
Chief Kadhi, Honourable Magistrates, The Honourable Attorney General, The President,
Law Society of Kenya, Distinguished members of the Legal Profession in Kenya, Cabinet
Secretaries, Ambassadors, Members of the Family of the late Mr. Justice Shaikh Amin, JA. Ladies
and gentlemen:
Let me start by reflecting on the practice of paying tributes to departed judges
and advocates. We have not been consistent in performing this important
tradition. The last time tribute was paid to a departed judge was in 1999 in
honor of former Chief Justice, Zaccheus Chesoni. In 2013, I presided over a
hearing in which we paid tribute to five distinguished counsel who practiced
in Mombasa before their deaths. This is a tradition that should remind us that
the bar and the bench are joined at the hip of justice. It is a tradition that does
not require legislation, practice notes or case law. It is a tradition that reflects
the great value of humanity. It is a tradition that reflects the constitutional
value of equity. And this afternoon equity in the judicial hierarchy is glaringly
reflected when all the courts are represented in this hearing. The Deputy
Chief Kadhi who ranks similar to Senior Principal Magistrate is sharing a
court with the CJ, DCJ, President of Court of Appeal, and Judges of the High
Court. We would have got the gender parity right had Chief Magistrate Hon.
Ominde not pulled out at the last minute on account of her mothers death,
and to whom we offer our condolences. We will now be consistent in the
practice of this tradition and pay tributes to departed Magistrates and Kadhis
as well. I would also suggest that we include in the tradition paying tributes
to retiring or retired judicial officers. I have always held the view that it is
better to celebrate and honor colleagues when they are alive. It would reflect
the great hallmark of due process when they can also be heard. That is the
reason why the judiciary honoured retired Justice Onyango Otieno in March
this year, by naming the Court Library in the new Court Complex in Kisumu,
after him.
I will not repeat the content of Judge Shaikh Amins biography. It has been
eloquently done by the Hon the Attorney General, the Chair of Law Society, and Senior Counsel
Fred Ojiambo who is also the Chair of the Senior Counsel Bar.
I want to reflect on Judge Amins legacy within the context of the transformation of the Judiciary
before and after the promulgation of the 2010 Constitution. I will focus on his work as an officer
of the court, but more specifically reflect on the values he exhibited as a Judge. We all agree that
the transformation of the Judiciary did not start with the 2010 Constitution because the judiciary
dealt with the issue through various Task Forces. We used the recommendations of those Task
Forces to design a Judiciary Transformation Framework 2012-2016. The 2010 Constitution
was, indeed, a giant leap forward in restructuring the Judiciary and giving it a pivotal role in the
fulfillment of the promise of democracy in this country.
When it comes to values enshrined in the 2010 Constitution Judge Shaikh Amin lived them before
they were decreed in the Constitution. He was collegial to a fault. He was modest, transparent,
accountable, humble, and fair. He was the face of justice literally given his smiles, gait, and cool
demeanor. He looked at the parties, the litigants, and was sharp to discover the justice of a case
in an adversarial system. Equity, a value in our Constitution, was one of his attributes. He was
Law Reporting
Law Reporting
always humane. Those who appeared before him will testify to his commitment to ADR once he
saw the justice of the dispute before him. This was his approach as missionary or imam of justice.
He understood that the adversarial justice system did not result in justice at all times. He clearly
saw injustice in that system, a vision that the 2010 Constitution reflects under Article 159 of the
Constitution.
After his appointment to the Bench, Justice Amin made a reputation for himself for integrity,
fairness, independence, courage and compassion. He believed in a higher Justice, not the strict,
technical, mandatory application of inflexible rules, regardless of the human cost. Those who
appeared before him or colleagues who sat with him will recognize his personal guiding standards
reflected in what we now know as the overriding objectives principle that is mandatorily applied
in court procedure.
The late Justice Amin was also one of the earlier Judges to actively encourage mediation and outof-Court settlement of disputes in a variety of civil cases that came before him, a principle now
enshrined in the Constitution. He was also one of the first Judges to embrace the filing of written
Submissions as a means of saving on valuable judicial time. He was keen to ensure that all litigants
had their day in Court and questioned the value of interminable proceedings and unnecessarily
lengthy adjournments, submissions, Rulings and Judgments when the litigants seeking Justice
really only needed quick and fair decisions. That was long before the Judiciary even thought of
Performance Management. He was clearly ahead of his time.
It is when I reflect on the approach by Judge Shaikh Amin against the essence of values under Article
10, the whole notion of access to justice, and the broad parameters of justice under the provisions
of Article 159 of the Constitution, particularly what I have called without the law jurisprudence,
that is the promotion of the traditional justice systems as critical pillars to access to justice to
the majority of our people, and reflecting widely on what is justice that I appreciate what Judge
Shaikh Amin pioneered in his own way. Through his approach, I have come to understand that
justice must include a strategy of dialogue with the parties during the proceedings, and including
judgment. Like Judge Shaikh Amin attempted to achieve justice in an adversarial system, justice is
done when through the proceedings and judgment the judge is able to convince the loser that they
had had justice. The winner does not need convincing. This is not easy and that is why a judicial
culture that Shaikh Amin displayed helped him. He was persuasive and as I have said was modest,
humble, equitable, and fair and made litigants and their lawyers feel he was committed to a justice
system that was not always adversarial.
I know a lot of lawyers did not see it that way, because they immortalized in their offices, that
famous cartoon of a lawyer milking a cow, the subject of the dispute, while the parties pulled it
in different directions. The lawyer is depicted as particularly endowed with a big rear while the
litigants and the cow are not in their best shape. But then it does take time for a lot of people to see
injustice in the current comfort zones they work in while others like Judge Shaikh Amin did. His
approach should have convinced many of us the reality of our country and that has been that there
are various forums of justice and people decide where they will go for justice. Only 5% of Kenyans
come to our formal court system (and within that ADR is consistently becoming prominent).
Judge Shaikh Amin in his approach attempted to connect the formal and non-formal systems
of justice. He may have been Muslim, but his approach was consistent with the teachings of the
Bible, particularly Mathew 5:25 which says, Before you are dragged into court, make friends
with the person who has accused you of doing wrong. If you dont, you will be handed over to the
judge and then to the officer who will put you in jail. I promise you that you will not get out until
you have paid out the last penny you owe. Throughout his legal career, both at the bar and on the
Bench, Justice Amin distinguished himself as a true servant of the law and champion of access to
Justice.
We remember and honour the late Justice Amin for being Kenyas own harbinger of two very
important evidentiary and procedural standards - the Fruit of the Poisonous Tree evidentiary
principle and the principle of focusing on overriding objectives of justice in each case. In in
Republic v. Kuruma s/o Kaniu (1954), Justice Amin, then Defence Counsel for a client who had been
Issue 29, April - June 2015
charged with being in unlawful possession of ammunition, asserted a nuanced analysis of the
Exclusionary Principle, venturing that evidence obtained as a result of an illegal search was
inadmissible. The subsequent Judgments of both the Court of Appeal of Eastern Africa and
the Judicial Committee of the Privy Council in London disagreed with him. However, thirty
years after he made that submission in that trial, the very same legal principle that young
Barrister advanced came to form the basis of Section 78 of the Police and Criminal Evidence
Act of 1984 applicable in England and Wales. In this case, Attorney Shaikh Amin articulated
the principle and importance of observing the rule of law, even in times of war or conflict - a
principle now substantively elaborated in Article 238 of our Constitution. But we must also
remember and honour Shaikh Amin today as an advocate who lived for a cause bigger than
self and fees.
Few know about his deep commitment to the cause of independence in Kenya. Early in his
career, he defended 11 of the 84 accused persons in the Lari Massacre Trial after the 1952
State of Emergency declared by the Colonial Government in Kenya. His role and service
in defence of those freedom fighters in Kenya is acknowledged by Caroline Elkins in her
book Britains Gulag.Affected by the plight of its ordinary citizens who had suffered greatly
under the colonial regime, he involved himself in elective politics in the elections of 1956
and 1961, as the brutal end of the Empire in Kenya approached. He also became a legal
advisor to some of the political parties of the time. Several of the emerging African leaders
of the time were amongst his closest friends. Being beyond tribal loyalties, he was a friend to
all who were committed to the cause of freedom.
The transformation of our judicial culture is about values that Judge Shaikh Amin reflected
as a human being. Whether it is making sure tea is served to all staff, the equalization of
salaries, transparency and fairness in recruitment, promotions, training, travel, our pledge
to litigants and counselall these values were practiced by Judge Shaikh Amin. His vision of
justice captures all these attributes.
It befits his honor that this afternoon we have a tradition that reflects his values: equity
in the judicial hierarchy; and the values that he reflected that have been enshrined in our
progressive 2010 Constitution.
As I conclude, I remember that the Late Shaikh Amin always invited fellow Muslims and
judges to his home during this blessed season. Many judges visited Shaikh Amin during
almost all those Ramadhan seasons,- always at his invitation. In honour of the hospitality
of this great man, allow me, on behalf of the Judiciary of Kenya and the family of the Late
Shaikh Amin to welcome you to an Iftar reception in his honour hereafter.
May the Almighty Allah Rest the Soul of Judge Shaikh Amin in Eternal Peace! Shukran!
Law Reporting
Law Reporting
@mykenyalaw
Mykenyalaw
www.kenyalaw.org
Issue 29, April - June 2015
The only applicable sources of law when moving the Supreme Court were the
Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The
Appellate Jurisdiction Act was not applicable when moving the Supreme Court.
Neither was the Civil Procedure Code
The Court of Appeals directions, which required the IEBC to ensure that the registration
of Kenyans living in the diaspora as voters in all elective posts was realized progressively,
expressed the principle of incremental progress toward a full-scale attainment of the right
to vote...the orders were not a departure from the terms of the Constitution and were
orders which were aspirational and expressed the possibility of Kenyans in the diaspora
gaining the capacity to vote in all elective posts apart from the Presidency and referenda.
It was however, impractical to decree a specific mode of the exercise of diaspora voting
with respect to all elective posts as from any named date.
Three Year waiting period for parties who contract marriages with foreign nationals
to gain citizenship was reasonable and not discriminatory.The waiting period was
reasonable, justifiable and not unduly long, bearing in mind the importance of the purpose
of the limitation since if there was no such limitation, undesirable persons could enter the
country, contract a marriage for convenience and automatically become citizens which
would pose a real danger to the countrys security.
A judge appointed to any of the two specialized courts (ELC & ELRC) did not have
jurisdiction to sit in courts other than the one he/she was specifically appointed to.
That was so because section 2 of the Judicature Act had defined judge to mean; the
Chief Justice or a puisne judge appointed under section 61 of the old Constitution (the
equivalent of now article166 (5) of the current Constitution) or a judge of the Court
of Appeal appointed under Section 64 of the old Constitution (the equivalent of now
Article 166(4) of the current Constitution)
This judgment has raised important questions regarding the role of this Court in determining issues relating to the legislative process and we have determined that whereas
under article 165(3) (d) of the Constitution as read with articles 22(1) and 23(1), the High
Court has wide interpretative powers donated by the Constitution, it must be hesitant to
interfere with the legislative process except in the clearest of cases.The role of the media
and the need for discipline, self regulation and care in the publication of sensitive stories
has also come to the fore. Although we have upheld the objections to certain Sections of
SLAA that infringe on the free press, the media also ought to know that the issues raised
in SLAA are not idle.
The Board denied the petitioners application to form an association by denying the
names proposed for registration because the names represented groups whose interests
the Board took the view should not be accorded the right to associate on the same level as
others. However, in a representative democracy, and by the very act of adopting and accepting the Constitution, the State was restricted from determining which convictions and
moral judgments were tolerableThe right to associate was a right that was guaranteed
and applied to everyone. It did not matter if the views of certain groups were unpopular
or unacceptable to persons outside those groups...
Issue
29, April
- JuneSaid
2015
What
they
PRODUCTS
8
EDITION
JUN. 2011
LAWS OF KENYA
www.kenyalaw.org
PRODUCT
STA
TATUS
COSTS
Available
4,500
Available
4,500
Available
3,000
Available
4,500
Available
4,500
Available
4,500
Available
4,500
Available
5,000
Available
3,000
Available
3,000
Available
4,500
Available
Available
2,500
3,000
Available
7,200
Available
7,200
Available
4,500
Available
7,200
Available
7,200
Available
7,200
Available
1,500
Available
1,500
Available
Free by email
subscription
Bench Bulletin
Available
Free
Always Available
Free
www.kenyalaw.org
Law Reporting
Law Reporting
Introduction
SSR refers to the variety of constitutional, legal, and policy
changes required to infuse principles of accountability,
professionalism, and efficiency into all activities
within security sector. SSR involves the management,
provision and oversight of security for all persons and
the development of effective and accountable security
institutions on the basis of non-discrimination, full
respect for human rights and the rule of law. The
Judiciary, by ensuring fidelity to the values and principles
of the Constitution in all administrative and legislative
actions, is at the centre of SSR processes and is a critical
institution in the achievement of sustainable reforms.
In hearing and determining matters concerning the
constitutionality of the actions of security agencies,
statutes and regulations, and protecting the human rights
and fundamental freedoms of all persons, the Judiciary
lays the foundation for a strong democracy.
The issue of the balancing point between the conflicting
values and principles is not constant, but rather differs
from case to case and from issue to issue. There is no
blanket prescription. Any balance that is struck between
security and freedom will impose certain limitations
on boththe balance and compromise are the price of
democracy. Beyond the traditional role of adjudication of
disputes, the Judiciary must seek to constructively engage
with stakeholders and the public. It must also be alive and
responsive to emergent challenges and dynamics of an
increasingly interrelated regional and global context.
The Constitution of Kenya 2010 introduced significant
reforms into the security sector in Kenya altering
the institutional structuring to reflect the countrys
democratic principles of governance.
Primary actors in security sector
Art. 239 of the Constitution designates the Kenya Defence
Forces (KDF), the National Intelligence Service (NIS),
and the National Police Service (NPS) as Kenyas national
security organs under the supervision of the National
Security Council. Art. 238 defines national security and
provides the principles under which these organs shall
operate stating, inter alia, that national security shall be
pursued in compliance with the law and with the utmost
respect for the rule of law, democracy, human rights and
fundamental freedoms.
Despite being vested with the primary responsibility in
regard to national security, these national security organs
are part of a system of administration of justice. Ancillary
to these organs are the Prisons Department, the Probation
Hon. Lady Justice Kalpana Rawal, EBS, MGH, Deputy Chief Justice
and Vice President of the Supreme Court of Kenya
10
Law Reporting
Law Reporting
interviewed the candidates. The candidates nominated by
the JSC were then further vetted publicly by Parliament
before appointment by the President. Appointment
of judges involves a similar advertisement and public
interview process without the requirement for vetting by
Parliament. These measures are a stark departure from
the arbitrary and opaque appointment processes of the
past and have gone a long way towards rebuilding public
confidence in the institution.
Towards enhancing accessibility and accountability, the
Chief Justice in 2011 established the Office of the Judiciary
Ombudsperson (OJO). The core function of the office is
to receive and process complaints and grievances from
the public in regard to the Judiciary and its employees.
Since the office was established, it has received hundreds
of complaints from across the country. Every year the
Chief Justice produces a State of the Judiciary and the
Administration of Justice Report, an annual report to the
nation on the state of the Judiciary and the administration
of justice. The Report is gazetted and disseminated to
the public; it is also placed before the two Houses of
Parliament for debate and adoption. The annual report
is an important tool and resource towards ensuring that
the Judiciary remains accountable to the people of Kenya
from whom it derives and exercises its authority.
Community Service Orders (CSO) deserve particular
mention as they vividly illustrate the interdependence
between security actors, the need for collaborative
initiatives and robust community engagement strategies.
With many potential benefits including the rehabilitation
of non-serious offenders, decongestion of prisons and
promotion of reconciliation, the effective administration
and implementation of these orders requires close
coordination and corporation between the Probation and
Aftercare services, the National Police Service, the Kenya
Prisons Service, the Judiciary and most importantly local
communities.
Case backlog remains a major challenge for the Judiciary
and, particularly in criminal matters. Addressing the issue
of case backlog is a priority area for judicial sector reform
and an issue alive to all judicial officers in achieving
the fair and expedient disposition of justice. The ongoing reform process is showing some concrete results;
however, though the backlog has decreased and the
rate of completion of cases has increased, the Judiciary
recognizes that more can be done. In 2013, the Hon. Chief
Justice launched the country wide Judiciary Service Week
during which 68 Judges concentrated solely on hearing
criminal appeals. The Judiciary must find strategies and
mechanisms to ensure that justice is dispensed for all
persons fairly and promptly.
An important aspect of sustainability is ensuring that
institutions are dynamic and responsive to current
and emerging security challenges. Institutions ought
to be constantly evaluating and improving both the
intellectual and programmatic aspects of their strategies
and developing their capacity to effectively and efficiently
11
12
Law Reporting
Law Reporting
contributed to the rehabilitation of the court in Shanzu
to enable the High Court in Mombasa to more efficiently
try piracy suspects. Further, UNODC has assisted in the
training of judicial officers; facilitated the attendance of
witnesses from overseas to give evidence at piracy trials;
where requested, provided defence counsel for piracy
suspects; interpretation and transcription facilities;
improved IT and video link equipment; and the general
enhancement of court infrastructure. Further, to address
this security challenge, the Kenyan state has extended the
jurisdiction of the courts to prosecute crimes committed outside
the countrys territorial waters.
An even more collaborative response is necessary in
order to deal with cross-border crimes. Various regional
bodies have been established, such as the Eastern African
Police Chiefs Organisation, however more needs to be
done especially in regard to criminal and penal laws and
the cooperation between municipal and regional juridical
structures to enhance harmonisation and cooperation
across the region. In the spirit of regional integration,
benchmarking, knowledge and experience exchange,
the Judiciary is ready and willing to share our reform
experience with our neighbours. Sustainable reforms
require an appreciation of increasingly important
regional and global dynamics and institutions equipped
to respond to the challenges these raise as well as harness
potential opportunities.
Finally, the violence against women degrades and defaces
the country and those who inhabit that country; Kenya is
not an exception to this. Amongst other vulnerable groups,
the security of women in Kenya deserves immediate and
urgent attention. A number of recent incidents highlight
the psyche amongst security actors in regard to crimes
against women. In 2013, protests erupted after the police
that an appropriate punishment for six young men who
had gang-raped and left for dead a 16-year-old girl was
to cut the grass in front of the police station and provide
the victim with some money for cheap painkillers. This
month, after the assault on women in public areas for
alleged immoral dressing, the Deputy President was
forced to intervene and order investigations into the
incidents and arrest of the perpetrators. The response of
security actors to these incidents illustrates an express and
tacit deference amongst those within these institutions to
an enduring general attitude that attaches subordinate
status to offences against women, particularly sexual
offences. There are however encouraging developments
in the justice system towards redressing and changing the
status quo.
These are positive developments in legislation and
jurisprudence towards enhancing the security of women
in Kenya. Civic education and a fundamental shift in
attitude within security institutions are also important.
The Judiciary, in line with pillar two of its Transformation
Framework
on
transformative
leadership
and
organisational culture, has taken steps to ensure that all
judiciary staff are sensitised, trained and informed in this
13
14
Feature Case
15
Judges appointed to the specialized courts lack jurisdiction to determine matters reserved for the High Court
Article 165(3) (a) left no doubt that only the High Court had unlimited original jurisdiction in criminal and civil matters save those reserved for the two
special courts. Nowhere was it provided under the Industrial Court Act or the Environment and Land Court Act that those two courts could have jurisdiction
to deal with criminal matters other than those matters reserved for the specialized courts. If there had been such an intention, nothing would have been easier
than specifically stating so. They too therefore did not have jurisdiction to deal with matters reserved specifically for the High Court and the reasons for that were
obvious.
Karisa Chengo & 2 others v Republic
Court of Appeal at Malindi
Criminal Appeal No. 44, 45 & 76 of 2014
H M Okwengu, A Makhandia & F Sichale, JJA
May 8, 2015
The Court of Appeal has held that a judge appointed to any of the two specialised courts (Environment & Land Court-ELC and the
Employment & Labour Relations Court-ELRC) do not have jurisdiction to sit in courts other than the one he/she was specifically
appointed to. The Court of Appeal made the ruling clearing controversy on the issue. There have been two schools of thought that had
been the source of the great controversy which the Court of Appeal sought to clear. The first school of thought argues that the judges
of the three courts (High Court, Environment & Land Court and the Employment & Labour Relations Court) are of equal status, but
that the judge of one court cannot be a judge in any other court. In other words, if one were a judge of the High Court, he/she could
not sit over a matter in the ELRC or the ELC, and similarly if one were a judge of the ELRC or ELC, he/she could not sit as a judge of
the High Court, unless the judge was specifically appointed by the appointing authority, which is the President, to sit in another court.
The opposing school of thought is that, so long as a person has been appointed judge, he/she can sit in any of the three courts at the
discretion of the Chief Justice or Judicial Service Commission.
The appellants before the court had been charged in various magistrates courts with the capital offences of robbery with violence
contrary to section 296(2) of the Penal Code. They all pleaded not guilty and soon thereafter, their trials ensued. Subsequent thereto they
were all convicted and sentenced to death. They thereafter lodged appeals to the High Court. Meoli, J., a Judge of the High Court and
Angote, J. a Judge appointed to the ELC, a court with the equal status as the High Court jointly presided over the appeals. The appeals
were all dismissed, hence the instant appeals to the Court of Appeal.
In their appeals to the Court of Appeal, the appellants raised various grounds of appeal. However the two common grounds raised
were that the proceedings before the High Court as presided over by Meoli and Angote, JJ., were a nullity for want of jurisdiction and
that the State having failed to provide each of the appellants with legal counsel as per article 50(2)(h) of the Constitution, violated their
constitutional rights thus rendering the proceedings a nullity again.
While arriving at its decision, the Court of Appeal noted that the jurisdiction of the High Court as established under article 165 of the
Constitution was limited in two fronts. First, it could not exercise jurisdiction on matters reserved for the Supreme Court and matters
falling within the jurisdiction of the two courts contemplated in article 162(2). According to the court, it was clear that the High Court
no longer had original and unlimited jurisdiction in all matters as it used to have under the repealed Constitution. It could not deal
with matters set out under section 12 of the ELRC Act and section 13 of the ELC Act. Conversely, the court opined that the courts
contemplated in article 162(2) of the Constitution could not deal with matters reserved for the High Court.
The court observed that article 162(2) of the Constitution of Kenya, 2010 provided that; Parliament shall establish Courts with the status of the
High Court to hear and determine disputes relating to By using the words with the status of the High Court it was clear that the High Court was
not higher in hierarchy than the ELRC and ELC; they were courts of equal rank. By being of equal status, the High Court therefore did
not have the jurisdiction to superintend, supervise, direct, guide, shepherd and/or review the mistakes, real or perceived, of the ELRC
and ELC administratively or judiciously as was the case in the past. The converse equally applied, the court affirmed. At the end of the
day ELRC and ELC were not the High Court and vice versa.
16
It was however noted that emphasis was required that status was not the same thing as jurisdiction though the Constitution did not define
the word status. The intentions of the framers of the Constitution in that regard were obvious given the choice of the words they used;
that the three courts (High Court, ELRC and ELC) were of the same juridical hierarchy and therefore were of equal footing and standing.
That simply meant that the ELRC and ELC exercised the same powers as the High Court in performance of its judicial function, in its
specialised jurisdiction but they were not the High Court.
The court observed that it was the intention of the drafters of the Constitution to give the ELRC and ELC independence from the High
Court. That independence was essential to the role of the Courts as specialized courts charged with the responsibility of developing
coherent and evolving labour relations, environment and land jurisprudence. Looking at the provisions of section 359(1) of the Criminal
Procedure Code, the High Court was the only court with jurisdiction to hear and determine criminal appeals. Further, article 165(3)(a)
left no doubt that only the High Court had unlimited original jurisdiction in criminal and civil matters save those reserved for the two
special courts. Nowhere was it provided under the Industrial Court Act or the Environment and Land Court Act that those two courts
could have jurisdiction to deal with criminal matters other than those matters reserved for the specialized courts. If there had been such
an intention, nothing would have been easier than specifically stating so. They too therefore did not have jurisdiction to deal with matters
reserved specifically for the High Court and the reasons for that were obvious.
The court further noted that the Constitution provided for the mode of appointment of judges and their qualifications. It was within the
mandate of the Judicial Service Commission as provided for under Article 172(1) (a) of the Constitution to recommend to the President
the appointment of judges to preside over the said courts. According to the court, it was the court that a judge was appointed to, that
determined the kind of jurisdiction that judge was seized of.
The court opined that a judge appointed to any of the two specialized courts did not have jurisdiction to sit in courts other than the one
he/she was specifically appointed to. That was so because section 2 of the Judicature Act had defined judge to mean; the Chief Justice
or a puisne judge appointed under section 61 of the old Constitution (the equivalent of now article 166(5) of the current Constitution) or
a judge of the Court of Appeal appointed under section 64 of the old Constitution (the equivalent of now Article 166(4) of the current
Constitution). Notably, both the Constitution and the Act were silent with regard to a judge appointed in the two specialized Superior
Courts. Article 166(2) of the Constitution provided for the qualifications that one had to be appointed a judge of a Superior Court by
the President.
According to the Court, the law envisaged that the judges of the two specialized courts had to be different from judges of the High
Court in terms of experience and specialization, with different jurisdictions but the same status. When the vacancies for appointment of
judges for the courts were advertised it was left to an applicant to elect and apply to be a judge for the specific court he aspired to join.
Having elected that his future lay in ELRC or ELC, it would not have been desirable for such a judge to be forced into the High Court
to preside over criminal appeals.
The court further noted that once a judge was appointed, he took the oath of office to the specific court he had been appointed to. He is
also given an appointment letter specifying that he has been appointed as a judge of; the Supreme Court, the Court of Appeal, the High
Court, ELRC or ELC. Having been so appointed, it required no gainsaying that a judge could only exercise the jurisdiction conferred
to the court he was so appointed. In that regard, Angote, J. was specifically appointed a judge of the ELC and it was in that court and
that court alone that his jurisdiction lay. Having been so appointed by the President, the Chief Justice or indeed any other entity could
not lawfully move him to hear matters reserved for the High Court. The converse was again true, judges appointed to the High Court
and ELRC had no constitutional and statutory mandate to deal with ELC matters. Indeed, the Constitution expressly prohibited the
High Court, (which could only be constituted by a judge appointed to that court), from hearing matters to do with environment, land
and employment. The purported appointment of judges to do that which the Constitution prohibits was therefore inconsistent with
the Constitution. it then followed that Angote, J. having been appointed as a judge of the ELC could only perform the functions and
duties of the ELC and could not purport to discharge the functions and duties of the High Court because that was not the office or the
court to which he was appointed. One could not be appointed a judge nor could a Judge be appointed without portfolio. A judge was
appointed to a particular court and given that appointment and subsequent swearing in to that court, that judge could only perform the
duties of that court.
The court affirmed that the Chief Justice had powers to transfer judges within the courts they were appointed, create divisions for
administrative purposes, issue practice directions to control the running of courts. However, the court noted that he did not have the
powers to deploy and empanel judges to sit and preside over matters reserved for the courts they were not appointed to. The act of the
Chief Justice in appointing judges from the two specialized courts to hear matters specifically reserved for the High Court was conferring
jurisdiction on those judges through Judicial craft and innovation; the very vice that the Supreme Court warned against.
On the issue of the right to legal representation the court observed that the respective records showed that the appellants were never
inhibited at all in the prosecution of their cases during the trial. They actively participated in their trials and subjected to intense crossexamination of the witnesses availed by the prosecution. Therefore, no substantial injustice occasioned to the appellants by the States
failure to accord them legal representation. The court in conclusion allowed the appeal and ordered for a retrial.
17
The High Court has concurrent and or coordinate jurisdiction with the specialized courts (ELC & ELRC) on matters
touching on the Constitution
Patrick Musimba V National Land Commission & 4 Others
Petition No. 613 Of 2014
High Court of Kenya at Nairobi
I. Lenaola M. Ngugi G. V. Odunga L. Achode J. L. Onguto
June 5, 2015
Following the decision of the Court of Appeal, the High Court determined almost a similar issue. The main petition in the High Court
in Patrick Musimba V National Land Commission & 4 Others, Petition No. 613 Of 2014 was seeking to challenge the manner
in which compulsory acquisition of land had been conducted in Kibwezi Constituency and then secondly to challenge the process of
the Environmental Impact Assessment (EIA) for the construction of the Standard Gauge Railway (SGR). A preliminary objection was
raised by the respondents challenging the jurisdiction of the court on the ground that the court empowered to hear such matters was the
Environment and Land Court (ELC) established under the Environment and Land Court Act (Cap 12A) (the ELC Act) as read together
with article 162 of the Constitution. It was submitted that both Articles 162 and 165 of the Constitution limited the jurisdiction of the
High Court. It was argued that the presiding judicial officers empanelled by the Chief Justice were not qualified to handle the Petition as
they had not been appointed as ELC Judges. It was further argued that the jurisdiction of the court could only flow from the appointment
of the judge. According to the counsel, the bench as constituted was not constitutionally compliant.
The court held that both the High Court and the ELC Court had a concurrent and or coordinate jurisdiction and could determine
constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limited the
High Courts jurisdiction in that respects. The ELC when dealing with disputes concerning the environment and land could also deal with
claims of breaches of fundamental rights touching on the subject at hand. In matters Constitution the ELC had jurisdiction not just when
it involved clean and healthy environment but also land.
Though the High Court affirmed that it was bound by the Court of Appeals decision in Karisa Chengo & 2 others v Republic
pursuant to the well-known curial hierarchical principle of precedent, even if it were to hold the view that the Court of Appeals decision
was erroneous, it however sought to distinguish facts of Karisa Chengo & 2 others v Republic from those of the case before the High
Court. First, in Karisa Chengo & 2 others v Republic, the jurisdiction in question involved the exercise of Criminal jurisdiction which
was exclusive to the High Court and not the exercise of constitutional jurisdiction which was coordinate and or concurrent amongst the
three courts namely the ELC, the ELRC and the High Court. Secondly, Karisa Chengo & 2 others v Republic involved constitution
of a bench under section 359 of the Criminal Procedure Code; while at the present case it was an empanelment of a bench under article
165(4) of the Constitution.
The court observed that for purposes of article 165(4) judges appointed under the Constitution were those appointed to the High Court
and courts of even status. That article of the Constitution did not distinguish between judges. Indeed, article 161(1) of the Constitution
made a case for the collectivity of judges of the superior court. Flowing from the reasoning in Karisa Chengo & 2 others v Republic
case that judges as recruited were specialized in various fields, the Chief Justice could be constrained to consider a judges special field
before assigning him or her to the special bench so certified to consider a substantial question of law.
The court noted that article 165(4) of the Constitution created two circumstances. First is the certification by the Court that the matter
raises a substantial question of law under clause 3(b) or (d) of the Constitution. Thereafter the matter moves to the next level where the
Chief Justice assigned the hearing of the matter to an uneven number of Judges. The clause did not state that the judges were restricted
to High Court Judges. The Constitution clearly empowered the Chief Justice to assign Judges to hear the matter not to assign the Court
to hear the matter and he was at liberty to assign any Judge, as he found appropriate, that duty.
The High Court concluded that the ELC and the High Court had a concurrent and or coordinate jurisdiction on the matters raised in
the petition. The Chief Justice could thus have appointed either ELC Judges or High Court Judges or a mixture of both. He could have
appointed three or seven. He settled for five all from the High Court. Nothing indeed stopped the Chief Justice from creating a triangular
jurisdictional relationship in constitutional matters when he acted under article 165 (4), the court held.
18
Ochiel J Dudley*
1. Introduction
The purpose of this article is to examine the current status
of the law of contempt in Kenya. The essay explores the
concept and origin of contempt and examines the doctrine
under the Constitution of Kenya, 2010. It concludes by
suggesting areas for legislative intervention to bring
about the desired certainty, uniformity and predictability
in any law.
2. Background to the Koinange-Gachoka Case
In the month of June 2015, the Chief Magistrates Court at
Nairobi convicted Jeff Koinange (media personality) and
Tony Gachoka (political activist) for contempt of court.
The duo allegedly defied an interim injunction and carried
discussions on an ongoing case on the Jeff Koinange Live
JKLive talk show hosted by Mr Koinange. For their
trouble, the two were respectively convicted of the offence
of contempt of court and sentenced to imprisonment or
in the alternative to a fine of Shs 2 million.
The case arose out of a discussion on March 12, 2015,
when Mr Koinange hosted Mr Gachoka in his television
show, JKLive, during which the two discussed the Anglo
Leasing scandal in detail. As a result, on March 20, the
plaintiffs in the case filed a civil suit in the subordinate
court, alleging that defamatory words had been uttered
against them by linking them to the Anglo Leasing
scandal. The defendants in the suit included Mr Koinange
and Mr Gachoka. Apparently, in spite of the order Mr
Koinange invited Mr Gachoka on his talk show on April
1, 2015 where they repeated the defamatory allegations.
Mr Koinange and Mr Gachoka were summoned and
eventually arrested for failing to honour court summons.
The current conviction, which has been temporarily
stayed by the High Court, is a deja vu of sorts for Mr
Gachoka. In 1999 Mr Gachoka as editor and publisher
of The Post on Sunday was convicted of contempt
and sentenced by a seven-judge Court of Appeal bench
in Republic v Gachoka1. Mr Gachoka had published an
article Chesoni implicated in Goldenberg cover up:
An expose of judicial corruption in Kenya in which he
made allegations of high level corruption in the Kenyan
judiciary alleging that the then Chief Justice Zaccheus
Chesoni had received Shs 30 Million bribe to ensure that
the courts ruled in favour of one of the litigants in a case
concerning the ownership of the Kenya Duty Free shops.
The Attorney General instituted contempt of court
proceedings against him and his publication on the
Laws of Kenya
Laws of Kenya
concept from the common law ideals of supremacy and
independence of the judiciary.8 The concept has become
so widespread that it has been described as the Proteus
of the legal world, assuming an almost infinite diversity
of forms.9
The justification of the contempt law is that in
democratic states like Kenya, citizens rely on the courts
for the impartial decision of disputes as to legal rights
and obligations. Once a dispute has been submitted to a
court of law, citizens should be able to rely on the ability
of the court to decide it impartially, independently and
according to law.10 As a result, any activity which offends
the dignity and authority of judicial tribunals affects the
fair administration of justice and therefore ought to be
punished.11
The Supreme Court of Kenya has in the case of Board
of Governors, Moi High School, Kabarak v Malcolm
Bell12 typified the power to punish for contempt as
one of the inherent powers of the court which include
such powers as enable the Court to regulate its internal
conduct, to safeguard itself against contemptuous or
disruptive intrusions from elsewhere, and to ensure
that its mode of discharge of duty is conscionable, fair
and just. These endowments enable a court to remain
standing, as a constitutional authority, and ensure the
courts internal mechanisms are functional. Without this
power, protection of citizens rights and freedoms would
be virtually impossible. Courts of law would be reduced
to futile institutions spewing forth orders in vain.13
In this regard, the law of contempt is essentially
concerned with the maintenance of public confidence
in the administration of justice by the courts of law. The
law does not exist to protect the personal dignity of the
judiciary nor the private rights of parties or litigants since
contempt challenges the fundamental supremacy of the
law and not just the dignity of the court.14 Obedience of
court orders is therefore a primal part for the sustenance
of judicial authority and dignity. Disobedience of court
orders on the other hand not only undermines the very
foundation of the rule of law,15 but also erodes the dignity
and authority of the courts.16
It is justice itself that is flouted by contempt of court,
not the individual court or judge who is attempting to
administer it.17 The principle has been captured locally by
8
Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court
Finding the Limit, 2 NUJS L. Rev. (2009) at 56
9
J. Moskovitz, Contempt of Injunctions, Civil and Criminal (1943)
43 Col. LR 780.
10
Shah v Shah [1989] KLR 220
11
Times Newspaper ibid
12
[2013] eKLR
13
Akber Abdullah Kassam Esmail v Equip Agencies Ltd [2014] eKLR
14
Johnson v Grant [1923] SC 789 at 790
15
Abbeybarn Limited v Infinity Gemstones Ltd [2000] KLR 248.
16
Commercial Bank of Africa Limited v Ndirangu [1992] KLR 30
17
See Teachers Service Commission v Kenya National Union of
Teachers [2013] eKLR; Also see African Management Communication
19
20
Laws of Kenya
Laws of Kenya
The legislative prescription foreseen in the introductory
phrase to the Section 63 has been made through Order
40 Rule 3, of the Civil Procedure Rules, 2010. The Rule
provides that in cases of disobedience, or of breach of any
such terms, the court granting an injunction may order
the property of the person guilty of such disobedience or
breach to be attached, and may also order such person to
be detained in prison for a term not exceeding six months
unless in the meantime the court directs his release. All
applications under Order 40 Rule 3 are to be made by
notice of motion within the suit.
Court is defined to mean the High Court or a subordinate
court, acting in the exercise of its civil jurisdiction. It
emerges therefore, that a subordinate court exercising
its civil jurisdiction can punish disobedience contempt
flowing from temporary injunctions. Accordingly,
subordinate courts have the power to convict for civil
contempt arising from the disobedience of temporary
injunctions. The court can convict the contemnor to
prison or order the sale of their property. This, it seems,
was the kind of power the court exercised in convicting
Koinange and Gachoka. It can be said the subordinate
court was rightly within its jurisdiction in convicting the
duo for contempt of court.
What is not clear from the law is whether the option
of a fine was available to the court. There is no express
indication of the power of the court to order the
payment of a fine. Nevertheless, the discretionary
phrase unless in the meantime the court directs his
release ought to be interpreted to give the court
the power to attach conditions to the release of the
contemnor. The option of a fine is one possible
condition.
However, any criminal contempt or civil contempt
arising from circumstances other than a temporary
injunction the subordinate courts can only be punished
by the High Court. This interpretation is consistent with
the provisions of section 5 of the Judicature Act, Cap 21
in which the power of to punish for contempt is extended
to upholding the authority and dignity of subordinate
courts.
Aside of these two statutes, other laws provide for the
punishment of contempt by other courts. Section 28(4) of
the Supreme Court Act, 2011 gives the Supreme Court the
power to punish for contempt. Article 162(2) provides for
the establishment of specialist courts with the status of
the High Court to hear and determine disputes relating to
employment and labour relations on one hand and on the
other hand the environment, use, occupation and title to
land. It is however a point for discussion, whether these
specialist courts established under the Constitution, and
which are of the same status as the High Court, have
similar powers to those of the High Court to punish for
contempt.
21
Ibid
22
Laws of Kenya
Laws of Kenya
23
24
Laws of Kenya
Laws of Kenya
25
26
Introduction
Kenya, 2010
Previously in our laws, the mother was deemed to have
parental responsibility over the child at first instance.10
Section 24 (3) of the Children Act, 2001 provides that
where the childs father and mother were not married to
each other at the time of the childs birth and have not
subsequently married each other, the mother shall have
parental responsibility at the first instance. Under Section
25, the father only acquires parental responsibility for the
child if he applies to the court for it, acquire it through an
agreement with the mother, has accepted paternity or has
maintained the child or lived with the child for 12 months.
This shows that the father does not automatically acquire
the responsibility towards the child.11 In many cases,
such children are not maintained by their fathers because
of the lack of parental responsibility on the part of the
fathers hence this puts such children in a lot of hardships.
10
Action for Children in Kenya. Support and Maintenance of a child born out of wedlock and the legal position in Kenya. Accessed at www. actionchildren.or.ke on 6th April, 2015.
11
Ibid.
ing-up/a-short-guide-to-parental-responsibility/:Accessed on
12
Hon. Anthony Mwicigi, Principal Magistrate, Milimani
3oth March, 2015.
Law Courts. A Discussion on Parental Responsibility and the
3
Ibid.
Constitution. A paper presented at the Law Society of Kenya
CLE Seminar in Nyeri. Accessed on www.lsk.or.ke on 6th April,
4
http://www.cmoptions.org/en/maintenance/:Accessed
2015.
on 3oth March, 2015.
13
Action for Children in Kenya. Support and Mainte5
Ibid.
nance of a child born out of wedlock and the legal position in Ke6
Ibid.
nya. Accessed at www. actionchildren.or.ke on 6th April, 2015.
7
Ibid.
14
See Zak & Another vs. The Attorney General & Another
8
Ibid.
(2013)eKLR. Accessed at www.kenyalaw.org/caselaw/cases/
9
Children Act, 200, Section 2.
view/89114 on 6th April, 2015.
Taita Taveta Women Representative, Joyce W. Lay being presented with Kenya Laws publications by
Longet Terer- Ag. Chief Executive Officer
Laws of Kenya
Laws of Kenya
Act and section 25.15 She argued that these sections
infringed Article 27(1) of the Constitution which states
that every person is equal before the law and has a
right to equal protection and equal benefit of the law.
In line with that argument, Mumbi Ngugi J stated that
it was unconstitutional for the Children Act to place the
responsibility of the children born outside marriage on
the mother only.16 In this regard, the provisions of section
90(a) and (e) of the Children Act were unconstitutional
considered alongside the provisions of section 24(3)
which places the responsibility of the child on the mother
at the first instance where the mother and the father are
not married.17
The judge then proceeded to find that in line with the
provisions of section 7 of the Sixth Schedule of the
Constitution, the Children Act must be read as imposing
parental responsibility on both biological parents,
whether they were married to each other or not, at the
time of the childs birth. The court therefore found the
above mentioned provisions of the Childrens Act to be
unconstitutional hence null and void.18 The Court further
emphasised the fact that; any law including customary
law that is inconsistent with the Constitution is void to
the extent of inconsistency and thus, such provisions
hindering the best interest principle on any child to be
achieved should be struck out.19
27
28
current law and the old law as it was under the Human
Fertilisation and Embryology Act 1991.
Under this statute, the mother who gives birth to the child
is always the mother of the child. Whether the biological
father is legally the father of the child and whether the
mothers male or female partner counts as the other
parent of the child, depends on the following: whether
the insemination took place informally under a private
arrangement; or at a licensed clinic in the UK; whether
or not the mother is married or in a same-sex civil
partnership; and whether the mothers partner agreed to
the mother being inseminated or to the IVF treatment.
The Constitutional provisions on children and the
Children Act do not directly address or contemplate
this scenario of IVF. However, in ZAK v MA (2013)
eKLR at para 35, Mumbi J stated, Looked at through
the prism of the Constitution, particularly Article 53(2)
which requires that the best interests of the child be the
paramount consideration in any matter concerning the
child, I believe that a step-parent in such circumstances
must be held to have an obligation recognised in law to
exercise parental responsibility as defined in section 23
of the Children Act over his or her step-child. It would be
an affront to morality and the values of the Constitution
for a party who has had a relationship with a child akin
to that of a father or mother to disclaim all responsibility
and duty to maintain the child when he or she falls out
with the parent of the child. Such responsibility would,
however, depend on the circumstances of each case, and
the relationship that is shown to have existed between the
person in question and the children in respect of whom he
or she is sought to be charged with parental responsibility
for.22
What this means is that even when the man is not
the parent, but the fact that he and the mother of the
child are married, he cannot entirely disclaim parental
responsibility.
Conclusion
It is now established that in any matter before courts
concerning the child on parental responsibility and child
maintenance, the best interest principle is the key towards
securing the care, protection and maintenance of the
child. Parental responsibility is Constitutional and every
child is entitled to the care, protection and maintenance of
both parents equally, whether they are married or not. It
is also an established law that not only biological parents
have parental responsibility but any person under whose
care and custody of the child is provided can exercise
such responsibility.
In a situation such as IVF, though such a case has not yet
come before any Kenyan Court, the court should take
into consideration the best interests of the child and the
relationship that existed between the child and the stepparent against whom orders of maintenance are sought
and the statutory provisions regulating the matters on
the care, custody and welfare of the child. Courts in
other jurisdictions have held that such a parent has an
obligation to provide financially for the child, even where
the child has reached the age of eighteen years.
Laws of Kenya
29
document.
Laws of Kenya
30
A)
BILLS
NATIONAL ASSEMBLY
Laws of Kenya
Laws of Kenya
for maximum agricultural weight to be carried by a worker to
prevent accidents. The Bill proposes to insert a new part VIA to
provide for the need for instructions and medical examinations
of workers, the use of technical equipment and packaging so as
to limit or facititate the manual transport of loads.
11. Two-Third Gender Rule Laws (Amendment) Bill, 2015
Kenya Gazette Supplement No. 52 (National Assembly Bills
No.20)
This Bill seeks to make amendments to the existing laws in order to give effect to Article 100 of the Constitution which requires Parliament to enact legislation to promote representation
of marginalized groups in Parliament. It contains proposed
amendments to the following laws: National Gender and Equality Commission Act (No.11 of 2011); Political Parties Act (No.l1
of 2011); Elections Act (No. 24 of 2011); Independent Electoral
and Boundaries Commission Act (No.9 of 2011) and County
Governments Act (No. 17 of 2012).
12. Controller of Budget Bill, 2015
Kenya Gazette Supplement No. 53 (National Assembly Bills
No.21)
The principal object of the Bill is to give effect to the provisions of Articles 228 and 252(1)(d) of the Constitution of Kenya regarding the functions of the Office of the Controller of
Budget. The Bill provides for the functions of the Controller
of Budget which, amongst others, will include authorization of
withdrawals from the Equalization Fund, Consolidated Fund,
County Revenue Funds and any other public fund which by an
Act of Parliament requires approval of the Controller of Budget
for withdrawal from that fund.
B) SENATE BILLS
1. Senior Citizens Care and Protection Bill, 2014
Kenya Gazette Supplement No. 165 (Senate Bills No. 43)
The principal object of the Bill is to give effect to Article 57 of
the Constitution on the right of older persons to fully participate in the affairs of society; pursue their personal development;
live in dignity and respect and be free from abuse; and receive
reasonable care and assistance from family and the State. It recognises the fact that for a long time, senior citizens, particularly
those who are unable to care for themselves, have often been
neglected and are unable to carry on living decent lives. The
Bill therefore provides the necessary legal framework for the
establishment of a system for the care and maintenance of senior
citizens.
31
He who decides a case without hearing the other side, though he decides justly, cannot be considered just.
Issue 29, April - June 2015
- Lucius Seneca
32
Laws of Kenya
This article presents a brief summation of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers a period between 1st
February, 2015 and 30th April, 2015. For more of this, visit www.kenyalaw.org
LEGISLATIVE
CITATION
SUPPLEMENT NUMBER
PREFACE
L.N. 15/2015.
33
10
11
22
These regulations establish the State Officers House Mortgage Scheme Fund whose objective and purpose shall be to
provide a loan scheme
for the purchase or development of property
by the State Officers.
The capital of the fund shall consist of the initial capital
of one billion shillings appropriated by Parliament in the
2014/2015 financial year and such other funds as may be
voted for the purposes of the Fund in subsequent financial
years.
37
These regulations offer guidance on free and compulsory education, alternative provisions of basic education,
trainings and continuing adult education, official school
hours, school rules, discipline procedures for students and
management of basic education institutions.
Where there is hunger, law is not regarded; and where law is not regarded, there will be hunger.
Laws of Kenya
- Benjamin Franklin
34
enya
Law
participated
in this years
annual International
Commission
of
Jurists (ICJ) Uwazi
Cup
tournament
which is an annual
football tournament
organized by the
International
Commission
of
Jurists (ICJ). The
event
brings
together
teams
drawn from the
various stakeholders
involved
in
the
administration
of justice, including judges and
magistrates, auctioneers, advocates, law
students, the police, parliamentarians,
human rights NGOs and media houses
from around the country.
This year, the Uwazi Cup Football
Tournament was held on Saturday,16th
May, 2015at the newly refurbished
Kasarani Complex Sports Centre under
the theme of The Role of Media in
Promoting Access to Information
and among the guests who graced
the occasion were the Chairman of
the
Constitution
Implementation
Commission (CIC) Mr. Charles
Nyachae and the Executive Director
of the International Commission of
Jurists, Mr George Kegoro.
The day started off on a tensed note for the Kenya Laws
Team having failed to make a great impact in the previous
recent tournaments but as the day progressed and with
constant hard work from the team and the unwavering
support from the cheering staff members, positive results
could be realized leading to the team winning the plate
cup.
35
*Kindly note that all deliveries out of Nairobi County shall attract a separate shipping charge.
mykenyalaw
@mykenyalaw
Mykenyalaw
HR
Department
National Council for Law Reporting (Kenya Law) - A service state corporation in the
Judiciary
36
SQAP
SQAP
37
All in all, the training was quite relevant for all the
participants who are in middle level management from
various departments and all the listed topics were
adequately covered. With proper implementation of
the skills and knowledge learnt, the participants will
definitely make a difference at the National Council for
Law Reporting (Kenya Law). It is our recommendation
that the organization should continue sponsoring
middle level managers for the supervisory skills training
especially at the Kenya School of Government, Nairobi
which exhibited very high level of professionalism.
38
Specific
IT
staff
may also
have technical allegiance to certain s y s t e m s
they are familiar with. So if a favored system is designated
for termination, there can be fear and bitterness because
that also potentially eliminates a particular technical skill
set.
2. Governance Compatibility?
Whenever IT systems from different companies must be
made to work with each other, the focus is on technical
systems compatibility. However, especially if youre in a
highly regulated industry like healthcare, insurance, or
finance, equal billing should be given to compatibility
of security and governance practices between the two
organizations.
I.C.T Department
I.C.T Department
due diligence on how cooperative that vendor is going to
be. Lack of vendor cooperation and responsiveness can
extend the time of a system migration or conversion for
weeks and even months.
7. Make disaster recovery provisions
Failover provisions must be made during system
migrations and conversions. But at the same time, its
important to be updating the long-term disaster recovery
plan to incorporate the addition of a new organization.
8. Secure systems and networks
With the addition of a new organization, there are also
new networks and network nodes to look after. One
of the greatest security exposures companies face postacquisition is ensuring that there are no unsecured
backdoors or open ports into corporate networks. This
39
40
enya
L a w
staff
participated in a major tree planting exercise at the
Nairobi National Park on Friday, June 26th 2015. The
initiative which was spearheaded by the Ag. CEO Mr.
Longet Terer saw 70 employees plant 250 trees at the
park, the only game park in the world located within a
city.
Kenya Law is aware of its obligation in the advancement
of society and has a mandate to care for the wellbeing
of one another and of the environment and to align its
processes, services and products with the attainment of
positive social outcomes.
The tree planting activity was indeed a great chance for
Kenya Law to work for a good cause. It was a key activity
of Kenya Laws corporate Social responsibilitys program.
The benefits of tree planting cannot be emphasized
enough. In recent years, our generous, tranquil Nairobi
National Park has experienced ever-increasing human
encroachment as the city outgrows itself. Its proximity to
the capital has exposed the Park and its rich ecosystem to
massive environmental risks.
It is for these reasons that Kenya Law partnered with the
Nairobi GreenLine Trust, a project that invites industries,
I.C.T Department
I.C.T Department
41
Greenline Forester Mr. Simon Waithaka (in a cream cap) addresses the
Kenya Law team at the Greenline secretariat June 26th 2015.
Acacia Kirkii
Acacia Mellifera
Acacia Polyacantha
Acacia Xanthophloea
Acacia Nilotica
Balanites Aegyptiaca
Croton Megalocarpus
Calodendron Capense
Dalbergia Melanoxylon
Olea Europea
Warbugia Ugandensis
Carissa
42
J.K. Ngarngar.
SPM-Nyando.
Thank you. The caseback service is wonderful. Keep up the good work.
Mburu.
Regards,
Hon. Munyekenye
David Wanjohi
RM, Garissa
DR-Eldoret
Christine Meoli,
Judge High Court
of Kenya,
Naivasha
Law Reporting
Law Reporting
43
ii.
iii.
iv.
v.
(b)
Cases
44
(c)
(d)
Rule 33(6)
Provides:
Where a document referred to in sub-rule (3) and (4)
is omitted from the record of appeal, the appellant
may within fifteen days of lodging the record of
appeal, without leave, include the document in a
supplementary record of appeal.
Rule 37(1)
Provides:
Where a party has lodged a notice of appeal but fails
to institute the appeal within the prescribed time,
the notice of Appeal shall be deemed to have been
withdrawn, and the Court may on its own motion or
on application by any party make such orders as may
be necessary.
Held:
1. The Judgment of the Court of Appeal was
delivered on November 21, 2013, and the
reasoning of the judgment issued on January 13,
2014 running through that Judgment, as those
had been reserved.
2. It was not a mandatory requirement for a record
of appeal from the Appellate Court to the Supreme
Court to include the complete Judgment of the
Court of Appeal. A certified Decree or Order of
the Appellate Court sufficed.
3. Considering Rule 33(6) of the Supreme Court
Rules, It followed that, with the Court of Appeal
Order of November 21, 2013, the applicant was in
a position to file a record of appeal. Such a record
would have been complete, with a certified Order
of the Court of Appeal. Having filed a notice
of appeal on December 2, 2013, the last day of
filing an appeal with an incomplete record of
appeal was January 1, 2014. The reasons having
been delivered on January 13, 2014 the applicant
could still have filed without leave those reasons,
as a missing document, by January 16, 2014.
There was no basis, therefore, for the applicants
contention that he could not have filed his appeal
out of time without the reasons of the Appellate
Courts decision.
4. The two avenues of the appellate jurisdiction
of the Supreme Court were distinct. Firstly, an
appraisal of the nature of an appeal as involving
a matter of constitutional interpretation or an
application signalling access to the Supreme
Court as of right. No form of authorization or
Issue 29, April - June 2015
45
Cases
Cases
46
The Appellate Jurisdiction Act is not applicable when moving the Supreme Court on
Appeal
Daniel Kimani Njihia v Francis Mwangi Kimani & another
Supreme Court of Kenya
Civil Application No 3 of 2014
PK Tunoi & M Ibrahim, SCJJ
May 27, 2015
Reported by Andrew Halonyere
Brief facts
The applicant filed an application seeking leave from
the Appellate Court to appeal to the Supreme Court
against the said Ruling. He urged that the intended appeal
involves a matter of general public importance, in that
it raises an important question of law as to whether the
Land Registrar can arbitrarily transfer land without the
consent of the registered owner.
The Court of Appeal held that the matter did not fall
within the category of a matter of general public
importance and therefore dismissed the application.
The applicant subsequently, filed an application to the
Supreme Court seeking inter-alia orders of review of the
Court of Appeals decision.
Issues
I.
II.
47
Brief facts
The Applicant made an application for a stay of execution
and a review of the Court of Appeals decision declining
to certify the appeal as one involving matters of general
public importance. The basis of the application was that
the Court of Appeal did not evaluate all the material before
it in reaching at its decision.
The matter concerned Gazette Notice No. 2996 of
1976 (Legal Notice No. 47 of 1976), which allowed for
compulsory acquisition of land for the development of
South Nyanza Sugar Scheme, and Gazette Notice No. 3737
of 1976 (Legal Notice N0. 47 of 1976), which allowed for
the expansion of Awendo Township within the sugar-belt.
The genesis of the matter was that the Respondents
filed a suit at the High Court concerning land that was
compulsorily acquired in 1976 for sugarcane farming but
was left unutilized. They sought orders for title deeds to
revert back to their original owners and for compensation
for any destroyed property. At the High Court, the
Respondents obtained the orders for reversion of titles to
the original owners and compensation.
The Appellant lodged an appeal at the Court of Appeal
against the High Court decision and the appeal was
dismissed. In response, the Appellant sought certification
from the Court of Appeal which would allow for a further
appeal to be made at the Supreme Court but the Court of
Appeal declined to grant certification on the basis that the
appeal did not raise matters of general public importance.
Issues
i.
Whether the constitutional threshold for the
certification of the intended appeal as a matter
which involved matters of general public
importance was met.
ii.
Whether under the circumstances, a review as
provided for in article 163(5) of the Constitution
of Kenya 2010, could be granted.
Appeal-appeal to the Supreme Court-certification that a matter
involved issues of general public interest-circumstances in which
certification which allowed for an appeal to be lodged at the
Supreme Court would be granted-Constitution of Kenya 2010,
article 163(4)(a) & 163(5).
Held
1. There were two issues canvassed at the Court
of Appeal, namely; whether land that had been
compulsorily acquired for a certain purpose, but
was not used for that purpose, ought to revert
to the persons from whom it was acquired
2.
3.
4.
5.
6.
7.
Application allowed.
Cases
48
Cases
Supreme Court upholds directions on the progressive realization of the right to vote for
Kenyans living in the diaspora for all elective posts
Independent Electoral & Boundaries Commission (IEBC) V New Vision Kenya (NVK Mageuzi) & 4 others
Petition 25 of 2014
Supreme Court of Kenya at Nairobi
K H Rawal, DCJ & VP, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Njoki, SCJJ
May 6, 2015
Reported by Beryl A Ikamari
Brief facts
The 1st to 4th Respondents had sought orders from the
High Court in relation to the rights of Kenyans living in
diaspora to vote and to seek elective office. Particularly,
they sought orders declaring that Kenyans in diaspora
who held dual citizenship were eligible to be registered
to vote and seek to be elected. They also sought orders
requiring the IEBC to provide voter registration and
voting mechanisms for Kenyans residing in the diaspora.
At the High Court the Petition was dismissed. On appeal,
the Court of Appeal granted orders to the effect that
dual citizens living in the diaspora were eligible to be
registered as voters and to vote and also directed the
IEBC to set up voter registration centers for Kenyans
living in the diaspora progressively. The IEBC appealed
against the Court of Appeal decision, at the Supreme
Court, on grounds that the orders granted went contrary
to existing legislation and were made without a holistic
interpretation of the Constitution.
Issues
i.
Whether orders directing the IEBC to provide
progressive voter registration for Kenyans living
in the diaspora to vote in all elective posts, were
inconsistent with the Constitution and legislative
provisions.
ii.
Whether the IEBC was not afforded an
opportunity to be heard on the issue of diaspora
voting for all elective posts before the Court of
Appeal decision was made.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-the right to
vote-the constitutionality of orders requiring the progressive
realization of the right to vote for Kenyans living in the
diaspora to vote in all elective posts-Constitution of Kenya
2010, articles 83(2), 94(1) & (5), 82(1)(e) & 88(5); Elections Act,
No 24 of 2011, section 109(1); Elections (Registration of Voters)
Regulations 2012, regulation 39.
Held
1. The right to vote was not an inalienable right but
was a right which was subject to limitations in a
manner and form permitted in article 24 of the
Constitution of Kenya 2010. Therefore, the right
to vote was not an absolute right.
2. The Court of Appeals directions, which required
the IEBC to ensure that the registration of
Kenyans living in the diaspora as voters in
all elective posts was realized progressively,
expressed the principle of incremental progress
toward a full-scale attainment of the right to vote.
3. The Court of Appeals orders were not a departure
from the terms of the Constitution and were
orders which were aspirational and expressed the
possibility of Kenyans in the diaspora gaining the
capacity to vote in all elective posts apart from
the Presidency and referenda. It was however,
impractical to decree a specific mode of the
exercise of diaspora voting with respect to all
elective posts as from any named date.
4. The IEBC would be required to put in place
mechanisms to ensure that voting at every
election was simplified, transparent and took
into account the needs of persons or groups
with special needs, such as Kenyans living in the
diaspora.
Appeal dismissed
49
Brief Facts:
The 1st respondent filed for divorce at the High Court
against the appellant and consequently the marriage
was dissolved. The High Court ruled in favour of the 1st
respondent awarding a lump sum of Kshs. 10,000,000/= to
the 1st respondent for maintenance; Kshs. 10,000,000/= to
the 3rd respondent for her schooling and upkeep; transfer
of properties owned by a limited liability company to the
1st respondent for her benefit and that of the children; that
the 1st respondent was entitled to 50% ownership of the
properties registered in the appellants name; that Kshs.
80,000,000/= to be paid to the 1st respondent in lieu of her
interest in the limited liability companies where she had
interests together with the appellant; and the costs for
three advocates and interest in the suits filed (the divorce
cause and the originating summons applications). The
appellant thus filed the instant appeal.
Issues:
i. What was the jurisdiction and principles of the
family court in dealing with an application under
section 17 of the Married Womens Property Act,
1882?
ii. Whether the family court has jurisdiction to
grant orders in respect of properties registered in
the name of a limited liability company in which
the spouses were shareholders?
iii. Whether the court could grant lump sums for
maintenance of a divorced spouse and for a
minors schooling and upkeep?
Married Womens Property Act, 1882, section 17:
In any question between husband and wife
as to the title to or possession of property,
either party may apply by summons or
otherwise in a summary way to any judge of
the High Court of justice and the judge
.. may make such order with respect to the
property in dispute, and to the costs of and
consequent on the application as he thinks
fit.
Family law matrimonial property appeal against division
Cases
Cases
50
Three Year waiting period for parties who contract marriages with foreign nationals to
gain citizenship was reasonable and not discriminatory
Khatija Ramtula Nur Mohamed & another v Minister for Citizenship and Immigration & 2 others
Civil Appeal 51 of 2013
Court of Appeal at Mombasa
Okwengu H M, Makhandia A & Sichale F, ( JJA)
February 26, 2015
Reported by Phoebe Ida Ayaya
Brief facts
The 1 appellant, a Kenyan and the 2 appellant, a
Pakistani contracted a marriage under Islamic Law. The
2nd appellant came to Kenya under an Alien Certificate
issued pursuant to the Immigration Act. Whilst in Kenya,
the 2nd appellant with others incorporated a company,
but due to differences in the company, his co-directors
hatched a scheme to have him deported by detaining his
passport and so he was unable to renew his visa when
it expired. The two appellants filed a constitutional
petition seeking a declaration that the Citizenship and
Immigration Act was unconstitutional to the extent
that it discriminated upon them from getting automatic
st
nd
51
(a) ...
(b) ...
(c) ...
(d) The spouses of Kenyan citizen married for at least
three years
Held
1. Although article 45 of the Constitution of Kenya,
2010 placed a premium on the family unit, the
Court was alive to the fact that whatever rights
the Constitution bestowed, there were also
limitations and/or qualifications in the same
Constitution for the full attainment of such rights.
To this end, section 37(d) of the Citizenship and
Immigration Act that placed a fetter on automatic
acquisition of citizenship was in tandem with
article 24(1) of the Constitution of Kenya, 2010.
2. The provision of a three (3) year waiting period
was reasonable, justifiable and not unduly long,
bearing in mind the importance of the purpose
of the limitation since, if there was no such
limitation, undesirable persons could enter the
country, contract a marriage for convenience and
automatically become citizens which would pose
a real danger to the countrys security.
3. In addition, the contention that the position
was discriminatory was untenable because
the provision affected the Kenyan spouse as
well as the foreign spouse not the foreign
spouse alone. Therefore, the limitation was not
unconstitutional.
Appeal dismissed
Cases
Cases
52
Court of appeal departs from its own decisions on the issue of defective charge sheets
based on the phrase jointly charged
Isaac Nyoro Kimita & another v R
Court of Appeal at Nairobi
Criminal Appeal No. 187 of 2009
D.K.Maraga, J.W.Mwera & J. Mohammed, JJ.A
November 14, 2014
Reported by Emma Kinya Mwobobia
Issues:
i.
ii.
iii.
53
Brief facts
Petition No.281 of 2014 was about the constitutionality
or otherwise of Section 43(5) of the Elections Act, 2011
which provided that a public officer must resign six
months before a by- election date if he wished to contest
such an election. Further, that the said law unfairly barred
such an officer from lawfully contesting for a position in a
by-election because it was practically impossible to meet
its expectations. They also alleged that Section 43(5) of
the Elections Act was discriminatory as read with Section
43(6) if applied in General Elections regarding public
officers. Counsel opposed the claim that the petition
was barred by the doctrine of res judicata submitting that
the instant petition raised different issues as compared
to those in Charles Omanga & Another v Independent
Electoral and Boundaries Commission & Another
(Charles Omanga), Evans Gor Semelango v Independent
Electoral and Boundaries Commission & Another (Gor
Semelango) and Patrick Muhiu Kamilu v Independent
Electoral and Boundaries Commission & Another
(Patrick Muhiu). That the question of constitutionality or
otherwise of section 43(5) of the Elections Act vis--vis
Articles 27 and 38(3)(c ) of the Constitution in the context
of all Parliamentary and County Assembly by-elections
has never been canvassed or adjudicated upon in the
aforesaid cases or in any other case.
Petition No.70 of 2015 raised the same issues as Petition
No.281 of 2015 save that the Petitioner was a public officer
serving in the National Treasury until his resignation
on 9th February 2015. He averred that he was desirous
of contesting the Kabete Constituency by-election
scheduled for 4th May 2015 and he was apprehensive that
because of the existence of Section 43(5) of the Elections
Act, his rights under Article 38(3) of the Constitution
were at the risk of being violated.
Issues:
i.
Whether the doctrine of res judicata barred the
court from entertaining the petition in light of the
decisions in Charles Omanga, Gor Semelango
and Patrick Muhia
ii.
iii.
iv.
v.
vi.
Cases
Cases
54
To be registered as a voter;
To vote b by secret ballot in any election
or referendum; and
(c )
To be a candidate for public office, or
office within a political party of which
the citizen is a member and, if elected, to
hold office.
Article 101(1) provides as follows;
(1)
A general election of members of
Parliament shall be held on the second Tuesday
in August in every fifth year.
Held:
1. The basis for the doctrine of res judicata was that
if a controversy in issue had been finally settled
or had been determined by a Court of competent
jurisdiction, it could not be re-opened. The
doctrine was further based on two fundamental
principles; that there ought to have been an end
to litigation and that a party should not have been
vexed twice over the same cause.
2. It had generally been the position of the High
Court that res judicata should only have been
invoked in the clearest of cases and only where
a party was litigating the same issue twice, on
the same conditions as above. In rights based
litigation particularly, the invocation of the
principle should only be done very sparingly and
in the most obvious of cases. In other words, in
constitutional matters, Courts should be slow
to invoke res judicata or risk violating the same
rights, including that of access to justice, which
they ought to jealously guard.
3. The parties in the petition were not quite the same
as those in Charles Omanga, Gor Semelango and
Patrick Muhia Kamilu although the Respondents
largely remained the same. In fact, whereas
Charles Omanga filed his Petition without any
personal interest in any by-election, both Gor
Semelango and Patrick Muhia Kamilyu were
prospective contestants in by-elections.
4. In none of the two last cases involving by-elections
was the constitutionality of section 45(3) of the
Elections Act addressed in depth neither was a
categorical decision made on the issue. Therefore
on a serious consideration of the matter and
in the specific circumstances of the petition,
Issue 29, April - June 2015
the issue before the Court was live and had not
been previously determined. This was because
while all the mentioned Petitions basically
concerned eligibility to contest in an election
(save for Charles Omanga which was narrowed
down to a general election) the instant Petition
sought a determination of the constitutionality
or otherwise of section 43(5) of the Elections Act
in so far as the eligibility of a public officer to
contest in a by-election was concerned.
5. While an interpretation of section 43(5) of
the Elections Act may have been an issue in all
Petitions, the real issue in contest in the instant
petition was different and being a constitutional
Petition, the Court found it difficult to bar the
Petitioners in Petition No.281 of 2014 from being
heard and the principle of res judicata could not
have been invoked. The High Court therefore
had jurisdiction to entertain the Petitioners
claim in Petition No.281 of 2014.
6. For the Government at the national and devolved
levels to function during an election period,
certain functions could not have been suspended
including those of the President and County
Governor, otherwise there would be chaos. How
would the Government function without the
Head of State and other such Officers? The same
Constitution also differentiated between elected
officials and other public officials because the
former had specific time frames within which
they ought to have served invariably for five years.
7. The same findings ought to apply to a by-election
and there could not be a sound argument that
the said section was discriminatory as alleged. It
mattered not whether the discrimination alleged
was between different categories of public
officers or between public officers and the general
populace. The findings remained the same.
8. In the context of a general election and by
comparison, there was certainty as to the date
of such an election because as provided for
under article 101(1) of the Constitution general
elections were to be held on the second Tuesday
in August every fifth year. Therefore, a public
officer had sufficient notice of an election date
and could properly resign within the period
given which was otherwise reasonable.
9. The rights to equality and freedom from
discrimination and political rights under articles
27 and 38 of the Constitution, respectively,
could be limited. Further, article 24 permitted
the limitation of certain rights but under a strict
and elaborate scrutiny anchored upon the test of
reasonability and justifiability.
10. Once a limitation of a fundamental right and
freedom had been pleaded as had happened in
the instant Petition, (on grounds of equality and
freedom from discrimination under article 27 of
the Constitution and political rights under article
55
officer the right to contest a vacant seat in a byelection if he had resigned as soon as a vacancy
had occurred and that was as soon as the Speaker
of either House of Parliament had given notice of
the vacancy to the IEBC under article 101(4)(a) of
the Constitution. To hold otherwise would be to
promote an absurdity that was never intended by
the drafters of the Constitution.
17. On whether it would be impossible for public
officers to resign and be ready for a by-election
given a public officer ought to issue and serve
sufficient notice before resignation, even if it were
so, there were no difficulties with that situation
because a by-election had no connection with
employment and in any event, employment
disputes could be resolved through other avenues
known in law.
18. Applying the reasonability test to the
circumstances of the two Petitions before court,
it was clear that section 43(5) of the Elections Act
did not meet the fairness and reasonability test as
provided for under Article 24 of the Constitution.
19. Article 159(2) (d) of the Constitution was relevant
in such a situation as it empowered the Court
to administer justice without undue regard to
technicalities and having found section 43(5) of
the Elections Act to be unreasonable in limiting
the political rights of public officers under article
38 of the Constitution to contest a by-election. It
was therefore declared unconstitutional only to
the extent that it applied to a by-election.
20. (Obiter) I am cognizant that this matter is of
considerable interest to public officers who
may wish to run for elective positions, let this
judgment sound as a preparatory gong to them;
they cannot have one leg in public service and
another at their elective area. The law was
designed to aid them make up their minds on
where they want to maximize their energies.
Seven months before the election date is sufficient
time for them to prepare themselves to meet their
fate at the election box. A longer period would
be unreasonable and a shorter period would be
more unreasonable.
Orders:
i.
Section 43(5) of the Elections Act was unreasonable in
its limitation of the rights of public officers under Article
38(3)(c ) of the Constitution to vie in a by-election and
to that extent only was declared unconstitutional.
ii.
A declaration issued that save for any other lawful
reason, Wilson Kangethe Mburu was qualified to
contest the by-election for Member of the National
Assembly for Kabete Constituency.
iii.
A permanent injunction was issued to restrain the
IEBC from barring a public officer from contesting a
by-election under Article 101(4) of the Constitution on
grounds that the public officer had not resigned from
office within seven months of the by-election as such
Cases
56
iv.
v.
Cases
a period would have been untenable and impractical
under the said Article 101(4) of the Constitution.
A copy of this judgment was to be be forwarded
to the IEBC and the Attorney General to consider
amendments to Section 43(5) of the Elections Act to
bring it in line, preferably, with the 90 day period
under Article 101(4) of the Constitution in the event
of a by-election and taking into account all other
factors including reasonable notice of resignation by
the public officer.
Each party was to bear its own costs.
Court declares certain sections of the Security Laws (Amendment) Act, unconstitutional
Coalition for Reform and Democracy (CORD) & 2 others V Republic of Kenya, Attorney
General & 7 others
Petition No.628 of 2014 Consolidated with Petition No.630 of 2014 and Petition No.12 of 2015
High Court at Nairobi
I Lenaola, M Ngugi, H Ongudi, H Chemitei, J L Onguto, JJ
February 23, 2015
Reported by Longet Terer and Njeri Githanga
The
consolidated
petitions
challenged
the
Constitutionality of various sections of the Security Laws
(Amendment) Act, No 19 of 2014 (SLAA) which amended
the provisions of twenty two other Acts of Parliament
concerned with matters of national security. The Security
Laws (Amendment) Bill was published on December 11,
2014. It was debated on December 18, 2014 and passed. It
received Presidential assent on December 19, 2014. SLAA
came into force on 22nd December 2014.
Issues
i.
Whether the Court had jurisdiction to determine
the petition in terms of.
a) Whether the issues in dispute were ripe for
determination;
b) Whether the Court could be guided by the
doctrine of avoidance;
c) Whether determination of the issues raised
in the matter was a violation of the doctrine
of separation of powers;
d) Whether the Kenya National Commission on
Human Rights (KNCHR) as a constitutional
commission could lodge a claim against the
State.
ii.
Whether the process of enactment of SLAA
was in violation of the Constitution in terms of
whether:
a) The enactment was unconstitutional for
failure to involve the Senate in legislation
that involved Counties;
b) The process was unconstitutional in light of
the chaotic manner of enactment of SLAA
that was in breach of Parliamentary Standing
Orders with regard to Parliamentary debate
and voting;
c) The process was flawed and unconstitutional
Issue 29, April - June 2015
iii.
iv.
v.
vi.
57
vii.
2.
3.
4.
5.
6.
7.
8.
Cases
58
Cases
59
Cases
60
Cases
61
Cases
62
Cases
63
Cases
64
Cases
79. The State had legal options for dealing with refugees
whom it deemed to have engaged in conduct that
was not in conformity with their status as refugees,
and setting a cap that would lead to violation of the
Constitution.
80. The Cabinet Secretary was not a member of the
Security Organs set out in article 239 which were
the National Defence Force, the National Police
Service and the National Intelligence Service.
However, the Cabinet Secretary was, first, a public
or state officer as defined in article 260 of the
Constitution and who was bound by the provisions
of the Constitution and subscribed to an oath
of office. Secondly and more importantly, the
Cabinet Secretary was a member of the National
Security Council established under article 240 of
the Constitution and comprised, among others,
the Cabinet Secretaries responsible for defence,
foreign affairs and internal security.
81. The National Security Council was mandated,
under article 240 (3) to exercise supervisory control
over national security organs and perform any other
functions prescribed by national legislation. That being
the case, there was nothing in the substitution of the
Commissioner of Police with the Cabinet Secretary
that violated the Constitution. The only limitation
was that the section did not specify which Cabinet
Secretary was being substituted, so that one was
left to assume that it was the Cabinet Secretary in
charge of internal security.
82. Section 12 of the National Police Service Act,
in keeping with the spirit of the Constitution
with regard to public participation, was not in
conformity with the provisions of the Constitution
at article 245. The Article was clear that it was the
President who, with the approval of Parliament,
appointed the Inspector General of Police.
83. Article 246(3) gave the National Police Service
Commission, of which the Inspector General of
Police was a member in accordance with article
246(2), power to deal with the appointment,
recruitment and discipline of other officers in the
Service. If the people of Kenya intended that the
Inspector General of Police be appointed by the
National Police Service Commission, then the
Constitution should not have vested such powers
in the President under article 245(2) (a).
84. In the circumstances the amendments to section
12 of the National Police Service Act was in accord
with the Constitution. While the competitive
process and public participation that the previous
provisions of section 12 engendered were more in
keeping with the spirit of openness that Kenyans
desired under the Constitution, it was expected that
the provision for Parliamentary approval would
provide an opportunity for public participation
in the appointment, not only through the elected
representatives, but also through the opportunities
for such participation that Parliament was
65
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Cases
66
Cases
The powers of the Commission on Revenue Allocation & the Controller of budget in
revenue allocation, budgetary processes and budget implementation
Speaker, Nakuru County Assembly & 46 Others vs. commission on Revenue Allocation & 3 Others
Petition No. 368 of 2014
High Court of Kenya at Nairobi
Lenaola J
February 20, 2014
Reported by Njeri Githanga & Kipkemoi Sang
Brief Facts
On July 23, 2014, the petitioners filed a petition challenging
the legality of the circular Reference No. CRA/CGM/
Vol.III/99 addressed to all County Governments, by the
Commission on Revenue Allocation (1st respondent)
recommending a ceiling on allocation for all county
Assemblies and all County Executives in County
budgets for the financial year 2014/2015. Thereafter,
the Controller of budget (2nd Respondent) on diverse
dates vide various circulars addressed to the County
Governments demanded that the County Assemblies
budget allocations comply with the aforesaid Circular
failure to which the 2nd Respondent would not approve
withdrawals from the County Revenue Fund or any other
fund by County Governments.
It was the petitioners contention that the said Circular
was void on two fronts. Firstly, that it was issued without
authority and in breach of the legislative authority of
County Assemblies under articles 185(1) and (2) of the
Constitution. Secondly, that in issuing and acting on the
said Circular, the 1stRespondent violated article 189 (1) of
the Constitution as it failed to consult County Assemblies
on a matter that fell within their mandate and would in
effect affect them.
Issues
i.
Whether the impugned circular was issued in
breach of the law and the legislative authority of
County Assemblies
ii.
Whether the Commission on Revenue Allocation
had powers to issue the Circular and if so, whether
the recommended ceilings were within the law.
iii.
Whether recommendations made by the
Commission on Revenue Allocation were binding
on all the organs to which they were made.
iv.
Whether the petitioners fundamental rights
under articles 27(freedom from discrimination)
and 47 (fair administrative action) of the
Constitution of Kenya, 2010 were violated by the
respondents, jointly or severally
v.
Whether County Assemblies were persons
capable of having their fundamental rights
protected and enforced under the Constitution.
vi.
What was the mandate of County Assemblies,
Commission on Revenue Allocation and the
Controller of budget in the budgetary making
process.
Constitutional Law-public finance-principles of public
finance- the budgetary and related processes in County
Governments- the powers of the Commission on Revenue
Issue 29, April - June 2015
2.
3.
67
4.
5.
6.
Cases
68
Cases
County for each financial year and submitted
the paper to the County Executive Committee
by 30th September of that year. The County
Executive Committee then was obligated to
discuss that Outlook Paper and after approval it
was laid before the County Assembly before it
was published and publicized.
11. It was within the mandate of the Treasury, County
Executive and County Assembly to prepare and
approve budgets for a County. However, that
process could not be read in isolation of other
processes because it was within the mandate
of the 1st Respondent to recommend to the
Senate, the National Assembly, the County
Assembly and the County Government on
equitable sharing of revenue between the two
levels of Government and as between County
Governments. By so recommending, the 1st
Respondent would in essence be performing its
obligations under article 216 of the Constitution
and even if the 1st Respondent had recommended
budgetary ceilings in the County Budgets for
2014/2015 financial year, that action did not
violate the Constitution. However it had to do
so in the framework and in accordance with the
Constitution and the law.
12. The 1st respondent was an independent
Constitution Commission and as such article
249(2) which provided for the objects of the
commissions and the independent offices,
were required to function free of subjection to
direction or control by person or authority,
but rather operate within the terms of the
Constitution and the law. The independent
clause did not accord them carte blanche to
act or conduct themselves on whom; their
independence was by design, configured to the
execution of their mandate and performance of
their functions as prescribed by the Constitution
and the law.
13. Under section 117 of the Public Finance
Management Act, the County Fiscal Paper
ought to be prepared by 28th of February in
each financial year, hence for Counties to
comply with the Circular as issued by the 1st
Respondent, they had to restart the budgetary
process with the preparation and adoption of
the Fiscal paper. However the issue was moot
considering that the Allocation of Revenue Act,
2014 was in operation and it was the one that
created the offending ceilings even if it was
based on non-binding recommendations from
the 1st Respondent.
14. Article 228(4) of the Constitution mandated the
2nd Respondent to oversee the implementation
of the budgets of the National and County
Governments by authorizing withdrawals from
public funds under articles 204, 206 and 207
of the Constitution and under article 228(5),
69
A spiders cobweb isnt only its sleeping spring but also its food trap. African proverb
Cases
70
Cases
When a claim for discrimination arose out of the failure to shortlist internal candidates
Jane Achieng & another v University of Nairobi
Cause No. 2144 of 2012
Employment & Labour Relations Court at Nairobi
L Ndolo, J
April 10, 2015
Reported by Teddy Musiga
Brief facts
The claimants claim arose from a job advertisement
for 8 positions in the establishment of Librarian. They
applied for the advertised positions but were never
shortlisted. Instead, the respondent shortlisted 7 external
candidates. The gist of the claimants claim was that by
failing to shortlist them for the position of Librarian,
the respondent discriminated against them. Specifically,
they contended that in evaluating their respective
applications, the respondent failed to consider their
achieved qualifications and long experience as relevant
and equivalent for the advertised positions. They also
cited a wide range of instances where the respondent had
effected staff promotions within the University contrary
to the University policy on Training, Promotion &
Establishment (Kagiko report). The respondent however
pleaded that the recruitment had already taken place and
binding employment contracts signed with the successful
candidates and added that only 3 of the 8 positions were
filled, leaving 5 vacancies.
Issues
i.
Whether a recruitment process initiated &
completed by the respondent is discriminatory
for not considering internal applicants (claimants)
for the job advertised.
ii.
What are the available remedies for an aggrieved
claimant to a recruitment process where the
recruitment & selection process is already
completed?
Labour Law Employment Law - Employment relationship
claim for unfair discrimination claim where the respondents
failed to shortlist internal candidates - Whether a recruitment
process initiated & completed by the respondent is discriminatory
for not considering internal applicants (claimants) for the
job advertised article 27, 41; Constitution of Kenya, 2010;
sections 5 Employment Act;
Labour Law Employment Law adducing evidence in
employment disputes burden of proof in employment disputes
circumstances in which the burden of proof may shift from the
employee to the employer where the employee claims unfair
discrimination from the employer section 5 Employment Act
Held:
1. Employment and Labour rights were well
secured as part of the Bill of Rights under article
41 of the Constitution of Kenya, 2010. It followed
therefore that discrimination in the employment
sphere was outlawed in terms of article 27 of the
Constitution of Kenya, 2010 as well as section 5
Issue 29, April - June 2015
71
Brief Facts
On the 4th day of July 2011 the Plaintiff consulted the
Defendant s family planning clinic for an appropriate
contraceptive method since she and her husband who
already had two children did not want a third child. She
was advised by the Defendant that the insertion of an
implant known as implanon would be the most suitable
and appropriate for her, and that the same, if implanted,
would protect her from conception for a period of three
years from the date of insertion. The Plaintiff took the
advice and on the same date she was taken through the
medical procedure of implanting the implanon into her
left upper arm under local anaesthesia.
On the month of August 2012, the Plaintiffs menses failed
and a home pregnancy test came out positive. She visited
the Defendants hospital on 10th August 2012 where a
further pregnancy test confirmed that she was indeed
pregnant. Other tests conducted by the Defendants
medical staff at the hospital confirmed that no implanon
had been implanted in her arm after all. The Plaintiff
claim was therefore founded on medical negligence that
resulted to unwanted pregnancy and subsequent delivery
of the unplanned child.
Issues
I.
Whether the Defendant was vicariously liable for
negligence of her medical staff in performance of
their duties.
II.
Whether the Plaintiff was entitled to award
of pain, suffering and loss of amenities, loss
of consortium and costs related to care and
upbringing of the child up to the age of 18 years.
Tort Law- Negligence-medical Negligence- Vicarious liabilitywhether the Defendant was vicariously liable for negligence of
her medical staff in performance of their duties.
Tort Law-Damage-award of damages- special damages
whether the Plaintiff was entitled to award of pain, suffering
and loss of amenities, loss of consortium and costs related to
care and upbringing of the child up to the age of 18 years
Held;
1. A claim for negligence for failed sterilization was
2.
3.
4.
5.
Cases
Cases
72
Court Orders TSC and State to Compensate Minors Defiled in School by their Deputy
Head Teacher
WJ & another (suing through their guardians) v Astarikoh Henry Amkoah & 4 others
High Court at Nairobi
Petition No 331 of 2011
M Ngugi J
May 19, 2015
Reported by Emma Kinya Mwobobia
Brief Facts
The petition raised the issue of the liability of state and
state organs in the education sector when persons under
their employ, and over whom they exercise powers of
discipline and control, violate the rights of children
placed under their care. It questioned the policies or lack
thereof pertaining to steps and process when persons in
the position of the 1st respondent abuse their positions
and violates the rights of those under their charge.
The petitioner alleged violation of their rights by the
Deputy Head teacher (1st respondent) of their school.
They accused him of defiling them on various dates in July
2010 causing them physical, emotional and psychological
harm and trauma. The petitioners also accused the state
and the Teachers Service Commission (TSC) of failing
to protect their rights and those of other school going
children by failing to protect them from sexual abuse by
persons in the position of the Deputy Head Teacher. They
further alleged that the state and TSC were vicariously
Issue 29, April - June 2015
73
(a).
Issues
i.
Whether acts of sexual violence against a student
amounted to a violation of the right to education
and health as provided for under Article 43(1) of
the Constitution and section 7 of the Children
Act.
ii.
Whether the State and the Teachers Service
Commission were vicariously liable for the
unlawful acts of defilement by the 1st respondent.
iii.
Whether a decision of a Criminal Court acquitting
an accused person would bar the Constitutional
court in considering issues of alleged violation
of constitutional rights on the basis of the same
facts.
iv.
Whether the petitioners were entitled to damages
based on the consequences of the defilement.
Held
1. The entry point into any court proceeding was
jurisdiction. If a court lacking jurisdiction to hear
and determine a matter overlooked that fact and
determined the matter, its decision would have no
legal quality and would be a nullity. Jurisdiction
was the first test in the legal authority of a Court or
tribunal, and its absence disqualified the Court or
tribunal from determining the question.
2. The Court was properly clothed with jurisdiction
under Articles 23 (1) and 165 (3) of the Constitution
to deal with the issues raised and, if satisfied that the
petitioners had established their claim, would grant
appropriate relief.
3. The Court had the jurisdiction to grant relief should
it have found that first, the rights in question were
protected under the repealed constitution and,
secondly, that the violations in question were
continuing violations.
4. There was no serious challenge to the petition with
regard to form, and in light of the provisions of
Articles 22, 23 and 159, and given the fact that the
alleged acts of negligence by the respondents, if found
to be established, would have the effect of infringing
on the petitioners rights, the Court was satisfied that
no prejudice had been caused to any party by the
present form.
5. The Constitutional and Human Rights Court was
not a criminal court. The court seized with the
jurisdiction to adjudicate on the 1st respondents
culpability under the criminal law had heard the case
against the respondents and on the evidence before
it weighed against the standard of proof required in
criminal cases, that was the standard of guilty beyond
reasonable doubt, and found the 1st respondent not
guilty.
6. The judgment of the Criminal Court acquitting
an accused on the merits of a case would not bar
Cases
74
Cases
75
ii.
iii.
Orders
i.
The Sun
Cases
76
Cases
Cases
you value their relationship or do you wish you had it
differently? How often do you create time for your family
and friends? Are you the kind of person that your family
and friends can rely on even in the toughest of times? Do
you have a healthy relationship with your family, friends
and colleagues? Do you appreciate and respect your job
and other peoples jobs? Do you at times stop to imagine
that there are thousands of people all over the world
who feel lost, lonely, angry, frustrated and depressed just
because they are too busy striving for material gain and
satisfaction and in the process they forget to create time
and space for gratitude. These people wish they were in
your shoes and had what you have?
Appreciate your life and all that you have because you
have just one life. Learn to say thank you as many times
as you possibly can; apologize whenever you are wrong
it doesnt make you any less of a person; smile, laugh and
be happy- it does not mean that everything is perfect, it
just means that as much as life has its imperfections, you
are willing to look far beyond them and make the best
of every situation. Besides, each day is filled with endless
possibilities so make each day your possibility.
77
78
Cases
Cases
79
ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Ngong Road, Upper Hill P.O Box 10443 - 00100, Nairobi - Kenya
Tel: +254 (020) 2712767, 2011614 ,2719231 Mobile: +254 718 799 464, 736 863 309
www.kenyalaw.org
mykenyalaw
@mykenyalaw
Mykenyalaw
National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary