Bench Bulletin Issue 58

Issue 58
July - September 2022

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CONTENTS
Failure to include an option of ‘none of the above’ in There is a legal lacuna in the protection of
ballot papers did not infringe on the electoral rights wetlands in Kenya, especially the ungazetted
of Kenyans. Pg 25 wetlands within public land. Pg 49
EDITORIAL TEAM
Editor/C.E.O 1. Editor’s Note 1
| Prof. Jack Mwimali | 2. CJ’s Message 2
Senior Assistant Editor/Deputy C.E.O 3. What they Said 4
| Janet Munywoki |
4. Feature Case 7
Editorial Assistant
| Andrew Halonyere | 5. Cases 14
Contributors 6. Caseback 52
| Njeri Githan’ga | Wambui Kamau | Nelson Tunoi |
| Emma Kinya | Teddy Musiga | Beryl Ikamari | 7. Legislative Updates 53
|Robai Nasike | John Ribia | Faith Wanjiku |
| Kevin Kakai | Patricia Nasumba | Musa Okumu | 8. Legal Supplements 56
| Lisper Njeru |
9. International Jurisprudence 58
Design and Layout
| Catherine Moni | Josephine Mutie | Cicilian Mburunga | | 10. Law Reform Compilation 66
Robert Basweti |
Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
| Humphrey Khamala |
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The Kenya Law Review Journal is a peer reviewed
publication of the National Council for Law Reporting. The
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journal is a platform for the scholarly analysis of Kenyan
Law and interdisciplinary academic research on the law.
The journal is published bi-annually and strives to establish
PAPERS
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BB Issue 58, July - September 2022
Members of the Council

for Kenya Law
Hon. Chief Justice Martha K. Koome, EGH

Chief Justice and President of The Supreme Court of Kenya
Chairperson
The Hon Lady Justice Fatuma Sichale Office of the Attorney General & DoJ
Judge of the Court of Appeal of Kenya Mr Abdi Hassan Ali
Government Printer (Ag), Government Press
The Hon Mr Justice James Rika (Represented by Ms Eva Kimeiywo, Principal
Judge of the Employment and Labour Relations Printer)
Court of Kenya
Ms Nyoike Sarah Waigwe
The Hon Mr Justin Muturi
Attorney General Advocate, Law Society of Kenya
Alt - Ms Linda Murila, Chief State Counsel
Mr John Dudley Ochiel
Prof Winifred Kamau Advocate, Law Society of Kenya
Dean, School of Law, University of Nairobi
Ms Jennifer Gitiri Professor Jack Mwimali

Advocate & Public Officer, CEO/Editor
Members co-opted to serve in ad-hoc Advisory Capacity
Ms Anne Amadi Mr Samuel Njoroge

Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Michael Karuru, Dep. Direc-
tor, Legislative and Procedural Services
Prof. Njuguna Ndung’u, CBS
Cabinet Secretary, The National Treasury
(Represented by Mr Jona Wala,
Director, Accounting Services)
viii
Editor’s Note
Professor Jack Mwimali
Editor/CEO
T
he Bench Bulletin is a magazine published quarterly aimed at enlightening judicial officers, advocates and
the general public on the most recent developments in law touching case law and international comparative
analysis on case law. It is endowed with the most recent developments in law, precisely case law, law reform
issues, selected Legal Notices and Gazette Notices and new legislation in the form of Acts of Parliament, Bills, rules
and regulations.
From the Supreme Court, the case of Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others
(Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated))
[2022] KESC 54 (KLR)is highlighted as it touched inter alia the issue of whether the technology deployed by the IEBC
for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to
guarantee accurate and verifiable results and whether there was interference with the uploading and transmission of
Forms 34A from the polling stations to the IEBC Public Portal. Dismissing the petition, the Supreme Court held that
the petitioners did not provide a watertight case to warrant the setting aside of the results of the Presidential Election
on the basis of not having met the threshold provided under article 138(4)(a) of the Constitution.
From the High Court, the case of Ombati v The Hon. Chief Justice & 2 Others; The Kenya National Human Rights and
Equality Commission & 2 Others (Interested Parties) (Petition No. E242 of 2022) [2022] KEHC (11630) (KLR) dealt
with whether the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022, having been made in
exercise of the powers conferred upon the Supreme Court directly by the Constitution, were statutory instruments
within the meaning of the Statutory Instruments Act. Partly allowing the petition, the court held that the Supreme
Court did not conduct public participation in any form or shape, before the promulgation of the impugned Rules. That
was contrary to the requirement under articles 10 and 232 of the Constitution, to afford reasonable opportunity to
persons likely to be affected by the impugned Rules, such as litigants in presidential petitions, advocates and the public,
to voice and perhaps have incorporated in the decision making, their concerns, needs and values.
Under international jurisprudence, there is the case of LSI Corporation and Avago Technologies v Regents of the University
of Minnesota where the Court of Appeal of the United States held that a claimed invention was anticipated if the
invention was described in an application for patent, published under section 122(b), by another filed in the United
States before the invention by the applicant for patent. A patent applicant or owner could overcome anticipation under
§ 102(e) by establishing that the relevant disclosure in the prior-art reference described their own invention, i.e., that
it was not by another person.
Furthermore, the case of MJ K v II K (360/2021) deals with whether assets of trusts of which the husband was a
trustee and the close corporation of which he was the sole member should be regarded as belonging to the husband for
purposes of determining the accrual of his estate at the time of divorce. The Supreme Court of Appeal of South Africa
upheld the appeal holding that where there was evidence of abuse of the trust by the trustee, the courts could look
behind the trust form in order to prevent its abuse. The evidence that the trusts were created as an estate planning tool
was not disputed. The appellant’s evidence was that the principal objective of creating the trusts was to protect their
assets to ensure that the respondent and his children, especially their mentally challenged daughter, would be cared for.
The aforementioned are just a few magnificent extracts from this issue of the Bench Bulletin and we hope you will be
pleased further by all the jurisprudence glittering beautifully herein.
CEO/Editor
Professor Jack Mwimali
1
CJ’s Message
Hon. Chief Justice Martha K. Koome, EGH
Chief Justice and President of The Supreme Court of Kenya
REMARKS BY HON. JUSTICE MARTHA KOOME, EGH, CHIEF JUSTICE & PRESIDENT OF
THE SUPREME COURT OF KENYA DURING THE LAUNCH OF THE KENYA JUDICIAL
BENCH BOOK ON LABOUR TRAFFICKING IN PERSONS, 8th July 2022
Hon. Lady Justice Agnes Murgor, Chairperson of the International Women Judges Association, Kenya
Chapter Officials of IAWJ-Kenya Chapter Honourable Judges and Magistrates Present, Distinguished
Guests, Ladies and Gentlemen:
1.Thank you for the honour of inviting me to launch the Kenya Judicial Bench Book on Labour Trafficking
in Persons.
2.My appreciation and thanks to the International Association of Women Judges and the International
Association of Women Judges - Kenya Chapter, led by the President Hon. Lady Justice Agnes Murgor,
for conceiving the idea of developing this bench book and working- tirelessly to ensure that it is finally
available for use by Judges, Judicial Officers and other actors in the justice chain.
3.I commend all those of who have been involved in the preparation of this book, from the consultants,
to the development partners who sponsored the process of developing the bench book, and all those
who have played one role or another in this process, for their vision, and effort that has gone towards
ensuring that we now have a quick and easily accessible reference guide that will enhance the effectiveness
of administration of justice with respect to matters relating to labour trafficking in our country.
Ladies and Gentlemen,
4.Trafficking of human beings is a global catastrophe of our time that is widely prevalent in Kenya like the
rest of the world. I will not be far off the mark if I compare it with the historical parallel of movement
of people as commodities during the colonial slave trade. Tragically, majority of the persons who are
trafficked for exploitation are women and children who are vulnerable members of our society.
5.The growth of trafficking business in recent times is fuelled by a number of factors including: being a
function of the negative consequences of globalisation, particularly advancement in communication and
transportation, unemployment, poverty, and ineffective enforcement of anti-trafficking laws, amongst
other factors.
6.This state of affairs calls for urgent action and major steps by all duty bearers to work concertedly to
respond to this calamity. I see trafficking as a human rights issue. This is because many of those who are
trafficked are coerced or deceived into the process and experience acts amounting to slavery and forced
labour once they reach their destination. Therefore, trafficking is a serious violation of human rights that
calls for concerted and co-ordinated efforts by all those involved to root out the conditions that enable the
crime to thrive and also ensure that the perpetrators of these abuses are brought to justice.
7.By approaching the question of labour trafficking from a victim-centred approach, this bench book has
shown sensitivity to the abused women, children and other vulnerable persons whose suffering we should
never lose sight of as persons bestowed upon the sacred duty of administering justice. In addition, by
adopting a victim -centered approach, I am certain that the bench book will always ingrain in its users the
reality that they are dealing with a crime that is an attack on the human dignity of the victims.
2
Ladies and Gentlemen

8.By drawing on our local jurisprudence and comparative jurisprudence, the bench book makes available
to Judges, Judicial officers and other users a wealth of learning that will enable competent and effective
resolution of disputes.
9.I also commend the fact that the bench book includes ‘good judicial practices for managing Trafficking in
Persons cases,’ this will ensure that the law is administered expeditiously and effectively. This is crucial as
victims of trafficking are often in need of expeditious and cost-effective resolution of their disputes.
10. To conclude, I am certain that the Bench Book will play a crucial role in improving effectiveness of
the justice sector in combating trafficking in persons in Kenya. It will serve as an instrument for securing
social justice by enlivening the fight against the exploitation associated with trafficking in persons. Given
its practical bent, the Bench Book will be of immense utility to not only judges and judicial officers, but
will also benefit prosecutors, advocates, and other actors in the chain of justice.
11. I wish to thank the International Association of Women Judges (IAWJ) in partnership with the
IAWJ – Kenya Chapter which supported the development of this Bench Book under their project ‘Women
Judges Leading Efforts to Improve Justice Sector Effectiveness in Combating Trafficking’. The Judiciary
appreciates and values such support and partnerships that are geared towards improving the effectiveness
of the justice system and deepening access to justice especially for vulnerable groups.
12. I now declare the Kenya Judicial Bench book on Labour Trafficking in Persons officially launched.
Thank you and God bless you.
Hon. Justice Martha Koome, EGH,

Chief Justice and President of the Supreme Court of Kenya.
3
What they said

Supreme Court Judges - MK Koome; CJ and P, PM Mwilu; DCJ and VP; MK Ibrahim, SC Wanjala, SN
Ndungu, I Lenaola and Ouko; SCJJ in Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4
others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022
(Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)
“7,106, 569 was less than 7,176,141 which represented the number of votes received by the 1st respondent. On the
basis of the above formula and from the numbers provided by IEBC and its Chairperson, and the declaration by the
Chairperson of the President-elect on August 15, 2022, the declared President-elect attained 50%+1 of all the valid votes
cast in accordance with article 138(4) of the Constitution. Although the petitioners had provided numerous averments
pointing to possible irregularities and illegalities, the pointed illegalities and irregularities were not of such magnitude as
to affect the final result of the presidential election.”
Supreme Court Judges - MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ in Muya v
Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of
Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (Civ) (19 May 2022) (Judgment)
“Although judges were subject to the law, there was need to protect their decisional independence in the interests of the
whole community to enable them to apply and interpret the Constitutions and legislation without fear of any form of
improper interference and influence. In their judicial conduct, judges were not subject to direct discipline, except in the
extreme cases of proved misconduct or misbehaviour, among other grounds. It was only those circumstances plainly spelled
out in article 168(a) to (e) that a judge could be removed from office.’’
High Court Judge - AK Ndung’u, J in Republic v National Cohesion and Integration Commission; Chama
Cha Mawakili Limited (Exparte) (Judicial Review Application E057 of 2022) [2022] KEHC 10206 (KLR)
(Judicial Review) (14 July 2022) (Judgment)
“The right to be heard was cardinal and could not be derogated. The respondent undertook a crucial and sensitive
role in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it,
however, had to be exercised within the law and in strict observance of individual and collective rights enshrined in
the Constitution and the law. However well-meaning the respondent could not get away with unilateral decisions that
affected the citizenly without regard to their constitutional and legal rights topmost of which was the right to heard. An
order of certiorari was granted that quashed the respondent’s decision made on April 8, 2022 vide Hatelex: A lexicon
of Hate Speech Terms in Kenya banning and/or classifying “Hatupangwingwi” and “watajua hawajui” as hate terms.”
High Court Judge - Ali-Aroni, J in Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3
others (Interested Party) (Constitutional Petition 10B of 2022) [2022] KEHC 11889 (KLR) (21 July 2022)
(Judgment)
“The Constitution of Kenya permitted citizens of Kenya by birth to have dual citizenship and not multiple nationalities
as is the case of the 1st petitioner. The acts and /or Omissions of the 2nd and 3rd respondents, the 2nd, 3rd and 4th interested
parties failed their mandate and their obligations under the Constitution and statute. The 1st respondent failed to
present documents ascertaining that he was indeed a Kenyan Citizen as prescribed by the Constitution and Electoral
laws to qualify to run for the seat of Member of Parliament for Fafi Constituency. The 1st respondent was in violation
of chapter 6 of the Constitution as read with the Leadership and Integrity Act. The petitioner was within his right as a
Kenyan for himself and the Public Good to move the court.”
4
High Court Judge - FA Ochieng, J in Republic v Independent Electoral and Boundaries Commission &
4 others; Mongare (Exparte) (Judicial Review Application E004 of 2022) [2022] KEHC 9818 (KLR)
(18 July 2022) (Judgment)
“There was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints
and appeals, if any, could be brought. In the current cycle of elections, numerous appeals were being filed even though
there was less than 30 days to the date of elections. When the IEBC was expected to make proper arrangements for the
elections, it should have sufficient time and opportunity to finalize preparations. One of the key issues that needed clarity
and certainty was the identity of the candidates. When disputes continued to linger as to whether or not an aspirant
should or should not be a candidate, the IEBC could not cause ballot papers to be printed. The delay could jeopardize the
elections. On the other hand, there was a need to accord a fair hearing to persons who had complaints.”
High Court Judges - DAS Majanja, EC Mwita and M Thande, JJ in Okoiti & 15 others v Attorney General
& 7 others; Commission on Administrative Justice & 15 others (Interested Party) (Constitutional Petition
E090,E168,E221,E230,E234,E249, E017,E109 & E010 of 2022 (Consolidated)) [2022] KEHC 3209 (KLR)
(Constitutional and Human Rights) (24 June 2022) (Judgment)
“Courts existed to resolve actual disputes. They were not in the business of engaging in academic or abstract discourse that
was not anchored in disputed facts. That was why the Constitution did not confer upon the High Court the jurisdiction
to issue advisory opinions. Although the High Court had jurisdiction to interpret the Constitution, it could not proceed
to grant relief merely on the ground that there were conflicting decisions that required harmonisation. The instant court
rejected the invitation to create a “harmonization” jurisdiction. Harmonization could only be done where an actual and
live dispute existed. The instant petitions were general in nature, raised issues without reference to concrete facts, did not
allege any wrong doing against a specific person and did not have specific respondents against whom such relief may be
granted.”
High Court Judge - JM Ngugi, J in Republic v SWN (Criminal Case 20 of 2019) [2022] KEHC 3312 (KLR)
(7 July 2022) (Sentence)
“The probation report’s recommendation was that the best role that the criminal justice system could play in the instant
case was not to punish; it was to facilitate healing and wellness; not to extract retribution but to sustain restoration.
It was a happy day when the criminal justice system played that positive role. It was not a happy ending; but it was a
hopeful one for the accused and her remaining son. It was one more illustration that the criminal justice system could
play its rightful role in the society: to facilitate a truly just society where those who needed healing – of body, mind and
soul - were given the opportunity and facilities to pursue it; where restoration rather than retribution was privileged.
That was therapeutic jurisprudence in action.”
5
International Jurisprudence
Court of Appeal of the United States Judges- Dyk, Reyna & Hughes, JJA in LSI Corporation and
Avago Technologies v Regents of the University of Minnesota No. 21-2057
“A claimed invention is anticipated if the invention was described in an application for patent, published
under section 122(b), by another filed in the United States before the invention by the applicant for patent.
A patent applicant or owner may overcome anticipation under § 102(e) by establishing that the relevant
disclosure in the prior-art reference describes their own invention.”
Supreme Court of Appeal of South Africa Judges- Zondi, Schippers and Mabindla-Boqwana, JJA;
Matojane and Smith, AJJA in MJ K v II K (360/2021) No. [2022] ZASCA 116
“The statutory definition makes it clear that the trust founder must relinquish at least some of his or her control
over the property to the trustee, which therefore requires that there must be a separation of ownership (or
control) from the enjoyment of the trust benefits so derived. The separation of enjoyment and control is designed
to ensure that the trustees in whom the assets of the trust vest are impartial and that they exercise diligence in
protecting the interests of the trust beneficiaries.”
KENYA LAW REPORTS 2015 VOL 2

The second of a series, the KLR 2015 volume
2 contains judgments from the Supreme Court
of Kenya, the Court of Appeal and the High
Court delivered in 2015. The report contains
selected cases on diverse areas of law ranging
from:
• Civil practice and procedure
• Constitutional law
• Commercial law
• International human rights law
• Foreign judgments
• Land law (doctrines of accretion and
alluvion)
• Procurement law
Kes. 5500 • Criminal law and procedure
+ 16% VAT
• Evidence law
• Aspects on extradition proceedings
6
Feature Case
Supreme Court upholds the election of William Samoei Ruto as the fifth President of
the Republic of Kenya
Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae)
(Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated))
[2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)
Neutral citation: [2022] KESC 54 (KLR)
Supreme Court of Kenya
September 5, 2022
MK Koome; CJ and P, PM Mwilu; DCJ and VP; MK Ibrahim, SC Wanjala, SN Ndungu, I Lenaola
and Ouko, SCJJ
Reported by Professor Jack Mwimali
On August 9, 2022 Kenya held the third general the manner in which technology was deployed and
election under the Constitution of Kenya, 2010 utilized fell short of the prescribed constitutional
(the Constitution). Transmission of the results of the and statutory standards. As regards the audit of the
general election was done via the Kenya Integrated Register of Voters, they urged that IEBC, pursuant
Electoral Management System (KIEMS); a to its Elections Operations Plan, to commit itself
technology used in the biometric voter registration, in conducting an audit of the Register of Voters by
and, on the election day, for voter identification March 31, 2022. To the contrary, they alleged, it
as well as the transmission of election results from only publicly availed the audit report on its website
polling stations to the National Tallying Centre. on August 2, 2022, 7 days to the election.
On August 15, 2017, the chairperson of the In response, IEBC submitted that the electoral
Independent Electoral and Boundaries Commission system met the constitutional threshold; that
(IEBC) (4th respondent) declared the 1st respondent, all necessary information was accessed only by
William Samoei Ruto, the Presidential Candidate authorized persons; the information was accurate,
for the United Democratic Alliance Party, (1st complete and protected from malicious modification
respondent) the president elect with 7,176,141 either by authorized or unauthorized persons; it
votes (50.49% of presidential votes cast) and the 1st maintained an audit trail on activities related to
petitioner, Raila Amollo Odinga as the first runner’s information; and the information was available and
up with 6,942,930 votes (48.85% of presidential could be authenticated through the use of various
votes cast). security features.
Aggrieved by the results and the process by which the The 1st petitioners further alleged that the results
results were obtained and declared, the 1st petitioners, of the presidential election were staged. They
Raila Odinga and Martha Karua, who were the contended that a person who had access to the Result
presidential and deputy presidential candidates Transition System (RTS), intercepted, detained
respectively of the Azimio La Umoja Coalition of or stored Forms 34A temporarily to convert or
parties filed the instant petition challenging the manipulate them before uploading them on IEBC’s
declared result of that presidential election (the public portal.
election). Alongside the 1st petitioners were a bundle
of 6 other petitioners that also challenged the result To rebut the allegation, IEBC and its chairperson
of the presidential election; in total they filed 9 denied staging and allowing unauthorized intrusion
presidential election petitions. of the RTS. In that regard, they urged that every
image of Forms 34A was uploaded immediately after
The 1st, 3rd and 4th petitioners in the consolidated the transmitted result form was received as evinced
petition, challenged the technology used by IEBC by the time stamp.
during the 2022 General Election. They pleaded that
7
The petitioners also challenged the authority and screen scenario on their television sets. On one part
the decision of the IEBC or its chairperson to of the screen was the chairperson, readying himself to
postpone the gubernatorial elections in Kakamega declare the result of the presidential election; on the
and Mombasa counties, parliamentary elections in other part of the screen were the 5th to 8th respondents
Kitui Rural, Kacheliba, Rongai and Pokot South (the 4 Commissioners) on the lawns of the Serena
constituencies and electoral wards in Nyaki West Hotel-Nairobi, from where they announced that
in North Imenti Constituency and Kwa Njenga they would not “own” the results that were soon to be
in Embakasi South Constituency. They contended declared by their chairperson. The 4 commissioners
that the IEBC had no jurisdiction to postpone termed the results “opaque” due to the manner in
elections in those areas. They further contended that which the chairperson had been conducting the
section 55B of the Elections Act was inconsistent verification and tallying exercise. They contend that
with the Constitution and void to the extent that by rejecting IEBC’s results on grounds of opaqueness
it purported to donate to IEBC power to postpone of the verification and tallying process, they called
elections in the constituency, county or ward into question, the credibility of the entire election.
contrary to the Constitution. They contended that They further submitted that being in the majority
the postponement undermined the conduct of out of the seven-member Commission, their view
free, fair and credible elections by depriving the should prevail and the election should be nullified.
voters an opportunity to vote for all the candidates It was the petitioners’ argument, therefore, that
on the date stipulated by the Constitution. The a dysfunctional Commission could not deliver a
1st and 3rd petitioners also believed that elections credible election.
were deliberately postponed in Kakamega and
Mombasa counties. It was alleged that those areas The issues for determination were: whether the
were considered to be 1st petitioner’s strongholds, technology deployed by the IEBC for the conduct
and as such, the postponement of elections worked of the 2022 general elections met the standards of
to his disadvantage and handed a benefit to the 1st integrity, verifiability, security and transparency to
respondent. guarantee accurate and verifiable results; whether
there was interference with the uploading and
Those assertions were denied by IEBC and its transmission of Forms 34A from the polling stations
Chairperson. They however, admitted that they to the IEBC Public Portal; whether there was a
experienced confusion with the printed ballot papers difference between Forms 34A uploaded on the
and explained that they only discovered the mix-up IEBC Public Portal and the Forms 34A received at
on the eve of the Election when the ballot papers the National Tallying Centre, and the Forms 34A
were being distributed to the polling stations; that as issued to agents at the polling stations; whether the
a practice, ballot papers could only be opened on the IEBC acted ultra vires their powers in postponing
eve of the Election Day to avoid any mischief; and gubernatorial, parliamentary and ward elections in
that by the time the mix-up was discovered, it was select counties during a general election due to some
logistically impossible to print and replace the ballot unforeseen hindrances; whether postponement of
papers in time for the election. gubernatorial elections in Kakamega and Mombasa
counties, parliamentary elections in Kitui Rural,
The petitioners also contested the formula used by Kacheliba, Rongai and Pokot South constituencies
the IEBC or its chairperson to declare that the 1st and electoral wards in Nyaki West in North Imenti
respondent had obtained the threshold of 50% + Constituency and Kwa Njenga in Embakasi
1 of the votes cast in the presidential election. In South Constituency by the IEBC resulted in voter
particular, they challenged the rounding off. They suppression to the detriment of the petitioners;
contended that the rounding off of votes cast in whether the role of verifying and tallying of votes
a Presidential Election as a means of assessing the as received from polling stations countrywide could
threshold under article 138(4) of the Constitution be undertaken by the chairperson of the IEBC
killed and birthed voters, which was illegal and to the exclusion of other IEBC Commissioners;
unconstitutional. whether regulation 87(3) of the Elections (General)
Lastly the petitioners challenged the results of the Regulations was unconstitutional, to the extent that
presidential election on account of the opaque nature it purported to vest the power of verification and
of the verification exercise at the National Tallying tallying in the chairperson of IEBC; whether the
Center. On August 15, 2022 as the public waited discrepancies between the total number of votes cast
for the chairperson of the IEBC to declare the final for presidential candidates vis-à-vis the total number
result, Kenyans found themselves watching a split of votes cast for other elective positions by itself was
8
an indicator of fraud; which party bore the burden f. In compliance with section 6A of the Elections
of proof in election petitions; whether the IEBC Act, 2011, IEBC opened the register of voters
carried out the verification, tallying and declaration for verification of biometric data by members
of results in accordance with article 138(3)(c) and of the public for a period of 30 days. Thereafter,
138(10) of the Constitution; whether the declared the Register was revised to address issues arising
President-elect attained 50%+1 of all the votes cast from the verification exercise. KPMG then
in accordance with article 138(4) of the Constitution audited the register and the inconsistencies and
and whether there were irregularities and illegalities inaccuracies identified during the Audit were
of such magnitude as to affect the final result of the successfully addressed.
presidential election.
The court noted that no credible evidence was
The Supreme Court held that lack of trust in the presented to prove that anyone accessed the result
electoral system had endured in Kenya for a long transmission system (RTS) to intercept, detain
time. That led to the introduction of electoral or store Forms 34A temporarily before they were
technology via section 44 of the Elections Act, 2011. uploaded onto the Public Portal. The allegation that
Under the Elections Act, IEBC was enjoined to adopt 11,000 Forms 34A were affected by staging was not
technology in the electoral process. IEBC developed proved.
a technology known as the Kenya Integrated
Electoral Management System (KIEMS) making The Supreme Court found that the allegation that
Kenya’s election process hybrid as it employed both IEBC, its officials and strangers used a tool to
technology and manual processes. tamper with the Forms 34A before converting them
to the Portable Document Format (PDF) format
The court found that technology deployed by IEBC that eventually appeared on the Public Portal was
did not fail the standard of article 86(a) of the sufficiently explained when IEBC demonstrated
Constitution on integrity, verifiability, security and how KIEMS captured and transmitted the image
transparency for the following reasons: of Form 34A. The allegation was dismissed. The
transmission logs produced by the petitioners were
a. whereas it was true that the KIEMS kit failed of no probative value. The Registrar of the Supreme
in 235 polling stations, 86,889 voters were Court’s Report showed that the original Forms
granted the right to vote manually and the 34A from the contested polling stations which
requisite Forms 32A duly filled. That happened were allegedly intercepted were exactly the same as
successfully in Kibwezi West Constituency and those on the public portal and the certified copies
parts of Kakamega County. presented to the Supreme Court under section 12 of
b. While the Audit Report was released to the the Supreme Court Act, 2011. The allegation that the
public seven days before the August 9, 2022 integrity of the Public Portal was compromised was
election, the register of voters was used at the disproved by evidence of consistent attributes such
election without any apparent anomalies. as unique time stamps, uniform PDF conversions at
the polling stations, correct polling station mapping
c. Smartmatic was procured to provide the and consistent KIEMS reporting from verification
necessary technological infrastructure as IEBC to transmission of results.
did not have the capacity to do so. No credible
evidence meeting the requisite standard of The Supreme Court held that RTS was configured
proof of access to the system by unauthorized on a Virtual Platform Network (VPN) and the SIM
persons was adduced by the petitioners. cards locked to a specific polling station. The server
was also configured to accept results only from
d. The scrutiny Report prepared by the Registrar authorized and properly mapped KIEMS kit. The
of the Supreme Court (the Report) (the petitioners failed to produce credible evidence to
Registrar) did not reveal any security breaches the contrary. A review of some of the logs presented
of the IEBC’s RTS. as evidence of staging showed that they were
either from logs arising from the 2017 Presidential
e. IEBC successfully deployed a Biometric Voter
Election or were outright forgeries. There was no
Register (BVR) system which captured unique
evidence of a man in the middle server configured
features of a voter’s facial image, fingerprints
to the IEBC’s VPN network; and no evidence was
and civil data, to register and update voter
produced to show that the Chairperson of IEBC and
details across the country and in the diaspora.
staff were part of the alleged conspiracy to stage the
Those features were unique to each voter.
transmission process.
9
The Supreme Court held that there were no named in the affidavit and video clip attached to it.
significant differences captured between the Forms His two affidavits amounted to double hearsay, and
34A uploaded on the public portal and the physical incapable of being proved at each layer.
Forms 34A delivered to Bomas (National Tallying
Center) that would have affected the overall The Supreme Court held that Form 34A for
outcome of the Presidential Election. No credible Gacharaigu Primary School which was presented
evidence was presented to support the allegation Jose Carmago, accessed the RTS and interfered
that Forms 34A presented to agents differed from with the result contained therein turned out to be
those uploaded to the Public Portal. The Report no more than hot air. The court was taken on wild
by the Registrar confirmed the authenticity of the goose chase that yielded nothing of probative value.
original forms in the sampled polling stations. The Supreme Court found that KIEMS kit relating
The court found that the affidavit evidence presented to Psongoywo Primary School which bore the same
by the petitioners, while containing sensational serial number with another was admitted by IEBC
information, were not credible as the Registrar’s as an inadvertent manufacturer’s error. The two kits
Report confirmed that all the Forms 34A attached had other identifying features that were markedly
to those affidavits and purportedly given to them different including the time stamps and polling
by agents at select polling stations were significantly code. Nothing turned on that anomaly. There was
different from the originals, certified copies and no difference between Forms 34A uploaded on the
those on the public portal. The purported affidavit IEBC Public Portal, those received at the National
evidence was not only inadmissible, but were also Tallying Centre, and those issued to the candidates’
unacceptable. It had been established that none agents at the Polling Stations.
of the agents on whose behalf the forms were The court noted that IEBC postponed elections for
being presented swore any affidavit; that there was various seats during the General Elections of August
nothing to show that they had instructed both 9, 2022 due to mix-up of ballot papers in the above
Celestine Opiyo and Arnold Oginga (counsel for the named electoral units. Section 55B of the Elections
petitioners) to act for them. Yet the two had gone Act, 2011 provided for circumstances when elections
ahead to depone on matters that were not within could be postponed in a particular electoral unit
their knowledge. including in cases of emergency. The 3rd respondent
The Supreme Court could not countenance that type had the requisite power to postpone election in the
of conduct on the part of counsel who were officers constituencies, counties and wards in question.
of the court. Affidavits filed in court had to deal The court held that voter suppression was recognized
only with facts which a deponent could prove of his as a political strategy which took many forms but
own knowledge. As a general rule, counsel were not whose practical effect was ultimately to reduce voting
permitted to swear affidavits on behalf of their clients by deliberately discouraging or preventing targeted
in contentious matters because they ran the risk of groups of people from exercising their right to vote
unknowingly swearing to falsehoods and may also and thereby influence the outcome of an election. It
be liable to cross-examination to prove the matters went against the letter and spirit of article 38 which
deponed. Sections 113 and 114 of Penal Code guaranteed every citizen the right to make political
provided that swearing to falsehoods was a criminal choices based on universal suffrage.
offence, and it was an offence to present misleading
or fabricated evidence in any judicial proceedings. The court found that it had not been shown that,
One of the most serious losses an advocate may ever by postponing elections in the named electoral
suffer was the loss of trust of Judges for a long time. units, IEBC acted in bad faith or was influenced
Such conduct amounted to interference with the by irrelevant factors and considerations. The
proper administration of justice. postponement was occasioned by a genuine mistake,
which could have been avoided had the members
The court held that contents of the affidavit of and staff of the IEBC been more diligent when they
John Mark Githongo, which was alleged to contain went to inspect the templates in Athens, Greece
forgeries, were dismissed for not meeting the where the printing of ballot papers was undertaken.
evidential threshold. They contained no more than
incredible and hearsay evidence. No admissible The Supreme Court held that there was no basis for
evidence was presented to prove the allegation that the court to conclude that the postponement of the
Forms 34A were fraudulently altered by a group elections affected voter turnout as a consequence
situated in Karen under the direction of persons of which the 1st petitioner, alone, as a presidential
10
candidate suffered a disadvantage. The nature of the (c) of the Constitution, the power to verify and
ballot being an individual decision and secret, there tally Presidential Election results as received at
may be other variables to which the turnout in the the National Tallying Centre, vested not in the
named units could be attributed. 2022’s General chairperson of IEBC, but in the Commission
Election recorded one of the lowest turnout since itself. The latter carried out the exercise through its
the reintroduction of multi- party political system, secretariat staff, technical personnel, and any other
some 30 years ago. If there was a low voter turnout, persons hired for that purpose under the oversight
it affected all the six categories of candidates and and supervision of the chairperson, and other
its explanation lay elsewhere but certainly not a members of the Commission.
calculated suppression. There was no nexus between
the postponement of elections and voter turnout in The court found that the chairperson of the IEBC
the affected units, the claim was a red herring. There could not arrogate to himself the power to verify
was no proof that the postponement resulted in voter and tally the results of a Presidential Election, to the
suppression to the detriment of the 1st petitioner. exclusion of the other members of the Commission.
Article 138(10) of the Constitution, although the
The Supreme Court found that person who asserted power to declare the result of a Presidential Election
a fact had to prove it casts the burden upon the 1st after verification and tallying, was vested in the
petitioner to demonstrate that there were instances Chairperson, he did so only as a delegate of the
of ballot stuffing of such a magnitude as to justify Commission. To the extent that regulation 87(3)
the nullification of the Presidential Election. Ballot of the Elections (General) Regulations purported to
stuffing, which was the illegal addition of extra ballots, vest the power of verifying and tallying Presidential
was a type of electoral fraud aimed at swinging the Election results, as received at the National Tallying
results of an election towards a particular direction. Centre, solely on the Chairperson to the exclusion
Not a single document had been presented by the of other members of the Commission, the same was
1st petitioner to prove systematic ballot stuffing. A contrary to and inconsistent with the provisions of
figure of 33,208 votes relied on in that claim was the Constitution.
based on unproven hypothesis that since the number
of votes cast for President was higher than those for The Supreme Court found that part from their
the other positions then, without more, it had to eleventh-hour denunciation of the verification and
follow that there was fraud. tallying process, and their averments regarding the
conduct of the Chairperson, the four Commissioners
The court noted that fraud was a serious criminal had not placed before the court, any information
offence and had to be proved beyond reasonable or document showing that the elections were
doubt. Under section 5(n) of the Election Offences either compromised or that the result would have
Act, it was an offence for a person to vote more than substantially differed from that declared by the
once in any election. IEBC had proffered a plausible Chairperson of IEBC. They had not explained why
explanation for the vote differential. There were they participated in a verification process when they
categories of voters who only voted for the President, knew that it was opaque up until the last minute.
such as prisoners and Kenyans in the diaspora. There
were an insignificant number of stray votes, whose The Supreme Court held that 4 Commissioners
combined effect could not justify nullification of the acknowledged that the entire election had been
election. managed efficiently and credibly. The chairperson did
not make matters any better by maintaining a stoic
The court noted that a General Election in Kenya silence even as things appeared to be falling apart.
comprised of 6 different and separate elections held There was a serious malaise in the governance of an
concurrently on the same day. Such elections were institution entrusted with one of the monumental
held by secret ballot and one could not predetermine tasks of midwifing democracy; an institution that
the voter turnout or how voters would vote in each needed far-reaching reforms.
election. None of the parties had flagged anything
so significant that it would have affected the The court held that to nullify an election on the
outcome of the presidential election vis á vis the basis of a last-minute boardroom rapture between
other five elections held on that day. There were the chairperson of the Commission and some of its
no unexplainable discrepancies between the votes members in the absence of any evidence of violation
cast for Presidential candidates and other elective of the Constitution and electoral laws; to upset an
positions. election in which the people had participated without
hindrance, as they made their political choices
The court held that pursuant to article 138(3) pursuant to article 38 of the Constitution would be
11
tantamount to subjecting the sovereign will of the Given the numbers that were presented to the
Kenyan people to the quorum antics of the IEBC. court by IEBC and its chairperson, that would
The instant court was incapable of such action. The translate to:
dysfunctionality at the IEBC impugned the state
of its corporate governance but did not affect the 14, 213, 137 + 1 = 7,106,569
conduct of the election itself. Notwithstanding the 2
divisions apparent between the chairperson and the
4 Commissioners, IEBC carried out the verification,
The court found that 7,106, 569 was less than
tallying, and declaration of results in accordance
7,176,141 which represented the number of votes
with article 138 (3)(c) and (10) of the Constitution.
received by the 1st respondent. On the basis of the
The Supreme Court held that case made by the above formula and from the numbers provided by
6th petitioner concerned a data-specific threshold IEBC and its Chairperson, and the declaration by
enunciated under article 138(4) of the Constitution the Chairperson of the President-elect on August 15,
without the attainment of which, there could be 2022, the declared President-elect attained 50%+1
no declaration. That was the ultimate yardstick for of all the valid votes cast in accordance with article
determining the winner in a Presidential contest. 138(4) of the Constitution.
Rejected votes could not be taken into account when
The court also noted that although the petitioners had
calculating whether a Presidential candidate attained
provided numerous averments pointing to possible
50% +1 of votes cast in accordance with article 138
irregularities and illegalities, the pointed illegalities
(4) of the Constitution.
and irregularities were not of such magnitude as to
The Supreme Court found that in the case of affect the final result of the presidential election.
data-specific electoral requirements (such as those
The Supreme Court could only make the following
specified in article 138(4) of the Constitution, for an
orders when determining the validity of a presidential
outright win in the Presidential election), the party
election petition under article 140 Constitution:
bearing the legal burden of proof had to discharge it
beyond any reasonable doubt. The assertion by the a. in the event the court determined that the
6th petitioner that the percentage voter turnout was election of the President-elect was invalid, it
predicated on the uncorrected percentage given by had to make an order nullifying the election.
the Chairperson of IEBC, was negated by evidence Consequently, it had also to make an order
adduced to prove the correction. The 6th petitioner directing IEBC to hold a fresh election within
based his percentage of voter turnout on the total sixty days after the determination.
number of registered voters while the Chairperson
of IEBC made reference, in the press briefing, to b. Should the court determine that the election of
the number of registered voters who were identified the president-elect was valid, it was to issue a
through the KIEMS kits, progressively. The rounding declaration to that effect. The court would then
off done by IEBC and its Chairperson was correct. as a matter of course, make an order dismissing
the petition, with or without costs as the case
The court found that the petitioners did not provide could be.
a watertight case to warrant the setting aside of
the results of the Presidential Election on the basis The court could not assume jurisdiction that went
of not having met the threshold provided under beyond the purview of articles 163(3) and 140
article 138(4)(a) of the Constitution. The formula of the Constitution. However, nothing stopped
predicated on the number of voters identified the Court from issuing orders or reliefs by way of
through the KIEMS kit progressively and used by recommendations.
IEBC and its Chairperson to generate a percentage
The court noted that since 2013, the Supreme Court
of 64.76% was correct.
had issued many recommendations arising from the
The Supreme Court found that the Chairperson of determination of three petitions that challenged the
IEBC applied the formula in article 138(4) of the election of the president-elect. The recommendations
Constitution which was: were meant to improve Kenya’s electoral landscape
and hence aid in the development of Kenya’s
Total votes cast (less rejected votes)
democracy. The court had been greatly aided by the
= 50% +1 vote
2 contributions of amici curiae. The court placed a
heavy premium on the amici-briefs that were filed
by those it admitted in such capacity.
12
Petitions dismissed. ii. The election of the 1st respondent as President-elect

Orders to be valid under article 140(3) of the Constitution.
i. The Presidential Election Petition No. E005 of iii. Each party would bear their costs.
2022, as consolidated with Presidential Election
Petition Nos. E001, E002, E003, E004, E007
and E008 of 2022 was dismissed.

The first of a series, the KLR 2017 volume
1 contains judgments from the Supreme
Court of Kenya, the Court of Appeal and the
Kes. 5500 High Court delivered in 2017. The report
+ 16% VAT contains selected cases on diverse areas of
law ranging from:
• Alternative dispute resolution
• Family law (divorce and division of
matrimonial property)
• Judicial review
• Jurisdiction
• Tax law
• Tort law (negligence)
• Labour law
• Various aspects on devolution
13
Supreme Court
Court compels IEBC to give access to their servers for confirmation of the
information in Form 34C
Youth Advocacy for Africa (YAA) & 7 others v Independent Electoral and Boundaries Commission & 17
others (Election Petition E002, E003 & E005 of 2022 (Consolidated)) [2022] KESC 42 (KLR) (Election
Petitions) (30 August 2022) (Ruling)
Neutral citation: [2022] KESC 42 (KLR)
August 29, 2022
MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenoala,
W Ouko, SCJJ
Reported by John Ribia
Electoral Law – scrutiny – recount – application for among other orders regarding the technology used
scrutiny and recount - what criteria should courts employ in the presidential election that was conducted on
in determining applications for scrutiny and recount August 2022. The petitioners also sought for orders
in election results - whether an order allowing for the of inspection, scrutiny and recount for various
filing of further affidavits arising from the attainment polling stations.
of the information from the scrutiny exercise could issue
given the strict timelines applicable to a presidential Issues
election petition - Raila Amolo Odinga & another v i. What criteria should courts employ in
Independent Electoral and Boundaries Commission & determining applications for scrutiny and
2 others [2017] eKLR. recount of election results?
Civil Practice and Procedure – parties to a suit – ii. Whether the Supreme Court in determining the
parties to a presidential election petition – power of the presidential election petition could grant orders
court to issue orders to third parties not enjoined in the to direct the production of contracts with terms
presidential election petition - whether the Supreme of reference between third parties who were not
Court in determining a presidential election petition parties to petitions before the court.
could grant orders to direct the production of contracts iii. Whether an order allowing for the filing of
with terms of reference between third parties who were further affidavits arising from the attainment
not parties to petitions before the court. of the information from the scrutiny exercise
could issue given the strict timelines applicable
Brief facts to the presidential election petition.
The petitioners in the Presidential Election Petition Held
No. E002 of 2022 (the applicants) filed the
1. While considering a request for scrutiny of
instant application in which they sought for the
either the forms or the technology used in an
Independent Electoral and Boundaries Commission
election, the request for scrutiny had to be
(IEBC) to be compelled to give the petitioners or
made for a sufficient reason. Any request that
any person or expert engaged by IEBC in relation
would in effect be a fishing exercise to procure
to that petition, the complete unedited soft copy of
fresh evidence not already contained in the
the Voters Register; to give the petitioners full and
petition would be rejected. Any prayer couched
unfettered physical and remote access to electronic
in general terms, not pleaded with specificity
device(s) used to capture Form 34A’s and 34B’s on
or such request was impracticable in terms of
the Kenya Integrated Election Management System
scope and time would be declined. The narrow
(KIEMS) and transmitted to the Constituency
timelines granted by the Constitution to hear
Tallying Centre and the National Tallying Centre; to
and determine a presidential election dispute,
give the applicants full and unfettered physical and
meant that only reasonable, practical and
remote access to any server(s) at the constituency
helpful orders should be issued in that regard.
tallying centre for storing and transmitting
voting information and that the servers would be 2. Subject to section 12 of the Supreme Court Act
forensically imaged to capture inter alia, metadata all of the certified copies of the documents used
such as data files for all Forms 34A and Forms 34B to declare the results of the presidential election
14
were already in the custody of the court and were any security related issues thereof.
available to the parties upon request. There was ii. IEBC was compelled to give the applicants
no reason to grant the prayers to avail the soft supervised access to any server(s) at the National
copy of the voters register and to order scrutiny Tallying Centre for storing and transmitting voting
of the biometric voter register as the register was information and which were forensically imaged
already in the public domain. No justification to capture a copy of the Form 34C which was the
in the context had been given why the same total votes cast.
should be provided. The request to access to all iii. The IEBC to provide the applicants with certified
KIEMS kits and servers for all Constituency copies of penetration tests conducted on the IEBC
Tallying Centers was unrealistic given the short election Technology System prior to and during the
timelines for the hearing and determination of 2022 General and Presidential Election including
the presidential election petitions. certified copies of :
a. all reports prepared pursuant to Regulation
3. The orders sought regarding the technological
10 of Election (Technology) Regulations,
aspects of the presidential election petitions
2017; and
were not practicable, reasonable and helpful to
b. certified copies of certificates by a
ensure that the Supreme Court reached a just
professional(s) prepared pursuant to
and fair determination of the petitions. They
Regulation 10(2) of Election Technology)
were couched in general terms and were vague.
Regulations,2017.
4. There could be possible legal issues that could iv. IEBC directed to avail partnership agreements
arise in granting the prayer asking for the terms with its technical partners, list of users, trail and
of reference between Smartmatic International admin access to provide clarity on the IEBC systems
and Local Service Providers. The Supreme and their usage for review and verification, subject
Court could not blindly grant orders to direct however to any security related issues thereof.
the production of contracts with terms of v. The ballot boxes for the following polling stations
reference between third parties who were were to be opened for inspection, scrutiny and
not parties to the petitions before the court. recount:
Smartmatic International was not a party to the a. Nandi Hills and Sinendeti Primary School
proceedings neither were local service providers in Nandi.
and to demand that such terms of reference be b. Belgut, Kapsuser and Chepkutum Primary
accessed by the applicants was impractical and Schools in Kericho County.
may cause unnecessary delay in the hearing c. Jomvi, Mikindani and Ministry of Water
and determination of the presidential election Tanks Polling Stations in Mombasa
petition. County.
5. An order allowing for the filing of further d. Mvita, Majengo and Mvita Primary
affidavits arising from the attainment of the Schools in Mombasa County.
information from the scrutiny exercise, noting e. Tinderet CONMO, in Nandi County.
the time left for the hearing and determination f. Jarok, Gathanji and Kiheo Primary School
of the petition from the date of delivery of Polling in Nyandarua County.
the instant ruling, would only but delay the vi. The error forms signed by the chairperson of IEBC
proceedings and would occasion prejudice during the tally and verification exercise at the
to the respondents who would not be able to National Tallying Centre between August 10 – 15,
respond to the issues raised in the affidavits. 2022 be provided to the applicants.
vii. IEBC should provide certified copies of Forms 32A
Application partly allowed. and 34C Book 2 used in the impugned election
Orders subject to the applicants providing to the IEBC
i. The IEBC to provide to the applicants copies of its specific contested polling stations for compliance
technology system security policy comprising but thereof.
not limited to password policy, password matrix, viii. The above exercise was to be conducted within 48
owners of system administration password(s), hours of the instant orders.
system users and levels of access, and workflow ix. Each Party was to be represented by two agents
chats for identification, tallying, transmission and during the exercises above and they were at all
posting of portals and any API’s that had been times be under the supervision of the Registrar of
integrated and the list of human interface and the Supreme Court and her staff. The Registrar
controls for such intervention subject however to was to file her report by 5:00 PM on September 1,
15
2022 and avail copies to all parties. directed by the President of the court.
x. Any party was at liberty to submit on the Report xi. No order as to costs.
before conclusion of the hearing as was to be
There was urgent need for disciplinary procedures to be formulated to apply

to situations where a judge’s impugned actions or omissions did not meet the
constitutional threshold for removal from office
Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High
Court of Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (Civ) (19 May 2022) (Judgment)
Petition 4 of 2022
May 19, 2022
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
Civil Practice and Procedure – petitions – petition Brief facts

for the removal of a judge – format of such a petition –
where such a petition took the form of a letter - whether The instant petition was an appeal against the
a letter detailing the complaints of the conduct of a judge decision of the Tribunal appointed to investigate
constituted a formal petition before the Judicial Service the Conduct of Justice Martin Mati (the judge)
Commission for the removal of a judge – Constitution recommending his removal from office. The decision
of Kenya, 2010 article 168(2). of the tribunal was based on how the judge handled
Alfred Kipkorir Mutai & Kipsigis Stores Limited v.
Judicial Officers – conduct of judicial officers – delay NIC Bank Limited (HCCC NO. 4 of 2016) at the
in issuance of a ruling – inordinate delay – gross High Court at Bomet.
misconduct - where a judicial officer delayed to issue
reasons for a ruling by five months – what was the The case before the High Court centered around hire
definition of inordinate as used in inordinate delay purchase agreements between the plaintiffs in the
– what was the definition of gross misconduct as it suit (the borrowers) and the bank. In the agreements,
applied to petitions to remove judicial officers - whether the bank advanced loan facilities to the former to
the delay by a judge in giving reasons for a ruling by purchase several motor vehicles. When there was
five months was inordinate - whether the delay by a default in the repayment, the bank threatened to
judge in giving reasons for a ruling by five months repossess all the subject motor vehicles, prompting
amounted to gross misconduct - whether such a delay the borrowers to institute HCCC NO. 4 of 2016 to
warranted a judges removal from office - Constitution stop the bank by an order of permanent injunction
of Kenya, 2010 article 168(2); Civil Procedure Act, from repossessing the motor vehicles and also to
sections 1A and 1B ; High Court (Organization and declare that they were not indebted to the bank,
Administration) (General) Rules, 2016 order 3, 32 (1) claiming that they had fully settled the loan.
and (2). Also filed was an application in which the plaintiffs
Constitutional Law – fundamental rights and sought temporary orders of injuction to restrain
freedoms - right to fair administrative action – right the bank from seizing, repossessing, advertising for
to fair hearing – where a Tribunal appointed to sale, and or selling some 26 commercial vehicles,
investigate the conduct of a judge conducted the hearing the subject of the hire purchase agreement. The
without the court file – whether such a hearing violated application was granted ex parte on the same day.
the judge’s right to fair hearing and fair administrative The parties had agreed to determine the applications
action – Constitution of Kenya, 2010 articles 47 and by way of written submissions, but on the date of
50. highlighting the submissions, neither party had
filed any submissions. As a result, the court vacated
Law of Evidence – burden of proof – claim of the ex parte orders. Eight days later, the plaintiffs
inordinate delay by a court/judge – where a judge was having learnt of the vacation of the interim orders,
facing a tribunal that was investigating his conduct on the borrowers immediately filed an application for
grounds of inordinate delay - who bore the burden of setting aside of the proceedings that set aside the
proof of proving misconduct in such a scenario - what ex parte orders and sought for reinstatement of
was the burden of proof to be proved in a claim of the interim orders and maintenance of the status
inordinate delay against a court or judge. quo. The petitioner (judge in the suit highlighted
16
above) gave orders maintaining the status quo and for determination by the trial court, the tribunal
reinstated the interim orders. The petitioner however considered matters without jurisdiction.
did not give reasons for his decision despite having ix. Whether based on the facts of the instant case,
given dates to issue the reasons. He had deferred the the bank suffered loss and prejudice by the
matter several times. (The court issued reasons five decision of the petitioner
months from the date of the ruling). During the
Held
delay, the bank was not able to file due to the lack
of a ruling in which they would base their grounds. 1. Although judges were subject to the law, there was
Subsequently the bank claimed to have lost around need to protect their decisional independence in
seventy seven million Kenya shillings as a result of the interests of the whole community to enable
the delay. them to apply and interpret the Constitution
and legislations without fear of any form of
Aggrieved the bank wrote a letter of complaint to improper interference and influence. In their
the Chief Justice and copied to the Judicial Service judicial conduct, judges were not subject to
Commission (JSC) in which they sought the direct discipline, except in the extreme cases
intervention of the Chief Justice by urging the Chief of proved misconduct or misbehaviour, among
Justice to call for the file, to review the same and to other grounds. It was only those circumstances
take the requisite administrative action to remedy plainly spelled out in article 168(a) to (e) that a
the situation. judge could be removed from office.
2. Complaints and removal proceedings against
The Chief Justice forwarded both letters and the reply judges were generally very sensitive issues. Such
he had received from the petitioner to the JSC. The proceedings ought to be dealt with strictly
JSC, in turn, constituted a committee to consider in accordance with a clear constitutional and
the complaints. The committee recommended to legislative framework, which had to also follow
the commission to petition the president to appoint an established clear and objective standard.
a tribunal to further investigate the conduct of the 3. Though independent in the way they arrived
judge. The tribunal came to the conclusion that the at their decisions, judges were subject to a
delay of five months was inordinate and constituted number of forms of accountability which
gross misconduct and recommended the removal were not incompatible with their individual
of the judge from office. Aggrieved the judge and institutional independence. They were
(petitioner) filed the instant appeal. accountable through the public nature of their
Issues work but more particularly through the appellate
system of the courts. There was a duty on the
i. Whether a letter detailing the complaints of the
judges to give reasons for their decisions. It was
conduct of a judge constituted a formal petition
only by giving reasons for their decisions that
before the Judicial Service Commission for the
those aggrieved could appeal those decisions.
removal of a judge.
Transparency that build public confidence in
ii. Whether the delay by a judge in giving reasons
the judicial process would be achieved through
for a ruling by five months was inordinate.
reasoned decisions.
iii. Whether the delay by a judge in giving reasons
4. Regarding removal of a judge on the ground
for a ruling by five months amounted to gross
of gross misconduct, the following principles
misconduct serious enough to justify the
applied:
removal of a judge from office.
a. Unlike its jurisdiction under article 163(4)
iv. What was the definition of inordinate as used in
of the Constitution, the Supreme Court, as
inordinate delay?
the first and only appellate Court in such
v. What was the definition of gross misconduct as
matters, had a more expansive jurisdiction
it applied to petitions to remove judicial officers?
since, it was required to re-evaluate and re-
vi. What was the standard of proof that one had to
assess the evidence on record in order to
prove in proving inordinate delay?
establish whether the tribunal misdirected
vii. Whether continuation of a hearing by a tribunal
itself leading to a wrong conclusion.
appointed to investigate the conduct of a judge
b. Judges were presumed to be independent
despite the unavailability of the court file was
and to act without the control of anyone in
prejudicial and amounted to a violation of
deciding cases before them.
the right to fair hearing and the right to fair
c. Judges should always ensure that their
administrative action.
conduct was beyond reproach in the eyes of
viii. Whether, in considering matters that were up
17
a reasonable observer. They had to always to give certainty on the process, the complaint
uphold the principle that justice ought not to the commission ought not be initiated in a
only be done but be seen to be done. casual and ambiguous manner.
d. Once the president had received a 9. The controversy generated by the manner the
petition from the commission, he was complaint in the instant matter was initiated
constitutionally bound to appoint a raised the question whether the letter merely
tribunal. sought the chief justice’s administrative
e. The standard of proof, whether in direct or intervention or whether it was a petition, and in
circumstantial evidence, was one which was order to prevent abuse of its process by litigants
neither beyond reasonable doubt nor on a who were likely to file frivolous or vexatious
balance of probabilities. complaints, it was time the JSC considered a
5. An appeal under article 168(8) of the structured and formal complaints initiating
Constitution to the Supreme Court was mechanism.
essentially in the nature of first appeal, in the 10. A structured and formal complaints initiating
exercise of which jurisdiction the court had a mechanism similar to the procedure governing
more expansive power to review and re-evaluate the conduct of a JSC or panel constituted under
the evidence on record in order to establish the the third schedule made pursuant to section
correctness of conclusions of facts as well as 32 of the Judicial Service Act for discipline
of law recorded by the tribunal, but granting and removal of judicial officers could be
deference to tribunal’s observation of credibility considered, with necessary adaptations to fill
or unreliability of witnesses. the void in conducting preliminary inquiries
6. Whilst a first appellate court had jurisdiction on the complaints before a recommendation for
to review the evidence to determine whether removal could be made.
the conclusions of the trial judge should stand, 11. It could also be in the nature and form that
that jurisdiction was exercised with caution; if had been adopted by equivalent bodies
there was no evidence to support a particular elsewhere. International best practice revealed
conclusion, or if it is shown that the court below that the complaint should contain as much
failed to appreciate the weight of the evidence or relevant detail as possible, bear the particulars
that he was plainly wrong in his conclusions, the of the complainant and a verification of the
appellate court would not hesitate to overturn truthfulness of the complaint under penalty of
the decision. A first appellate court was not perjury.
bound necessarily to follow the trial court’s 12. Since the application before the petitioner was
findings of fact because such an appeal was by one for injunction, by order 40 rule 5 of the Civil
way of retrial. Procedure Rules, the petitioner was to deliver
7. The letter to the chief justice set out the alleged the ruling either at once or within thirty days
facts which the bank believed constituted the of the conclusion of the inter- partes hearing.
grounds for the petitioner’s removal from office, In contrast with order 21 rule 1, there was no
and met the features of a petition. Under article requirement in order 40 rule 5 to forward the
168(2) of the Constitution, the Judicial Service recorded reasons to the chief justice.
Commission (JSC) could on its own motion 13. After the file was sent to the chief justice upon
initiate the removal of a judge. The chief justice, his request, it was misplaced, never to be traced,
in the instant case, in his administrative capacity, despite strenuous steps throughout the period
merely forwarded the complaint together with of the inquiry. Justification for the delay was
the petitioner’s response to the commission and dependent on the availability of the file.
the commission, being satisfied that there were 14. Applying order 40 rule 5 and rule 32(2) of the
issues for investigation, seized the complaint. Civil Procedure Rules aforesaid, the relevant
8. A complaint intended for the removal of a judge dates for consideration were April 5, 2017,
on any of the grounds stipulated under article being the date parties were heard, May 30,
168(1) (a) to (e) of the Constitution was a serious 2017, when the ruling was delivered with
matter. It brought to bear the preservation of the reasons being reserved and November 3, 2017,
professional integrity and ability of the judge the date when those reasons were given. From
who was the subject of the complaint and also April 5, 2017, the petitioner had 30 days to rule
concerned the independence of the judiciary as on the application and the objection. A ruling
a whole. For the process of removal of a judge to was rendered on May 30, 2017, out of time,
promote public confidence in the judiciary, and even taking into account the additional seven
18
days permitted by rule 32(2). he had brought those challenges to the attention
15. The reasons were rendered after some delay. of the chief justice and chief registrar of the
Those reasons were given five months after the judiciary.
period allowed by the rules. During that period, 19. The length of the delay being five months and
the delivery of those reasons was adjourned bearing in mind that it was just one isolated
eight times. instance of delay in the petitioner’s many
16. Long drawn delays after the conclusion of years of service; appreciating the justification
a hearing, were contrary to the rule of law as he proffered which highlighted systemic
they prolonged uncertainty; and that litigants institutional pressures, personal factors such as
were entitled to know the reasons for the his annual leave, the lamentable conditions of
courts’ decisions. That was why section 25 of work, the finding of inordinate delay failed to
the Civil Procedure Act demanded of courts take into consideration those reasons.
that, after the case had been heard, they had to 20. Comparing the delay here with those running
pronounce judgment, and only then a decree into several years enumerated in the JMVB
could be drawn. Judgments, as all judicial reports, the five years in, for example, Manchester
decisions had to contain, by dint of order Outfitters Suiting Division Ltd & another v
21 rule 4 a concise statement of the case, the Standard Chartered Financial Services Ltd &
points for determination, the decision thereon, another [supra] , or sixteen months in Elizabeth
and the reasons for such decision. Justice Barangaza v. Tyson Habenga [supra] , five
delayed was justice denied was a constitutional months delay, coupled with plausible reasons
imperative enshrined in article 159(2)(b) of the presented to the chief justice, the JSC and the
Constitution, the malaise of delays and backlog tribunal, was not inordinate. It was not extreme,
of cases had been one of the main indictments or unconscionable. It was not out of proportion
against the judiciary as demonstrated by the and did not exceed the limits of reason.
enduring characteristic of proceedings in many 21. The tribunal did not give sufficient consideration
courts in Kenya. to the reasons advanced by petitioner for the
17. Time as a relative and subjective concept and that delay. In the tribunal’s opinion the petitioner
in the context of judicial processes, the principal ought to have utilized the court recess and
issue could not be the extent of delay, but its annual leave to finalize his pending judgments
reasonableness and justification for it. There and rulings. That position clearly ignored
was no single universally accepted definition the petitioner’s explanation that his personal
of the word “inordinate”. Whether a delay was circumstances were such that he could not
inordinate was a question to be determined on finalize all pending decisions during that period.
a case by case basis and on the peculiar facts and 22. During the recess period judges took leave, deal
circumstances; that inordinate delay should not with judgment and ruling backlog and attend
be difficult to discern where it occurred it should to other professional and family matters. While
be apparent, self-evident and obvious. The focus judges were encouraged to deal with judgment
should not be on the length of the delay per se, and ruling backlog, and while in reality judges,
but also on the justification and reasons, which by and large used recess to do so, it was not
in turn had to be rational and plausible; that possible in all instances to finalize all pending
where the delay was prolonged, it was in the rulings and judgments during each recess, as the
discretion of the court to consider, whether tribunal appeared to suggest.
justice could still be done despite the delay. The 23. Judges were overburdened on a daily basis and
prejudice likely to be occasioned to any party work extremely long hours. The time judges
was equally an important consideration. spent in court was just a fraction of their
18. A lapse of five months was not per se inordinate. working time. They spent evenings, nights, and
It would only amount to inordinate delay if it weekends reading files, reading other judgments
was inexcusable for lack of justification. Before and drafting opinions. Further, subordinate
the complaint was escalated to the JSC, the courts and majority of the superior courts work
petitioner, in his response dated to the chief five days a week. In the absence of sufficient
justice, catalogued those reasons and some of breaks, leave or recess, judges could suffer a
the challenges he was facing in running the burnout, and were likely to fail to meet work-
two court stations. The reasons were not, as related commitments.
it were, invented for purposes of the tribunal 24. The petitioner’s explanation that he served
proceedings. He confirmed to the tribunal that in two court stations, or that he had heavy
19
caseloads, or that he worked under difficult without having to reach the conclusion that an
conditions, were not rebutted. For Bomet High individual judge was incapable of performing
Court, on average on a single day, the petitioner the duties of his or her office. Others could be so
would have six cases listed for hearing. Those grave with the potential of undermining public
included murder trials, which the petitioner confidence in the ability of the judge to perform
said would take a whole week and succession the duties of office or in the administration of
causes that would involve many witnesses and justice generally, warranting the discharge from
could take a whole day or even two days. performing judicial functions.
25. The burden on the petitioner in terms of order 40 31. The word gross could only mean any of the
rule 5 of the Civil Procedure Rules, was limited following; atrocious, colossal, deplorable,
to him offering an explanation, some reason, disgusting, dreadful, enormous, gigantic, grave,
why the reasons were not rendered within thirty heinous, outrageous, odious, and shocking.
days of the hearing. The petitioner, having 32. “Gross” expressed some extreme negative
discharged the initial burden of proof under conduct; degrees of misconduct of such a
order 40 rule 5, the evidential burden shifted to serious, outrageous and flagrant nature that
the Tribunal to rebut the petitioner’s claims, by, would warrant removal of a judge from office,
for instance visiting Bomet and Kericho High those that would render an individual judge
Courts to verify for itself some of the challenges unfit or incapable of performing the duties of
presented to them on the working conditions. his or her office. That was how serious it ought
There was nothing to show that the tribunal to be.
conducted further inquiry over the general and 33. The necessity of proof always lay with the person
overall status of delayed decisions in the High who lay charges. The petitioner’s conduct did
Court and the contributing factors of delay. not amount to ‘gross misconduct’ within the
26. Only long, incessant, repetitive and habitual intended meaning in the Constitution.
delays could amount to an indefensible 34. The conduct of the petitioner was not persistent,
dereliction of duty, which in turn could render or that, considered alone, it was capable of
the judge concerned unsuitable to hold office. destroying the confidence in the judge’s ability
Five months’ delay was simply a delay, not to properly perform his judicial function. There
inordinate delay. Justice could still be served was no discernible pattern of dereliction, but
despite the delay. a single act of transgression; a five months’
27. Security of tenure for judges was intended to delay. He readily admitted the delay, gave an
protect them against interference by any person explanation and expressed remorse.
or authority and against arbitrary removal from 35. Gross misconduct was not proved to the
office. A judge may be removed from the office required threshold and the recommendation
only for reasons of incapacity or misbehaviour by the tribunal to the president to remove
that clearly rendered them unfit to discharge the petitioner from office on that ground was
their duties. Judges were guaranteed tenure therefore in error. No doubt the delay could,
of office until attainment of voluntary or to the extent we shall explain, been prejudicial
mandatory retirement age; and barring that, to the bank, the punishment imposed on the
they could be removed only for reasons of petitioner was excessive and disproportionate
incapacity or behaviour and other grounds that his indiscretion.
rendered them unfit to discharge their duties. 36. Removal of a judge from office for whatever
28. The phrase ‘gross misconduct’ was not defined reason was not a light matter. That was why there
in any Kenyan legislation within the Kenyan were only very limited specific circumstances for
jurisdiction.There was no conventionally the removal. Removal from office was the only
accepted legal definition of ‘gross misconduct’. and most severe sanction available for discipline
29. Whether the conduct of a judge could be typified of a judge. Unlike Kenya, some jurisdictions
as “gross misconduct or misbehaviour” could had made provision for lesser measures, such
not be assessed in abstract. It was a question of as reprimand, admonition to reprimand. The
fact which would depend on the nature of the Constitution provided only for the procedures
complaint. It was not every misconduct that for removal of judges, and there were no
would expose a judge to a removal process. equivalent procedures for disciplinary action
30. There were different degrees of misconduct. against a judge for misconduct not warranting
Some could undermine public confidence removal.
in the administration of justice generally, 37. The tribunal made no findings regarding the
20
question of the order of status quo and the and the tribunal were two different stages, with
alleged loss of KSh. 76,159,411 because it different standards of proof. The latter required
would have been inappropriate for it to do so as a more comprehensive response, being a matter
those were matter whose determination was yet of discipline with the likelihood of removal
to be reached by the trial court. It could also not from office. For that, the petitioner certainly
question the exercise of judicial discretion by required to refer to the record of proceedings.
the petitioner. The ground of gross misconduct It was erroneous for the tribunal to find that
was not proved to the required standard. the unavailability of the file did not infringe the
38. Though the tribunal required the petitioner petitioner’s right to fair administrative action
to provide proof that he actually delivered the and fair hearing as guaranteed by articles 47 and
reasons and the date of doing so, that question 50 of the Constitution.
was moot in view of the tribunal’s own finding. 43. The tribunal appointed under article 168
That ground was hypothetical. of the Constitution was responsible for the
39. A tribunal constituted under article 158 of the regulation of its proceedings. In the course
Constitution was a quasi-judicial body which of its work, it had to uphold the principle of
had to comply with the rules of natural justice. substantial justice; it had to interpret the laws
It was required to conduct a fully-fledged trial, and regulations in a manner that promoted the
where the affected judge was entitled to the right principle of substantial justice; that it would
to legal representation; the right to be present exercise all the powers necessary for the proper
while the witnesses testified; the right to adduce execution of its mandate; and the tribunal was
and challenge evidence; and the right to present not bound by strict rules of evidence but was
arguments, and related rights in order to ensure to be guided by the rules of natural justice and
that the hearing complied with the dictates of relevancy.
procedural and substantive fairness. 44. The tribunal exercised wide powers. Since the
40. The petitioner repeatedly requested, without complaint was not about the competency of the
success, for the relevant court file to prepare his petitioner, and consistent with the principle of
defence. The file had been forwarded to the Chief judicial independence, the tribunal could not
Justice following letters of complaint against inquire into the manner in which the petitioner
the petitioner. Though the tribunal reiterated exercised his discretion when deciding an
the dicta in criminal cases that loss of a file per interlocutory application. Without proof of bias,
se would not lead to an automatic acquittal, it bad faith or corruption, there was no basis to
did not, at all, suggest that the petitioner was fault the petitioner’s exercise of discretion. And
responsible in any way for the misplacement if he did not exercise it properly, it could only
of the file. Even though the tribunal was alive be challenged by an application for review or
to the fact that the proof of some allegations setting aside, stay of execution and proceedings
was dependent on the record of proceedings, or on appeal.
strangely it rejected the petitioner’s explanation 45. Contrary to the bank’s argument that it could
that the reasons were recorded. not move to the Court of Appeal because
41. It was prejudicial for the tribunal to insist on the notice of appeal had been cancelled, the
proof of a fact that could not be availed in cancellation was irregular and had no effect
the absence of the file, with the result that the on the validity of the notice. Even after the
petitioner was jeopardized in his defence. It purported cancellation, the notice was served
was of no effect that the petitioner willingly on the borrowers’ advocates.
agreed to proceed with the hearing without the 46. It was erroneous for the tribunal to have
file. He could not have acquiesced in light of considered matters which the petitioner was
the statement of hopelessness by his counsel, not even aware of when he made the impugned
reproduced above. The petitioner merely decision. The existence of an insolvency cause to
accepted his fate in light of the situation he wind up the 1st plaintiff (Kipsigis Stores Limited)
and the tribunal found themselves, without the in Nbi. H.C. Insolvency Case No. 14 of 2016
court file. was not brought to the petitioner’s attention
42. The petitioner having had possession of the when he granted injunction against the bank.
court file while preparing his written reply to Yet, the tribunal, even after acknowledging
the chief justice was prejudiced. Responding to that all those issues were alive before the High
the letters submitted to him by the chief justice, Court, went ahead, nonetheless, to blame the
and preparing to defend himself before the JSC petitioner for the “negative consequences” that
21
the bank was exposed to by his decision. The matter of fact, decided on the circumstances of
tribunal, in considering the prejudice allegedly each case, and that the court had to consider
suffered by the bank, went into details that only whether the defendant has been prejudiced
a trial court was competent to consider. by the delay. On the other hand, in Nzoia
47. The bank was not prejudiced. Where an order Sugar Company Limited v West Kenya Sugar
was vague, as suggested by the bank in relation Limited [2020] eKLR the High court found an
to that of the maintenance of status quo, the unexplained delay of two years in prosecuting a
practice was to seek a clarification. Loss, if any, matter unreasonable. It also stated that the mere
arising from the sale of the motor vehicles to the fact that the defendant had not demonstrated
third parties or vandalism of the motor vehicles prejudice was not sufficient to sustain that suit.
were all matters to be tested in a judicial process 52. Delay was a matter of fact to be determined
in a trial. The bank’s counterclaim that sought on a case-to-case basis. order 40 rule 5 of the
from the borrowers Kshs. 76,159,411.47 as the Civil Procedure Rules required a ruling for
sum owed to it had not been tried and decided interlocutory to be delivered within thirty
in the High Court. By accepting that the bank days from the date of the hearing. Order 32
suffered prejudice, the tribunal went beyond (1) and (2) of the High Court (Organization
where it ought to have stopped. Further, it also and Administration) (General) Rules 2016
emerged from examination of witnesses that, stipulated that a court could give a decision but
apart from the guarantors to the facility, there reserve its reasons for a period of seven days.
was insurance cover for the vehicles. In the instant case, the ruling was delivered
48. There was no proven loss or prejudice suffered on May 30, 2017, with the reasons for the
by the bank as a direct consequence of the judgment being delivered on November 3,
petitioner’s decision. The bank encountered 2017, five months after the delivery of the
inconvenience and even some irritation by that ruling. The bank filed a notice of appeal against
decision, but no loss or prejudice was shown. the ruling of the petitioner. That was a clear
49. So important was judicial independence that indication of the bank’s intention to appeal
removal of a judge could only be justified where against the said ruling. The matter was also filed
the shortcomings complained of were so serious under a certificate of urgency. The petitioner
as to destroy confidence in the judge’s ability was fully aware that that was an urgent matter
properly to perform the judicial function. As which needed complete disposal, and with
grounds of removal of a judge from office, which, without the reasons, the aggrieved
gross misconduct or misbehaviour was used party was likely to suffer prejudice. The delay
in contradistinction to simply misconduct was inordinate as it exceeded reasonable limits,
or misbehaviour. Gross was an expression of given the urgency of the matter and the likely
something very serious. It was a test of whether prejudice occasioned to the bank.
the judge, whose conduct was being investigated, 53. The justification for the delay was that the
could continue to be trusted to carry out his or house he was occupying was unfinished with
her role in the administration of justice. It was no water and electricity was not excusable as
not every delay that would attract punishment. the petitioner did not demonstrate how “the
Only inordinate and inexcusable delays were unfinished house” affected him from giving
discouraged. reasons in the impugned ruling bearing in mind
Per SN Ndungu, SCJ (Concurring) that he had an office with the requisite amenities
50. Whereas there was no precise definition of to enable him to discharge his duties.
the term ‘inordinate’, inordinate meant that 54. Annual leave under section 28 of the
the differential between the norm and the Employment Act was 21 working days which
actual progress of an action was so large as to would ordinarily translate to one calendar
be unreasonable or unjustifiable. The term month unless the employer provided for a
inordinate could be described as exceeding longer period. While scheduling to proceed
reasonable limits. for leave, the petitioner should have prioritized
51. Courts in Kenya had made several conflicting issuance of the said reasons and any other
decisions on what constituted inordinate urgent work before proceeding for leave. Even
delay. For instance, in Agip (Kenya) Limited v if he had to proceed for leave without clearing
Highlands Tyres Limited [2001] KLR 630, in urgent work before him, the petitioner failed to
finding that a delay of eight months was not explain the other four of the five months’ delay.
inordinate, the court noted that delay was a The petitioner’s explanation was inadequate.
22
55. The petitioner’s third justification for the serious than misconduct that was prejudicial
delay was that he served in two stations. The only to the appearance propriety;
concurring court was not able to conclude that d. Misconduct that did not implicate the
the petitioner was fully engaged in the two actual administration of justice, or its
stations for a period of five months and even if appearance of impropriety, was less serious
he was, he should have organized his work on a than misconduct that did;
priority basis depending on the urgency of the e. Misconduct that occurred spontaneously
matters before him. The instant explanation also was less serious than misconduct that was
failed. premeditated or deliberated;
56. The delay was unreasonable. The High Court, f. Misconduct that undermined the ability of
unlike the Supreme Court, was not a final the justice system to discover the truth of
appellate court. Therefore, it was contemplated what occurred in a legal controversy, or to
that if a party was aggrieved by a decision of reach the most just result in such a case, was
the High Court, they had the right of appeal to more serious than misconduct that merely
the Court of Appeal and would need the reasons delayed such discovery; and
from the High Court to formulate the grounds g. Misconduct that involved the unequal
of appeal. The failure therefore, of not giving application of justice on the basis of
reasons, had the effect of violating the bank’s such considerations as race, color, ethnic
right to be heard and its access to justice. background, gender, or religion was more
57. ‘Gross misconduct’ was ‘unacceptable or serious than breaches of justice that did not
improper behaviour of a very serious kind, disparage the integrity of the system on the
especially by an employee or professional basis of a class of citizenship.
person. ‘Gross’ was ‘unacceptable because clearly 60. There was no evidence led to the effect that
wrong, it was a dereliction of duty or improper the petitioner had formed a part of a pattern
behaviour. What constituted either gross delaying rulings, reasons thereof, or judgments.
misconduct or misconduct varied depending on That was an isolated incident. Even though the
the degree. petitioner’s action amounted to misconduct it
58. The inordinate delay in giving reasons in did not warrant removal from office.
the ruling constituted a dereliction of duty 61. Whereas the Constitution and the Judicial
amounting to misconduct. A judge was Service Act made provisions for the removal
mandated by the Bangalore Principles of of a judge for gross misconduct, there was no
Judicial Conduct to perform all his or her equivalent constitutional and statutory provision
duties, including the delivery of reserved for a disciplinary process of any kind for mere
decisions, efficiently, fairly, and with reasonable misconduct that did not amount to removal of
promptness. The delay to giving reasons for the a judge. There was a quagmire whenever there
ruling for a period of five months in a situation could be a finding of an alleged conduct of a
where there was an indication that an appeal judge which was just misconduct and not gross
from that decision would be made, and that misconduct.
such appeal could not be made without those 62. Despite the findings of the concurring court
reasons could only bring me to the conclusion on the petitioner’s misconduct, there was
that the petitioner performed his duty neither urgent need for constitutional and statutory
efficiently nor with promptness. Therefore, the amendments that would allow for provisions for
action of the petitioner, bearing in mind the disciplinary procedures to be applied, where a
consequences of such dereliction of duty to the judge’s impugned actions or omissions did not
aggrieved litigant, was objectionable. meet the constitutional threshold for removal
59. The recommended factors to be considered in from office. There was need to provide some
evaluating judicial discipline were as follows: form of sanction, where such circumstances
a. Misconduct that was part of a pattern or exist, other than removal from office. Until then
practice was more serious than an isolated the lacuna in law remained to the detriment of
instance of misconduct; any aggrieved party.
b. Misconduct on the bench was usually more 63. A tribunal established under article 168 of the
serious than the same misconduct off the Constitution had to comply with the rules of
bench; natural justice which required the Tribunal
c. Misconduct that was prejudicial to the to conduct a fully-fledged trial, where the
actual administration of justice was more petitioner was entitled to the right to legal
23
representation, the right to be present while the ensure the eradication of the vice of missing
witnesses testify, the right to adduce or challenge files.
evidence, and the right to present arguments 66. Rule 86 of the Court of Appeal Rules, 2010
and related rights. Denying the petitioner enumerated the contents of a memorandum of
the opportunity to adduce or challenge the appeal as the grounds of objection to the decision
contents of the missing file which was crucial appeal against, specifying the points which were
to the determination of the matter amounted alleged to have been wrongly decided, and the
to a violation of his right to fair administrative nature of the order which it was proposed to ask
action under article 47 which guaranteed every the court to make. The bank suffered prejudice
person the right to administrative action that as a result of the delay in giving reasons for the
was expeditious, efficient, lawful, reasonable, ruling. If the bank was aggrieved by the ruling of
and procedurally fair. May 30, 2017, taking into account the proviso
64. The petitioner’s consent did not remedy the of rule 86, it would not have been able to file
fact that his right to fair administration was a memorandum of appeal within the stipulated
infringed by JSC. The right to a fair hearing was period of time.
a non-derogable right under article 25 of the 67. An aggrieved party would extract their grounds
Constitution and should not be violated under of appeal from the reasoning of a judgment or
any circumstances. The petitioner agreeing to ruling they were dissatisfied with. The petitioner,
proceed with the matter without the file did not being judge, was well versed with the provisions
remedy the fact that his right to a fair hearing of rule 86 and therefore delaying the reasons for
was violated by JSC. He was entitled to the 5 months barred the bank from accessing justice
missing file to enable him to prepare for his in good time, consequently, suffering prejudice.
defence. The delay in giving reasons for the ruling on
65. The problem of missing files in Kenyan courts May 30, 2017 caused prejudice to the bank.
was not a new phenomenon, but one that had Appeal partially allowed.
persisted over the years and should be frowned Orders
upon. Missing files continued to deny innocent i. Save for the finding that letter of complaint was a
Kenyans the fundamental right to be governed petition, the tribunal’s finding in respect of all the
by the rule of law and efficient access to justice. other grounds were quashed and set aside.
Therefore, improving operations at the registries ii. The petitioner’s conduct did not amount to gross
where files were stored was not only important misconduct in terms of article 168(1)(e) of the
in reducing case delay but also important in Constitution.
tracking files within the system. The judiciary iii. The tribunal’s recommendation to the president
had taken substantial measures to curb the to remove the petitioner from office under article
loss of files but unfortunately reports of lost, 168(7)(b) of the Constitution was set aside.
deliberately or inadvertently misplaced or iv. No order as to costs.
disappearance of court files were still common.
There was a need to strengthen the system to
24
HIGH COURT
Failure to include an option of ‘none of the above’ in ballot papers did not infringe
on the electoral rights of Kenyans
Gachunga v Independent Electoral Boundaries Commission (Petition E028 of 2021) [2022] KEHC
12685 (KLR) (28 July 2022) (Judgment)
Petition E028 OF 2021
High Court at Nakuru
HK Chemitei, J
July 28, 2022
Constitutional Law – separation of powers – powers Held

of the High Court vis-à-vis powers of independent
1. The powers and functions of the Independent
constitutional commissions - whether the High Court
Electoral Boundaries Commission (IEBC)
had the power to give directions to the IEBC, an
were enshrined under article 88(4) of the
independent constitutional commission, on how to
Constitution of the Kenya. Under article 248(2)
conduct its functions – Constitution of Kenya, 2010
the respondent was listed as an Independent
articles 82(d) and 248(2).
Commission amongst other commissions. The
Electoral Law – Independent Electoral and Boundaries High Court could not purport to give to the
Commission – role of IEBC to design and include the respondent directions on exactly how to carry
options available in a ballot paper for each elective out its powers and functions. Further, the courts
position – claim that failure to include an option of ought not to be drawn into determining how
‘none of the above’ in ballot papers infringed the rights the people of Kenya should exercise their voting
of Kenyans - whether failure by the IEBC to include the rights. That was the preserve of the legislature.
option of ‘none of the above’ on ballot papers infringed 2. The applicant was asking the court to include
on the electoral rights of voters. a fundamental input to Kenya’s election laws
which needed the public to participate in the
Brief facts usual manner. Public participation would be an
The petition before the court sought orders for the integral part of such an addition or amendment.
court to compel the respondent (IEBC) to include 3. Article 82(d) of the Constitution of Kenya,
“None of the above” option on the ballot papers to 2010 provided that parliament was to enact
allow voters who did not wish to vote for any of the legislation on election on the conduct of
candidates to exercise their right to reject without elections and referenda and its regulation and
violation of the secrecy of their decision. The efficient supervision of elections and referenda,
objective among others was to enable voters who including the nomination of candidates for
came to the polling booth and decide not to vote elections. If the petitioner held the view that
for any of the candidate in the tray, to exercise their there was a need to have the ‘none of the above’
right by voting on the ballot paper section indicated option to be included in the ballot paper, it
as “none of the above” while maintaining their right was open to him to lobby the legislative arm of
of secrecy. government to do the needful.
Issues 4. The court did not find any reason to allow the
i. Whether the option of ‘none of the above’ not petition noting that there was no evidence that
being an option in the ballot papers in the not including “none of the above” had breached
general elections violated the petitioner’s rights. the petitioner’s right or the general public. No
evidence had been demonstrated to show that
ii. Whether the High Court had the power to
the public who would wish to exercise such
give directions to the IEBC, an Independent
right had been disenfranchised. There was no
Constitutional Commission, on how to conduct
evidence that the respondent had breached any
its functions.
provisions of the Constitution or any laws that
would compel the court to allow the application.
25
5. The better way was for the applicant and those laws to accommodate such of their interest.
of his brethren to agitate through memoranda
Application dismissed.
to Parliament to carry out an amendment to the
High Court’s jurisdiction in pre-election disputes is only triggered once the

Independent Electoral and Boundaries Commission has made a decision on the
dispute
Kithinji v Ntuchiu & 5 others; Controller of Budget (Interested Party) (Petition E007 of 2022)
[2022] KEHC 9933 (KLR) (7 July 2022) (Judgment)
Neutral citation: [2022] KEHC 9933 (KLR)
Kithinji v Ntuchiu & 5 others; Controller of Budget (Interested Party)
Petition E007 of 2022
High Court at Meru
July 7, 2022
TW Cherere, J
Reported by Kakai Toili
Jurisdiction - jurisdiction of the High Court - violation of his right to access information; and a
jurisdiction over pre-election disputes before the declaration that the 1st respondent was not qualified
Independent Electoral and Boundaries Commission to vie for the seat of deputy governor, Meru County
(IEBC) - whether the High Court had jurisdiction in the general elections.
over pre-election disputes before the IEBC had made a
decision on the dispute. The 1st and 2nd respondents opposed the petition
and argued that the court had no jurisdiction to
Constitutional Law - fundamental rights and determine pre-election disputes and complaints and
freedoms - enforcement of fundamental rights and to do so would amount to usurping the alternative
freedoms - right to access information - whether a county dispute jurisdiction of IEBC.
governor had the obligation to provide information
where the information was sought through a letter Issues
addressed to the county secretary - Access to Information i. Whether the High Court had jurisdiction over
Act, 2016, section 7. pre-election disputes before the Independent
Electoral and Boundaries Commission had
Brief facts
made a decision on the dispute.
The petitioner claimed that he got information ii. Whether a county governor had the obligation
that the 1st respondent had not resigned as County to provide information where the information
Executive Committee Member for Finance of the was sought through a letter addressed to the
County Government of Meru and that he was county secretary.
seeking re-election as Deputy Governor for Meru Relevant provisions of the law
County in the general elections of August 9, 2022.
Access to Information Act, 2016
The petitioner claimed that his advocate on April
24, 2022 wrote a letter to the 6th respondent, the Section 7 - Designation of information access
Independent Electoral and Boundaries Commission officer
(IEBC) seeking information why the 1st respondent (1) A chief executive officer of a public entity shall be an
was discharging his duties as a county executive information access officer for purposes of this Act.
committee member but got no response.
(2) A chief executive officer of a public entity may
According to the petitioner, his advocate on June delegate the performance of his or her duties as an
6, 2022 wrote a letter to the 3rd respondent, the information access officer under this Act to any officer
County Returning Officer Meru County, seeking of the public entity.
information concerning the self-declaration form
tendered by the 1st respondent which formed the Held
basis for his clearance to contest but got no response. 1. The jurisdiction of the High Court under article
The petitioner sought among others; a declaration 165(3) of the Constitution to adjudicate on
that the denial by the 2nd and 6th respondents to matters of and concerning the Constitution was
provide him with the information as sought was a wide. The High Court had the exclusive mandate
26
to determine issues relating to the Elections Act. dated April 12, 2022 seeking information
When interpreting provisions of the statutes, concerning the 1st respondent’s resignation
the court should endeavour to give a purposive was addressed to the County Secretary Meru
approach to legislative interpretation. The County. There was no evidence that the letter
court had jurisdiction to determine questions was served on the County Secretary. On its face,
regarding interpretation of the Constitution. the letter revealed that it was served on a lady
2. Pre-election disputes were a reserve of the described as secretary to the governor. Even
IEBC or the court acting in judicial review assuming that the letter was indeed delivered
or exercising its supervisory jurisdiction. to the 2nd respondent, which was denied, the
Pre-election disputes such as the instant one 2nd respondent had no obligation to provide
that related to suitability and eligibility for the information sought for the reason that no
nomination of candidates, had to be resolved by request was made to him.
the IEBC in the first instance. The High Court’s 5. The petitioner’s advocate’s letter dated June 6,
jurisdiction was only triggered once the IEBC 2022 revealed on its face, that it was addressed to
made a decision on the issue. the 3rd respondent but was served on the firm of
3. No complaint concerning the 1st respondent’s Kennedy Nyagaka Nyamokeri Advocates. There
suitability for nomination as deputy governor was no evidence that the letter was served on
had been filed with IEBC. The issue concerning the 6th respondent’s chief executive officer and
the suitability of nomination of the 1st even if for arguments sake the letter was brought
respondent and whether the 1st respondent to the attention of the 3rd and 6th respondents,
was required to resign by February 9, 2022 was the letter did not warrant any response for the
brought to the court prematurely. reason that it violated section 7 of the Access to
4. Section 7 of the Access to Information Act, 2016 Information Act, 2016.
provided for the designation of information
Petition dismissed; preliminary objection upheld; costs
officers. The letter annexed by the petitioner
to be borne by the petitioner.
There is an urgent need to formulate appropriate legislation that should specify the
cut-off date by which complaints and appeals can be brought to the Independent
Electoral and Boundaries Commission
Republic v Independent Electoral and Boundaries Commission & 4 others; Mongare (Exparte) (Judicial
Review Application E004 of 2022) [2022] KEHC 9818 (KLR) (18 July 2022) (Judgment)
Republic v Independent Electoral and Boundaries Commission & 4 others; Mongare (Exparte)
Judicial Review Application E004 of 2022
High Court at Nyamira
July 18, 2022
FA Ochieng, J
Constitutional Law - constitutional commissions - intentions to contest an election was obliged to
Independent Electoral and Boundaries Commission resign at least 6 months before seeking elective office
(IEBC) - mandate of the IEBC - whether it was the as he did not resign 6 months ahead of the elections
mandate of the IEBC to authenticate certificates or scheduled for August 9, 2022.
other documents presented by persons seeking to be
registered as candidates in an election - whether where The 3rd respondent claimed that the application was
there was evidence that proved an aspirant was not res judicata, as the issues it raised had been raised
eligible to be registered as a candidate, that aspirant earlier in the appeal Shukin Oonge Mongare v Eric
could be allowed to vie simply because the evidence had Omanwa Basweti & 3 Others Hcc No. EPA 004 of
not been available earlier. 2022. The 3rd respondent further contended that the
applicant had used the wrong procedure when he
Brief facts moved the court by way of judicial review instead
of an appeal.
The 3rd respondent was an employee of the National
Police Service prior to deciding to run for political The applicant sought among others; an order of
office. The applicant contended that the applicant certiorari to quash the decision of the 1st respondent
was in breach of section 43(5) of the Elections (IEBC) neglecting/refusing to hear and determine
Act which provided that a public officer who had the complaints by the applicant against the 3rd
27
respondent’s nomination to contest for the election on the complaint dated July 1, 2022. It was the
of Member of County Assembly for Bomwagamo mandate of the IEBC to hear and determine pre-
Ward in North Mugirango Constituency within election disputes. It could not therefore refuse to
Nyamira County contained in the letter to the undertake its statutory obligation. Insofar as the
chairperson of the IEBC dated July 02, 2022; and IEBC declined to give a hearing to the ex parte
the complaint dated July 01, 2022. The applicant applicant, it abdicated its responsibility. The
also sought an order of mandamus to compel date for the elections was just around the corner.
the IEBC to hear and determine the applicant’s However, the matter at hand would not require
complaints against the 3rd respondent’s nomination. a lengthy hearing. The IEBC should be able to
hear the complaint, and make a determination
Issues within hours, at most.
i. Whether it was the mandate of the Independent 5. There was an urgent need to formulate
Electoral and Boundaries Commission to appropriate legislation that should specify the
authenticate certificates or other documents cut-off date by which complaints and appeals,
presented by persons seeking to be registered as if any, could be brought. In the current cycle
candidates in an election. of elections, numerous appeals were being filed
ii. Whether where there was evidence that proved even though there was less than 30 days to the
an aspirant was not eligible to be registered as date of elections. When the IEBC was expected
a candidate, that aspirant could be allowed to to make proper arrangements for the elections,
vie simply because the evidence had not been it should have sufficient time and opportunity
available earlier. to finalize preparations.
Held 6. One of the key issues that needed clarity and
1. The court in Shukin Oonge Mongare v Eric certainty was the identity of the candidates.
Omanwa Basweti & 3 Others did not render a When disputes continued to linger as to
substantive decision on the issues which had whether or not an aspirant should or should not
been placed before it. Accordingly, the issue be a candidate, the IEBC could not cause ballot
concerning the date when the 3rd respondent papers to be printed. The delay could jeopardize
resigned from public service, had not been the elections. On the other hand, there was a
determined by any court of competent need to accord a fair hearing to persons who had
jurisdiction. After the court held that it lacked complaints.
jurisdiction to handle the appeal; and when it 7. All stakeholders needed to take stock, after
had intimated that such matters could only be the 2022 general elections, to discuss and
entertained if brought through judicial review, formulate rules or regulations, or even statutory
it would be a mockery to slam the door in the amendments that would strike an appropriate
face of the ex parte applicant when he had done balance between the need to grant hearings
as was advised. and the need to bring to an end any cases, early
2. The IEBC did not have the letters dated June enough, so that the IEBC could have sufficient
23, 2022 and June 29, 2022, at the time when it time to make proper preparations for the
made the decision to register the 3rd respondent elections.
as a candidate. Therefore, at that time, the IEBC 8. If a person was able to provide evidence that
could not be said to have erred when it registered proved that an aspirant was not eligible to be
the 3rd respondent. registered as a candidate, the IEBC or Kenyans
3. The constitutional mandate of the IEBC did not would not allow that aspirant to vie simply
include the process of authenticating certificates because the evidence had not been available
or other documents presented by persons seeking earlier.
to be registered as candidates in an election. It Application allowed with each party to bear its own
would be a logistical nightmare to require the costs.
IEBC to conduct forensic examination of the Order
documents presented by aspirants. However,
the applicant had filed a new complaint, which i. An order of mandamus directed at the 1st respondent
was backed by new evidence. The IEBC could was issued directing it to hear and determine the
not refuse to give a hearing to the applicant. ex parte applicant’s complaint dated July 1, 2022.
In arriving at that decision, the court was not
sitting in an appellate capacity.
4. There was no substantive decision by the IEBC,
28
Court quashes the decision of the National Cohesion and Integration Commission
in its decision classifying and/or banning the terms “hatupangwingwi” and “watajua
hawajui” as hate terms
Republic v National Cohesion and Integration Commission; Chama Cha Mawakili Limited (Exparte)
(Judicial Review Application E057 of 2022) [2022] KEHC 10206 (KLR) (Judicial Review) (July 14,
2022) (Judgment)
Judicial Review Application E057 of 2022
High Court at Nairobi
July 14, 2022
AK Ndung’u, J
Constitutional Law – fundamental rights and administrative action.

freedoms – right to fair administrative action –
administrators – the National Cohesion and Integration Issues
Commission - whether the National Cohesion and i. Whether the mandate of the National Cohesion
Integration Commission was an administrator in and Integration Commission to classify and ban
the meaning of the Fair Administrative Action Act - hate terms/speech was an administrative action
whether the mandate of the National Cohesion and that was amenable to judicial review.
Integration Commission to classify and ban hate terms/ ii. Whether the National Cohesion and Integration
speech was an administrative action that was amenable Commission followed the proper procedure laid
to judicial review - whether the National Cohesion and in its decision to ban and/or classify the terms
Integration Commission followed the proper procedure “hatupangwingwi” and “watajua hawajui” as
laid in its decision to ban and/or classify the terms hate terms.
“hatupangwingwi” and “watajua hawajui” as hate iii. Whether the decision of the National Cohesion
terms - whether the decision of the National Cohesion and Integration Commission to ban and/
and Integration Commission to ban and/or classify or classify the terms “hatupangwingwi” and
the terms “hatupangwingwi” and “watajua hawajui” “watajua hawajui” as hate terms violated the
as hate terms violated the petitioner’s right to fair petitioner’s right to fair administrative action.
administrative action – Constitution of Kenya, 2010 Relevant Provisions of the Law
articles 33 and 47; National Cohesion and Integration Fair Administrative Action Act, Act No. 4 of 2015
Act, No.12 of 2008, section 26; Fair Administrative Section 5
Action Act, , sections 2, 4 and 5. 5. Administrative action affecting the public
(1) In any case where any proposed administrative
Brief facts
action is likely to materially and adversely
The National Cohesion and Integration Commission affect the legal rights or interests of a group of
(the respondent) was a body that promoted national persons or the general public, an administrator
identity and values, mitigated ethno-political shall–
competition and ethnically motivated violence, (a) issue a public notice of the proposed
eliminated discrimination on ethnic, racial and administrative action inviting public views in
religious basis and promoted national reconciliation
that regard;
and healing. Part of their mandate was classifying
and banning terms that they considered to be hate (b) consider all views submitted in relation
speech. On April 11, 2022 the respondent classifyied to the matter before taking the administrative
the words “hatupangwingwi” and “watajua hawajui” action;
as hate speech and banned the words. (c) consider all relevant and materials
The petitioner challenged the decision of the facts; and
respondent in the instant petition to ban the (d) where the administrator proceeds to take
aforementioned terms. The petitioner faulted the the administrative action proposed in the
respondent for unilaterally classifying the words
notice–
as hate speech and contended that the ban on the
words was irrational, unreasonable, made in bad (i) give reasons for the decision of
faith, ultra vires and a breach of its right to fair administrative action as taken;
29
(ii) issue a public notice specifying the at the tail end of the impugned action in the
internal mechanism available to the absence of hearing the affected parties could
not in all possibility sanitize the action. The
persons directly or indirectly affected by his
respondent had not issued a public notice
or her action to appeal; and specifying the internal mechanism available to
(iii) specify the manner and period within the persons directly or indirectly affected by the
the which such appeal shall be lodged. action to appeal and the manner and period
within the which such appeal was to be lodged.
Held
4. The right to be heard was cardinal and could
1. Article 47 of the Constitution granted every
not be derogated. The respondent undertook a
person the right to administrative action that
crucial and sensitive role in promotion of national
was expeditious, efficient, lawful, reasonable
cohesion in an environment of pronounced
and procedurally fair. Section 2 of the Fair
diversity. The statutory power donated to it,
Administrative Action Act (FAAA) defined
however, had to be exercised within the law and
an administrator as any person who took
in strict observance of individual and collective
an administrative action or who made an
rights enshrined in the Constitution and the
administrative decision. The impugned action
law. However well-meaning the respondent
was an administrative action within the meaning
could not get away with unilateral decisions that
of the FAAA as it affected the legal rights and
affected the citizenly without regard to their
interests of the applicant and other citizens who
constitutional and legal rights topmost of which
may be inclined to use the targeted words. The
was the right to heard.
respondent was an administrator as defined in
the FAAA in the context of the action taken. 5. Every administrator bestowed with statutory
powers to make decisions or to take actions
2. The applicant’s freedom of speech was affected
that adversely affected an individual or group
by the decision of the respondent. The impugned
of individuals was not to lose sight of the
action being an administrative action within the
provisions of sections 4 and 5 of the FAAA and
meaning of the FAAA brought it directly within
to specifically accord such person(s) notice of
the purview of the court’s jurisdiction conferred
intended action, hear their views, consider all
by section 9(1) of the FAAA. It was an action
relevant matters, give reasons for the decision
amenable to judicial review.
taken and inform them of the right and manner
3. Where an administrative action was likely to of appeal. The respondent did not follow due
materially and adversely affect the legal rights process in taking the impugned action. The
or interests of a group of persons or the general applicant’s rights enshrined in article 47 of the
public, section 5(1) of the FAAA safeguarded the Constitution and operationalized through the
rights of such a group of persons or the general FAAA were trampled upon.
public by requiring an administrator to issue Petition allowed.
a public notice of the proposed administrative Orders
action inviting public vies or considering any i. An order of certiorari was granted that quashed the
views submitted relating to the action. There respondent’s decision made on April 8, 2022 vide
was no evidence that the respondent issued the Hatelex: A lexicon of Hate Speech Terms in Kenya
notice or considered all material facts. Though banning and/or classifying “Hatupangwingwi”
the respondent appeared to have given reasons and “watajua hawajui” as hate terms.
for the administrative action, giving the reasons ii. Each party was to bear its own costs.
30
A person with multiple nationalities was not qualified to run for public elective posts
Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3 others (Interested Party)
(Constitutional Petition 10B of 2022) [2022] KEHC 11889 (KLR) (21 July 2022) (Judgment)
Constitutional Petition No. 10B of 2022
High Court of Kenya at Garissa
July 21, 2022
Ali-Aroni, J
Reported by Ribia John
Civil Practice and Procedure – pleadings – petitions Elections by the Independent Electoral and
– constitutional petitions – form and content - Boundaries Commission (IEBC/2nd respondent).
requiring constitutional petitions to be pleaded with The petitioner alleged that the 1st respondent held
reasonable precision - whether the principle requiring multiple nationalities. The petitioner presented
constitutional petitions to be pleaded with reasonable a copy of the 1st respondent’s Kenyan National
precision was met in the instant petition - Anarita Identity Card, that indicated the 1st respondent was
Karimi Njeru v Republic (1979) eKLR; Mumo a Kenyan by birth; and copies of the 1st respondent’s
Matemo v Trusted Soceity of Human Rights Alliance & American Passport and e-Visa application that
5 Others [2013] eKLR. indicated that the 1st respondent’s place of birth was
Somalia and further indicated that he was Somali-
Jurisdiction – jurisdiction of the High Court – American dual national.
jurisdiction of the High Court vis-à-vis the mandate of
the Independent Electoral and Boundaries Commission The 1st respondent questioned the admissibility of
(IEBC) – mandate to certify eligible candidates to the evidence placed before court by the petitioner as
vie for public elective posts - whether the High Court such was not admissible. The 1st and 2nd respondents
had the jurisdiction to consider a case that questioned also contended that the petition was not raised with
the eligibility of a candidate to vie for public elective precision as it did not state the alleged provisions
posts on grounds that they had multiple nationalities, violated and the acts and or omission leading to
considering that the mandate to certify eligible the alleged violation of the Constitution. Further
candidates lay with the Independent Electoral and no particulars and manner of the contravention or
Boundaries Commission - whether the clearance of the injury to be suffered was demonstrated.
1st respondent by the IEBC (2nd respondent) to run for
a public office was undertaken in accordance with the Issues
Constitution and the law – Constitution of Kenya, i. Whether the principle requiring constitutional
2010 article 165 petitions to be pleaded with reasonable precision
was met in the instant petition.
Law of Evidence – admissibility of evidence – ii. Whether the High Court had the jurisdiction
admissibility of illegally obtained evidence - whether to consider a case that questioned the eligibility
illegally acquired evidence could be admissible on of a candidate to vie for public elective posts on
grounds that failing to consider it would go against grounds that they had multiple nationalities,
public interest and would violated the values and considering that the mandate to certify eligible
principles of the Constitution - Constitution of Kenya, candidates lay with the Independent Electoral
2010, article 50(4); Evidence Act, Cap 80, section 35 and Boundaries Commission.
iii. Whether a passport was a public or private
Law of Evidence – burden of proof– burden of proof
document.
in constitutional petitions – principle that burden of
iv. Whether illegally acquired evidence could be
proof lay on the one that alleges – shift of burden of
admissible on grounds that failing to consider
proof - At what point did the burden of proof placed
it would go against public interest and would
on a petitioner to prove allegations in a constitutional
violated the values and principles of the
petition shift to the respondents to disprove the
Constitution.
allegations.
v. At what point did the burden of proof placed
Brief facts on a petitioner to prove allegations in a
constitutional petition shift to the respondents
The petitioner challenged the clearance of the to disprove the allegations?
respondent to vie for the seat of Member of vi. Whether the clearance of the 1st respondent by
Parliament Fafi Constituency in the 2022 General
31
the IEBC (2nd respondent) to run for a public an amount of delay or expense which in the
office was undertaken in accordance with the circumstances of the case appears to the court
Constitution and the law. unreasonable.
Relevant Provision of the Law
Constitution of Kenya, 2010 (2) In any civil proceedings, the court may at any
Article 50(4) stage of the proceedings, if having regard to
50. Fair hearing all the circumstances of the case it is satisfied
that undue delay or expense would otherwise
(4) Evidence obtained in a manner that violates be caused, order that such a statement as is
any right or fundamental freedom in the bill mentioned in subsection (1) of this section shall
of rights shall be excluded if the admission of be admissible or may, without any such order
that evidence would render the trial unfair, having been made, admit such a statement in
or would otherwise be detrimental to the evidence—
administration of justice.
(a) notwithstanding that the maker of
Evidence Act, Cap 80
the statement is available but is not
Section 35(1) and (2) called as a witness;
35. Admissibility of documentary evidence as
(b) that the original document is not
to facts in issue
produced, if in lieu thereof there
(1) In any civil proceedings where direct oral is produced a copy of the original
evidence of a fact would be admissible, any document or of the material part
statement made by a person in a document thereof certified to be a true copy in
and tending to establish that fact shall, on such manner as may be specified in
production of the original document, be the order or the court may approve,
admissible as evidence of that fact if the as the case may be.
following conditions are satisfied, that is to
Held
say—
1. The petition set out the foundation or basis of
(a) if the maker of the statement either— grievances and facts of the case were detailed.
It articulated alleged violations, had linked the
(i) had personal knowledge of alleged acts and omission to the rights of the
the matters dealt with by the petitioner and the people on whose behalf he
statement; or had petitioned the court and the manner in
(ii) where the document in question which the articles concerned him and in view of
is or forms part of a record this court thus reasonably meeting the threshold
purporting to be a continuous of constitutional petitions to be pleaded with
record, made the statement reasonable precision.
(in so far as the matters dealt 2. A constitutional issue was one which
with thereby are not within confronted the various protections laid out in
his personal knowledge) in the the constitution. Such protections could be in
performance of a duty to record respect to the Bill of rights or the Constitution
information supplied to him itself. The issue had to demonstrate the link
by a person who had, or might between the aggrieved party, the provision of the
reasonably be supposed to have, Constitution alleged to had been contravened
personal knowledge of those or threatened and the manifestation of
matters; and contravention or infringement.
3. In as much as the issue of qualification in
(b) if the maker of the statement terms of citizenship of a nominee ought to
is called as a witness in the have been considered at the clearance stage
proceedings: by the 1st respondent, the same was no less a
constitutional question, and if for whatever
Provided that the condition that the maker
reason the 1st respondent or any other organs
of the statement shall be called as a witness
failed to diligently consider the issue or did
need not be satisfied if he is dead, or cannot
not fully consider the said issue leading to a
be found, or is incapable of giving evidence, or
violation of the Constitution the court had the
if his attendance cannot be procured without
32
duty to consider any such violation, uphold and court with complacency; citing the court’s
safeguard the Constitution. lack of jurisdiction in an all-important subject
4. The evidence placed before the court if touching on the interpretation and protection
considered would not be unfair to the of the Constitution and state security and one’s
administration of justice in any way. The allegiance. The evidentiary burden had shifted
document which had not been denied as being to them.
a copy of the 1st respondent’s passport would 8. Article 3 of the Constitution mandated every
be of assistance to the court in determining a person to uphold and defend the Constitution.
matter of general public importance, a matter The petitioner placed his evidence of the 1st
touching on a value and principle espoused respondent’s passport indicating that he was
by the Constitution. It would place before the an American born in Somalia in contrast to
court information necessary to see if there was a the information on the Kenyan Identity Card
violation of citizenship. The passport belonged which information he gave to 2nd respondent
to the 1st respondent; he had not denied it that he was born in Garissa County.
neither had he negated the assumption that 9. The petitioner discharged his legal burden and at
it was in possession. The passport was not a that point the evidentiary burden shifted to the
public document and no matter how diligent 1st respondent to explain whether he was born
the petitioner was he could not have gained in Somalia or Kenya and why the conflicting
possession of the same. information in the two crucial nationality
5. The document in question was an individual’s documents, secondly his connection to Somalia
document. Though a passport was a public which in the American passport as opposed to
document so to speak, it was in the possession his connection with Kenya which he claimed
of the holder thereof. The urgency of the matter was his country of birth as well.
required quick action. The attorney general 10. The conflicting information in the American
could not quickly access information from passport and the Kenyan National Identity
the department of Immigration services. The card raised also the question of credibility and
information was relevant to the issue in question integrity as espoused in chapter six as read with
and necessary in the public interest. Therefore, the Leadership and Integrity Act. The petitioner
balancing between the need to access the in the absence of any evidence to the contrary
document and the interest of fair adjudication by the respondents and the 2nd, 3rd and 4th
of the matter and in the circumstances of the interested parties, placed before court evidence
instant matter, justice would be done if the that the 1st respondent was a holder of Somalia/
secondary evidence was admitted. American and Kenyan nationalities and there
6. Though the 1st respondent did not have the was violation of the Constitution and or likely
primary duty to present his passport before violation and /or threat to the Constitution and
the court merely because the petitioner spoke the law.
of it, the petitioner in the circumstance made a 11. The Constitution of Kenya permitted citizens
prima facie case, the 1st respondent in his own of Kenya by birth to have dual citizenship and
interest and in the public interest ought to have not multiple nationalities as was the case of the
made the passport available to lay to rest the 1st petitioner. The acts and /or omissions of
alleged issue of his multiple nationality and to the 2nd and 3rd respondents, the 2nd, 3rd and 4th
prove that indeed what he enjoyed was dual interested parties failed their mandate and their
nationality. That was a typical case where the obligations under the Constitution and statute.
burden of proof shifted to the 1st respondent. The 1st respondent failed to present documents
7. Citizenship and representation of citizens were ascertaining that he was indeed a Kenyan
key chapters of the Constitution, they played a Citizen as prescribed by the Constitution and
major role in the governance structure not to Electoral laws to qualify to run for the seat of
be taken lightly on the phase of allegations of Member of Parliament for Fafi Constituency.
violation of the Constitution. The respondents The 1st respondent was in violation of chapter 6
sat back and casually as if in defence of the 1st of the Constitution as read with the Leadership
respondent, without any quick investigation and Integrity Act. The petitioner was within his
through a multiagency approach to quickly put right as a Kenyan for himself and the public
information before court to negate or affirm good to move the court.
the issue. The petitioner had placed prima Petition allowed.
facie evidence before court but they came to
33
Orders to run for the seat of Member for Parliament

i. Declaration issued that the acts and /or for Fafi Constituency.
omissions of the 1st and 2nd respondents, were iv. The 2nd Respondent was ordered not to print
unconstitutional, null and void ab initio or to cause to be removed the name of the 1st
ii. Declaration issued that the 1st respondent respondent in the ballot papers of the elections
was not qualified to run for the position of scheduled for the August 9, 2022 for Fafi
Member of Parliament for Fafi Constituency. Constituency.
iii. The 2nd respondent was ordered to withdraw its v. The 1st respondent was to meet the costs of the
clearance certificate issue to the 1st respondent petition.
Role of the court in sentencing an accused person who was mentally ill
Republic v SWN (Criminal Case 20 of 2019) [2022] KEHC 3312 (KLR) (July 7, 2022) (Sentence)
Republic v SWN
Criminal Case 20 of 2019
High Court at Nakuru
July 7, 2022
JM Ngugi, J
Criminal Law - sentencing - sentencing of mentally accused was upbeat about her situation. She was
ill accused persons - what was the role of a court in more accepting of her conditions. She regularly
sentencing an accused person who was mentally ill. attended clinic; and more readily accepted
help from her mother. She looked forward to
Brief facts bringing up her remaining son in a healthy
The accused person was, according to her former environment.
boyfriend and father to the deceased, a careful 2. The probation report’s recommendation was
though sickly mother who always took care of her that the best role that the criminal justice system
deceased son, aged 4, until, in the night of March could play in the instant case was not to punish;
16/17, 2019, when she fatally stabbed the deceased it was to facilitate healing and wellness; not to
two times on the chest with a kitchen knife killing extract retribution but to sustain restoration.
him immediately. The accused then turned the knife It was a happy day when the criminal justice
on herself three times in an attempt to kill herself. system played that positive role.
3. It was not a happy ending; but it was a hopeful
The accused was charged with one count of murder one for the accused and her remaining son.
and one count of attempted suicide. For some It was one more illustration that the criminal
time, a psychiatrist adjudged her unfit to take plea. justice system could play its rightful role in the
The court ordered that the accused be confined society: to facilitate a truly just society where
for treatment where she remained for at least two those who needed healing – of body, mind and
months before a psychiatrist confirmed that she was soul - were given the opportunity and facilities
fit to take plea and she pleaded not guilty to both to pursue it; where restoration rather than
charges. On November 22, 2021, the accused signed retribution was privileged. That was therapeutic
a plea agreement in which she pleaded guilty to the jurisprudence in action.
lesser charge of manslaughter.
One-year probationary period prescribed to the accused.
Issue
What was the role of a court in sentencing an
accused person who was mentally ill?
Held
1. The accused was a young woman in need of
treatment, care and protection. She was certainly
not a deranged criminal in need of retribution
and confinement. During sentence hearing, the
34
The High Court did not have the jurisdiction to determine petitions that raised
abstract or hypothetical questions
Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others
(Interested Party) (Constitutional Petition E090,E168,E221,E230,E234,E249, E017,E109 & E010 of
2022 (Consolidated)) [2022] KEHC 3209 (KLR) (Constitutional and Human Rights) (24 June 2022)
(Judgment)
Constitutional Petition E090, E168,E221,E230,E234,E249, E017,E109 and E010 of 2022
(Consolidated)
June 24, 2022
DAS Majanja, EC Mwita and M Thande, JJ
Jurisdiction – jurisdiction of the High Court – public funds, including the so called “COVID-19
harmonisation jurisdiction - matters that could be billionaires”, were lining up to vie for positions in the
resolved via constitutional petitions – whether the High forthcoming general elections. He stated that those
Court had the jurisdiction to determine petitions that trends hampered good governance, transparency and
raised abstract and hypothetical questions – whether accountability and undermined the constitution.
one could petition the High Court to interpret the He sought interpretation of chapter six as it related
Constitution on the ground that there were conflicting to qualification and eligibility of person seeking
decisions that required harmonisation - Constitution elective office.
of Kenya, 2010 articles 1(c), 4(2), 10, 22, 23, 50(1),
159, 165, 258 and 259; High Court (Organisation The petitions also sought that the 1st respondent
and Administration) Act, No. 27 of 2015, section 5. and/or leaders who had been impeached from public
office due to gross misconduct and violation of the
Electoral Law – nominations – disputes related to Constitution would be a threat to the Constitution
or arising from nominations – body with jurisdiction if elected or re-elected back to public office.
to address such issues – doctrine of exhaustion of
administrative remedies - whether filing a petition Issues
before the High Court revolving around electoral i. Whether the High Court had the jurisdiction
disputes relating to or arising from nominations before to determine petitions that raised abstract or
the dispute had been determined by IEBC’s Dispute hypothetical questions.
Resolution Committee was an infringement of the ii. Whether filing a petition before the High Court
doctrine of exhaustion of administrative remedies – revolving around electoral disputes relating to or
Constitution of Kenya, 2010 article 88(4)(e); Elections arising from nominations before the dispute had
Act, No. 24 of 2011, section 74. been determined by IEBC’s Dispute Resolution
Committee was an infringement of the doctrine
Brief facts of exhaustion of administrative remedies.
iii. Whether one could petition the High Court to
The instant matter contained nine consolidated
interpret the Constitution on the ground that
petitions which concerned the interpretation and
there were conflicting decisions that required
application of chapter six of the Constitution of
harmonisation.
Kenya, 2010 (chapter six) as it related to the electoral
process and in particular the General Elections. The Held
petitions were on qualification of candidates offering 1. The Constitution of Kenya, 2010 (Constitution)
themselves for election. ushered in leadership and integrity in chapter
six. In essence, the people of Kenya wanted a
The 1st petitioner was concerned that persons with
break from a past characterized by endemic
integrity issues were vying for public office in
corruption, misuse and abuse of public office by
the general elections. Although the petition was
their leaders, elected and appointed.
general and did not target a specific person, the
2. In interpreting the Constitution, courts would
petitioner noted, for instance, that a person was
interpret the Constitution in a manner that
elected as a Member of Parliament despite having
promoted its purposes and principles, promoted
being arrested, charged and dismissed from his high
rule of law and fundamental rights and freedoms
profile public sector position for receiving a bribe.
and in a manner that contributed to good
He stated that it was a matter of public notoriety
governance as guided by were guided by article
that many people adversely mentioned in theft of
35
259(1) of the Constitution. Chapter six of the instant petitions were general in nature, raised
Constitution (on integrity) and the various issues without reference to concrete facts, did
provisions that governed the electoral process not allege any wrong doing against a specific
were to be read together in a manner that gave person and did not have specific respondents
full effect to the purposes of the Constitution. against whom such relief may be granted.
3. The jurisdiction of the High Court to adjudicate 5. Pre-election disputes such as those regarding
on matters of and concerning the Constitution suitability and eligibility for nomination of
was wide. The High Court could entertain any candidates had to be resolved by the Independent
question by any person regarding interpretation Electoral and Boundaries Commission
of the Constitution. (IEBC) in the first instance. The High Court’s
4. Courts existed to resolve actual disputes. jurisdiction was only triggered once the IEBC
They were not in the business of engaging in made a decision on the issue.
academic or abstract discourse that was not 6. The cases concerning 4th, 5th and 7th respondents
anchored in disputed facts. That was why were presented to the High Court prematurely.
the Constitution did not confer upon the Since the process of the Dispute Resolution
High Court the jurisdiction to issue advisory Committee of the IEBC had been invoked,
opinions. Although the High Court had it had to be allowed to run its course. The
jurisdiction to interpret the Constitution, it jurisdiction of the High Court should not be
could not proceed to grant relief merely on the invoked until that process was exhausted. The
ground that there were conflicting decisions instant court declined the jurisdiction to address
that required harmonisation. The instant court the petitions.
rejected the invitation to create a harmonization
Petitions struck out with no orders as to costs.
jurisdiction. Harmonization could only be done
where an actual and live dispute existed. The
Section 34(fd) of the Political Parties Act 2022 was unconstitutional as regulation
of political party nominations was the mandate of Independent Electoral and
Boundaries Commission and not the Registrar of Political Parties.
Thuranira & 4 others v Attorney General & 2 others; Registrar of Political Parties & 3 others (Interested
Party) (Petition E043, E057 & E109 of 2022) [2022] KEHC 482 (KLR) (Constitutional and Human
Rights) (April 20, 2022) (Judgment)
Petition E043, E057 and E109 of 2022
April 20, 2022
EN Maina, DO Ogembo and HI Ong’udi, JJ
Constitutional Law – national values and principles Constitutional Law – fundamental rights and
– public participation – requirement on legislature freedoms – political rights – indirect nominations – role
to subject bills to public participation - whether of party members in indirect nominations - whether
the Political Parties (Amendment) Act, 2022 was section 24 of the Political Parties (Amendment) Act
unconstitutional for lack of meaningful public 2022 in so far as it did not require participation of
participation – Constitution of Kenya, 2010, article registered party members in selection of delegates for
10. purposes of indirect nominations was a violation of
political rights and public participation – Constitution
Constitutional Law – fundamental rights and of Kenya, 2010 articles 10 and 38; Political Parties
freedoms – right to equality and freedom against (Amendment) Act 2022, section 24.
discrimination - whether section 4 of the Political
Parties (Amendment) Act, 2022 in so far as it made Electoral Law – integrity of the elections – introduction
it discretionary for political parties to promote gender of amendments to electoral law a few months to the
parity and promote representation in parliament general election - whether the implementation of
of youth, persons with disabilities, ethnic and other significant changes to the structure of political parties
marginalized communities was unconstitutional – at the later stage of the election process undermined
Constitution of Kenya, 2010 article 91(1)(f ); Political the reliability and credibility of the election process –
Parties (Amendment) Act, 2022, section 4. Constitution of Kenya, 2010 article 81.
36
Statutes – interpretation of statutes – interpretation of obligation by the auditor general to audit

the Political Parties (Amendment) Act, 2022 - whether accounts of political parties was contrary to
provisions of the Political Parties (Amendment) Act, the constitutional obligation on the auditory
2022 were vague, ambiguous and/or uncertain. general to audit and report on the accounts of
political parties funded from public funds.
Statutes – interpretation of statutes – interpretation vi. Whether section 4 of the Political Parties
section 22 of the Political Parties (Amendment) Act, (Amendment) Act, 2022 in so far as it made
2022 – duty of the auditor general to audit and report it discretionary for political parties to promote
on the accounts of political parties funded from public gender parity and promote representation in
funds – Constitution of Kenya, 2010 articles 229(4) parliament of youth, persons with disabilities,
(f ),(7) and (8); Political Parties (Amendment) Act, ethnic and other marginalised communities was
2022, section 22. unconstitutional.
Words and Phrases – political party – definition vii. Whether section 24 of the Political Parties
of - an organization of voters formed to influence (Amendment) Act 2022 in so far as it did
the government’s conduct policies by nominating and not require participation of registered party
electing candidates to public office. The United States members in selection of delegates for purposes
has traditionally maintained a two party system which of indirect nominations was a violation of
today comprises the Democratic and Republican parties- political rights and public participation.
often shortened to party - The Black’s Law dictionary viii. Whether the implementation of significant
9th Edition. changes to the structure of political parties at the
later stage of the election process undermined
Words and Phrases - ideology – definition of - System the reliability and credibility of the election
of ideas and ideals forming the basis of an economic process.
or political theory; set of beliefs characteristic of a Relevant Provisions of the Law
social group or individual - Concise Oxford English Constitution of Kenya, 2010
Dictionary 11th Edition. Articles 91, 260
Article 91
Brief facts
1. Every political party shall--
The petitioners challenged the legality of the Political a) have a national character as prescribed by an
Parties (Amendment) Act, 2022 (the Act) that Act of Parliament;
was assented to on January 27, 2022 on multiple b) have a democratically elected
grounds. Among them were the grounds that there governing body;
was no sufficient public participation undertaken as c) promote and uphold national unity;
the stakeholders were not consulted, that the Act was d) abide by the democratic principles of good
discriminatory, that the Act was unconstitutional for governance, promote and practise democracy
taking away the auditor general’s constitutionally through regular, fair and free elections within
awarded role of auditing and reporting on the the party;
accounts of political parties funded from public e) respect the right of all persons to participate in
funds; and that the Act was vague, ambiguous and the political process, including minorities and
uncertain. marginalised groups;
f ) respect and promote human rights and
Issues fundamental freedoms, and gender equality
i. What was the definition of a political party? and equity;
ii. Whether creation of a coalition political party g) promote the objects and principles of this
without dissolving the constituent political Constitution and the rule of law; and
parties curtailed the enjoyment of the citizens’ h) subscribe to and observe the code of
political rights under article 38 of Constitution. conduct for political parties.
iii. Whether the Political Parties (Amendment) 2. A political party shall not--
Act, 2022 was unconstitutional for lack of a) be founded on a religious, linguistic, racial,
meaningful public participation. ethnic, gender or regional basis or seek to
iv. Whether provisions of the Political Parties engage in advocacy of hatred on any such
(Amendment) Act, 2022 were vague, ambiguous basis;
and/or uncertain. b) engage in or encourage violence by, or
v. Whether section 22 of the Political Parties intimidation of, its members, supporters,
(Amendment) Act 2022 that removed the opponents or any other person;
37
c) establish or maintain a paramilitary force, the Political Parties (Amendment) Act, 2022
militia or similar organisation; resonated with the ordinary and general meaning
d) engage in bribery or other forms of corruption; of a political party. There was no inconsistency
or in the definition of political party as stated in
e) except as is provided under this Chapter section 2 of the Political Parties (Amendment)
or by an Act of Parliament, accept or use Act and articles 260 of the Constitution.
public resources to promote its interests or its 4. The general and ordinary meaning of a political
candidates in elections. party would require that it had an ideology,
Article 260 meant the principles and policies that it stood for
or advocates. Although articles 91(1) and 260
“political party” means an association contemplated in
did not make mention of the word ideology, the
Part 3 of Chapter Seven of the Constitution.
court was bound by article 10(1)(a) and 259 of
Elections Act the Constitution to interpret the Constitution
Section 31(1)(a) in a manner that promoted its purposes, values,
rule of law, permitted the development of the
(1) A person qualifies to be nominated by a
law and contributed to good governance. The
political party for presidential, parliamentary
requirement for parties to have an ideology
and county elections for the purposes of Articles
would enhance our democracy. Nothing in the
97, 98, 137, 177 and 180 of the Constitution
Constitution prohibited a political party from
if that person—
having an a ideology as long as such ideology
(a) is selected in the manner provided was not founded on a religious, linguistic,
for in the constitution or rules of the racial, ethnic, gender or regional basis or seek to
political party concerned relating to engage in advocacy of hatred on any such basis.
members of that party who wish to 5. As for coalitions, the same had always existed
contest presidential, parliamentary in the law as they were provided for in section
and county elections. 10 of the Political Parties Act 2011. Kenya
has had coalition political parties in Kenya.
Held Examples included the Jubilee Political Party
1. Previously the Political Parties Act defined a which comprised parties like TNA, URP among
political party as having the meaning assigned others. The only difference was that at that time
to it under article 260 of the Constitution of the constituent parties would be dissolved, but in
Kenya, 2010. The Political Parties (Amendment) the new definition the constituent parties would
Act, 2022 defined it as an association of citizens retain their individual identities. Therefore all
with an identifiable ideology or programme that that the amendment had done was to formalize
was constituted for the purpose of influencing those practices through legislation. The creation
public policy of nominating candidates to of a coalition political party, did not curtail
contest elections; and included a coalition the enjoyment of the citizens’ political rights
political party. under article 38 of Constitution because each
2. Article 260 of the Constitution did not give a constituent political party remained in existence
definition of a political party as such. Instead with its operational constitution, its rights and
it made reference to chapter 7 part 3 of the status. Members of the parties retained their
Constitution. Under the said chapter, article 91 right to participate in the activities of their
which dealt with political parties only directed respective parties.
on what a political party should be or not be. 6. The indirect nomination under section 38A(b) of
It did not give a direct definition of what a the Political Parties Act was not unconstitutional
political party was. for reasons that each political party shall have
3. The Political Parties Act was enacted to give its own delegate system entrenched in its own
effect to article 92 of the Constitution. The constitution as required in schedule II of the
Act did not provide a definition of a political Political Parties Act. It was expected that it was
party and instead it referred to article 260 of the members of political parties who should select
Constitution. Parliament ought to have noted the delegates. In that way they would have
the lacuna in both the Constitution and the exercised their political rights under article 38
Political Parties Act 2011, and so it gave the of the Constitution. The amendment would
definition in the amended Act. The definition develop the law more so section 31(1)(a) of the
assigned to the political party in section 2 of Elections Act.
38
7. The word “shall”, could be construed to limited to only certifying whether the symbol of
mean “may” and vice versa, depending on the the independent candidate resembles that of any
circumstances. Statute had to be interpreted other political party. The Independent Electoral
within the legal context in which the words and Boundaries Commission still retained the
were used. The legal context was to be derived power and duty to accept or reject the symbol
from Kenya’s national values and principles and as set out in section 32 of the Elections Act
articles 27 and 91 of the Constitution, which as the same was not amended. There wasn’t
all gave a mandatory The word “may” had to any usurpation of the power of Independent
be interpreted to conform to articles 27 and Electoral and Boundaries Commission as far
91 of the Constitution. Political parties were as section 34(fb) of the Political Parties Act was
bound by the national values and principles concerned. The court made a similar finding in
of the Constitution as well as the Constitution respect to the amendments in section 34(da),
itself. It was also instructive that section 7(2) of (fa), (fc), and (fe).
the Political Parties Act which was not affected 12. Section 34(fd) of the Political Parties
by the amendment required a political party (Amendment) Act was in contravention of
to comply with gender parity before being article 88(4)(d) and (k) of the Constitution,
registered. The mere use of the word “may” to which vested the power to regulate political
be good reason for striking out the amendment. party nominations in the Independent Electoral
8. There was no dispute to the fact that all and Boundaries Commission. Statute could
political parties had to comply and be duly not purport to bestow the same powers in the
registered under the above sections. A coalition Registrar of the Political Parties. That would
political party was made up of political parties amount to usurpation of Independent Electoral
who would have already been registered. The and Boundaries Commission’s constitutional
coalition political party did not have a list mandate. That was unconstitutional.
of individual members. The list it had was of 13. Section 38E of the Political Parties Act did
political parties to make up its membership. The not find any usurpation of the Independent
coalition political party as a sui generis organ. Electoral and Boundaries Commission’s powers
That being the case the rules of formation of by the registrar of the Political Parties. All that a
ordinary political parties could not apply to it. political party was required to do was to notify
There was no discrimination in the amended the registrar in writing of all the requirements
section. under the said section. The section did not give
9. Section 14A(1) to (6) of the Political Parties Act the registrar any power to make any decisions in
confirmed that any party allegedly deemed to regard to that information. Following receipt of
have resigned was given an opportunity to be the notification the registrar only published it in
heard on the issue. The deeming resignation was its website the required information. Section 27
not automatic. Even where the political party of the Elections Act provided that nomination
notified the registrar of the resignation and the rules were submitted to the Independent
registrar was not satisfied that section 14A (2) Electoral and Boundaries Commission, and not
of the Political Parties Act had been complied the registrar. The powers of the Independent
with, he/she would refer it back to the party Electoral and Boundaries Commission had not
for reconsideration. That was not cast on stone. been affected and had not been usurped by the
Section14A was not unconstitutional. Registrar of Political Parties.
10. With the new amendment the constitutional 14. Nowhere in the impugned amendment did
obligation of the auditor general to audit the the Act exempt a coalition political party
accounts of political parties funded through from the jurisdiction of the Political Parties
public funds was lost. The section ought to Disputes Tribunal. A political party was defined
have been amended to align it to article 229 to include a coalition political party, hence a
of the Constitution. The deletion of section dispute between a political party and a coalition
31(3) of the Political Parties Act was in conflict political party was deemed to be a dispute
with article 229 of the Constitution and was between political parties under section 40(1)
unconstitutional. (c) of the Act. It was deemed to be a dispute
11. There was no conflict between the roles of subject to trial by the tribunal. The plea by the
the Independent Electoral and Boundaries petitioners in respect of that amendment could
Commission and the Registrar of Political Parties. not stand.
In the Amendment, the role of the registrar was 15. Amendment to section 41 of the Political Parties
39
Act was not unconstitutional. It did not deny to be undertaken as a matter of course just
disputants the right of appeal to the Supreme to ‘fulfill’ a constitutional requirement.
Court. The right of appeal to the Supreme There was need for both quantitative
Court was not automaticaly provided by the and qualitative components in public
provisions of article 163(4) of the Constitution. participation.
16. It was impractical for the political party e. Public participation was not an abstract
candidates to enjoy the same timelines as notion; it had to be purposive and
independent candidates for the following meaningful.
reasons:
f. Public participation had to be accompanied
a. Unlike independent candidates, the
by reasonable notice and reasonable
party nominations elicited disputes and
opportunity. Reasonableness would be
reasonable time had to be allocated for the
determined on a case to case basis.
disputes to be resolved.
b. There had to be discipline in political parties g. Public participation was not necessarily a
activities, hence need for compliance with process consisting of oral hearings, written
the timelines. submissions could also be made. The
c. IEBC had a timetable which enabled fact that someone was not heard was not
them to work on their activities such as enough to annul the process.
preparation of registers, printing ballot h. Allegation of lack of public participation
papers, undertaking trainings for the agents did not automatically vitiate the process.
and other officials. The allegations had to be considered
17. There was no element of unfair discrimination within the peculiar circumstances of each
in the provisions of sections 28(1) and 28A of case: the mode, degree, scope and extent of
the Elections Act. public participation was to be determined
18. Public participation was enshrined in articles on a case to case basis.
10(2)(a) and 232(1)(d) of the Constitution as 21. Components of meaningful public participation
one of the values and principles of governance. included the following:
Article 259 (1)(a) enjoined courts to interpret
a. clarity of the subject matter for the public
the Constitution in a manner that promoted its
to understand;
values, principles and purposes.
b. structures and processes (medium of
19. Public participation and consultation was a
engagement) of participation that are clear
living constitutional principle that went to the
and simple;
constitutional tenet of the sovereignty of the
c. opportunity for balanced influence from
people. It was through public participation that
the public in general;
the people continued to find their sovereign
d. commitment to the process;
place in the governance they had delegated to
e. inclusive and effective representation;
both the National and County Governments.
f. integrity and transparency of the process;
20. The guiding principles for public participation
g. capacity to engage on the part of the public,
were:
including that the public had to be first
a. Public participation applied to all aspects sensitized on the subject matter.
of governance. 22. There was meaningful public participation. The
b. The public officer and or entity charged chronology of meetings and consultations as
with the performance of a particular duty narrated had not been challenged. Consultative
bore the onus of ensuring and facilitating meetings were held since 2017 after the general
public participation. elections to January 2022. The 1st interested party
c. The lack of a prescribed legal framework invited a good number of participants in good
for public participation was no excuse time and even facilitated their attendance. There
for not conducting public participation; was clarity of the matters under discussion and
the onus was on the public entity to give resolutions were made. The lists of the invitees
effect to that constitutional principle using and attendants confirm there was inclusivity.
reasonable means. 23. The court took judicial notice of the fact that
d. Public participation had to be real and not even during the Covid -19 pandemic and
illusory. It was not a cosmetic or a public the Ministry of Health in its protocols had
relations act. It was not a mere formality prohibited receipt of hard copies of documents.
Even the judiciary was not receiving hard copies
40
of submissions and pleadings which had to be 28. The interest of an individual(s) could not
sent electronically or through email. outweigh or override public interest. It was
24. There was meaningful public participation prior within the public domain that parts of the
to the enactment of the impugned Political principal Political Parties Act, Political Parties
Parties (Amendment) Act. The ground of lack of (Amendment) Act and the Elections Act in
public participation had not been demonstrated. relation to the August 9, 2022 general elections
25. Vagueness could have constitutional significance had been implemented. Many parties had done
and one such significance was that a law could their primaries and nominations.
be so uncertain as to be incapable of being 29. The 2nd to 5th petitioners had failed to prove
interpreted so as to constitute any restraint on any vagueness or uncertainty in the impugned
governmental power. The uncertainty could amendments, which were very clear on their
arise either from the generality of the discretion intent.
conferred on the donee of the power or from Petition partly allowed.
the use of language that was so obscure as to be
Orders
incapable of interpretation with any degree of
i. There was no unconstitutionality in the amended
precision using the ordinary tools.
sections 2, 4A, 6(2)(a), 7(6), 14A, 22, 34(da)
26. The impugned amendment and creation of
(fa) (fb),(fc),(fe),40(3),41(2) of the Political
the coalition political party did not affect
Parties(Amendment) Act 2022.
the meaning of political party as stipulated
ii. There was no unconstitutionality in sections 28(1)
under article 260 as read with article 91 of
and 28A of the Elections Act.
the Constitution. The court did not find any
iii. The deletion of section 31(3) of the principal
ambiguity, confusion or uncertainty. There was
Political Parties Act was unconstitutional.
a clear distinction between a political party and a
iv. Section 34(fd) of the Political Parties Act 2022 was
coalition political party in both their formation
unconstitutional as regulation of political party
and operation. The amendment showed what
nominations was the mandate of Independent
the mind of parliament was on the formation
Electoral and Boundaries Commission and not the
of a political party, a coalition and coalition
Registrar of Political Parties.
political party. There was no doubt on what
v. The public participation that took place before
parliament intended.
the enactment of the impugned amendments was
27. The Kreigler recommendation considered the
consultative, meaningful and reasonable. The
fact that people needed time to participate
Amendments could not be nullified on that ground.
in the entire process, to raise any objections,
vi. The impugned amendments did not render
interact with the changes inter alia. The changes
the principal Political Parties Act ambiguous,
were made slightly more than six(6) months to
uncertain or vague.
the general election which resonated well with
vii. Save for what the court found in respects of
the Kreigler recommendation. It had not been
sections 31(3) and 34(fd) of the Political Parties
demonstrated how the amendments on timelines
(Amendment) Act, 2022 the petitions failed and
would affect the elections. Those timelines were
were dismissed.
meant to enable the political parties, candidates
viii. Each party was to bear its own cost.
and the Independent Electoral Boundaries
Commission manage their timetables so as not
to affect the election date.
41
Tithes, freewill donations and offerings to churches and other religious organisations
do not fall within the scope of income chargeable to income tax
Commissioner of Domestic Taxes v Thika Road Baptist Church Ministries (Tax Appeal E024 of 2021)
[2022] KEHC 644 (KLR) (Commercial and Tax) (31 May 2022) (Judgment)
Commissioner of Domestic Taxes v Thika Road Baptist Church Ministries
Tax Appeal E024 of 2021
May 31, 2022
DAS Majanja, J
Tax Law – income tax – income chargeable to income to churches and other religious organisations
tax - whether tithes, freewill donations and offering to fell within the scope of income which was
churches and other religious organisations fell within chargeable to income tax.
the scope of income which was chargeable to income ii. Whether a tax exemption certificate was to be
tax – Income Tax Act, Cap 470, sections 3(2), 13 and issued as a matter of right to a church.
the first schedule. Relevant provisions of the law
Income Tax Act, Cap 470
Tax Law – tax exemption – tax exemption certificates Section 3 – Charge of tax
– issuance of tax exemption certificates to churches - (1) Subject to, and in accordance with, this Act, a tax
whether a tax exemption certificate was to be issued as a to be known as income tax shall be charged for each
matter of right to a church - Income Tax Act, Cap 470, year of income upon all the income of a person, whether
sections 3(2), 13 and the first schedule. resident or non-resident, which accrued in or was
Brief facts derived from Kenya.
(2) Subject to this Act, income upon which tax is
The appellant (the Commissioner) issued a letter to chargeable under this Act is income in respect of—
the respondent (the Church) demanding tax arrears (a) gains or profits from—
of Kshs 5, 516,070.00. Following nonpayment, (i) any business, for whatever period of
the Commissioner issued an assessment for the time carried on;
income tax period 2015, 2016 and 2017 to which (ii) any employment or services rendered;
the Church applied for an objection. The main (iii) any right granted to any other person
reason for objection was that the Church, being a for use or occupation of property;
religious organization registered under section 10 (b) dividends or interest;
of the Societies Act, was not a business activity and (c) (i) a pension, charge or annuity; and
it derived its income from tithes and offerings for (ii) any withdrawals from, or payments out
its operations. Therefore, its income was exempted of, a registered pension fund or a registered
from payment of income tax. provident
fund or a registered individual retirement
The Commissioner later on wrote to the Church
fund; and
informing it that since it did not have a valid tax
(iii) any withdrawals from a registered
exemption certificate, the objection would be
home ownership savings plan;
rejected and subsequently issued the objection
(d) deleted by Act No. 14 of 1982, s. 17;
decision to that effect. The Church contested the
(e) an amount deemed to be the income of any
objection decision before the Tax Appeals Tribunal
person under this Act or by rules made under this
(the Tribunal). The Tribunal held that even though
Act;
the objection decision was valid, the Church was
(f ) gains accruing in the circumstances prescribed
not liable to pay tax on tithes and offerings hence
in, and computed in accordance with, the Eighth
it was not required to apply for a tax exemption
Schedule;
certificate since its income was based on freewill
(g) subject to section 15(5A), the net gain
donations, tithes and offerings which was not taxable
derived on the disposal of an interest in a person,
income. Aggrieved by the Tribunal’s decision, the
if the interest derives twenty per cent or more of
Commissioner filed the instant appeal.
its value, directly or indirectly, from immovable
Issues property
in Kenya; and
i. Whether tithes, freewill donations and offering
(h) a natural resource income.
42
Held churches and other religious organisations did

1. The jurisdiction of the court exercising appellate not fall within the scope of income which was
jurisdiction from the tribunal was circumscribed chargeable with as per section 3(2) of the ITA.
by section 56(2) of the Tax Procedures Act which The Commissioner had not demonstrated that
provided that an appeal to the High Court and tithes, donations and offering were gains and
Court of Appeal would be on a question of law profits from business, employment or rights
only. Indeed, there were no factual issues in granted for use of property or any other form of
contention. The main issues for consideration recognized income caught by the ITA.
involved questions of law. 5. The purport and import of section 13 of the
2. The Church was a religious organization which ITA was that despite the overarching obligation
was entitled to exemption from payment of to pay income tax on the sources of income
income tax under paragraph 10 of the first enumerated under part II and in particular
schedule of the Income Tax Act (ITA). A tax section 3 of the ITA, a person could be
exemption certificate was not issued as a matter exempted from paying income tax under the
of right and in order to be exempted from paying conditions and in the circumstances provided
income tax, the Church ought to have applied thereunder. Neither section 13 nor the first
for it. Upon meeting the required conditions, schedule expanded the meaning of income
the Commissioner would have issued one. chargeable with tax under the ITA. It was only
3. The list of sources of income set out in section the income that was chargeable that was exempt
3(2) of the ITA was an exclusive and closed list from tax under section 13 as read with first
bearing in mind that section 2 of the ITA stated schedule of the ITA. Since tithes, offering and
that tax meant the income tax charged under freewill donations were not income chargeable
that Act. That was buttressed by use of the word with income tax, it was not necessary for the
“means” which when used in legislation implied Church to seek an exemption.
that the indicative list was closed. Appeal dismissed with costs to the respondent.
4. Tithes, freewill donations and offering to the
Section 15(2) of the Higher Education Loans Board Act declared unconstitutional
to the extent that it led to interest rates and fines becoming more than the principal
amount advanced
Mugure & 2 others v Higher Education Loans Board (Petition E002 of 2021)
[2022] KEHC 11951 (KLR) (Civ) (19 August 2022) (Judgment)
Mugure & 2 others v Higher Education Loans Board
Petition E002 of 2021
August 19, 2022
A Mabeya, J
Banking Law – in duplum rule - nature and rationale 488, section 44A.
of the in duplum rule - whether the in duplum rule was
applicable to bodies lending monies other than banks – Brief facts
Banking Act, Cap 488, section 44A. The petitioners were beneficiaries of the Higher
Constitutional Law – fundamental rights and Education Loans Board’s (the respondent) loan
freedoms – enforcement of fundamental rights and to finance their undergraduate studies. The
freedoms – right to equality and freedom from petitioners’ case was that they borrowed loans from
discrimination - whether the continued imposition of the respondent to facilitate their undergraduate
interest and penalties on non-performing loan accounts studies and that the respondent had been charging
by the Higher Education Loans Board even when the exorbitant interest and penalties which often grew
interest and penalties exceeded the principal amount beyond double the principal amounts owed thereby
amounted to discrimination where those borrowing making repayment difficult.
from banks were protected by the in duplum rule in The petitioners prayed for among others, declarations
section 44A of the Banking Act - Banking Act, Cap that; by imposing interest amounts and penalties
43
that exceed the principal amount, the respondent defaulted facility to no more than double the
was in contravention of articles 43 (1)(e) and (f ) of principal owing when the loan had become
the Constitution of Kenya, 2010 (Constitution) and non-performing plus recovery expenses.
section 44(A)(1) and (2) of the Banking Act; that 4. Being of public interest, the in duplum rule was
section 15(2) of the Higher Education Loans Board applicable for those lending monies as it did to
Act (HELB Act) was unconstitutional to the extent banks. The loanees of the respondent’s facilities
that it led to interest rates and charged becoming were helpless students. They acquired the subject
equal to or more than the principal amounts. loans to finance their education. The fund could
have been established to help the less fortunate
Issues
to access education through the fund. In most
i. Whether the in duplum rule was applicable to cases, after studies, the majority of the loanees
bodies lending monies other than banks. found themselves jobless. The loan matured
ii. Whether the continued imposition of interest before they secured employment and interest
and penalties on non-performing loan accounts and penalties kicked in. It would be unfair to
by the Higher Education Loans Board even have the loan continue attracting interest plus
when the interest and penalties exceeded the penalties ad infinitum. With the shrunken
principal amount amounted to discrimination economy, scarce employment opportunities, it
where those borrowing from banks were was definitely a nightmare for those loanees.
protected by the in duplum rule in section 44A The monthly fines would eventually make the
of the Banking Act. amount irrecoverable. That was unacceptable.
iii. What was the nature and rationale of the in
5. The continued imposition of interest and
duplum rule in Kenya?
penalties on non-performing loan accounts even
Relevant provisions of the law
when the interest and penalties had exceeded
Higher Education Loans Board Act, 1995
the principal amount violated the in duplum
Section 15 - Obligations of the loanees
rule. As borrowers, the petitioners were being
(2) Any loanee who fails or neglects to satisfy the discriminated upon from those borrowing
requirements of subsection (1) within the stipulated from banks who were protected by section
time shall, in addition to any other action that the 44A of the Banking Act. Although their rate of
Board may take against him, be guilty of an offence and interest was low, their personal circumstances
liable to a fine of not less than five thousand shillings in of being students from humble and financially
respect of each loan deduction that remains unpaid in challenged background, necessitated protection.
accordance with provisions of subsection (1), and such 6. Their socioeconomic rights under articles
fine shall be payable to the Board. 43(1)(e) and (f ) and consumer rights under
Held article 46(1)(c) of the Constitution had been
violated. That had the counter-effect of making
1. In duplum was a Latin phrase derived from the it difficult for the petitioners and others in the
word “in duplo” which loosely translated to “in same situation to conveniently repay the loan.
double”. Simply stated, the rule was to the effect The petitioner’s case did not challenge the State
that interest ceased to accumulate upon any in the action it had taken, but rather sought the
amount of loan owing once the accrued interest aid of the court to give effect to those measures.
equaled the amount of loan advanced.
7. Having recognized the gap that existed, that
2. In Desires Derive Ltd v Britam Life Assurance was, the lack of legislation that would protect
Co (K) Ltd (2016) eKLR, it was held that borrowers from exorbitant and never-ending
the in duplum rule was only applicable in interest rates, the state introduced the in duplum
the circumstances of banks only. Since its rule vide section 44A of the Banking Act.
introduction on May 1, 2007, courts had Through that legislation, the State sought to
pronounced on it variously. ensure fairness and justice in matters borrowing
3. The in duplum rule was concerned with public even where the lender had a higher bargaining
interest. The rule was introduced in Kenyan power. There was nothing to bar the extension
laws to tame the appetite of lenders who had of such relief and accommodation to the specific
made recovery of interest on advances a cash borrowers under the HELB Act.
cow. It was intended to protect borrowers from 8. The application of the in duplum rule to the
exorbitant interest accumulation on loans and loans borrowed by the petitioners was not
limit the amount recoverable by a lender on a discretionary by the respondent but as a matter
44
of right and law. The court would not declare Orders

section 15(2) of the HELB Act unconstitutional, i. A declaration was issued against the respondent
but it would read into that section the in duplum that by imposing interest amounts and penalties
rule. That upon the amount due clocked double or fines that exceeded the principal amount, the
the principal sum, the interest and fines would respondent was in contravention of article 43(1)(e)
cease to apply. and (f ) and article 27 of the Constitution.
9. Since the taking of the loans was not denied nor ii. A declaration was issued that section 15(2) of the
the failure to make substantial payment, and HELB Act was unconstitutional to the extent that
considering that the respondent indicated that it led to interest rates and fines becoming more
it was taking steps to apply the in duplum rule, than the principal amount advanced.
it was time the petitioners then now took steps iii. A declaration was issued that the respondent was
to perform their part of the contracts. not entitled to recover from the petitioners or its
loanees an amount exceeding double the amount
Petition allowed with each party to bear own costs.
advanced in contravention of the in duplum rule.
It is not possible for the necessary measures to be put in place in time to allow
prisoners to vote for all classes of candidates save for the President in the scheduled
national elections for August 9, 2022
Odhiambo & another v Independent Electoral & Boundaries Commission & 2 others (Petition 162 of
2019) [2022] KEHC 3102 (KLR) (Constitutional and Human Rights) (June 17, 2022) (Judgment)
Odhiambo & another v Independent Electoral & Boundaries Commission & 2 others
Petition 162 of 2019
June 17, 2022
HI Ong’udi, J
Constitutional Law – fundamental rights and freedoms – positions under the Constitution not just limited to the
political rights – rights of prisoners to vote in elections - whether presidential election; and a declaration that the realization
the realization and implementation of the right of prisoners to and implementation of the right of prisoners to vote in all
vote in all elections and referenda and for all offices and positions elections and referenda and for all offices and positions
under the Constitution was immediate and not progressive – under the Constitution not just limited to the presidential
Constitution of Kenya, 2010 articles 38, 82 and 83. election, was immediate and not progressive.
Constitutional Law – constitutionality of statutes – The petitioners claimed that in light of the decision to
constitutionality of regulation 39E of the Elections (Registration exclude prisoners from participating in the elections of
of voters Amendment) Regulations, 2017 – where regulation the governor, members of parliament and the member of
39E provided that a prisoner could only vote in a presidential county assembly, the respondents contravened article 38
election or a referendum - whether regulation 39E of the the Constitution on the political rights and circumvented
Elections (Registration of voters Amendment) Regulations, 2017 express orders of the court in Kituo cha Sheria v IEBC
was inconsistent with the Constitution for violating the political 574 of 2012. The petitioners argued that the 1st
rights of prisoners - what were the principles to be considered respondent perpetuated the constitutional infringement
determining the constitutionality of an Act of Parliament - and the circumvention of the court order through an
Constitution of Kenya, 2010 articles 38, 82 and 83; Elections unconstitutional law being regulation 39E of the Elections
(Registration of voters Amendment) Regulations, 2017, (Registration of voters Amendment) Regulations 2017
regulation 39E. which provided that a prisoner could only vote in a
presidential election or a referendum.
Brief facts
Issues
The petitioners filed the instant consolidated petition
i. Whether the realization and implementation of
seeking among others, orders that regulation 39E of the
the right of prisoners to vote in all elections and
Elections (Registration of voters Amendment) Regulations
referenda and for all offices and positions under the
2017 (Legal Notice No.73) (the Regulations) was
Constitution was immediate and not progressive.
inconsistent with the Constitution and therefore null
ii. Whether regulation 39E of the Elections (Registration
and void; a declaration that prisoners had the right to
of voters Amendment) Regulations, 2017 which
vote in all elections and referenda and for all offices and
45
provided that a prisoner could only vote in a prisoners could only vote in a presidential election
presidential election or a referendum was inconsistent and referendum and their right to vote was to be
with the Constitution for violating the political rights attained progressively. That could reasonably be stated
of prisoners. to have been the purpose and effect of the impugned
iii. What were the principles to be considered determining provisions.
the constitutionality of an Act of Parliament? 5. The right to vote was a universally recognized right
and protected by various international instruments. In
Held
Kenya, that right was founded under article 38 of the
1. Where there was a clear procedure for redress of any Constitution. Parliament was required to effect that
particular grievance prescribed by the Constitution fundamental right by enacting legislation as directed
or statute, that procedure should be followed. While by article 82 of the Constitution.
parliament had the sole mandate to legislate, the High 6. Guided by the principles of constitutional
Court under article 165(3)(d) of the Constitution interpretation, one of the constitutional objectives
had the sole mandate to answer any question with was to ensure that citizens enjoyed their rights to their
respect to the interpretation of a statute and its greatest extent as reasonably possible. That could be
constitutionality as its guardian, a mandate which seen in the drafting of articles 38, 82 and 83. The
parliament did not have. The petitioners did not Constitution made it clear that citizens were to exercise
violate the doctrine of exhaustion in the context their right in the electoral process without reserve.
espoused by the 1st respondent. 7. Every eligible Kenyan had a right to be registered as
2. Article 159(1) of the Constitution stated that judicial a voter and to vote. Article 83(2) of the Constitution
authority was derived from the people. That authority provided that a citizen who qualified for registration
had to be reflected in the decisions made by the courts. as a voter would be registered at only one registration
Interpreting the Constitution was a task distinct centre. The prisoners were kept in various prisons
from interpreting the ordinary law. The very style depending on the seriousness of the offence and
of the Constitution compelled a broad and flexible where the offence occurred.
approach to interpretation. A holistic interpretation 8. Hypothetically, for a prisoner in Kamiti Maximum
of the Constitution meant interpreting the prison to go and vote in Busia for the positions
Constitution in context. It was the contextual analysis complained of it would require the Government to
of a constitutional provision, reading it alongside transport him to his registration centre in Busia and
and against other provisions, so as to maintain a avail security for him. That was only one prisoner.
rational explication of what the Constitution had to What about the thousands of prisoners in the various
be taken to mean in light of its history, of the issues prisoners? Would the Government have to organize
in dispute, and of the prevailing circumstances. Such for them to move to their registration centers to vote
scheme of interpretation did not mean an unbridled from there wait for them to finish and return them to
extrapolation of discrete constitutional provisions into the prisons? That was the current electoral regime in
each other, so as to arrive at a desired result. Kenya. The request was not practical and had to be
3. In interpreting an Act of Parliament, a number of properly planned for.
principles had been established that guided courts in 9. The request by the petitioners could only work
making the declaration of its constitutionality or lack where a registered voter had transferred his/her vote
thereof: to a registration centre under the prison where he/she
a. The general presumption that statutes were was serving otherwise making such an order would
enacted in conformity with the Constitution. create a lot of unnecessary disorder and confusion. It
b. The purpose and effect of the impugned required a lot of planning hence the submission that
provisions. it was progressive.
c. The intention articulated and intended in an 10. Voting for the president’s vote was not confined to a
Act of Parliament when it was drafted. county constituency/ ward and so was a referendum.
4. The Supreme Court in the case of Independent Electoral That was the reason why rule 39E of the Elections
and Boundaries Commission (IEBC) v New Vision (Registration of Voters) (Amendment) Regulations,
Kenya (NVK Mageuzi) & 4 others [2015] eKLR dealt 2017 provided that a prisoner could only vote in a
with regulation 39 of the Elections (Registration of presidential election or a referendum. It was not
Voters) Regulations, 2012. That regulation concerned possible for the necessary measures to be put in
the right of citizens in the diaspora to vote not the place in time to allow prisoners to vote for all classes
prisoners. In that context the case did not relate to of candidates save for the president in the scheduled
the impugned regulation 39E of the Regulations. national elections for August 9, 2022. The only way
The impugned section and rule provided that the that could be achieved could be in the next general
46
elections based on a re-working of the current like that. If the 2nd petitioner had any issues with the
electoral regime, which would require a total overhaul orders issued in in Kituo cha Sheria v IEBC No. 574
as it affected all voters and not just prisoners. For that of 2012, he should have moved the court in that file.
time, it was unworkable and the prisoners would have
Consolidated petition dismissed; each party bear its
to work with the then system.
own costs.
11. The instant petition could not be used to execute
orders issued in another petition. It did not work
One cannot claim for a refund of the un-remitted deductions made on one’s payslip
that are owed to statutory bodies (e.g. NHIF, NSSF and the RBA)
Simiyu v Nzoia Sugar Company Limited (Employment and Labour Relations Claim E005 of 2021)
[2022] KEELRC 1758 (KLR) (12 May 2022) (Judgment)
Employment and Labour Relations Claim E005 of 2021
Employment and Labour Relations Court at Bungoma
May 12, 2022
JW Keli, J
Labour Law - employment – claim for payslip NSSF; and Kshs.119,100, deducted at Kshs.1,000/-
deductions that were unremitted to statutory bodies - per month, which was never remitted to the Bumula
whether in an employment claim a claimant had the Nzoia Employee Bunze Contribution (CBO). The
power to claim for a refund of funds that were deducted claimant also sought payment of unremitted loan
from their payslip that were payable to statutory bodies deductions and the interest accrued on the same.
such as NHIF, NSSF and RBA but were unremitted to
the said bodies. Issues
i. Whether in an employment claim a claimant
Labour Law - employment – claim for deductions had the power to claim for a refund of funds
that were unremitted to discharge the claimant’s bank that were deducted from their payslip that
loans - claim for deductions that were unremitted were payable to statutory bodies such as NHIF,
to a community based organisation - whether in NSSF and RBA but were unremitted to the said
an employment claim a claimant had the power to bodies.
claim for a refund of funds that were deducted from ii. Whether in an employment claim a claimant
their payslip that were payable banks as a discharge had the power to claim for a refund of funds
of loans but were unremitted to the banks - whether that were deducted from their payslip that were
in an employment claim a claimant had the power to payable to banks as a discharge of loans but were
claim for a refund of funds that were deducted from unremitted to the banks.
their payslip that were payable to a community based iii. Whether in an employment claim a claimant
organisation (CBO) but were unremitted to the CBO. had the power to claim for a refund of funds
that were deducted from their payslip that were
Brief facts
payable to a community based organisation
The claimant, a retired employee, filed claim against (CBO) but were unremitted to the CBO.
the respondent, his former employer. The claimant iv. Whether based on the facts of the instant case
sought refund of unremitted deductions with the claimant was entitled to receive damages for
interest and salary arrears and unpaid gratuity. It was a salary increment that was not effected.
the claimant’s case that he was entitled to gratuity Held
that was not paid and he was entitled to a 6% salary
1. There was no specific mention of salary
increment and a 6% pension increment which was
increment. The proposed increment was not
not paid.
automatic but subject to the respondent’s
The claimant contended that the respondent never financial status improving. The respondent’s
remitted the deductions made to his pay to the various board approved payment of annual increment
organisations and as a result sought the refund of to management staff from July 1, 2017 when
the deductions. He contended that the respondent finances allowed. The Collective Bargaining
deducted from the claimant’s salary totalling to Kshs. Agreement of 2018 had increment but for
23,800/- which they failed to remit to NHIF; and only unionisable staff and the claimant was not
Kshs. 30,600 which the respondent failed to remit to among them. He was in management.
47
2. The claimant retired voluntarily. The increment to the Bumula Nzoia Employee Bunze
was subject to financial situation of the company Contribution (CBO). The claimant was entitled
improving. There was no evidence before the to refund of Kshs. 119,100 by the respondent.
court that other management staff benefited for 8. The respondent had an MOU with the
the said increment excluding the claimant. The National Bank of Kenya and Family Bank.
claim for 6% salary increment was not proved The respondent failed to remit deducted loan
and the same was dismissed. The claim for 6% amounts. It was the obligation of employer to
pension arrears also failed. keep records and produce them in court. By
3. The claimant confirmed he was paid pension by failing to produce entire payroll on recoveries
Trustee. The claimant’s final dues and gratuity the employer failed in its obligation. The claim
was Kshs.56,836 and was held by the respondent. for National Bank outstanding loan and accrued
The final dues gross was Kshs.59,063.50, less interest was provided on balance of probabilities
tax total Kshs.56,836.05. Gratuity and final due and the same was awarded as prayed of Kshs
was subject to statutory deductions and amount 1,412,614/- being outstanding loan arrears
payable is Kshs.56,836.05. inclusive of the charged interest.
4. NHIF was a statutory body with powers to 9. The respondent had an obligation to produce
recover unremitted dues from the respondent if payroll indicating recoveries and remittances. It
not remitted. It was not for the court to recover was aware of the claim from the demand letters
NHIF dues on claim by the employee. and at time of filing response to the claim. The
5. The claimant ought to have lodged a claim tabulations out unremitted loan deduction were
with the statutory body which the mandate and secondary evidence having been extracted. The
powers to even levy penalty under section 14 of claim by the claimant for unremitted loan and
the NSSF Act (Cap 258). The court had no basis interest of Kshs. 4,350,000 was not rebutted.
of interfering with the work of the statutory 10. The claimant was entitled to payment of
body on its mandate. Only the NSSF could Kshs.1,412,614/- due to National Bank of
impose penalties for non-remittance. The claim Kenya and Kshs.4,350,000 due to Family
for NSSF contribution and the said penalty Bank being unremitted deductions and accrued
should be pursued with the said statutory body. interest on the loans at time of filing suit.
The entire claim for unremitted NSSF dues and
Statement of claim partly allowed.
penalties were declined.
6. Like NSSF, the Retirement Benefits Authority Orders
regulated affairs of pension including disputes
on payable pension and any penalties. The i. The respondent was ordered to pay:
claimant ought to pursue his claim under a. gratuity and final dues payment Kshs.56,836;
pension with the said authority. The court had b. unremitted National Bank of Kenya
no basis for interfering with statutory duties of loan deductions and accrued interest of
the Authority. The court dismissed all the claims Kshs.1,412,614;
on pension. The claimant had remedy under c. unremitted Family Bank deductions plus
the Retirement Benefits Authority of Kenya interest accrued on the bank loan for the sum
pursuant to the provisions of the Retirement of Kshs. 4,350,000; and
Benefits Act. d. Interest on i, ii, and iii above from date of
7. On basis of an admission by the respondent filing suit at court rate until payment in full.
of having never remitted the deducted monies e. The respondent was to bear costs of the suit.
48
There is a legal lacuna in the protection of wetlands in Kenya, especially the

ungazetted wetlands within public land
Muthaiga North Residents Association v Nyari House Limited; National Land Commission &
another (Interested Party) (Environment & Land Petition 115 of 2015) [2022] KEELC 2578 (KLR)
(12 July 2022) (Judgment)
Neutral citation: [2022] KEELC 2578 (KLR)
Muthaiga North Residents Association v Nyari House Limited; National Land Commission & another
(Interested Party)
Environment & Land Petition 115 of 2015
Environment and Land Court at Nairobi
July 12, 2022
MD Mwangi, J
Land Law - alienation of public land - alienation of surrendered the suit premises and upon surrender,
public land reserved for public utility - whether public it was the petitioner’s position that, that parcel
land reserved for public utility was available for further of land then became public land. The petitioner’s
alienation - whether the Commissioner of Lands had complaint was that the respondent had unlawfully
the authority to alienate unalienated Government re-acquired the suit premises purportedly by way of
Land - Government Land Act, Cap 280, (repealed) an allocation from the Commissioner of Lands.
section 3; Land Registration Act, 2012, section 26.
The petitioner sought for among others a declaration
Constitutional Law - locus standi - locus standi in that the suit premises was public land for purposes
environmental matters - what was the nature of locus of article 162 of the Constitution of Kenya,
standi in environmental matters - Constitution of 2010 (Constitution) and an order of mandamus
Kenya, 2010, articles 22, 70 and 258. directing the 1st interested party, the National Land
Commission (NLC) to cancel the grant registered.
Environmental Law - wetlands - nature of wetlands
- what was the nature of wetlands. Issues
i. What was the nature of locus standi in
Environmental Law - National Environmental
environmental matters?
Management Authority (NEMA) - mandate of NEMA
ii. Whether public land reserved for public utility
- issuance of environmental impact assessment licences
was available for further alienation?
- what was the process to be followed by NEMA before
iii. Whether the Commissioner of Lands had the
issuing licences - Constitution of Kenya, 2010, article
authority to alienate unalienated Government
10.
Land.
Brief facts iv. What was the nature of wetlands?
v. What was the process to be followed by
The petitioner’s case was that the suit premises was the National Environmental Management
public land and was not available for re-allocation Authority before issuing licences?
and or appropriation for private use. Further, that
the suit premises was a wetland. It was stated that Held
the circumstances under which the suit premises 1. Locus standi was the right to bring an action
became public land were that one of the courts in before a court of law or another adjudicatory
Muthaiga North Estate was initially owned by the forum. The landscape of locus standi had
respondent who then caused the subdivision of the been fundamentally transformed by the
land into residential plots. The plots were disposed enactment of the Constitution by the people
off by way of sale to 3rd party purchasers who built themselves. The hitherto stringent locus standi
their homes on their respective plots. requirements of consent of the attorney general
or demonstration of some specific interest by or
One of the conditions for the sub-division private citizen seeking to enforce a public right
undertaken by the respondent was that it was to had been buried in the annals of history. By
provide and apportion a part of the land for public dint of articles 22 and 258 of the Constitution,
amenities and use. That was done by way of surrender any person could institute proceedings under
of the designated portion of land to the government. the Bill of Rights, on behalf of another person
The petitioner averred that the respondent indeed who could not act their own name, or as a
49
member of, or in the interest of a group or class and open spaces in Kenya had to come to end.
of persons, or in the public interest. 6. Under the Environment Management and Co-
1. In enforcement of environmental rights in ordination Act (EMCA) and the Regulations
Kenya, article 70 of the Constitution was made thereunder, wetlands meant areas
emphatic that an applicant did not have to permanently or seasonally flooded by water
demonstrate that he/she or any other person where plants and animals had become adapted;
had incurred loss or suffered injury. Any person and included swamps, areas of marsh, peat
could institute proceedings under article 70. land, mountain bogs, bank of rivers, vegetation,
The petitioner had the locus standi to institute areas of impeded drainage or brackish, salt or
the petition whether on its own behalf or on alkaline; including areas of marine water the
behalf of its members. In fact, any other person depth of which at low tide did not exceed 6
who was not even a member or resident of maters. It also incorporated riparian and coastal
Muthaiga North Estate could as well have filed zones adjacent to the wetlands.
the petition. The petitioner was not a busy 7. The Ramsar Convention on Wetlands to which
body. Kenya was a state party defined wetlands as
2. From the evidence before the court, the suit areas of marsh, fen, peatland or water, whether
premises was surrendered to the Government natural or artificial, permanent or temporary,
on November 2, 2006. The law governing with water that was static or flowing, fresh,
Government land in the year 2006 was the brackish or salt, including areas of marine
repealed Government Land Act (GLA). The water the depth of which at low tide did not
respondent made the application for allocation exceed six metres. Article 4 of the Convention
of the suit premises in the year 2010. Public land enjoined each state party (contracting party)
was held in trust for the people of Kenya. Land to promote the conservation of wetlands and
reserved for public utility was not available for waterfowl by establishing nature reserves on
further alienation. wetlands, whether they were included in the list
3. The respondent was allocated the suit premises of wetlands of international importance or not,
by the Commissioner of Lands. Section 3 and provided adequately for their wardening.
of the GLA reserved the right to allocate un- 8. The Nairobi County Director of the 2nd
alienated government land to the president of interested party; the National Environmental
the Republic of Kenya. So even presuming that Management Authority (NEMA) merely told
the suit premises was un-alienated government the court that they had identified the suit
land, it was only the president who could premises as a wetland. They had not taken
alienate it. The power of the president under any other action to preserve the same not
section 3 was delegated to the Commissioner even pegging to demarcate the boundaries of
of Lands in cases, only for religious, charitable the wetland. NEMA as one of the concerned
education or sports purposes. authorities had to be pro-active in executing
4. The Commissioner of Lands had no authority the mandate under the EMCA and the Ramsar
to alienate the suit premises to the respondent. Convention to protect wetlands. NEMA
The allocation of the suit premises to the should never lose sight of the fact that it was
respondent was therefore not only irregular bound by the public trust doctrine to preserve
but unlawful as well. Sanctity of title was never those environmental resources on behalf of the
intended or understood to be a vehicle for people of Kenya.
fraud and illegalities or an avenue for unjust 9. The evidence adduced by the petitioner and the
enrichment at public expense. The court would 2nd defendant was not sufficient to enable the
not hesitate to cancel the respondent’s title and court make a conclusive finding that the suit
revoke the grant issued thereof. The law, section premises was a wetland. The petitioner’s prayer
26 of the Land Registration Act was clear that for an order restraining NEMA from issuing a
a title obtained by illegal/irregular means could license to the respondent to proceed with the
be cancelled. That would be so in the instant proposed project and further from undertaking
case. any process including public hearings and
5. The Land Use and Physical Planning Act made meetings relating thereto was too presumptive.
provisions for open spaces in land planning. 10. NEMA was empowered under statute to issue
Kenyans should take pride in having open green the kind of licence sought by the respondent.
spaces within the estates. An open space was Before issuing the licence, NEMA was
not a waste land. The avarice for public land obligated to conduct public hearings and
50
consult all stakeholders otherwise undertake vested in County Governments and the National
the process referred to as public participation. Government? The laws need to be harmonized
Public participation was entrenched in the to facilitate their seamless enforcement in order
Constitution. It was indeed one of the national to conserve the endangered wetlands and other
values and principles of governance under environmental resources in Kenya.
article 10 of the Constitution.
Petition allowed; respondent to pay the costs of the
11. NEMA had a duty to hold public hearings
petition to the petitioner.
before making a decision whether to issue the
licence or not. NEMA was in the process of Orders
conducting public hearings and had not made i. A declaration was made that the suit premises
a decision or given any indication that it was was public land for purposes of article 162 of the
about to issue a licence to the respondent. Constitution.
That was why the prayer by the petitioner was ii. An order of mandamus was made directing the
presumptive. The court would therefore not NLC to cancel and or revoke the grant registered
issue the order sought against NEMA. for the parcel of land.
12. [Obiter] There seems, however to be a glaring iii. An order was issued restraining the respondent
legal lacuna in the protection of wetlands in permanently from entering into, constructing
Kenya, especially so, the ungazetted wetlands upon or in any other way interfering with the suit
within public land. Exactly whose mandate is premises.
it to protect those wetlands since public land is

The first of a series, the KLR 2018 volume 1 contains
judgments from the Supreme Court of Kenya, the
Court of Appeal and the High Court delivered in
2018. The report contains selected cases on diverse
areas of law ranging from:
• Conflict of laws
• Contract law (employment contracts)
• Customary law (burial rites)
• Devolution
• Diplomatic immunity and privileges
• Electoral law
• Environmental law
• Equity
• Tort law (negligence and defamation)
Kes. 5500 • Land law
• Medical law
+ 16% VAT
• Law of succession
• Various aspects on jurisdiction
51
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Caseback for the reporting period of 1st July – 30th September 2022.
Hon. Njeri Thuku This is a very useful service. It helps me learn as I review the
Magistrate appeals. Thank you.
The Kenyan Judiciary
Hon. Mary Moranga I sincerely appreciate the cases as determined by the high court.
Senior Principal It helps us learn more on how to approach various legal issues.
Magistrate
Kilgoris Law Courts
Hon. Mary Moranga Thank you for the case feedback.

Senior Principal It gives to us guidelines on what we do right and areas that need
Magistrate improvement.
Kilgoris Law Courts Thanks once again
Hon. Charity Oluoch

Chief Magistrate Thank you for the case back. Very well received and appreciated.
Children’s Court
Milimani Law Courts
Hon. Mildred Obura, Thank you for the feedback. Always appreciated.
Chief Magistrate
Voi Law Courts.
52
Legislative Updates
Christian Ateka & Brian Kulei
This is a synopsis of Acts of Parliament for the period ending 30th September, 2022.
Act Title SACCO SOCIETIES (AMENDMENT) ACT, 2022

Act No. 34 of 2022
Assent Date 6th July, 2022
Commencement Date 26th July, 2022
Objective The principal object of the Act is to amend the Sacco Societies Act (No. 14 of 2008) by provid-
ing for the usage of ICT in collecting and receiving of statutory reports.
Act Title IRRIGATION (AMENDMENT) ACT, 2022

Act No. 33 of 2022
Objective This Act seeks to amend the Irrigation Act (No.14 of 2019) to expand the administration and
management of irrigation matters in Kenya.
Act Title PUBLIC PROCUREMENT AND ASSET DISPOSAL (AMENDMENT) ACT, 2022
Act No. 32 of 2022
Objective The purpose of the Act is to amend the Public Procurement and Asset Disposal Act(No. 33
of 2015) to address the challenges faced by procuring entities in implementing the Public
Procurement and Asset Disposal Act including the multiple awards of contracts in the wake of
sections 82 and 86 of the Act.
Act Title SUSTAINABLE WASTE M ANAGEM ENT ACT, 2022

Act No. 31 of 2022
Objective This Act seeks to establish the legal and institutional framework for the sustainable manage-
ment of waste; ensure the realization of the Constitutional provision on the right to a clean and
healthy environment and for connected purposes.
Act Title COMMUNITY GROUPS REGISTRATION ACT , 2022

Act No. 30 of 2022
Objective The principal object of this Act is to provide a regulatory framework for the registration and
regulation of community groups and for connected purposes.
53
Act Title CHILDREN ACT, 2022

Act No. 29 of 2022
Objective This Act makes provision for children rights, parental responsibility, alternative care of children
including guardianship, foster care placement and adoption; to make provision for care and
protection of children and children in conflict with the law; to make provision for, and regulate
the administration of children services; and to establish the National Council for Children’s
Services. This Act repeals Children Act (No. 8 of 2001).
Act Title RADIOGRAPHERS ACT, 2022

Act No. 28 of 2022
Assent Date 21st June, 2022
Commencement Date 12 months after publication in the Gazette
Objective This Act seeks to make provision for the training, registration and licensing of radiographers;
to regulate their practice; to provide for the establishment, powers and functions of the Ra-
diographers Board of Kenya.
Act Title MENTAL HEALTH (AMENDMENT) ACT, 2022

Act No. 27 of 2022
Objective This Act seeks to provide for the prevention of mental illness, to provide for the care, treatment
and rehabilitation of persons with mental illness; to provide for procedures of admission, treat-
ment and general management of persons with mental illness; and for connected purposes.
Act Title SUPREME COURT (AMENDMENT) ACT, 2022

Act No. 26 of 2022
Assent No. 26th June, 2022
Objective The purpose of this Act is to amend the Supreme Court Act (No .7 of 2011) in order to align
it with the current practices of the Court and to improve the Court’s efficiency in the discharge
of its duties.
Act Title NATIONAL ELECTRONIC SINGLE WINDOW SYSTEM ACT, 2022

Act No. 25 of 2022
Commencement date 11th July, 2022
Objective This Act seeks to provide for the establishment and operationalization of the National Elec-
tronic Single Window System in order to facilitate trade, the establishment of the Kenya Trade
Network Agency, to provide for electronic transactions, and for connected purposes.
Act Title NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND

(AMENDMENT) ACT, 2022
Act No. 24 of 2022
Objective The principal objective of this Act is to amend the National Government Constituencies De-
velopment Fund Act, 2015 (No. 30 of 2015) to provide for the opening and operating of
constituency accounts in order to facilitate third party transactions. This amendment shall
facilitate timely and efficient disbursement of funds to constituencies by establishing struc-
tures for the efficient and prudent management of the National Government Constituencies
Development Fund.
54
Act Title FINANCE ACT, 2022

Act No. 22 of 2022
Commencement Dates a) sections 3, 6, 10, 15, 16, 22(b)(ii) and 32, on the 1st January, 2023; and
b) all other sections, on the 1st July, 2022.
Objective This Act seeks to amend the following laws relating to various taxes and duties:
1. Income Tax Act (Cap. 470)
2. Tax Procedures Act, (No. 29 of 2015)
3. Stamp Duty Ac (Cap. 480)
4. Value Added Tax Act (No. 35 of 2013)
5. Excise Duty Act, (No. 23 of 2015)
6. Miscellaneous Fees and Levies Amendment of Act (No. 29 of 2016)
7. Evidence Act (Cap. 80)
8. Capital Markets Act (Cap. 485A)
9. Kenya Roads Board Act (No. 7 of 1999)
10. Betting, Lotteries and Gaming Act (Cap. 131)
11. Unclaimed Financial Assets Act, (No. 40 of 2011)
12. Statutory Instruments Act (No. 23 of 2013)
13. Retirement Benefits (Deputy President and Designated State Officers) Act (No. 8 of 2015).
Act Title MILITARY VETERANS ACT, 2022

Act No. 18 of 2022
Assent Date 16th June, 2022
Objective This Act establishes a regulatory and institutional framework for the management of military
veterans’ affairs; for the provision of benefits to military veterans and military veterans’ depen-
dants; to establish the Dependants’ Education Fund; and for connected purposes.
Act Title PERPETUITIES AND ACCUMULATIONS (AMENDMENT) ACT, 2022

Act No. 10 of 2022
Assent Date 24th February, 2022
Commencement Date 21st March, 2022
Objective This Act seeks to amend the Perpetuities and Accumulations Act (Cap. 161) to create an en-
abling legal framework for preservation of generational wealth.
Act Title ASIAN WIDOWS’ AND ORPHANS’ PENSIONS (REPEAL) ACT, 2022.
Act No. 5 of 2022
Assent Date 24th February,2022
Commencement Date 21st March, 2022
Objective This Act seeks to repeal the Asian Widows’ and Orphans’ Pensions Act (Cap. 193) in light
of the enactment of the Public Finance Management Act (No.18 of 2012) by establishing a
consolidated fund for claims and providing that the Cabinet Secretary for National Treasury,
shall, before the winding up of the Fund, ascertain the status of claims against the Fund and,
ensure that any outstanding claims are settled within one year of the coming into operation
of this Act.
55
Legal Supplements
Christian Ateka & Brian Kulei,
This article provides a summary of Legislative Supplements published in the Kenya Gazette on matters of
general public importance in the period ending 30th September, 2022.
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT NUMBER
8th August, 2022 62 National Aids The President of the Republic of Kenya and
Control Council Commander-in-Chief of the Kenya Defence Forces
(Amendment) in exercise of the powers conferred by section 3(1) of
Order, 2022. the State Corporations Act makes the National Aids
Control Council (Amendment) Order, 2022 which
seeks to amend the National AIDS Control Council
Order, 1999 (LN.170/1999). The amendments
include title change of the principal Order and
[L.N. 143/2022] provision of functions of the Council.
1 August, 2022
st
61 Kenya Tissue The President of the Republic of Kenya and
and Transplant Commander-in-Chief of the Kenya Defence Forces
Authority Order, in exercise of the powers conferred by section 3(1) of
2022 the State Corporations Act makes the Kenya Tissue
and Transplant Authority Order, 2022 whose objective
is to ensure access to safe and ethical use of human
cells, tissues and organs and the safety, biosafety and
wellbeing of donors an d recipients in medical services
relating to human derived medical products through
the establishment and maintenance of systems that
[L.N. 142/2022] comply with safety and legal requirement.
29th July, 2022 58 Matrimonial Prop- The Rules Committee in exercise of the powers
erty Rules, 2022 conferred by section 18 of the Matrimonial Property
Act, 2013 Rules, 2022 makes the Matrimonial Property
Rules, 2022 whose objective to facilitate the just,
expeditious, proportionate and affordable resolution of
[L.N. 137/2022] disputes relating to matrimonial property.
20th June, 2022 48 National Transport The Cabinet Secretary for Transport, Infrastructure,
and Safety Authority Housing, Urban Development and Public Works, in
(Transport Network exercise of the powers conferred by section 54 of the
Companies, National Transport and Safety Authority Act, 2012,
Owners, Drivers makes the National Transport and Safety Authority
and Passengers) (Transport Network Companies, Owners, Drivers and
Regulations, 2022 Passengers) Regulations, 2022 whose purpose is to
regulate the provision of transport network services by
[L.N. 120/2022] transport network drivers through transport network
platforms.
24th May, 2022 38 Legal Aid Code The National Legal Aid Service, in exercise of the
of Conduct for powers conferred by section 61(2) of the Legal Aid
Accredited Legal Act, 2016, makes the Legal Aid Code of Conduct for
Aid Providers, 2022 Accredited Legal Aid Providers, 2022. The objectives of
this Code are to—
a) set standards of conduct for accredited legal aid
providers;
b) facilitate access to justice; and
c) promote integrity, respect, confidentiality,
accountability, public responsibility and
[L.N. 87/2022] competence of accredited legal providers.
56
24th May, 2022 38 Legal Aid (General) The Attorney-General, in exercise of the powers
Regulations, 2022 conferred by section 86 of the Legal Aid Act, 2016,
makes the Legal Aid (General) Regulations, 2022.
These Regulations provide for, inter alia:
a) eligibility criteria for legal aid;
b) application for legal aid;
c) accreditation of legal aid providers;
[L.N. 86/2022] d) enforcement of conditions for grant of legal aid;
e) payment for legal aid services.
5th May, 2022 36 Scrap Metal Dealers The Cabinet Secretary for Industrialization, Trade
Rules, 2022 and Enterprise Development in exercise of the powers
conferred by section 32(1) of the Scrap Metal Act,
2015 makes the Scrap Metal Dealers Rules, 2022
[L.N. 84/2022] whose objective is to govern matters relating to dealings
in scrap metal.
4th May, 2022 34 National Gender The National Gender and Equality Commission in
and Equality exercise of the powers conferred by section 55 of the
Commission National Gender and Equality Commission Act, 2011,
(Complaints makes the National Gender and Equality Commission
Handling (Complaints Handling Procedure) Regulations, 2022
Procedure) whose objective is to facilitate the fair, impartial, just,
Regulations, 2022 expeditious, proportionate and affordable determina-
tion of complaints lodged with the Commission.
[L.N. 78/2022]
18 March, 2022
th
24 Insurance The Cabinet Secretary for National Treasury and Plan-
(Suitability of ning makes the Insurance (Suitability of Key Persons)
Key Persons) Regulations, 2021 whose purpose is to ensure that all
Regulations, 2021 key persons are suitable at all times to fulfil their respec-
tive roles and shall apply to persons registered under
[L.N. 47/2022] the Act and insurance groups.
18 March, 2022
th
23 Central Bank of The Central Bank of Kenya in exercise of the powers
Kenya (Digital conferred by section, section 57(1), (3) and (4) of the
Credit Providers) Central Bank of Kenya Act, makes the Central Bank
Regulations, 2022. of Kenya (Digital Credit Providers) Regulations, 2022.
These Regulations provide for, inter alia:
a) licensing of digital credit providers;
b) exchange of credit information and restriction of
[L.N. 46/2022] use of credit information;
c) consumer protection;
d) reporting requirements and oversight by the
Central Bank.
14th January, 3 Intergovernmental The Cabinet Secretary, in consultation with the Sum-
2022 Relations mit, and exercise of the powers conferred by section,
(Alternative section 38(2)(c) of the Intergovernmental Relations
Dispute Resolution) Act, 2012, makes Intergovernmental Relations (Alter-
Regulations, 2021. native Dispute Resolution) Regulations, 2021 whose
objective is:
(a) To enable parties to a dispute, exhaust the
alternative dispute resolution mechanisms
provided under these Regulations before resorting
to judicial proceedings;
(b) promote and ensure effective, efficient and
amicable resolution of intergovernmental
[L.N. 4/2021] disputes as contemplated under Article 189(3)
and (4) of the Constitution;
(c) facilitate and promote intergovernmental
consultation and cooperation as contemplated
under Article 6(2) of the Constitution; and
(d) foster mutual trust and good faith between the
national government and a county government
or amongst county governments.
57
International
Jurisprudence
The Court of Appeal of the United States holds that a patent applicant or owner can
overcome anticipation by establishing that the relevant disclosure in the prior-art
reference describes their own invention
LSI Corporation and Avago Technologies v Regents of the University of Minnesota
21-2057
Court of Appeal of the United States
August 11, 2022
Dyk, Reyna & Hughes, JJA
Reported by Faith Wanjiku and Bonface Nyamweya
Intellectual Property law- Intellectual property rights- The 601 patent addressed error rates related to
patents- patentability and unpatentability- conditions recording data to computer storage devices. Some
for patentability and unpatentability- where the input data sequences contained error-prone binary
respondent had sued the petitioners for infringement of data patterns. Dr. Jaekyun Moon, a professor at
US Patent No. 5,859,601 (601 patent) in the District the respondent’s university at the time, and Dr.
of Minnesota- where the 1st petitioner petitioned the Barrett J. Brickner, a graduate student from the
Patent Trial and Appeal Board (the board) for inter respondent university at the time, developed
partes review of the 601 patent, and the board instituted maximum transition-run coding to reduce those
review on claims 13, 14, and 17 on anticipation error-prone patterns, and their work became the
theories based on two prior-art references, US Patent basis for the 601 patent. The maximum transition-
Nos. 5,392,270 (Okada) and 5,731,768 (Tsang)- run coding as described in the 601 patent involved
where the 1st petitioner failed to show unpatentability of receiving sequences of input data blocks with error-
claims 14 and 17 in relation to the two patents- where prone patterns and converting (i.e., encoding) each
the board held that the 1st petitioner failed to timely input data block into a corresponding codeword
raise its theory that tables 8 and 9 of Okada anticipated that avoided the error-prone patterns. Dr. Moon
claims 14 and 17 and that, in any event, tables 8 and and Dr. Brickner understood that the number
9 did not anticipate- what was anticipation in relation of consecutive bit transitions in the input data
to patents- whether reference to an earlier invention sequence, i.e., binary bit transitions from 0 to 1
by another person to come up with a new invention or 1 to 0, was an important source of error. Thus,
amounted to anticipation- what were the steps in maximum transition-run coding as described in
establishing whether a reference to an earlier invention the 601 patent converted input data blocks into
by another person to come up with a new invention codewords that imposed a limit on the maximum
amounted to anticipation- 35 USC § 102(e). number of consecutive transitions that were written
to a computer storage device and imposed a limit on
Brief facts
the maximum number of non-transitions.
The respondent had sued the petitioners for
In finding that the 1st petitioner failed to show
infringement of US Patent No. 5,859,601 (601
unpatentability of claims 14 and 17, the board held
patent) in the District of Minnesota. The 1st petitioner
that the 1st petitioner failed to timely raise its theory
petitioned the Patent Trial and Appeal Board (the
that tables 8 and 9 of Okada anticipated claims 14
board) for inter partes review of the 601 patent, and
and 17 and that, in any event, tables 8 and 9 did
the board instituted review on claims 13, 14, and
not anticipate. As to Tsang, the board held that
17 on anticipation theories based on two prior-art
the reference was not prior art because it was not
references, US Patent Nos. 5,392,270 (Okada) and
by another under 35 USC § 102(e), hence the 1st
5,731,768 (Tsang). The board concluded that claim
petitioner appealed the board’s decision as to claims
13 was unpatentable in view of Okada and that
14 and 17.
claims 14 and 17 were not shown to be unpatentable
in view of either reference. Issues
i. What was anticipation in relation to patents?
58
ii. Whether reference to an earlier invention by prone patterns of consecutive bit transitions
another person to come up with a new invention before saving or storing the encoded sequence
amounted to anticipation. in a computer storage device. The maximum
iii. What were the steps in establishing whether transition-run coding as described in both the
a reference to an earlier invention by another 601 patent and the Seagate Annual Report
person to come up with a new invention included the two limitations on consecutive bit
amounted to anticipation? transitions and non-transitions. To accomplish
Relevant provisions of law the encoding and achieve the two limitations on
35 USC § 102(e) transitions and non-transitions, the 601 patent
A person shall be entitled to a patent unless— and the Seagate Annual Report described a
(e) the invention was described in— fixed-length block code that mapped every 4-bit
(1) an application for patent, published under section input data block to a unique 5-bit codeword. The
122(b), by another filed in the United States before the maximum transition-run coding that mapped
invention by the applicant for patent or 4-bit input data blocks to 5-bit codewords was
(2) a patent granted on an application for patent by a rate 4/5 code.
another filed in the United States before the invention 4. There was no contention that the Seagate
by the applicant for patent. Annual Report could be relied upon as prior
Held art to the 601 patent since Dr. Moon and Dr.
1. Okada taught converting input data blocks Brickner were both listed as the only authors
using two rules that eliminated the occurrence of the Seagate Annual Report and as the only
of certain patterns in the input data blocks for inventors of the 601 patent. Because the Seagate
use with optical disks. Okada’s rule 1 provided Annual Report had the same authors, it was
that a pattern after conversion consisted of at not by another person under § 102 even if it
least one 0 and an even number of consecutive were publicly available before the priority date.
1. Okada’s rule 2 provided that a pattern after Rather, the 1st petitioner relied on another
conversion included a section consisting of prior-art patent, Tsang, to anticipate claims 14
01010 and a section consisting of at least one 0 or and 17.
an even number of consecutive 1. Okada’s tables 5. About four months after receiving the Seagate
1–9 included an example mapping of all 8-bit Annual Report from Dr. Moon and Dr. Brickner
input data blocks to 13-bit converted output and before the earliest filing date of the 601
data blocks based on Okada’s two rules. The patent (April 5, 1996), Dr. Kinhing P Tsang,
1st petitioner originally contended that Okada’s an employee at Seagate, filed an application on
disclosure of rule 2 itself anticipated claims January 31, 1996, that would later mature into
14 and 17 of the 601 patent, but later argued the Tsang patent. Dr. Moon and Dr. Brickner
instead that tables 8 and 9 were embodiments were not listed as inventors on the Tsang patent.
that anticipated claims 14 and 17. Under § 102(e), the Tsang patent was prior art
2. The 1st petitioner’s second theory of anticipation on its face to the 601 patent because Dr. Tsang
relied on Tsang, and particularly those portions was the only listed inventor on the patent and
of Tsang disclosed earlier in what was known as was not a listed inventor on the 601 patent.
the Seagate Annual Report. Some background The Tsang patent described the maximum
on the 601 patent was necessary to understand transition-run coding as previously existing
the Tsang anticipation theory. On September in the background section of the patent and
26, 1995, Dr. Moon and Dr. Brickner submitted directly referenced the Seagate Annual Report.
the Seagate Annual Report about maximum 6. Based on the description of maximum
transition-run coding to Seagate, an industry transition-run coding by Dr. Moon and Dr.
collaborator on their research. The material in Brickner in the Seagate Annual Report, Tsang
the Seagate Annual Report was later embodied revised the maximum transition-run coding to
in the 601 patent. It was not clear whether the create a specific codeword strategy that selected
Seagate Annual Report was publicly available the codeword for a given dataword depending
before the 601 patent’s priority date. on the previous dataword-codeword mapping,
3. In both the Seagate Annual Report and the 601 an invention not disclosed or specifically
patent, Dr. Moon and Dr. Brickner described claimed in the 601 patent. That type of system
maximum transition-run coding that took an was known as a state-dependent system, and
input sequence of binary data and encoded it allowed Tsang to implement maximum
or converted it in a way that eliminated error- transition-run coding with higher input-output
59
rates, which allowed for more efficient use of 914 F3d 1347, 1357 (Fed Cir 2019) (Duncan
storage. For example, Tsang described and Parking) test, and that since (allegedly) Tsang
claimed an implementation with 6-bit input was a species of the genus described in the 601
data blocks and 7-bit output codewords, i.e., patent, it anticipated claims 14 and 17. The 1st
a 6/7 rate, instead of the 4/5 rate described in petitioner misunderstood the relevant test. The
the Seagate Annual Report and the 601 patent. question was whether the invention of Tsang
Dr. Tsang described a specific implementation was relied upon and relevant to anticipation,
that built on maximum transition-run coding or whether it was simply Tsang’s summary
that limited consecutive transitions and non- of the earlier Seagate Annual Report that was
transitions as described by Dr. Moon and Dr. relied upon and relevant to anticipation. Tsang’s
Brickner in the Seagate Annual Report. summary of, and reliance on, the earlier work of
7. The 1st petitioner did not challenge the board’s Dr. Moon and Dr. Brickner did not make Tsang
determination that the 1st petitioner’s argument an inventor of the earlier work.
about Okada’s tables 8 and 9 was improper as 12. The portions of the reference being considered
untimely. At oral argument, the 1st petitioner had to be relied upon and relevant to establishing
indeed admitted that it did not appeal the obviousness. Otherwise, a party challenging a
board’s untimeliness determination. However, patent could artificially alter the inventive entity
the 1st petitioner argued that it was not for comparison by citing extraneous portions
necessary to challenge the board’s untimeliness of a multi-inventor prior art reference, thereby
determination because the board nevertheless making it by others even if the portions of the
reached the merits. reference necessary for establishing obviousness
8. The court affirmed the board’s conclusion of had the same inventive entity as the challenged
untimeliness because the 1st petitioner forfeited patent.
any challenge to the untimeliness holding by 13. The petition relied both on portions of Tsang
failing to challenge it in its opening brief on that summarized the Seagate Annual Report
appeal, and the board’s timeliness holding and on additional portions of Tsang that were
constituted an independent ground for its not merely derivative of the Seagate Annual
decision. Report—portions describing Tsang’s specific
9. A claimed invention was anticipated if the invention. But those additional portions of
invention was described in an application for Tsang were not relevant to anticipation. The
patent, published under section 122(b), by board properly concluded that the two Tsang
another filed in the United States before the embodiments, which included the specific 5/6
invention by the applicant for patent. A patent and 6/7 rates that were different from the 4/5
applicant or owner could overcome anticipation rate disclosed by Dr. Moon and Dr. Brickner
under § 102(e) by establishing that the relevant in the Seagate Annual Report, were not relevant
disclosure in the prior-art reference described to the scope of the challenged claims because
their own invention, i.e., that it was not by Tsang’s 5/6 and 6/7 maximum transition-run
another person. rates did not refer to the values of constraints j
10. Determining whether a reference was by another and k, which imposed limits on the number of
person involved three steps whereby the board consecutive transitions and non-transitions in
had to: the challenged claims.
(1) determine what portions of the reference 14. Tsang’s 5/6 and 6/7 rates addressed characteristics
patent were relied on as prior art to anticipate that were not limited by the challenged claims
the claim limitations at issue, and were not relevant to the limitations in the
(2) evaluate the degree to which those portions challenged claims. Indeed, the 1st petitioner’s
were conceived by another, and briefs on appeal took pains to repeatedly point
(3) decide whether that other person’s out that the invention of Tsang was quite
contribution was significant enough, when different from the 601 patent. Tsang’s state-
measured against the full anticipating disclosure, dependent method resulted in efficiencies and
to render him a joint inventor of the applied higher rates that could not be realized using the
portions of the reference patent. block-code approach disclosed in the 601 patent
11. The 1st petitioner argued that it relied on Tsang specification. Tsang disclosed two encoding
to establish anticipation (and not the Seagate methods that were impossible to implement
Annual Report), thus satisfying the first prong of using the block-code approach disclosed in the
the Duncan Parking Techs, Inc v IPS Group, Inc, 601 patent specification, and Tsang’s methods
60
made available additional valid codewords that Kenya ratified and signed at Washington the Patent
were not available with the block-code method. Co-operation Treaty on the June 19, 1970; as
15. Tsang’s invention represented a significant evidenced under the provisions of section 2 of part
advance over the simple block-code method 1 of the Industrial Property Act, 2001 Cap 509 laws
disclosed in the specification of the 601 of Kenya. Section 21 (1) of the Industrial Property
patent. Tsang expressly explains that [Tsang’s] Act, 2001, Cap 509 of the laws of Kenya provides
inventions were not made—and could not have that the term invention means a solution to a specific
been made—using a one-to-one block mapping problem in the field of technology. The whole of
method like that disclosed in figure 6 of the section 21 (3) (b) of the Industrial Property Act,
601 patent. Tsang’s method was more efficient 2001 Cap 509 of the laws of Kenya provides that:
than the block-code method because it stored
a. The following shall not be regarded as inventions and
data more densely on a disk. Tsang’s inventions
shall be excluded from patent protection.
were not made using a block-code method like
the one disclosed in the specification of the b. Schemes, rules or methods of doing business,
601 patent, and did not utilize a block code performing mental acts or playing games.
method like the 4/5 code disclosed in the 601 In John Kamonjo Mwaura v Kenya Industrial Property
specification. Institute & another; National Commercial Bank of
16. It was thus undisputed that those unique Africa (NCBA) & another (Interested Party) [2020]
features of Tsang were irrelevant to anticipation eKLR, the court dismissed the petition holding that:
of the invention of claims 14 and 17, and that
the concept of limitations on the number of Our finding that the appellant’s patent application
consecutive transitions and non-transitions (the consisted of non-patentable subject matter would dispose
j and k constraints in the challenged claims) of this appeal...The policy of patent law is to protect
was disclosed in the Seagate Annual Report genuine inventions thereby encouraging innovation
and merely repeated in Tsang’s background and rewarding creativity for the benefit of society.
section. The board did not err in holding that That policy objective would not be served if patent
it was persuaded that the petition relied on the registration is granted to what is already in existence
portions of Tsang describing the maximum and in respect of non-patentable subject matter.
transition-ran constraints j and k, which were This case is thus relevant to the Kenyan jurisprudence
also described in the Seagate Annual Report, because it clarifies on patentability in intellectual
such that Tsang did not qualify as the work of property rights by noting that a patent applicant
another. or owner can overcome anticipation by establishing
Petition dismissed; the board’s ruling upheld. that the relevant disclosure in the prior-art reference
Relevance to the Kenyan jurisprudence describes their own invention. According to
the Wex Definitions of the Cornel Law School,
The Constitution of Kenya, 2010, in article 260
anticipation in patent law means the prior invention
(c) defines the term property to include intellectual
or disclosure of the claimed invention by another,
property. Moreover, in articles 11 (2)(c), 40 (5)
or the inventor’s own disclosure of the claimed
and 69 (1)(c) it stresses that the state shall support,
invention by publication, sale, or offer to sell prior
promote and protect the intellectual property rights
to the inventor’s application for a patent.
of the people of Kenya.
61
The Supreme Court of Appeal of South Africa holds that where there is evidence of
abuse of the trust by the trustee in a divorce case involving property distribution, the
courts can look behind the trust form in order to prevent its abuse
MJ K v II K (360/2021)
[2022] ZASCA 116
Supreme Court of Appeal of South Africa
July 28, 2022
Zondi, Schippers and Mabindla-Boqwana, JJA; Matojane and Smith, AJJA
Reported by Faith Wanjiku and Bonface Nyamweya
Family law- divorce – property distribution after the 9th appellant and his income and expenditure.
divorce- parties married out of community of property The control and management of the trusts and the
subject to the accrual system – determination of accrual 9th appellant lay solely with the 1st appellant. The
– whether assets of trusts of which the husband was a respondent asserted that the 1st appellant ensured
trustee and the close corporation of which he was a sole that his personal friend, the 3rd appellant was
member should be regarded as belonging to husband appointed as a trustee of all the trusts, who was
for purposes of determining the accrual of his estate – a trustee in name only. All the trust deeds of the
what was the legal basis to pierce the veneer of trusts not discretionary trusts were worded in such a manner as
established- Matrimonial Property Act, 1984, sections to give the 1st appellant wide-ranging powers so that
3 and 4; Divorce Act, 1979, section 7. he managed the trusts and the 9th appellant without
input from any third parties, including other
Family law- divorce – property distribution after
trustees, and the 1st appellant held no meetings of
divorce- parties married out of community of property
trustees or members.
subject to the accrual system – determination of accrual
– whether assets of trusts of which the husband was a The High Court, after examining the terms of the
trustee and the close corporation of which he was a sole trust deeds of the relevant trusts and the manner in
member should be regarded as belonging to husband for which their affairs were conducted, found that the
purposes of determining the accrual of his estate – what assets of the three trusts were controlled by the 1st
were the proprietary consequences of a marriage out of appellant. The High Court concluded that the 1st
community of property subject to an accrual system- appellant transferred the assets to the trusts with
Matrimonial Property Act, 1984, sections 3 and 4; the dishonest and fraudulent purpose of frustrating
Divorce Act, 1979, section 7. the respondent’s claim to the accrual of the estate. It
stated that the appellant, before he became aware of
Brief facts
the respondent’s infidelity, conducted his businesses
The respondent sued the appellant at the High through his companies and close corporations, but
Court for a decree of divorce. After joining the after the discovery of the respondent’s infidelity, the
Koens Besigheids Trust, Koens Familie Trust, 1st appellant transferred all the assets to the trusts,
Bulhoek Trust (the trusts) and the 9th appellant as in some instances, for no value. That resulted to the
parties in the divorce proceedings, the respondent appeal.
amended her particulars of claim so as to include a
Issues
prayer for an order declaring that the assets of the
trusts and the 9th appellant be taken into account i. Whether assets of trusts of which the husband
in determining the value of the accrual in terms of was a trustee and the close corporation of which
sections 3 and 4 of the Matrimonial Property Act 88 he was the sole member should be regarded
of 1984 (the Act). The basis for her amended claim as belonging to the husband for purposes of
was that the trusts and the 9th appellant were the determining the accrual of his estate at the time
alter ego of the appellant. In support of her claim of divorce.
for the assets of the trusts and the 9th appellant to be
ii. What was the legal basis to pierce the veneer of
regarded as assets of the 1st appellant, the respondent
trusts not established at the time of divorce?
alleged that during the marriage, the 1st appellant
established the trusts and the 9th appellant over iii. What were the proprietary consequences of a
which he assumed sole de facto control. marriage out of community of property subject
to an accrual system?
At all relevant times during the subsistence of the
marriage, the 1st appellant made no distinction
between the income and expenses of the trusts and
62
Relevant provisions of law marriage out of community of property—

Matrimonial Property Act 88 of 1984
(a) entered into before the commencement of the
Section 3- Accrual system
Matrimonial Property Act, 1984, in terms of an
(1) At the dissolution of a marriage subject to the antenuptial contract by which community of property,
accrual system, by divorce or by the death of one or both community of profit and loss and accrual sharing in
of the spouses, the spouse whose estate shows no accrual any form are excluded, or
or a smaller accrual than the estate of the other spouse,
or his estate if he is deceased, acquires a claim against (b) entered into before the commencement of the
the other spouse or his estate for an amount equal to half Marriage and Matrimonial Property Law Amendment
of the difference between the accrual of the respective Act, 1988, in terms of section 22(6) of the Black
estates of the spouses. Administration Act, 1927 (Act 38 of 1927), as it
existed immediately prior to its repeal by the said
(2) Subject to the provisions of section 8(1), a claim in Marriage and Matrimonial Property Law Amendment
terms of subsection (1) arises at the dissolution of the Act, 1988, may, subject to the provisions of subsection
marriage and the right of a spouse to share in terms of (4), (5) and (6), on application by one of the parties to
this Act in the accrual of the estate of the other spouse is that marriage, in the absence of any agreement between
during the subsistence of the marriage not transferable them regarding the division of their assets, order that
or liable to attachment, and does not form part of the such assets, or such part of the assets, of the other party
insolvent estate of a spouse. as the court may deem just be transferred to the first-
Section 4- Accrual of estate mentioned party.
Held
(a) The accrual of the estate of a spouse is the amount
1. The setting up of trusts was without any ulterior
by which the net value of his estate at the dissolution
motive on the part of the 1st appellant. According
his marriage exceeds the net value of his estate at the
to him, he did not expect that the respondent
commencement of that marriage.
would file for divorce. By all accounts, the
(b) In the determination of the accrual of the estate of respondent benefitted from the assets of Koens
a spouse— Familie Trust, which it had accumulated when
(i) any amount which accrued to that estate by way of the 1st appellant managed it. That enabled
damages, other than damages for patrimonial loss, is both of them to live a comfortable life. It was
left out of account; the respondent’s evidence that the 1st appellant
deposited R20 000 every month into its bank
(ii) an asset which has been excluded from the accrual account, which she then used for household
system in terms of the antenuptial contract of the necessaries. The respondent further testified
spouses, as well as any other asset which he acquired that her decision to seek a divorce from the 1st
by virtue of his possession or former possession of the appellant caught the 1st appellant by complete
first-mentioned asset, is not taken into account as part surprise. The contemplation of a future divorce
of that estate at the commencement or the dissolution of could, therefore not have been a reason for the
his marriage; 1st appellant to create the trusts. Moreover, the
(iii) the net value of that estate at the commencement respondent acted as a trustee of the Bulhoek
of his marriage is calculated with due allowance for Trust since its formation and was part of the
any difference which may exist in the value of money decision by the trustees of that Trust to purchase
at the commencement and dissolution of his marriage, the Hartenbos property.
and for that purpose the weighted average of the 2. The respondent averred that she joined those
consumer price index as published from time to time in entities because she had also contributed to the
the Gazette serves as prima facie proof of any change in growth of their assets. She alleged that as part
the value of money. of her contribution, she had managed civils and
ran the administration of the trusts and the 9th
(2) The accrual of the estate of a deceased spouse is
appellant.
determined before effect is given to any testamentary
3. The High Court’s conclusion that the appellant
disposition, donation mortis causa or succession out of
transferred the assets to the trusts with the
that estate in terms of the law of intestate succession.
purpose of concealing them through fraud,
Divorce Act 70 of 1979 dishonesty and improper purpose of avoiding
Section 7- Division of assets and maintenance of his obligation to account to the respondent
parties for the accrual of his estate was incorrect.
A court granting a decree of divorce in respect of a That conclusion was not based on the case the
63
respondent had advanced both in her pleadings which the High Court based its findings that the
and during her evidence and was not the case 1st appellant used the trusts and the 9th appellant
the appellant was called upon to meet. During as his alter ego.
argument, counsel for the respondent struggled 7. The High Court’s reliance on Badenhorst v
to point to any specific evidence showing transfer Badenhorst [2005] ZASCA 116; [2006] 2 All
of assets by the appellant from his account(s) to SA 363 (SCA) (Badenhorst) was misplaced.
the trusts and the 9th appellant at the relevant The issue in Badenhorst concerned a just and
periods, i.e. after the discovery of the infidelity, equitable distribution of assets in terms of
different to how he conducted his affairs from section 7(3) of the Divorce Act 70 of 1979. The
when those entities were established. parties there were married out of community of
4. The High Court ordered that the veneer of all property before the Matrimonial Property Act
the three trusts be pierced to ascertain the accrual was enacted, and their marriage was therefore not
of the appellant’s estate. Before considering the subject to the accrual system. The redistribution
correctness of the High Court’s conclusion, it order was made on the basis that Mr Badenhorst
was necessary to comment briefly regarding the was found to have had full control of the trust
proprietary consequences of a marriage out of and that he used the trust as a vehicle for his
community of property subject to an accrual business activities.
system. Since community of property was 8. The court did not find that the trust was a sham
excluded, each party maintained their respective or had been abused or made an order that the
separate estates. Under that regime, a claim (an assets of the trust were to be regarded as Mr
accrual claim) arose at the dissolution of the Badenhorst’s property. It did not go behind
marriage for an amount equal to half of the the trust form. Going behind the trust form
difference between the accrual of the respective was a remedy that would generally be given
estates of the spouses. when the trust form was used in a dishonest or
5. The statutory definition made it clear that the unconscionable manner to avoid an obligation.
trust founder had to relinquish at least some The evidence accordingly did not support
of his or her control over the property to the the respondent’s contention that those trusts
trustee, which therefore required that there had were established with the fraudulent object of
to be a separation of ownership (or control) from defeating any of the patrimonial claims of the
the enjoyment of the trust benefits so derived. respondent.
The separation of enjoyment and control was Appeal upheld with costs.
designed to ensure that the trustees in whom the Order
assets of the trust vest were impartial and that Paragraphs 2 and 6 of the High Court order were set
they exercise diligence in protecting the interests aside and replaced with the following order:
of the trust beneficiaries. Section 12 provided The plaintiff’s claim for an order that the assets of the
for the separation of the trust assets from the Koens Besigheids Trust, the Koens Familie Trust, the
personal assets of a trustee unless the trustee was Bulhoek Trust and the 9th appellant were to be used to
also a beneficiary of the same trust. The mere calculate the accrual of the first defendant’s estate was
fact that the assets vested in the trustees and dismissed with costs, including the costs of two counsel
did not form part of the appellant’s estate did where so employed.
not per se exclude it from consideration when Relevance to Kenyan jurisprudence
determining what had to be taken into account The Constitution of Kenya, 2010, in article 45
when calculating the accrual. (1) and (3) says that the family is the natural and
6. Where there was evidence of abuse of the trust fundamental unit of society and the necessary basis
by the trustee, the courts could look behind the of social order, and shall enjoy the recognition
trust form in order to prevent its abuse. The and protection of the State, and that parties to a
evidence that the trusts were created as an estate marriage are entitled to equal rights at the time of the
planning tool was not disputed. The appellant’s marriage, during the marriage and at the dissolution
evidence was that the principal objective of of the marriage.
creating the trusts was to protect their assets Under section 2 of the Matrimonial Property Act No.
to ensure that the respondent and his children, 49 of 2013, contribution is defined to mean both
especially their mentally challenged daughter, monetary and non-monetary contribution. Non-
would be cared for. The respondent and the monetary contribution includes: Domestic work
two children were also capital beneficiaries of and management of the matrimonial home; Child
the trusts. It was not clear from the evidence on care; Management of family business or property;
64
and Farm work. Section 7 of the same Act stipulates name of one spouse, the beneficial share of each spouse
that ownership of Matrimonial Property depends on would ultimately depend on their proven respective
each spouses’ contribution to wit: - proportions of financial contribution either direct or
Subject to section 6(3), ownership of matrimonial indirect towards the acquisition of the property.
property vests in the spouses according to the contribution Moreover, in AWM v JGK [2021] eKLR, the court
of either spouse towards its acquisition, and shall be held that:
divided between the spouses if they divorce or their The totality of my analysis of the evidence presented
marriage is otherwise dissolved. before me is that the Applicant made substantial
Section 9 of the Act recognizes contribution through monetary contribution towards acquiring, developing
improvement of a property acquired before or during and improving the matrimonial properties especially
the marriage in the following terms: the matrimonial home. She also made substantial non-
Where one spouse acquires property before or during monetary contribution, which cannot be quantified in
the marriage and the property acquired during the monetary terms. I am therefore satisfied that, basing my
marriage does not become matrimonial property, but the decision on the peculiar circumstances of this case, I am
spouse makes a contribution towards the improvement satisfied on a balance of probabilities that the Applicant
of the property, the spouse who makes a contribution has proved her case to the required standard.
acquires a beneficial interest in the property equal to the However, the court in T M W v F M C [2018]
contribution made. eKLR stressed that it was against public notice to
Section 14 of the Act provides that: entertain matrimonial disputes as it would accelerate
Where matrimonial property is acquired during the break-up of the family involved, hence peace
marriage- and reconciliation should be fostered. Alienation of
(a) In the name of one spouse, there shall be a rebuttable lands between spouses during unbroken coverture
presumption that the property is held in trust for the did not augur well for the well-being of the family
other spouse; and as a unit.
(b) In the names of the spouses jointly, there shall be This case is thus important to the Kenyan
rebuttable presumption that their beneficial interests in jurisprudence since it clarifies on property
the matrimonial property are equal. distribution in a divorce case as it asserts that where
In the case of PWK v JKG 2015 eKLR the Court there is evidence of abuse of the trust by the trustee
held that: in a divorce case involving property distribution, the
Where the disputed property is not so registered in courts can look behind the trust form in order to
the joint names of the spouses but is registered in the prevent its abuse.
65
Law Reform Issues July-September 2022

Compiled by Faith Wanjiku
LAW REFORM ISSUE BRIEF FACTS & METADATA OF JUDGMENT HOLDINGS PERTINENT TO LAW REFORM
A Wambui & 10 others v Speaker of the National Assembly & 6 others 1. The impugned provision was not well thought out. To
Section 22(1)(b)(i) of equate the academic qualifications of all elective positions
Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021
the Elections Act which in Kenya at par, without any differentiation, without
(Consolidated)
made a university degree regard to the different attending responsibilities and by
qualification a pre- High Court at Nairobi disregarding the different remuneration and benefits,
condition to nomination the impugned provision ran contra several provisions of
AC Mrima, J
for election and/or the Constitution. There was the need for the impugned
political party lists for April 13, 2022 provision to be relooked at, at least with a view of taking
Members of Parliament into account the need for differentiated qualifications and
declared unconstitutional in keeping with the prevailing and targeted social, economic
as it contravenes articles Brief facts and educational realities in Kenya.
24, 27, 38(3) and 56 of 2. Public participation was an irreducible minimum in the
The consolidated petitions variously challenged the constitutionality of section 22(1)(b)(i) of
the Constitution. process of enacting any legislation. Parliament had to
the Elections Act as introduced by an amendment through the Election Laws (Amendment)
Act, No. 1 of 2017 (the impugned provision). The impugned provision provided for a always strictly adhere to the requirement of and carry out
university degree qualification as a pre-condition to nomination for election and/or political adequate public participation for any of its legislations
party lists for Members of Parliament. to gain legitimacy. For Parliament to have come up with
an enactment in the nature of the impugned provision,
The petitioners claimed that the impugned provision was unconstitutional for violating
there was need for elaborate and comprehensive public
various articles of the Constitution such as articles 10(2), 24, 27, 38(3) and 56 on the national
participation and stakeholder engagement.
values and principles of governance, limitation of rights and fundamental freedoms, equality
3. There was need for Parliament to consider national statistics,
and freedom from discrimination, political rights and minority and marginalized groups
to consult with experts in devolution and educational
respectively. The respondents argued that the consolidated petitions were res judicata, that
matters and to generally be alive to the truism that the
the impugned provision enjoyed the presumption of constitutionality and that there was no
impugned provision had to always be in tandem with the
evidence to show that the impugned provision was unconstitutional.
various realities in Kenya. Parliament was then to balance
all that with the right to representation. Unfortunately,
Parliament chose to ignore all that and the Senate only
received presentations from some few entities which in any
case the manner of invitation was not disclosed. Given the
appalling state of affairs, there was no meaningful public
participation towards the enactment of the impugned
provision. The impugned provision fell short of the
constitutional requirement under article 10(2)(a) of the
Constitution.
4. [Obiter] As I come to the end of this issue, it must be
clear that I am not fronting the position that university
educational qualifications or their equivalent are not
necessary for those seeking the candidature of Members of
Parliament, not at all! The reality is that Kenya is a member
of the international community and has so far taken several
steps and programmes in attaining some of the globally
agreed standards. Such include the effort in attaining the
sustainable development goals (SDGs) as well as political
rights through various initiatives including, but not limited
to, execution of international covenants. Therefore, a
time is soon catching up with us when the dictates of
global demands and trends will make a university degree
qualification or its equivalent an inevitable necessity in
every elective position.
66
B Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, 1. Whereas the Constitution and the Judicial Service Act made
There was urgent need for Judge of the High Court of Kenya provisions for the removal of a judge for gross misconduct,
disciplinary procedures Petition 4 of 2020 [2022] there was no equivalent constitutional and statutory
to be formulated to apply provision for a disciplinary process of any kind for mere
to situations where a misconduct that did not warrant the removal of a judge.
judge’s impugned actions MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ There was a quagmire whenever there was a potential a
or omissions did not May 19, 2022 finding of an alleged conduct of a judge which was just
meet the constitutional misconduct and not gross misconduct.
threshold for removal 2. Despite the findings of the concurring court on the
Brief facts
from office. petitioner’s misconduct, there was urgent need for
The instant petition was an appeal against the decision of the Tribunal appointed to investigate constitutional and statutory amendments that would allow
the conduct of Justice Martin Mati (the judge) recommending his removal from office. The for provisions for disciplinary procedures to be applied,
decision of the tribunal was based on how the judge handled Alfred Kipkorir Mutai & Kipsigis where a judge’s impugned actions or omissions did not
Stores Limited v. NIC Bank Limited (HCCC NO. 4 of 2016) at the High Court at Bomet. meet the constitutional threshold for removal from office.
The case before the High Court centered around hire purchase agreements between the There was need to provide some form of sanction, where
plaintiffs in the suit (the borrowers) and the NIC Bank (the Bank). In the agreements, the such circumstances exist, other than removal from office.
Bank advanced loan facilities to the former to purchase several motor vehicles. When there Until then the lacuna in law remained to the detriment of
was default in the repayment, the Bank threatened to repossess all the subject motor vehicles, any aggrieved party.
prompting the borrowers to institute HCCC NO. 4 of 2016 to stop the Bank by an order of
permanent injunction from repossessing the motor vehicles and also to declare that they were
not indebted to the Bank, claiming that they have fully settled the loan.
Also filed was an application in which the plaintiffs sought temporary orders of injunction
to restrain the Bank from seizing, repossessing, advertising for sale, and or selling some
26 commercial vehicles, the subject of the hire purchase agreement. The application was
granted ex parte on the same day. The parties had agreed to determine the applications by way
of written submissions, but on the date of highlighting the submissions, neither party had
filed any submissions. As a result, the court vacated the ex parte orders. Eight days later, the
plaintiffs having learnt of the vacation of the interim orders, the borrowers immediately filed
an application for setting aside of the proceedings that set aside the ex parte orders and sought
for reinstatement of the interim orders and maintenance of the status quo. The petitioner
(judge in the suit highlighted above) gave orders maintaining the status quo and reinstated the
interim orders. The petitioner however did not give reasons for his decision despite having
given dates to issue the reasons. He had deferred the matter several times. (The court issued
reasons five months from the date of the ruling). During the delay, the Bank was not able to
file due to the lack of a ruling in which they would base their grounds. Subsequently the Bank
claimed to have lost around seventeen million Kenya shillings as a result of the delay.
Aggrieved, the Bank wrote a letter of complaint to the Chief Justice and copied to the Judicial
Service Commission (JSC) in which they sought the intervention of the Chief Justice by
urging the Chief Justice to call for the file, to review the same and to take the requisite
administrative action to remedy the situation.
The Chief Justice forwarded both letters and the reply he had received from the petitioner
to the JSC. The JSC, in turn, constituted a Committee to consider the complaints. The
Committee recommended to the Commission to petition the President to appoint a Tribunal
to further investigate the conduct of the judge. The Tribunal came to the conclusion that the
delay of five months was inordinate and constituted gross misconduct and recommended the
removal of the judge from office. Aggrieved the judge (petitioner) filed the instant appeal.
67
Manyara Muchui Anthony v Communications Authority of Kenya & 3 others [2022] 1. The constitutional threshold for regulation of public
C eKLR service was a mandate of the PSC. Article 234(2) of the
Section 5 (3) of the Petition E161 of 2021 Constitution which directed in mandatory terms that the
State Corporations Employment and Labour Relations Court at Nairobi Commission was to establish and abolish offices in the
Act is in contradiction M Mbaru, J public service and appoint persons to hold or act in those
of Article 234(2) read January 25, 2022 offices, and to confirm appointments. That was therefore
together with Article the repository of all public service regulation in terms of
260 of the Constitution Brief facts terms and conditions of service in its collectivity. It was a
on regulation of public The Communications Authority of Kenya (CAK) (1st respondent) advertised for two vacant constitutional mandate.
service and definition of positions in the print media on October 1, 2021 with respect to director frequency spectrum 2. The State Corporations Act in its preamble stated
who a person in the public management and director competition management and applicants were directed to submit that the Act made provision for the establishment of
service is and the Attorney applications by October 26, 2021. On September 28, 2021 the CAK issued an internal state corporations; for control and regulation of state
General must address such advertisement inviting applications for 43 vacant positions. Applicants were to submit corporations; and for connected purposes. The control and
matter with urgency and applications by October 19, 2021. The advertisements were issued pursuant to the new regulation of state corporations was therefore statutory.
harmonise the legislation human resource policies and guidelines prepared and prescribed by the CAK for the State Pursuant to section 5(3) of the State Corporations Act,
with the Constitution as Corporations Advisory Committee (SCAC) (2nd respondent). The human resource manual the Board of a state corporation was allowed to employ
without giving a proper required that all serving and prospective employees of the CAK from the position of assistant staff on terms and conditions of service as the Minister in
framework, litigations manager and above must have a minimum academic qualification of a master’s degree and that consultation with the Committee may approve. That was
shall continue to be the persons must have undertaken supervisory or management courses lasting not less than 2 in contradiction of article 234(2) read together with article
filed out of great need to to 4 weeks respectively from a recognised institution. The CAK had scheduled trainings for 260 of the Constitution on regulation of public service and
streamline public service the identified staff to undertake supervisory and senior management courses to be conducted definition of who a person in the public service was.
applied by different at the Kenya School of Government during the year 2021/2022.The petition was that the 3. The entity given constitutional authority to employ, issue
agencies due to the scheduled staff trainings were discriminatory and prejudicial to members of staff who would terms and conditions of service, review, audit and advice
nature of the statutory have undergone the training on supervisory and senior management courses before the close with regard to public service was the PSC. Employees in
mandate specific to each of the advertisements for vacant positions. The petitioner stated that the scheduled training the service of the CAK were subject to the constitutional
authority, agencies, gave an unfair advantage to the staff whose trainings had been timed to take place before mandate of the PSC.
state corporations and the deadline for the submissions of the applications. The petitioner also sought a declaration 4. The legal opinion issued by the Attorney General (AG)
parastatals. that section 31 of the Public Service Commission (PSC) Act (that provided that the PSC should translate into legislation giving effect/force to the
may delegate its duties) was in conflict with articles 232, 233, 234, 235 and 236 of the provisions of article 234 of the Constitution. That was to
Constitution (in respect of the public service and Public Service Commission). ensure the intentions of the people of Kenya in stating that
the Public Service Commission was in charge of the public
service were not negated by other statutory provisions in
force as at August, 2010.
5. The AG had to address such matters with urgency and
harmonise the legislation with the Constitution as without
giving a proper framework, litigation such as the instant
petition would continue to be filed out of great need to
streamline public service applied by different agencies due
to the nature of the statutory mandate specific to each
authority, agencies, state corporations and parastatals. A
common thread should flow from the PSC as mandated
under the Constitution. Without it, authorities such as the
CAK would continue to err for no fault of their own.
6. The AG was to take forward the opinion expressed above
and give it the force of law. The diverse state corporations
under the mandate of the SCAC particularly the CAK
would benefit in terms of the law, policy and human
resource instruments in force.
68
Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human 1. The Supreme Court did not conduct public participation
D Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022) [2022] in any form or shape, before the promulgation of the
The Supreme Court KEHC 11630 (KLR) (Constitutional and Human Rights) (17 August 2022) (Judgment) impugned Rules. That was contrary to the requirement
(Presidential Election Neutral citation: [2022] KEHC 11630 (KLR) under articles 10 and 232 of the Constitution, to afford
Petition) (Amendment) Petition E242 of 2022 reasonable opportunity to persons likely to be affected
Rules, 2022 are High Court at Nairobi by the impugned Rules, such as litigants in presidential
unconstitutional for want M Thande, J petitions, advocates and the public, to voice and perhaps
of public participation. August 17, 2022 have incorporated in the decision making, their concerns,
needs and values. It was immaterial that previous rules and
Brief facts amendments had been made without public participation.
The petitioner challenged the constitutionality and legality of the Supreme Court (Presidential Any rules made by the court had to always accord with the
Election Petition) (Amendment) Rules, 2022 (the impugned Rules). The petitioner challenged Constitution, failing which they could not stand. There was
the process through which the impugned Rules were promulgated. The petitioner contended no exemption given under the Constitution, to the Supreme
that the impugned Rules were a statutory instrument within the meaning of the Statutory Court, from complying with the provisions of article 10(1).
Instruments Act. The petitioner also contended that the Supreme Court breached the 2. Participation of the people was not a progressive right
principle of separation of powers by promulgating the impugned Rules, a role set aside for to be realised sometime in the future. It was enforceable
the Legislature. Lastly the petitioner contended that the impugned Rules were promulgated immediately. Any laws or rules made pursuant to
without public participation and thus were null and void. constitutional or statutory provisions, had taken that into
account. The decision by the Supreme Court to exclude the
participatory rights of the people before promulgation of
the impugned Rules, was unlawful and unconstitutional.

The first of a series, the KLR 2019 volume 1 contains
decisions from the Supreme Court of Kenya, the Court
of Appeal and the High Court delivered in 2019. The
Kes. 5500 report contains selected cases on diverse areas of law
+ 16% VAT ranging from:
• Contract law
• Company law
• Criminal law and procedure
• Evidence law
• Intellectual property law
• Tax law
• Procurement law
• Tort law
• Electoral law
• Land law
• Family law
• Law of succession
• Various aspects on jurisdiction
69
Raila Odinga and 7 Others v William Ruto and 10 Others; Law Society of Kenya and
E 1. Pursuant to article 138(3)(c) of the Constitution, the power
4 others (Amici Curiae) (Presidential Election Petition No. E005 of 2022 Consolidated
To the extent that with Presidential Election Petition Nos. E001, E002, E003, E004, E007 & E008 of 2022) to verify and tally presidential election results as received at
Regulation 87 (3) of [2022] KESC 54 (KLR) (Presidential Election Petition) (September 5, 2022) (Abridged the National Tallying Centre, vested not in the chairperson
Judgement)
the Elections (General) of IEBC, but in the Commission itself. The latter carried out
Presidential Election Petition No. E005 of 2022 Consolidated with Presidential Election
Regulations purports Petition Nos. E001, E002, E003, E004, E007 & E008 of 2022 the exercise through its secretariat staff, technical personnel,
to vest the power of Supreme Court of Kenya and any other persons hired for that purpose under the
verifying and tallying MK Koome; CJ and P, PM Mwilu; DCJ and VP; MK Ibrahim, SC Wanjala, SN Ndungu, oversight and supervision of the chairperson, and other
I Lenaola and Ouko; SCJJ
Presidential Election September 5, 2022 members of the Commission.
results, as received at the 2. The chairperson of the IEBC could not arrogate to himself
National Tallying Centre, Brief facts the power to verify and tally the results of a presidential
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya,
solely on the Chairperson 2010 (Constitution). Transmission of the results of the general election was done via the Kenya election, to the exclusion of the other members of the
to the exclusion of Integrated Electoral Management System (KIEMS); a technology used in the biometric voter Commission. Under Article 138(10) of the Constitution,
other members of registration, and, on the election day, for voter identification as well as the transmission of although the power to declare the result of a presidential
election results from polling stations to the National Tallying Centre.
the Commission, the On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission election after verification and tallying, was vested in the
same is contrary to (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential chairperson, he did so only as a delegate of the Commission.
and inconsistent with Candidate for the United Democratic Alliance Party, (1st respondent) the President-elect with To the extent that regulation 87(3) of the Elections (General)
7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga
the provisions of the Regulations purported to vest the power of verifying and
as the runner’s up with 6,942,930 votes (48.85% of presidential votes cast).
Constitution. Aggrieved by the results and the process by which the results were obtained and declared, the 1st tallying presidential election results, as received at the
petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential National Tallying Centre, solely on the chairperson to the
candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition
There is a serious malaise exclusion of other members of the Commission, the same
challenging the declared result of that presidential election (the election). Alongside the 1st
in the governance of petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential was contrary to and inconsistent with the provisions of the
an institution (IEBC) election; in total they filed 9 presidential election petitions. Constitution.
entrusted with one of The 1st, 3rd and 4th petitioners in the consolidated Petition, challenged the technology used by 3. Apart from their eleventh-hour denunciation of the
IEBC during the 2022 General Election. They pleaded that the manner in which technology
the monumental tasks was deployed and utilized fell short of the prescribed constitutional and statutory standards. As verification and tallying process, and their averments
of midwifing Kenya’s regarded the audit of the Register of Voters, they urged that IEBC, pursuant to its Elections regarding the conduct of the chairperson, the four
democracy which Operations Plan, committed itself to conducting an audit of the Register of Voters by March Commissioners had not placed before the court, any
31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website
obviously needs far- on August 2, 2022, 7 days to the election. information or document showing that the elections
reaching reforms. In response, IEBC submitted that the electoral system met the constitutional threshold; that all were either compromised or that the result would have
necessary information was accessed only by authorized persons; the information was accurate, substantially differed from that declared by the chairperson
complete and protected from malicious modification either by authorized or unauthorized
persons; it maintained an audit trail on activities related to information; and the information of IEBC. They had not explained why they participated in a
was available and could be authenticated through the use of various security features. verification process when they knew that it was opaque up
The 1st petitioners further alleged that the results of the presidential election were staged. They until the last minute. The 4 Commissioners acknowledged
claimed that a person who had access to the Result Transition System (RTS), intercepted,
that the entire election had been managed efficiently and
detained or stored Forms 34A temporarily to convert or manipulate them before uploading
them on IEBC’s public portal. credibly. The chairperson did not make matters any better
To rebut the allegation, IEBC through its chairperson denied staging and unauthorized by maintaining a stoic silence even as things appeared to be
intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded
falling apart. There was a serious malaise in the governance
immediately after the transmitted result form was received as evinced by the time stamp.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson of an institution entrusted with one of the monumental tasks
to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary of midwifing our democracy. An institution that needed far-
elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral reaching reforms.
wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South
Constituency. They contended that the IEBC had no jurisdiction to postpone elections in 4. To nullify an election on the basis of a last-minute boardroom
those areas. They further contended that section 55B of the Elections Act was inconsistent with rapture between the chairperson of the Commission and
the Constitution and void to the extent that it purported to donate to IEBC power to postpone some of its members in the absence of any evidence of
elections in the constituency, county or ward contrary to the Constitution. They contended that
the postponement undermined the conduct of free, fair and credible elections by depriving the violation of the Constitution and electoral laws; to upset
voters an opportunity to vote for all the candidates on the date stipulated by the Constitution. an election in which the people had participated without
The 1st and 3rd petitioners also believed that elections were deliberately postponed in Kakamega hindrance, as they made their political choices pursuant
and Mombasa counties. It was alleged that those areas were considered to be 1st petitioner’s
strongholds, and as such, the postponement of elections worked to his disadvantage and handed to article 38 of the Constitution would be tantamount to
a benefit to the 1st respondent. subjecting the sovereign will of the Kenyan people to the
Those assertions were denied by IEBC and its chairperson. They however, admitted that they quorum antics of the IEBC. The court was incapable of
experienced confusion with the printed ballot papers and explained that they only discovered
such action. The dysfunctionality at the IEBC impugned
the mix-up on the eve of the Election when the ballot papers were being distributed to the
polling stations; that as a practice, ballot papers could only be opened on the eve of the election the state of its corporate governance but did not affect the
day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically conduct of the election itself. Notwithstanding the divisions
impossible to print and replace the ballots papers in time for the election.
apparent between the chairperson and the 4 Commissioners,
The petitioners also contested the formula used by the IEBC or its chairperson to declare that
the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential IEBC carried out the verification, tallying and declaration
election. In particular, they challenged the rounding off. They contended that the rounding off of results in accordance with article 138 (3)(c) and (10) of
of votes cast in a presidential election as a means of assessing the threshold under article 138(4) the Constitution.
of the Constitution killed and birthed voters, which was illegal and unconstitutional.
Lastly the petitioners challenged the results of the presidential election on account of the
opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022
as the public waited for the chairperson of the IEBC to declare the final result, Kenyans found
themselves watching a split screen scenario on their television sets. On one part of the screen
was the chairperson, readying himself to declare the result of the presidential election; on the
other part of the screen were the 5th to 8th respondents (the 4 Commissioners) on the lawns of
the Serena Hotel-Nairobi, from where they announced that they would not “own” the results
that were soon to be declared by their chairperson. The 4 commissioners termed the results
“opaque” due to the manner in which the chairperson had been conducting the verification and
tallying exercise. They contend that by rejecting IEBC’s results on grounds of opaqueness of the
verification and tallying process, they called into question, the credibility of the entire election.
They further submitted that being in the majority out of the seven-member Commission,
their view should prevail and the election should be nullified. It was the petitioners’ argument,
therefore, that a dysfunctional Commission could not deliver a credible election.
70
71
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P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
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All submissions and enquiries should be addressed to:

Members of the Council

Hon. Chief Justice Martha K. Koome, EGH

Ms Jennifer Gitiri Professor Jack Mwimali

Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi Mr Samuel Njoroge

Ladies and Gentlemen,

Ladies and Gentlemen

Thank you and God bless you.

Hon. Justice Martha Koome, EGH,

What they said

KENYA LAW REPORTS 2015 VOL 2

Petitions dismissed. ii. The election of the 1st respondent as President-elect

KENYA LAW REPORTS 2017 VOL 1

There was urgent need for disciplinary procedures to be formulated to apply

Civil Practice and Procedure – petitions – petition Brief facts

Constitutional Law – separation of powers – powers Held

High Court’s jurisdiction in pre-election disputes is only triggered once the

Constitutional Law – fundamental rights and administrative action.

Orders to run for the seat of Member for Parliament

Statutes – interpretation of statutes – interpretation of obligation by the auditor general to audit

Held churches and other religious organisations did

of right and law. The court would not declare Orders

There is a legal lacuna in the protection of wetlands in Kenya, especially the

KENYA LAW REPORTS 2018 VOL 1

Feedback For Caseback Service

Hon. Mary Moranga Thank you for the case feedback.

Hon. Charity Oluoch

Act Title SACCO SOCIETIES (AMENDMENT) ACT, 2022

Act Title IRRIGATION (AMENDMENT) ACT, 2022

Act Title SUSTAINABLE WASTE M ANAGEM ENT ACT, 2022

Act Title COMMUNITY GROUPS REGISTRATION ACT , 2022

Act Title CHILDREN ACT, 2022

Act Title RADIOGRAPHERS ACT, 2022

Act Title MENTAL HEALTH (AMENDMENT) ACT, 2022

Act Title SUPREME COURT (AMENDMENT) ACT, 2022

Act Title NATIONAL ELECTRONIC SINGLE WINDOW SYSTEM ACT, 2022

Act Title NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND

Act Title FINANCE ACT, 2022