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CONTENTS

THE BENCH BULLETIN

01 Editors Note
Where does stuff come from? Ideas
02 CJs Keynote Address by the Chief
Justice at the Members of County
Assemblies Forum
p.

45

07 Cityzen Nenkai
10 Witness Protection: The Kenyan
Context
09 What they Said

COMMENTARIES
p.

23

14 No More Plastic Smiles


15 Discovering Energy Efficiency
16 Importance of Writing a Will
17 Why Implementation of Devolution
Must Take Time
20 The Pain of Change Management
22 Human Resources and Administration
Department.

p.

25

26 Legislative Update: Acts Enacted in


the Period August-December, 2013

Issue 24, January - March 2014

28 Digest of Recent Legal Supplements


On Matters of General Public
Importance

Lifestyle
31 The impor tance of Per formance
Measurement in Organisations
32 Employee Happiness: Does it Matter?
p.

36

35 Importance of Emotional Intelligence


at the Work Place
36 The Power of Our Temperaments
40 Dos and Donts of Safe Driving
42

Social Media Timeline

44

Caseback Service

46

Cases

Editor

| Longet Terer |

Senior Law Reporters

p.

40

Senior Law Reporters

| Cornelius Lupao | | Andrew Halonyere | Njeri Githanga Kamau |

Contributors
| Michael Murungi | Monica Achode | Linda Awuor | Cornelius Lupao | Janette Watila | Eric Odiwuor | Edna Kuria |
| Wambui Kamau | Nelson Tunoi | Emma Kinya | Moses Wanjala | Phoebe Ayaya | Lydia Midecha | Andrew Halonyere |
| Martin Andago | Teddy Musiga | Victor Kipyegon | Lynett Jakakimba | Beryl Ikamari | Dudley Ochiel | Lisper Njeru |
| Caroline Wairimu | Mary Waruguru | Ruth Ndiko | Naomi Mutunga | Cicilian Mburunga | Thomas Muchoki |
| Humphrey Khamala |

Design and Layout


| Catherine Moni | Robert Basweti |

Proofreaders
| Phoebe Juma | Innocent Ngulu |

The Council

MEMBERS OF THE COUNCIL FOR KENYA LAW

Dr. Willy M. Mutunga, D. Jur., SC, EGH


Chief Justice, President of the Supreme Court of Kenya/Chairman
The Hon Lady Justice R. Nambuye
Judge of the Court of Appeal of Kenya

Mr. Evans Monari


Advocate, Law Society of Kenya

The Hon Lady Justice Lydia Achode


Judge of the High Court of Kenya

Mrs. Florence Mwangangi


Advocate, Law Society of Kenya

Prof. Githu Muigai


Attorney General

Mr. A.G. Rukaria


Government Printer (Represented by Mr. Paul
Sang, Snr. Printer)

Prof. Annie Patricia G. Kameri-Mbote


SC. Dean, School of Law, University of Nairobi

Mr. Michael M. Murungi


CEO/Editor

Ms. Christine Agimba


Deputy Solicitor General, State Law Office

MEMBERS CO-OPTED TO SERVE IN AD-HOC ADVISORY CAPACITY


Mr. Justin Bundi
Clerk of the National Assembly of Kenya.
Mr. Jeremiah M. Nyegenye
Clerk of the Senate

Mr. Christopher Ombega


Senior Assistant Inspector General
Representing the Inspectorate of State
Corporations

Mrs. Flora Mutua


Snr. Management Consultant, Directorate of
Personnel Management Services, Ministry of
Devolution and Planning
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.

ii

BB Issue 24, January - March 2014 Creative Commons

Issue 24, January - March 2014

Editors Note

Where does stuff come from? Ideas

tepping into the new offices of Kenya Law this February a physical
space far more spacious and elegant than I have worked in in more
than a decade I couldnt help but look back into the enormous
physical and intellectual labour that went into establishing the
offices. Yet all that started with a very simple idea to improve access to
justice by nurturing Kenyas jurisprudence through the establishment of a
government-funded institution that would have the physical, intellectual
and financial resources to effectively and sustainably undertake the official
publication of the law reports of Kenya.
This idea probably had its first experience with physical reality when it was
presented and debated as a Bill before the National Assembly in the mid
1990s. I would imagine that the vision of the future of that idea that some
of the parliamentarians saw in their minds eyes at that time may have been
something close to the picture presented by these new premises. But for
others, the vision may have been grander, and this represents the amount
of progress and growth that lies ahead of Kenya Law.

Mr. Michael M. Murungi


Chief Executive Officer / Editor

In the series of events that led to the establishment of the new offices, I
recognised the familiar pattern that defines how ideas get transmuted from
mere thoughts in the minds of humans into reality: an idea is entertained in
the mind of one human being; that idea is shared with other humans; the
idea is collaboratively refined and enriched with the knowledge of others; it
is then expressed into a tangible medium of expression (often by an author
who is compelled to do so by the force of the ideasgathered power) and
then physical matter (or resources if you like) begins to swirl and gather
around the idea with a speed that is proportionate to the progressive power
behind the idea.
If this sounds simple, it is because it is. The raw materials from which
the offices were built and from which skyscrapers and other works of
architecture are made is not new stuff. It is stuff that has always been lying
around but has been brought together by the physical and intellectual
labour of human beings working under the spell of a great and progressive
idea. There is no doubt that more stuff remains to be mined and shored up
than the stuff that has already been used - more is the iron ore that has yet
to be extracted and deeper is the quarry that has yet to be dug. The amount
of this dormant stuff is a measure of the many progressive ideas that human
beings havent even started to think.
So, what new and progressive idea do you want to entertain today?

Editors Note

Issue 24, January - March 2014

CJs Message
Keynote Address by the Chief Justice
at the Members of County Assemblies
Forum
Mr President,
Chairman of the County Speakers Forum;
Secretary of the County Speakers Forum;
Speakers of the County Assemblies;
Honourable Members of the 47 County Assemblies from around Kenya;
Distinguished Guests;
Ladies and Gentlemen:

am deeply honoured to be here today as you begin the review of your


achievements and challenges in the first year of launching devolution.
City, municipal, town and county councils of yore are no more. In
another 16 months, the time allowed for the national government to
restructure the provincial administration to accord with and respect the
system of devolved government will lapse.
Looking at the past year, it is clear that a great deal has changed; and a
great deal more is going to change because that is what the Constitution
we gave ourselves requires. We certainly have a new Republic that is so
full of promise but also quite fraught with threats. Our duty as leaders
is to have these promises fulfilled, eliminate these threats and thereby
advance our peoples cause for justice, peace, security, freedom, progress,
prosperity, and development.

The Hon. Dr. Willy Mutunga, D. Jur.,


SC, EGH Chief Justice, President,
Supreme Court of Kenya

The Constitution of Kenya, 2010, was a bold attempt to re-engineer the


State. The terms of the social contract by which we were governed were
radically revised because it had become frayed and fallen into disuse.
It was dysfunctional, unresponsive, and unrepresentative of the peoples
aspirations.
Devolution remains the most important promise the Constitution makes
to the people of Kenya. Its inclusion in the Constitution is, by and large,
an open acknowledgement that Kenya could not continue to be viable as
a nation state if power remained concentrated at the top, the allocation
of resources was unremittingly skewed and public voice continued to
be stifled. Devolution is about the equitable distribution of POWER and
RESOURCES..
This great assembly is the embodiment of some of the lofty ideals and
principles espoused in the Constitution: County Assemblies are today the
most representative public bodies in Kenya, drawing their membership
from majoritarian elections, but also proportional representation that
promotes traditionally marginalised groups and minority interests. While
majoritarian system establishes accountability between representatives

CJs Message

CJs Message
and
constituents,
proportional
representation
increases the presence of groups that would otherwise
be excluded from decision-making -- such as women,
other marginalised groups, and minority interests. In
this respect, therefore, County Assemblies have proved
that the constitutional design that requires no more
than two-thirds representation of one gender, as well
as the inclusion of minorities, is not only desirable,
but also possible. You are the face of the new and
future Kenya youth, men, women, and people with
disabilities.
It is hoped that the success in establishing diverse
and inclusive assemblies at the county level inspires
changes in other State organs to do what is necessary
to complete Kenyas transition to a constitutional
democracy. You have a great opportunity to act as
beacons of patriotic, progressive, and transformative
governance.
Ladies and gentlemen, the survival of Kenya as a
nation-state is tied to the success of devolution. It has
been designed not to fragment the country, but rather
to foster national unity by recognising diversity. Yet,
because it deposes a system of control, dominance
and authority established by the colonial powers
and subsequently perpetuated by successive postindependence administrations, it will have enemies
few but powerful and cunning. The success of
devolution cannot be guaranteed if vigilance at the
individual and institutional level flags. In this patriotic
struggle the County Assemblies become our great foot
soldiers.
Recall that the first attempt at dispersing power in 1963
was stillborn in one year. Fifty years of centralised
government delivered its verdict, and the people of
Kenya did not like it. Rising poverty and inequality,
institutionalised marginalisation and exclusion
characterised its results --and there are still many areas
of our nation that remain untouched by development.
Devolution is an attempt to reverse these and attempt
a new model of power and development. The question
is what verdict it will deliver, and what will be your
role in that
outcome? In answering this question County Assemblies
have a pivotal and fundamental role to play.
Whereas it is proven that centralised government
hasnt worked, there is no guarantee that devolution
will work, unless you play your part to make it work.
The failure of devolution and the failure of centralised
government will only mean one thing: a shameful

indictment on the leadership of this country, of which


you are a big part; that, we as a people, are incapable
of governing ourselves that we cannot manage the
public sphere.
This is a badge of dishonour I would be loathe to wear,
and so should you. The interests that oppose devolution
are not necessarily illegitimate or even unpatriotic; it is
only that they are limited in their vision of Kenya as an
inclusive and participatory democracy that guarantees
equality of opportunity for every child, woman and
man to enjoy the full benefits of nationhood. They fail
to see Kenya as an anchor state. County Assemblies
must reflect this vision. Do not decentralize ethnicity,
but nationhood.
Devolution is back by dint of years of struggle, sweat,
blood and tears, hence the anxieties in the constitutional
text for its protection. It is, however, not an excuse
for the creation of pure ethnic enclaves but rather
an opportunity for accelerated national development
from below. An exclusionary view of devolution and its
programmes is a jaundiced one and must be rejected
in toto. In fact, economic theory proves that, generally,
societies that are more open, more accommodative,
and more adaptable develop faster and in a more
sustainable way than those than are closed and insular.
County governments should be competing to attract
the best of professionals regardless of their ethnic
identity rather than victimising non-locals. Beyond its
affront to our constitutional principles, this conduct of
county affairs undermines development.
For now, the struggle of ideas has been settled in favour
of devolution. Devolution is a great political victory
for the people of Kenya to be able to choose their
leaders at the level closest to them and to influence the
priorities of things done in their name. It continues to
enjoy widespread public support despite the teething
problems, but these must not evolve into phenomena
that undermine the hopes of the people.
Only recently, the Supreme Court made an important
observation in the matter of the Advisory Opinion on
the
Division of Revenue Bill: All resources belong to the
people, and institutions that are invested with the
power of the purse must exercise it with responsibility
as outlined in the constitutional principles on public
finance. We also spoke loudly in favor of equitable
distribution of resources, checks and balances, the
great values of dialogue, consultation, mediation and
interdependence, all in the name of Kenyas national
BB Issue 24, January - March 2014 Feature Case

4
interests. We called for the protection of devolution
by the Senate. We believe also that dialogues between
county governments and the national government over
county and national resources is at the very core of our
sustainable development, a value in our Constitution.
It would be a great shame if the opportunity for all Kenyan
communities to govern themselves, to participate more
robustly in decisions affecting them, and to direct their
development were to be undermined by corruption
and greed, sloth and incompetence or even poor
management of resources. These threats loom large
and it is your constitutional duty to safeguard against
them. County assemblies occupy a critical position
in protecting the purity of devolution by enhancing
oversight and entrenching checks and balances at the
local level. By promoting the constitutional values
of good governance, integrity, transparency and
accountability and sustainable development, county
legislatures can hasten the moulding of Kenya into one
cohesive nation.
I summon you to the defence of the devolved system
of government as by law established lest it falls into
disuse and dies a second death due to negligence,
corruption and the notoriously numerous Kenyan
issues of division: ethnicity, gender, generation, class,
clan, nepotism, region, region and race. Your defence
of devolution must show in the laws you make to
enable the county governments to function. It must
be evident when you exercise oversight over county
governments. And it must be seen as you receive and
approve plans and policies for the management and
exploration of resources. It must never be in doubt
as you consider the development and management
of infrastructure and institutions. This is the duty you
swore to do.
Beyond focusing on the roles assigned to county
governments in the Constitution, County Assemblies
have a duty to facilitate the decentralisation of State
organs, their functions and services away from the
capital. Not only does this enhance socio-economic
development and ease access to services for all
Kenyans, but it also creates equality for all citizens
wherever they are.
As head of the Judiciary, I am keenly aware of the
constitutional obligation to establish a High Court in
every county. Let me express the profoundest gratitude
to those county governments, with the support of
their respective legislatures that have provided land

Feature Story

Issue 24, January - March 2014


for the establishment of courts. Because of competing
demands on the public purse, the Judiciary will not
always be able to expand as rapidly as it desires. Yet,
county assemblies can accelerate the decentralisation
of courts by making allocations to build not just court
houses but also housing for judicial officers and staff.
Already, the decentralisation of the Court of Appeal
to Nyeri, Kisumu and Malindi has begun to reduce
the time cases take, but there are more benefits in the
pipeline.
We also realize that access to justice is not the preserve
of our courts. Many other forums for the administration
of justice abound. We are working on a pilot scheme in
Isiolo County with the various ethnic councils of elders
to peg traditional justice systems to the values of our
Constitution. The 95% of Kenyans who do not come to
our courts also deserve justice from the various forums
they go to. County Assemblies will have to factor this
important justice issue in their budgets and other
strategies.
As a matter of policy, the Judiciary continues to
encourage the participation of local entrepreneurs in
the construction of Judiciary facilities, as well as the
provision of goods and services. We do not allow
contractors to import labor, good and services when
these commodities are readily available at the local
level. The Judiciary stands ready now and in the future
to play its part to realise the full benefits of devolution
for the people of Kenya.
Finally, interdependence is a principle that is
well established in the Constitution. It means
that collaboration and cooperation between the
Legislature, the Judiciary and the Executive must be as
robust both at the county level as it is at the national.
As representatives of the people, you have a duty to
initiate cooperation between and among yourselves to
tackle common problems together. You also need to
support and respect judges and magistrates that work
in your regions and counties. It is when leaders and
institutions respect each other, conduct
themselves with decorum, and obey basic rules of
common decency that public confidence in our
leaders and institutions flourishes. I am glad that now
County governments are participating in our Court
Users Committees. I have urged heads of judicial
stations to have constructive and meaningful dialogues
with County Governors, Senators and Assemblies. It is
our belief that we need to tell all of you what we do
and we do not do. We are ready at all times to receive
your feedback on how we are administering justice in

Feature Story

your counties.
Our nation is founded on the Constitution and the rule
of law: It means all of us, great and small, institutions
and individuals, must live by the law, upholding it and
promoting it, or descend into anarchy. The line in our
national anthem, Justice be our shield and defender,
is not ornamental; it is profound. We all need it.
And as the first generation of leaders under the new
Constitution, we must know that future generations
will never forgive us if we fail to validate and animate
their aspirations as contained in the new Constitution.
If we let a document so
progressive in its provisions unravel to the peoples
disadvantage, no penance can suffice to cleanse our
sin.

Allow me to place these suggestions before you for


debate and consideration, and wish you a successful
conference.
Thank you.

Dr. Willy Mutunga, D. Jur, SC, EGH,


Chief Justice and President of the Supreme Court of
Kenya

BB Issue 24, January - March 2014 Feature Case

What they Said

What they Said


Michael M. Murungi,
outgoing Editor/CEO,
Kenya Law

After 12 years of service to Kenya Law, I am leaving to take a new path in my


professional journey. So this is goodbye and thanks, first to you, our esteemed
reader; it is your need for public legal information and your choice to get that
information from Kenya Law that has justified my tenure at Kenya Law; to my
colleagues at Kenya Law for your guidance and support and for so enormously
enriching my life in many beautiful ways; to the Chairman and Members of the
Council for Law Reporting for having faith in me and for guiding and supporting
me; and to Kenya Laws partners and stakeholders, for continuing to believe in
Kenya Laws plans and making them part of yours

The year 2013 has been a milestone for Kenya as it is the year in which all the provisions
of the Constitution of Kenya 2010 have come into effect. The aspiration of the Kenyan
people for better governance and a more responsive public service was brought closer
to reality in March 2013 with the coming into effect of the two levels of Government at
the national and the county level.
Kenya Law is happy to have been part of this process through the discharge of its mandate.
Most importantly we have also been able to improve ourselves through the establishment
of new offices and a growth in our human resource compliment. These improvements
are aimed at ensuring that Kenya Law is able to offer its services in a more efficient and
responsive manner for the benefit of the Kenya people. Our aspiration to ensure that
legal information is public knowledge is now more than ever very critical for the country.

Supreme Court
Judges Tunoi,Ibrahim,
Ojwang, Wanjala &
Njoki Ndungu

Courts are the wellsprings of justice, the bastion to which recourse in law is
sought. Whenever a party seeks to vindicate infringed rights at any tier of Courts,
the duty to do justice is always the rule of thumb. It was also a cardinal principle
that flowed from the Constitution, and which demanded that the ends of justice
be met when any Court of justice in the Republic of Kenya has been properly
seized of a pertinent question. Interest of justice cannot therefore be an isolated
criterion, on the basis of which the Court may be urged to allow an appeal as
a matter of general public importance. Supreme Court Judges Tunoi, Ibrahim,
Ojwang, Wanjala & Njoki Ndungu in Koinange Investments & Development Ltd
V Robert Nelson Ngethe

Persons in general did not have a right to an advisory opinion of the Supreme
Court. Rights declared under article 22 (such as access to justice) were
enforceable by way of ordinary court proceedings. Such proceedings did not
necessarily include the Supreme Courts advisory opinions. By their very nature
and design, Advisory opinions were meant to serve as a device in aid of the main
tasks of the institutional conduct of governance. And thus, those entitled to resort
to such opinion werethe national government, any state organ or any county
government. Supreme Court Judges P K Tunoi, M K Ibrahim, J B Ojwang, S C
Wanjala & S N Ndungu, In the Matter of Kenya National Commission on Human
Rights & 2 others
BB Issue 24, January - March 2014

Longet Terer
Editor/CEO,
Kenya Law

Supreme Court
Judges P K Tunoi, M K
Ibrahim, J B Ojwang,
S C Wanjala & S N
Ndungu

Issue 24, January - March 2014

What they Said


In so far as the Constitution article 87(2) provides that petitions concerning an
election other than a presidential election shall be filed within twenty eight
days after the declaration of the election results, while the Elections Act section
76 (1) provides that a petition to question the validity of an election shall be
filed within twenty eight days after the date of publication of the results of the
election in the Gazette, and as it is clear that expedition in the disposal of
electoral disputes is a fundamental principle under the Constitution, the court
is of the view that section 76 is inconsistent with the terms of the Constitution.
Supreme Court Judges Kalpana Rawal DCJ, PK Tunoi, M K Ibrahim, JB Ojwang&
N Ndungu in Hassan Ali Joho & another v Suleiman Said Sharbal& 2 others

Court of Appeal Judges


P O Kiage, A K Murgor,
F Sichale, J Mohammed
& Otieno-Odek

It was the Judges and Magistrates Vetting Board that had the exclusive jurisdiction
to determine questions about the suitability of a judge or magistrate to continue
serving in office and such jurisdiction was exclusive of the appellate or original
jurisdiction of any court in Kenya. Court of Appeal Judges P O Kiage, A K
Murgor, F Sichale, J Mohammed & Otieno-Odek, in Dennis Mogambi Mongare
v Attorney General & 3 others

The socioeconomic rights recognized in article 43 of the Constitution


of Kenya 2010 would entitle the petitioners to have their opportunity to
earn a living through hawking protected, as a means of protecting them
from hunger. Justice Edward M Muriithi, in Micro and Small Enterprises
Association of Kenya, Mombasa Branch v Mombasa County Government
& 43 others

Justice F. Tuiyott

Supreme Court
Judges Kalpana Rawal
DCJ, PK Tunoi, M K
Ibrahim, JB Ojwang&
N Ndungu

Justice Edward M
Muriithi

Sections 2, 6 and 7 of the Matrimonial property Act, 2013 fleshed out the right
provided by article 45(3) of the Constitution of Kenya, 2010. By recognizing
that both monetary and non-monetary contribution must be taken into account,
it was congruent with the Constitutional provisions of article 45 (3) of the
Constitution that parties to a marriage are entitled to equal rights at the time of
the marriage, during the marriage and at the dissolution of the marriage. Justice
F. Tuiyott in UMM v IMM

What they Said

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10

Witness Protection: The Kenyan Context


By Liaison/Public Relations Office

CONTENTS:
1. Concept &Rationale of protection
2. Historical Context(Local &international)
3. Legal grounding(Local & international)
4. Achievements/Operations
5. Conclusion: look-ahead

1. Concept &Rationale of Protection

he ultimate goal of a witness protection


program is to secure the evidence held by a
person who may/can give evidence regarding
serious crime by ensuring the witness is free
from intimidation or harm to themselves and family by
the perpetrators and accomplices.
As the legal quip goes A case is just as good as
the witness. Indeed a witness is a key factor in
prosecution triangle, the other factors being the crime
and the accused. Holding, as they often do, the key
to a conviction renders many witnesses especially in
sensitive/serious crime very vulnerable to corruption,
intimidation or even annihilation.
Kenyas daily Press has intermittent Court reports of
Suspect acquitted for lack of evidence or Trial
hitch as witnesses fail to show up or Key witness
dies in suspicious circumstances
The decision on protection is broadly dependent on
the nature of crime and the severity of the threat to a
witness.
Historically, the need for protection arose out of
the realization that many criminal gangs held sway
because of fear of the public to disclose/testify on their
activities to Law Enforcement authorities.
More than ever, the need for witness protection is
greater with technological developments ushering

BB Issue 24, January - March 2014 Feature Case

more complex and sinister deeds such as cyber-crime,


drug trafficking, money-laundering, mega corruption,
terrorism, human trafficking, murder and rape.
A witness may fall into one of the following categories:
Bystander
Police informer
Anonymous whistle blower
Justice collaborator: a member of an organized
crime ring who extricates himself and offers
information/evidence to law enforcers and
in return may be rewarded through light
sentence or total remission of the charges
Victim-witness e.g. a rape victim
Expert: e.g. Pathologist, Hand writing expert,
bomb technologist, psychiatrist
To many people in Kenya, Witness Protection
connotes physical relocation of an endangered witness
to a remote, amorphous out-of-the-country address.
This perception has been fired more by the constant
capture in the Press of the 2007 Post Election
Violence (PEV) witnesses whom Mr. Ocampo relocated to some European countries to await the trials
at the International Criminal Court (ICC) in The Hague,
Netherlands.
But safe houses aside, other protection measures
include routine police escort, identity change, physical
disguise, testimony via video-conference, voice
distortion, redaction of identity in court etc.
However,
physical relocation remains the most
expensive mode as it usually involves the witness and
family members, usually their upkeep and education
of children. In short the Program applies the restitutio
ad integrum principle to maintain the witness/family to
as comfortable a lifestyle to that obtaining before their
admission.

2. Historical Context
Joseph Valachi, a member of the American-Italian Mafia
turned justice collaborator is documented as the first
witness accorded quasi-formal Government protection
when he testified in 1963 to a US Congressional
Committee on the structure of the Mafia. Not until the
early 1970s was The Witness Security Program of the

11

Issue 24, January - March 2014


US (WITSEC) established. The same was amended in
1984. Italy established a similar program that same
year. Australia and China followed a decade later in
1994, South Africa 1996, Colombia 1997, Germany
1998. And yes! The Mexican wave reached Kenya
relatively early in 2006, rendering it the second on the
continent after South Africa.
In Kenya, the mandate for witness protection was
initiated by a small unit under the Office of the
Attorney General in 2006. Given force by the Witness
Protection Act, 2006 (later amended by The Witness
Protection (Amendment) Act No.2 of 2010), the
Witness Protection Unit(WPU) established the Witness
Protection Programme (WPP) and finally became the
Witness Protection Agency in 2010, operationally
independent of the Office of the Attorney General.
The Witness Protection Act governs the provision of
special protection to persons possessing very important
information and who are facing potential risk for cooperating with law enforcement agencies. The decision
on protection is broadly dependent on the nature of
crime and the severity of the threat to a witness.
The Act delves into the operations of the Agency
including how it is run and criteria for protection.
The Agency, though public-funded, remains an
independent body, meaning that no other authority
may interfere with its work.
The Agency is complemented by the Witness Protection
Advisory Board whose major role is to advise on policy
guidelines and approve budgetary allocations.

3. Legal Grounding
a) The Constitution
In Kenya witness protection remains a fundamental
human right as clearly captured under the Bill of Rights
(Chapter Four) in the Constitution.
Article 48 guarantees the right to access to Justice
while Article 50(9) has provided for the need to have
legislation to provide for protection, rights and welfare
of victims of offences.
The two Articles read together, therefore, obligate the
Government to protect witnesses in Kenya.
Specific sections of the Constitution that
provides for the right to protection include: Article 29, which provides

for freedom and security of


person from any physical or
psychological harm.
Article 48 guarantees the right
of Access to Justice.
Article 50(7) the right to a
fair hearing. The court allows
an intermediary to assist the
complainant or an accused
person to communicate with
the court.
Article 50(8) provides for the
right to protection of witnesses
or vulnerable persons.
Article 50(9) has provided for
the need to have legislation to
provide for protection, rights
and welfare of victims of
offences.
Under Article 50(8) as read
together with Article 48,
Government is obligated to
protect witnesses in Kenya.
While witnesses have a right
to be protected, it is subject to
certain established criteria and
procedures. Under the Witness
Protection Act, there is an
application procedure, and the
decision for admission into the
protection programme is made
by the Director of Witness
Protection Agency.
b) The Witness Protection Act, Chapter 79
of the Laws of Kenya
Section 4 of the Witness Protection Act obligates the
Agency to establish and maintain a witness protection
programme and further provides for protection
measures to be applied by the Agency.
Sections 13 to 29 of the Act provide for the protection
of the identity of the witness. Such protection is found
in the following instances:
i. Obtaining a new identity for
the witness including such
identity being placed in the

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12

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proper registries of birth,
marriage(section 13)
ii. Information of a participants
identity not to be disclosed
(section 22)
iii. Non-disclosure
of
former
identity of protected person
(section 23)
iv. Identity of participant not to be
disclosed in legal proceedings
(section 24)
c)Sexual Offences Act(SOA)

Section 31 and Section 32 of the Sexual Offences Act


provides for the protection of vulnerable witnesses in
sexual and Gender based violence cases. Such cases
are to be heard in camera.
Section 31(11) of the SOA prohibits anyone from
publishing information which would expose identity
of witness.
d) The Criminal Procedure Code (CPC)
Section 77 (2) of the CPC provides for in camera
proceedings in cases relating to incest, abduction, rape
and defilement.
e) The Childrens Act
Section 77(4) of the Childrens Act requires that cases
involving children shall be held in childrens court at
distinct times from other cases and that no unauthorized
persons shall be allowed in the court room.
Section 75 (5) of the Childrens Act provides for the
protection of the children by prohibiting the publication
of the childs identity home or last place of residence
or School in any proceedings .
In accord with this Act the Witness Protection Agency
has designed a special Protection application form
(Form C) to cater for the needs of child witnesses
f) The Prevention of Terrorism Act
Sections 17 and 18 of the Prevention of Terrorism
Act provides for the protection of witnesses from
vengeance and intimidation by making such actions
criminal offences. In particular, Section 19 prohibits
anyone from disclosing any information regarding the
conduct of investigations by a police officer.
BB Issue 24, January - March 2014 Feature Case

A main operational challenge of the WPA is that


whereas it is publicly-funded, its role is very delicate
and therefore has to conduct its operations discreetly
away from daily public glare. That means some facts
and figures e.g. number protected and where, must,
understandably remain classified.

4. International Co-operation
A successful resolve to check crime must entail
collaboration both local and international WPA has
entered into various partnerships to help achieve its
mandate.
According to the Kenyan Constitution, international
treaties/instruments to which Kenya subscribes/
signatory automatically becomes part of our Laws and
are binding.
Among these is the United Nations Convention against
Organized Crime (2005 UN General Assembly,
Resolution 55/25, Articles 6&7) which requires partner
States such as Kenya to provide measures to protect
witnesses from intimidation, coercion, corruption, or
injury.
Perhaps the better known of these international
instruments is the Rome Statute of the International
Criminal Court (ICC) which requires co-operation
with ICC on the protection of witnesses and victims,
preservation of evidence, facilitation of a witness
voluntary attendance before the ICC. Kenya ratified
the Rome Statute in 2005. In addition the same was
domesticated by provisions of the International Crimes
Act of Kenya (ICA) of 2008. Under Section 89 and 105
of the International Crimes Act 2008 of Kenya, the
Government is under obligation to protect the witness
during the ICC investigations and ensure that they are
facilitated to appear before the ICC to testify. Section
89 of the International Crimes Act states:The Attorney General shall assist in the making of
arrangements to facilitate a witnesss attendance
before the International Court arrange the travel
of witness to the ICC ..
Other collaborative frameworks of WPA include the
United Nations Office on Drugs and Crime (UNODC)
which has seconded an expert to help build technical
capacity. The other is the Institute of Security Studies
(ISS) of South Africa, which has been very instrumental
in developing of IEC material as well as staff training.
There are very strict admission criteria to the witness
protection programme since its capacity (financial,
material) is not open-ended.
But with frameworks for finance sourcing from

13

Issue 24, January - March 2014


international partners the Agency currently based in
Nairobi may be able to decentralize its operations and
have a physical address in the Counties.

5. Milestone and Way Forward


In its three year of autonomy WPA has achieved
the following

Established a toll-free customer care


line (0800- 720 460)
Established 24-hour hotlines manned
by Operations staff (0711 222 441,
0725 222 442)
Established its website (www.wpa.go.ke)
Entered into Service Level Agreements/
MOUs with various organizations

Received and processed over (900)


applications for protection

Established a Liaison Office at Milimani


Law Courts, 4th Floor, Room 403.

Strengthened Human Resource base


by competitively recruiting relevant
professionals in all cadres

Sensitization/Training workshops with


various stakeholders

Running
its
own
Finance
Vote(previously relied on Attorney
Generals Office)

Mass Awareness
Television

Campaign

using

Launched Logo as part of Branding


process

Some rights reserved by Julien Harneis

Feature Story

14

No More Plastic Smiles


No More Plastic Smiles
By Dr Isaac Kalua.

Dear Friends in Green,

t some point in
the course of
your
everyday
life, you probably
encounter plastic smiles.
It could be at the supermarket when that cashier
has no more smiles left in her after a hard days
work. But as she hands you your change, she
smiles fleetingly. Her plastic smile is dutiful but
insincere. Her aide, who is even more tired after
standing for more than seven hours, neatly packs
your wares in a plastic bag and hands it over to you
with a matching plastic smile.

Friends, this letter is really about the plastic bags and


how they contribute to our plastic smiles.
Here are the facts.
Over 1 trillion plastic bags are used every year
worldwide. China alone consumes 3 billion plastic
bags daily. About 1 million plastic bags are used every
minute and each of these bags can take up to 1,000
years to degrade.
Plastic bags are the second-most common type
of ocean refuse with every square mile of ocean
containing about 46,000 pieces of plastic floating in it,
70% of which finds its way to the ocean floor. So what
happens to all this plastic? When plastics break down,
they dont biodegrade; they photodegrade. This means
the materials break down to smaller fragments which
readily soak up toxins. They then contaminate soil,
waterways, and animals upon digestion. Production
of plastic bags also consumes huge amounts of fossil
fuels and chemicals.
Now that you know the facts, take a second look at
the plastic bags that litter the streets and look at them
differently. They are not just an eyesore but are a health
and environmental hazard. They must be done away
with. But is this possible. How can we just do away
with over 1 trillion plastic bags? One person at a time,
one plastic at a time, one country at a time. One
country has already done it and we can learn from her
experience.

BB Issue 24, January - March 2014 No More Plastic Smiles

In 2008, Rwanda won a major part of the war against


plastic bags when it declared a nation-wide ban on all
plastic bags. Writing in the New Times one year ago,
Dr Rose Mukankomeje, the Director General of the
Rwanda Environmental Authority (REMA) explained,
the policy of banning the use of plastics didnt come
suddenly. It was adopted after studies demonstrated
the significant negative impacts of plastic bags on our
environment from which we derive our livelihood and
support most of our activities. The studies that she is
talking about spanned four years.
Because closure of one door opens another one, this
ban led to new investments in new forms of packaging
that included paper, cloth or banana leaves. This has
demonstrated that widespread usage of biodegradable
material makes more economic and environmental
sense.
Thankfully, the East Africa Community is now following
Rwandas footsteps. The East Africa Legislative
Assembly has enacted the Polythene Materials Control
Bill. But legislation can only go so far. The letter of
the law can only be written by legislators and they
must do so. However, the spirit of sustainability must
be embraced by all of us. It is a spirit that requires
us to move away from the use-and-dump mentality
with which we embrace plastic bags and begin to fully
utilize reusable bags.
My dear friends the State can introduce plastic tax.
Ireland did it in 2001 and it has since reduced plastic
bag usage by 93.5%. In addition, States can provide
tax and cash incentives for usage of plastic poles. This
will encourage sustainability investments along these
lines even as it cleans up the environment. States can
also follow Rwandas footsteps and introduce relevant
legislation. But the State can only do so much.
You and I have a responsibility of using plastic bags
less even as we invest in more sustainable and
profitable alternatives. Only then will plastic smiles be
transformed into the genuine smile of sustainability.
Think Green Act Green.
Yours in Green,
Dr Isaac Kalua

15

Issue 24, January - March 2014

Discovering Energy Efficiency

nergy efficiency is the silenced and shackled


lion that must be set free to steer Africas

economy forward.
Peter Drucker, the famed management guru
once said that ,efficiency is doing the thing right.
Effectiveness is doing the right thing. The question
then becomes, how can Kenya generate, distribute
and sustain energy in the right manner? This is the
right thing to do.

Every day, Kenyas forty million people use energy in


different ways and proportions. If energy was in a big
pot somewhere in the country, then it means that on
any given day, forty million people match to that pot
and scoop portions of that energy. Some scoop energy
for cooking, others for fuelling their vehicles, others
for charging their smart phones, others for drying their
hair and others for running their factories.

rehabilitation. We need policies that will require road


contractors to undertake these energy projects in the
most energy efficient manner possible. Why should
these contractors use one hundred scoops of energy if
they can use sixty? If they use less energy, the country
will save more money and more energy will be left in
the energy pot.
Its all about scaling up the countrys energy demand
management so that energy users can consume
fewer and fewer scoops of energy for similar, or
even more functions. To realize this, there is need for
comprehensive energy audits that will identify and
seal energy wastage loopholes. At the domestic level,
household appliances, electronics and lighting can be
systematically transitioned to more energy efficiency.
In the US, such energy efficiency initiatives saved 126
terawatt-hours of electricity in 2012.

Energy efficiency is about using energy both minimally


and optimally. In other words, if one scoop is sufficient
for charging your smart phone, why should you go
for two scoops? If you can buy a refrigerator that uses
only two scoops per day, why should you buy one
that needs three scoops per day for the same function?
Minimal and optima utilization of energy is everyones
responsibility.

The energy efficiency buck stops not with the


government, but with the people. It is they who must
demand of their government policies that are energy
efficient even as they embrace energy efficiency in their
homes, roads, work places, factories and everywhere.
On their part, both public and private sector leaders
must become energy efficiency champions who will
ensure that the country uses as little energy as possible
for as much as possible.
Think green, Act green!

The government must be energy efficient at the


budgetary, operational and policy levels. Banning use
of fuel guzzlers by government officials was a policy in
the right direction. But it is only a first step that must
lead to a thousand more energy efficient policies.

Dr isaac P.Kalua is a Thought Leader in the Climate


Change spheres with a passion for Renewable Energy
and Development of Ecological Infrastructure. He is the
Founder and Chairperson of Green Africa Foundation
and runs a green blogwww.isaackalua.com

However lack of government policies must never be


an excuse for lack of citizen action. It is incumbent on
private motorists and public transport owners to invest
in vehicles that are highly fuel efficient. This makes
both economic and environmental sense.

Kenyatta International Conference Centre (KICC)


Lower Ground Floor, Suite 13 ,
P.O. Box 9164 - 00200 Nairobi, Kenya
Tel: +254 0724 264444
Fax: +254 20 224 8768

In Kenyas last budget, 97.9 billion shillings was set


aside for continued road expansion, upgrading and

Email:kalua@greenafricafoundation.org

Discovering Energy Efficiency

16

Law Reporting

Importance of Writing a Will


By Andrew Halonyere , Law Reporting Department

hat is a indicate and clearly specify the following:


The executor or trustee to carry out the
Will?

Put simply,
a Will is a
legal instrument that permits a person, the testator, to
make decisions on how his estate will be managed and
distributed after his death.

What are the Benefits of writing a Will?

A Will allows you to set out very clearly your wishes as


regards your wealth in the event of your death. Having
the right Will ensures that:
Your wishes are honored in your death.
Your estate will be left to whomever you wish.
Administration and distribution of your residual
estate is conflict free.

Why are many people not keen on writing a


Will?

instructions or wishes as stipulated in the


written Will. The appointed executor or Trustee
cannot be named a beneficiary otherwise the
Will will be declared void.
The custodian to ensure that the Will is kept in
a safe place until demise.
The Administrator of the estate is responsible
for making the necessary legal applications and
ensuring that the distribution of assets is carried
out in accordance with the written Will and
law.

Testators Intent

For a will to be admitted to probate, it must be


clear that the testator acted freely in expressing his
testamentary intention. A will executed as a result of
undue influence, fraud, or mistake can be declared
completely or partially void in a
probate proceedings.
of Will

Many reasons abound as to why


Review
many people dont write wills. Many
Its advisable to review your Will after
procrastinate on until the inevitable every significant life change, so that it Can One Amend His/Her Will?
happens. Some think it is not still reflects your wishes.
Yes, any time!
important while others just put it off
Its advisable to review your Will after
forever. Superstition also plays a part.
every significant life change, so that
In many African cultures, any form of advance it still reflects your wishes. Life events such as marriage
preparation relating to ones death, is perceived as or divorce, death of spouse or child, may mean that
inviting death or some tragedy. It is only the very sick part(s) of your existing Will (or even all of it) become
and those nearing death, who should say their last invalid and therefore make a re-write necessary.
words, otherwise any premature readiness is a taboo.

What are the requirements for a Will?

A valid will cannot exist unless three essential elements


are met. First, there must be a competent testator.
Second, the document purporting to be a will must
meet the execution requirements of statutes, often
called the Statute of Wills, designed to ensure that the
document is not a fraud but is the honest expression of
the testators intention. Third, it must be clear that the
testator intended the document to have the legal effect
of a Will.
Besides the above requirements, a Will should also
BB Issue 24, January - March 2014 Law Reporting

Between a Will and a Beneficiaries Nomination


Form, which one is superior?

The two documents serve different purposes. A Will


applies to the administration of the estate of the
deceased person while the Beneficiaries Nomination
Form is for disbursement of benefits from a retirement
benefits scheme following the demise of a member.
Benefits from a scheme do not form part of the estate
of the deceased member and are therefore paid as per
the rules and regulations of the scheme as stipulated in
the Trust Deed and Rules.

17

Issue 24, January - March 2014

Why Implementation of Devolution Must


Take Time
By: Obura Paul Michael, Researcher, Murgor & Murgor Advocates
Email: Roggzinho@yahoo.com

efore Kenyans overwhelmingly voted for the


new Constitution, it was a well-known fact
that implementing this supreme document
would not be a simple walk in the park. It
was expected that the Constitution would introduce a
new system of governance that focused on spreading
development to the grassroots. It was also expected that
the Constitution would introduce a two tier system of
self-governance based at both the national and county
level.

Kenyans expected the Government to fully implement


the provisions of the law they passed and the new
political and governance dispensation to help solve the
much deep rooted social economic problems. Most
of these problems are as a result of poor leadership
that was great greatly manifested by poor institutional
frameworks. Suffice it to say that were still a unitary
state, our sovereign Constitution is categorical in
Article 1(4), that we the people of Kenya shall exercise
our power at the national and county level.1 Article 5
defines the territory of Kenya and above all, Article 6
elaborates that our territory is divided into counties2.
It was our insatiable desire to devolve resources to the
grassroots which is now in the framework of counties.
Therefore from the onset, it was apparent that County
Governments will inherit significant spending
responsibilities. County spending, from day one,
would be mainly dedicated to ensuring that existing
services were delivered. If counties fail to deliver, there
is a risk of re-centralisation. Decentralising too much
too soon could be a losing strategy both in the short
and the long term.
First, sub-national governments needed a strong
centre to prosper. The centre has key functions to
play such as co-ordinating nationwide expenditure
policies, setting national standards, monitoring county
performance and providing capacity building that
are essential for devolution to work.

Second,
putting
too
ambitious a workload on
counties that already lack the
capacity to handle modest spending may be opening
the door to financial mismanagement and service
delivery failure.
If counties fail, public backlash and re-centralisation
could set back devolution for years to come, causing
long term damage to the project.
Pursuant to this3, on the 22nd October 2010, the
then Deputy Prime Minister and Minister for Local
government established the Task Force on Devolved
Government (TFDG) to help think through the
implementation of the devolution process and advise
the Government on policy and legal frameworks of
devolving power, resources and responsibilities to the
people of Kenya for effective local development.
However their Interim Report4 came under heavy
criticism for reasons that it proposed a multiplicity
of laws to be passed which were likely to fragment
implementation, introduce contradictions within
various legislations and make it difficult for county
administration to understand the legal provisions for
the county.
The report failed to take cognizance of legislative
provisions in Part IV of Schedule 65 of the Constitution
and how its proposals would fit into each, particularly
those which were already under development such as
the electoral laws, vetting of public officers and public
finance legislation.
The report also mentioned some 700 laws to be
drafted/revised to operationalise the Counties without
substantiating this seemingly alarmist proposal.
It made specific recommendations for some
legislation not provided for in the constitution, such

3
4

1
2

The Constitution of Kenya, 2010

Kenya is divided into 47 counties

Chapter 11 of the Constitution of Kenya, 2010


Interim Report for the Task Force on Devolved Government

With regard to Division of Revenue, operations of the devolved


government, provincial administration and the local authorities

Law Reporting

18
as the functional assignment policy and the County
development planning and facilitation bill.
Currently there are about 14 legislations that guide the
workings of County Governments. These are just a few
among some 700 proposed laws on devolution. They
are:
The Constitution of Kenya 2010- It lays the basic
ground work for the implementation of devolution by
empowering parliament to enact laws in that regard.
The County Government Act (No. 17 of 2012)provides the county governments power, functions,
and responsibilities to deliver services and to provide
for other connected purposes.
The Intergovernmental Relations Act (No. 2 of 2012)gives effect to article 187 and 200 of the constitution,
in respect of transfer of functions and powers by one
level of government to another, including the transfer
of legislative powers from the national government to
the county governments.
The Public Finance Management Act (No. 18 of 2012)ensures that public finances are managed at both the
national and county levels in accordance with the
principles set out in article 201 of the constitution and
that those public officers who are given responsibility
for managing those finances are accountable to their
management to public through parliament and county
assemblies.
The Transition to Devolved Government Act (No.
1 of 2012)- Ensures smooth transfer of powers and
functions from the national government to the
county government. Provides a legal and institutional
framework for a coordinated transition to the devolved
system of government.
The Transition County Appropriation Act (No. 7
of 2013)
The Urban Areas and Cities Act (No. 13 of 2011)
The Basic Education Act (No. 14 of 2013)
The Constituencies Development Fund Act (No.
30 of 2013)
The County Governments Public Finance
Management Transition Act (No. 8 of 2013)
The Division of Revenue Act (No. 31 of 2013)
The National Government Co-ordination Act
(No.1 of 2013)
The Transition County Allocation of Revenue Act
(No. 6 of 2013)
All these laws are not cast in stone. They are meant
to provide a legal basis for the functioning of county
governments. But Kenyans are a disillusioned lot and

Law Reporting

Issue 24, January - March 2014


have so far lost faith in devolution. The Social media
is abuzz with negative vibe directed towards county
governments which have taken the infamous route of
increasing taxes and introducing additional levies on
services they provide. In Rush Limbaughs words, no
nation has ever taxed itself into prosperity; a statement
which I verily believe to be true. I think every county
government has a responsibility of demystifying
devolution in their respective areas.
County Governments through their county assemblies
can enact laws on various issues that need regulation in
their counties. An example is the Nairobi City County
Finance Act 2013 that among other things was to
regulate county transport. The Fourth Schedule6 to the
constitution demonstrated that county governments
had the exclusive mandate over the county transport,
which includes traffic and parking.
In Nairobi Metropolitan PSV Saccos Union ltd and
25 others v County of Nairobi Government and three
others7 Justice Isaac Lenaola further reiterated that
Article 209(4) of the constitution empowered national
and county governments to impose charges for the
services they provide. One such service provided by
the county government was parking under Section 5(c)
of the Fourth Schedule to the constitution.
Local authorities cannot be equated to county
governments as the structure and design of the
constitution has given county governments an elevated
position as one of the organs to which sovereignty of
the people of Kenya is delegated under Article 1 of the
constitution.
A survey conducted by the National Taxpayers
Association8 showed that County governments were
not involving the public when making decisions that
affect them. That there was very little participation if
any, when drawing county development plans.
The survey, which was conducted in 10 counties,
came in the wake of disgruntlement across counties
over some levies introduced by regional governments
which some residents have regarded as outrageous.
The taxes have also sparked demonstrations in some
of the counties.
The senate had opposed the revenue raising measures
taken by some counties with its Committee on

6
7

Section 5(c)
Petition No. 486 of 2013

Daily Nation Newspaper dated 4th February 2014

Law Reporting
Finance, Commerce and Economic Affairs declaring
that taxes introduced by the county governments were
unconstitutional and demanded their revocation.
Even though the survey paints a different picture from
what I was expecting, I still believe as a country we are
on the right path in implementing devolution. Article
10(2) of the constitution establishes the founding
values of the state and includes as part of those
values, transparency, accountability and participation
of the people. It is thus clear that the constitution
contemplates a participatory democracy that is
accountable and transparent and makes provisions for
public involvement.
However, there is no proper way of quantifying what
constitutes little participation. In my humble opinion,
I think it is a relative word; relative in the sense that it
might be construed to mean either of the following:
1. No public advertisements were made hence less
people were aware of the county development
plans or;
2. Public advertisements were made; many
people were aware of the said plans but chose
not to or did not participate in its formulation.
In the wake of current civilian activism, where people
have a tendency and without second thought, of rushing
to court whenever they think their constitutional
rights have been infringed, it becomes increasingly
difficult for county governments to meet the minimum
threshold for public participation.
I am alive to the fact that Article 22 of the Constitution
safeguards ones right to institute court proceedings
on an infringement of a right or fundamental freedom
in the Bill of Rights while Article 258 hinges on ones
right to institute proceedings on any contravention of
the Constitution itself.
However this civilian reaction in my humble view
amounts to a blatant disregard of Article 159(2)(c) of
the Constitution which provides for aggrieved parties

19

to seek alternative dispute resolution mechanisms


rather than clog the courts with frivolous applications.
With regard to enacting legislation that affects county
operations, county governments derive that authority
from the Constitution under article 174 (c) which
provides for the principles of devolved government
and has given powers to the people to enhance
self-governance and enhance their participation in
decisions that affect them. With that in mind, the making
of county laws by members of the county assembly is
also an essential part of public participation.
Recently there was a payroll hitch9 that resulted in
Civil Servants from 21 counties missing out on their
January 2014 allowances. The Cabinet Secretary for
devolution Ms. Anne Waiguru specified that during the
transfer to county governments, a critical function that
processes allowances was inadvertently not activated.
As a result, a number of civil servants did not get their
allowances in January 2014.
This is just but one of the many challenges the Jubilee
Government is facing and is bound to face in future,
in its constant clamour for full implementation of
devolution. I reiterate the statement in paragraph one
of this article that indeed achieving 100% devolution
wont be a simple walk in the park. Trial and errors are
expected as it is only in human nature to do so.
Good things take time10; too much of what we do is
last minute, poorly conceived, poorly planned, and
shabbily executed. The Book of Romans may have
been written in a relatively short period of time, but it
was conceived over a period of years, I am convinced.
Good meals take time to simmer. Good things take
time to accomplish. God is not in a hurry, and He does
not need last minute programs. Devolution is a good
thing happening to our country right now; it is like
that good meal that takes time to simmer. Therefore
we must give it time to fully materialize so we may be
able to enjoy the benefits it brings forth.
9
10

Daily Nation Newspaper dated 6th February, 2014


Romans 2:7-8

BB Issue 24, January - March 2014

20

I.C.T Department

The Pain of Change Management.


By Martin Andago, Team Leader ICT Department

ave you ever


watched a little
child trying to
learn a new
skill? Typically children try over and over again, with
a visible enthusiasm and eagerness until they have
embraced their new skill. On the other hand, if they
do not learn fast enough, it can end in a hysterical
tantrum.
Why does this eagerness and curiosity disappear
when we become adults? However, many people
might still enjoy learning the new functionalities
when buying a new electronic device for
themselves. Yet when we talk about work related
tools, where we do not necessarily see any direct
benefits, it can feel like anything new or different
causes a lot of frustration. Especially, if it means
that you have to slightly change your way of
doing something. You try to come up with any
excuse in order to delay the implementation of
the new system. Sometimes you even see people
having a nervous breakdown when things do
not go the way they want.
However,
technological
evolution
is
inevitable, and it eventually becomes clear
that you just have no choice but to adopt
the change programs at some point. We
have the constant release of security
patches, hot fixes, service packs, new
versions, changes to code, hardware
replacements, configuration changes,
modifications to reference data the
list goes on. From the point of view of
a company, the setbacks in adopting
the new system means delays in the
pay-back times on investments,
or in higher maintenance costs,
because you have to run two
systems at the same time.
Leading people through change
seems to have a lot in common
with educating teenagers. A good

start is to have the students
BB Issue 24, January - March 2014 I.C.T Department

to come to class and be present and stay.


After
that, it would be
great if you could
Learn a new skill?
get the students
to focus on what Typically children try over and over
is being taught again, with a visible enthusiasm and
instead of eagerness until they have embraced
their new skill.

browsing on the Internet with their


smartphones. A break through is near
when you manage to convince them
to lose their whatever attitude, even
for a brief moment.
The same seems to apply when
teaching adults, especially when
dealing with change programs
where it is not enough to
only learn a
n e w

Issue 24, January - March 2014


system, instead the change requires adopting a new
role, different ways of working, and even a change
of mindset. Taking people through change programs
requires time, patience, imagination, innovative
methods and, above all, an ability to listen and respect
a person who is struggling on the journey through
change.

ITIL The Way Out


Back in the 1980s, the UK government, realizing that
organizations were becoming increasingly dependent
on their IT systems, had some folks look into the whole
subject of managing IT services.
What they saw was various organizations (both
public and private sector) experiencing essentially the
same service management pains, but independently
dreaming up and implementing their own best
practices as a result.
The folks looking at service management therefore
distilled the shared experiences of all these
organizations into a single unified set of best practices
an accumulated wisdom for service management.
The best practices were named ITIL the Information
Technology Infrastructure Library. Among these
practices was a heap of good advice for systematically

Some rights reserved by sntgmdm

21
managing change, and thereby crucially minimizing
its associated risk.
ITIL is a business aspiration; An aspiration for
organizations to move towards. It is not a compliancebased regulation, nor an enterprise certification. There
is no ITIL awarding body to visit your organization,
hand over a certificate, and warmly shake your CEOs
hand as he proudly has his photo taken for the Daily
Nation.
Additionally, there is no ITIL secret police ready
to break down your door in the middle of the night
because you raised a change request without the
necessary documentation attached. ITIL cannot be
achieved by any one individual. It is no use making
one person responsible for implementing ITIL within
an organization, because that person will undoubtedly
fail.
The value of ITIL must be recognized at the very top
of the organization, and a firm resolution to embrace
its principles into the company culture must run down
from the highest echelons of management.
Only with this kind of corporate buy-in does ITIL stand
any chance of being successfully implemented and
adhered to. This may not be an easy thing, but the
rewards are vast.

I.C.T Department

22

Issue 24, January - March 2014

Human Resources and Administration


Department
By Janette Watila, Mutindi Musuva And Erick Odiwor

Kenya Law Retreat

he much anticipated Kenya Law Annual


Staff Retreat and Team Building took
place between 21st to 23rd November,
2013 at Voyager Beach Hotel, Mombasa.
The retreat provided a perfect opportunity for
Kenya Law to build on the team spirit, promote the
envisaged values and also provided an avenue for
a constructive dialogue among the team members.
The team departed Nairobi for Mombasa on
21st November, 2013
and on the second day,
22nd November, 2013
the
facilitators,
CPS
International under the
leadership of Mr. Dennis
Munyaka took the team
through various thrilling
outdoor activities like
Grab, Korororo Mama
Song, Mukedo, Team
Brand and Australian
dance. This was followed
by Back to back and
Treasure Hunt activities.
The next day, 23rd
November, 2013 the team

was taken through the Hill Song, Hoola Hoop


Pass, Pass Over, Who are you, break through
initiatives, the dress and finally the Lifetime Hug.
After all these activities and self-assessment, the
various action points were devised like the need
for staff members to have a more positive attitude,
become more innovative, enhance team cohesion
and live the true spirit of Kenya Law values.
The department would like to appreciate the active
participation of the Kenya Law team members in
ensuring the retreat was a success and in meeting
the retreats objectives.

1. Mr. Michael Murungi, The outgoing CEO


caught in a Missed Out A Partner Exercise!
2. Siphirah Gatimu and Pauline Wangui
enjoying Back to Back.Back to back.
3. Kenya Law Team doing a Hoola Hoop
Pass Exercise.

HR Department

HR Department

23

Kenya Law Staff participating in variuos team building activities

The Move to Kenya Laws New Office at Ack Garden Annex Becomes a Reality

inally the move to


our new offices at
ACK Garden Annex
became a reality on the
10th,
February,
2014
when the first team of
staff from the Laws of
Kenya, Strategy, Research
and Development, IT,
Hr and part of Finance
Departments commenced
relocating to the new
Kenya Law offices at the
ACK Garden Annex.
The rest of the staff
members also started
moving to the new offices
with effect from 28th
February, 2014. So far, all
the staff member have settled in well in the new Kenya Law
offices an exercise that had been coordinated with minimal
interruptions. It is now evident that with the more conducive
work environment Kenya Law can now serve the clients more
efficiently.
1. Deputy Chief Justice, Hon. Lady Justice Kalpana Rawal officially opens the
new Kenya Law offices at ACK Gardens Plaza.
2. The Chief guest being taken round the new offices
BB Issue 24, January - March
Feature Case
HR 2014
Department

24

HR Department

New Staff Members

enya Law is pleased to welcome the new staff


members, Ms. Janette Watila the new Human
Resources and Administration Manager, who
joined the team on 5th February, 2014 and Ms. Irene
Wambui Mwei an Intern who joined the Finance
Department on 9th January, 2014.

Ms.
Janette
Watila,
Human
Resources
&
Administration
Manager

Wambui Mwei,
Department

Intern

Finance

Annual Staff Conference

he Annual Staff Conference


was held on 14th February,
2014 at Panafric Sarova
hotel, Nairobi. During the
conference various awards were
given to the employees and
teams. Before the event started,
the Chief Guest, Honorable
Deputy Chief Justice, Kalpana
Rawal opened the new Kenya Law
offices at A.C.K Garden Annex.
The chief guest later presided
over the opening of the Kenya
Law Annual Staff Conference
where she termed the journey
taken by Kenya Law as a great
milestone in its development and
a jewel to the Judiciary. She said,
It was difficult back then to access law reports
and judgments would pile up and even end up
being destroyed, only a few old publications were
documented. The Chief Guest said that the work
done by Kenya Law continue helping judges and
magistrates in accessing legal publications that are
handy in their work and wit the new, modern office
Kenya Law offices, the quality of judgments and
rulings in the Judiciary will improve tremendously.
On the employee of the year awards, Research and
Development (R and D) Department, emerged as
the Best Team while Linda Awuor, the Team Leader
of Research and Development was recognized as

BB Issue 24, January - March 2014 Feature Case

Team Leader of the year. Njeri Githanga, from


Law Reporting Department was recognized as
the employee of the year. The first runners up was
John Paul Mutugi from Finance Department while
Esther Ivy Njoki emerged as the second runners up
under this category. Mr. Humprey Khamala, from
Law Reporting Department was recognized for
being the longest serving employee of Kenya Law
after having served for more than thirteen years.
During the conference, Kenya Law was privileged
to have a renowned motivational speaker, Dr. Wale
Akinyemi who emphasized to the audience the
need for every person to have a vision, self-belief
and work towards attaining the set vision in order

25

Issue 24, January - March 2013

to succeed. The speaker went ahead and narrated


his own personal life experience of how he
emerged from a state of hopelessness, a MUMU
to become the kind of international brand he is

today. Therefore, anybody is capable of rising from


any state of hopelessness and become somebody
who is sought after and admired, a personal brand
in the world.

1. The Outgoing CEO of Kenya Law, Mr. Michael Murungi giving


his speech during the conference.
2. Dr. Wale Akinyemi, the Motivational Speaker making his
presentation
3. Linda Awuor, the Team Leader of Research and Development
and Kenneth Oduor a team player of the Department doing
some jigs before the Departmental presentation.
4. Former Interns at Kenya Law being feted during the conference
5. Kenya Law Team applauding various presentations and winners
of different categories.

HR Department

26

Issue 24, January - March 2014

Legislative Update: Acts Enacted in the Period


August-December, 2013
By Vivian Etyang, Legal Researcher, Laws of Kenya Department.

Introduction:

hapter Eight of
the
Constitution
of Kenya, 2010
at Article 93(1)
establishes a bi-cameral Parliament of Kenya to
consist of a National Assembly and Senate. The Role
of Parliament is stipulated in Article 94(1), to exercise
the legislative authority of the Republic of Kenya at the
national level. The following Acts were enacted in the
period August-December, 2013.

County Allocation of Revenue Act (No. 34 of


2013):

Article 217 of the Constitution of Kenya, 2010 provides


that the Senate shall, by resolution once every five
years, determine the basis for allocating among the
counties the share of national revenue that is annually
allocated to the county governments.
This Act provides, pursuant to Article 202(2) and
218(1)(b) of the Constitution, for the division, among
the counties, of conditional allocations and equitable
share of revenue allocated to the county level of
government on the basis determined in accordance
with the resolution in force under Article 217 of
the Constitution for the financial year 2013/14 and
to facilitate the transfer of the allocations made
to the respective counties under this Act from the
Consolidated Fund to the respective County Revenue
Funds.
Amongst other provisions, Part I of the Act provides for
the shareable revenue for the financial year 2013/2014
to be distributed as set out in the First Schedule and
the division of revenue among county governments for
the financial year 2013/2014 as set out in the Second
Schedule. It also provides for allocation of the revenue
allocated to the county level of government to each
county government for the financial year 2013/2014 in
the manner set out in Column C of the Third Schedule.
Conditional allocations to provide for the funding of
regional referral hospitals and to ensure continuation

Laws of Kenya

of other essential services shall be made to the county


governments in the manner set out in Column B in the
Third Schedule.

Value Added Tax Act (No. 35 of 2013):

This Act repeals and replaces the Value Added Tax Act,
Chapter 476, Laws of Kenya. It aims at addressing the
challenges faced in the administration of the existing law
by simplifying the law and thereby enabling tax payers
to comply with ease. It also provides for the adoption
of information technology in the administration of the
tax regime and the advancements that have been made
in the business environment while taking into account
international best practices. This is expected to reduce
the costs related to the administration and compliance
while raising the revenue obtained from value added
tax.

Amongst other provisions:

Part III of the Act provides for the imposition of value


added tax and confers powers on the Cabinet Secretary
to vary the rate of tax. It also provides for the exemption
of supplies of goods or services that are zero rated from
tax. PART IV provides for the circumstances under
which goods and services are regarded as having
been supplied in Kenya and the taxation of imported
services. It also provides for the appointment of a tax
representative by a registered person, who does not
have a fixed place of business in Kenya, facilitating the
ease with which a registered person complies with his
obligations under the Act.
Section 65 provides for the application of the East
African Community Customs Management Act,
2004 and any rules made thereunder relating to
customs generally, whether made before or after the
commencement of this Act, to have effect, with such
exceptions and adaptations as may be prescribed, in
relation to imported taxable goods, whether liable
to any duty of customs or not, as if all such goods
were liable to duties of customs and as if those duties
included tax.

Laws of Kenya
Media Council Act (No.46 of 2013):

This is an Act of Parliament to give effect to Article 34


(5) of the Constitution; to establish the Media Council
of Kenya and the Complaints Commission. Amongst
other provisions:
Section 6 provides for the functions of the Media
Council as to promote and protect the freedom and
independence of the media; promote and enhance
ethical and professional standards amongst journalists
and media enterprises and to advise the government or
the relevant regulatory authority on matters relating to
professional, education and the training of journalists
and other media practitioners.
Part IV provides for the establishment of the Complaints
Commission with the mandate to mediate or adjudicate
in disputes between the government and the media
and between the public and the media and intra media
on ethical issues; to ensure the adherence to high
standards of journalism as provided for in the code of
conduct for the practice of journalism in Kenya.

Matrimonial Property Act (No.49 of 2013):

This is an Act of Parliament to provide for the rights and


responsibilities of spouses in relation to matrimonial
property and cessation of application of the Married
Women Property Act, 1882 in Kenya.

27

Amongst other provisions:


Part III provides for the meaning, ownership of
matrimonial property and the property rights thereto.
Matrimonial Property means the matrimonial home or
homes, household goods and effects in the matrimonial
home or any other immovable and movable property
jointly owned and acquired during the subsistence
of the marriage. However, trust property, including
property held in trust under customary law does not
form part of matrimonial property. It also provides that
the parties to an intended marriage may enter into an
agreement before their marriage to determine their
property rights. Ownership of matrimonial property
vests in the spouses according to the contribution of
either spouse towards its acquisition, and shall be
divided between the spouses if they divorce or their
marriage is otherwise dissolved.
Section 9 provides for the acquisition of beneficial
interest by contribution which applies where a spouse
acquires property before or during the marriage and
the property acquired during the marriage does not
become matrimonial property, but the other spouse
makes a contribution towards the improvement of
the property, the spouse who makes a contribution
acquires a beneficial interest in the property equal to
the contribution made.

Some rights reserved by otherpaths

BB Issue 24, January - March 2014 Feature Case

28

Laws of Kenya

Digest of Recent Legal Supplements On


Matters of General Public Importance
Compiled by Ochiel J Dudley

his
Article
presents a brief
summation
of
Legislative
Supplements, published in the Kenya Gazette, on
matters of general public importance. The outline
covers the period between 26th July, 2013 and 31st
December, 2013

The subject matter covered by the Legal Notices in


this digest includes public procurement, mining, and
wages. Other matters include information technology
in the public service, grant of university charters as
well as rules of procedure and practice before the
Standards Tribunal similar to the Medical Practitioners
and Dentists disciplinary proceedings.
One of the legal notices concerns children as the
Childrens Welfare Society is exempted from certain
provisions relating to adoption societies, under the
Date of Publication

Legislative

Supplement

Childrens Act. On the other hand, women, youth


or persons with disabilities who operate SMEs might
be interested in the subsidiary legislation on the
registration of businesses wishing to benefit from the
thirty per cent reservation in public spend.
Members of the National Police Service and others
interested in security matters will be interested in the
National Police Service Vetting Regulations. Still on
security, this issue contains regulations promulgated
to implement the UN Council resolutions on the
suppression of terrorism.
Finally, one will discover that the much touted ban
on night time travel during the recent holidays, was
not really a ban, but a requirement that all night time
public service vehicles must be licensed.
Stay informed!

Citation

Preface

Number
26th July, 2013

102

Public
Procurement
(Revocation)
Regulations,
2013 (L.N. 121/2013)

The regulations revoked the earlier


amendments made vide L.N. 109/2013
Public
Procurement
and
Disposal
(Amendment) Regulations, 2013. The
amendments had initially provided for

26th July, 2013

102

Traffic
(Amendment)
(No.2)
Rules,
2013
(L.N. 122/2013)

These amendments allow members of the


public to obtain personalized number
plates at prescribed fees.

16th August, 2013

118

State Corporations Information


and
Communications
Technology Authority Order,
2013
(L.N. 182/2013)

The rules established the Information and


Communications Technology Authority to
succeed certain institutions. The Authority is
required to establish, develop and maintain
secure ICT systems especially across public
offices and service.

16th August, 2013

122

Mining
(Prescription
of
Royalties
on
Minerals)
Regulations, 2013
(L.N. 187/2013)

The regulations prescribe royalty rates


chargeable in respect of extracted minerals.

BB Issue 24, January - March 2014 Feature Case

29

Issue 24, January - March 2014


16th August, 2013

124

University of Nairobi Charter,


2013
(L.N. 192/2013)

The Charter was issued to the University of


Nairobi under section 19 of the Universities
Act 2012 after it complied with the
provisions of the Act.

30th August, 2013

125

Standards Tribunal (Practice


and Procedure) Rules, 2013
(L.N.
195/2013)

These rules were promulgated under


section 16H of the Standards Act, to
regulate the conduct of proceedings before
the Standards Tribunal.

30th August, 2013

126

Regulation of Wages
(Agricultural
Industry)
(Amendment) Order, 2013
(L.N. 196/2013)

The regulations were issued under section


46 of the
Labour Institutions Act, 2007 to set
minimum wages.

13th September, 2013

129

Moi University Charter, 2013*


(L.N. 102/2013)

The Charter was issued to Moi University


under section 19 of the Universities Act
2012 after it complied with the provisions
of the Act.

25th October, 2013

142

Children
Order,
(L.N. 206/2013)

(Exemption)
2013

By this order, the Children Welfare Society


of Kenya is exempted from the provisions
of section 171 of the Childrens Act on
adoption arrangements and societies.

22nd November, 2013

145

Statutes of Moi University,


2013
(L.N. 207/2013)

The Statutes are published under Section


23(2) of the Universities Act, 2012 for the
administration of the University.

22nd November, 2013

161

Public
Procurement
and
Disposal (Preference and
Reservations)
(Amendment
No. 2) Regulations, 2013
(L.N. 210/2013)

The regulations require procuring entities


to allocate thirty percent of procurement
spend for procuring goods, works or
services from enterprises owned by youth,
women or persons with disabilities. The
regulations also provide for the registration
of preferential suppliers.

22nd November, 2013

161

Prevention
of
Terrorism
(Implementation of the United
Nations Security Council
Resolutions on Suppression of
Terrorism) Regulations, 2013
(L.N. 211/2013)

The regulations were issued to implement


UN resolutions on suppression of terrorism,
under section 50 of the Prevention of
Terrorism Act, 2012

17th December, 2013

173

National Transport and Safety


Authority (Operation of Public
Service Vehicles) Regulations,
2013 (L.N. 219/2013)

The rules were issued by the Authority to


provide for the licensing and operation of
public service vehicles including licensing
of long distance night time PSVs.

20th December, 2013

175

Medical
Practitioners
and Dentist (Disciplinary
Proceedings)
(Procedure)
(Amendment) Rules,
2013 (L.N. 223/2013)

The regulations were issued by section 23


of the
Medical Practitioners and Dentists Act,
2013 to amend the procedure relating to
disciplinary process.

Laws of Kenya

30
*The Legal Notice, granting the Moi University Charter,
erroneously but repetitively mentions the University
of Nairobi (See L.N. 192/2013 published on 16th
August, 2013 in Legislative Supplement Number 124,
cited above).

Some rights reserved by filippo_jean

Laws of Kenya

Issue 24, January - March 2014


Additionally, the Legal Notice chronologically ought to
be number 202 of 2013 but bears the same number as
an earlier notice - the Provisional Collection of Taxes
and Duties Order, 2013 (L.N. 102/2013) published
in Legislative Supplement Number 89 on 18th June,
2013. Both errors are the probable results of a drafting
error or possibly a copy and paste task.

31

Issue
Issue24,
24,January
January--March
March 2014
2014

The importance of Performance


Measurement in Organisations
By Lydia Midecha and Edna Kuria,

If you want to improve something, you have to


measure it (Radovic & Karapandzic, 2005).

very organisation should have parameters by


which it measures its performance by. Most
commonly used are the Key Performance
Indicators (KPIs). KPIs are both financial and
non-financial parameters that are used to estimate how
successful an organisation or an employee is and are
used to developing long-term goals.
In the past, traditional approaches were used to
measure the performance of organisations, with
concentration given to the financial and accounting
aspects of the organisation. But things have changed.
With the information age and the rapid globalization,
information is a key resource for any organisation.

Measuring an organisations performance ensures that


the said organisation has a competitive advantage
over the others in the industry. To leverage on this
edge, the organisation must manage its employees,
processes, activities, time and stakeholder relations
with a view to maximise on their impact. Organisations
therefore should have effective systems for measuring
performances to adjust and improve the operations of
all departments therein.

Performance measurement needs to be SMART


(Specific, Measurable, Agreed Upon, Relevant and
Time Bound) and must yield viable results that
might lead to appraisal, negatively or positively.
The importance of measurement
is that success is verified in terms
to be SMART
of numbers and not emotion or
The importance of measurement is that ambiguity. Selection of appropriate
success is verified in terms of numbers
and not emotion or ambiguity. Selection indicators to validate these numbers
of appropriate indicators to validate therefore is very crucial.

New performance measurements


have risen, which have a defined
system of measuring all the
processes within an organisation.
Corporate Social Responsibility,
strategy implementation, people
management
and
change these numbers therefore is very crucial.
management are all measures
It is the most important process of all,
against which the organizational and
to choose these critical parameters
personal performance are measured against.
that represent the organisation as a whole. Indicators
therefore, are useful in developing and guiding the
Indicators should therefore be selected very carefully formulation and implementation of organisational
by any organisation. Appropriate indicators should strategies, and induce the organisation as a whole, as
be chosen and selected to measure the organisations well as individually, to fulfil the goals set.
success in terms of the human and process dimensions.
The process dimension in particular is an important Where KPIs are SMART, then evaluation, appraisal
part of any organisation, and through measuring the and feedback is made easier.
processes of any organisation, efficient and effective
systems may be put in place.

SQAP

32

Issue 24, January - March 2014

Employee Happiness: Does it Matter?


By Evelyn Anyokorit Emaase- Copy editor, Laws of Kenya Department

conducive working
environment,
an
encouraging
climate, and a
favorable atmosphere, is
every employees dream in the organization they work
for. Happiness at work is a matter worth much thought
as no one goes to work to be unhappy. The question we
ask ourselves is who is responsible for our happiness
at work?

Whose responsibility is it?

Your happiness at work is your responsibility. Many a


times, employees go wrong when they think that it is
the employers duty to make them happy. Creating a
favorable working environment is a shared obligation,
however this never happens. In as much as the
employer is responsible of creating a fair, collaborative,
open and innovative culture that allows employees
to make choices to be happy, employees equally in
their capacity are indebted to take up challenges that
make them creative, innovative, and dynamic thus
enhancing a favorable working environment which
gives life to their work. It is therefore important to note
that, happiness cannot be derived from organizational
policies, guidelines and the like but from the
things employees do which affect their results and
relationships.

Happiness results to high performance

Research done by a team of economists in the U.K.,


suggests clear links between workers happiness and
their productivity. Jamie Dowards Observer/Guardian
article, Happy people really do work harder, reports
that a team of economists led by Andrew Oswald, a
professor of economics at Warwick Business School
and a leading authority on the relationship between
economics and mental health, says its research has
important implications for the worlds of politics and
business.
We find that human happiness has large and positive
causal effects on productivity, the team says. Positive
emotions appear to invigorate human beings, while
negative emotions have the opposite effect.
The economists noted that : Happier workers were

Lifestyle

12% more productive. Unhappier workers were 10%


less productive.
Other sources shows that happy employees are
more engaged, motivated, innovative, team players,
energetic, optimistic, get sick less often, learn faster,
better decision makers, better leaders among others.
It is therefore evident that a happy employee would
be committed and involved with their work and their
organization. Employee commitment is very important
because it has the power to impact an employees
performance, and eventually, how that employee may
act to further the organizations interests.

Emotional intelligence
employee happiness

can

predict

Ones ability to assess, control, evaluate and manage


their emotions as well as assess other peoples
emotions in the workplace can be referred to as
emotional intelligence in this context. Experts in the
field of psychology have found that even as employee
happiness is linked to better job performance, it is
also linked to emotional intelligence. It suggests that
employees with higher levels of emotional intelligence
are more satisfied with and are dedicated to their jobs.
An employee, who is able to not only control his or
her emotions, but also gauge the motions of those
around them and effectively influence them, achieves
happiness.
Brian Anthony Hernandez, a Business News Daily Staff
Writer in his articles Emotional Intelligence Could
Predict Employee Happiness reports the findings of
the author Galit Meisler, a researcher at the University
of Haifa in Israel. Meisler examined the effects of
emotional intelligence on office politics, employees
attitudes, behaviors, feelings of justice and burnout.
Employees who did not analyze and control their
emotions, she concluded, demonstrated unfavorable
attitudes such as burnout, desire to quit and negligent
behavior . They also had less confidence in their
employers and were less committed to their duties. In
contrast, workers with higher emotional intelligence
perceived office politics as less severe than their
counterparts.
We also found that employees with a higher emotional

Lifestyle
intelligence level were less likely to use forceful and
aggressive forms of persuasion while attempting to
persuade their supervisors, Meisler said in a statement.
Those employees tended to use much softer influence
tactics.
It is also important to understand that the success
of an organization itself depends on the success of
people
whose
interventions
either
assuage
individuals
pain
or eliminate it
completely.
The
ability to effectively
deal with emotions
and
emotional
information
in
the
workplace
assists employees
in
managing
occupational stress
and
maintaining
psychological
well-being.
This
indicates that stress
reduction
and
health protection
could be achieved
not
only
by
decreasing
work
demands, but also
by increasing the
personal resources of employees, including emotional
intelligence. The increasing of Emotional Intelligence
(EI) skills like empathy, impulse control are necessary
for successful job performance that help employees
to deal more effectively with their feelings, and thus
directly decrease the level of job stress and indirectly
protect their health which results to happiness.

Should organizations strive to make


employees happy?

To mention, its more important than ever for


companies to have happy and productive employees.
But happiness is primarily, an inside thing it comes from
within a person and again what makes one employee
happy might not make the other feel the same. But
institutions generally should also strive to look on to
the things that especially add, allow and or enhance
employee happiness.
Prof. Leonard J. Glick, Professor of management and
organizational development at Bostons Northeastern

33

University, teaches the art of motivating employees for


a living. Karsten Straus, Forbes Staff Shares Glicks tips
for entrepreneurs and managers looking to keep their
people smiling and producing on Forbes website. Glick
says that Compensation packages are a big deal when
employees are hired, but once a deal has been struck
the source of motivation tends to shift. The motivation

comes from the things Ive been talking aboutthe


challenge of the work, the purpose of the work, the
opportunity to learn, the opportunity to contribute,
Glick explained.
Organizations who consider employee happiness
boosters which mostly involve engaging employees
in organizations activities which make employees
feel that they own the place, not just work there are
successful. Organizations can inspire that feeling by
having each member of a team become familiar with
what other team members are doing, allowing them
to bring their ideas for improvement to the table and
have input in the whole process. If the roles are not
too specialized, have employees rotate responsibilities
from time to time. An organization can also consider
granting employees new responsibilities which allow
them to grow and become more confident in their
abilities while making them feel more valuable to the
organization. Glick says that the biggest mistake a
company will do is to make their employees get burnt
BB Issue 24, January - March 2014 Lifestyle

34
out or bored in a repetitive or boring tasks.

Issue 24, January - March 2014


coming to work where they are able to interact with
others which not only make them happy but also learn
more from their colleagues since organizations are
diverse in nature. In fact employees are happier and more
engaged in their work when they have opportunities to
learn and grow so a learning environment can cultivate
happiness in employees especially if that growth can
help them advance their careers.

Another way to ensure that employees are happy is


the organization to make sure that they from time to
time communicate to them the new happenings in the
company. Leaders have a clearer perspective on the
bigger picture than their employees do. It is then key
to communicate to the employees what is going on in
the organization, what plans are underway and so on.
Taking time to share that with employees strengthens Other organizations have achieved employee
the feeling among workers that they are an important happiness through environmental changes that
part of the organization.
promote socialization like organizing for team-building
events, tournaments, employee fun days among others.
Organizations that encourage and foster social These activities allow employees to interact with their
interactions among their employees improve employee superiors in a more informal set up which diminishes
relationships which can boost collaboration, teamwork, the cold climate that comes with fearing the bosses
and innovation. When a working environment allows which mostly leads to lack on innovation/creativity and
employees to socialize with their colleagues the stagnated career growth.
employees become more happier and look forward to

Lifestyle

Lifestyle

35

Importance of Emotional Intelligence at the


Work Place
By Cicilian Mburunga

motional intelligence has been known to


impact many areas of our lives. When it comes
to happiness and success in life, emotional
intelligence matters just as much as intellectual
ability. Emotional intelligence is the ability to use
and manage our emotions positively to overcome
challenges, communicate and empathize effectively
with others.

website
committed
to
creating positive change
through research and articles
on emotional intelligence, organizations such as
American Express, Avon, Shell etc, have turned to
emotional intelligence to improve organizational
performance. It further explains that EQ defines our
capacity for relationship.

You can use the understanding of your own emotions


to understand yourself as well as the emotional state
of others, e.g. irritation is often a sign that you are not
taking care of yourself, thus you could ask yourself:
Are you caring too much for others and not enough for
you or too much for you and not enough for others?
Are you working too much or not enough?

One can develop or learn emotional intelligence. As


well as working on personal skills such empathy, self
awareness, motivation etc, the following strategies can
be used.

Emotional intelligence affects areas of our lives such


as relationships, physical health as well as mental
health. It also affects our work performance and helps
in dealing with complexities of the work place. As life
becomes complex, with
more demands
on time and needs,
emotions also
increase. Emotional
intelligence
(EQ)
skills,
according
to research help
us manage
these complexities.
According
sixseconds.
com, a

to

Observe how you react to people. Find out if you


rush to judgment before finding out all the facts.
Try and put yourself in their place and be more
open to there ideas, needs and perspectives.
Do you seek attention for your accomplishments?
Give others a chance to shine and put the focus
on them.
Do a self evaluation. Accept your weaknesses
as well as imperfections. Accept that you are not
perfect. Look at the areas you might need to work
on to become a better person.
Observe how you react to stressful situations. The
ability to stay calm and in control is highly
valuable in the business world and
outside it. Learn how to keep
your emotions in control

when things go wrong.

Take responsibility for


your actions. If you hurt
someones feelings, apologize
directly dont ignore or avoid the
other person. Examine how your
actions will affect others before
you take those actions.
Leaders
who
use
their
emotional efficacy to inspire
confidence,
commitment
and caring will get better
results.
BB Issue 24, January - March 2014 Lifestyle

36

Lifestyle
The Power of Our Temperaments
By Naomi W. Mutunga

n the previous edition of


Bench Bulletin (vol.21)
we noted that we are
all are a blend of atleast
two temperament. One of
the temperaments is predominant while the other is
secondary, in an attempt to make the temperament
theory more practical I shall briefly examine twelve
blends of temperaments.
Essentially each person is capable of possessing
twenty weakness to one degree or another. Ten for
the weaknesses can be of the predominant individual
temperament and ten for the secondary temperament,
some of the weaknesses cancel each other out while
some reinforce each other, some accentuate and
compound each other, explaining why two people
can have the same temperament and have different
variety of behaviors, prejudices, and natural skills.
Same predominant temperaments but with different
secondary temperament causes that , This will make
sense as you read on.
According to Dr. La Haye in his book Why You
Behave The Way You
Do he classifies human
temperaments
in
the
following combinations of
temperaments.

Sancholor.

This is a blend of sanguine


and choleric. This is the
strongest of all extroverts in
the blends of temperament.
The two temperaments that
make up his nature are both
extroverted. The happy
charisma of the sanguine
makes him people oriented,
enthusiastic salesman type,
but the choleric side of his
nature will provide him
the necessary resolution
and character trait that will
fashion him a somewhat
BB Issue 24, January - March 2014 Lifestyle

more organized and productive individual than if he


were pure sanguine. Almost any person oriented field
of work is open to him, but it must offer variety, activity
and excitement.
The potential weakness of a sancholor are usually
apparent to everyone because he is such an external
person. He customarily talks too much thus exposing
himself and his weakness for all to see. He is highly
opinionated. Consequently, he expresses himself loudly
even before he knows all the facts. To be honest no one
else has more mouth trouble than him. If he is the life
of a party he is lovable, but if he feels threatened or
insecure he becomes obnoxious. He loves and enjoys
being the centre of attention.
His emotional problem will be anger which can
catapult him into action at the slightest provocation. He
has no conscience and he tends to justify his actions.

Sanmel

This is a blend of a sanguine and melancholy. These


are highly emotional people who fluctuates drastically,
they can laugh hysterically one minute and bust into
tears the next. He genuinely feels the pain of others the
reason why he is sensitive to people.

37

Issue 24, January - March 2014

Any field is open to him, public speaking, acting ,


music and fine arts.

His chief weaknesses have to do with his line of


thoughts. He is a dreamer and thus if the melancholy
part suggests a negative train of thoughts, it can
nullify his potential. He gets down on himself, he has
anger problems and tendency towards fear. He suffer
insecurity problems. He is fearful to utilize his potential.
Being admired by others is so important to him that it
will drive his consistent level of performance.

obnoxious tendencies of a sanguine are offset by the


gracious easy going phlegmatic. He is an extremely
happy person whose care free spirit and good humor
makes him lighthearted entertainers sought after by
others. Helping is their regular business along with
sales of various kinds. They are the least extroverted of
any of the other blends of sanguines. They are however
regulated by the environment and circumstances rather
than being self motivated. They are naturally pro-family
and preserve the love of their children and everyone
else for that matter. They never purposely hurt anyone.
Their greatest weaknesses is luck of motivation and
discipline, they would rather socialize than work and
they tends to take life too casually.
They rarely gets upset over anything and tends to find
the bright side of everything, usually have endless
repertoire of jokes and delight in making others laugh
even when occasion calls for seriousness.

Sanphleg.

Cholersan.

He reflects an inhibited perfectionism that often


alienates him from others because he verbalizes his
criticisms. He is people oriented and has sufficient
substances to make a contribution to others lives (if his
ego and arrogance dont make him so obnoxious that
others becomes hostile to him).

This is a blend of sanguine and phlegmatic. This


the easiest person to like, the overpowering and

This is a blend of choleric and sanguine and the


second strongest of extroverts. His life is given over

Lifestyle

38
completely to activity, most of his efforts are productive
and purposeful. He is so activity prone it borders on
being violent. A natural promoter and sales man with
enough charisma to get along well with others.
The best motivator of people and one who thrives on a
challenge he is almost fearless and exhibits boundless
energy. He is the court room attorney who can charm
the coldest hearted judge, the fund raiser who can get
people to contribute what they intended to save.
His weaknesses chief of which is hostility are as
broad as his talents. He explodes in anger and the
long burning resentments of a choleric, he gets ulcers
himself as well as gives it to others. Impatient with
those who dont share his motivation and energy and
prides himself on being brutally frank. It is difficult for
him to concentrate on one thing very long.

Cholermel.

This is a blend of choleric and melancholy. This is a


natural leader, extremely industrious and capable
person, his optimism and practicality overcomes
the tendency towards moodiness of the melancholy
making him goal oriented and detailed.
He does well in school, and possess a quick analytical
mind, is decisive, develops into a thorough leader the
kind you can count on to do an extraordinary job. Never
take him on in a debate unless you have all your facts
right because he will make minced meat out of you.
Counting on his verbal aggressiveness and attention to
details this man is extremely competitive and forceful
in all that he does, he is a dogged researcher and his
usually successful .
His main weaknesses, he is apt to be autocratic, A
dictator type who inspires admiration and hate in equal
measure. Usually a quick witted talker whose sarcasm
can devastate others. He is a natural born crusader
whose work habits are regular and long. He harbors
considerable hostility and resentment and unless he
enjoys a good relationship with his parents he will
have difficulties in his interpersonal relationships
particularly with his family.
No other temperament is apt to be an overly strict
disciplinarian as a father as a cholermel. He combines
the hard to please tendency and perfectionism.

Cholorphleg.

This is a blend of choleric and Phlegmatic and the


most subdued of all the extroverts. A happy blend
of quick, active, hot and calm cool unexcited and
more deliberate and subdued so he never rushes into

Lifestyle

Issue 24, January - March 2014


anything. He is extremely capable in the long run. He
is a very organized person who combines planning
and hard work. People usually enjoys working for
and with him because he knows where he is going
and charts his course yet he is not unduly severe with
people. He has the ability to help others make the best
of their skills and rarely offends people or make them
feel used. His slogan is usually anything that needs
to be done can be done better if its organized. These
men are usually good husbands and fathers as well as
excellent administrators in almost any field.
His weaknesses, not as addicted to quick anger he is
known to harbor resentment and bitterness. One is
never quite sure whether he is kidding or ridiculing
depending on his mood because instead of uttering
cutting and cruel remarks, his barbs are more apt to
emerge as cleverly disguised humor. Very full headed
and stubborn he never changes his mind. He never
repents or acknowledges mistakes. Consequently he
makes it up to those he has wronged without really
facing his mistakes.

Melsan.

This is a blend of a melancholy and sanguine and a


very gifted person fully capable of being a musician
who steals the hearts of an audience as well as an artist
who paints beautifully and can sell his work too.
If he is in the right mood you find him in the education
field for he makes a very good scholar and the best
classroom teacher.
His weakness, he shows an interesting combination
of mood swings. He is an emotional creature. When
circumstances are pleasing to him, he can reflect a
fantastically happy mood. But if things work out badly
or if he is rejected, insulted or injured, he drops into
such a mood that his lesser sanguine nature drowns in
resultant sea of pity. He is easily moved to tears and he
feels everything deeply, but can be unreasonably critical
and hard on others. Usually he will not cooperate
unless things go his way, which is often idealistic and
impractical. He is often a fearful, insecure man with
poor selfimage which limits him unnecessarily.

Melchlor.

This is a blend of a melancholy and choleric. The mood


swings of the melancholy are usually stabilized by the
self will, stability and determination of the choleric.
There is almost nothing vocationally which this man
cannot do and do well. He is both a perfectionist and
a driver. He possesses strong leadership capabilities.
His natural weaknesses reveal themselves in the

Lifestyle
mind, emotions and mouth. Extremely difficult people
to please. Once they start thinking negatively about
something or someone they are intolerable to live
with, their moods follows their thought process.
They usually lapse into depressed mood more,
haunted by self persecution, hostility and criticism. Its
not uncommon for him to get angry at God as well
as his fellow men and such thoughts persisting long
enough he becomes maniac depressive. His penchant
for detailed analysis and perfection tends to make him
a nitpicker who drives others up the wall.

Melphleg.

This is a blend of a melancholy and phlegmatic and


he makes the greatest of scholar the world has ever
known. He gets along well with people. They are
usually good natured humanitarians who prefer a quiet
solitary environment for study and research. They are
excellent spellers and good mathematicians.
His weaknesses, he is easily discouraged and develops
a very negative thinking pattern. Ordinarily a quiet
person he is capable of inner anger and hostility caused
by his tendency to be vengeful. He is vulnerable to
fear, anxiety and negative self image. He lets others
pressure him into making commitments that drain his
energy and creativity. They become early MORTALITY
STATISTICS.

Phlegsan.

This is a blend of a phlegmatic and sanguine and the


easiest to get along with over a protracted period of
time. He is congenial, happy, cooperative, thoughtful,
people oriented, diplomatic, dependable, fun loving,
and humorous he is a favorite with children usually
a good family man who enjoys a quiet life and loves
his wife and children. Ordinarilly he attends church
where the pastor is a good motivator and he takes an
active role.

39

Phlegcholor.

This is a blend of a phlegmatic and choleric and he is


the most active of all the phlegmatic but he will never
be a ball of fire. He is always easy to get along with
and may become an excellent group leader.
He has the potential to become a good counselor
because he is an excellent listener. He rarely offers
his services to others but when they go to his usually
organized office where he exercises control he is first
rate professional and his advice is practical, helpful
and quite trustworthy. He never makes people feel
threatened, he always does the right thing but rarely
goes beyond the norm. If his wife can make the
adjustment to his passive lifestyle and reluctance to
take the lead in a home, particularly in the discipline
of their children they can enjoy a happy marriage.
His weaknesses are not readily apparent but gradually
comes to surface especially in the home. He possesses
a lack of motivation, fear problems and can be
determinedly stubborn and unyielding. He never
blows up on others but simply refuses to give in or
co-operate. He is not a fighter by nature but he lets his
inner anger and stubbornness reflect in silence.
He lives a peaceful long life which is also very boring
for him and his family.

Phlegmel.

This is a blend of a phlegmatic and melancholy and the


most gracious, gentle and quiet of the temperaments.
He is rarely angry or hostile and almost never says
anything he has to apologize for. He never embarrasses
himself or others.
He always does the proper thing. He dresses simply he
is dependable and exact. He has a gift of mercy and
help. He is neat and organized in his working habits.
The main weaknesses of this man revolves around fear,
selfishness, negativism, criticism and lack of proper
self image.

His weaknesses, he often falls short of his capabilities


because of lack of motivation. He often quits school,
passes up good opportunities and avoids anything
that involves too much effort. Fear accentuates his
unrealistic feelings of insecurity he is usually timid and
harbors self defeating anxiety.

BB Issue 24, January - March 2014 Lifestyle

40

Issue 24, January - March 2014

Dos and Donts of Safe Driving


By Collins Kiplimo

ost
drivers
3. Increase following distance when there are
think that good
adverse weather conditions. Dont drive
driving depends
normally in poor conditions; slow down and
on good roads,
be more cautious.
but that is not the case. The
4. Exercise courtesy and respect to other road
safety of other road users depends on your skilled good
users: Dont get upset about the behaviour of
driving. To be a good driver, you must not only see
other road users; it can distract you and cause
every detail as you drive along, but you must also be
you to make poor driving decisions.
able to assess its value and act accordingly. We are
5. Drive at a maximum speed limit stipulated
always reminded that our vehicles are our working
for your vehicle, depending on
tools, and just like any other tool,
the traffic and road conditions at
we should always think about the
Speed
Song
the time. Do not drive at too high
value of our tools. As you enjoy
speed to endanger the lives of
that ride, consider the following 80 Kph- God will take care of you
100 Kph- Guide me o Thou Great Jehovah other road users or too low speed
road safety tit bits:
120 Kph- Nearer my God to Thee
so as to cause obstruction to other
140 Kph- This world is not my home
motorists.
Dos:1. Wear seat belts at all times
while driving.

160 Kph- Lord I am coming home


Over 180 Kph- Precious memories

2. Always keep to the left or near side while driving


along unless while intending to overtake, or
when road signs indicate otherwise or when
turning right.

6. Be conspicuous for any strange


vehicle following you for a
distance and if it happens do not
panic. Either stop at any police patrol or station
or a busy place i.e. petrol station.

7. Make sure all door locks are locked. Avoid


exposing
valuable
documents and items as
they will attract thieves.
8.
Always use your
indicator even if you
havent noticed anyone
else around.
9.
Use your horn
to let people know you
are there if you are
coming up to a blind
corner/summit on a
narrow road.
10.
Avoid
and drugs.

Lifestyle

alcohol

Lifestyle

41

Donts:1. Do not overtake at a junction or when there


is an oncoming vehicle. Do not overtake on
a continuous yellow line or ague of motor
vehicles or on a brow of a hill where you
cannot see the oncoming vehicles properly.
Never overtake when you have to force on
others off the road to give way.
2. While driving downhill, avoid freewheeling. A
vehicle that is free wheeled cannot be easily
controlled in case of an emergency.
3. Never tailgate.
4. Never assume you have a right of way.
5. Never drive when you are feeling tired, ill or
hungover. Ensure that you have enough sleep
while undertaking a long journey and take
rests along the journey.
6. Dont allow yourself to be distracted; avoid
eating, using a phone or messing about with
your stereo while driving.
7. Dont assume that other road users are going to
do what you expect them to do; roads can be
unpredictable.

8. Do not enter and wait in the box junction


unless you intend to turn right.
9. Do not place leaves or stones as warning signs.
They are not approved warning signs. When
the vehicle breaks down on the Highway,
ensure that you have warned other motorists
by placing triangular warning signs (life Saver)
both in front and behind the vehicle of the
impending obstruction.
10. Dont buy a car you find difficult to drive.

BB Issue 24, January - March 2014 Lifestyle

42

timeline .......
>>> 1

By: Nelson Tunoi, Robert Basweti & Ochiel Dudley

>>> 2

>>> 3

>>> 4

What they Said

43

Inspiration
We wait for what we long for
We long for what we need
Impatience and Anxiety
Give root to errant deed
Which grows to yield but heartache
The fruit that poisons trust
And so to shadow we recede
And hope descends to dust
But somehow from the ashes
The will to try again
Doth mend the heart
And forge the path
In search of that one friend
Who never will betray us
Who never will go astray
But fear still lurks upon the thought
While waiting for that day
Well simply stumble once again
For we know not who to trust
Thus thoughts becomes an enemy
But conquer them we must
For surely there is someone
Whether Shining Knight or Bride
Then all shall have been worth it
Our Last Hope justified

Cityzen Nenkai
Farewell to Cityzen Nenkai

ityZen Nenkai, is the archetype of the Kenyan mwananchi


wa kawaida (ordinary citizen) who has been featured in
this magazine. She is a countryside housewife of the
Samburu tribe about whom much else is unknown save for her
knack for making sardonic, witty, and satirical wisecracks about
her encounters with the law, the city, other cultures and society
in general.
CityZen Nenkai lives on but she is taking a bow and will no
longer feature in this magazine.

44

Issue 23, October - December 2013

Feedback For Caseback Service


By Emma Mwobobia, Ruth Ndiko & Mary Waruguru
ReporterLaw Reporting Department

Hon. Justice
K. Rawal

Thanks for the update and keeping me informed.

Hallo there Kenyalaw, Thank you for this and other judgments shared via
caseback. It is very useful to get feedback on judgments made and outcome of
appeal so we can improve our development of jurisprudence. And further, that
we are able to reaffirm we made the right decision as in this case, or improve
where there us feedback we were wrong. Merry Xmas to the team and looking
forward to another great year. Regards, Lorot

Hon. Lillian A.
Arika

Most gratefully acknowledged. I look forward to receipt of


others.
Kind regards, Lillian A. Arika

How are you doing? Thanks a lot for Issue 22 of the Bench Bulletin
which I have received at Naivasha Law Courts.
It has great articles. Kudos to you and your team.
Have a great week ahead.

Caseback

Hon. A. Lorot

Hon. S. M. Mwinzi
SRM
Naivasha

Caseback

Meresia Opondo

45

Dear CaseBACK,
I have just learnt of this service.Am Meresia Opondo, an Ag. Principal
Magistrate. I make judicial decisions as part of my duties in Court. Am never
updated on decisions arrived at on appeal.
Kindly update me on the decisions arrived at from the Judgements from my
Court. Thank you.

Thanks Caseback for a good job you are doing, kindly endeavor to get all
decisions of appeal in all my judgments. Have a good day.

Elizabeth J. Osoro
Magistrate

On Our Notice Board ............

Hon. Chief Justice Willy Mutunga posting a thank you


note after the Council of Law Reporting board meeting.

Hon. Justice K. Rawal writing on our notice board


during the official opening of our new offices at
Bishops Plaza Annex.

BB Issue 24, January - March 2014 Caseback

46

Supreme Court Cases

Guiding Principle in the interpretation of any law touching on the Supreme Courts
appellate jurisdiction

Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission &4
others (IEBC)
Civil Application No 2 of 2014
Supreme Court at Nairobi
March 18, 2014
MK Ibrahim and JB Ojwang, SCJJ
Reported by Andrew Halonyere & Anne Mbuthia

Brief facts
The Applicants brought an application before the
Supreme Court seeking orders for extension of time
within which to file a Notice of Appeal. According to
the Applicants, the said Notice of Appeal was for the
purpose of appealing against the judgment and orders
of the Court of Appeal.
The Applicants argued that they were unable to file a
Notice of Appeal in time because of an implementation
timeline given by the Court of Appeal of submitting a
proper list of candidates to the Independent Electoral
& Boundaries Commission.
Issues
I. Whether the Supreme Court had the power to
extend the time within which to file a Notice of
Appeal at the Court of Appeal, for an intended
appeal to the Supreme Court?
II. What is the guiding principle when interpreting
any law touching on the Supreme Courts
appellate jurisdiction?
Constitutional Law jurisdiction of the Supreme
Court to entertain an appeal from the Court of Appeal
- guiding principle in the interpretation of any law
touching on the Supreme Courts appellate jurisdiction
Constitution of Kenya 2010, Article 163(4)(a)
Civil Practice and Procedure appeal application
to the Supreme Court to file Notice of Appeal out of
time - what is the guiding principle when interpreting
any law touching on the Supreme Courts appellate
jurisdiction - whether the Supreme Court has the power
to extend time within which to file a Notice of Appeal
at the Court of Appeal, for an intended appeal to the
Supreme Court Supreme Court Rules, 2012, Rule 53
Held:
1. Under the Constitution, an appellant could
proceed from the Court of Appeal to the Supreme
Court in well specified circumstances, where
BB Issue 24, January - March 2014, Supreme Court Cases

the complaint in question had been certified as


entailing a matter of general public importance
or where such a complaint involved the
interpretation or application of the Constitution.
2. Although the Court of Appeal had the first
opportunity to determine a matter on whether to
certify or decline to certify it for further appeal
in the Supreme Court, the Supreme Court had
the competence to reconsider the decision of
the Court of Appeal on such certification or noncertification.
3. In the interpretation of any law touching on
the Supreme Courts appellate jurisdiction, the
guiding principle was that the chain of Courts in
the constitutional set up, running up to the Court
of Appeal, had the professional competence and
proper safety designs to resolve all matters turning
on the technical complexity of the law, and
only cardinal issues of law, or of jurisprudential
moment would deserve the further input of the
Supreme Court.
4. Although the Applicants perceived their grievance
as entailing the application of the Constitution
and, therefore, as a matter in respect of which an
appeal to the Supreme Court lay by virtue of Article
163(4)(a) of the Constitution, the true question
before the Court was the failure to comply with
time limits before the Court of Appeal,which was
a matter of procedural arrangement which, but for
good cause, was squarely within the jurisdiction
of the Court of Appeal.
5. A court order based on foundations of evidence,
submissions and judicial reasoning bore the
force of law which lay on a higher plane of
authority than the informal regime of a political
partys constitution. Besides, the case, mounted
on such reasoning, was marked by a significant
degree of remoteness from the vital commitment
established for the Supreme Court under Article
163(4) of the Constitution. Such was not a basis

47

Issue 24, January - March 2014


for the Supreme Court to assume jurisdiction.
6. The Supreme Court, as the ultimate judicial
agency, had to exercise its powers strictly within
the jurisdictional limits prescribed, and it had

to safeguard the autonomous exercise of the


respective jurisdictions of the other Courts and
tribunals.
Application disallowed

Service of court documents is not a matter of general public importance to be


certified to go on appeal to the Supreme Court
Koinange Investments & Development Ltd V Robert Nelson Ngethe
Application No. 4 Of 2013
Supreme Court of Kenya
Tunoi, Ibrahim, Ojwang, Wanjala & Njoki Ndungu SCJJ
March 13, 2014
Reported by Njeri Githanga Kamau

The application before the court was for review of the


Court of Appeals ruling denying the applicant leave
to appeal to the Supreme Court. The application was
brought under Article 165(5) of the Constitution and
Section 15 (1) of the Supreme Court Act. The Court of
Appeal in a ruling dismissing the application for leave
to appeal observed that the sale-contract nature of the
Applicants claim as well as the procedural aspects that
characterized the default judgment at the High Court
were not matters that could be categorized as being of
public importance.
Counsel for the applicant argued that service of Court
documents was a critical aspect of the litigation process,
bearing significantly on all litigants in the country. It
was submitted that it was a matter involving the proper
conduct of administration of justice when a specific
court order regarding personal service was overlooked
by the judges and deemed as postal service, in spite
of absence of evidential proof of a search from the
Companies Registry.
Issues
I. Whether service of court documents was a
matter of general public importance to be
certified to go on appeal?
II.
Whether there was any uncertainty in the
law of service of process; or it was an issue of
administration of justice bearing upon public
interest?
III. Whether the interest of justice was a relevant
factor in considering the peculiarities of the
instant matter in relation to general public
importance
Civil Practice and Procedure review application
for review of the decision of the Court of Appeal
denying the applicant leave to appeal to the
Supreme Court with respect to a matter of general

public importance -what amounts to a matter of


public importance criteria to be considered
whether service of court documents was a matter
of general public importance to be certified to go
on appeal-whether there was any uncertainty in
the law of service of process; or it was an issue
of administration of justice bearing upon public
interest- Constitution of Kenya, 2010, article 165(5)
- Supreme Court Act, section 15 (1)
Held;
1. The jurisdiction of the Court, especially on
matters predicated on article 163(4) (b) of
the Constitution, which relate to a matter of
general public importance, was well settled.
Two factors must be borne in mind by an
Applicant who wished to move the Court
under article 163(4) (b) of the Constitution. For
one, to move the Court under the provision, an
Applicant had to first seek leave at the Court of
Appeal, consequent to which a party aggrieved
by denial of permission or certification may
exercise a right, under article 163(5), to seek
a review, affirmation or overturning of the
decision (Sum Model Industries Limited v
Industrial and Commercial Development
Corporation, Sup. Ct. Civ. Appl. No. 1 of
2011).
2. The right to seek such a review is not a carte
blanche: for a question or issue of law or
fact, however framed, must be a substantial
one, transcending the concerned parties, and
satisfying or falling within the category of
the Hermanus Steyn principles on matters of
general public importance. These principles
were defined by both the majority and minority
opinions, and restated, in the case of Malcom
Bell v Daniel arap Moi & Another Sup. Ct.
Application No. 1 of 2013.

Supreme Court Cases

Supreme Court Cases

48

3. Service of Court documents was an important

4.

5.

6.

7.

8.

9.

component in the administration of justice,


and was a common aspect of litigation that
confronts courts of all cadres, in the normal
business schedule. Service as a procedural
function was regulated by law and other
relevant instruments.
The onus of proving that a law bears uncertainty
or lacunae impacting adversely on the public
interest falls on the party who seeks to convince
the Court that such was the case.
A matter of general public importance
warranting the exercise of appellate jurisdiction
would be a matter of law or fact, provided
only that: its impacts and consequences are
substantial, broad-based, transcending the
litigation-interest of the parties, and bearing
upon the public interest. As the categories
constituting the public interest are not closed,
the burden falls on the intending appellant to
demonstrate that the matter in question carries
specific elements of real public interest and
concern.
Though service was an obvious procedural
aspect of every Court-oriented action, the
matter was regulated by law. Service was an
issue of law that affected a broad spectrum
of individuals in commercial and domestic
relations. As the law on service of process on
corporations stood, there was no lacuna calling
for clarification, for the good of the public at
large.
It was not the object of the Court to intervene
in the jurisdictional domains of other judicial
organs a principle already stated in Peter
Ngoge v Ole Kaparo Sup. Ct. Petition No. 2 of
2012 [2012] eKLR
The Supreme Court, as the ultimate judicial
agency ought to exercise its powers strictly
within the jurisdictional limits prescribed; and
it ought to safeguard the autonomous exercise
of the respective jurisdictions of the other
Courts and tribunals.
For a matter to be categorized as one of
general public importance, its impact and
consequences must raise substantial and

BB Issue 24, January - March 2014, Supreme Court Cases

broad-based questions of law or fact that affect


the public interest. It is not sufficient to merely
allege that a provision of a law that touches
on the administration of justice, ought to be
categorized as a matter of general public
importance. It must be a substantial question
of law, if a party is to invoke the input of the
Supreme Court.
10. The issue of service was a matter that Courts
could competently deal with as an ordinary
component of administration of justice, as
long as there was no uncertainty or ambiguity
occasioned by some law, or incongruent Court
decisions. It falls ordinarily, outside the fine line
of matter of general public importance, since
as a matter of principle and of judicial policy,
the appellate jurisdiction of the Supreme Court
is not to be invoked save in accordance with
the terms of the Constitution and the law, and
not merely for the purpose of rectifying errors
with regard to matters of settled law (Malcom
Bell v Moi).
11. Courts are the wellsprings of justice, the bastion
to which recourse in law is sought. Whenever a
party seeks to vindicate infringed rights at any
tier of Courts, the duty to do justice is always the
rule of thumb. It was also a cardinal principle
that flowed from the Constitution, and which
demanded that the ends of justice be met
when any Court of justice in the Republic of
Kenya has been properly seized of a pertinent
question. Interest of justice cannot therefore
be an isolated criterion, on the basis of which
the Court may be urged to allow an appeal as a
matter of general public importance.
12. The Applicant had failed to demonstrate that
the matter was of general public importance,
in the terms of the Hermanus Steyn principles.
The Application failed to disclose any proper
basis upon which an appeal may be preferred
from the Court of Appeal to the Supreme Court
under Article 163(5) of the Constitution.
Application for review of the Court of Appeals ruling
dismissed.

49

Issue 24, January - March 2014

Principles that would guide the Supreme Court in awarding costs


Jasbir Singh Rai& 3 others v Tarlochan Singh Rai & 4 others

Petition No. 4 of 2012


The Supreme Court of Kenya
W.M.Mutunga, K.H.Rawal, P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, SJJ
March 4, 2014
Reported by Lynette A. Jakakimba& Valarie Adhiambo
Brief Facts
The applicants were the respondents in petition no 4 of
2012 before the Supreme Court which was disallowed
for lack of jurisdiction by the Supreme Court. This
application sought to have the petition struck out as it
substratum had been determined by the court and also
to determine a question on costs.
Issues
I.
What were the principles that could guide
the Supreme Court in awarding costs
II.
Whether failure by the respondents to take
other paths of relief as had been directed
by the Court of Appeal had put them at
default.
Civil Procedure& Practice-costs-who bears costswhat are the principles that guide the Supreme Court
in determining who to bear the costs Supreme Court
Act no 7 of 2o11,section 21(2)-Supreme Court Rules
rule3(5)- Civil Procedure Act(Cap 21) section 27(1)
Supreme Court Act
Section 21(2)
In any proceedings, the Supreme Court may make
any ancillary or interlocutory orders, including any
orders as to costs as it thinks fit to award.
Supreme Court Rules
Rule3 (5)
Nothing in these Rules shall be
deemed to limit or otherwise affect the
inherent powers of the Court to make
such orders or give such directions as
may be necessary for the ends of justice
or to prevent abuse of the process of
the Court.
Civil Procedure Act
Section 27(1)
Subject to such conditions and limitations as may be
prescribed, and to the provisions of any law for the
time being in force, the costs of and incidental to all
suits shall be in the discretion of the court or judge, and
the court or judge shall have full power to determine
by whom and out of what property and to what extent

such costs are to be paid, and to give all necessary


directions for the purposes aforesaid; and the fact that
the court or judge has no jurisdiction shall be no bar to
the exercise of those powers:
Provided that the costs of any action, cause or
other matter or issue shall follow the event unless the
court or judge shall for good reason otherwise order?
Held
1. Rule 3(5) of the Supreme Court Rules and
section 27(1) of the Civil Procedure Act was
clear and Supreme Court like other superior
courts had an open ended application of
discretion to ensure ends of justice.
2. The basic principle on attribution of costs
that cost follow event was a well-recognized
principle but could not be used to penalize
the losing party rather it was for compensating
the successful party for trouble taken in
prosecuting or defending the suit
3. The vital factors in settling the preference was
the discretion of the court accommodating the
special circumstances of the case and being
guided by ends of justice. Further claims of
public interest, motivations and conduct of
parties during litigation process were also
relevant factors.
4. Though the petitioners could have adhered
to directions for arbitration while they were
before the Court of Appeal, their rights to
judicial resolution of conflict were unaffected;
and consequently, they had quite properly
moved the Supreme Court.

Supreme Court Cases

Supreme Court Cases

50

Supreme Court Re-affirms Constitutionality of Rule 41(1) of the Supreme Court


Rules, 2012
In the Matter of Kenya National Commission on Human Rights & 2 others
Reference No 1 of 2012
Supreme Court of Kenya at Nairobi
P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Ndungu, SCJJ
February 27, 2014
Reported by Teddy Musiga

Issues:
I. Whether a petition could be filed at the High
Court challenging rules made by the Supreme
Court.
II.

Whether Rule 41(1) of the Supreme Court Rules,


2012 was restrictive and required re-drafting/
amendment to enable other parties other than
the national government, county governments
and state organs to seek the advisory opinion
of the Supreme Court under article 163(6) of
the Constitution.

III.

Whether individuals, NGOs and professional


bodies were excluded from the restrictive
words of Rule 41(1) of the Supreme Court
Rules, 2012.

Constitutional Law Jurisdiction - Supreme Court


jurisdiction on Advisory opinion scope of Supreme
Court jurisdiction on advisory opinions whether Rule
41(1) of Supreme Court Rules were restrictive and
required amendment Supreme Court Rules, 2012,
Rule 41(1), Constitution of Kenya, 2010, article 163(6)
Held:
1. The main principles/parameters that guided
the Supreme Court when exercising their
jurisdiction to offer advisory opinions were:
a) It had to be a matter concerning the
County government. The question as
to whether a matter concerned the
county government was determined
on a case by case basis.
b) The only parties that could make a
request for an Advisory opinion were
the national government, a state organ
or county government. Any other
person could only be enjoined in the
proceedings with leave of court either
as an intervener (interested party) or as
BB Issue 24, January - March 2014, Supreme Court Cases

amicus curiae.
(In the Matter of the Interim Independent
Electoral
Commission:
Constitutional
Application No. 2 of 2011)
2. The Reference as filed was not one seeking an
advisory opinion within the meaning of article
163(6) of the Constitution of Kenya, 2010.
Because, there was no matter concerning
county government in the issues framed by
the applicant. The reference for an advisory
opinion was actually a constitutional
reference in disguise. The main objective was
to elicit a declaration from the Supreme Court
regarding the Constitutionality or otherwise of
Rule 41(1). It ought to have been filed at the
High Court.
3. There was no hierarchical impropriety if a party
were to challenge a Supreme Court rule in the
High court. In such a case, what would be at
stake was not the reputation of the Supreme
Court but the unconstitutionality of the rule
in question. The High court was seized with
original jurisdiction to determine whether a
piece of legislation or subsidiary legislation
was unconstitutional.
4. Rule 41(1) of the Supreme Court Rules, 2012
was a replica article 163(6) of the Constitution.
Therefore, it could not be said to be either
restrictive or discriminative in any manner.
5. Persons in general did not have a right to an
advisory opinion of the Supreme Court. Rights
declared under article 22 (such as access to
justice) were enforceable by way of ordinary
court proceedings. Such proceedings did
not necessarily include the Supreme Courts
advisory opinions. By their very nature and
design, Advisory opinions were meant to serve
as a device in aid of the main tasks of the
institutional conduct of governance. And thus,
those entitled to resort to such opinion were

51

Issue 24, January - March 2014


the national government, any state organ or
any county government.
6. Contrary to the applicants apprehension, other
parties other than the national government,
state organ or county government could
participate in advisory-opinion proceedings, as
interveners or amici curiae.Therefore, there was
no way Rule 41(1) of the Supreme Court Rules
hindered ones enjoyment of the Bill of Rights
as stipulated in Chapter 4 of the Constitution

of Kenya, 2010. All the rights therein were


enforceable in the High court, with avenues
for appeal open all the way to the Supreme
Court. The advisory-opinion jurisdiction, on
the other hand was not only discretionary,
but exercisable in the manner provided for in
Article 163(6).
Reference for advisory opinion dismissed.

Supreme Court settles the question of what constitutes a Declaration of Election


Results
Hassan Ali Joho & another v Suleiman Said Sharbal& 2 others
Petition No 10 of 2013
Supreme Court of Kenya at Nairobi
Kalpana Rawal DCJ, PK Tunoi, M K Ibrahim, JB Ojwang& N Ndungu SCJJ
February 4, 2014
Reported by Njeri Githanga Kamau

Issues
I. Whether the appeal raises a question of
constitutional interpretation or application,
and whether the same had been canvassed
in the Superior Courts and had progressed
through the normal appellate mechanism so
as to reach the Supreme Court by way of an
appeal, as contemplated under article 163(4)
(a) of the Constitution.
II.

What constitutes a declaration of election


results.

III.

Whether the 28 days limitation period for filing


an election petition starts running after the
declaration of election results by the IEBC as
provided by article 87(2) of the Constitution or
after the publication of the election results in
the Kenya Gazette as provided by section 76(1)
(a) of the Elections Act.

IV.

Whether section 76(1)(a) of the Elections


Act is inconsistent with article 87(2) of the
Constitution and to that extent a nullity.

Constitutional Law appeal right to appeal to the


Supreme Court claim that leave to appeal was not
sought before filing an appeal where the matter
before court involved the interpretation or application
of the Constitution whether the Supreme Court had
jurisdiction to entertain the matter

Statutes interpretation of statutes interpretation of


section 76 (1)(a) of the Elections Act vis--vis article
87(2) of the Constitution of Kenya 2010 whether
section 76(1)(a) of the Elections Act is inconsistent
with article 87(2) of the Constitution in respect to
limitation of time for filing election petitions Electoral Law election results declaration of election
results what constitutes declaration of election results
what instrument is used to declare election results Constitution of Kenya, 2010, article 87(2) Elections
Act, 2011 sections 76(1)(a)
Constitution of Kenya 2010.
Article 87 (2) of the Constitution provides:
Petitions concerning an election, other than a
presidential election, shall be filed within 28 days
after the declaration of the election results by the
Independent Electoral and Boundaries Commission.
Elections Act section 76 (1) (a) provides:
A petition (a) To question the validity of an election shall be filed
within twenty eight days after the date of publication
of the results of the election in the Gazette and served
within fifteen days of presentation

Supreme Court Cases

52

Issue 24, January - March 2014

Held
1. If a question regarding the interpretation or
application of the Constitution arises from a
multiplicity of factors and interrelationships in
the various facets of the law, the Constitution
should be interpreted broadly and liberally
so as to capture the principles and values
embodied in it.
2. The chain of Courts in the constitutional set
up, running up to the Court of Appeal, have
the professional competence and proper
safety designs to resolve all matters turning on
the technical complexity of the law and only
cardinal issues of law or of jurisprudential
moment will deserve further input of the
Supreme Court. On that basis alone the case
was properly before the Supreme Court because
the High Court conclusively dealt with the
issues arising in the interlocutory application
and rendered a ruling which did not terminate
the main petition.
3. As the apex Court, the Supreme Court must
always be ready to settle legal uncertainties
whenever they are presented. But in so doing,
it must protect the Constitution as a whole.
Election Courts and the Court of Appeal, have
discretion in ascertaining justice of each case,
but that discretion must be concretized in
enforcing the Constitution.
4. In defending the Constitution and the
aspirations of the Kenyan people, the Supreme
Court must always be forward-looking, bearing
in mind the consequences of legal uncertainty
upon the enforcement of any provision of the
Constitution. That aspect of defending the
Constitution is replicated under article 163
(4) (a) which allows appeals from the Court of
Appeal to the Supreme Court as of right in any
case involving the interpretation or application
of the Constitution. Such is the approach that
the Supreme Court in hearing the appeal must
seek to apply.
5. The decision of the Supreme Court should
serve the objectives laid out in section 3 of the
Supreme Court Act that is to inter-alia provide
authoritative and impartial interpretation of
the Constitution,develop rich jurisprudence
that respects Kenyas history and traditions and
facilitates its social, economic and political

Supreme Court Cases

growth. Therefore, the Supreme Court has


jurisdiction to hear and determine the appeal.
6. It is clear from Regulation 83 that the tallying
of votes and the public announcement of the
total votes cast in favour of each candidate
precede the declaration of election results.
Tallying and public announcement are
designed by the Constitution [article 86 (b) &
(c)] and the Elections Act section 39] to take
place immediately after the close of polling.
The Constitution specifically emphasises
the promptness with which the collated and
tabulated results ought to be announced. That
is important because it signifies the urgency
with which the public should be notified
of the outcome of the election. Taking into
account that requirement of efficiency, which
runs through all the electoral provisions,
the subsequent stage of declaration must
take place immediately after the tallying and
announcement of the election results.
7. The jurisdiction to handle disputes relating to
the electoral process shifts from the Commission
to the Judiciary upon the execution of the
required mandate by the returning officer.
Once the returning officer makes a decision
regarding the validity of a ballot or a vote, that
decision becomes final and only challengeable
in an election petition. The mandate of the
returning officer, according to Regulation
83(3) terminates upon the return of names of
the persons-elected to the Commission. The
issuance of the certificate in form 38 to the
persons-elected indicates the termination of the
returning officers mandate, thus shifting any
issue as to validity, to the election Court. Based
on the principle of efficiency and expediency,
therefore, the time within which a party can
challenge the outcome of the election starts
to run upon this final discharge of duty by the
returning officer.
8. After results have been delivered to the
Commission, the Commission is mandated to
publish a notice in the Gazette, which may form
part of a composite notice, showing the names
of the person or persons elected Regulation 87
(4)(b). With respect to the 2013 gubernatorial
elections the Commission fulfilled that
mandate through Gazette Notice. That Gazette
Notice did not contain the election results
of the elections but was published by the

Supreme Court Cases


Commission in compliance with Regulation 87
(4)(b). The Gazette Notice and/or publication
of election results, was simply the affirmation
of the election results declared by the returning
officer.
9. Since the Constitution and the Elections Act
do not define what amounts to a declaration
of election results, the meaning of the term
declaration could only be inferred from the
various contexts in which it has been used
in the Constitution, the Elections Act and the
Regulations to the Elections Act.
10. Article 180(4) of the Constitution provides that,
if two or more candidates are nominated, an
election shall be held in the county and the
candidate who receives the greatest number
of votes shall be declared elected. The word
declared in the said article has been used
to depict the finality culminating in the
declaration of the winner of an election.
11. Declaration takes place at every stage of
tallying. For example, the first declaration
takes place at the polling station; the second
declaration at the Constituency tallying center
and the third declaration at the County returning
centre. Thus the declaration of election results
is the aggregate of the requirements set out
in the various forms involving a plurality
of officers. The finality of the set of stages of
declaration is depicted in the issuance of the
certificate in Form 38 to the winner of the
election. That marks the end of the electoral
process by affirming and declaring the election
results which could not be altered or disturbed
by any authority.
12. Where a candidate is challenging the declared
results of an election, a quantitative breakdown
would be a key component in the cause. It
must also be ascertainable who the winner and
the loser (s) in an election, are. The certificate in
Form 38 declares the winner of the election and
terminates the mandate of the returning officer
who acts on behalf of the Commission, shifting
the jurisdiction in respect of the electoral
process to challenge the results of the election
to the Election Court. The certificate in Form 38
comprises the declaration of election results.
That declaration sets in motion the time-frame
within which to lodge an election petition.
Consequently, the provision of section 76 (1)

53

(a) of the Elections Act is inconsistent with the


provisions of article 87 (2) of the Constitution
and is unconstitutional to that extent.
13. The Court of Appeal did not evaluate and
consider all the relevant provisions of the
Constitution, the Elections Act and Regulations
thereunder. The holding by the Court of Appeal
that the returning officers were only authorized
to announce the election results, and that the
declaration the presiding officers were required
to make related only to the accuracy of the
ballot and not to the winner of the election,
was incorrect and incomplete.
14. The Court of Appeals holding that the
declaration in Form 35 and 36 was merely a
return of or written record of the provisional
election results and not a declaration of
election results, arose from an inadequate
consideration of all the relevant provisions of
the law, as well as the nature of the electoral
process. Having considered all the provisions
of the law aforesaid, the court concluded that
the final declaration of election results is by
the issuance of the certificate in Form 38 to the
winner of the election. That certificate is issued
by the returning officer.
15. The provisions of the Constitution are superior
to any legislation. As such, when interpreting
the provisions of an Act of Parliament, the Court
must always ensure that the same conform to
the Constitution and not vice versa. In order to
ensure that justice is not sacrificed at the altar
of technicality, the Court is however enjoined
to invoke its inherent power while interpreting
the Constitution and legislation to preserve the
values and principles of the Constitution.
16. If a declaration must be in a formal instrument
the forms containing the results of the
elections at every level constitute such formal
instruments. When the forms 34, 35, 36, 37 or
38 have been duly signed by the authorized
returning officer, they become instruments
which cannot be challenged save through
election petition.
17. One of the specific mandates of the returning
officers was to declare the election results.
Those officers declare the election results at
various stages in the election. For the purposes
of computation of time in respect to the filing
BB Issue 24, January - March 2014, Supreme Court Cases

Court of Appeal Cases

54

The public nature of elections demands that


the outcome of the polling is shared with
the public. That is done in various ways, but
most importantly through a Gazette Notice
which forms part of Government records.
Further, public information thus published,
can be adduced as evidence in a Court of Law
pursuant to the provisions of the Evidence Act
(Cap.80). The purpose of the Gazette Notice in
view of the electoral process cannot be termed
as the instrument of declaration of the election
results.

of the election petition, the final declaration


presents the instrument of declaration
in accordance with article 87 (2) of the
Constitution.
18. An instrument bears legal force particularly
because of its content and its formal face of
authority and validity. The process of election
culminates in the issuance of a certificate
which squarely falls within the said definition
of the instrument.
19. The wording of Regulation 87 (4)(a) shows that
the Gazette notice in case of a presidential
election is specifically used to declare the
winner of the presidential election. That is in
line with article 138(10)(a) which states that the
Chairperson of the Commission shall within
7 days after the presidential election, declare
the result of the election. The regulation has
therefore provided for the mode of declaration
of those results without deviating from the time
frame provided in the Constitution. In addition,
the chairperson is mandated to declare only
presidential results and not any other results.
County returning officers are on the other hand
empowered to declare the election results of
the County Governors.

21. In so far as the Constitution is considered


article 87(2) provides that petitions concerning
an election other than a presidential election
shall be filed within twenty eight days after
the declaration of the election results, while
the Elections Act section 76 (1) provides that a
petition to question the validity of an election
shall be filed within twenty eight days after the
date of publication of the results of the election
in the Gazette, and as it is clear that expedition
in the disposal of electoral disputes is a
fundamental principle under the Constitution,
the court is of the view that section 76 is
inconsistent with the terms of the Constitution.

20. Gazettement (section 76 of the Elections Act)


is one of the mechanisms through which the
State publishes information to the public.

Appeal allowed, section 76(1)(a) of the Elections Act,


2011 declared inconsistent with article 87(2) of the
Constitution of Kenya 2010 and to that extent a nullity.

The constitutionality of the vetting process carried out by the Vetting of Judges and
Magistrates Board.
Dennis Mogambi Mongare v Attorney General & 3 others

Civil Appeal No 123 of 2012


Court of Appeal at Nairobi
P O Kiage, A K Murgor, F Sichale, J Mohammed & Otieno-Odek, JJ. A
January 24, 2014
Reported by Beryl A Ikamari
Brief facts
The petitioner sought to challenge the constitutionality
of the process of vetting judges and magistrates as
provided for in section 23 of the Sixth Schedule to the
Constitution of Kenya 2010.
Prepositions that the provision went contrary to the
mode of removal of judges under the Constitution, did
not guarantee the rights to a fair trial, was discriminatory
and amounted to torture, cruel, inhuman and degrading
BB Issue 24, January - March 2014 Court of Appeal Cases

treatment, were amongst the grounds of challenge


relied on by the petitioner.
Issues
I.

Whether section 23 of the Sixth Schedule


to the Constitution of Kenya 2010 was
unconstitutional and contradicted other
substantive provisions of the Constitution.

II.

Whether section 23 of the Sixth Schedule

Issue 24, January - March 2014


undermined the independence of the judiciary.
III.

IV.

Whether the vetting process established


in section 23 of the Sixth Schedule to the
Constitution of Kenya 2010, which subjected
the judicial arm of government to vetting while
not providing for the vetting of other arms of
government, was discriminatory.
Whether section 18 of the Vetting of Judges
and Magistrates Act, No. 2 of 2011 was
unconstitutional to the extent that it sought
retroactive application, by subjecting judges
and magistrates to vetting based on their past
conduct and decisions made prior to the
existence of the applicable law.

V.

Whether the vetting process provided for in the


Vetting of Judges and Magistrates Act No. 2 of
2011 violated the right to fair administrative
action and the right to a fair trial.

VI.

Whether section 22(3) of the Vetting of


Judges and Magistrates Act No. 2 of 2011
was unconstitutional as it provided that the
decisions of the Judges and Magistrates Vetting
Board would not be subject to appeal.

VII.

Whether the provision of the right to seek


review in section 22(1) of the Vetting of Judges
and Magistrates Act No. 2 of 2011 before the
same panel, which made the decision against
which review was being sought, was a violation
of the principle that no man should be a judge
in his or her own cause.

VIII.

Whether the vetting process before the Judges


and Magistrates Vetting Board subjected the
judges and magistrates, who were to be vetted,
to torture or inhuman or degrading treatment.

IX.

Whether the vetting process carried on by


the Judges and Magistrates Vetting Board was
unconstitutional as it had extended beyond the
time-frame provided for in law.

Constitutional Law-transitional provisions-whether


provisions contained in the Schedule to the Constitution
could be said to be unconstitutional or to contradict
other substantive provisions of the ConstitutionConstitution of Kenya 2010; article 262.
Constitutional Law-judiciary-independence of the
judiciary-security of tenure of judges and magistrateswhether removal from office as the culmination of a

55
vetting process would undermine the judiciary by
interfering with the security of tenure of judges and
magistrates-Constitution of Kenya 2010; articles
167(1), 168 & section 23 of the Sixth Schedule.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsfreedom from discrimination on any prohibited
ground-whether it was discriminatory to subject the
judicial arm of government to a vetting process without
subjecting the other arms of government to vettingConstitution of Kenya 2010; articles 27 & section 23 of
the Sixth Schedule.
Constitutional Law-interpretation of constitutional
provisions-retroactive application of constitutional
provisions-the constitutionality of a vetting process
based on the past conduct and decisions of judges and
magistrates-whether a constitutional provisions could
have retroactive applicability and could ordain the
retroactive applicability of certain statutory provisionsConstitution of Kenya 2010; section 23 of the Sixth
Schedule, Vetting of Judges and Magistrates Act, No.
2 of 2011; section 18, and Interpretation and General
Provisions Act (Cap 2); section 2.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-the
right to a fair trial and the right to fair administrative
action-whether the vetting process carried on by
the Judges and Magistrates Vetting Board met fair
trial requirements and fair administrative action
requirements-Constitution of Kenya 2010; articles 47
& 50, and Vetting of Judges and Magistrates Act No. 2
of 2011; sections 19(3), 19(4) & 19(6).
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsfreedom from torture, cruel, inhuman or degrading
treatment-whether the vetting process carried on by the
Judges and Magistrates Vetting Board subjected judges
and magistrates, who were being vetted, to torture,
cruel, inhuman or degrading treatment-Constitution of
Kenya 2010; articles 29(d) & 29(f).
Constitutional Law-prescribed time-frame-whether the
vetting process carried on by the Judges and Magistrates
Vetting Board was unconstitutional as it had extended
beyond the prescribed time-frame provided for in lawVetting of Judges and Magistrates Act No. 2 of 2011;
section 23.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsright to fair administrative action-absence of a right

Court of Appeal Cases

56

Issue 24, January - March 2014

to appeal or challenge the decision of the Judges and


Magistrates Vetting Board-whether the decisions of the
Judges and Magistrates Vetting Board were subject to
the supervisory jurisdiction of the court and could be
the subject of a human rights action or judicial review
proceedings-Constitution of Kenya 2010; section
23(2) of the Sixth Schedule, and Vetting of Judges and
Magistrates Act No. 2 of 2011; section 22.
Held
1. One particular provision of the Constitution
could not be said to be unconstitutional or
contrary to another provision of the same
Constitution. The principle of harmonization
required that the Constitution would be read
as a whole with each part contributing towards
the purposes of the Constitution.
2. The Sixth Schedule to the Constitution of
Kenya 2010 was to be read together with the
substantive provisions of the Constitution
and be deemed to constitute a coherent,
indivisible and inseparable package of rights
and principles.
3. No single article or schedule to the Constitution
of Kenya 2010 would be interpreted to override
other provisions of the Constitution, unless the
Constitution expressly provided for such an
interpretation.
4. The provisions of the Sixth Schedule to the
Constitution of Kenya 2010 were part of the
transitional and consequential provisions,
which within the terms of article 262 of the
Constitution of Kenya 2010, would be deemed
to be an integral part of the Constitution. In their
placement in schedules, there was no intent to
relegate the transitional provisions to a status
inferior to other provisions of the Constitution.
5. While it was possible for the removal of a
judge to be done by mechanisms provided
for in article 168 of the Constitution of Kenya,
2010, and section 23 of the Sixth Schedule to
the Constitution, the two mechanisms served
distinct purposes. Section 23 served to boost
public confidence in the judiciary and to assess
the suitability of the judges and magistrates
who were in office prior to the promulgation
of the Constitution, in the transitional period,
while article 168 provided a mechanism for
the removal of judges from office on specific
grounds on a basis that was not transitional.

Court of Appeal Cases

6. Effectively, section 23 of the Sixth Schedule to


the Constitution of Kenya 2010, introduced a
transitional mechanism which could lead to
the removal of a judge from office on grounds
of unsuitability to continue serving. It would
not contradict with the separate mechanism
provided for the removal of a judge from office
in article 168 of the Constitution of Kenya,
2010, which was not a transitional provision.
Furthermore, article 168 would not provide the
basis for the proceedings before the Judges and
Magistrates Vetting Board.
7. Section 23 of the Sixth Schedule to the
Constitution of Kenya 2010 was not
unconstitutional but had a specific and
sufficiently defined purpose. Its purpose was
to establish a process for the vetting of judges
and magistrates, who were in office at the
time of the promulgation of the Constitution,
in order to determine their suitability. It was
made in response to the clamour for a new
constitutional dispensation in which various
concerns about the state of the judicial arm of
government had been raised.
8. The import of a finding that a judge or
magistrate was unsuitable, under section 21(2)
of the Vetting of Judges and Magistrates Act No.
2 of 2011 and section 23 of the Sixth Schedule
to the Constitution of Kenya 2010, was that the
judge would not continue to hold office and
would be removed from office. In the context
of vetting, there was no difference between the
terms removal from office, and unsuitable
to serve. The vetting process was capable of
culminating in the removal of a judge from
office.
9. The Latimer and Bangalore Principles touching
on the independence of the judiciary, formed
part of the general principles of international
law applicable to Kenya under article 2(5) of the
Constitution of Kenya 2010. The independence
of the judiciary included the independence
of individual judges to make decisions freely
without the influence or control of any other
person. Within the concept of decisional
independence a judge had the right to err and
any error made could be corrected through the
appellate process.
10. Decisional independence would only allow
a judge to function within the limits of the

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law. It would not protect personal or political
interests or bias or decisions which were made
in flagrant disregard of established principles
of law.
11. The interrogation of judges for explanations
about decisions made by them, as carried
on pursuant to section 18(1)(b) of the Vetting
of Judges and Magistrates Act, No. 2 of
2011, would not be an interference with the
independence of the judiciary.
12. It would not be unconstitutional to interrogate
a judge if an evidential basis had been laid
to show that a ruling or judgment revealed
misconduct or improprieties impacting on
the integrity and conduct of the judge. Such
interrogations would be part of the concern
of the Judges and Magistrates Vetting Board in
determining the suitability of judges.
13. Section 18 of the Vetting of Judges and
Magistrates Act No. 2 of 2011 provided
for the criteria for the vetting of judges and
magistrates in accordance with the national
values and principles enshrined in article 10
of the Constitution of Kenya. The provisions of
section 18 were constitutionally sound.
14. The vetting process was intended to entrench a
new constitutional order in which constitutional
principles for an independent and credible
judiciary were actualized. The vetting process
would serve to strengthen the judiciary.
15. Removal from office after a finding of
unsuitability in the vetting process would not
be an interference with judicial independence
by negating a judges security of tenure. The
security of tenure provided to judges under
article 167(1) of the Constitution of Kenya,
2010, was not absolute but was subject to
competence, good conduct and also solvency
on the part of an individual judge.
16. The tenure of judges and magistrates serving
at the effective date was made subject to the
vetting process established in section 23 of the
Sixth Schedule to the Constitution of Kenya
2010.
17. Section 23 of the Sixth Schedule to the
Constitution of Kenya 2010 was not
discriminatory as all arms of government had
been treated equally by being subjected to

57

different modes of appraisal. For the judiciary,


the vetting process was established while the
executive and the legislature were subjected
to a general election and to legislative and
constitutional provisions touching on the
ethics and integrity of candidates seeking to vie
for elective office in those arms of government.
18. The general principle of law was that statutes
were of prospective and future application.
However, where the Constitution or statute
expressly stated that retroactivity was required,
that intention on retroactivity would prevail as
an exception to the general principle.
19. As stated in section 2 of the Interpretation
and General Provisions Act (Cap 2), generally,
the rules of statutory interpretation including
rules on non-retrospective application would
not apply to the Constitution. A Constitution
could look forward and backward, vertically
and horizontally as it sought to engineer social
order.
20. The Constitution of Kenya 2010 intended that
the vetting process would be retroactive in its
application, in the sense that findings on the
suitability of a judge or magistrate to continue
serving in office would entail an evaluation
of a judges or magistrates past conduct and
decisions.
21. The retroactive nature of the Vetting of Judges
and Magistrates Act No. 2 of 2011 was
ordained by the Constitution, and as such, it
was not unconstitutional.
22. In establishing vetting concerning a judges or
magistrates integrity, section 23 of the Sixth
Schedule to the Constitution of Kenya 2010
gave a constitutional underpinning to questions
of integrity within the judiciary but it was not
retrospective. Questions of integrity and the
conduct of judicial officers were sanctioned by
pre-existing laws including the Public Officers
Ethics Act No. 4 of 2003 and the Judicial
Service Code of Conduct and Ethics, Legal
Notice No. 50 of 2003.
23. In the vetting process, the judges and magistrates
were entitled to the right to fair administrative
action and the right to a fair trial protected in
the Constitution of Kenya 2010, under article
47 and article 50, respectively. However,
what fairness required was not perfection;
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58

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the essential question was whether a judge or
magistrate had a fair chance of dealing with
the allegations made against him or her.
24. Fairness required that a person affected by a
decision would be informed of the case made
against him or her and would also be afforded
a fair opportunity to make a response. Section
19(6), 19(3) and 19(4) of the Vetting of Judges
and Magistrates Act No. 2 of 2011, gave every
affected judge the right to an adequate notice
of the allegations or complaints made and an
opportunity to respond to the complaints.
25. The vetting process established in the Vetting
of Judges and Magistrates Act No. 2 of 2011
entailed a quasi-judicial process which
observed the rules of natural justice and the
requirements as to a fair trial.
26. Section 23(2) of the Sixth Schedule to the
Constitution of Kenya 2010 and section 22(5)
of the Vetting of Judges and Magistrates Act
No. 2 of 2011 entailed a constitutional ouster
clause which provided that determinations on
suitability of judges or magistrates to continue
serving in office would not be subject to
question or review by any court.
27. It was the Judges and Magistrates Vetting Board
that had the exclusive jurisdiction to determine
questions about the suitability of a judge or
magistrate to continue serving in office and
such jurisdiction was exclusive of the appellate
or original jurisdiction of any court in Kenya.
28. Neither section 23(2) of the Sixth Schedule to
the Constitution of Kenya 2010 nor section 22
of the Vetting of Judges and Magistrates Act No.
2 of 2011 made reference to judicial review.
The word review could not be interpreted to
include the word judicial review.
29. The general rule in statutory interpretation
was that, except for drafting and typographical

BB Issue 24, January - March 2014 F Court of Appeal Cases

errors, courts would not add or subtract any


word or punctuation mark from a statute.
Accordingly, the court would not add the word
judicial before the word review as placed
in section 23(2) of the Sixth Schedule to the
Constitution of Kenya 2010.
30. There would be no right of appeal from the
decisions of the Judges and Magistrates Vetting
Board before any other court. However, the
right to seek judicial review, even in the case
of determinations on suitability, would be
exercised as part of the supervisory jurisdiction
provided in article 165(6) of the Constitution of
Kenya 2010.
31. It was common practice that a review of a
decision would be sought before the same
judge or magistrate who made it and it would
not be against the principles of natural justice to
have a review of a determination on suitability
carried on by the same panel which made the
decision.
32. The vetting process was not intended to inflict
pain or suffering to judges and magistrates.
While some anxiety could be occasioned,
the process did not generally create a
situation whereby judges and magistrates
would experience torture, cruel, inhuman or
degrading treatment.
33. Pursuant to the provisions of section 23 of the
Vetting of Judges and Magistrates Act No. 2 of
2011, the vetting process was required to be
concluded within one year, however, various
amendments had extended the period allowed
for vetting. It was not shown that by continuing
with the vetting process there had been a
violation of the Constitution by the Vetting of
Judges and Magistrates Board.

Appeal dismissed.

59

Issue 24, January - March 2014

Court of Appeal nullifies the election of Othaya Member of the National Assembly
Peter Gichuki Kingara v Independent Electoral and Boundaries Commission & 2 others
[2014] eKLR
Civil Appeal 31 of 2013
Court of Appeal at Nyeri
A Visram, M K Koome & J Otieno-Odek, JJA
February 13, 2014
Reported by Nelson K. Tunoi
Issues
I.

Whether Mary Wambui Munene (3rd


respondent) was eligible to vie for the post
of Member for National Assembly for Othaya
Constituency during the 4th March, 2013,
elections.

II.

Whether the evidence on record supported


Peter Gichuki Kingaras (the appellant) prayer
for a recount and scrutiny.

III.

Whether Peter Gichuki Kingara (the appellant)


proved his case to the required standard that
the elections for Member of the National
Assembly for Othaya was not conducted in
accordance with the principles laid down in
the Constitution and the law and whether the
irregularities did affect the result of the election.

Electoral Law-election petition-parliamentary electionappeal against decision of the election court upholding
the election of the 3rd respondent as the Member of
National Assembly for Othaya Constituency held on 4th
March 2013-grounds of appeal, inter alia, the election
court erred in law by upholding results espoused by the
respondents despite glaring anomalies, irregularities
born out of the evidence and that the election failed
to order a scrutiny and recount of the votes despite
overwhelming evidence of admitted irregularitieswhether the evidence on record supported the
appellants prayer for a recount-whether the appeal
had merit-Civil Procedure Act (cap 21) section 72;
Electoral Law- electoral qualifications - academic
qualifications-claims that the 3rd respondent was
inadequately educated to be a parliamentary
representative at a constituency level-whether the 3rd
respondent was eligible to vie for the post of Member
for National Assembly for Othaya Constituency during
the 4th March, 2013, elections-Election Act, 2012,
section 22(1)(b);
Electoral Law-election petition-standard and burden

of proof in election petition-whether the burden of


proof lay on the appellant to prove his case to the
required standard that the elections for Member of the
National Assembly for Othaya were not conducted
in accordance with the law-whether the irregularities
affected the result of the election-Elections (General)
Regulations, 2012, Regulations 83(1)(a)
Practice and Procedure-appeal-jurisdiction of the
Court of Appeal to hear appeals from election courtswhether the grounds of appeal raised by the appellant
constituted issues of law or facts-validity of the appealConstitution of Kenya, 2010, article 159, 165(3)
(a); Elections Act, 2012, sections 82(1), 85; Civil
Procedure Act (cap 21) section 72
Held:
1. Although section 22(1)(b) of the Elections Act
which made provisions for academic threshold
for the candidates vying for Member of the
National Assembly to hold a Post-Secondary
School qualification recognized in Kenya, the
Election (Amendment) (No.3), Act, suspended
the operation and applicability of that section
in respect to the first general elections after the
new Constitution, and thus in effect, there was
no requirement for a person seeking for the
position of Member of National Assembly to
possess the qualification stated therein.
2. The Constitution of Kenya, 2010 set out values
for persons seeking for leadership; and integrity
was one such value that was emphasized.
A person(s) presenting themselves for a
leadership position were expected to abide by
the law. Even if the election court made an
adverse finding against the 3rd Respondent for
refusing to avail her educational certificates,
nothing much would have turned on it, as the
certificates were not a mandatory requirement
for that particular election.
3. On the constitutionality of the amendment
suspending the applicability of section 22(1)(b)
of the Elections Act, the election court could

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60

Issue 24, January - March 2014


not be faulted for holding that the decision* by
a coordinate court, declaring section 22(1)(b)
of the Elections Act unconstitutional because it
was discriminatory on the basis of educational
qualifications, had the same effect allowing
candidates to vie for Parliamentary seats
without proof of academic qualifications. There
was nothing a court of coordinate jurisdiction
could have done in respect to abiding by the
principle of stare decisis. [ *Johnstone Muthama
v Minister for Justice & Constitutional Affairs &
another, Petition 198 of 2012 - Mumbi Ngugi,
J.].
4. The election court in denying the prayer for
scrutiny was exercising judicial discretion.
Judicial discretion was always exercised
judiciously and for reasons which were stated.
The aims that should be encapsulated in
the reasons given for the refusal to exercise
discretion were meant to further the cause of
justice, and to prevent the abuse of the court
process. Judicial discretion was never to be
exercised capriciously or whimsically. [Mbogo
& another v Shah 1968 EA 93 at page 95, Sir
Charles Newbold P.]
5. Given that there was no test that was applied
by the election court to justify the conclusion
that the totality of the errors was negligible, if
any attempt was made to examine the evidence
critically, it would have been evident to the
election court that there was no factual basis for
the conclusion that the errors committed during
the counting and tallying did not affect the
outcome of the results. The only way a correct
conclusion could be arrived at, was through a
recount and scrutiny of the ballots. However,
it was not feasible to order for a recount and
scrutiny because that would involve matters
of fact that were within the jurisdiction of
the election court, but which court failed to
consider the matter and hence arrived at an
erroneous conclusion. With all the mistakes by
the election officers, it was necessary to order
the recount and scrutiny of the ballots so as to
establish whether the election was substantially
conducted according to the law.
6. A recount or scrutiny of ballots was not rocket
science, the terms were synonymous and there
could not be one without the other. There was
sufficient evidence to show that it was not an
exercise meant to abuse the court process or
take the court on a wild goose chase, there
were sufficient grounds in the matter to justify

Court of Appeal Cases

the request.
7. The aim of a recount was to assist the Court
to establish the correctness or otherwise of
the allegations by a petitioner. Also a recount
is meant to assist the Court in its duty to
investigate the validity of alleged breaches of
the law and the irregularities. Therefore, there
was justification to order a recount and scrutiny
in that election so as to ascertain the materiality
of the errors alleged by the appellant and those
which were admitted by the respondents. [See:
Said v Hemed (2008) eKLR (EP) 323].
8. In civil matters the burden of proof was upon the
appellant to provide proof of all the allegations.
However, since election petitions touched on
the determination of the collective democratic
will of the people, and some allegations were
quasi criminal, the test to be applied was
higher than a balance of probabilities but
not beyond reasonable doubt as in criminal
matters. [See: Raila Odinga Vs IEBC & others
[2013] eKLR]. Further, Regulation 83(1)(a) of
the Election Act was clear and unambiguous, it
was not necessary to invite the 2nd Respondent
to give reasons why there was over voting
which was tantamount to changing goal posts.
The election court erred by placing a further
burden upon the appellant to prove a matter
beyond what was provided for in the law.
9. Following the admission by the 2nd respondent
on cross-examination that the seals the
appellant and his agents had collected at two
polling stations belonged to the 1st respondent,
it was the duty of the 1st and 2nd respondents
to secure them, and demonstrate how some
accountable election materials left the custody
of those who were entrusted with them. To
expect the appellant to prove that the seals
were not removed in a bid to tamper with
the ballot boxes, when the election court
declined to allow recount and scrutiny and
the production of the polling day diaries was
a clear misdirection on the part of the election
court.
10. Due to the many breaches of the law and
regulations during the 4th March, 2013
elections for Member of the National Assembly
for Othaya Constituency, the process was not
administered in an efficient, accurate and
accountable manner.

Court of Appeal Cases


Appeal allowed; declaration that the 3rd respondent
not validly elected; IEBC directed to issue a certificate
to that effect, to be served upon the Speaker of the
National Assembly pursuant to section 80 of the

61

Elections Act; costs of the appeal borne by the 1st


respondent.

The Court of Appeal sets aside High Courts decision nullifying the election of the
Member of Parliament for Matungulu Constituency

Independent Electoral and Boundaries and another V Stephen Mutinda Mule and 3 Others
Civil Appeal No. 219 Of 2013
Court Of Appeal at Nairobi
G.B.M. Kariuki, P.O. Kiage, K. Minoti JJA
January 31, 2014
Reported By Njeri Githanga

Brief facts

(General) Regulations, Regulation 81(2)

Stephen Mutinda Mule the, 1st respondent had lost


his seat as the Member of Parliament for Matungulu
Constituency after his election was nullified by the
High Court. He was however re-elected by the voters
of that constituency in a by-election while the appeal
was still pending in the Court of Appeal. The Court of
Appeal nevertheless proceeded to issue a judgment.
Among the grounds for appeal was that, having found
the allegations in the petition not proved, the judge did
not dismiss the petition and leave the 1st respondents
election undisturbed as she should have. The appellant
asserted that during the scrutiny that was ordered by
the Judge in the course of the proceedings, new factual
and legal issues arose around the counterfoils and the
lack of the IEBC stamp on some of the Form 35. The
appellant submitted that by unilaterally framing new
issues for determination not pleaded or responded
to by the parties; the Judge abandoned her role as an
independent and impartial adjudicator and descended
into the arena of conflict.

Electoral Law-election petition-parliamentary electionconduct and results-declaration of results-whether


there was compliance with the election regulations
-Form 35-whether there was a legal requirement
that Form 35 used for the declaration of results at
polling stations should bear the IEBC stamp- Elections
(General) Regulations, Regulation 81(2)

Issues

The packets in sub-regulation (1) are separate tamper


proof envelopes containing;

I.

Whether the court erred in basing its decision


on issues not pleaded by the petitioner.

II.

Whether there was a legal requirement that


counterfoils of the used ballot papers be stored
in ballot boxes.

III.

Whether there was a legal requirement that


Form 35 used for the declaration of results at
polling stations should bear the IEBC stamp.

Election Law-election petition-parliamentary electionconduct and results- documents to be placed in the


ballot box -ballot papers-counter foils- whether there
was a legal requirement that counterfoils of the used
ballot papers be stored in ballot boxes- Elections

Elections (General) Regulations, Regulation 81(2)


which lists the items or documents to be placed in
the ballot box that should convey election results. It
provides;
The presiding officer shall, after demonstrating
to the candidates or agents as the case may
be, that the ballot box to be used to carry the
election results is empty, put into that box;
a. The packets specified in sub-regulations(1)
b. The statements under regulations 78 and 79.

a. The counted ballot boxes which are not


disputed
b. The rejected ballot papers together with the
statement relating thereto
c. The disputed ballot papers
d. The rejected objected to ballot papers
Elections (General)
provides;

Regulations,

Regulation

69

I. Before issuing a ballot paper to a voter, an


BB Issue 24, January - March 2014 F Court of Appeal Cases

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62

election official
shall ---
f. Stamp the counterfoil of the ballot paper
on the face with the official mark of the
commission; and
g. Stamp the ballot paper at the back with official
mark of the Commission.
Held;
1. Parties were bound by their pleadings which
in turn limits the issues upon which a trial
court may pronounce. The judge, no matter
how well-intentioned, went well beyond the
grounds raised by the petitioners and answered
by the respondents before her and thereby
determined the petition on the basis of matters
not properly before her. To that extent, she
committed a reversible error.
2. Under Regulation 73 (3) (c) the presiding
officer was required to seal the counterfoils of
the used ballot papers. Under sub regulation
(4) he was required to deliver the ballot boxes
and the tamper proof sealed envelopes to
the returning officer who should take charge
thereof. It was quite clear that the ballot boxes
were separate and apart from the sealed tamper
proof envelopes. The two items were required
to be delivered separately to the returning
officer. There was no requirement that one be
in the other.

3. The ballot box was meant to contain the sealed


tamper proof envelopes containing the various
classes or categories of ballot papers only. The
counterfoils of the used ballot papers were not
required to be in the ballot box. That being the
case, it mattered not that other ballot boxes,
save the eight, did contain the counterfoils.
Their having the counterfoils was a accidental
happening, not an act in obedience to any
legal requirement. They could not form a basis
for placing upon the appellant a burden the
law did not impose and it was a clear error for
the Judge to have come to the conclusion that
a grave irregularity had occurred.
4. There was no stamping requirement in the
case of the Form 35. All that was required with
regard to Form 35 as provided for in Regulation
79 was the signature of the presiding officer
and the agents of the candidates.
5. It was the signatures of the presiding officers
and the agents that authenticate the Form
35. If any such forms were stamped, it was a
superfluous discretionary or administrative act
incapable of creating a statutory obligation,
less still the invalidation of the Forms 35 that
did not contain the stamp.
Appeal allowed, the judgment and decree of the High
Court set aside, the 2nd, 3rd and 4th respondents to pay
the appellant and the 1st respondent the costs of the
appeal and of the petition at the High Court.

Court of Appeal Reinstates Timamy Issa Abdalla as the Duly Elected Governor in the
Lamu Gubernatorial Elections
Timamy Issa Abdalla v Swaleh Salim Imu & 3 others [2014] eKLR
Civil Appeal No 36 of 2013
Court of Appeal at Malindi
H M Okwengu, M A Makhandia & F Sichale, JJA
January 13, 2014
Reported by Nelson K. Tunoi

Issues for determination:


I. Whether in determining the integrity of the
electoral process and the democratic will of
the voters in Lamu, the election court properly
interpreted and applied the general electoral
principles provided in the Constitution, together
with the provisions, rules and regulations
stipulated under the Elections Act.
II. Whether the results of the scrutiny and recount
BB Issue 24, January - March 2014 F Court of Appeal Cases

III.

of the ballots that was initiated by the court suo


motto should have been used in determining
the two petitions (consolidated) filed before the
election court.
Whether the election court was right in
drawing a conclusion that the IEBC had failed
in its constitutional duty provided under article
86 of the Constitution because the counterfoils
were not in ballot boxes.

63

Issue 24, January - March 2014


IV.

Whether the irregularities of the missing vote


bundles affected the outcome of the election
results.

Election Law - election petition - gubernatorial election


- conduct and results - documents to be placed in
the ballot box - ballot papers - counter foils -whether
there was a legal requirement that counterfoils of the
used ballot papers be stored in ballot boxes -Elections
(General) Regulations,Regulation 81(2)
Facts:
The appellant (Timamy Issa Abdalla) sought to have
the judgment and the certificate issued by the election
court under section 86 of the Election Act altering the
election of the appellant as the duly elected Governor
of Lamu County set aside. The memorandum of appeal
filed by the appellant raised 32 grounds, alleging inter
alia, that the election court erred in law and fact in:
failing to give effect to the democratic will of the voters
in Lamu county by failing to uphold the election of
the appellant; nullifying the election of the appellant
on the basis of alleged missing counterfoils for four
polling stations when the elections and results for the
four polling stations were in dispute; and misdirecting
itself on the issue of the burden and standard of proof
in an election petition by shifting the burden to the
appellant, 3rd and 4th respondents.
In his cross appeal the 1st respondent challenged the
dismissal of his petition on several grounds, inter
alia, that the election court erred in making separate
findings in two election petitions which had been
consolidated under rule 18 of the Election Petition
Rules; that having found that the election was not
conducted within the requirement of articles 81 and
86(d) of the Constitution, the election court ought to
have allowed the 1st respondents petition; and that
having exercised its discretion and ordered scrutiny
the judge erred in applying the evidence arising from
the scrutiny selectively in Petition No 5 of 2013 and
not Petition No 4 of 2013.
The 2nd respondent opposed the main appeal and
filed under section 94 of the Court of Appeal Rules,
7 grounds for affirming the decision of the election
court, which grounds included the fact that the election
process was grossly flawed, inaccurate and the results
prematurely announced; that the burden of proof in
regard to the missing counterfoils and extra bundle
of votes found in the sampled ballot boxes shifted to
the appellant and the IEBC as per section 108, 112

and 119 of the Evidence Act, which burden was not


discharged as no explanation was offered to rebut any
adverse presumption; and that allowing the appellants
appeal would cause a constitutional crisis as the right
of appeal under section 85A of the Elections Act 2011
is irreconcilable with article 182(5) of the Constitution.
The IEBC (3rd respondent) and 4th respondents supported
the main appeal and opposed the 1st respondents cross
appeal. The IEBC and 4th respondent challenged the
election courts finding that the election process was
not transparent, free and fair on account of missing
vote bundle of the appellants votes and missing
counterfoils in the ballot boxes, contending that the
current election laws did not oblige the presiding
officer to insert the used counterfoils in the ballot boxes;
that the election court failed to accept the report on
scrutiny which showed that the appellant had received
the most number of votes and that the election courts
decision was based on speculation.
Held:
1. The scrutiny and recount of the ballots was
an issue before the election court, and the
findings of the election court on issues arising
therefrom were not superfluous matters but
matters originating from the pleadings. Thus
the election court could not ignore the scrutiny
report or its findings thereon. The election
court had an obligation to use its findings
on the primary facts established before it, in
determining the integrity of the elections.
2. Under Regulation 86 the Returning Officer
was required after the final tallying and
announcement of the results to seal in separate
tamper proof envelopes, the counted ballot
papers which were not in dispute, the disputed
ballot papers, and rejected disputed ballot
papers, and put the sealed tamper proof packets
in used ballot box. Thus it was evident that at
no time were the counterfoils required to be
sealed in the ballot box, but were required to
be delivered to the Returning Officer in tamper
proof sealed envelopes. This position was a
departure from the former regulations provided
under the National Assembly and Presidential
Elections Act (cap 7). Regulation 34 of the
Presidential and Parliamentary Elections
Regulations listed counterfoils of used ballot
papers among the documents required to be
put in separate sealed packets, which packets
were, under Regulation 39(3) of the same

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64

Issue 24, January - March 2014


Regulations, to be put inside the ballot boxes
and delivered to the Returning Officer.
3. Although the election court made reference
to Regulations 73(3) and (4) of Elections
(General) Regulations 2012, it misdirected
itself in relying on a decision which was
decided under the former Regulations, hence
the erroneous conclusion that the counterfoils
were absent from the ballot boxes.

the electorate could not be determined through


conjecture and supposition. The will of the
electorate was clearly demonstrated by the
majority votes cast in favour of the appellant in
an election that was apparently free and fair, as
the administrative mistakes committed by IEBC
and 4th respondent did not affect the results of
the elections or undermine the integrity of the
electoral process.

4. The election court misapprehended the


requirement for the presence of counterfoils in
the election boxes and took into account factors
it ought not to have taken into account. This led
the election court to wrongly shift the burden
of proof onto IEBC and the 4th respondent with
regard to the alleged missing counterfoils.
Under these circumstances the finding of
the election court that the counterfoils were
missing and that IEBC and 4th respondent failed
in discharging their responsibility, was based
on a fundamental misapprehension of the
Regulations and wrong application of the law.

8. Under Rule 18 of the Election Petition Rules,


2013, the consolidation of the petition was
only intended for the purpose of expediting the
hearing of the election petitions, so that one
inquiry was carried out in regard to petitions
arising from the same election. The Rule did
not take away the individual characteristic of
the petitions, as each petition questioned the
conduct of the elections on its own peculiar
grounds. While a general inquiry into the
conduct of the election was carried out, the
election court was obliged to make specific
findings in regard to the grounds put forward
by each petitioner, to the extent that the
general inquiry applied. Where necessary the
election court would have to go beyond the
general inquiry in addressing issues peculiar to
a particular petition.

5. The election courts conclusion that the will


of the people of Lamu County would not be
said to have been done with such glaring
evidence of manipulation was further an
apparent misdirection and contradiction in
light of the election courts findings in regard to
the irregularities complained of in the petition,
all of which were found either not established
or where established not to have affected the
elections.
6. There were no primary facts established by the
election court which could support the finding
that the missing vote bundles was evidence of
glaring manipulation of the election result. The
facts established revealed an administrative
mistake and not deliberate manipulation of
the election such as could reasonably lead to
a conclusion that the electoral principles in
regard to free and fair elections were breached.
In addition the election court did not apply
section 83 of the Elections Act, 2012 as neither
the missing counterfoils nor the missing vote
bundles were irregularities that affected the
elections or undermined the integrity of the
electoral process, such as could justify the
nullification of the appellants election.
7. The election court did not give effect to the will
of the electorate in Lamu County in regard to
the Lamu gubernatorial election. The will of

Court of Appeal Cases

9. The election court properly applied Rule 18


to arrive at a conclusion regarding the specific
prayers sought in Petition No. 4 of 2013 and
Petition No 5 of 2013. The decision of the court
in dismissing one petition and allowing the
other was obviously informed by its findings on
the specific grounds upon which the conduct of
the elections was challenged, and the prayers
sought in each petition.
10. There was no selective application or
discrimination in applying the results of the
scrutiny and recount of the ballots to petition
No 5 of 2013 and not Petition No 4 of 2013. Nor
was there any violation of the 1st respondents
constitutional rights under article 27 of the
Constitution of Kenya, 2010. Moreover, the
finding made by the election court that there
was breach of articles 81 and 86(d) of the
Constitution of Kenya, 2010 was wrong as it
was a conclusion that a reasonable tribunal
could not have arrived at given the primary
facts that were established.
11. On the issue of costs, under section 84 of the
Election Act, the election court had discretion
to award costs but such costs should follow

Court of Appeal Cases


the cause. Further Rule 36(2) of the Election
(Parliamentary and County Election) Petition
Rules 2013, gave the election court discretion
to make orders on costs. Thus, the award of
costs was in the unfettered discretion of the
election court.
12. An appellate court could only interfere if the
election courts discretion was not exercised
judiciously. In imposing the burden of payment
of costs upon IEBC and the 4th respondent
whose conduct led to Petition No 5 of 2013
being allowed, and ordering the 1st respondent

65

(whose petition was dismissed) to meet its own


costs, the election court exercised its discretion
judiciously and in accordance with the relevant
provisions of the law.
Appeal allowed, appellant declared validly elected
as Lamu County Governor; order by election court
nullifying the gubernatorial elections quashed and set
aside; cross appeal dismissed with costs to the 1st & 2nd
respondents equally.

Entry requirements to the Kenya School of Law are not subject to exemptions
Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others
Civil Appeal No 121 of 2013
Court of Appeal at Nairobi
D K Maraga, G B M Kariuki, S Gatembu Kairu, JJA
November 22, 2013
Reported by Nelson K Tunoi & Beatrice Manyal

Brief Facts
The appellant (Eunice Cecilia Mwikali Maema) upon
completion of her Bachelor of Laws (LLB) at Coventry
University in England and Master of Laws (LLM) degree
in University of Warwick in England in 2011 applied
to be admitted to the Advocates Training Programme
(ATP) for the 2013/2014 Academic Year. She however
received a regret letter from the Kenya School of Laws
(KSL) Director on the basis that her LLB degree did not
meet the threshold of the 16 core subjects as prescribed
by law for purposes of admission to ATP.
Aggrieved by that decision she petitioned the High
Court seeking declarations that she had complied with
all requirements for admission to the ATP under Legal
Notice 169 of 2009. She sought an order of certiorari
to quash the decision contained in the letter rejecting
her application for admission to the ATP; an order of
mandamus to compel KSL and the Council to admit
her to ATP. The High Court (Isaac Lenaola J) dismissed
the appellants petition hence the appeal.
It was argued by the appellants counsel that when the
appellant applied for admission the law did not require
completion of the 16 core subjects; that the requirement
only came with the enactment of the Legal Education
Act of 2012, which could not apply retrospectively.
They submitted that Legal Notice 170 of 2009 had
nothing to do with admission to the ATP but only

dealt with accreditation of legal education institutions


in Kenya. It only required universities to offer the 16
core subjects and there was no requirement that the
students had to take those subjects. Further that, they
argued that if some subjects had not been covered at
the university than they should be undertaken during
the ATP at KSL.
The respondents however argued that Legal Notice 169
did not contain the councils prescribed examinations
but they were set as core subjects in the Legal Notice
170 of 2009 to be offered by all accredited universities.
that other applicants in a similar position as the
applicant had taken the missing subjects at locally
accredited universities
Issue:
i.

Whether it was a legal requirement for


an applicant to have covered the 16 core
subjects at the LLB degree Programme prior to
application for admission to the Kenya School
of Law.

Statutes - interpretation of statutes-admission


requirement to the Advocate Training Programmewhether it was a legal requirement for an applicant
to have covered the 16 core subjects at the LLB
degree Programme prior to application for admission
to the Kenya School of Law-whether the appeal had
BB Issue 24, January - March 2014 F Court of Appeal Cases

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66

merit-Legal Education Act section 23; Council of


Legal Education Act, 2009 Section 6, 14; Council of
Legal Education (Accreditation of Legal Education
Institutions) Regulations, 2009 Regulations 5(2) (a);
Legal Notices 169 and 170 of 2009.
Held:
1. While the under graduate programme offered
by any accredited institution had to comprise
core units, there was no express requirement
that a student undertaking the programme at
such institution had to take those units.
2. Students enrolling for legal education
programmes at universities or other institutions
did so for a variety of reasons. Some might or
might not have wished to seek postgraduate
admission to the ATP. However, for those who
wished to gain admission to the ATP at KSL,
the Council, under Regulation 5(2) (a) of the
Council of Legal Education (KSL) Regulations,
2009 set relevant qualifying examinations.
3. The relevant qualifying examinations had to
include the 16 core subjects prescribed for
the universities under Paragraph 20 of Part III
of the Third Schedule to the Council of Legal
Education (Accreditation of Legal Education
Institutions) Regulations.
4. The 16 identified subjects or units were so
central and important that for purposes of
regulating standards, an under graduate
programme that did not include those units
failed the test of accreditation. The Council
could not on the one hand determine certain
subjects to be core for purposes of accrediting
an institution and at the same time not consider
them as core for purposes of qualifying for
admission to the advocates training programme
at the School.
5. The subsidiary legislation by the Council could
have been better framed and structured to
make it abundantly clear that a degree from
any institution that did not include those units
would not be recognized for purposes of

BB Issue 24, January - March 2014 F Court of Appeal Cases

admission to advocates training programme.


6. Any ambiguity or lack of clarity however was
removed with the enactment of the Legal
Education Act, that commenced operation on
28th September 2012 and whose objective
was to promote legal education and the
maintenance of the highest possible standards
in legal education. Section 23 of that Act
expressly provided for core degree courses
and stipulated that a legal education provider
offering a course for the award of a degree in
law was to in addition to any other courses
offered, provide instruction and examination
for each of the core courses set out in Part II of
the Second Schedule to that Act.
7. While foreign universities and institutions
outside Kenya were outside the accreditation
jurisdiction of the Council, the requirement that
a degree from a foreign university or institution
had to contain the core units was not to extend
the accreditation jurisdiction of the Council
to foreign universities but to avoid different
or double standards for local and foreign law
degree holders.
8. Law degrees earned from foreign universities
or institutions had to for purposes of admission
to the advocates training programme at the
school, be held against the standards that
the council had set out. All applications for
admission to the School had to be considered
against the same standards set by the Council.
9. To exclude the appellant from complying with
the fulfillment of the requirement of core subjects
was propagating the very discrimination the
appellant complained about. She could not be
admitted to KSL and be required to study the
remaining core subjects there as the school no
longer offered them.
Appeal dismissed with each party bearing their own
costs of the appeal.

67

Issue 24, January - March 2014

Appeals to the Court of Appeal on an election dispute to be determined after the


final determination in an election court.
Jared Odoyo Okello v Independent Electoral & Boundaries Commission & 3 Others
Court of Appeal at Nairobi
Civil Appeal No. 16 of 2013
R.N Nambuye, G.B.M Kariuki, S. Gatembu, K. M Inoti& A.K. Murgor
December 27, 2013
Reported by Emma Kinya Mwobobia

Brief facts
The appellant was a candidate in the March 4, 2013
elections for Member of National Assembly, Nyando
Constituency where the Independent Electoral &
Boundaries Commission (IEBC) declared the 3rd
respondent as the winner. However, according to the
appellant, the results of the elections would have been
in his favour had the elections been conducted freely
and fairly. He thus petitioned the election court where
he sought an order for scrutiny and recount of votes for
purposes of establishing the validity of the votes cast
in 14 of the polling stations in Nyando Constituency.
After hearing the parties, the election court determined
that no sufficient reasons had been demonstrated
by the petitioner to cause the court to order scrutiny
and recount in the results of the polling stations in
the Nyando Constituency election and proceeded to
dismiss the motion. Aggrieved by that decision, the
appellant lodged an appeal in the Court of Appeal at
Kisumu. Subsequently, the 3rd respondent filed and
served a notice of preliminary objection in which he
intimated that at the hearing of the appeal that he would
apply for the appeal to be struck out on the grounds
that all interlocutory issues were the preserve of the
Election Court and not the Court of Appeal. During
the hearing, the appellant sought an adjournment of
the hearing to enable him apply to the President of the
Court of Appeal to constitute a bench probably with
more judges to consider the matter of jurisdiction.
Thereafter, The President of the court duly constituted
a bench of five Court of Appeal judges to hear and
consider arguments on jurisdiction and determine
whether the Court of Appeal could entertain an appeal
on an interlocutory decision of an election court.
Issue:
I.

Whether the Court had jurisdiction to hear a


preliminary objection which had no formal
application by way of a notice of motion

II.

To what extent does the provision in Article


164 (3) of the Constitution of Kenya, 2010 differ
from section 64 of the repealed Constitution

on the jurisdictional nature of the Court of


Appeal?
III.

Whether the Court of Appeal had jurisdiction


to entertain an interlocutory appeal from
decisions of the High Court on election
disputes.

Statutory provisions
Article164(3)oftheConstitution ofKenya,2010provides
The Court of Appeal has jurisdiction to hear appeals
froma. theHighCourt;and
b. any other court or tribunal as prescribed by an
Act of Parliament.
Section 64(1)of the repealed Constitution provided
that
ThereshallbeaCourt o fAppeal which shall be
a superiorcourtofrecord,andwhichshallhavesu
ch jurisdiction andpowers in relation to appeals
fromtheHighCourtasmaybeconferred onitby
law.(Emphasissupplied).
section80(3)ofthe Election Act4providesasfollows:
Interlocutorymatters inconnectionwithapetition
challengingresultsofpresidential,parliamentary or
countyelectionsshallbeheardanddetermined bythe
electioncourt.
Constitutional law jurisdiction application for an
interlocutory appeal from the decision of the High
Court on election disputes whether the Court of
Appeal had jurisdiction to entertain such an appeal.
Civil Practice and Procedure striking out preliminary objection application seeking to strike out
an appeal grounds; that interlocutory raised issues
were the preserve of the Election Court and not the
Court of Appeal whether the court had jurisdiction to
entertain a preliminary objection which had not been
brought by way of a notice of motion whether the
application had merit.

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68

Issue 24, January - March 2014

Statutes interpretation of statutes extent to which


article 164 (3) of the Constitution of Kenya, 2010
differs from section 64 of the repealed Constitution
Constitution of Kenya, 2010 article 164(3)
Constitution (repealed) section 64.
Held:
1. The foundational nature of a jurisdictional
question, and having regard to Article 159 (1)
(d) of the Constitution, the respondents who
had raised preliminary objections were not
obliged to file formal applications to strike out
the appeals. They could legitimately raise the
issue of jurisdiction so long as they afforded
their opponents an opportunity to know
what kind of objection had to be met and
reasonable opportunity to prepare themselves.
In the circumstances, unequivocal notices of
preliminary objections were filed and served
on the parties which left no doubt about the
jurisdictional question.
2. The jurisdiction of the Court of Appeal under the
repealed Constitution was conferred differently
from the Constitution of Kenya, 2010. Section
64 of the repealed Constitution merely created
the Court of Appeal and conferred jurisdiction
on it where one had to rely on legislation to
determine whether in a peculiar matter, the
Court of Appeal had jurisdiction.
3. The different formulation of the jurisdiction
of the Court of Appeal under the two
Constitutions had significance and it was
not accidental. It was because of the way in
which the jurisdiction of the Court of Appeal
under the Constitution of Kenya, 2010 was
formulated that it was not tenable to insist that
there ought to be a statutory basis in addition
to Article 164 (3) before the Court of Appeal
could exercise its jurisdiction. However, the
approach was mandatory and legitimate under
the repealed Constitution.
4. There was nothing in the Elections Act, 2011
or the Election Petition Regulations, 2013 that
limited or otherwise ousted the jurisdiction of
the Court of Appeal under article 164 (3) of the
Constitution. It merely regulated the exercise of
the right of appeal by requiring that an appeal
be filed within 30 days of the High Courts
decision and be heard and determined within
six months of the filing of the appeal.

Court of Appeal Cases

5. Section 80 of the Elections Act empowered the


election court to deal with election petitions
and it was distinct that the Court of Appeal was
definitively excluded from the definition of an
election court in section 2. However, there was
no basis that there was no right of appeal to the
Court of Appeal on interlocutory matters.
6. The reason for the exclusion of the Court of
Appeal from the definition of an election court
arose from the fact that it was not a court of
original jurisdiction as its jurisdiction was
strictly appellate. On the other hand, Supreme
Court had original jurisdiction to hear disputes
touching on the election of the President under
Article 140 of the Constitution whilst the High
Court had original jurisdiction to hear disputes
on election of Members of the National
Assembly, Governors and Senators under
Article 105 and designated subordinate courts
had original jurisdiction to hear disputes on
election of members of the County Assembly
under section 75 (1A) of the Elections Act.
7. Subsidiary legislation could not be inconsistent
with the principal legislation under which it was
made let alone the Constitution as envisaged
under section 31(b) of the Interpretations and
General Provisions Act, Cap 2 Laws of Kenya.
It could not be that jurisdiction which was
not expressly limited by the Constitution in
Article 164(3) could be limited by subsidiary
legislation.
8. Nothing in the Elections Act or Election
Petition Rules limits the jurisdiction of the
Court of Appeal under Article 164 (3) of
the Constitution to hear and determine
interlocutory appeals. However, a purposive
and holistic interpretation of Article 164,
having regard to all other pertinent provisions
of the Constitution, the right to appeal to
the Court of Appeal from the High Court in
interlocutory election matters had legitimately
been regulated so as to be invoked after the
final determination in an election petition.
9. Timelines in the resolution of disputes in
general and electoral disputes in particular
was a core purpose, value and principle of the
Constitution. Article 159 (2) (b) recognized the
principle that justice shall not be delayed as
one of the key principles that ought to guide
courts in the exercise of judicial authority.

Cases
10. There are various provisions of the Constitution
that underline the value of the timelines
in dispute resolution as a Constitutional
imperative. The Court of Appeal therefore
interpreted the Constitution on the one hand
bearing in mind the clear provision of Article
164 (3) that vests the Court of Appeal with
jurisdiction to hear and determine appeals from
the High Court and the importance of access to
justice and on the other hand the uncontested
constitutional value in timely resolution of
disputes generally and in electoral disputes in
particular. A stream of election interlocutory
appeals which would clog the election process
had to be avoided to ensure that that the ability
of both the High Court and the Court of Appeal
to dispense with the election petitions was met
in their stipulated periods of six months.
11. Taking into account all the provisions of the
Constitution as well as those of the Elections
Act which had been enacted pursuant to an
express power donated by the Constitution to
Parliament to advance specified values, the
Court of Appeal had jurisdiction to hear and
determine appeals from election disputes,

69

whether final or interlocutory. However, to


protect and uphold the clear constitutional
principles and values of among others timelines,
issues that arose in interlocutory determinations
ought to be canvassed on appeal after the final
determination of the court.
12. The Court of Appeal rules could not stand
in the way of an appellant who wanted to
address, in an appeal after the final disposal
of a petition, a determination that was made
in an interlocutory stage. All that was required
was a purposive interpretation of the rules to
ensure that the appellants constitutional right
to raise an issue that was determined in an
interlocutory stage was protected.
13. (Obiter) The practice of appealing against
interlocutory decisions in the final judgment
was not unknown to our jurisdiction. It is
the order of the day in criminal cases where
interlocutory determinations in the course of
the trial were raised on appeal after conclusion
of the trial. The concern may be addressed
by formulation of procedural rules specific to
election petitions.

Socioeconomic rights: protection offered to the opportunity to earn a living through


hawking.
Micro and Small Enterprises Association of Kenya, Mombasa Branch v Mombasa County
Government & 43 others
Petition No 3 of 2014
High Court of Kenya at Mombasa
Edward M Muriithi, J
February 18, 2014
Reported by Beryl A Ikamari

Brief facts
In exercise of powers provided in article 186 and the
Fourth Schedule of the Constitution of Kenya 2010,
the Mombasa County Government removed hawkers
and prevented them from operating their businesses
at certain places in Mombasa. The powers exercised
included trade development and regulation. The
affected hawkers constituted part of the membership of
the Micro and Small Enterprises Association, Mombasa
branch, which was the association which sought reliefs
from the court.
The petitioner, Micro and Small Enterprises Association,
Mombasa branch, explained that there had been
previous arrangements, with the Municipal Council of

Mombasa, which was the predecessor to the Mombasa


County Government. The Municipal Council of
Mombasa allowed hawkers to carry on business while
paying hawking levy. The payment arrangement was
stopped in March 2013 and there were negotiations
with the new county government for permissions that
would allow the hawkers to trade at designated places
on certain terms.
The petition was for the enforcement of fundamental
rights and freedoms and was based on the contention
that there was no notice issued to the traders before
their removal and that there was a violation of their
right to life in that they had lost the means to earn a
living for purposes which included buying food.
BB Issue 24, January - March 2014 F Cases

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70
Issues
i.

The nature of protection provided to the


opportunity to earn a living, through hawking,
under article 43 of the Constitution of Kenya
2010.

ii.

Whether, pursuant to the right to fair


administrative action, the demolition of
street hawkers hawking tables would require
consultations with the hawkers and the giving
of adequate notice.

iii.

Whether section 16 of the Government


Proceedings Act (Cap 40), could prevent the
grant of an injunction as a remedy against the
violation of fundamental rights and freedoms
by the state or the states organs.

Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomssocioeconomic rights-right to freedom from hunger
and right to social security-protection offered to
the opportunity to earn a living through hawkingConstitution of Kenya 2010; article 43.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-right
to fair administrative action-notice and consultationsfair administrative action guarantees relating to
demolition of hawking tables for street hawkersConstitution of Kenya 2010; article 47.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedomsavailability of injunctions against the government as
a remedy for a violation of fundamental rights and
freedoms-whether the Government Proceedings Act
provision preventing the grant of injunctions against
the government could make an injunction unavailable
in a fundamental rights and freedoms enforcement
suit- Constitution of Kenya 2010; article 23(3) and
Government Proceedings Act (Cap 40); section 16.
Held
1. In spite of the provisions of section 16 of the
Government Proceedings Act (Cap 40), an
injunction would be available as a remedy
for the violation of fundamental rights and
freedoms by the state or the states organs.
2. While the petitioners claimed that there had
been a violation of the right to life on the basis
of the metaphysical causation of death by
BB Issue 24, January - March 2014 F Court of Appeal Cases

lack of food, occasioned by a denial to carry


on business and earn a living, their grievance
entailed an infringement of the socioeconomic
right to social security recognized in article 43
of the Constitution of Kenya, 2010.
3. The socioeconomic rights recognized in article
43 of the Constitution of Kenya 2010 would
entitle the petitioners to have their opportunity
to earn a living through hawking protected, as
a means of protecting them from hunger.
4. The petitioners socioeconomic rights would
not arise from the payment of a licence fee. The
payment of licence fees did not create those
rights but it was a means of raising revenue for
government expenditure. Therefore, the failure
to pay licence fees did not take away social
security rights, and other socioeconomic rights,
protected in article 43 of the Constitution of
Kenya 2010.
5. The right to fair administrative action as
protected in article 47 of the Constitution of
Kenya, 2010, would require consultation and
the grant of adequate notice to hawkers, when
a County Government made the decision to
demolish hawking tables.
6. The rules for the grant of injunctions in
civil cases were well-established (Giella
v Casman Brown [1973] EA 583). In the
context of a constitutional application, great
premium would be placed on the need to
protect fundamental rights and freedoms. It
would therefore be important to preserve the
enjoyment of such rights pending the hearing
and determination of a suit.
7. In the circumstances, it was necessary to
balance the rights of the petitioners to earn a
living by hawking and the public interest in
security from terrorism, safety in case of fires,
the general convenience of vulnerable groups
and the development of tourism as a single
important revenue earner for the County and
the country. The public interest in the free
flow of people and traffic along roads and
streets was therefore important. However, both
interests could be met by allocating appropriate
designated areas to hawkers for purposes of
hawking.

71

Issue 24, January - March 2014


Conservatory orders granted. (The respondents were
ordered to permit hawking outside of the Mombasa
Central Business District (CBD), at designated times
and places, subject to the daily or weekly payment of

levies, and on condition that no structures were erected


on the street. Such permission would take into account
the interests of other stakeholders, security concerns,
cleanliness and decongestion of the streets.)

Scope of Intergovernmental Disputes Within the Intergorvernment Relations Act


County Government of Nyeri v Cabinet Secretary, Ministry of Education Science &
Technology &another
Petition No 3 of 2014
High Court at Nyeri
J Wakiaga, J
February 17, 2014
Reported by Phoebe Ida Ayaya

Brief facts:
By a letter to all County Directors of Education, District
Education Officers and all principals of secondary
schools in Kenya, the 2nd respondent issued guidelines
for form one selection in 2014 aimed at ensuring
placement of candidates in schools of their choice and
through merit, equity in school placement through
quotas and affirmative action where applicable,
proportionate sharing of national schools places
between public and private schools candidates in
every district based on the number of candidates
taking KCPE from either category of primary schools
and harmonization of the selection polices throughout
the county at all levels; national, county and district.
The extra-county schools (high performing schools
with a mean score of 6.5 in KCSE) and county schools
were supposed to admit students as follows: Extra
County: 40% National, 40% from within county and
20% from the district hosting the school and County:
20% from the district hosting the school and 80% from
the rest of the county.
The petitioner stated that the circular was not followed
in schools within Nyeri county thereby violating
the constitutional provision under article 27 of the
Constitution of Kenya, 2010 by discriminating against
the students from Nyeri County and its various districts
by having negligible students admitted from its host
district schools and a staggering of students from other
counties admitted in its schools over and above the
40% prescribed in the guidelines.
Issues:
I.

Whether the court had jurisdiction to determine


a dispute between the national and county
governments

II.

Whether the dispute before the court was


a dispute between national and county
governments

III.

What constituted a dispute between the


national and county governments within the
provisions of the Intergovernmental Relations
Act and the Constitution

Government Relations intergovernmental dispute


dispute between the national and county governments
where a dispute arose as to the guidelines issued
for selection process of form one students where
the dispute touched on the relations between the
two levels of government whether the dispute was
one which could be termed as an intergovernmental
dispute Intergovernmental Relations Act sections 30
& 31; Constitution of Kenya, article 189; South African
Intergovernmental Relations Frameworks Act 2005.
Jurisdiction jurisdiction of the High Court where the
jurisdiction of the High Court was questioned in regard
to the provisions of the Intergovernmental Relations
Act where the dispute was framed as a constitutional
question whether the High Court had jurisdiction to
hear the dispute as framed Constitution of Kenya,
2010 article 165.
Constitution of Kenya, 2010
Article 189(1) Government at either level
shall:

a. Perform its functions and exercise its

powers in a manner that respects the


functional and institutional integrity
of government as the other level and

Cases

72

Issue 24, January - March 2014


respect the constitutional status and
institution of government at the other
level and in case of county government
within the county level.

Disputes as:
a dispute between different governments
or between organs of state from different
governments concerning a matter:

b. Assist, support and consult and as


appropriate implement the Legislation
of the other level of Government and

c. Liase with government at the other


level for purposes of exchanging
information,
coordinating
polices
and administration and enhancing
capacity

(2) Government at each level and different


governments at the county level shall cooperate
in the performance of functions and exercise of
powers and for that purpose may set up joint
committees and joint authorities.
(3) In any dispute between governments the
governments shall make every reasonable effort
to settle the dispute, including by means of
procedure provided under National Legislation.
(4) National legislation shall provide
procedures for settling Intergovernmental
disputes by alternative dispute resolution
mechanism including negotiation, mediation
and arbitration.
Intergovernmental Relations Acts Cap 5(a)
Section 30(1) In this part unless the context
otherwise requires dispute means an
Intergovernmental dispute.
Section 31 The National and County
Governments shall take reasonable means to:
a. resolve disputes amicably and
b. apply and exhaust the mechanisms for
alternative dispute resolutions provided
under the Act or any other Legislation
before resorting to judicial proceedings
as contemplated by Article 189(3) and
(4) of the Constitution
South
African
Intergovernmental
Relations
Frameworks Act 2005 defined Intergovernmental

Cases

a. arising from
i.

Statutory powers or function assigned to any of


the parties

ii.

an agreement between the parties regarding


the implementation of a statutory power or
function and

b. which is justifiable in a court of law and


include any dispute between
regarding a related matter

parties

Held:

1. What the provisions of the Constitution and

statute in respect of the dispute resolution


between the national and county governments
did was not to oust the jurisdiction of the court
but to postpone the same until the alternative
dispute mechanism had been attempted.

2. The express provisions of article 165 of the

Constitution of Kenya, 2010 gave the court


unlimited original jurisdiction in criminal or
civil matters and jurisdiction to determine
the question whether a right or fundamental
freedom in the bill of rights had been denied
violated infringed or limited.

3. Section

30(1) of the Intergovernmental


Relations Act provided that disputes, which
could be resolved under the act, were disputes
between the national government and a county
government or amongst county governments.
The existence of the alternative remedy and
procedure could not necessarily oust the
jurisdiction of the court (Republic v Transition
Authority & another ex-parte Kenya Medical
Practitioner, Pharmacist & Dentist Board
(KMPDH) & 2 others).

4. The court had jurisdiction but the exercise of

that jurisdiction was postponed or the court


could decline to exercise jurisdiction pending
settlement of the same.

Cases
5. In determining the question as to whether the

in totality and the dispute before court related


to selection of form one in county schools
within Nyeri County. It was brought to enforce
fundamental rights and freedoms under articles
22 and 23 and 27 of the Constitution and so
was a dispute in respect of the functions of
the petitioner as stated in schedule 4 of the
Constitution. There was no reason to hold that
it was an intergovernmental dispute simply
because the County Government of Nyeri was
the petitioner and an entity of the National
Government which was the respondent.

dispute was one between a county and national


government to which dispute settlement
mechanism under the Intergovernmental
Relations Act applied and for which the court
ought to postpone or decline the exercise of its
jurisdiction to enable the parties exhaust the
procedures set therein, a definition of a dispute
had to be undertaken as it was missing from
the Intergovernmental Relations Act and to get
the definition thereof the court had to look at
the South African Intergovernmental Relations
Frameworks Act 2005.

6. The disputes referred to by both the Constitution

8. There was no reason to reduce an allegation

of violation of fundamental rights to a dispute


between a county and national Government as
to do so would amount to judicially created
limitations on the express provision of the
Constitution. The Constitution was clear that
any person could bring an action in respect of
an allegation of breach of fundamental rights
and freedom but the court was not persuaded
that the petitioner was not a person within the
meaning of article 22.

and statute were those in respect of traditional


government functions at the two levels of
governments established by the constitution
as stated at articles 6(2) & 189 which provided
for cooperation between national and county
governments. A dispute between governments
was a dispute in relation to the functions and
exercise of powers between the different levels
of government.

7. The nature of the dispute had to be looked at

73

Preliminary objection dismissed.

Division of Matrimonial Property as provided for under the Matrimonial Property Act
Vis--vis Article 45(3) of the Constitution of Kenya, 2010
U M MV I M M

Civil Suit No.39 Of 2012


High Court of Kenya at Busia
F. Tuiyott J.
February 2, 2014
Reported by Njeri Githanga Kamau
The Plaintiff (U) sought for the sharing and division
of some property held in the names of her former
husband the defendant (I). U got married to I when
she was 18 years old and did not bring any money
into the marriage. She joined her husband in an Auto
spares business and she helped with the management
of the shops. I stated that before having difficulties in
their marriage U was a good and hardworking wife. It
was his testimony that some properties were acquired
in the course of his marriage to the U, while one was
acquired prior to the marriage but was subdivided in
the course of the union.

Issues
1. Whether the equality contemplated by Article
45(3) of the Constitution of Kenya 2010 was
an automatic 50:50 sharing of matrimonial
property upon dissolution of the marriage.
2. Whether the Court could apply Article 45(3)
in resolving the dispute where the disputed
properties were all acquired before the
promulgation of the Constitution of Kenya,
2010.

BB Issue 24, January - March 2014 Feature Case

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Cases

Constitutional Law fundamental rights and freedoms


right to equality equality in marriage-equality
in distribution of matrimonial property-whether
the equality contemplated by Article 45(3) of the
Constitution of Kenya 2010 was an automatic 50:50
sharing of matrimonial property upon dissolution of the
marriage-whether the Court could apply Article 45(3)
in resolving a dispute where the disputed properties
were all acquired before the promulgation of the
Constitution of Kenya, 2010-Constitution of Kenya,
2010, 45(3)- Matrimonial property Act, 2013, Sections
2,6 and 7
Constitution of Kenya, 2010 Article 45(3) provides as
follows:45.(3) Parties to a marriage are entitled to equal rights
at the time of the marriage, during the marriage and at
the dissolution of the marriage.
The Matrimonial Property Act, 2013 which received
assent on 24th December 2013 and commenced on
16th January 2014.
7. Subject to section 6(3), ownership of matrimonial
property vests in the spouses according to the
contribution of either spouse towards its acquisition,
and shall be divided between the spouses if they
divorce or their marriage is otherwise dissolved.
Contribution is defined by Section 2 to mean monetary
and non-monetary contribution. And non-monetary
contribution includes:a. Domestic work and management of the matrimonial
home;
b. Child care;
c. Companionship;
d. Management of family business or property; and
e. Farm work;
Family business means any business whicha) is run for the benefit of the family
by both spouses or either spouse; and
b)
generates income or other
resources wholly or part of which are
BB Issue 24, January - March 2014 Feature Case

for the benefit of the family;


Held;
1. The provisions of the Matrimonial Property
Act, 2013 ameliorate the harshness that
was associated with the decision in Echaria
v Echaria. The Statute recognized the nonmonetary contribution of a spouse. It however
did not go as far as what the Court of Appeal
had suggested in Agnes Nanjala William vsJacob Petrus Nicolas Vander Goes,Civil Appeal
No.127 of 2011where it argued that article
45(3) was perhaps a Constitutional Statement
of the principle that marital property is shared
50-50 in the event that a marriage ends.
2. Sections 2, 6 and 7 of the Matrimonial property
Act, 2013 fleshed out the right provided by
article 45(3) of the Constitution of Kenya,
2010. By
recognizing that both monetary
and non-monetary contribution must be
taken into account, it was congruent with
the Constitutional provisions of article 45 (3)
of the Constitution that parties to a marriage
are entitled to equal rights at the time of the
marriage,
during the marriage and at the
dissolution of the marriage.
3. At the dissolution of a marriage each partner
should walk away with what he/she deserves.
What one deserves must be arrived at by
considering her/his respective contribution
whether it be monetary or non-monetary.
The bigger the contribution, the bigger the
entitlement. Where there is evidence that a nonmonetary contribution entitles a spouse to half
of the marital property then, the Courts should
give it effect. To hold that article 45(3) decrees
an automatic 50:50 sharing could imperil the
marriage institution. It would give opportunity
to a fortune seeker to contract a marriage, sit
back without making any monetary or nonmonetary contribution, distress the union and
wait to reap half the marital property. That
would be oppressive to the spouse who makes
the bigger contribution and that cannot be
the sense of equality contemplated by Article
45(3).
4. Although the suit was filed post the Constitution
of Kenya 2010, it related to a dispute over
property acquired before the coming into force

75

Issue 24, January - March 2014


of the new Constitution. If the Court were to
apply the provisions Constitution 2010 then
it would be doing so retroactively. However,
since the right to equality is as inherent and
indefeasible to all human beings, it mattered
not that the cause of action accrued before
the current constitutional dispensation. Agnes
Nanjala William vs- Jacob Petrus Nicolas
Vander Goes,Civil Appeal No.127 of 2011
5. Article 45(3) requires that parties to a marriage
are entitled to equal rights at the time of the
marriage, during the marriage and at the
dissolution of the marriage. In division of
matrimonial property that right was safeguarded
by vesting in each spouse ownership according
to their respective contributions be it monetary
or non-monetary. For that reason the court
would strive to give effect to any monetary or
non-monetary contribution that U proved in the
acquisition or improvement of the properties in
dispute.
6. The statements by I was that U made some
non-monetary contribution towards the
developments on the subdivided plots. The
contribution made towards the improvement
of the property would entitle her to a beneficial
interest therein equal to the contribution she
made.
7. The Plaintiff did not give evidence of any

financial contribution towards purchase


of property bought about 14 days into the
marriage.
Although acquired during the
coverture, it was acquired in the very nascent
days of the union and in the absence of proof
of monetary contribution by U, it would be
inequitable to hold otherwise than that the
property was acquired wholly by I.
8. There was evidence that Dr. W who was an
uncle to I gave him one of the plots as a gift.
U was unable to prove an allegation that she
contributed the whole of the purchase price
of ksh.350,000/=. There was no evidence as
to whether there had been any improvements
made to the plot. The property being a gift
solely to I did not form part of matrimonial
property.
9. After weighing all evidence, U made a nonmonetary contribution to the development of
some of the suit plots. Of significance was
that one of them housed the matrimonial home
in which she resided. Us contribution towards
the improvement of some of the plots deserved
acknowledgement.
To enable the Court make an informed decision,
separate valuations were to be conducted of each of
the plots. The costs of valuation to be shared equally
by the parties. The Court, after receiving the valuation
Reports was to give its final orders.

Members of a Parallel Social Security Scheme which Sufficiently Caters For Their
Social Security Interests Cannot Be Compelled to Contribute to the National Social
Security Fund (NSSF)

Republic v National Social Security Fund Board of Trustees & another ex parte Town Council
of Kikuyu [2014] eKLR
Judicial Review No 81 of 2013
High Court at Nairobi
G V Odunga, J.
January 20, 2014
Reported by Nelson K. Tunoi

Issues:
i) Whether an application for judicial review
orders where the applicant had filed a
supporting affidavit instead of a verifying
affidavit was incompetent and procedurally
irregular in the circumstances?

ii) Whether or not an affidavit used in support


of the application for leave could be used
to support the substantive judicial review
application.
iii)

Whether the Town Council of Kikuyu


(applicant) was obligated to contribute to NSSF

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76

Issue 24, January - March 2014


yet it was a member of another statutorily
recognized social security provider.
iv) Whether the Board of Trustees Local Authorities
Pension Trust Fund (2nd respondent) fell within
the schemes to which Pensions Act applied as
mandatorily required in the Second Schedule
to the Pensions Act (cap 189)?

Judicial review-certiorari, mandamus and prohibitionapplication seeking judicial review orders against the
respondent-whether an application for judicial review
orders where the applicant had filed a supporting
affidavit instead of a verifying affidavit was
incompetent and procedurally irregular-whether or not
an affidavit used in support of the application for leave
could be used to support the substantive judicial review
application-whether the applicant was obligated to
contribute to NSSF where it was a member of another
statutorily recognized social security provider-whether
the application had merit-Civil Procedure Rules (cap
21 Sub Leg), Order 53; National Social Security Funds
Act (cap 256), sections 2, 5, 7; Pensions Act (cap
189); National Social Security Fund (Registration)
Order, Rules 2 & 3; Local Authorities Pensions Trust
Rules, 2007, Rule 8
Brief Facts:
The Town Council of Kikuyu (applicant) sought judicial
review orders of prohibition stopping the National
Social Security Fund (1st respondent) from demanding
contributions from the applicant in respect of its
employees who were members and contributors of the
Local Authorities Pension Trust Fund (2nd respondent);
certiorari to quash the notices of demand issued by the
1st respondent; and order of mandamus to compel the
2nd respondent to seek a refund from the 1st respondent
of all the monies contributed to it since 1963 when the
Pension Act was enacted.
It was the applicants case that its employees were
registered members of Local Authorities Pension Trust
(LAPTRUST), a social security provider statutorily
registered and that they should be exempted from
remitting statutory contributions to the 1st respondent
on the sole basis that its employees remitted their
contributions to Local Authorities Provident Fund.
It was the 1st respondents case that it was not merely
a pension scheme but the first pillar social security
scheme that provided mandatory cover for all workers
except the expressly exempted employers and it did not
matter that an employee not exempt was contributing
to other schemes.
Held:

Cases

1. Although the filing of the supporting


affidavit instead of verifying affidavit was an
irregularity, this was the kind of irregularity that
was contemplated by article 159(2)(d) of the
Constitution. Therefore, in the circumstances
of this case, it could not be said that the ex
parte applicants case was not supported by
any factual averments.
2. Once leave to apply for judicial review was
granted under Order 53 rule 1 of the Civil
Procedure Rules, the applicant was expected
to make the application by way of notice of
motion within 21 days of the grant of leave.
Under Order 53 rule 4(1) and (2), once leave
to apply for judicial review was granted, the
applicant was expected to only rely on the
statement and the verifying affidavit filed in
support of the application for leave which
affidavit ought to contain all the evidence
intended to be relied upon by the applicant.
Therefore, unless leave of the Court was sought
and granted no further affidavit was permissible
in support of the substantive motion. [Republic
vs. Land Disputes Tribunal Court Central
Division and Another Ex Parte Nzioka [2006]
1 EA 321 - Nyamu, J.]
3. Under Order 53 rule 4(1) of the Civil Procedure
Rules, 2010, the applicant was only entitled
to the reliefs which were expressed in the
statement. However, whereas the applicant
was only entitled to be granted the reliefs
indicated in the statement, there was nothing
wrong in the applicant abandoning some of
the reliefs expressed in the statement in his
notice of motion.
4. In judicial review applications, the applicant
was always the Republic rather than the
person aggrieved by the decision sought to be
impugned. [Farmers Bus Service & Others vs.
Transport Licensing Appeal Tribunal [1959] EA
779].
5. Whereas the failure by a party to properly
intitule the proceedings could lead to denial
of costs in the event that the party in default
succeeded in the application or even being
penalised in costs, that blunder was not
incurably defective and ought not on its own be
the basis upon which an otherwise competent
application was to be dismissed. With respect

Cases
to the grounds relied upon, the requirement
that the applicant set out the grounds upon
which the application was to be based in the
statement was meant to put the other parties
on notice in order to enable them address the
issues which the applicant intended to rely on.
Where the grounds, though not clear enough
were sufficient to bring the matter within the
purview of judicial review and where there
was no prejudice occasioned by the failure
to plead the grounds with clarity, it would be
stretching the requirement too far to disallow
the application solely on that ground.
6. A legal opinion by the Attorney General was
like any opinion of an expert, and was entitled
to the highest possible regard. However, the
Court was not bound to accept and follow it
as it should form its own independent opinion
based on the entire evidence before it but like
other expert evidence, the said opinion must
not be rejected except on firm grounds. Such
opinion evidence, like all opinion evidence
would be considered by the Court and acted
upon if the Court was satisfied that it could be
but true on consideration of the surrounding
circumstances. [Juliet Karisa vs. Joseph Barawa
& Another Civil Appeal No. 108 of 1988;
Maina Kiama vs. Peter Kiama Mutahi Civil
Application No. Nai. 25 of 2001; John Cancio
De SA vs. V N Amin (1934) 7 EACA 13 at 15].
7. It was clear that if the applicants were
members of a scheme (statutory or nonstatutory) approved by the Minister in writing
for the purposes of providing comparable
benefits, being persons in the public service,
local government authority or any corporation
or body established for public purposes, the
members of the applicant who had subscribed
to the 2nd respondent would be exempt from
contributing to the Fund since section 7(3) of
the NSSF Act under which a Gazette Notice
was required only applied to situations where
the Minister intended to add to, delete from or
vary any class or description of exempt person
in the Second Schedule. Where the Second
Schedule had already provided that a certain
class of persons were exempted, then it was not
necessary for the already exempted persons be
Gazetted.
8. The 2nd respondent was one of the schemes

77

contemplated under Second Schedule to the


Pensions Act (cap 189) pursuant to the Legal
Notice No. 313 of 1963 hence its members,
unless they opted otherwise, were exempted
from being contributors to the 1st respondent.
9. It was not the intention of the Legislature
in enacting section 7 of the NSSF Act that
even those who had in place schemes which
sufficiently catered for their social security
interests would still be compelled to contribute
to the 1st respondent. The purpose of the NSSF
Act was to cater for the vulnerable members of
the society as required under article 21(3) of
the Constitution of Kenya, 2010.
10. To compel the very people for whom the
NSSF Act was meant to protect and cushion to
double contributions for substantially the same
purpose would defeat the purpose for which
the Act was enacted. What article 43 of the
Constitution, 2010 required the State to do was
to ensure that there were adequate pension
scheme or facilities available for its citizens and
the enactment of the Act was meant to achieve
this purpose. As long as this was achieved in
accordance with the law, then membership
to the 1st respondent was not mandatory in
all circumstances. There was in place a legal
instrument which exempts the applicant from
the provisions of the section 5 of the NSSF Act.
11. Apart from the legality of the Laptrust Scheme,
the principle of legitimate expectation
emanating from the long practice of not
demanding contributions from the applicants
members barred the 1st respondent from
compelling the applicants members to
contribute to the 1st applicants fund.
12. With respect to the order of mandamus sought,
as a general rule, the law required a demand
by the applicant for action and refusal as a
prerequisite to the granting of such an order.
Of course there would be exceptions to the
general rule but it was upon the applicant to
satisfy the court that in the circumstances of
the case the exception applied. Thus, without
evidence that a demand to that effect was
made and without any material before court
on the basis upon which it could invoke the
exception, the remedy was not available to the
applicant.
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Cases
Application allowed; order of certiorari issued
to quash the notices of demand issued by the 1st
respondent, and prohibition orders against the 1st
respondent from demanding payments from the

applicants in respect of the applicants employees


who are members and contributors of the 2nd
respondent pensions fund; no order as to costs.

When presumption of marriage entitled a party to take out letters of adminstration


Paul Rono Pymto & Another v Giles Tarpin Lyonnet
Succession Cause No 57 of 2010
High Court at Eldoret
F A Ochieng, J
January 17, 2014
Reported by Teddy Musiga

Issue
Whether presumption of marriage could entitle one to
take out letters of administration.
Law of Succession Probate and Administration
intestate succession - Objector proceedings objectors
claim to be made sole administrator of the estate of the
deceased scope of powers of administrators to estate
of deceased persons - Law of Succession Act, section
66
Held:
1. There was an irrefutable legal presumption
of marriage between the objector and the
deceased. The objector was therefore declared
the sole administrator of the estate of the
deceased.
2. When a person died intestate, the estate of the
deceased could not be effectively distributed
outside the court. Effective distribution meant
the exercise which could thereafter enable
each beneficiary to get their lawful title to the
portion which had been given to him or her.
3. The Chiefs and members of the respective
families had a role to play in trying to help in
resolving issues of distribution, but without
an order from the court, the Commissioner of
Lands or the Registrar of Lands could not issue
a title to any beneficiary.

BB Issue 24, January - March 2014 Feature Case

4. It was only when the court of law gave an


order, specifying the property which was to be
transferred to a particular person, that the said
person would thereafter acquire a title thereto
lawfully.
5. In matters of administration of the estates of
persons who died intestate, Chiefs and family
members had a very limited role to play.
6. Administrators had to appreciate that their
role was to gather together all the assets of
the deceased. They then also identified the
liabilities. They had no authority to dispose
off the assets without express orders from the
court. They did not even have authority to
distribute the assets.
7. When they had paid off all liabilities, the
administrators had to return to the court to seek
authority to distribute the remaining assets to
the beneficiaries.
8. Administrators were answerable to the court
and to the dependants for their actions.
Objection proceedings allowed. Each party was to
bear the costs of the objection proceedings.

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Issue 24, January - March 2014

High Court declines to suspend the switch-off date for digital migration pending an
appeal
Royal Media Services Ltd and 2 others v Attorney General and 8 Others
Constitutional Petition No.557 of 2013
High Court at Milimani
D.S Majanja J
December 23, 2013
Reported by Emma Kinya Mwobobia and Obura Paul Michael

Issues
I.

Whether the intended switch-off date for digital


migration ought to be suspended pending the
filing of an appeal to the Court of Appeal.

II.

Whether the intended appeal would be of any


value to the petitioners.

III.

Whether both the petitioners and consumers


would suffer any loss if the switch-off date was
not postponed.

Constitutional Law - jurisdiction- High Courts


jurisdiction to grant conservatory orders pending
appeal- where the petitioners claim it was necessary
to protect fundamental rights and freedoms by
suspending the digital migration date- Constitution of
Kenya 2010, article 23
Constitutional Law - fundamental rights- consumer
rights- where the intended digital migration would
put consumers in a television blackout- whether the
migration violates consumer rights
Held
1. The petitioners had an undoubted right of
appeal and indeed the Court of Appeal could
take a different view of the issue from that
which the High Court had taken. But that fact
alone could not entitle the petitioners to a
conservatory orders pending appeal. The Court
was obliged to have regard to all the facts and

circumstances of the case including whether


in fact the intended appeal would be rendered
nugatory.
2. In the event the implementation of the migration
proceeded, and their appeal succeeded, they
would be entitled to broadcast in analogue
format while other broadcasters would
broadcast on digital. Therefore the appeal
would not be rendered nugatory.
3. From the available evidence, a loss to the
petitioners would be in terms of advertising
revenue but this would not be lost as they
would be able to broadcast over the digital
platform if they so wished. As for the consumers,
evidence reflected that shifting the date would
give consumer an opportunity to purchase Set
Top Boxes.
4. No substantial or other loss would be
occasioned to the petitioners should digital
migration have proceeded as scheduled. If any
loss was incurred, it would be because the
petitioners refused, on their own violation to
participate in the migration.
5. The hardship to the petitioners and their
businesses was far outweighed by the
respondents Digital Migration Policy if it was
not implemented.

Application dismissed.

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The grant of citizenship to foreign nationals married to Kenyan citizens.

Republic v Cabinet Secretary for the Ministry of Interior and Coordination of National
Government & 2 others Ex-parte Patricia Olga Howson
Misc Civil Application No 324 of 2013
High Court of Kenya at Nairobi
G V Odunga, J
December 20, 2013
Reported by Beryl A Ikamari

Brief facts
The applicant made an application for registration as
a citizen of Kenya as she was the spouse to a Kenyan
citizen and her application was submitted to the
Ministry of State for Immigration on April 22, 2013.
She complained that there had been no response
or communication received from the relevant
authorities except that she had been issued with two
acknowledgement slips. She was not aware of the
status of her application and her inquiries had gone
unanswered. Her complaint was that there had been a
refusal and neglect to grant citizenship which she was
entitled to under the law.
In reply, on behalf of the respondents, it was explained
that a confidential security report, which was to be
prepared by the National Intelligence Service for
persons seeking Kenyan citizenship, was yet to be
received in the case of the applicant. For that reason,
there had been a delay in processing the application
for citizenship.
Issues
I.

II.

Whether the remedy of mandamus could


be issued to compel the grant of Kenyan
citizenship to a foreign national married to a
citizen of Kenya.
Whether the grant of citizenship was an
automatic right or entitlement enjoyed by a
person who had a subsisting marriage with a
Kenyan citizen.

Constitutional Law-citizenship-application for the


grant of citizenship-the grant of citizenship to persons
in subsisting marriages with Kenyan citizens-the
availability of the order of mandamus to remedy a
delay of six months in processing an application for
citizenship-Constitution of Kenya 2010; articles 15,
18, 47 & 259(8), Kenya Citizenship and Immigration
Act, 2011, No 12 of 2011; section 11, and National
Intelligence Service Act, No 28 of 2012; section 5(1)
(g)(ii).

Cases

Judicial review-mandamus-whether mandamus would


be available to compel the grant of citizenship to a
foreign national married to a Kenyan citizen.
Held
1. In terms of article 47 of the Constitution of Kenya
2010, in her application for citizenship, the exparte applicant was entitled to administrative
action which was expeditious, efficient, lawful,
reasonable and procedurally fair.
2. A delay of six months in processing the
application for citizenship had prompted
the applicant to apply for the judicial review
orders of mandamus. The apparent delay of six
months was inordinate.
3. Article 15 of the Constitution of Kenya 2010
provided that a person who had been married
to a Kenyan citizen for at least seven years was
entitled, upon making an application, to be
registered as a citizen. However, there were
conditions attached to the grant of citizenship
in such situations of marriage, particularly
under section 11 of the Kenya Citizenship and
Immigration Act, No 12 of 2011.
4. The import of section 11 of the Kenya
Citizenship and Immigration Act, 2011, No 12
of 2011 was that the grant of citizenship to a
person married in Kenya was not absolute and
it would be subject to certain conditions to the
effect that citizenship would not be granted
unless;
a) the marriage was solemnized under a system of
law recognized in Kenya, whether solemnized
in Kenya or outside Kenya;
b) the applicant had not been declared a
prohibited immigrant under the Act or any
other law;
c) the applicant had not been convicted of an

Cases
offence and sentenced to imprisonment for a
term of three years or longer;
d) the marriage was not entered into for the
purpose of acquiring a status or privilege in
relation to immigration or citizenship; and
e) the marriage was subsisting at the time of the
application.
5. Furthermore, the provision of confidential
security reports about persons who had applied
for citizenship was among the functions of the
National Intelligence Service recognized under
section 5(1)(g)(ii) of the National Intelligence
Service Act, No 28 of 2012.

81

6. However, the provision of confidential


security reports was also subject to the right
to fair administrative action and delaying the
release of such a report for an unnecessary and
unjustified period of time would amount to an
abuse of power.
7. The import of article 259(8) of the Constitution
of Kenya 2010 was that if a particular time was
not prescribed for purposes of the performance
of an act required by the Constitution
such performance would be done without
unreasonable delay and as often as occasion
arises.
Judicial review order of mandamus issued.

Jurisdiction of the Public Procurement Administrative Review Board does not extend
to enforcement of intellectual property rights.
R v Public Procurement Administrative Review Board & 2 others
High Court at Nairobi
Misc.Appl.No. 204 of 2013
M Ngugi.J
December 19,2013
Reported by Andrew Halonyere & Cynthia Liavule

Brief facts
The applicants case was that the decision of the
1st Interested Party, Kenyatta University in which
it awarded the tender for supply of sanitary bins,
should be reviewed on the grounds that it had acted
contrary to the provisions of section 27 of the Public
Procurement and Disposal Act which provides for
responsibility to comply with the Act. They argued that
the 2nd Interested Party, Pinpoint Hugience Services,
had not met the mandatory requirements for award of
the tender which included the technical and general
requirements; that the sample bin used by the 2nd
Interested Party was a patented product owned solely
by the applicant; that the 2nd Interested Party did not
have a manufacturers authorization to use the bin and
its use by the 2nd Interested Party was in violation of
the applicants intellectual property rights.

Issue
1. Whether the High Court had jurisdiction to
review a decision of the Public Procurement
Administrative Review Board where there was
allegation of non-compliance of technical and
general requirements including a violation
of intellectual property rights in awarding a
tender.
Judicial Review-mandamus and certiorari-jurisdiction
of the Public Procurement Administrative Review
Board-whether jurisdiction of the tribunal extended
to enforcement of intellectual property rights- Public
Procurement and Disposal Act section 64

The applicant contended that the respondent acted


without or in excess of jurisdiction by failing to insist
on compliance with its own regulations, specifically
regulation 47 of the Public Procurement Regulations. It
also impugned the respondents decision for its alleged
failure to enforce the applicants intellectual property
rights.
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82

Public Procurement and Disposal Act, Cap 412A


Responsibility for complying with Act
(1) A public entity shall ensure that this Act, the regulations and any directions of the Authority are complied
with respect to each of its procurements.
(2) The accounting officer of a public entity shall be primarily responsible for ensuring that the public entity
fulfills its obligations under subsection (1).
(3) Each employee of a public entity and each member of a board or committee of the public entity shall
ensure, within the areas of responsibility of the employee or member, that this Act, the regulations and any
directions of the Authority are complied with.
(4) Contractors, suppliers and consultants shall comply with all the provisions of this Act and the regulations.
(5) The accounting officer may use the procurement unit and tender committee of another procuring entity
which shall carry out the procurement in accordance with this Act and the regulations.
(6) The Authority shall have power to transfer the procuring responsibility of a procuring entity to another
procuring entity or procuring agent in the event of delay or in such other instances as may be prescribed.
Section 64
Responsiveness of tenders
(1) A tender is responsive if it conforms to all the
mandatory requirements in the tender documents.
(2) The following do not affect whether a tender is
responsive
(a) minor deviations that do not materially depart from
the requirements set out in the tender documents; or
(b) errors or oversights that can be corrected without
affecting the substance of the tender.
(3) A deviation described in subsection (2)(a) shall
(a) be quantified to the extent possible; and
(b) be taken into account in the evaluation and
comparison of tenders.
Held
1. It was settled law that a court exercising judicial
review jurisdiction was concerned with the
procedural propriety of a decision, rather than
with its merits. The purpose of judicial review
remedies was not to substitute the opinion of
the court for that of the administrative body in
which is vested statutory authority to determine
the matter in question.
2.

On the allegation of the failure by the


respondent to protect the applicants patent
rights, the jurisdiction of the respondent with
regard to a party dissatisfied with the decision
of a procuring entity was clearly spelt out in
the provisions of the Public Procurement
and Disposal Act under Section 93(1). Any
candidate who claimed to have suffered or to
risk suffering, loss or damage due to the breach
of a duty imposed on a procuring entity by the
Act or the regulations, could seek administrative
review as in such manner as was prescribed.

BB Issue 24, January - March 2014 Feature Case

3. It was not part of the respondents functions


to inquire whether there had been an
infringement of the applicants patent or not.
Such determination lay within the jurisdiction
of the Industrial Property Tribunal established
under the Industrial Property Act. Had the
respondent involved itself in an inquiry into
whether or not there has been an infringement
of the applicants patent, it would clearly
be engaging in a matter that was outside its
jurisdiction.
4. On the respondents failure to insist on
compliance with the provisions of Regulation
47(1) of the Public Procurement and Disposal
Regulations, which pertained to the conduct
of a preliminary evaluation by the evaluation
committee of a procuring entity, and regulation
47(1)(f) which required that it determined
whether all the required documents and
information had been provided, the respondent
found that the provisions of the section 64 and
the regulations applied at the preliminary stage
of the evaluation of a tender, and that the 1st
Interested Party had found that all the tenderers
were responsive at this preliminary stage.
5.

It was clear that the respondent properly


considered all the matters it was required to
consider, and acted within its jurisdiction in
coming to the decision that the 1st Interested
Party had properly awarded a tender to the
2nd Interested Party. There was nothing in the
pleadings that demonstrated any procedural
impropriety or unreasonableness that would
justify interference by Court.

83

Issue 24, January - March 2014

Court allows Transfer of Health services to County Governments.

Republic v The Transition Authority & Another exparte Kenya Medical Practitioners,
Pharmacists and Dentists Union (KMPDU) & 2 Others
High Court of Kenya at Nairobi
JR No. 317 of 2013
W Korir, M Ngugi, G V Odunga
December 18, 2013
Reported by Teddy Musiga

Issues
I.

Whether disputes arising out of the functions of


the Transition Authority could attract effective
remedies under the Intergovernmental
Relations Act, 2012.

II.

Whether the High court could grant orders


where the respondent was functus officio?

III.

Whether public participation of all key


stakeholders was conducted before the alleged
process of transition to county governments.

Constitutional Law public participation what


amounts to adequate public participation where
the ex parte applicants alleged that the respondents
failed to engage all key stakeholders before transferring
healthcare services to the County governments article
10(1) Constitution of Kenya, 2010
Constitutional Law devolution devolution of
health care services to county governments - Transfer
of functions from National government to County
governments Role of the Transition Authority in the
transfer of functions to the county governments Part
1, Fourth Schedule, Constitution of Kenya, 2010
Constitutional Law devolution resolution of
disputes concerning devolution nature of disputes
under devolved system of governance jurisdiction
of the High court in the resolution of disputes Whether disputes arising out of the functions of the
Transition Authority could attract effective remedies
under the Intergovernmental Relations Act, 2012
Transition to Devolved Government Act, section 34,
Intergovernmental Relations Act, section 30(1)
Constitutional Law devolution resolution of
disputes concerning devolution nature of disputes
under devolved system of governance jurisdiction
of the High court in the resolution of disputes Whether disputes arising out of the functions of the
Transition Authority could attract effective remedies
under the Intergovernmental Relations Act, 2012

Transition to Devolved Government Act, section 34,


Intergovernmental Relations Act, section 30(1)
Judicial Review Certiorari & prohibition petition for
judicial review orders to quash the Legal Notice No.
137 182 (Kenya Gazette supplement No. 16) issued
by the Transition Authority in relation to the transfer of
Health services.
Held:
1. Article 165 of the Constitution of Kenya, 2010
provided that the High Courts jurisdiction
could be limited and/ or restricted by an Act
of Parliament. On the other hand, section 34
of the Transition to Devolved Government
Act, 2012 provided that disputes relating to
the performance by the Transition Authority
of its functions were to be resolved using
the procedures set out in the law relating to
intergovernmental relations. Whereas the
existence of the alternative remedy and
procedure could not necessarily oust the
jurisdiction of the court, the court was perfectly
entitled to take into consideration the existence
of such a remedy and its efficacy in deciding
whether or not to entertain the dispute and
could decline to do so only on the ground of
want of jurisdiction but also in order to avoid
the abuse of its process where the process
was being invoked to achieve some collateral
purpose not recognized by law as genuine.
2. Section 30(1) of the Intergovernmental
Relations Act, 2012 provided that disputes that
could be resolved under that Act were disputes
arising (a) between the national government
and a county government; or (b) amongst
county governments. Clearly, that section did
not expressly apply to disputes by ordinary
citizens arising from the exercise of powers
by and obligations placed upon the Authority.
To interpret that said provision to include
disputes by individuals who were aggrieved
by actions or omissions of the Authority

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84

Issue 24, January - March 2014


amounted to overstretching the said provisions
too far. Therefore the ex parte applicants
did not have an effective remedy under the
Intergovernmental Relations Act, 2012 since
they were neither the National Government
nor the County Government.
3. That notwithstanding, the unlawful interference
with a citizens rights gave rise to a right to
claim redress and if the ex parte applicants had
a right, they also had of necessity the means to
vindicate it and a remedy if they were injured
in the enjoyment or exercise of it. Therefore
the court had jurisdiction to entertain the
applicants claim.
4. The mere fact that the respondent (The Transition
Authority) was alleged to have become functus
officio did not bar the court from reviewing
its decision since the decision it (Transition
Authority) made was still enforceable and
could attract orders of certiorari to quash or
nullify that decision if it was bad.
5. So long as orders by way of Judicial review
remained the only legally practical remedies
for the control of administrative decisions,
and in view, of the changing concepts of good
governance which demanded transparency
by anybody of persons having legal authority
to determine questions affecting the rights of
subjects under the obligation for such a body
to act judicially, the limits of judicial review
orders would continue extending so as to meet
the changing conditions and demands affecting
administrative decisions. (David Mugo v
Republic, Civil Appeal No/ 265 of 1997)
6. Once public participation was attained and
the decision making authority after considering
the views expressed made a decision, the issue
whether or not such decision ought to have
been made, could no longer be a subject of
judicial review since the decision was no
longer questionable on the process of arriving
thereat but could only be questioned on the
merits and that was not within the realms of
judicial review.
7. Whereas the adequacy and extent of the
participation of the public in the decision
making process could be challenged, the

Cases

applicants failed to demonstrate that the


consultative process was inadequate.
8. Part 1 No. 28 of the Fourth Schedule to the
Constitution of Kenya, 2010 was clear that
Health Policy remained a function of the
national government. The inadequacies of
provision of health services was a matter of
national concern and it was the obligation of the
national government to ensure every persons
right to highest attainable standard of health as
stipulated under article 43 of the Constitution
was attained. Therefore, there was no way how
the delay in devolving health services could
change the situation with respect to poor health
services in the short term since the shortage
of personnel and poor infrastructure existed
whether the health services were devolved or
not.
9. The fact that health services were not devolved
did not discharge the national government from
its obligations to ensure that its constitutional
obligations were fulfilled. Under article 1(3)(b)
of the Constitution of Kenya, 2010, there was
only one state organ known as the executive with
structures at national level and in the county
governments. Accordingly, it could not mean
that the devolution of health services ipso facto
had to lead to loss of jobs or disadvantageous
terms of employment, salaries, remuneration,
pensions and gratuities which terms were to be
determined by the Salaries and Remuneration
Commission.
10. The decision whether or not to grant judicial
review orders had to be exercised judicially.
Bare statements of generalized and vague
nature were therefore not sufficient to persuade
the court to grant judicial review remedies. In
the instant case, the applicants failed to furnish
the courts with sufficient material on the basis
upon which the court would find that the
criteria under section 24 of the Transition to
Devolved Government Act was not satisfied.

Application dismissed. No orders as to costs since the


matters raised were of general public interest.

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85

Freedom of religion of students in public schools can be limited in the interest of the
right to education
Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others
Petition No. 431 of 2012
High Court at Nairobi
I Lenaola, J
December 18, 2013
Reported by Lynette A Jakakimba

Brief facts
The Petition concerned the alleged violation of the
right to freedom of religion as guaranteed under article
32 of the Constitution of Kenya, 2010 of students in
public schools professing the Seventh Day Adventist
(SDA) faith across the country.
The petitioner claimed that most of the public schools
in the country had curtailed the SDA students right to
worship and fellowship during the Sabbath hours, thus
violating their right to practice their faith in accordance
with the fundamental tenets of their religion. In most of
the public schools, the petitioner claimed that the SDA
students were made to attend Saturday classes, sit for
examinations on Saturday and were not exempted from
cleaning on Saturdays and that those who did not abide
by these regulations, were not offered compensatory
classes or make up examinations. These students were
instead suspended from school or given an option of
leaving the school or make an undertaking that they
would abide by the Schools program.
The Minister for Education (the respondent) however
submitted that the freedom of religion was one of
the fundamental rights and freedoms that were not
absolute and could be qualified by a reasonable
and justifiable criterion. Moreover there was need to
balance between religious freedom and the right to
education. The Minister submitted that the Adventist
students had the right to education and if education
was not to be offered on any day on account of their
religious beliefs that would be tantamount to denying
them the right to education.
Issues
I.

II.

Whether the failure to accommodate the


Seventh Day Adventist students religious
manifestations by means of exemption from
Saturday classes, examinations and cleaning,
could be accepted as reasonable and justifiable.

III.

Whether the right to freedom of religion was


absolute or it could be qualified.

IV.

Whether the right to freedom of religion of


students could be limited in the interest of the
right to education.

Constitution Law-fundamental rights and freedoms


right to freedom of religion-freedom of religion in
schools- where Seventh Day Adventist students in
public schools wanted to observe Sabbath Hours on
Saturdays- whether a general prohibition of the right to
observe Sabbath hours in public schools by students
who professed the Adventist faith was in violation of
their right to freedom of religion- Constitution of Kenya,
2010 article 32,
Constitutional Law-fundamental rights and freedomsrights of the child-rights of the child to education and
religion-whether the right to freedom of religion could
be limited by the right to education- Constitution of
Kenya, 2010 article 27, 32 and 43(d)- Convention on
the Rights of the Child article 12, 14 and 29
Statute-interpretation of statutes-interpretation of the
bill of rights-limitation of rights- whether the right
to freedom of religion was absolute or it could be
qualified-article 19, 20, 24 and 25
Held

Whether a general prohibition of the right to


observe Sabbath hours in public schools by
students who professed the Adventist faith was
in violation of their right to freedom of religion
as guaranteed by article 32 of the Constitution.

1. It was essential that the Constitution was not


interpreted in a narrow and legalistic way but
generously and purposively, so as to give effect
to its spirit and this was particularly true of those
provisions that were concerned with the protection
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86

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of constitutional rights. Further the Constitution
had to also be interpreted as an integrated whole
so that no single provision of the Constitution was
segregated from others and considered alone, but
that all provisions bearing upon a particular subject
were brought into view and to be interpreted so as
to achieve the greater purpose of the Constitution.
(Smith Dakoila v North Carolina 192 U.S. [1940]
LED 448. John Harun Mwau & 3 Others v Attorney
General and 2 Others, Petition No. 65 of 2011)

2. Many constitutional systems founded on Bill


of Rights proclaimed the preeminence of
certain constitutional rights. There were also
clear indications in international human rights
instruments on which human rights and freedoms
were founded that preference had been accorded
to some rights.
3. The Siracusa Principles on the Limitation and
Derogation of Provisions in the International
Covenant on Civil and Political Rights (ICCPR)
had proposed that in resolving conflicts between
different rights and freedoms protected by the
ICCPR, weight was to be afforded to rights not
subjected to limitations in the Covenant. The
Kenyan Constitution appeared to adopt the same
resolution as seen in article 25 of the Constitution
that provided that certain fundamental rights and
freedoms were not to be limited, therefore to the
extent that these rights were non-derogable it
could then be argued that they had preeminence
over other rights.
4. The Constitution however also provided for general
limitations on fundamental rights and freedoms
at article 24, so long as those limitations were
reasonable and justifiable. But even in limitation
it set the factors the Court or Tribunal had to take
into account while limiting any particular right or
freedom.
5. In resolving the problem of conflicting rights, the
Court had to assess the harm that would result from
limiting the particular right or freedom in relation
to the harm that could be caused to individuals or
the community if the petitioners freedom or right
were to be allowed to take its course. The Court in
applying the limitation clause had to consider the
nature and importance of the right and the extent to
which it was limited, and whether such limitation
was justified in relation to the purpose, importance
and effect of the provision which resulted in the
BB Issue 24, January - March 2014 Feature Case

limitation.
6. The Constitution at article 8 provided that
there would be no state religion. The import of
this provision was that no religion would have
prevalence over any other and no particular
one was to be seen as the one each citizen was
obligated to follow including on the observance of
a day of worship. (Nyakamba Gekara v Attorney
General and 2 Others, Petition No. 82 of 2012.)
7. Freedom of religion included two closely related
but distinguishable entitlements: freedom to adopt
a religion or belief of ones choice and freedom
to manifest that religion or belief in worship,
observance, practice and teaching; To hold a
religious belief related to the inner act of believing
and to manifest related to the external acts of
giving expression of ones faith. The entitlement to
hold belief was absolute in nature and could not
be subjected to limitations or suspensions.
8. The Sabbath according to Seventh Day Adventists
began at sunset on Friday evening and ended at
sunset on Saturday evening. They professed that
those Sabbath hours belonged to God and were to
be used for Him alone. Those were the beliefs of
the Adventists as regards the Sabbath and the Court
could not question the sincerity of the petitioners
beliefs as religion was a matter of faith. It was their
constitutional right to hold such belief and freedom
to believe was an absolute right. (R (Williamson) vs
Secretary of State for Education and Skills [2005]2
AC 246)
9. The holding and manifestation of beliefs could
be intrinsically
bound up with each other.
Manifestation could occur through worship,
teaching and proselytism observation by
wearing symbols or special clothes, or by
eating or avoiding certain foods. The right
to manifest a belief was a qualified right and
was subject to limitations. Interferences with
the manifestation of belief could consist, for
example, of uniform policies at work or school, or
requirement to work at certain times or carry
out certain tasks. Limitations on an individuals
freedom to manifest his or her religion or belief
were only permissible if prescribed by law
and necessary in a democratic society in
the interests of public safety, the protection
of public order, health or morals, or the protection
of the rights and freedoms of others. (Nyakamba

87

Issue 24, January - March 2014


Gekara v Attorney General and 2 Others, Petition
No. 82 of 2012)
10. The rights and freedoms of the child were subject
to three sets of limitations; firstly those applying
generally to freedom of religion and belief and
applying in the same manner to freedom of the
child to manifest their religion as regulated by
the Convention on the Rights of the Child (CRC).
The limitations imposed on the right of the child
to religion were dictated by public safety, order,
health or morals and the fundamental rights and
freedoms of others. Secondly, limitations based on
family values and parental interests and lastly those
limitations inherent in general legal constraints that
conditioned implementation of the best interests of
the child.
11. The Interested Partys school programme was
adopted having taken into account the historical
factors of the school, the academic discipline and
performance and the diversity of the students who
came from diverse religious backgrounds. If the
programme were to be changed to accommodate
Adventist students, the school had to also
accommodate the religious needs of other students.
At the end, if that became a policy or order of the
Court, it was not certain if the Interested Party and
other public schools would have the exact formulae
for doing so without causing total chaos in their
programmes. Further the standards of education
would be negatively impacted since they would
be compelled to change study times, reschedule
classes, tests and examinations in respect of various
religious groups.
12. The right to education provided under article 34(1)
(f) and article 53(1)(b) of the Constitution entailed
being offered the best education available. It was in
the best interest of the child to gain the education
offered to the best of their ability, and to gain that
education, they had to attend without fail all the
classes offered by the Schools and undertake such
examination as the Schools management would
decide from time to time.
13. It had to be remembered that the named schools,
including the Interested Party, had been in
existence for many decades and students of all
types of religions had co-existed peacefully by
accommodating each other. If that practice had
to change, the petitioner had to demonstrate that

by allowing its students the right to manifest their


religion in accordance with their terms, it would
not be interfering with the other students rights
to education, religion and equality and protection
from discrimination.
14. Applying the proportionality test as determined
in R v Jakes (1986) 26 DLR 4th Edition at 227 in
the instant case, the freedom to manifest religious
beliefs of the Adventist students could not be
allowed in the terms they were seeking. It was not
disputed however that every student had the right
to hold whatever religious beliefs their conscience
dictated. However, manifestations of such beliefs
ought not to injure the rights of the schools to
provide education. Moreover if the manifestations
of those beliefs were parallel to the rights of the
school to impart knowledge on its students, the
right of the students to manifest those beliefs had to
be limited and that limitation would be justifiable.
Orders
i. Prayer (a) of the Petition dismissed.
ii. Prayer (b) granted in the following terms:
An order requiring the Respondent to immediately
either;
(i) Promulgate appropriate regulations under his powers
under Section 19 of the Education Act prescribing
the obligations of public schools to respect the rights
of students under Article 32 of the Constitution and
section 26 of the Education Act, describing the manner
in which the obligations are to be implemented
and secured as well setting up an administrative
enforcement and complaints mechanism; or
(ii) Issue appropriate directions under his powers
under section 27(1) of Education Act prescribing
the obligations of public schools to respect the rights
of students under Article 32 of the Constitution and
Section 26 of the Education Act, describing the manner
in which the obligations are to be implemented
and secured as well as setting up an administrative
enforcement and complaints mechanism.
iii. Each party was to bear its own costs.

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88

Issue 24, January - March 2014

High Court Stays Presidents Decision to form a Tribunal to investigate the issue of
removal of 6 Judicial Service Commissioners
Judicial Service Commission v Speaker of the National Assembly & another
Petition No 518 Of 2013
High Court at Nairobi
Constitutional & Human Rights Division
G V Odunga J
December 3, 2013
Reported By Njeri Githanga

Brief Facts
On October30, 2013 the Court issued orders restraining
the Justice and Legal Affairs Committee of the National
Assembly (hereinafter referred to as the Committee)
from debating a Petition for the removal of six
commissioners of the Judicial Service Commission (the
Petitioner) pending inter partes hearing of the matter.
However the Committee proceeded to deliberate on
the Petition and forwarded its report to the House.
On November6, 2013, the Court issued further orders
restraining Parliament from deliberating on the report
by the Committee.
In violation of the Court orders, the Speaker permitted
the debate and the House via a resolution adopted
the Committees report and forwarded a Petition to
the President to constitute a Tribunal to investigate
the issue of the removal of the subject Commissioners
of the Petitioner. On November29,2013, a special
Gazette Notice was issued in which the said Tribunal
was set up to be chaired by Hon. (Rtd) Justice Aaron
Gitonga Ringera and composed of Jennipher Shamalla,
Ambrose Weda and Mutua Kilaka as members.
The Petitioner moved the court seeking orders staying
the said Gazette Notice, grant of leave to join the
Chairman and members of the Tribunal to the petition
and orders of injunction jointly and severally against
them from being sworn in and commencing any work
in the way of investigating the six Commissioners of
the Petitioner. The Petitioner also sought further orders
clarifying that in light of the orders of the Court the said
six Commissioners to remain in the office thus staying
their suspension.
Issues
I. Whether in light of the earlier orders
restraining the Parliamentary Committee
from tabling its report before the National
Assembly, it was proper to constitute a
Tribunal pursuant to a resolution passed in
blatant breach of an existing court order.

Cases

II.

Whether the mandate of the appointed


members of the Tribunal tasked with
investigating the issue of the removal of the
subject Commissioners of the petitioner
would be in furtherance of disobedience of
a Court order.

III.

Whether conservatory orders could be


issued under the circumstances

IV.

Nature of conservatory orders and the


factors to be considered by the court in
determining whether or not to grant the
orders sought.

V.

Effect of actions undertaken in breach of


orders of the Court.

Constitution Law- Judicial power - court orders - where


judicial power in Kenya was vested in the Courts and
other tribunals established under the Constitutionwhere the President constituted a Tribunal pursuant
to a resolution passed in breach of an existing court
order application seeking stay of the Gazette Notice
constituting the Tribunal - consequences of failure to
obey Court orders whether any action taken in breach
of a court order was a nullity and of no effect
Constitutional Law - national values and principles
- rule of law - failure by the Speaker of the National
Assembly to comply with High Court orders - where
the President constituted a Tribunal pursuant to a
resolution passed in breach of an existing court order
- article 10 of the Constitution binding all State organs,
State officers, public officers and all persons whenever
any of them (a) applies or interprets the Constitution;
(b) enacts, applies or interprets any law; or (c) makes
or implements public policy decisions - whether an
attempt to ignore a court order could amount to an
attempt to usurp the powers of the people which the
people reserved unto themselves under article 255 whether it was proper to constitute a Tribunal pursuant

Cases
to a resolution passed in breach of an existing court
order - Constitution of Kenya 2010; articles 10(2) and
255.
Constitutional Law - conservatory orders - nature
of conservatory orders - factors to be considered by
the court in determining whether or not to grant the
orders - principle of proportionality - whether in the
circumstances of the case continuing the operations of
the petitioner would be the lower risk as opposed to
bringing the petitioners operations to a halt.
Held
1. Whether in light of the earlier orders restraining
the Parliamentary Committee from tabling its
report before the National Assembly, it was proper
to constitute a Tribunal pursuant to a resolution
passed in blatant breach of an existing court order
was a matter which was still at large and would be
dealt with it at a later stage.
2. The intended 3rd to 6th respondents were appointed
members of theTribunal tasked with investigating the
issue of the removal of the subject Commissioners
of the petitioner. Whether their mandate would be
in furtherance of disobedience of a Court order
would await the determination of the issues raised
in the petition. However, it was clear that the
issues could not be investigated without the said
persons being given an opportunity to be heard in
the petition as to do so would amount to a breach
of the rules on natural justice.
3. Since the Kenyan nation had chosen the path of
democracy rather than dictatorship, the Courts had
to stick to the rule of law even if the public may in
any particular case want a contrary thing and even if
those who were mighty and powerful might ignore
the Courts decisions. The courts had to continue
to give justice to all and sundry irrespective of their
status or former status. (Christopher Ndarathi H
Murungaru vs. Kenya Anti-Corruption Commission
& another Civil Application No. Nai. 43 of 2006
[2006] 1 KLR 77).
4. Under article 1(1) of the Constitution of Kenya,
2010 all sovereign power belongs to the people of
Kenya and shall be exercised only in accordance
with the Constitution and since the courts were the
temples of justice and the last frontier of the rule of
law, Court decisions had to be respected and the
dignity of the Court upheld at all times.
5. The Judiciary as a bastion of the rights of the people

89

was the safeguard and watchdog of the rights,


which were fundamental to human existence,
security and dignity. The old school of thought
articulated by Sir Charles Bacon, that Judges must
be like lions, but yet lions who sit at the feet of the
throne had no place. (Charles Lukeyen Nabori &
9 others vs. The Hon. Attorney General & 3 others
Nairobi HCCP No. 466 of 2006 [2007] 2 KLR 331).
6. The people of Kenya in enacting the Constitution
recognized in the preamble thereto that they aspired
for a government based on the essential values
of human rights, equality, freedom, democracy,
social justice and the rule of law. Article 4(1) of
the Constitution of Kenya, 2010, declared the
national values and principles of governance as
the foundation upon which Kenya as a multi-party
democratic state is grounded.
7. In article 10 of the Constitution, national values
and principles of governance bind all State organs,
State officers, public officers and all persons
whenever any of them(a) applies or interprets
the Constitution; (b) enacts, applies or interprets
any law; or (c) makes or implements public policy
decisions. One of the values and principles of
governance under that Article is the rule of law
and under article 255 of the Constitution the
people of Kenya took those values and principles
of governance so seriously that they provided that
any amendment thereto must be subjected to a
referendum. It was therefore clear that an attempt
to ignore the same could amount to attempt to
usurp the powers of the people which the people
reserved unto themselves under article 255.
8. Judicial power in Kenya was vested in the
Courts and other tribunals established under the
Constitution and it was a fundamental tenet of the
rule of law that court orders had to be obeyed. It
was not open to any person or persons to choose
whether or not to comply with or to ignore such
orders as directed to him or them by a Court of
law. The consequences of failure to obey Court
orders were that any action taken in breach of the
court order was a nullity and of no effect. Central
Bank of Kenya & Another vs. Ratilal Automobiles
Limited & Others Civil Application No. Nai. 247 of
2006 and Commercial Bank of Africa Ltd. vs. Isaac
Kamau Ndirangu Civil Appeal No. 157 of 1995
[1990-1994] EA 69.
9. Where an act is a nullity it is trite that it is void
and if an act is void, then it is in law a nullity as
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it is not only bad but incurably bad and there is
no need for an order of the Court to set it aside,
though sometimes it would be convenient to have
the Court declare it to be so. Where the Court
found that to be so, the actions taken in pursuance
of actions taken in breach of a Court order had
to therefore break-down once the superstructure
upon which it was based was removed since one
cannot put something on nothing and expect it to
stay there as it would collapse. Macfoy vs. United
Africa Co. Ltd [1961] 2 ALL ER 1169 at 1172 &
Omega Enterprises (Kenya) Ltd. vs. KTDC & 2
Others Civil Appeal No. 59 of 1993.

10. It did not matter that the person alleged to have


acted in contempt of court was unaware of the
existence of the order. Whereas he may not be
committed for contempt of a court order which
he was not aware of, his unawareness does not
sanitise the illegal action which would still be null
and void.
11. If it turned out that the action by the President of
appointing the Tribunal was undertaken in breach
of the orders of the Court, that action would be
null and void and of no effect. It would be as if it
was never done in the first place and never existed.
12. To permit the Tribunal to commence its duties
under such circumstances before all the parties
were heard in the application would not only
amount to abetting and aiding the disobedience of
the Court order but could end up being a waste of
public funds.
13. It was in the interest of the applicants, the Tribunal
and the public that the said Tribunal be halted so
as to remove the uncertainty in which the Tribunal
was likely to find itself as to whether it could safely
proceed with action while proceedings challenging
the very basis upon which it had been constituted
was still pending.
14. Both remedies of an interim injunction and an
interim declaration order as laid out in Attorney
General V- Sumair Bansraj (1985) 38 WIR 286 were
excluded by the State Liability and Proceedings
Act, as applied by section 14 (2) and (3) of the
Constitutionand also by high judicial authority.
The only judicial remedy was the Conservatory
Order in the strictest sense of that term. The order
would direct both parties to undertake that no
action of any kind to enforce their respective right
would be taken until the substantive originating
BB Issue 24, January - March 2014 Feature Case

motion had been determined; and the status quo of


the subject matter would remain intact. The order
would not then be in the nature of an injunction
but on the other hand it would be well within the
competence and jurisdiction of the High court to
give such directions as it may consider appropriate
for the purpose of securing the enforcement of the
provisions of the Constitution.
15. The critical factor in such cases was the exercise
of the discretion of the judge who must hold the
scales of justice evenly not only between man and
man but also between man and state.Attorney
General V- Sumair Bansraj (1985) 38 WIR 286
16. Where a legal wrong or a legal injury is caused to
a person or to a determinate class of persons by
reason of violation of any Constitutional or legal
right orany burden is imposed in the contravention
of any Constitutional or legal provision or without
the authority of the law or any such legal wrong or
injury is threatened, the High Court had powers to
grant appropriate reliefs so that the aggrieved party
was not rendered, helpless or hapless in the eyes of
the wrong visited or about to be visited upon him
or her. That was meant to give an interim protection
in order not to expose others to preventable perils
or risks by inaction or omission. Centre for Human
Rights and Democracy & Others vs. The Judges
and Magistrates Vetting Board & Others Eldoret
High Court Constitutional Petition No. 11 of 2012.
17. Conservatory orders were not ordinary civil law
remedies but were remedies provided for under
the Constitution, the Supreme law of the land.
They were not remedies between one individual
as against another but were meant to keep the
subject matter of the dispute in situ. Therefore such
remedies were remedies in rem as opposed to
remedies in personam. In other words they were
remedies in respect of a particular state of affairs
as opposed to injunctive orders which may only
attach to a particular person.
18. The Judiciary had made great strides in regaining
public confidence in an attempt to regain its
place as one of the three arms the government as
opposed to its perceived status as the third arm of
the government. In an effort to do so, the judiciarys
image had been tremendously enhanced and any
move that was likely to erode that confidence had
to be treated with cynicism.
19. The Petitioner played a central role in ensuring

91

Issue 24, January - March 2014


that there was smooth administration of justice
in the country and the suspension of the six
Commissioners could impact negatively on the
smooth operation of the petitioner hence hamper
the petitioner from ensuring that there was proper
administration of the judiciary.
20. In deciding whether or not to grant the orders
sought, the Court had to, so far as possible, secure
that any transitional motions before the Court do
not render nugatory that ultimate end of justice.
The argument that the law was cast in stone was
not correct, for the law has always kept growing
to greater levels of refinement, as it expands, to
cover new situations not exactly foreseen before.
Even as those must remain the basic tests, it is
worth adopting a further, albeit rather special and
more intrinsic test which is now in the nature of
general principle. The Court should always opt for
the lower rather than the higher risk of injustice.
Suleiman vs. Amboseli Resort Limited [2004] 2 KLR
589
21. In determining whether or not to grant the orders
sought the Court was enjoined to consider the
principle of proportionality. The circumstances
of the case dictated that the operations of the
petitioner continue since that would be the
lower risk as opposed to bringing the petitioners
operations to a halt.
22. In the premises it was only fair that pending
the hearing inter partes of the application the
administrative operations of the judiciary proceed
in the usual manner. That was more so in the light
of the fact that the order of the Court barring the
suspension of the Commissioners was still in force.
The effect of the grant of the stay orders would be
to stay the suspension of the six Commissioners
pending the inter partes hearing of the application
and or further orders of the court.
23. Article 165(4)of the Constitution permitted the
constitution of bench of more than one High Court
judge where the Judge certified that the matter raise
a substantial question of law. The issues raised in

the petition were substantial questions of law with


respect to interpretation of the Constitution more
particularly with regard to the relationship between
the three arms of government and the separation of
powers between them.
Application allowed
Orders
i. Justice (Rtd) Aaron Gitonga Ringera,
Jennipher Shamalla, Ambrose Otieno
Weda and Mutua Kilaka to be joined in
the proceedings as Respondents and the
petition to be amended accordingly.
ii. The Special Gazette Notice No. 15094
appointing the intended 3rd to 6th
Respondents as members of a Tribunal to
investigate the conduct of six commissioners
of the Judicial Service Commission to
be stayed pending the hearing and
determination of the application inter
partes.
iii. The Chairperson and the Members of
the Tribunal barred from commencing
the investigations into the conduct of the
Commissioners the subject of the said
Gazette Notice pending the hearing and
determination of the Notice of Motion
dated 2nd December 2013 inter partes.
iv. The Commissioners to remain in the office
pending the inter partes hearing of the
application and or further orders of the
court.
v. The petition to be placed before the
Hon. The Chief Justice of the Republic of
Kenya forthwith to consider empanelling a
bench of at least three judges to hear and
determine the issues raised in the petition.

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92

Issue 24, January - March 2014

Court declines to determine constitutionality of the Kiambu County Finance Bill


Robert N Gakuru & another v Governor Kiambu County & 3 others
Petition 532 of 2013
High Court at Nairobi
G V Odunga, J
November 14, 2013
Reported by Njeri Githanga & Victor Andande

Brief facts
On 1st October 2013, the Respondents published in
the Kiambu County Gazette Supplement Bills 2013 a
Bill for introduction into the Kiambu County Assembly
known as The Kiambu County Finance Bill. 2013.
The petitioners (members of Jamofastar Welfare
Association) were unhappy with the said Bill and thus
filed the instant proceedings.
The petitioners contended that before the publication
of the said Bill there was no consultation with the
residents of Kiambu County in contravention of various
articles in the Constitution and County Governments
Act No. 17 of 2012 under which the public participation
in such matters was a mandatory requirement. It was
therefore contended by the petitioners that the said Bill
was unconstitutional not only for failing to adhere to
the principle of public participation and inclusiveness
but also that the issues dealt with in the said Bill
were not within the mandate of the Respondents. It
was further contended that the intended increase in
rents contained in the said Bill were a negation of the
provisions of Article 43(1)(b) under which every person
had the right to accessible and adequate housing, and
to reasonable standards of sanitation. To the petitioners
the intended developments were not by the people of
Kiambu but by the Executive Committee.
Together with the petition the petitioners filed Chamber
Summons in which they sought an order staying the
introduction into Kiambu County Assembly of the
said Kiambu County Finance Bill, 2013 pending the
hearing of the instant petition.
Issues
I.

What was the impact of delay in challenging


decisions of a public body?

II.

What was the scope of High Courts jurisdiction


in relation matters dealing with legislative
authority of county governments?

Cases

III.

Whether by looking into the validity of a given


legislation the High Court would be interfering
with the supremacy of the legislative assembly.

IV.

Whether the High Court could look into the


constitutionality of a bill before it was enacted
into an Act of parliament.

Constitutional law constitutionality of a bill whether


the High Court could determine constitutionality of a
bill before enactment into law
Jurisdiction jurisdiction of the High Court
supervisory jurisdiction of the High Court - where the
matter in question challenged the actions of a legislative
body whether the High Court had jurisdiction to hear
a matter touching on legislative authority of county
assembly Constitution of Kenya, 2010, articles 2 &
165.
Held
1. With respect to the need to move the Court
expeditiously the law acknowledged the need
for speedy certainty as to the legitimacy of
target activities and required petitioners to act
promptly to avoid frustrating a public body
whose decision was challenged, particularly
because of public interest. Thus, in order to
qualify for the grant of the conservatory orders
sought the application had to be made promptly
hence undue delay in applying was a major
factor and the needs of good administration
had to be borne in mind as courts could not
hold decision making bodies hostage.
2. Decisions with financial implications had to
be challenged promptly failing which orders
seeking to stay such decisions would not
be granted even where otherwise deserved.
(Republic vs. City Council of Nairobi & Another
ex parte Peter Odoyo & Another Nairobi High
Court Judicial Review Case No. 25 of 2011).

Cases
3. The supervisory powers of the High Court were
enshrined in article 165(6) of the Constitution
under which the High Court had supervisory
jurisdiction over the subordinate courts and
over any person, body or authority exercising
a judicial or quasi-judicial function, but not
over a superior court. Where however a body
was constitutionally empowered to legislate,
Courts would not ordinarily interfere with
the exercise of the legislative authority of the
body concerned in line with the doctrine of
separation of powers. Courts were not to make
the law but only interpreted the same.
4. Courts were to exercise judicial restraint in
matters dealing with legislative authority of
County Governments. The rational basis test
involved restraint on the part of the Court. It
respected the respective roles of the Courts and
the Legislature. In the exercise of its legislative
powers, the Legislature had the widest possible
latitude within the limits of the Constitution.
In the exercise of their power to review
legislation, courts were to strive to preserve to
the Legislature its rightful role in a democratic
society. This equally applied to executive
decisions. (Mumo Matemu v Trusted Society of
Human Rights Alliance & 5 others Civil Appeal
No. 290 of 2012 [2013] eKLR)
5. Under article 2(4) of the Constitution, any law,
including customary law, that was inconsistent
with the Constitution was void to the extent of
the inconsistency, and any act or omission in
contravention of the Constitution was invalid.
Under article 165(3)(d)(i) and (ii) the High
Court was clothed with the jurisdiction to hear
any question respecting the interpretation of
the Constitution including the determination of
the question whether any law was inconsistent
with or in contravention of the Constitution
and the question whether anything said to be
done under the authority of the Constitution
or of any law was inconsistent with, or in
contravention of, the Constitution.
6. Whereas the legislative authority vested
in Parliament and the county legislative
assemblies, where a question arose as to
whether an enactment was inconsistent with
the Constitution or was passed in contravention
of the Constitution the High Court was the
institution constitutionally empowered to

93

determine such an issue subject to appellate


jurisdiction given to the Court of Appeal and
the Supreme Court.
7. There was nothing like supremacy of the
legislative assembly outside the Constitution
since under article 2(1) and (2) the Constitution
was the supreme law of the Republic and bound
all persons and all State organs at both levels
of government and no person would claim or
exercise State authority except as authorised
under the Constitution. Therefore, there was
only supremacy of the Constitution and given
that the Constitution was supreme, every
organ of the State performing a constitutional
function had to perform it in conformity with
the Constitution. So, where any State organ
failed to do so, the High Court, as the ultimate
guardian of the Constitution, would point
out the transgression. The mere fact that the
legislative assembly enacted an Act was not
the end of the matter.
8. The Bill in dispute was yet to be enacted as an
Act of Kiambu County Government. It would
or would not be passed. If it was passed and
the petitioners were still of the opinion that
the same was unconstitutional, they would be
free to move the High Court for appropriate
orders. However to grant orders gagging the
Respondents from debating the said Bill which
was an exercise of legislative authority as
opposed to judicial or quasi-judicial authority
would amount to usurping the powers of the
Respondents.
9. Conservatory orders could be granted only
where the refusal to grant the same was likely to
imperil the petitioner. Where the issues raised
by the petitioner would still be successfully
ventilated even if the stay sought was not granted
and an appropriate and efficacious remedy
granted, the Court was not to unnecessarily
interfere with the work of the other organs of
Government especially if what was challenged
was the core mandate of such organs which in
the instant case was the legislative capacity of
Kiambu County Assembly.
10. As the Bill was yet to be enacted, the High Court
was not to interfere with the process of the
enactment however ugly, undesirable, arbitrary,
unjust, fanciful or oppressive that Bill would
BB Issue 24, January - March 2014 Feature Case

94

Cases
appear. If the issues raised by the petitioners
were not addressed during the debating of the
said Bill the petitioners would still be at liberty
to move the Court for appropriate orders.

Order of stay declined; the costs of the application to


be in

Scope of medical fitness screening in the context of employment relationships


VMKvCUEA

Cause No. 1161 of 2010


Industrial Court of Kenya at Nairobi
M N Nduma, J
November 8, 2013
Reported by Teddy Musiga
Brief facts:
The claimant alleged discrimination against the
respondent, particulars being; keeping her on casual
employment selectively; paying her an inordinately
low salary for equal work compared to her
counterparts; refusing her recruitment on permanent
basis and continuing to employ her on casual basis
with very low pay compared to her colleagues in the
same position for long period; testing her for HIV status
without her consent; disclosing her HIV status to her
superiors and colleagues and thereby violating her
right to privacy; keeping her on short and progressively
shorter contracts, with unequal terms due to her HIV
status; refusing her paid maternity leave followed by
an immediate termination of employment upon return
from unpaid maternity leave.
Issues:
I. Whether HIV screening in the workplace for
purposes of recruiting, retaining or promotion
of employees is legal.
II.

Whether employers are entitled to scrutinise the


medical fitness of employees to be absorbed in
their permanent services.

III.

Whether the termination of employment based


on HIV status and pregnancy is lawful.

Employment Law employer & employee relationship


termination of employment termination on grounds
of HIV status and pregnancy - whether the termination
of employment based on HIV status and pregnancy is
lawful Employment Act, section 29
Employment Law Fair labour practices - fair
remuneration equal work for equal pay reasonable
working conditions Employment Act, Section 5,
Constitution of Kenya, 2010 article 41
Employment Law employer & employee relationship
BB Issue 24, January - March 2014 Feature Case

medical fitness scrutiny of employees considerations/


tests for medical fitness scrutiny - Whether HIV
screening in the workplace for purposes of recruiting,
retaining or promotion of employees is legal - Whether
employers are entitled to scrutinise the medical fitness
of employees to be absorbed in their permanent
services
Article 27 of the Constitution of Kenya, 2010 provided
that;
Women and men have the right to equal
treatment, including the right to equal
opportunities in political, economic, cultural
and social spheres.
Article 28 of the Constitution of Kenya, 2010 provided
that;
Every person has the inherent dignity and right
to have that dignity respected and protected.
Article 41(2) of the Constitution of Kenya, 2010
provided that;
Every person has the right to fair labour
practices which includes the right to fair
remuneration and reasonable working
conditions.
Section 5 of the Employment Act provided that;
(2) An employer shall promote equal
opportunity in employment and strive to
eliminate discrimination in any employment
policy or practice.
(3) No employer shall discriminate directly or
indirectly against an employee or prospective
employee or harass an employee or prospective
employee on the grounds of race, color, sex,
language, religion, political or other opinion,
nationality, ethic or social origin, disability,
pregnancy, mental status or HIV status in
respect of recruitment training, promotion and
terms and conditions of employment or other
matters arising out of the employment.
(4)An employer shall pay his employees equal

Issue 24, January - March 2014


remuneration for work of equal value.
Held:
1. Article 1 of the Convention Concerning
Discrimination in respect of Employment and
Occupation, 1958 proscribed discrimination
which had the effect of nullifying or impairing
equality of opportunity or treatment in
employment or occupation. Therefore, the
conduct of the respondent systematically and
completely killed any of the claimants chance
of employment with the respondent mainly
because of her sex, pregnancy and HIV status.
2. No employer in Kenya should require HIV
screening for purposes of recruiting, retaining
or promotion of employees at the work place.
(Conditions of Work Digest, Volume 12.2/1993
at page 53)
3. Employers were entitled to scrutinise the
medical fitness of their prospective employees.
However, the actual test or consideration to
be applied for judging the medical fitness in
the context of employment had to necessarily
correlate to the requirements of the job, and
interests of the persons and property at the
work place. In the employment context, an
otherwise qualified person was one who could
perform the essential functions of the job in
question.
4. The right to life to a workman included the right
to continue in permanent employment which
was not a bounty of the employer nor could
its survival be at the volition and mercy of the
employer. Income was the foundation to enjoy
many fundamental rights and when work was
the source of income, the right to work then
became such a fundamental right. (Air India
Statutory Corporation v United Labour Union
[1997] AIRSCW 430)
5. An employee could not be medically unfit

95
merely by virtue of having been infected
by HIV. Therefore, the respondent grossly
erred in refusing the claimant employment
on a permanent basis on the ground of her
HIV status. They also breached her right to
employment and equal treatment by subjecting
her continuously to casual employment and
inferior remuneration purely on the basis of her
HIV status. Further that the respondent erred by
terminating her employment under the pretext
that her short term contract had expired when
the sole reason for the adverse decision was
her HIV status.
6. Section 29 of the Employment Act, 2007
provided that female employees were entitled
to three months maternity leave with full
pay. Therefore, the respondents unlawfully
withheld the claimants salary while she was
on maternity leave.
7. The cumulative effect of the respondents
actions against the claimant constituted gross
affront on her dignity contrary to article 28
of the Constitution of Kenya, 2010, a gross
violation of her right to fair labour practices
which included a right to fair remuneration
and to reasonable working conditions contrary
to article 41 of the constitution. Further, that
the respondent grossly violated article 27 of
the Constitution and in particular her right to
equal benefit of the law and equal enjoyment
of all rights was grossly violated by the
discriminative conduct of the respondent in
spite of the specific provisions of labour laws
that guaranteed the claimant specific rights
and equality at the work place.
Industrial cause allowed. Respondents to pay
claimant total of Ksh. 6,971,346/= being damages for
discrimination of the claimant on the basis of her HIV
status and gross violation of her human dignity.

Cases

96

Issue 24, January - March 2014

Whether the refusal by an employee to undergo further training to improve work


quality, would amount to poor performance
Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
Cause No. 68 of 2013
Industrial Court at Mombasa
S Radido, J
November 8, 2013
Reported by Mercy Ombima & Emmanuel Kubo

Brief Facts
The Grievant in this case was a former employee of
the Respondent, (Kenya Petroleum Refineries Ltd). The
Claimant (the Grievants Union) instituted a claim on
behalf of the Grievant alleging that the Respondent
had unfairly terminated the Grievants employment.
The Respondent had summarily dismissed the Grievant
on grounds of poor work quality and performance
among others. The termination letter had elaborately
stated that the Grievant had lacked work quality
and performance, that he had been deliberate on
non - completion of training requirements by failing
to attend training sessions and that he had refused
to correct unacceptable behavior, demonstrated by
erratic work attendance, absenteeism and lack of
sincerity and integrity. The Respondent had relied on
several warning letters and disciplinary notices issued
to the Grievant and which had been cancelled, in the
termination proceedings. They included a warning
letter after he had failed an assessment for promotion.
The Respondent had required that the Grievant re-sits
the assessment and had threatened that if he did not
meet the stipulated conditions his services would be
determined.
Issues
I.

Whether poor work performance could be a


ground for termination of employment services

II.

Whether the non - completion of additional


training requirements at the workplace by an
employee, to improve work quality, would be
tantamount to poor work performance

III.

Whether warning letters which stood cancelled,


could be relied on by an employer to terminate
an employees employment or to prove reasons
for termination.

Employment Law termination of employment unfair


termination - grounds for terminating employment
- where the Grievants employment was terminated
on multiple grounds that encompassed poor work

Cases

performance and misconduct whether an employer


could rely on an employees poor performance to
terminate employment services - where the court
distinguished the difference between poor performance
on the one hand and negligence, incapacity and
misconduct on the other hand - whether the employees
services had been fairly terminated Employment Act
2007 sections 41; 43; 45; 47(5)
Employment Law disciplinary notices cancelled
disciplinary notices - where the Grievants employment
was terminated by the Respondent in reliance on
disciplinary notices where the Respondent relied
on warning letters and disciplinary notices which
stood cancelled, to prove reasons for terminating the
Grievants employment where the Court discussed the
effect and significance of warning letters which stood
cancelled in termination disputes and proceedings Employment Act 2007 sections 41; 43; 45; 47(5)
Held
1. Section 41 of the Employment Act outlined the
essential requirements which an employer was
required to comply with when terminating the services
of an employee on the grounds of misconduct, poor
performance and physical incapacity. Those essential
requirements were that the employer would explain to
the employee, in a language the employee understood,
the reasons for which the employer was contemplating
terminating the services of the employee and hearing
any representations to be made by the employee.
2. The employee was also entitled to be accompanied by
a fellow employee or shop floor union representative;
and to be heard, and his explanations considered.
That was what was called procedural fairness in
employment law and the rule of natural justice in
administrative law.
3. The Respondent had held a progression review
meeting with regard to the Grievants performance
and noted that the Grievant had not completed his
employment tasks. The Grievants union had not been
involved in that meeting. To the mind of the court,

Cases
that process was both an assessment of the Grievants
performance and a disciplinary process. That course
of action was not in compliance with the dictates of
procedural fairness of section 41 of the Employment
Act and provisions of the Collective Bargaining
Agreement in question.
4. The Employment Act of 2007 placed an onerous
legal obligation upon employers in claims for unfair
termination or wrongful dismissal. Section 43 of
the Act required the employer to prove the reasons
for termination or dismissal, section 45 required
the employer to prove that the reasons were valid
and fair while section 47(5) of the Act expected the
employer to justify the grounds for the termination or
dismissal. The scheme created by the Employment Act
was fundamentally different from that created by the
Evidence Act and the Civil Procedure Rules, bearing
in mind that the Industrial Court was not strictly bound
by the rules of evidence.
5. The reasons for termination given in the termination
letter lacked clarity, verged on vagueness and referred
to what appeared to have happened over a long period
of time. Procedural fairness envisaged informing an
employee with clarity, of the nature of charges he
was facing and giving him an opportunity to state his
case or respond. Some of the reasons related to poor
performance and some to misconduct. Vague and
numerous reasons could prejudice an employee in
responding to the allegations.
6. It was also not possible for the Court to know how
and whether the allegations were the subject of distinct
disciplinary hearings, considering that they had been
mentioned in the termination letter itself.
7. It was very easy to discern what a poor performance
in a drama play was, but not in the workplace.
Many employers confused poor performance
with negligence, incapacity or misconduct. Poor
performance did not relate to an employees behavior
in the work place. Behavior was addressed under
misconduct in employment disciplinary process while
poor performance examined whether the job which
an employee was expected to perform, was performed
properly (ability).
8. Performance was therefore gauged on the basis of
sufficient job output, acceptable quality, compliance
with employer operating procedures, sufficient
employee effort and ability to perform the job at the

97

expected level. According to the Respondent, the


Grievants work performance and non - completion of
tasks and skills had spread over a long time.
9. The letter of termination was not clear on which dates
the Grievant was absent or involved in erratic work
attendance. It was not the case of the Respondent that
the Grievant was not meeting set standards of quality
and quantity, but that the Grievant was not taking and
completing trainings to enable him meet set standards
and quality. Again it was not argued the Grievants poor
performance was causing any operational problems
but that the Respondent operated in a highly safety
sensitive environment. Those reasons were majorly
issues of misconduct.
10. The Respondent had issued the Grievant with
various warnings and disciplinary notices, most of
which stood cancelled after the lapse of one year after
issue. A warning letter should be cancelled after one
year but not removed from ones file.
11. The Employment Act expected employers to keep
records. However, there was no statutory provision
dealing with a cancelled, lapsed or expired warning
and what would be the legal significance or effect
in relying on such warnings in an unfair dismissal
complaint. The parties had dealt with the issue in
the Collective Bargaining Agreement. However, the
clause in the Collective Bargaining Agreement was
not clear whether an employee whose warning had
been cancelled could be treated as if he had a clean
disciplinary record when found guilty of a subsequent
misconduct.
12. Although expired warnings could not be used as
progressive steps ultimately leading to a dismissal, they
could be used as aggravating circumstances once the
employee had been found guilty of an offense and there
was necessity to decide on an appropriate sanction,
such as whether to be lenient and or to dismiss the
employee. It was the duty of the employer to establish
that cancelled warnings could be taken into account.
The Respondent had done no such thing.
13. Though the termination of the Grievant was
substantively fair, it was not in accord with section 41
of the Employment Act and the Collective Bargaining
Agreement and therefore procedurally unfair.
Grievant awarded four months
compensation of Ksh.34, 024/-.

gross

wages

BB Issue 24, January - March 2014 Feature Case

98

Cases
Constitutional claims on violation of fundamental rights and freedoms have no
limitation period within which to be filed
David Gitau Njau & 9 others v Attorney General
Petition No 340 of 2012
High Court at Nairobi
I Lenaola, J
November 1, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

Brief facts:
The petitioners were ex-service officers of the Kenya
Air Force who were serving officers at the time of the
attempted coup of 1st August 1982. In their petition,
they alleged that they were all arrested by officers
of the Kenya Army on diverse dates between 1st and
4th August 1982 on suspicion of participating in the
attempted/failed coup on the mere account of their
being officers of the Kenya Air Force. They alleged a
violation of their fundamental rights and freedoms as
enshrined in the Constitution of Kenya (Repealed) and
the Constitution of Kenya, 2010 by the officers of the
Kenya Army on diverse dates in 1982 and 1983.
Issues:
I. Whether a constitutional claim on alleged
infringement of fundamental rights and
freedoms had a limitation period within which
the claim ought to have been filed.
II. Whether the petitioners herein established
a violation of their fundamental rights and
freedoms.
III. What amount in damages was to be awarded.
Constitutional Law fundamental rights and freedoms
violation of fundamental rights and freedoms
claim that the petitioners protection from Torture and
other Cruel and Degrading Treatment was violated
claim that the petitioners right to personal liberty was
violated where the petitioners were arrested and
held in custody for a period of 8 months without being
brought to court whether the petitioners claim was
time barred having been brought to court 30 years
later whether constitutional claims had a limitation
period attached whether the claim for infringement
had been established and what amount of damages
could be awarded Armed Forces Act, sections 48,
72(2)&(3) and 176; Constitution of Kenya (Repealed)
sections 72, 74(1), 84, 86(2)&(3).
Held:
1. A claim made under the Constitution was
neither a claim in tort nor contract that would
necessitate the application of the Limitation of
Actions Act, Cap 22 Laws of Kenya.
2. There was no law or particular provision of
BB Issue 24, January - March 2014 Feature Case

either the Constitution of Kenya (Repealed) that


provided that a claim based on fundamental
rights and freedoms had a limitation period
within which the claims ought to have been filed
or the rules contained under the Constitution
of Kenya (Protection of Fundamental rights
and Freedoms of the individual) Practice and
Procedure Rules, 2001 which placed any
limitations on the citizens rights to institute a
suit for the redress of violation of fundamental
rights and freedoms under section 84 of the
Constitution of Kenya (Repealed).
3. Whereas the East Africa Community Treaty at
article 30(2) had stipulated a time limit within
which a claim to the court could be instituted
as either within two months of the action
complained of or on the day it came to the
knowledge of the complainant, the Kenyan
Laws had not and so the petition was properly
before court. It was however ideally prudent to
institute proceedings as early as possible from
the time the alleged breaches occurred.
4. Torture, cruel, inhuman and degrading
inhuman treatment were all prohibited under
international human rights law instruments
including The Convention Against Torture
(CAT), The International Covenant on Civil
and Political Rights (ICCPR), The European
Convention on Human Rights (ECHR), The
American Convention on Human Rights
(AmCHR), the Inter-American Convention to
Prevent and Punish Torture and the African
Charter on Human and Peoples Rights (Banjul
Charter).
5. The petitioners claim that immediately upon
their arrests, they were stripped naked in public,
made to walk on their knees on concrete floors,
whipped, kicked around, bludgeoned all over
their bodies as they were being taunted that
they were educated rubbish amounted to
torture, cruel and degrading treatment contrary
to section 74(1) of the Constitution of Kenya
(Repealed) which provided that no person
would be subjected to torture or to inhuman or

99

Issue 24, January - March 2014


degrading punishment or other treatment.
6. Holding the petitioners for 8 months without
charge or being arraigned in court and in case
of the 8th petitioner for 4 months, was unlawful
and was a violation of section 72(3)(b) of the
Constitution of Kenya (Repealed).
7. Where an accused person was not arraigned
in court within 24 hours of his arrest, the
burden of proving that the person arrested had
been brought before a court as soon as was
reasonably practicable rested upon any person
alleging that the provisions of the section had
been complied with (Albanus Mwasia Mutua
v Republic Criminal Appeal No 120 of 2004).
8. The respondents defence for not arraigning
the petitioners in court within the stipulated
time, claiming that they had confessed their
participation in the failed 1982 coup attempt,
and as such the measures and force used upon
them were reasonably justifiable could not
hold water. Furthermore, section 72(2) and (3)
of the Armed Forces Act (Repealed) provided
that a person arrested for suspicion of having
committed an offence under the act was to be
investigated without unnecessary delay and so

the respondent could not have any valid answer


as to why the petitioners were not arraigned in
any court within the time stipulated by law.
9. The object of the Armed Forces Act in section
72 as read with section 48 was to ensure
that there were no unnecessary delays in
undertaking investigations of arrested persons.
10. In awarding damages the criteria followed
were: the torture inflicted on each petitioner;
the length of time the petitioners were held
in unlawful custody; the decided cases on
the subject matter; and what was fair and
reasonable in the circumstances of each case
(Jenniffer Muthoni Njoroge & 10 others v
Attorney General Petition No 340 to 350 of
2009).
11. Similarly, the High Court stated its view on
the issue of exemplary damages and declined
to grant exemplary damages in cases where
torture had been alleged to amount to violation
of constitutional rights (Benedict Munene
Kariuki & 14 others v Attorney General High
Court Petition No 722 of 200)
Petitioners awarded Kshs 5,500,000 each.

Extent to which the Retirement Benefits Appeals Tribunal may Determine issues of
Employment
Republic v Retirement Benefits Appeals Tribunal ex-parte Mogaha & 12 others
Misc Appl No 415 of 2012
High Court at Nairobi
D S Majanja, J
October 4, 2013
Reported by Andrew Halonyere

Brief facts
The 1st interested party lodged a complaint about
payment of pension with the Retirement Benefits
Authority. The complaint was challenged by her
employer on the grounds that she had been dismissed
for acts of fraud and gross misconduct, and therefore
not eligible for pension. The Authority found that she
had been paid her retirement benefits in accordance
with the provisions of the employers pension scheme
and the rules applicable when her services were
terminated.
She was aggrieved by the Authoritys decision and
lodged an appeal to the Retirement Benefits Appeal
Tribunal. The Tribunal noted that the main bone of
contention was the manner in which the 1st interested
partys services was terminated and it concluded that

her appointment was governed by the employers terms


of service and that her services had been terminated in
accordance with the terms of service thus entitling her
to be paid her pension dues.
The decision of the Tribunal was challenged by the
Trustees of the Scheme through an application for
Judicial Review lodged in the High Court.
Issue
Whether the Retirement Benefits Appeals Tribunal in
exercising its jurisdiction, could make a finding on an
issue of employment.

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100

Issue 24, January - March 2014

Employment law pension complaint of nonpayment of pension appeal to the Retirement Benefits
Appeal Tribunal jurisdiction of the Retirement Benefits
Appeal Tribunal extent to which the Retirement
Benefits Appeals Tribunal may determine issues of
employment Retirement Benefits Act (Cap 197)

Authority on complaints relating to Retirement


Benefits Schemes. Retirement Benefits Schemes
are by their very nature related to employment.
In fact, from many schemes, the payment
of terminal dues is related to the manner
in which the employment is terminated.
Therefore, a decision as to whether retirements
benefits are payable had to ipso facto involve
a determination of how the employment was
determined should a dispute arise.

Held
1. All inferior courts and tribunals had only
limited jurisdiction whose limits they had to
observe, otherwise the doctrine of ultra vires
would come into play, and any decision by
such a court or Tribunal was bound to be
declared null and void and would be quashed.
Jurisdiction was the root of all causes and
where it was lacking, any decision made by
the Court or Tribunal would be null and void
ab initio.
2. Where the proceedings were regular upon their
face and the inferior tribunal had jurisdiction
in the original narrow sense i.e, it had power
to adjudicate upon the dispute and did not
commit any errors which went to jurisdiction
in the wider sense, the quashing order of
certiorari would not ordinarily be granted on
the ground that its decision was considered
wrong either because it misconceived a point
of law or misconstrued a statute, except a
misconstruction of a statute relating to its own
jurisdiction.
3. The dispute before the Retirement Benefits
Appeals Tribunal concerned an appeal from a
decision of the Retirement Benefits Authority,
finding, that the 1st interested party was entitled
to certain pension benefits. The issue of her
entitlement was intimately connected with
the manner in which she was terminated. The
Tribunal had jurisdiction to deal with and
apply its mind to all the issues necessary for
the determination of the core issue before it.
4. The jurisdiction of the Retirement Benefits
Appeals Tribunal was to hear appeals from
the Chief Executive of the Retirement Benefits

Cases

5.

The purpose and intent of the Retirement


Benefits Act was to provide a dispute resolution
mechanism for determination of disputes that
was efficient and effective.

6. The Retirement Benefits Act did not expressly


exclude from the jurisdiction of either the
Authority or Tribunal to deal with employment
issues as long as it was incidental to claims
falling within the Act. Further, there was
nothing in the Magistrates Court Act or the
Industrial Court Act that limited the jurisdiction
of the Tribunal and Authority from determining
the matters of employment that were incidental
to and ancillary to the core determination of
retirement benefits disputes. To have acceded
to such a position would have rendered
the Tribunal a phantom body. Therefore the
Tribunal had the jurisdiction to deal with the 1st
interested partys termination of employment
in so far as the matter was incidental to the
determination of her retirement benefits.
7. Whether or not the Tribunal could deal with
employment issues did not depend on the
manner the inquiry would be conducted. The
Authority and/or Chief Executive had powers
and authority, to investigate the complaint
submitted, by examining documents, taking
oral evidence, or any other means that was
necessary provided the process was fair.

Notice of motion dismissed.

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101

Requirements relating to the removal of members to County Public Service Boards


from office
Mundia Njeru Geteria v Embu County Government & 3 others
Petition Number 116 of 2013
Industrial Court of Kenya at Nyeri
Abuodha Nelson, J
September 19, 2013
Reported by Beryl A Ikamari

Issues
I. Whether the appointment of the petitioner as
the Chairperson of the Embu County Public
Service Board was effective notwithstanding
the fact that the appointment was not gazetted
in the Kenya Gazette and there was no
appointment letter issued.
II.

III.

Whether the removal of the petitioner from


office by means of a letter rescinding his
appointment and indicating that the rescission
was in furtherance of a County Assembly
Resolution, was a violation of constitutional
and statutory provisions.
The nature of remedies, if any, that the petitioner
would be entitled to.

Constitutional
Law-County
Government-County
Public Service Boards-requirements relating to the
appointment of members to County Public Service
Boards-whether an appointment would be effective
without the issuance of an appointment letter and the
gazettement of the appointment-Constitution of Kenya,
2010; Chapter 6 & County Governments Act, No 17 of
2012; sections 58 & 67.
Constitutional
Law-County
Government-County
Public Service Boards-requirements relating to the
removal of members to County Public Service Boards
from office-whether a letter rescinding an appointment
and indicating the existence of a County Assembly
resolution for the rescission, would suffice- Constitution
of Kenya, 2010; article 151(1) & County Governments
Act, No 17 of 2012; sections 58(5).
Held
1. In accordance with the terms of section 58(3)
of the County Governments Act, No 17 of
2012, the petitioner met the requirements for
appointment as the Chairperson of the County
Public Service Board. Upon his appointment,
the petitioner was to hold office for a nonrenewable term of 6 years.

2. Under section 67 of the County Governments


Act, No 17 of 2012, appointments to the
county public service would not be valid unless
they were evidenced in writing. The import of
section 67 was that the appointment would be
evidenced in writing and that an appointment
could be contained in a letter of appointment
or evidenced from a document or series of
documents.
3. The petitioners appointment was evidenced in
writing by the document titled, Oath of office
of the Chairman of the Embu County Service
Board which was signed by the Governor, the
County Secretary and the petitioner.
4. It was the Embu County Governments duty to
issue the petitioner with a letter of appointment
and it could not argue that the petitioners
appointment was incomplete for want of a
letter of appointment or gazettement.
5. A Gazette notice would not constitute the
notice or the law itself but it would be the
official announcement of the existence of
the law or notice or the coming into effect of
the law or notice. Therefore, the validity of a
notice or law would not reside in the Gazette
but in the persons or bodies tasked with the
responsibility to make such laws or notices in
accordance with the law.
6. Pertaining to the removal of the petitioner from
office the requirements of section 58(5) of the
County Governments Act, No 17 of 2012,
were that such removal would be based on
grounds set out for the removal of members
of a constitutional commission under article
251(1) of the Constitution and be via a vote of
not less than 75% of all members of the County
Assembly.
7. Article 251(1) of the Constitution of Kenya
2010, provided that a member of a commission,
except an ex-officio member, or the holder of
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102

Cases
the grounds provided for in law and that there
was a decision for removal passed by 75%
of the members of the County Assembly. The
removal via a letter rescinding the appointment
was not in compliance with the prescribed
procedure.

an independent office, could be removed from


office only fora) Serious violations of the Constitution or
any other law;
b) Gross misconduct, in the performance of
an office holders functions or otherwise;
c) Physical or mental incapacity to perform
the functions of the office
d) Incompetence; or,

9. It would be appropriate to issue the order of


certiorari to quash the decision to rescind the
petitioners appointment and to also grant
an injunction to restrain the removal of the
petitioner from office by the respondents.

e) Bankruptcy.
8. There was a failure to demonstrate that the
petitioners removal from office was related to

Petition allowed.

High Courts Jurisdiction to Enforce Warrant of Arrest Issued by the


International Criminal Court
Walter Osapiri Barasa v Cabinet Secretary Ministry of Interior & National Co-ordination &
6 others
Constitutional Petition 488 of 2013
R M Mwongo J
January 31, 2014
By Andrew Halonyere

Brief Facts
The petitioner was a former intermediary for the
International Criminal Court prosecutor in the context
of investigations relating to the 2007 post elections
violence. It was alleged that he was criminally
responsible for interfering with prosecution witnesses
by attempting to corruptly influence the witnesses, in
contravention of article 70(1)(c) of the Rome Statute.
He was therefore being sought by the ICC to answer
to those charges. The ICC Registrar issued a request
for arrest and surrender of the Petitioner which was
received by the Cabinet Secretary of Interior and
National Co-ordination and forwarded to the High
Court of Kenya for execution in accordance with
section 29 of the International Crimes Act No. 16, of
2008 (the ICA).
The issuance of the warrant is what triggered the
petitioner to file the petition.
International law treaties and conventions nature
and extent of application of treaties supremacy of the
Constitution and sovereignty of the people vis--vis the
Rome Statute and conventions ratified by Kenya
BB Issue 24, January - March 2014 Feature Case

Constitutional Law fundamental rights and freedoms


request for arrest and surrender of a suspect by the
International Criminal Court where the ICC had issued
a warrant of arrest to be effected by the High Court
of Kenya whether the High Court had jurisdiction
to order arrest and surrender of the petitioner to ICC
- Whether in the absence of regulations made by
the Minister prescribing procedures for dealing with
requests by ICC, invalidates the proceedings against
the petitioner whether the petitioner was entitled to
security International Crimes Act No. 16, of 2008
section 29 Rome Statute articles 25(3)(a) 70(1)
(c),89 Criminal Procedure Code ( Cap 75) section
89
Issues
I.

Supremacy of the Constitution and


sovereignty of the people vis--vis the
Rome Statute and conventions ratified
by Kenya.

II.

Whether Part IV of International Crimes


Act 2008 on arrest and surrender

Issue 24, January - March 2014

III.

103

contravenes the arrest procedure under


sections 28, 89, & 29 of the Criminal
Procedure Code which provides for
an arresting officer to exercise power
of arrest only if he has reasonable and
probable cause.

1969 Vienna Convention) and the 1986 Vienna


Convention on the Law of Treaties between
States and International Organizations or
between International Organizations (the 1986
Vienna Convention) provided the yardstick on
how to deal with treaties and conventions.

Whether the petitioners fundamental


rights and freedoms were violated
by the action of the Minister in
commencing proceedings under Part IV
of the International Crimes Act before
notifying and furnishing him with the
information and evidence upon which
the International Criminal Court (ICC)
seeks his arrest and surrender.

3. Once a treaty becomes part of a states law, a


state party is obligated to perform the treaty
regardless of conflicts with its internal law.
Suffice to say, internal law includes a States
Constitution. That is provided for in Article 27
of the 1986 Vienna Convention which Kenya
has ratified.

IV.

Whether in the absence of regulations


made by the Minister pursuant to
sections 172 & 173 of the ICA,
prescribing procedures for dealing
with requests by ICC, invalidates the
proceedings by the 1st Respondent.

V.

Whether the High court had jurisdiction


to order arrest and surrender of the
petitioner to ICC.

VI.

Whether the petitioner was entitled to


security.

Held
1. It was trite that under the Rome Statute the
ICC did not exercise police powers, nor did
its personnel have a direct right of arrest. The
request therefore together with accompanying
documentation and identifying information
under article 91 of the Rome Statute was
transmitted for execution to the Cabinet
Secretary, Ministry of Interior and Co-operation
of Kenya, by way of a request for co-operation
pursuant to article 89 of the Rome Statute.
2. To acquire the force of law under the Kenyan
Constitution, treaties and conventions had to
undergo domestication. It was recognized
that treaties were laws, consented to by all
parties in the comity of nations who sign them,
obligating States that have ratified or acceded
to them comply with them particularly when
dealing with other States parties as well as
relevant international organizations. The 1969
Vienna Convention on the Law of Treaties (the

4. The obligation of a State Party to comply with


a treaty, especially where the State had not
expressed any reservations thereto could not
be willy-nilly denied or abrogated. A State
could only invoke the provisions of its internal
law where the same had been expressed as
reservations before the ratification of such
treaty. Some countries had however, expressly
stated that their internal laws and most
especially the constitution was supreme to
treaties. The United States of America was one
such example.
5. The Rome Statute established the International
Criminal Court. It was one of the treaties signed
by Kenya. It was ratified on 15th March 2005,
and Kenya did not express any reservations to
any of the provisions of the Statute. Article 120
of the Rome Statute expressly prohibited State
Parties from entering any reservations.
6. Under Section 4 of the ICA, the Kenya
Parliament was very clear that certain provisions
of the Rome Statute shall have the force of law
in Kenya. In the case before the court, the
subject matter of the proceedings instituted
by the ICC was the issuance of a warrant of
arrest. It was duly transmitted to the Kenyan
authorities by way of a request for assistance
relating to international co-operation, in terms
of the provisions of the Rome Statute. Clearly
therefore, Section 4 of the ICA and Part 9 of
the Rome Statute were invoked. Those were
amongst the provisions which the Parliament
of Kenya had enacted as having the force of
law in Kenya.

Cases

104
7. Kenya, through a process of domestication,
and the people of Kenya in exercise of their
sovereign will through their constitutionally
mandated representatives in Parliament, had in
exercise of such sovereignty, ratified, adopted,
incorporated and received the Rome Statute,
excluding the provisions not domesticated, as
part of the law of Kenya under the supremacy
of the Constitution. That being so, the effect
was that the Rome Statute formed part of
the laws of Kenya. Being a statute through a
process of ratification and domestication the
Rome Statute was in terms of article 2(6) of the
Constitution subordinate to the Constitution
8. When an Act of parliament is appropriately
challenged in the courts as not conforming
to the constitutional mandate, the judicial
branch of the government has only one duty;
to lay the article of the Constitution which is
invoked beside the statute which is challenged
and to decide whether the latter squares with
the former. All the court does, or can do, is
to announce its considered judgment upon
the question. The only power it has, if such it
may be called, is the power of judgment. The
High Court neither approves nor condemns
any legislative policy. Its delicate and difficult
office is to ascertain and declare whether
the legislation is in accordance with, or
in contravention of, the provisions of the
Constitution; and, having done that, its duty
ends.
9. In impugning a provision of law as
unconstitutional, the complainant must
juxtapose the article of the Constitution which
is invoked against the provision challenged and
show how they do not square with each other.
The petitioner did not demonstration as to
how Part IV of the ICA on arrest and surrender
when juxtaposed with Art 27,28 and 29 of
the Constitution, were flawed. Under the ICA,
once the Cabinet Secretary had received the
transmitted warrant and supporting documents
from the ICC, he was required to satisfy himself
that the request was duly supported, and if so,
to notify the Judge of the request and seek
issuance of an arrest warrant.
10. The ICC is a court which is, as far as Kenya
is concerned, one established by a statute
acceded to and ratified pursuant to article

Cases

Issue 24, January - March 2014


2(6) of the Constitution. Such statute therefore
constitutionally forms part of the law of Kenya
and the ICCs activities have been identified
and recognized in the domesticating Act under
the provisions of section 4 of the ICA as having
the force of law in Kenya. The ICC is therefore
a Court duly recognized and incorporated
by the Constitution as a court with which, in
terms of the preamble and objects of the ICA,
Kenya must cooperate in the performance of
its functions.
11. The ICC was under no obligation to inform
the State Party or the petitioner prior to
commencing on the exercise of its discretion,
or that the petitioner has a specific right to be
tried in Kenya.
12. The question as to whether or not the Cabinet
Secretary breached the Petitioners rights to a
fair hearing and fair administrative action must
be examined in the following context: the
subject at hand; and in light of the nature of the
proceedings; and taking account of whether
the Cabinet Secretarys action is a final act or
decision; and the procedure under which the
decision is taken; and the objects of the law
regulating his actions.
13. Whether the petitioner was entitled to be
provided with material and to fair hearing
at the pre-arrest stage, must also be viewed
through the lenses of the issues at hand, and
the overall object of the ICA. According to its
long title the ICA aims, among other things,
to: enable Kenya to co-operate with the
International Criminal Court established by
the Rome Statute in the performance of its
functions.. Therefore, whatever interpretation
is adopted by the court, it must ultimately,
and also efficiently and effectively be geared
towards the achievement of that goal.
14. There is no requirement for hearing the
petitioner at the pre-arrest stage. However,
should the suspect be arrested, then the
provisions of article 49 of the Constitution on the
rights of arrested persons would automatically
kick in. It is to be remembered that, section
25 (1) of the ICA demands confidentiality in
the manner in which the Minister, the Attorney
General or any employee dealing with requests
for assistance from the ICC.

Cases
15. Under the Kenyan laws there is no provision
that a person at the pre-arrest stage is entitled to
a hearing or to be provided with material that
is to form the basis of the charge. Those rights
are available to the petitioner after arrest and
throughout the process thereafter. That includes
the process before the ICC if, eventually, an
order of surrender were to be finally made
against the petitioner after his arrest.
16. An arrest in Kenya is lawful with or without
the issuance of a warrant. All that is required
is either the production before a magistrate of
an arrested person or a complaint signed by
a magistrate. It is not unusual, however, that
a person suspected of having committed an
offence is arrested without the opportunity
of being heard. There is no doubt that arrest
interferes with the fundamental rights of a
person, in that upon arrest he may be placed
in custody, and his movements limited and
freedoms restricted. Therefore, the right to
liberty can only be deprived on such grounds
and in accordance with such procedure as
established by law.
17. Upon arrest, under the Constitution, a persons
right to a hearing and to challenge the grounds
for arrest cannot be curtailed, except under law.
In some countries such as the United States of
America, before being arrested a person has
rights that accrue to them, which are read to
them by the arresting officer. Such pre-arrest
rights are commonly referred to as Miranda
Rights or the Miranda Rule.

to apply for the cancellation of the warrant.


Therefore, it was premature for the petitioner
to have raised the issue of refusal to surrender
on account of exceptional circumstances as
there was no basis yet for the exercise of the
Ministers discretion to refuse surrender.
20. It is the discretion of the Minister to determine
whether or not to make regulations. He has
not done so, however that does not invalidate
the actions of the Minister who, having
received by transmittal a warrant of arrest for
notification to a judge. The ICA is clear that the
laws of Kenya apply. The CPC has provisions
for a procedure for the issuance of a warrant,
although the procedure involves a magistrate.
Nothing prevents a High Court judge acting in
accordance with the ICA playing the role of
the magistrate under the CPC, given that the
High Court has unlimited original jurisdiction
in civil and criminal matters.
21. It would be wrong for the Court to intervene
with the merits of the Ministers decision unless
the petitioner proves that the proceedings
commenced by the Minister
I.

had resulted in a failure to realize the


intention of the Act; or

II.

results to an impediment in the exercise


of fundamental rights or freedoms of the
petitioner; or

III.

results in a situation so unfair, irrational or


unreasonable that any reasonable person
in the Ministers position would, in the
circumstances, readily have made such
regulations.

IV.

Amounts to a failure of a glaring and


fundamental duty of the Minister which
the court would be entitled to remedy
with an order to compel him to make such
regulations.

18. The ICC proceedings in respect of a warrant


of arrest are special proceedings which do not
entitle the petitioner to an opportunity to be
given a hearing prior to his arrest
19. The aspect of surrender is dealt with under
sections 39-45, of ICA. The process is simply
that if a person is brought to the High Court
under Part IV, which includes an arrest under
warrant, the Court has to determine whether
such person is eligible for surrender. The
criterion for eligibility is also set out in section
39(3) ICA. 119. It must also be borne in mind
that under Section 29 of the ICA, the Ministers
role is fairly circumscribed, In addition even
if the court issues a warrant of arrest, it is
open to the Minister under section 31(1) ICA

105

The petitioner was not able to demonstrate


that any of the above criteria applied in
his case. Accordingly, there was no basis
upon which to hold that the proceedings
commenced by the Minister were invalid,
on account of his not exercising his
discretion to promulgate rules under
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106

Cases
sections 172 or 173 of the ICA.

22. The High court had jurisdiction to order arrest


and surrender of the petitioner to ICC.

The petitioners prayers (a) to (h) declined, prayer (i)


granted to the extent that the order for security would
remain in force pending further orders in a previous
application before the court.

INTERNATIONAL
JURISPRUDENCE
Indias Supreme Court commutes the sentences of 15 death row prisoners to
life in jail on the grounds of delay
Shatrughan Chauhan & another V Union of India & Others
2014 STPL(Web) 41 SC
Supreme Court of India
P. Sathasivam, Cji., Ranjan Gogoi And Shiva Kirti Singh, JJ
Reported by Linda Awuor

Brief Facts
The Petitioners filed a writ petitions, under Article 32 of
the Constitution of India, which had been filed either by
the convicts, who were awarded death sentence or by
their family members or by public-spirited bodies like
Peoples Union for Democratic Rights (PUDR) based
on the rejection of mercy petitions by the Governor
and the President of India.

was in a Karnataka jail and Sundar Singh was an


inmate of a prison in Uttaranchal. Sonia and Sanjeev
were awarded death penalty for killing eight members
of her family, including her parents and three children
of her brother in 2001.Gurmeet Singh was convicted
for killing 13 of his family members in 1986. Jafar
Ali murdered his wife and five daughters. Suresh and
Ramji killed five of their relatives

In all the writ petitions, the main prayer consistently


related to the issuance of a writ of declaration declaring
that execution of sentence of death pursuant to the
rejection of the mercy petitions by the President of
India was unconstitutional and to set aside the death
sentence imposed upon them by commuting the same
to imprisonment for life. Further, they also prayed for
declaration that the order passed by the Governor/
President of India rejecting their respective mercy
petitions as illegal and unenforceable.

Issues
i. Whether delay in the decision of mercy plea
was a relevant ground for commuting death
sentence to life imprisonment.

The 15 death row inmates on whose pleas the apex


court delivered its verdict were sandalwood smuggler
Veerappans aides and others. The other death row
convicts included Suresh, Ramji, Gurmeet Singh,
Praveen Kumar, Sonia and her husband Sanjeev,
Sundar Singh and Jafar Ali convicted in various
cases. While Suresh, Ramji, Gurmeet Singh and Jafar
Ali were lodged in prisons in Uttar Pradesh, former
Haryana MLA Ralu Ram Punias daughter Sonia and
her husband Sanjeev were jailed in Haryana. Praveen
BB Issue 24, January - March 2014 Feature Case

ii.

Whether death sentence could be commuted


to life sentence if the person was suffering from
mental illness

iii.

Whether Solitary confinement of a death


convict was unconstitutional

iv.

Whether a death convict and his family


members must be informed after the mercy
plea was rejected by the President or Governor

v.

Whether a death convict must be hanged


within 14 days after the rejection of mercy
petition

Issue 24, January - March 2014


International Law Constitutional Law of India - death
Sentence delay delay in determination of mercy
petitions whether this amounted to a violation of the
petitioners rights whether the death sentences could
be commuted to life imprisonment
Constitution of India
Article 72. Power of President to grant pardons,
etc. and to suspend, remit or commute sentences in
certain cases (1) The President shall have the power
to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by
a Court Martial;
(b) in all cases where the punishment or sentence is
for an offence against any law relating to a matter to
which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of
death.
(2) Nothing in sub-clause (a) of clause (1) shall affect
the power conferred by law on any officer of the Armed
Forces of the Union to suspend, remit or commute a
sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the
power to suspend, remit or commute a sentence of
death exercisable by the Governor of a State, under
any law for the time being in force.
Article 161: Power of Governor to grant pardons, etc.
and to suspend, remit or commute sentences in certain
cases The Governor of a State shall have the power
to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against
any law relating to a matter to which the executive
power of the State extends.
Article 32: Remedies for enforcement of rights
conferred by this Part
(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this Part is guaranteed
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by
this Part
(3) Without prejudice to the powers conferred on the
Supreme Court by clause ( 1 ) and ( 2 ), Parliament may
by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers

107
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution
Held:
1) The power vested in the President under Article
72 and the Governor under Article 161 of the
Constitution is a constitutional duty. As a result, it
is neither a matter of grace nor a matter of privilege
but is an important constitutional responsibility
reposed by the people in the highest authority.
The power of pardon is essentially an executive
action, which needs to be exercised in the aid of
justice and not in defiance of it. Further, it is well
settled that the power under Articles 72 and 161
of the Constitution of India was to be exercised
on the aid and advice of the Council of Ministers.
2) The right to life is the most fundamental of all
rights. The right to life, as guaranteed under
Article 21 of the Constitution of India, provides
that no person shall be deprived of his life and
liberty except in accordance with the procedure
established by law. Inasmuch as Article 21 was
available to all the persons including convicts
and continued till last breath if they establish
and proved the supervening circumstances, such
as undue delay in disposal of mercy petitions,
undoubtedly, this Court, by virtue of power under
Article 32, can commute the death sentence into
imprisonment for life. As a matter of fact, it is the
stand of the petitioners that in a petition filed under
Article 32, even without a presidential order, if
there is unexplained, long and inordinate delay in
execution of death sentence, the grievance of the
convict can be considered by this Court
3) Undue long delay in execution of sentence of
death would entitle the condemned prisoner to
approach this Court under Article 32. However,
this Court would only examine the circumstances
surrounding the delay that had occurred and
those that have ensued after sentence was finally
confirmed by the judicial process. This Court
cannot reopen the conclusion already reached
but may consider the question of inordinate delay
to decide whether the execution of sentence
should be carried out or should be altered into
imprisonment for life.
4) Keeping a convict in suspense while consideration
of his mercy petition by the President for many
years was certainly an agony for him/her. It created

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adverse physical conditions and psychological
stresses on the convict under sentence of death.
Indisputably, this Court, while considering
the rejection of the clemency petition by the
President, under Article 32 read with Article 21
of the Constitution, cannot excuse the agonizing
delay caused to the convict only on the basis of
the gravity of the crime.

5) It was clear that after the completion of the judicial


process, if the convict filed a mercy petition to
the Governor/President, it was incumbent on the
authorities to dispose of the same expeditiously.
Though no time limit can be fixed for the Governor
and the President, it was the duty of the executive
to expedite the matter at every stage, by calling
for the records, orders and documents filed in the
court, preparation of the note for approval of the
Minister concerned, and the ultimate decision of
the constitutional authorities.
6) Accordingly, if there is undue, unexplained and
inordinate delay in execution due to pendency
of mercy petitions or the executive as well as the
constitutional authorities have failed to take note
of or consider the relevant aspects, this Court is
well within its powers under Article 32 to hear
the grievance of the convict and commute the
death sentence into life imprisonment on this
ground alone however, only after satisfying that
the delay was not caused at the instance of the
accused himself. To this extent, the jurisprudence
has developed in the light of the mandate given
in our Constitution as well as various Universal
Declarations and directions issued by the United
Nations.
7) The procedure prescribed by law, which deprives
a person of his life and liberty must be just, fair
and reasonable and such procedure mandates
humane conditions of detention preventive or
punitive. In this line, although the petitioners
were sentenced to death based on the procedure
established by law, the inexplicable delay on
account of executive is inexcusable. Since it is well
established that Article 21 of the Constitution does
not end with the pronouncement of sentence but
extends to the stage of execution of that sentence,
as already asserted, prolonged delay in execution
of sentence of death has a dehumanizing effect
on the accused. Delay caused by circumstances
beyond the prisoners control mandates
commutation of death sentence.

BB Issue 24, January - March 2014 Feature Case

8) if there is undue long delay in execution of


sentence of death, the condemned prisoner is
entitled to approach this Court under Article 32
and the court is bound to examine the nature of
delay caused and circumstances that ensued after
sentence was finally confirmed by the judicial
process and to take a decision whether execution
of sentence should be carried out or should be
altered into imprisonment for life.
9) The solitary confinement, even if mollified and
modified marginally, was not sanctioned by
Section 30 of the Prisons Act for prisoners under
sentence of death. The crucial holding under
Section 30(2) was that a person was not under
sentence of death, even if the Sessions Court had
sentenced him to death subject to confirmation
by the High Court. He is not under sentence
of death even if the High Court imposes, by
confirmation or fresh appellate infliction, death
penalty, so long as an appeal to the Supreme
Court was likely to be or had been moved or was
pending. Even if this Court had awarded capital
sentence, Section 30 does not cover him so long
as his petition for mercy to the Governor and/or to
the President permitted by the Constitution, had
not been disposed of. Of course, once rejected
by the Governor and the President, and on further
application, there was no stay of execution by the
authorities; the person was under sentence of
death. During that interregnum, he attracts the
custodial segregation specified in Section 30(2),
subject to the ameliorative meaning assigned to
the provision. To be under sentence of death
means to be under a finally executable death
sentence.
10) In the absence of proper, plausible and acceptable
reasons for the delay, the delay of twelve, twenty,
and nine and a half years in considering the mercy
petitions is a relevant ground for the commutation
of death sentence into life imprisonment.
11) It is true that there is some explanation in the
affidavit filed on behalf of the State in respect
of the time taken by the Governor for rejection
of their mercy petitions, however, there was no
acceptable/adequate reason for delay of six years
at the hands of the Ministry of Home Affairs
followed by the rejection order by the President.
12) Though learned counsel has referred to the fact
that the trial court and the High Court followed
certain decisions which were later held as per

Issue 24, January - March 2014


incuriam, in view of the fact that there was undue
delay of six years which is one of the circumstances
for commutation of sentence from death to life,
we are not adverting to all other aspects.
13) The Court perused the records of the Ministry of
Home Affairs produced by learned ASG and the
summary prepared for approval of the President.
There is no specific explanation in the summary
prepared by the Ministry of Home Affairs for the
President for the delay of six years. In view of the
same and in the light of the principles enunciated
in various decisions which we have adverted to in
the earlier part of our judgment, we hold that the
petitioners have made out a case for commutation
of sentence.
14) Execution of death sentence should be carried
out only 14 days after rejection of the mercy
plea. Prison authorities must provide legal aid
to prisoners facing death sentence so that they
can approach courts for commutation of their
sentence on the ground of their illness and delay
in deciding mercy plea by the government.
Death sentence of 15 convicts commuted to life
imprisonment.
Guidelines:
259. In W.P (Crl) No 56 of 2013, Peoples Union for
Democratic Rights have pleaded for guidelines for
effective governing of the procedure of filing mercy
petitions and for the cause of the death convicts. It
is well settled law that executive action and the legal
procedure adopted to deprive a person of his life
or liberty must be fair, just and reasonable and the
protection of Article 21 of the Constitution of India
inheres in every person, even death-row prisoners, till
the very last breath of their lives. We have already seen
the provisions of various State Prison Manuals and
the actual procedure to be followed in dealing with
mercy petitions and execution of convicts. In view of
the disparities in implementing the already existing
laws, we intend to frame the following guidelines for
safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra
(supra), held that solitary or single cell confinement
prior to rejection of the mercy petition by the President
is unconstitutional. Almost all the prison Manuals
of the States provide necessary rules governing the
confinement of death convicts. The rules should not
be interpreted to run counter to the above ruling and
violate Article 21 of the Constitution.
2. Legal Aid: There is no provision in any of the Prison

109
Manuals for providing legal aid, for preparing appeals
or mercy petitions or for accessing judicial remedies
after the mercy petition has been rejected. Various
judgments of this Court have held that legal aid is a
fundamental right under Article 21. Since this Court
has also held that Article 21 rights inhere in a convict
till his last breath, even after rejection of the mercy
petition by the President, the convict can approach a
writ court for commutation of the death sentence on
the ground of supervening events, if available, and
challenge the rejection of the mercy petition and legal
aid should be provided to the convict at all stages.
Accordingly, Superintendent of Jails are directed to
intimate the rejection of mercy petitions to the nearest
Legal Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before
the President: The Government of India has framed
certain guidelines for disposal of mercy petitions filed
by the death convicts after disposal of their appeal by
the Supreme Court. As and when any such petition is
received or communicated by the State Government
after the rejection by the Governor, necessary materials
such as police records, judgment of the trial court,
the High Court and the Supreme Court and all other
connected documents should be called at once fixing
a time limit for the authorities for forwarding the same
to the Ministry of Home Affairs. Even here, though
there are instructions, we have come across that in
certain cases the Department calls for those records
in piece-meal or one by one and in the same way,
the forwarding Departments are also not adhering to
the procedure/instructions by sending all the required
materials at one stroke. This should be strictly followed
to minimize the delay. After getting all the details,
it is for the Ministry of Home Affairs to send the
recommendation/their views to the President within a
reasonable and rational time.
Even after sending the necessary particulars, if there is
no response from the office of the President, it is the
responsibility of the Ministry of Home Affairs to send
periodical reminders and to provide required materials
for early decision.
4. Communication of Rejection of Mercy Petition by
the Governor: No prison manual has any provision for
informing the prisoner or his family of the rejection of
the mercy petition by the Governor. Since the convict
has a constitutional right under Article 161 to make
a mercy petition to the Governor, he is entitled to
be informed in writing of the decision on that mercy
petition.
The rejection of the mercy petition by the Governor
should forthwith be communicated to the convict and
his family in writing or through some other mode of

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communication available.
5. Communication of Rejection of the Mercy Petition
by the President: Many, but not all, prison manuals
have provision for informing the convict and his family
members of the rejection of mercy petition by the
President. All States should inform the prisoner and
their family members of the rejection of the mercy
petition by the President. Furthermore, even where
prison manuals provide for informing the prisoner of
the rejection of the mercy petition, we have seen that
this information is always communicated orally, and
never in writing. Since the convict has a constitutional
right under Article 72 to make a mercy petition to the
President, he is entitled to be informed in writing of
the decision on that mercy petition. The rejection of
the mercy petition by the President should forthwith be
communicated to the convict and his family in writing.
6. Death convicts are entitled as a right to receive
a copy of the rejection of the mercy petition by the
President and the Governor.
7. Minimum 14 days notice for execution: Some
prison manuals do not provide for any minimum
period between the rejection of the mercy petition
being communicated to the prisoner and his family
and the scheduled date of execution. Some prison
manuals have a minimum period of 1 day, others have
a minimum period of 14 days. It is necessary that a
minimum period of 14 days be stipulated between the
receipt of communication of the rejection of the mercy
petition and the scheduled date of execution for the
following reasons:(a) It allows the prisoner to prepare himself mentally
for execution, to make his peace with god, prepare his
will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final
meeting with his family members. It also allows the
prisoners family members to make arrangements to
travel to the prison whichnmay be located at a distant
place and meet the prisoner for the last time. Without
sufficient notice of the scheduled date of execution,
the prisoners right to avail of judicial remedies will
be thwarted and they will be prevented from having
a last and final meeting with their families. It is the
obligation of the Superintendent of Jail to see that the
family members of the convict receive the message of
communication of rejection of mercy petition in time.
8. Mental Health Evaluation: We have seen that in
some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and suffering
experienced on death row. There should, therefore,
be regular mental health evaluation of all death row
convicts and appropriate medical care should be given
to those in need.
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9. Physical and Mental Health Reports: All prison


manuals give the Prison Superintendent the discretion
to stop an execution on account of the convicts
physical or mental ill health. It is, therefore, necessary
that after the mercy petition is rejected and the
execution warrant is issued, the Prison Superintendent
should satisfy himself on the basis of medical reports
by Government doctors and psychiatrists that the
prisoner is in a fit physical and mental condition to be
executed.
If the Superintendent is of the opinion that the prisoner
is not fit, he should forthwith stop the execution, and
produce the prisoner before a Medical Board for a
comprehensive evaluation and shall forward the report
of the same to the State Government for further action.
10. Furnishing documents to the convict: Most of the
death row prisoners are extremely poor and do not
have copies of their court papers, judgments, etc. These
documents are must for preparation of appeals, mercy
petitions and accessing post-mercy judicial remedies
which are available to the prisoner under Article 21
of the Constitution. Since the availability of these
documents is a necessary pre-requisite to the accessing
of these rights, it is necessary that copies of relevant
documents should be furnished to the prisoner within
a week by the prison authorities to assist in making
mercy petition and petitioning the courts.
11. Final Meeting between Prisoner and his Family:
While some prison manuals provide for a final meeting
between a condemned prisoner and his family
immediately prior to execution, many manuals do not.
Such a procedure is intrinsic to humanity and justice,
and should be followed by all prison authorities. It is
therefore, necessary for prison authorities to facilitate
and allow a final meeting between the prisoner and his
family and friends prior to his execution.
12. Post Mortem Reports: Although, none of the Jail
Manuals provide for compulsory post mortem to be
conducted on death convicts after the execution, we
think in the light of the repeated arguments by the
petitioners herein asserting that there is dearth of
experienced hangman in the country, the same must be
made obligatory. In Deena alias Deen Dayal and Ors.
vs. Union of India (1983) 4 SCC 645, the petitioners
therein challenged the constitutional validity of
Section 354(5) on the ground that hanging a convict
by rope is a cruel and barbarous method of executing
death sentence, which is violative of Article 21 of the
Constitution. This court held as follows:7. After making this observation Bhagwati, J.,
proceeds thus :
The physical pain and suffering which the execution of
the sentence of death involves is also no less cruel and

Issue 24, January - March 2014


inhuman. In India, the method of execution followed
is hanging by the rope. Electrocution or application
of lethal gas has not yet taken its place as in some of
the western countries. It is therefore with reference to
execution by hanging that I must consider whether the
sentence of death is barbaric and inhuman as entailing
physical pain and agony. It is no doubt true that the
Royal Commission on Capital Punishment 1949-53
found that hanging is the most humane method of
execution and so also in Ichikawa v.Japan, the Japanese
Supreme Court held that execution by hanging does not
correspond to cruel punishment inhibited by Article 36
of the Japanese Constitution. But whether amongst all
the methods of execution, hanging is the most humane
or in view of the Japanese Supreme Court, hanging is
not cruel punishment within the meaning of Article
36, one thing is clear that hanging is undoubtedly
unaccompanied by intense physical torture and pain.
(emphasis supplied).
81. Having given our most anxious consideration
to the central point of inquiry, we have come to the
conclusion that, on the basis of the material to which
we have referred extensively, the State has discharged
the heavy burden which lies upon it to prove that the
method of hanging prescribed by Section 354(5) of the
CrPC does not violate the guarantee right contained
in Article 21 of the Constitution. The material before
us shows that the system of hanging which is now
in vogue consists of a mechanism which is easy to
assemble. The preliminaries to the act of hanging are
quick and simple and they are free from anything that
would unnecessarily sharpen the poignancy of the
prisoners apprehension. The chances of an accident
during the course of hanging can safely be excluded.
The method is a quick and certain means of executing
the extreme penalty of law. It eliminates the possibility
of a lingering death. Unconsciousness supervenes
almost instantaneously after the process is set in
motion and the death of the prisoner follows as a result
of the dislocation of the cervical vertebrae. The system
of hanging, as now used, avoids to the full extent the
chances of strangulation which results on account of
too short a drop or of decapitation which results on
account of too long a drop. The system is consistent,
with the obligation of the State to ensure that the
process of execution is conducted with decency and
decorum without involving degradation of brutality of
any kind.
Relevance to the Kenyan Situation
Constitution of Kenya
Article 133 of the Constitution provides for the Power

111
of mercy for convicted person. The article provides
that:
133. Power of mercy
(1) On the petition of any person, the President may
exercise a power of mercy in accordance with the
advice of the Advisory Committee established under
clause (2), by-(a) granting a free or conditional pardon to a person
convicted of an offence;
(b) postponing the carrying out of a punishment,
either for a specified or indefinite period;
(c) substituting a less severe form of punishment; or
(d) remitting all or part of a punishment.
(2) There shall be an Advisory Committee on the
Power of Mercy, comprising-(a) the Attorney-General;
(b) the Cabinet Secretary responsible for correctional
services; and
(c) at least five other members as prescribed by an Act
of Parliament, none of whom may be a State officer or
in public service.
(3) Parliament shall enact legislation to provide for-(a) the tenure of the members of the Advisory
Committee;
(b) the procedure of the Advisory Committee; and
(c) criteria that shall be applied by the Advisory
Committee in formulating its advice.
(4) The Advisory Committee may take into account
the views of the victims of the offence in respect of
which it is considering making recommendations to
the President.
Power of Mercy Act, 2011
The Power of Mercy Act, 2011hasgenerously
provisioned that the operations of the Committee
be conducted under the most transparent and
accountable procedures and contains quite a few
convict-friendly legislation as well. Part II of the Act:
Anyone may lodge such a petition on behalf of
another, and such a petition is valid even if it is
not professionally done - a truly convict-friendly
provision:
19. (1) Any person may, subject to the
Constitution and this Act, petition the
President, through the Committee, to exercise
the power of mercy and grant any relief
specified in Article 133(1) of the Constitution.
(3) For the avoidance of doubt, a petition that
provides the requisite information shall not
be incompetent only for the reason that (a)
it does not accord strictly with the prescribed
format; or (b) it has been commenced in

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person or through a representative other than
an advocate.

It is incumbent upon the Advisory Committee to


facilitate the ability of a convict to lodge his/her
petition:
20. (4) A petition under this section may be
lodged by electronic means.
(5) The Cabinet Secretary and Committee shall
ensure that the relevant forms and information
are supplied to all the correctional facilities.
Furthermore, such petitions must be considered
promptly, always, without delay and the same
reported to the applicant:
23. (1) The President shall, within thirty days
of receipt of the recommendations by the
Committee, consider the recommendations
and either approve or reject the petition.
(2) Where the President approves or rejects
a recommendation of the Committee
pursuant to subsection (1), the Committee
shall, in writing, notify the petitioner or their
representative of the Presidents decision
within seven days.

(3) The Committee shall cause the approved


petitions under subsection (1) to be published,
in the Gazette, within twenty-one days of the
receipt of the Presidents decision.
The Advisory Committee must make public its
workings. The decision of the Committee is not final.
A rejected petition can be appealed against:
24. (1) ....... a person may, after the rejection
of a petition ......., re-petition only once and
on new grounds, to the President through the
Committee.
Should the vote by Members of the
Committee on a petition before them result in
a tie, the petitioner has the benefit of doubt:
28. (1) The recommendations of the
Committee shall be in accordance with
the opinion of a majority of the members
reviewing a petition.
(2) If the members are equally divided in
opinion, a recommendation for the grant of
the relief sought shall be considered as having
been affirmed.

The 1-year limitation period in Article 12 of the Convention on the Civil Aspects of
International Child Abduction is not subject to equitable tolling.
United States Supreme Court

Manuel Jose Lozano V. Diana Lucia Montoya Alvarez


On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
5th March 2014
Reported by Vellah Kedogo
Brief Facts
Respondent and Petitioner resided with their daughter
in London until November 2008, when Respondent
left with the child for a womens shelter. In July 2009,
respondent and the child left the United Kingdom and
ultimately settled in New York. Petitioner did not locate
them until November 2010, more than 16 months
after they had left the United Kingdom. At that point,
he filed a Petition for Return of Child pursuant to the
Convention on the Civil Aspects of International Child
Abduction (1980 Hague Convention) in the Southern
District of New York. Finding that the petition was filed
more than one year after removal, the court denied the
petition on the basis that the child was now settled in
New York. It also held that the 1-year period could not
be extended by equitable tolling. The Second Circuit
BB Issue 24, January - March 2014 Feature Case

affirmed. He brought this appeal to the Supreme Court


arguing that Article 12 of the Hague Convention of
1980 was subject to equitable tolling.
Issue
Whether the 1-year period limitation under Article 12
of the Convention on the Civil Aspects of International
Child Abduction was subject to equitable tolling
Article 12 of the 1980 Hague Convection
Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial
or administrative authority of the Contracting State
where the child is, a period of less than one year
has elapsed from the date of the wrongful removal
or retention, the authority concerned shall order the

Issue 24, January - March 2014


return of the child forthwith.
The judicial or administrative authority, even where
the proceedings have been commenced after the
expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now
settled in its new environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has
been taken to another State, it may stay the proceedings
or dismiss the application for the return of the child.
International law- treaties-interpretation of treatiesinterpretation of Convention on the Civil Aspects
of International Child Abduction (1980 Hague
Convention-equitable tolling-whether the principle of
equitable tolling could be deployed when interpreting
international treaties- Article 12 of 1980 Hague
Convention
International law- treaties-interpretation of treatiesapplication of equitable tolling to treaties- equitable
tolling of federal statutes of limitations- whether
equitable tolling applied if the period in question was
not a statute of limitations
Equitable tolling, legal definition
Equitable tolling is a legal principle evolved from
the common law of equity. It states that the statute of
limitations will not bar a claim if the plaintiff, despite
reasonable care and diligent efforts, did not discover the
injury until after the limitations period had expired. It
means only that the running of the statute is suspended,
not that the limitations period begins over again. Thus,
even if the limitations period was suspended during
the pendency of the initial suit, it would have resumed
after the first suit was dismissed. Equitable tolling also
means that a person is not required to sue within the
statutory period if he cannot in the circumstances
reasonably be expected to do so.
HELD
JUSTICE THOMAS delivering the opinion of the Court
1. Equitable tolling paused the running of, or tolled,
a statute of limitations when a litigant had pursued
his rights diligently but some extraordinary
circumstance prevented him from bringing a
timely action.
2. The Hague Convention was a treaty, not a federal
statute. Treaties, were primarily compact[s]
between independent nations and the Courts duty

113
was to ascertain the intent of the parties by looking
to the documents text and context.
3. The parties to the Hague Convention did not intend
equitable tolling to apply to the 1-year period in
Article 12. Unlike federal statutes of limitations,
the Convention was not adopted against a shared
background of equitable tolling. Even if the
Convention was subject to a presumption that
statutes of limitations may be tolled, the 1-year
period in Article 12 was not a statute of limitations.
Therefore absent a presumption in favor of
equitable tolling, nothing in the Convention
warranted tolling the1-year period.
4. There was no general presumption that equitable
tolling applied to treaties. Congress was presumed
to incorporate equitable tolling into federal statutes
of limitations because equitable tolling was part
of the established backdrop of American law. It
did not follow, however, that such background
principles of United States law to contexts could
be exported outside their jurisprudential home.
5. Even if a background principle was relevant to the
interpretation of federal statutes, it had no proper
role in the interpretation of treaties unless that
principle was shared by the parties to an agreement
among sovereign powers. (Zicherman v. Korean
Air Lines Co., 516 U. S. 217, 226 (1996).
6. Petitioner had not identified a background
principle of equitable tolling that was shared by the
signatories to the Hague Convention. The American
presumption that federal statutes of limitations can
be equitably tolled therefore did not apply to the
multilateral treaty.
7. It did not matter that Congress had enacted a
statute to implement the Hague Convention.
International Child Abduction Remedies Act
(ICARA) did not address the availability of
equitable tolling. Nor did it purport to alter the
Convention. In fact, Congress explicitly recognized
the need for uniform international interpretation
of the Convention. Congress mere enactment of
implementing legislation did not somehow import
background principles of American law into the
treaty interpretation process, thereby altering the
understanding of the treaty itself.
8. Even if the presumption in favor of equitable tolling
had force outside of domestic law, it could only be
applied to statutes of limitations. The 1-year period
in Article 12 was not a statute of limitations.

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9. Without a presumption of equitable tolling, the


Convention did not support extending the 1-year
period during concealment. Article 12 explicitly
provided that the 1-year period to commence on
the date of the wrongful removal or retention,
and made no provision for an extension of that
period.
10. Because the drafters did not choose to delay the
periods commencement until discovery of the
childs locationthe obvious alternative to the
date of wrongful removalthe natural implication
was that they did not intend to commence the
period on that later date.
11. The contention that equitable tolling was
nonetheless consistent with the Conventions
goal of deterring child abductions, but the
Convention did not pursue that goal at any cost,
having recognized that the return remedy may be
overcome by, e.g., the childs interest in settlement.
The abducting parent did not necessarily profit by
running out the clock, since both American courts
and other Convention signatories had considered
concealment as a factor in determining whether a
child was settled. Equitable tolling was therefore
neither required by the Convention nor the only
available means to advance its objectives
12. The contention that there was room for United
States courts to apply equitable tolling because
the Convention recognized that other sources of
law may permit signatory states to return abducted
children even when return was not available
or required by the Convention. However this
contention mistook the nature of equitable tolling,
which may be applied to the Hague Convention
only if the treaty drafters so intended. For the
foregoing reason, they did not.
JUSTICE ALITO, with whom JUSTICE BREYER and
JUS-TICE SOTOMAYOR join, concurring
13. The Convention was designed to protect the
interests of children and their parents. Much of the
Convention could be understood as an attempt to
balance the various interests of children and nonabducting parents when a parent abducted a child
from the childs country of habitual residence.
14. If the petition for return was brought after a year
had elapsed, the court had to determine whether
the child had become settled in the new country;
and if this had occurred, the court needed not
order return.
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15. Opening the door to consideration of the childs


attachment to the new country did not mean
closing the door to evaluating all other interests of
the child and the non-abducting parent. The fact
that, after one year, a childs needed for stability
required a court to take into account the childs
attachment to the new country did not mean that
such attachment became the only factor worth
considering when evaluating a petition for return.
16. Nothing in Article 12 prohibited courts from taking
other factors into account. To the contrary, the
Convention explicitly permitted them to do so.
Article 18 provided that[t]he provisions of this
Chapter [including Article 12] do not limit the
power of a judicial or administrative authority to
order the return of the child at any time. A court
thus had power to order the childs return in the
exercise of its sound discretion even where Article
12s obligation to order such return no longer
applied.
17. Even after a year had elapsed and the child had
become settled in the new environment, a variety
of factors could outweigh the childs interest in
remaining in the new country, such as the childs
interest in returning to his or her original country
of residence (with which he or she may still have
had close ties, despite having become settled in
the new country); the childs need for contact with
the non-abducting parent, who was exercising
custody when the abduction occurred; the nonabducting parents interest in exercising the
custody to which he or she was legally entitled; the
need to discourage inequitable conduct (such as
concealment) by abducting parents; and the need
to deter international abductions generally.
18. Article 12 placed no limit on Article 18s grant of
discretionary power to order return. Reading the
Convention to impose a prohibition on return would
be highly anomalous, given that the Convention
was based on the principle that the best interests of
the child are well served when decisions regarding
custody rights are made in the country of habitual
residence.
19. Equitable discretion to order return of a settled
child was particularly important in light of the fact
that the Convention did not provide for equitable
tolling of Article 12s 1-year period.
20. Equitable discretion was also a far better tool than
equitable tolling with which to address the dangers

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Issue 24, January - March 2014


of concealment. Equitable tolling would have
required return every time the abducting parent
conceals the child and thereby preventing the
non-abducting parent from filing a return petition
within a year, regardless of how settled in the new
country the child had become.
21. When a court exercised its equitable discretion,
it may consider other factors in addition to
concealment. While concealment was a significant
factor and should weigh heavily in a courts
analysis, in appropriate cases it could be overcome
by circumstances such as the extended length of the
childs residence in this country, any strong ties the
child had formed here, and the childs attenuated
connections to his or her former country.
22. The power of a court, in the exercise of its sound
discretion, to return even a settled child prevents
the inapplicability of equitable tolling to Article
12s 1-year limit from encouraging parents to flee
to the United States and conceal their children
here.
The appeal was dismissed
Relevance to Kenya
Kenya has not yet ratified the Hague Convention. In
the case Shabbir Ali Jusab v. Anaar Osman Gamrai and
the Hon. Attorney General, Civil Application No Sup
1 of 2012 the Family Division of the High Court in
London made a child a ward of court and ordered the
Kenyan mother to return the child to England. Legal
proceedings were issued in Kenya, both before the
Childrens Court and the High Court. There was conflict
of jurisdiction between the English and Kenya courts,
as well as problems surrounding the applicable law,

nationality of the child, the best interest of the child,


the rights of the respective parents and their parental
responsibilities. This case is yet to be settled on the law
to be applied. That is whether though Kenya has not
ratified the Convention on international abduction it
will apply the principles accorded in the Convention.
The decision of this case will set the precedent which
can be followed in other cases in resolving the
procedure and manner of determining international
abduction cases where Kenya is yet not a signatory to
the Hague Convention of 1980. Therefore the decision
of the United State Supreme Court will offer guidance
when interpreting issues of international abductions.
Nevertheless the court has to consider the spirit and
principles of the Hague Convention despite the fact
that the Children Act of 2001says nothing about
children abduction.
The principle is that when a parent seeks the return of a
child outside the scope of the 1980 Hague Convention,
or another international or regional instrument, the
court seized will have to decide how to balance the
interests of the child with the general international
policy of combating the illicit transfer and non-return
of children abroad.
The Limitations of Actions Act (CAP 22) of Kenya under
Part III provides for the extension of the periods of
limitation in the case of disability, acknowledgement,
part payment, fraud, mistake and ignorance of material
facts. However, in the doctrine of equitable tolling
running of the statute is suspended, not that the
limitations period begins over again. Thus, even if the
limitations period was suspended during the pendency
of the initial suit, it would have resumed after the first
suit was dismissed.

EACJ Dismisses Case on Alleged Arrest and Detention of Kenyan Advocate in Uganda
The East African Court of Justice, Arusha First Instance Division
Mbugua Mureithi V. The Attorney General of the Republic Of Uganda & 2 Others
Reference No 11 of 2011.
Before: Jean Bosco Butasi (PJ) John Mkwawa, J and Faustin Ntezilyayo J.
24th February 2014
Reported by Vellah Kedogo

Brief Facts
The Applicant an Advocate of the High Court of
Kenya arrived in Uganda on 15th September, 2010
seeking to represent his six clients who had been
arrested for alleged act of terrorist bombings. Upon
arrival at Entebbe Airport, he was arrested, detained
incommunicado and interrogated by agents of the 1st

Respondent (The Attorney General Republic of Uganda)


in connivance with the 2nd Respondent (The Attorney
General Republic of Kenya). On 18th September, 2010,
he was deported back to Kenya. This according to the
Applicant was done without reason as to his arrest,
detention, interrogation and subsequent deportation.
The Applicant made a reference No. 11 of 2011( the

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116

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reference) to the East African Court of Justice(EACJ) on


30th December, 2011 on grounds that the respondents
had violated his rights through unlawful and unjustified
arrest without warrant, search and confiscation of his
belongings; interrogation by the respondents forcing
him to disclose his clients instructions; forcible
deportation of the applicant without due regard to
the legal process; failure to give reasons related to his
mistreatment. He contended that the above acts of the
Respondents were in violation of Articles 6(d), 7(2) and
104(1) of the Treaty, Articles 2(4)(b), 4(5), 5(2)(b), 7(2),
10(3), 11(1) and 12(1) of the East African Common
Market Protocol and Articles 2, 5, 6, 7, 8, 9, 10, 11
and 12 of the African Charter on Human and Peoples
Rights and Principles 16, 17, 18 and 21 of the UN
Basic Principles on the Role of Lawyers.
The 1st respondent on the other hand denied the
allegations contending that the Applicant was involved
in terrorism, facilitating by way of being a conduit
for funds directed towards terrorist operations and
murder over 70 Ugandans on 11th July, 2010. They
also claimed that at the time of his arrest the applicant
was informed of the preferred charges against him and
was taken for interrogation. They further claimed that
contrary to the applicants allegations of deportation,
the applicant voluntarily returned to Kenya on the
alleged date and that his passport was stamped with
an exit stamp.
The 2nd Respondent expressed that he was not aware
of the alleged arrest, detention, interrogation and
deportation.
Issues:
1. Whether the East African Court of Justice had
jurisdiction to determine references on infringement
of Human Rights
2. Whether the reference was time-barred.
International Law- treaties-interpretation of treatiesinterpretation of Treaty for the Establishment of the
East African Community-article 27 of the Treaty for the
Establishment of the East African Community
International Law- jurisdiction-East African Court of
Justice-Whether the East African Court of Justice had
jurisdiction to determine references on infringement
of Human Rights article 27(2) of Treaty for the
Establishment of the East African Community
International Law-limitation of actions-whether the
reference on infringement of human rights was time
barred- article 30(2) of Treaty for the Establishment of
the East African Community
Treaty for the Establishment of the East African
BB Issue 24, January - March 2014 Feature Case

Community
Article 23
1) The Court shall be a judicial body which shall
ensure the adherence to law in the interpretation
and application of and compliance with this Treaty;
2) The Court shall consist of First Instance Division
and an Appellate Division;
3) The First Instance Division shall have jurisdiction
to hear and determine, at first instance, subject
to a right of appeal to the Appellate Division
under Article 35A, any matter before the Court in
accordance with this Treaty.
Article 27
1) The Court shall initially have jurisdiction over the
interpretation and application of this Treaty
2) The Court shall have such other original,
appellate, human rights and other jurisdiction as
will be determined by the Counsel at a suitable
subsequent date. To this end, the Partner States
shall conclude a Protocol to operationalize the
extended jurisdiction.
Article 30
1) Subject to the Provisions of Article 27 of this Treaty,
any person who is resident in a Partner State may
refer for determination by the Court, the legality
of any Act, directive, decision or action of a
Partner State or an institution of the Community
on the grounds that such Act, regulation, directive,
decision or action is unlawful or is an infringement
of the provisions of this Treaty;
2) The proceedings provided for in this Article
shall be instituted within two months of the
enactment, publication, directive, decision or
action complained of, or in the absence thereof, of
the day in which it came to the knowledge of the
complainant, as the case may be.
HELD
1. Treaty for the Establishment of the East African
Community was an International Treaty subject
to International Law of Treaties and in particular,
Article 31(1) of the Vienna Convention on the
Law of Treaties which set up the general Rule of
Interpretation of Treaties as, A Treaty shall be
interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the
Treaty in their context and in the light of its object
and purpose.
2. Article 27 of the Treaty provided for the jurisdiction
of the Court. It was not in dispute that East African
Court of Justice (EACJ) had jurisdiction over
interpretation and application of the Treaty.
3. The contention by the Respondents that the

Issue 24, January - March 2014

4.

5.

6.

7.

Applicant was invoking the Human Rights


jurisdiction was a speculation that could not
stand. As long as the Protocol to operationalize
the extended jurisdiction was not concluded,
EACJ was not vested with jurisdiction to entertain
Human Rights matters. However, as to whether
the functionality of Article 30(1) of the Treaty
was subject to the provisions of Article 27(2), its
misinterpretation could not be backed. A reference
under Article 30 of the Treaty was to be construed
as an action to challenge the legality under the
Treaty of an activity of a Partner State and/or an
institution of the Community.
It was not in dispute that the EACJ had jurisdiction to
interpret each Article of the Treaty. The inclusion of
allegations of human rights violation in a reference
would never distract EACJ from exercising its
interpretative jurisdiction.
A reference challenging any unlawfulness or
infringement provided for under Article 30(1) must
be instituted within a period of two months of
their occurrence or in the absence thereof, when
the complainant came to know the Act or action
complained of.
The Applicant took exactly one year, three months
and twelve days to file the Reference instead of
two months prescribed by the Treaty. The EACJ
was not told what prevented the Applicant to file
his Reference between 18th September, 2010 and
18th December, 2010 that to say, two months as
prescribed by the Treaty.
The Applicant could not argue that he was not
furnished with full material to crystallize his cause
of action. Indeed, it had been established by EACJ
that an alleged infringement of the provisions of
the Treaty would give rise through interpretation of
the Treaty under Article 27(1) to a cause of action.

117
8. EACJ was bound by the Law (Treaty) and had to take
cognizance of the fact of the limitation. Therefore,
the Reference was time-barred.
Reference dismissed.
Since the reference was time barred, the court refrained
from entertaining the issue on the remedies sought by
the applicant
Each party to bear its own costs
Relevance to the Kenyan Situation
Kenya is a member state of the East African
Community (EAC), and by virtue of Article 2(5),
(6) of the Constitution of Kenya, it is bound by the
Treaty for the Establishment of the East African
Community .The applicant, being Kenyan is also
bound by the provisions of the treaty by virtue of
his citizenship.
The Constitution provides for the bill of rights
which clearly states out the fundamental rights
and freedoms one is entitled to. It also provides for
redress mechanisms for violations of human rights
of its citizens. It however does not limit as to time
an application to seek redress for human rights
infringement. In the absence of a statutory limitation
in place, no limitation period is applicable.
The treaty on the other hand bars applications for
redress lodged past the prescribed two months
under the treaty. It does not give the court power
to condone, waive or modify the prescribed limit
for any reason.
Kenya as a member state to the EAC should
together with the other member states speed up
the conclusion of a Protocol to operationalize
the extended jurisdiction of EACJ to adjudicate
violations of human rights in the region.

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When a licensee seeks a declaratory judgment against a patentee to establish that


there was no infringement, the burden of proving infringement remains with the
patentee.
Supreme Court of the United States
Medtronic, Inc. V. Mirowski Family Ventures, Llc
Certiorari to the United States Court Of Appeals for the Federal Circuit
Justice Breyer
January 22, 2014
Reported by Vellah Kedogo
Brief facts
The petitioner a company that designed and sold
medical services entered into an agreement with the
defendant who owned patents relating to implantable
heart stimulators. The licensing agreement permitted
the petitioner to practice certain patents in exchange
for royalty payments, and that specified procedures to
identify products covered by the license and to resolve
disputes between the parties.
Pursuant to those procedures, the defendant notified
petitioner of its belief that several of their products
infringed the licensed patents. The petitioner challenged
that assertion of infringement in a declaratory judgment
action, while accumulating disputed royalties in an
escrow account for distribution. The District Court
concluded that the defendant, as the party asserting
infringement, had the burden of proving infringement
and had not met that burden. The Federal Circuit
disagreed. It acknowledged that a patentee normally
bears the burden of proof, but concluded that where
the patentee is a declaratory judgment defendant
and is foreclosed from asserting an infringement
counterclaim by the continued existence of a licensing
agreement, the party seeking the declaratory judgment
has the burden of persuasion.
Issue
1. Whether the burden of proof shifts when the
patentee is a defendant in a declaratory judgment
action, and the plaintiff seeks a judgment that he
did not infringe the patent.
BB Issue 24, January - March 2014 Feature Case

Jurisdiction- jurisdiction of the Federal Circuit- whether


the Federal Circuit had jurisdiction over the subject
matter-whether the action was characterized as one
arising under an Act of Congress relating to patents- 28
United States Constitution section 1338(a)
Evidence-burden of proof- shifting of burden of proofwhether the burden of proof shifts when the patentee
is a defendant in a declaratory judgment action- that
when a licensee seeks a declaratory judgment against
a patentee to establish that there was no infringement,
the burden of proving infringement remains with
the patentee section 1338(a) of United States
Constitution
International Intellectual Property law -infringementinfringement of patents-burden of proof in proving
infringement of a patent-whether burden of proof shifts
in a declaratory judgment- that the burden of proving
infringement of a patent remains with the patentee
28 United States Constitution section1338(a)
(a) The district courts shall have original jurisdiction
of any civil action arising under any Act of Congress
relating to patents, plant variety protection, copyrights
and trademarks. No State court shall have jurisdiction
over any claim for relief arising under any Act of
Congress relating to patents, plant variety protection,
or copyrights. For purposes of this subsection, the term
State includes any State of the United States, the
District of Columbia, the Commonwealth of Puerto

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Rico, the United States Virgin Islands, American Samoa,
Guam, and the Northern Mariana Islands.
28 United State Code sections 1295(a)
(a) The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction
(1) of an appeal from a final decision of a district court
of the United States, the District Court of Guam, the
District Court of the Virgin Islands, or the District Court
of the Northern Mariana Islands, in any civil action
arising under, or in any civil action in which a party
has asserted a compulsory counterclaim arising under,
any Act of Congress relating to patents or plant variety
protection
HELD
1. The Declaratory Judgment Act did not extend the
jurisdiction of the federal courts. However federal
courts, when determining declaratory judgment
jurisdiction, often looked to the character of the
threatened action. That is whether a coercive
action brought by declaratory judgment would
necessarily present a federal question.
2. The patent licensing agreement specified that, if the
petitioner stopped paying royalties, the defendant
could terminate the contract and bring an ordinary
patent infringement action. Such an action would
arise under federal patent law because federal
patent law created the cause of action.
3. The relevant question concerned the nature of the
threatened action in the absence of the declaratory
judgment suit. The petitioner believed and sought
to establish in the declaratory judgment suit that
it did not owe royalties because its products were
not fringing any patent. If the petitioner were to act
on that belief the defendant could terminate the
license and bring an ordinary federal patent law
action for infringement.
4. The hypothetical threatened action was properly
characterized as an action arising under an Act of
Congress relating to patents.
5. In a licensees declaratory judgment action, the
burden of proving infringement should remain

with the patentee. To shift the burden depending


upon the form of the action could create post
litigation uncertainty about the scope of the patent.
If the burden shifts, the patentee might lose that
action because, the evidence being inconclusive,
he failed to prove infringement.
6. To shift the burden could create unnecessary
complexity by making it difficult for the licensee
to understand upon just what theory the patentees
infringement claim rests. A complex patent could
contain many pages of claims and limitations. A
patent holder is in a better position than an alleged
infringer to know, and to be able to point out, just
where, how, and why a product (or process) infringes
a claim of that patent. Until he does so, however,
the alleged infringer may have to work in the dark,
seeking, in his declaratory judgment complaint, to
negate every conceivable infringement theory.
7. The Federal Circuits burden shifting rule did
not deprive the petitioner of the right to seek a
declaratory judgment. However it did create a
significant obstacle to use of that action. It made the
declaratory judgment procedure disadvantageous.
To that extent it recreated the dilemma that the
Declaratory Judgment Act sought to avoid.
The judgment of the Federal Circuit was reversed.

Cases

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