CATHOLIC UNIVERSITY OF EASTERN AFRICA

DEPARTMENT OF PUBLIC LAW

CUEA CLS 122 CONSTITUTIONAL PRACTICE

SEPTEMBER TO DECEMBER 2018

WRITTEN EXAMINATION (MARKING SCHEME)

Candidates answered question one and two other questions of their choice. Candidates were allowed to use a
clean copy of the Constitution of Kenya 2010. Accordingly they are expected to cite relevant provisions of the
constitution. Students were also asked to read a number of cases that touch on the questions. All the cases were
the subject of class presentations which counted as a CAT. It is expected that the students must show familiarity
with the applicable case law. Marks are therefore awarded for effective use Law of case law and the
Constitution of Kenya 2010.

These are model answers. They are a, in many cases, substantially more detailed than would be possible for a
candidate at this level in the context of a two hour examination. But the thrust of the candidates answer must
reflect the model answers. The examiner used a standard 2,3 or 4 point Likert scale (depending on the allocated
marks) to compare the answer with the model and graded accordingly.

The question posed was, how well does the candidates answer compare with the model answer in terms of
content, reasoning and use of case law and statute law? The answers were within the range disagree; somewhat
agree; agree; strongly agree in a 4 point Likert scale and modified mutatis mutandis for 2 or 3 point scales.
Generally speaking the lowest mark in a question attracting 5 marks and above would be 1. Zero mark would be
awarded only for an incurably bad answer.

Question 1

a) The Kenyan constitution 2010 has been described as a ‘transformative’ constitution. What are the
implications of that description for constitutional interpretation and enforcement in Kenya? (5 Marks)

The transformative constitution is to be distinguished from the classical constitution. The classical
constitution concerned itself only with the allocation and control of state power. Even those classical
constitutions with fairly progressive Bills of Rights focused mainly on checking the excercise of state
power against the individual by setting boundaries on individual rights that the state was forbidden
from crossing.
The transformative constitution is on the other hand an instrument for driving social political and
economic change. Emphasis is placed on constitutional values and the rule of law, not the formalistic
version but the modern version which speaks not only to formal but also to substantive aspects of the
rule of law.
Ulrich Karpen in ‘The Constitution of the Federal Republic of Germany’ distinguishes between the
two “…the value –oriented, concerned with intensely human and humane aspirations of personality,
conscience and freedom; the structure-oriented, concerned with vastly more mundane and mechanical
matters like territorial boundaries, local government, institutional arrangements.”
Examples of countries with ‘transformative constitutions are Germany, South Africa and Kenya.
Examples of countries with classical constitutions even with progressive bills of rights are the US and
Kenya under the independence constitution.
A transformative constitution necessarily implies a transformative adjudication of the same. The
consequence of a transformative constitution is that constitutional interpretation must necessarily be
purposive. The constitution of Kenya at articles 20(3) and 259 compels a purposive and progressive
interpretation of the constitution and gives the court broad powers to fill in the gaps left by legislation.
The courts have variously described the constitution of Kenya as transformative and therefore requiring
a progressive interpretation
Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another Constitutional

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 Petition No. 234 OF 2017 [2017] eKLR, the High Court said ‘Our Constitution, it has been hailed as
being a transformative Constitution since as opposed to a structural Constitution, it is a value-oriented
one. Its interpretation and application must therefore not be a mechanical one but must be guided by
the spirit and the soul of the Constitution itself as ingrained in the national values and principles of
governance espoused in the preamble and inter alia Article 10 of the Constitution.

The Supreme Court in The Matter of the Principle of Gender Representation In the National Assembly
and the Senate, SC Advisory Opinion No. 2 of 2012 held that:

“A consideration of different constitutions shows that they are often written in different styles and
modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express
safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations
of general principles and statements of policy. Such principles or policy declarations signify a value
system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their
affairs and interact among themselves and with their public institutions. Where a Constitution takes
such a fused form in terms, we believe a Court of law ought to keep an open mind while interpreting its
provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the
development of both the prescribed norm and the declared principle or policy; and care should be taken
not to substitute one for the other.”

Per Ojwang, JSC, in Joseph Kimani Gathungu vs. Attorney General & 5 Others Constitutional
Reference No. 12 of 2010:“A scrutiny of several Constitutions Kenya has had since independence
shows that, whereas the earlier ones were designed as little more than a regulatory formula for State
affairs, the Constitution of 2010 is dominated by a “social orientation”, and as its main theme, “rights,
welfare, empowerment”, and the Constitution offers these values as the reference-point in governance
functions.”

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Sup.
Ct. Advisory Opinion Appl. No. 2 of 2012 at para 54:“Certain provisions of the Constitution of Kenya
have to be perceived in the context of such variable ground situations, and of such open texture in their
scope for necessary public actions.”

Speaker of The Senate & Another vs. Hon. Attorney-General & Another & 3 Others Advisory Opinion
Reference No. 2 of 2013 [2013] EKLR where it expressed itself as follows: “Kenya’s Constitution of
2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades
which essentially sought the control and legitimization of public power, the avowed goal of today’s
Constitution is to institute social change and reform, through values such as social justice, equality,
devolution, human rights, rule of law, freedom and democracy. This is clear right from the preambular
clause which premises the new Constitution on – “RECOGNISING the aspirations of all Kenyans for a
government based on the essential values of human rights, equality, freedom, democracy, social justice
and the rule of law.” And the principle is fleshed out in Article 10 of the Constitution, which specifies
the “national values and principles of governance”, and more particularly in Chapter Four (Articles 19-
59) on the Bill of Rights, and Chapter Eleven (Articles 174-200) on devolved government. The
transformative concept, in operational terms, reconfigures the interplays between the States
majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance,
consistent with dominant perceptions of legitimacy, be achieved. A depiction of this scenario has been
made in relation to the unique processes of constitution-building in South Africa, a country that was
emerging from an entrenched racialist governance system. Karl Klare, in his article, “Legal Culture and
Transformative Constitutionalism,” South African Journal of Human Rights, Vol. 14 (1998), 146 thus
wrote [at p.147]: “At the most superficial level, South Africans have chosen to compromise the
supremacy of Parliament, and correspondingly to increase the power of judges, each to an as-yet
unknowable extent.” The scholar states the object of this South African choice: “By transformative
constitutionalism I mean a long-term project of constitutional enactment, interpretation, and

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 enforcement committed…to transforming a country’s political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism
connotes an enterprise of inducing large-scale social change through non-violent political processes
grounded in law.” The history of political change in South Africa will remain highly relevant for those
African countries, like Kenya, seeking to evolve democratic constitutional systems out of a past of
skewed and repressive governance. And by the settled technique of the comparative method in law, we
draw from that country’s achievements in constitutional precedent. We in this Court, conceive of
today’s constitutional principles as incorporating the transformative ideals of the Constitution of 2010”

b) In the current debate on the need for a referendum there are proposals for a parliamentary system of
Government. Explain the advantages and disadvantages of a parliamentary executive structure for a
country like Kenya (5 Marks)

NB Some students might approach the question by contrasting parliamentary systems with
presidential systems. Others may go directly to the advantages and disadvantages of
parliamentary systems

Advantages of presidential systems

1. One of the advantages of a presidential system is that the head of state is usually elected
through a direct mandate. In terms of democracy, this makes the president's authority more
legitimate as he is elected directly by the people as oppose to being appointed indirectly.
2. Another advantage of a presidential system is the stability it brings as presidents are usually
elected to fixed terms while a prime minister’s government can fall at anytime.
3. A presidential system allows for the separation of powers as the legislature is a completely
different structure and institution. This allows a system of checks and balances to be created,
allowing one to monitor the other.
4. Speed and decisiveness can be seen as a positive characteristic of a presidential system, as
presidents usually have stronger constitutional powers allowing them to spearhead reform and
enact change swiftly.

Disadvantages of a presidential system

1. Disadvantages to a presidential system include tendencies towards authoritarianism. Because

of the overarching power given to one person, presidential systems could quickly transform
into authoritarian regimes if circumstances permit. The centralization of authority could lead
to the president becoming a more influential figure in society.
2. Separation of powers is also seen as a disadvantage of the presidential system as it might
create gridlock and stalemates within the government as different arms of government flex
their muscles against each other.
3. There are more impediments to leadership change in a presidential system as it can be more
difficult to remove an unsuitable president from office before her term is concluded, creating a
potential situation where an idol or unhelpful president could not be removed and be replaced
a better alternative.

Advantages of parliamentary systems

1. Conversely, one advantage of a parliamentary system is that it’s faster and easier to pass
legislation. This is because the executive branch is part of the legislative branch and is

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 dependent upon the direct or indirect support of it as it usually comprised of members of the
legislature. This adds to the government’s ability to pass legislation more quickly, as it is rare
for a majority government to have their own legislation defeated, as parliamentary system
usually have greater party discipline.
2. Another advantage of a parliamentary system is that power is more evenly diverged.
Constitutionally, the prime minister rarely has such high importance of a president. An
example of this is how parliamentary systems allow MPs to directly question the prime
minister and his government. Also, lower individual importance on the prime minster position
can be seen through elections tendencies as there is a higher focus on political party ideas than
on the actual person.
3. Lastly, the advantage of the government technically being able to dissolve at any time allows
the government to be more accountable and viable. This allows parliament to replace a
government or a prime minister if he or she has been lacklustre or detrimental to the country.
This allows for practicable governments to continue governing while ineffective ones can be
disposed of.

Disadvantages of a parliamentary system

1. A distinct disadvantage to a parliamentary system is that the head of government is usually not
directly elected. This reduces opportunities participatory governance and accountability
2. Because of the shortage in the separation of powers, parliamentary systems could instil too
much power in the executive. This is because MPs usually have to adhere to parliamentary
discipline, and cannot vote based on their own judgments or constituencies.
3. A parliamentary system relaxes the strict application of the doctrine of separation of powers
by fusing the executive and legislative arms. This can make the legislature less effective as the
executive can easily dominate parliamentary proceedings by appointing many members of the
legislature to the executive
4. As elections in parliamentary systems usually result in a majority government, this could lead
to the “tyranny of the majority" resulting in the minority parties to be marginalized as they
would have little to no input in government legislation.
5. Parliamentary systems can be seen as inherently unstable, if minority governments are elected
and coalition governments are formed as the government can be brought down at any time.
6. The other disadvantage is that it typically creates two centers of power. In a pure
parliamentary system the efficient facet of the executive is separated from the ceremonial
facet.
7. Lastly, the parliamentary system lack of a definite election calendar can be mistreated to allow
parties to gain political advantages. The governing party can schedule elections with relative
freedom, and avoid elections when it is unpopular.. This gives an unfair advantage to ruling
parties who can stave off defeat or increase their mandate at the expense of the opposition
parties.

c) In the same referendum debate, there are proposals to scrap the senate. Explain the role of
bicameralism in constitutional theory and advice on whether or not bicameralism is a good legislative
structure for Kenya (5 Marks)

Bicameralism is centred on the dichotomy between constitutionalism and democracy. In a bicameral

legislature, one house is structured around the democratic principle of one-man-one-vote. The other
house is structured around the principle of one-interest-one-vote. It is typically well suited for a
heterogeneous society where there is a danger of a dictatorship of the majority. The one-interest one-
vote ensures that all the competing interests in the society have equal voting power irrespective of their
numerical strengths.

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 In Kenya, the senate is designed to protect the interests of the counties. The counties have been
designed in such a way that no community enjoys a significant majority in the senate. Scrapping the
senate loses sight of this important safeguard.

High Court in International Legal Consultancy Group vs The Senate and the Clerk of the Senate
Kerugoya H.C. Petition No. 8 of 2014 stated as follows; “It is not in doubt that the Senate represents
the Counties, and serves to protect the interests of the counties and their Governments at the National
level. It is mandated to participate in the law-making function of Parliament by considering, debating
and approving Bills concerning the Counties. The Senate also determines the allocation of National
revenue among counties and exercises oversight over National revenue allocated to the County
Governments…In our considered view, the Senate and the County Governments are constitutionally
designed to work together in ensuring the fruits of devolution. It is therefore our position that the
Senate, which is at the National level of Government, has a critical role in ensuring that the counties
interests are protected at the National Level of Government.”

The Supreme Court in Speaker of the Senate & Another v Attorney General, Advisory Opinion No. 2
of 2013 stated as follows ‘It is evident that the Senate, though entrusted with a less expansive
legislative role than the National Assembly, stands as the Constitution’s safeguard for the principle of
devolved government. This purpose would be negated if the Senate were not to participate in the
enactment of legislation pertaining to the devolved units, the counties [Article 96(1), (2) and (3)].”

d) In the same referendum debate, there are proposals to replace the Supreme Court with a Constitutional
Court. Explain the advantages and disadvantages of a constitutional court and briefly describe how the
constitutional court can be structured and composed to maximise the advantages (5 Marks)
e)
The choice between a Supreme Court and a Constitutional Court is driven by the choice between a
centralized vs a decentralized approach to interpretation of the constitution.
The centralized approach requires a specialised dedicated court to adjudicate constititutional disputes.
It accordingly creates a constitutional court to exclusively adjudicate constitutional disputes. This is in
contrast to the decentralised system where all superior courts have jurisdiction to adjudicate
constitutional issues. The centralization is said leads to a more consistent approach to constitutional
interpretation, enhances specialization on the part of the judges and, theoretically, increases the quality
of the jurisprudence on the constitution.
The centralized specialised court is structured to reflect the inherent political realities that shape the
interpretation of the constitution. The members of the court are typically chosen in such a way as to
accommodate competing political interests, usually, by allowing political interests to play a role in the
appointment of the members of the court. To shield the court from political control by the appointing
constituencies, the judges are given security of tenure and protected by the usual safeguards on judicial
independence. To ensure that the interpretation of the constitution is not held hostage by a small team
of opinionated judicial officers with vested political persuasions for two long a period, the members of
the court typically have limited tenure.
The Supreme Court approach favours a more decentralised approach to constitution interpretation with
all superior courts having jurisdiction to adjudicate constitutional issues with the Supreme Court as the
final arbiter in constitutional interpretation. There are no specialised courts though it is possible to
administratively choose a division of the superior courts to deal with constitutional issues. There is no
specialization, no limited tenure and political interests are not factored in the appointment of judges.

Question 2

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 a) Independent Constitutional Commissions and Offices in the CoK 2010 have been described as the
‘fourth arm of Government’. With the aid of decided cases, explain the extent to which this description
would be true for Independent Constitutional Commissions and Offices in the CoK 2010 (10 Marks)

The perception of commissions as a fourth arm of Government is canvassed by Professors P.L.O.

Lumumba and L.G. Franceschi in their work, The Constitution of Kenya, an Introductory Commentary,
2014 (page 19); they observe that the newly-formed commissions and independent offices carry out
functions which were previously performed by the traditional arms of Government; and hence the
framers of the Constitution must have deliberately intended that certain Government functions be
separated from the familiar arms of Government, in order to promote transparency, fairness and
objectivity

The traditional tripartite division of power was never cast in stone. There is nothing to stop further
horizontal separation by, for example creating independent institutions. The Supreme court of Kenya
has however held that sovereign power is only delegated to three arms, the executive, the legislature
and the judiciary. The court rubbished the concept of a fourth arm of government. (In the Matter of the
National Land Commission [2015] eKLR Advisory Opinion Reference NO 2 of 2014.

The constitutional commissions enjoy functional, operational, financial and even administrative
autonomy from the traditional three arms of government. But they are not immune to some measure of
checks and balances from the three arms of government (In the Matter of the National Land
Commission. Independence of commissions and independent offices does not, therefore, entail a
splendid isolation from other State organs... So they have to consult with other State organs, and work
with such State organs in co-operation and harmony...It is clear, for instance, that a mandate borne by
the commissions, namely, “democracy and participation of the people”, forms an overlapping
continuum with operational logistics devolving to all public agencies

In the Matter of the Interim Independent Electoral Commission Sup. Ct. Application No. 2 of 2011;
[2011] eKLR [In Re IIEC]. the Supreme Court said ‘that the independence of commissions does not
entail that they must act on their own accord (paragraph 59 and 60) …The several independent
Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role
effectively, they must operate without improper influences, fear or favour: this, indeed, is the purpose
of the ‘independence clause …These Commissions or independent offices must, however, operate
within the terms of the Constitution and the law: the ‘independence clause’ does not accord them carte
blanche to act or conduct themselves on whim; their independence is, by design, configured to the
execution of their mandate, and performance of their functions as prescribed in the Constitution and the
law.”

In the case, In Re Senate Matter Sup. Ct. Advisory No. 2 of 2013; [2013] eKLR the Supreme Court,
with regard to the separation of powers doctrine, remarked (paragraph 49): “Our perception of the
separation-of-powers concept must take into account the context, design and purpose of the
Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected in
the Constitution.”

The Court of Appeal , in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others,
Civil Appeal No. 290 of 2012; eKLR [2012],thus observed, in relation to the separation doctrine: “It is
not in doubt that the doctrine of separation of powers is a feature of our Constitutional design and a
per-commitment in our Constitutional edifice. However, separation of power does not only proscribe
organs of Government from interfering with the other's functions. It also entails empowering each
organ of Government with countervailing powers which provide checks and balances on actions taken
by other organs of Government. Such powers are, however, not a licence to take over functions vested
elsewhere. There must be judicial, legislative and executive deference to the repository of the function.
We therefore agree with the High Court’s dicta in the petition the subject of this appeal that: Separation
of powers must mean that the Courts must show deference to the independence of the Legislature as an

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 important institution in the maintenance of our constitutional democracy as well as accord the
Executive sufficient latitude to implement legislative intent.”

The commissions may be functionally, financially, operationally and administratively independent but
they are constitutionally accountable to other organs of government and, according to SCORK, they are
not a fourth arm of government.

b) Explain the grounds and procedure for the removal of a constitutional commissioner in the CoK
2010(10 Marks)

Article 251. (1) A member of a commission (other than an ex officio member), or the holder of an
independent office, may be removed from office only for—(a) serious violation of this Constitution or
any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the
performance of the member’s or office holder’s functions or otherwise;(c) physical or mental
incapacity to perform the functions of office;(d) incompetence; or(e) bankruptcy.

(2) A person desiring the removal of a member of a commission or of a holder of an independent office
on any ground specified in clause (1) may present a petition to the National Assembly setting out the
alleged facts constituting that ground.

(3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground
under clause (1), shall send the petition to the President.

(4) On receiving a petition under clause (3), the President— (a) may suspend the member or office
holder pending the outcome of the complaint; and (b) shall appoint a tribunal in accordance with clause
(5).

(6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding
recommendation to the President, who shall act in accordance with the recommendation within thirty
days.

(7) A person suspended under this Article is entitled to continue to receive one-half of the remuneration
and benefits of the office while suspended.

Question 3

a) Explain the role and functions of the Director of Public Prosecutions (DPP)in the Constitution of
Kenya 2010(.(5 Marks)

Article 157 (6) The Director of Public Prosecutions shall exercise State powers of prosecution and
may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court
martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court
martial) that have been instituted or undertaken by another person or authority, with

the permission of the person or authority; and

(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal
proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public

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 Prosecutions under paragraph (b).

(10) The Director of Public Prosecutions shall not require the consent of any person or authority for
the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall
not be under the direction or control of any person or authority

Cases on the prosecutorial independence of the ODPP and the meaning of the article 157(10)

Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA
170 (prosecutorial independence of the AG as it then was.)

George Joshua Okungu & another vs. Chief Magistrate’s Court Anti-Corruption Court at Nairobi &
Another [2014] eKLR

Kenya Commercial Bank Limited & 2 others vs. Commissioner of Police and Another, Nairobi Petition
No. 218 of 20122 (2013) eKLR

Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others
PETITION NO. 230 OF 2015 [2016] eKLR

Thuita Mwangi & Anor vs. the Ethics and Anti-Corruption Commission & 3 Others petition no. 153 &
369 of 2013

b) How does the relationship between the DPP and the Inspector General of Police in the CoK 2010 give
effect to the concept of constitutionalism (.(5 Marks)
By creating a system of checks and balances in the coercive criminal process. The DPP excercise an
independent mind. The IG must act on the instructions of the DPP but the DPP cannot direct the IG on
how to conduct investigations

c) Public Spirited Citizen (PSC) is unhappy with the decision of the DPP to prosecute some corruption
suspects. According to PSC, the intended prosecutions are baseless and intended to achieve an ulterior
political objective.PSC wants your advice on whether or not the court can stop the DPP from
prosecuting the suspects. Advise PSC(10 Marks)

the power of the DPP is judicially reviewable.

(article 157(11) in exercising the powers conferred by this article, the director of public prosecutions
shall have regard to the public interest, the interests of the administration of justice and the need to
prevent and avoid abuse of the legal process.

The courts have however emphasised that whereas the courts have an undoubted power to intervene,
they will only do so to give effect to constitutional values and will, as a general rule, respect the
functional independence of the DPP

Thuita Mwangi & Anor vs. the Ethics and Anti-Corruption Commission & 3 Others petition no. 153 &
369 of 2013 “the decision to institute criminal proceedings by the DPP is discretionary. such exercise
of power is not subject to the direction or control by any authority as Article 157(10)…These
provisions are also replicated under Section 6 of the Office of the Director Public Prosecutions Act,
No. 2 of 2013…In the case of Githunguri –vs- Republic (Supra at p.100), the Court observed…The
Attorney General of Kenya…is given unfettered discretion to institute and undertake criminal
proceedings against any person “in any case in which he considers it desirable so to do… this

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 discretion should be exercised in a quasi-judicial way. That is, it should not be exercised arbitrarily,
oppressively or contrary to public policy …”

The courts are shy to second guess the decision of the DPP to institute criminal proceedings

In Thuita Mwangi (supra) the court had this to say“… I am afraid that the High Court at this point is
not the right forum to tender justifications concerning the subject transaction let alone test the nature
and veracity of these allegations…the Court held that “It is the trial Court which is best equipped to
deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a
subversion of the law regulating criminal trials if the judicial review court was to usurp the function of
a trial court”. Similarly…the point being made above is that the DPP though not subject to control in
exercise of his powers to prosecute criminal offences, must exercise that power on reasonable grounds.
Reasonable grounds, it must be noted, cannot amount to the DPP being asked to prove the charge
against an accused person at the commencement of the trial but merely show a prima facie case before
mounting a prosecution. The proof of the charge is made at trial.”

And in Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4
others PETITION NO. 230 OF 2015 [2016] eKLR, the court took a similar position. We therefore
associate ourselves with the decision of Majanja, J in Kenya Commercial Bank Limited & 2 others vs.
Commissioner of Police and Another, Nairobi Petition No. 218 of 20122 (2013) eKLR, where the
learned Judge held that: “the office of the Director of Public Prosecution and Inspector General of the
National Police Service are independent and this court would not ordinarily interfere in the running of
their offices and exercise of their discretion within the limits provided by the law. But these offices are
subject to the Constitution and the Bill of Rights contained therein and in every case, the High Court as
the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the
rights and fundamental freedoms guaranteed under the constitution”.

But the court will intervene where there is abuse of power. In George Joshua Okungu & another vs.
Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another [2014] eKLR the Court
expressed itself as follows:“This Court appreciates the fact that the discretion on whom to prefer
charges against is on the prosecuting authority who was then the Attorney General and now the
Director of Public Prosecution (hereinafter referred to as the DPP). It is also within the discretion of the
said Authority and it is perfectly in order for the Authority to call some of the accomplices in a criminal
trial as prosecution witnesses. The weight of their evidence is of course subject to the law relating to
accomplice evidence…It is therefore clear that the terrain under the current prosecutorial regime has
changed and that the discretion given to the DPP is not absolute but must be exercised within certain
laid down standards provided under the Constitution and the Office of the Director of Public
Prosecutions Act. Where it is alleged that these standards have not been adhered to, it behoves this
Court to investigate the said allegations and make a determination thereon. To hold that the discretion
given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent
affront to judicial conscience and above all, the Constitution itself… Where therefore it is clear that the
discretion is being exercised with a view to achieving certain extraneous goals other than those legally
recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would,
in our view, constitute an abuse of the legal process and would entitle the Court to intervene and bring
to an end such wrongful exercise of discretion.”

Similarly In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003
[2007] 2 EA 170, the Court of Appeal held:“It is trite that an order of prohibition is an order from the
High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue
proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not
only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It
does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong
decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant

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 an order of prohibition to a person charged before a subordinate court and considers himself to be a
victim of oppression. If the prosecution amounts to an abuse of the process of the court and is
oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent
power and the duty to secure fair treatment for all persons who are brought before the court or to a
subordinate court and to prevent an abuse of the process of the court.”

Question 4

a) Distinguish between the four different forms of decentralization in the Government of the Republic of
Kenya and give an example of each form of decentralization (4 Marks)
b)

There are three, not four, forms of decentralization;

 Deconcentration: The center retains considerable control. As was the case with the provincial
administration, now replaced by county commissioners.
 Delegation: though the center retains control. Substantial authority is ceded by statute, as is in
the case of State Corporations
 Devolution. Typically a creature of the constitution or at least an act of parliament. There is a
genuine desire to disperse power and resources vertically. The center does not control. Units
are separate, distinct but inter-dependent. Allocation of competence determines the degree of
separation. Functions are concurrent, exclusive and residual. The levels operate in the spirit of
consultation, cooperation and compromise.

c) Distinguish between exclusive, concurrent and residual functions in the allocation of competence
between National and County Governments in the CoK 2010(6marks)
 Concurrent: at both levels. Shared responsibilities. It is the most common in a devolved
system
 Exclusive: at only one level. For example national security at national level and property tax
at county level
 Residual: what remains after allocation of competence and functions. In our case, residual
authority is at national level. In federal systems, residual authority is at sub-national level.

d) The Ministry of Devolution and Planning has issued a circular to County Governments requiring
County Governments to seek clearance from the ministry of devolution on foreign trips by County
Government officials. The County Governments have sought your advice on the constitutionality of the
directive. Advice the County Governments(5marks)

County Governments are not subject to the supervision of the ministry of devolution. The two levels of
government are separate, distinct though interdependent. Sovereignty is shared between national and
sub-national level governments. The national level cannot direct the sub-national level on how to
perform functions that are within the competence of the sub-national levels, however well meant the
directions are. The essence of devolution is to disperse power vertically and to make decisions in
accordance with the principle of subsidiary. County Governments only account to the people of Kenya
through the designated state organs, the ministry of devolution is not one such organ.

Article 6(2) The governments at the national and county levels are distinct and inter-dependent and
shall conduct their mutual relations on the basis of consultation and cooperation

Article 189. (1) Government at either level shall— (a) perform its functions, and exercise its powers, in

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 a manner that respects the functional and institutional integrity of government at the other level, and
respects the constitutional status and institutions of government at the other level and, in the case of
county government, within the county level; (b) assist, support and consult and, as appropriate,
implement the legislation of the other level of government; and (c) liaise with government at the other
level for the purpose of exchanging information, coordinating policies and administration and
enhancing capacity. (2) Government at each level, and different governments at the county level, shall
co-operate in the performance of functions and exercise of powers and, for that purpose, may set up
joint committees and joint authorities. This relationship which requires mutual respect and cooperation
between the two levels of government has been captured by the High Court in International Legal
Consultancy Group vs The Senate and the Clerk of the Senate Kerugoya H.C. Petition No. 8 of 2014
and the Supreme Court in Speaker of the Senate & Another v Attorney General, Advisory Opinion No.
2 of 2013

e) Explain to the County Governments the constitutional procedure for the resolution of disputes they
may have with the Ministry of Devolution And Planning(5marks)

The procedure is provided for in article 189(3) In any dispute between governments, the governments
shall make every reasonable effort to settle the dispute, including by means of procedures provided
under national legislation.(4) National legislation shall provide procedures for settling
intergovernmental disputes by alternative dispute resolution mechanisms, including negotiation,
mediation and arbitration and operationalised by part IV of the IGRA.

The Supreme Court also has jurisdiction to give an advisory opinion on matters concerning County
Governments. See Speaker of the Senate & Another v Attorney General, Advisory Opinion No. 2 of
2013 and Council of Governors & 6 Others vs Senate (Petition 413 of 2014)

Question 5

a) The Governor of County 0001 has just been summoned by the Senate to ‘clarify certain issues’
concerning the procurement of goods and services by County 048. Governor 048 objects to the
summons saying Senate has no power to summon governors and in any event the County Assembly of
County 048001 is already dealing with the issue. Governor 048 has sought your advice on whether he
should attend before senate as required. Advise the Governor.(10 Marks)

The court in Council of Governors & 6 Others vs Senate (Petition 413 of 2014) held that senate has
power to summon county governors in respect of matters within the mandate of senate. The power
must however be exercised sparingly and with requisite respect to the constitutional authority of county
governments.

International Legal Consultancy Group vs The Senate and the Clerk of the Senate Kerugoya
Constitutional Petition No.8 of 2014

“We wish to point out that the first persons of contact with regard to any issue of financial management
of a county would be the accounting officers appointed at the county level. We note that these officers
are accountable to the County Assemblies by virtue of Article 226(2) of the Constitution and Section
149 of the Public Finance Management Act of 2012. Nevertheless, the Constitution provides for
oversight of county public finances at two levels; by the County Assemblies at the county level and by
the Senate at the National level”.

“By implication, this provision means that the County Governor as the overall head of the county is

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 accountable for the utilization of county resources including the National revenue allocated to his or
her respective County. Since the accounting officers at the county are directly answerable to the
County Assembly for the management of financial resources under the Public Finance Management
Act 2012, who then is the Governor accountable to under Section 30(3)(f) " In our considered view,
since the County Governors are not answerable to the County Assembly in terms of fiscal management
of the County resources under Section 149 of the Public Finance Management Act 2012, they must be
held to account by the Senate for the National revenue allocated to their respective Counties in view of
the provisions of Section 30(3) (f) of the County Governments Act, 2012 as read together with Article
10(2)(c) on the National values and principles of governance. The Governors being State Officers are
bound by the national values of transparency, accountability and observance of good governance when
performing their duties as the Chief Executive Officers of the County Governments

“It then follows that under Article 125, the County Governor and the County assembly Member for
finance who belong to the executive arm of the County Government can also be summoned by the
Senate in exercise of their oversight mandate under Article 96(3) of the Constitution. Though the
executive arm of the county Government is also answerable to the County Assemblies of their
respective Counties, this does not preclude the said arm form providing information to the Senate when
called upon to do so in exercise of their oversight mandate under Article 96(3). Further under Article
10(2) of the Constitution one of the values of governance enshrined in the Constitution is transparency
and accountability.

Every officer in every State organ and at both levels of Government must respect and comply with any
mechanism of accountability established by the Constitution and the law to the fullest extent possible.
The Court under Article 259 must therefore interpret the Constitution in a manner that promotes good
governance through transparency and accountability. Put in another way, when persons in charge of
the managing County finances are not held to account, the objectives of devolution set out under
Article 174 which includes promoting democratic and accountable exercise of power; and to enhance
checks and balances of powers, will be defeated.

The position advance by the Petitioner that the County Governors cannot be summoned by the
Senate by virtue of Article 226(2) of the Constitution, Section 148 of the Public Finance Management
Act, 2012 and Section 30 of the County Government Acts 2012 is therefore untenable.

b) The County Assembly of County 0001 has impeached the Governor 0001 for abuse of office. The
alleged abuse arises out of the procurement of goods and services by County 0001. Governor 0001
argues that he has no role to play in the procurement of goods and services by the County Government
and he cannot be impeached for the same. There is strong evidence that the governor had nothing to do
with the procurement and was not even aware of it. Governor 0001 has sought your advice on whether
or not a court can overturn the impeachment. Advice the Governor 0001.(10 Marks)

Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others CIVIL APPEAL NO. 21 OF
2014 [2014] eKLR (CORAM: VISRAM, KOOME & ODEK, JJ.A.) Nyeri 30th day of September,
2014

Our reading of Article 165 (6) of the Constitution reveals that the role of the High Court for purposes
of removal of a Governor from office is inter alia supervisory in nature to ensure that the procedure
and threshold provided for in the Constitution and the County Governments Act are followed. If
the process for removal of a Governor is unconstitutional, wrong, un-procedural or illegal, it cannot be
said that the court has no jurisdiction to address the grievance arising therefrom.

We find that the learned Judges erred in law by failing to exercise the supervisory jurisdiction of the
High Court under Article 165 (6) to determine the specific question whether the constitutional

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 threshold for removal of the 1st appellant as Governor had been proved and if there was any nexus
between the allegations in the motion tabled in the County Assembly and the 1st appellant.

The political question doctrine and the concept of separation of powers cannot oust the jurisdiction of
courts to interpret the Constitution or to determine the question if anything said to be done under the
authority of the Constitution or of any law is consistent with or in contravention of the Constitution as
per Article 165(3)(d)(iii).

What constitutes gross violation of the Constitution is to be determined on a case by case basis. Gross
violation of the Constitution includes violation of the values and principles enshrined under Article 10
of the Constitution and violation of Chapter Six (Leadership and integrity) of the Constitution; or
intentional and/or persistent violation of any Article of the Constitution; or intentional and blatant or
persistent violation of the provisions of any other law.

The Supreme Court in held Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017]
eKLR that the Courts undoubtedly have the last word on the constitutionality of legislative or executive
action but the courts must slow to interfere and must do o only in the clearest of cases. The court
adviced caution in the issuing of interim orders to stop running parliamentary processes recommending
instead that the proper action is to allow the process to run its course and then challenge its
constitutionality

The effect is that, a methodical and conscientious inquiry would show the County Assembly to have
been operating quite properly, within the constitutional scheme of devolution, and running its
legislative processes within the ordinary safeguards of the separation of powers – and consequently,
quite legitimately outside the path of the ordinary motions of the judicial arm of State. On that basis,
there would have been hardly any scope for the deployment of the Court’s conservatory Orders –
more particularly without first hearing the petitioners.

Speaker of the Senate & Another v. Attorney General & 4 Others, Reference No. 2 of 2013; [2013]
eKLR

“This Court will not question each and every procedural infraction that may occur in either of the
Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity
between the three arms of government must not be endangered by the unwarranted intrusions into the
workings of one arm by another”

Martin Nyaga Wambora v Speaker Of The County Of Assembly Of Embu & 3 Others

[2014] eKLR Per Richard Mwongo 12th day of May, 2014in dismissing an application for
conservatory orders; ‘The court will only issue conservatory orders in exceptional circumstances and
will be minded of the mandate of other constitutional organs in exercise of their constitutional
mandate’.

Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 others 2014] eKLR Petition No 3 OF
2014 16th April 2014. Per H.I Ong'udi C. W Githua B. N.Olao

Impeachment in violation of court orders is null and void

End

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