Issue 60

January - March 2023

Equality under article 45(3) of the Constitution meant that courts were to ensure
that at the dissolution of a marriage, each party to a marriage got a fair share of
the matrimonial property based on their contribution. Pg 07

The Employment and Labour Relations Court can determine constitutional issues
only if they arise from employer-employee disputes. Pg 32

A nolle prosequi does not infringe upon the right to information of the victims of
the crime. Pg 43
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 CONTENTS

The Employment and Labour Relations Court can
determine constitutional issues only if they arise from
employer-employee disputes. Pg 32
There is need for urgent intervention by way of legal
reforms or determination by the Supreme Court on
the constitutional validity of the mandatory death
penalty in capital offences other than the offence of
murder. Pg 38

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 10
Contributors 6. Caseback 48
| Njeri Githan’ga | Wambui Kamau | Nelson Tunoi |
| Emma Kinya | Teddy Musiga | Beryl Ikamari | 7. Legislative Updates 49
|Robai Nasike | John Ribia | Faith Wanjiku |
| Kevin Kakai | Patricia Nasumba | Musa Okumu | 8. Legal Supplements 53
| Lisper Njeru | Christian Ateka | Brian Kulei |
9. International Jurisprudence 56
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 |

Disclaimer:
While the National Council for Law Reporting has made every effort to
ensure both the accuracy and comprehensiveness of the information
contained in this publication, the Council makes no warranties or guarantees
in that respect and repudiates any liability for any loss or damage that may
arise from an inaccuracy or the omission of any information.
 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.
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PAPERS
itself as the reference of choice for both international and
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Kenya Law therefore welcomes scholarly works from Legal
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 BB Issue 60, January - March 2023

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)
 BB Issue 60, January - March 2023

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 MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus
Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (January 27, 2023) (Judgment) is highlighted
as it laid out the strict and limited parameters to which a court may presume the existence of a marriage. The
court held that a presumption of a marriage is the exception rather than the rule. Nevertheless the court also
held that there was need to formulate and enact statute law that dealt with cohabitees in long-term relation-
ships. The court considered direct financial contribution and other forms of contribution to the purchase
and maintenance of the suit property and held that a constructive trust could be presumed from the conduct
of the parties.
From the Court of Appeal, the case of National Social Security Fund Board of Trustees v Kenya Tea Growers
Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) (February 3, 2023) (Judg-
ment) stands out as the appeal challenged the jurisdiction of the Employment and Labour Relations Court
(ELRC) to entertain a matter challenging the constitutionality of the National Social Security Fund Act,
2013 (NSSF Act, 2013). The ELRC had declared the NSSF Act, 2013 unconstitutional. The instant court
found that constitutional validity of the statute or the targeted provisions did not arise from an employer-
employee dispute. The court thus held that constitutional issues could be determined by the ELRC only if
they arose from an employer-employee dispute.
From the High Court, the case of Republic v Kamotho & another (Criminal Case 60 of 2019) [2022] KEHC
16055 (KLR) (Crim) (December 6, 2022) (Ruling) notes that a nolle prosequi does not infringe upon the
right to information of the victims of the crime. On entering of a nolle prosequi, an accused person would
stand discharged. The accused would not be acquitted of the charges. The accused could still be charged with
the offence. The victims would enjoy their rights should an accused be re-charged.
Within the ambit of international jurisprudence, there is the case of Legal and Human Rights Centre and Cen-
tre for Reproductive Rights (on behalf of Tanzanian girls) v United Republic of Tanzania 0012/Com/001/2019
where the African Committee of Experts on the Rights and Welfare of the Child holds that forced pregnancy
testing, expulsion of pregnant girls, and their illegal detention is cruel, inhuman, and degrading treatment
and subjects them to further trauma especially if they are survivors of sexual violence.
Additionally, in the case of Janusz Jakub Walus v Minister of Justice and Correctional Services and Others Case
CCT 221/21, the Constitutional Court of South Africa held that decisions for grant of parole to prisoners
should be based on the minimum period of imprisonment that a convicted person or offender should serve
before they could be considered for parole and not on the seriousness of the offense that they had com-
mitted. The above-mentioned are just a few extracts from this issue of the Bench Bulletin that imposes a
spectacular façade of national and international jurisprudence. May you be inspired as you interact with the
spirit of the law herein.

Editor/CEO,
Professor Jack Mwimali.

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 BB Issue 60, January - March 2023

CJ’s Message
Hon. Chief Justice Martha K. Koome, EGH
Chief Justice and President of The Supreme Court of Kenya

CHIEF JUSTICE’S REMARKS DURING THE SWEARING-IN OF THE COMMISSIONERS OF

THE COMMISSION ON REVENUE ALLOCATION (CRA) & THE NATIONAL TASFORCE ON
IMPROVEMENT OF THE TERMS AND CONDITIONS OF SERVICE AND OTHER REFORMS
th
FOR MEMBERS OF THE NATIONAL POLICE SERVICE AND KENYA PRISONS SERVICE, 9
JANUARY, 2023
Emeritus Chief Justice and Chairperson of the Taskforce on Police Service and Prisons Service
Reforms, Hon. Justice (Rtd.) David Kenani Maraga, Cabinet Secretary for Internal Security, Hon.
Attorney General, Inspector General of Police, Commissioner General of the Kenya Prisons Service,
Chairperson of the CRA, Commissioners of the CRA,
Members of the Taskforce on Police Service and Prisons Service Reforms, Deputy Chief Registrar of
the Judiciary, Distinguished Guests, Ladies and Gentlemen,
Good Morning!
1. Let me start by congratulating all the Commissioners of the Commission on Revenue Allocation (CRA)
on your appointment and swearing in as Commissioners of the Commission on Revenue Allocation.
2. In your hands now lies the protection and realisation of one of the most transformative features of the
2010 Constitution: devolved governance. When one appreciates that “equitable sharing of our national
resources” is at the centre of the promise of devolution, it becomes easy to appreciate that the work of
the Commission on Revenue Allocation is critical for the success of the project of devolved governance.
3. The Commission on Revenue Allocation is therefore intended to be a major facilitator of the realization
of the dream of establishing a “Fair and Just” state and society that is embodied in the 2010 Constitution.
4. I urge the Commission to always bear in mind our nation’s history of marginalisation of some areas of
this country that has often contributed to dissatisfaction by some of our compatriots with our national
building efforts and thus posing a challenge to national unity and state stability. You must therefore
strive to work towards making ours a socially just state and society.
5. I also congratulate the Chairperson and Members of the Taskforce on the Terms and Conditions of
Service for the National Police Service and Kenya Prisons Service, on your appointment and swearing-
in.
6. Your appointment has come at an opportune time given that the work of the Taskforce will serve to
catalyse effective service delivery by these two institutions that are crucial for the enforcementof law and
security within our country. Indeed, our criminal justice sector cannot function effectively when our
men and women in the police service and prisons service are not motivated and enabled with a conducive
environment to discharge their mandate.
7. I urge the Taskforce to work towards the realisation of the constitutional dream of “democratic
policing” and a prisons service that pursues the constitutional goal of “reformation and rehabilitation
of offenders”. This is the Kenyan dream for a police service and prisons service that “serves” the people
and upholds professionalism.

2
 BB Issue 60, January - March 2023

8. Lastly, the oath which you (i.e. both the Commissioners of CRA and Members of the Taskforce) have
taken today should guide you in your day-to-day work. According to the oath, you must never depart
from the law. In addition, the oath equally requires you to serve this country to the best of your abilities
and bearing in mind the enormous responsibility placed upon you.
9. I wish you all the best in your work and in the delivery of your respective mandates.

Thank you.

Hon. Justice Martha Koome, EGH, Chief Justice & President of the Supreme
Court of Kenya.

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 BB Issue 60, January - March 2023

What they said

Supreme Court Judges - PM Mwilu, DCJ; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola,
SCJJ in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae)
(Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (January 27, 2023) (Judgment)
“While article 45(3) of the Constitution dealt with equality of the fundamental rights of spouses during and
after dissolution of marriage, equality did not mean the re-distribution of proprietary rights at the dissolution
of a marriage. Neither did the reading of that provision lead to the assumption that spouses were automatically
entitled to a 50% share by fact of being married. The stated equality under article 45(3) of the Constitution
meant that the courts were to ensure that at the dissolution of a marriage, each party to a marriage got a fair
share of the matrimonial property based on their contribution.”

Supreme Court Judges - PM Mwilu, DCJ and VP; SC Wanjala, NS Ndungu, I Lenaola and W
Ouko, SCJJ in MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)
(Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (January 27, 2023) (Judgment)
“The doctrine of presumption of marriage was on its deathbed of which reasoning was reinforced by the changes
to the matrimonial laws in Kenya. The presumption should only be used sparingly where there was cogent
evidence to buttress it. Statistics revealed that a man and a woman could choose to cohabit with the express
intention that their cohabitation did not constitute a marriage. The pervasiveness of having interdependent
relationships outside marriage over the past few decades meant that no inferences about marital status could be
drawn from living under the same roof. Inter-dependent relationships outside marriage was not a new concept.
It was time for the National Assembly and the Senate, in collaboration with the Attorney-General to formulate
and enact statute law that dealt with cohabitees in long-term relationships; their rights, and obligations.”

Supreme Court Judges - MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019
(Consolidated)) [2023] KESC 6 (KLR) (Civ) (January 27, 2023) (Judgment)
“There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination,
or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a
failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination
of the process only led to intolerable superficiality. That would be against article 259 of the Constitution
which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the
development of the law and contributes to good governance.”

Supreme Court Judges - MK Koome, CJ; MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ
in Senate v Council of County Governors & 6 others (Petition 24 & 27 of 2019 (Consolidated))
[2022] KESC 57 (KLR) (October 7, 2022) (Judgment)
“The Senate was constitutionally empowered, to summon governors to appear before it or any of its committees
for purposes of answering questions and providing requisite information. In appearing before Senate, there
was nothing to stop a governor from going with his/her technical team from the county executive. By the same
token, if the Senate was of the view that the questions to be answered or information to be provided did not
need the personal input of the governor, it could restrict its summons to the relevant county official or executive
committee.”

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 BB Issue 60, January - March 2023

Court of Appeal Judges – HM Okwengu, MA Warsame & JM Mativo, JJAin National Social
Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656
of 2022) [2023] KECA 80 (KLR) (February 3, 2023) (Judgment)
“The issue under consideration in the petitions was the constitutional validity of a statute and or some specific
provisions of the NSSF Act, 2013. The constitutional validity of the statute or the targeted provisions did not
arise from an employer-employee dispute. The intention of Parliament was clear both from the preamble and
section 12(1)(a)-(f ). The ELRC Act was enacted to resolve employer-employee disputes as provided by article
162(a) of the Constitution. That was the purpose and context which could not be ignored in interpreting
provisions of the ELRC Act. Decided cases were in agreement that constitutional issues could be determined
by the ELRC only if they arose from an employer-employee dispute. The germane issue framed by the ELRC
did not arise in an employer-employee dispute nor did it fall under section 12(1)(a)-(f ).”

Court of Appeal Judges – DK Musinga, HA Omondi & K.I Laibuta, JJA in Kenya Revenue
Authority v Waweru & 3 others; Institute of Certified Public Accountants & 2 others (Interested
Parties) (Civil Appeal E591 of 2021) [2022] KECA 1306 (KLR) (December 2, 2022) (Judgment)
“Section 12D of the Income Tax Act as introduced by the Finance Act, 2020 and as amended by the Tax
Laws Amendment (No 2)Act, 2020 was null and void to the extent that: the levying of minimum tax on
gross turnover as opposed to gains or profit would lead to a situation where a loss making tax payer, would
bear a heavier burden than on other taxpayers contrary to the spirit of article 201 of the Constitution; and
lumping innocent entities that were in a loss making position with tax evaders in a bid to expand the tax
base violated the innocent taxpayers’ constitutional right to fair treatment and dignity.”

High Court Judge – DO Ogembo, J in Republic v Kamotho & another (Criminal Case 60 of 2019)
[2022] KEHC 16055 (KLR) (Crim) (December 6, 2022) (Ruling)
“The DPP had power to recharge the accused person after a nolle prosequi. The significance of the nolle prosequi
was that if the circumstances which led to the entry of the nolle prosequi remained the same, the accused would
remain discharged of the offence until such a time there was prima facie evidence incriminating him of the
offence.”

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 BB Issue 60, January - March 2023

International Jurisprudence

African Committee of Experts on the Rights and Welfare of the Child Quorum- Joseph N, CP;
Anne M, VCP; Aboubekrine EJ, RC; Sidikou AM; Aver G, Hermine GK, Moushira K, Robert
DN, Theophane MX, Karoonawtee C, Wilson AA, MsC in Legal and Human Rights Centre and
Centre for Reproductive Rights (on behalf of Tanzanian girls) v United Republic of Tanzania 0012/
Com/001/2019
“...the mandatory pregnancy testing of girls and their expulsion from school when found pregnant or married
impairs the enjoyment of their rights under the Charter and that such practice is discriminatory within the
ambit of article 3 of the Charter and violates the right to dignity, freedom from torture, and the right to privacy
of girls, among others. Moreover, the Committee stresses that schoolgirls who are married and fall pregnant are
victims of a larger pattern of gender-based discrimination which the respondent State is required to address by
taking the necessary safeguards through law and practice as well as providing redress to victims.”

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
 BB Issue 60, January - March 2023

Feature Case
Equality under article 45(3) of the Constitution meant that courts were to ensure
that at the dissolution of a marriage, each party to a marriage got a fair share of the
matrimonial property based on their contribution
JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition
11 of 2020) [2023] KESC 4 (KLR) (Family) (January 27, 2023) (Judgment)
Neutral citation: [2023] KESC 4 (KLR)
Supreme Court of Kenya
January 27, 2023
PM Mwilu, DCJ; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
Reported by Professor Jack Mwimali

The appellant and respondent’s union was
formalized under the repealed Marriage Act cap
150. The appellant and the respondent later moved
into their matrimonial home on their matrimonial
property located at Tassia Estate within Embakasi in
Nairobi. The respondent claimed that the appellant
and herself proceeded to construct rental units on
the property. The respondent added that during
construction of the rental units, she successfully
applied for a loan of Kshs 200,000 which she gave to
the appellant to enable him complete construction
of the units. The respondent further claimed
that, during the subsistence of their marriage, the
appellant proceeded to acquire more assets.
In 2008, the marriage irrevocably broke down and
the appellant applied for its dissolution. A decree
absolute was subsequently issued on October 15,
2015. It was the irrevocable breakdown of the
marriage that led to the respondent commencing
division of matrimonial property proceedings at the
High Court. The High Court found that the only
property that amounted to matrimonial property
was the matrimonial property located at Tassia
Estate. The court also held that the respondent had
failed to prove her case on the claim that she directly
contributed to the acquisition of that property
which was registered in the appellant’s name. The
court however recognized that the respondent made
indirect non-monetary contribution towards the
family’s welfare in the form of upkeep and welfare.
The court for that reason proceeded to award the
respondent 30% of the share in the matrimonial
property and a 20% share of the rental units
constructed within that property.
Aggrieved by the decision of the High Court, the
respondent filed an appeal at the Court of Appeal
while the appellant filed a cross appeal. The Court
of Appeal found that the respondent, having been
married to the appellant for 18 years, 15 years of
which were spent in gainful employment, constantly
took loans and helped acquire the matrimonial home
jointly with the appellant. The court also found that,
the respondent thus acquired beneficial interest in
the matrimonial property and further that, the High
Court erred in awarding the respondent a 30% share
of the house and 20% share in the rental units. The
Court of Appeal proceeded to set aside the High
Court’s findings and ordered that the matrimonial
property and the rental units built thereon be shared
equally between the appellant and respondent at the
ratio of 50:50. Dissatisfied by the Court of Appeal
judgment, the appellant filed the instant appeal.
The issues for determination were: whether
spouses were automatically entitled to a 50%
share after dissolution of marriage; whether the
Matrimonial Property Act No 49 of 2013 could
be applied retrospectively to claims filed before the
commencement of the Act; and whether article 45(3)
of the Constitution which provided that parties to a
marriage were entitled to equal rights at the time of
marriage, during marriage and at the dissolution of
marriage applied retrospectively.
The court held that the appeal was certified as one
involving a matter or matters of general public
importance. The Matrimonial Property Act No
49 of 2013 came into being in 2013, with the Act
giving its date of commencement as January 16,
2014, while the instant matter was filed in 2010,
four years before the commencement of the Act.
For legislation to have retrospective effect, the

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 BB Issue 60, January - March 2023
intention had to be clear and unambiguous from
the words of such statute or legislation. There was
no retrospective application of the Matrimonial
Property Act and the applicable law to claims filed
before the commencement of that Act was the
Married Women’s Property Act, 1882.
The court observed that article 45(3) of the
Constitution provided that parties to a marriage
were entitled to equal rights at the time of marriage,
during the marriage and at the dissolution of the
marriage. The language used in the article by itself
resolved the question of retrospectivity. The right
to equality was one of the fundamental rights and
freedoms that were protected by the Constitution, a
right that was inherent and indefeasible to all human
beings. Only the language of the Constitution
could act as a guide as to whether a provision in the
Constitution applied retrospectively or not.
The court pointed out that the language of article
45(3) of the Constitution did not connote that it
could not be applied retrospectively. The language
plainly provided for the right to equality to all
parties of a marriage during the subsistence of such
marriage, as well as at the dissolution of such a
marriage. The Constitution could not be subjected
to the same principles of interpretation applied
to statutes on retrospective application of the law.
Therefore, a reading of article 45(3) could only lead
to the conclusion that there was nothing that barred
its provisions from being applied retrospectively.
The court stressed that the principles in Peter
Mburu Echaria v Priscilla Njeri Echaria [2007]
eKLR (Echaria) were good law and remained
the basis within which matrimonial property
should be distributed for matters filed before the
commencement of the Matrimonial Property Act,
2013. The finding in Echaria, was essentially that
a spouse did not acquire any beneficial interest in
matrimonial property by fact of being married only
and that specific contribution had to be ascertained
to entitle such a spouse to a specific share of the
property.
The court further held that the position taken by
Kenyan courts following Echaria was that as much
as section 17 of the Married Womens Property Act,
1882 gave courts discretion to do what was just and
fair under the varying circumstances before them, it
did not entitle a court to make an order which was
contrary to any well-established principle of law on
proprietary interests or ownership of property. The
court in Echaria also noted that for one to be entitled
to a share of the property, the court should consider
the circumstances of each arising case independently
in assessing contribution further noting that what
8
amounted to contribution could either be direct and
monetary and indirect and non-monetary.
The court illuminated that the equality provision in
article 45(3) of the Constitution did not entitle any
court to vary existing proprietary rights of parties and
take away what belonged to one spouse and award
half of it to another spouse that had contributed
nothing to its acquisition merely because they were
married to each other. To do so would mean that
article 40(1) and (2) of the Constitution which
protected the right to property would have no
meaning which would not have been the intention
of the drafters.
The Supreme Court demonstrated that article 45(3)
of the Constitution acted as a means of providing for
equality as at the time of dissolution of marriage but
such equality could only mean that each party was
entitled to their fair share of matrimonial property
and no more. Nowhere in the Constitution was
there any suggestion that a marriage between parties
automatically resulted in common ownership or co-
ownership of property (hence vesting of property
rights) and article 45(3) was not designed for the
purpose of enabling the court to pass property rights
from one spouse to another by fact of marriage only.
The court held that the guiding principle should be
that apportionment and division of matrimonial
property could only be done where parties fulfilled
their obligation of proving what they were entitled
to by way of contribution. The respondent provided
evidence to prove direct financial contribution during
the subsistence of the marriage and that aligned with
the finding that a party had to prove contribution
to enable a court determine the percentage available
to it at distribution and furthermore safeguarded
against a blanket expectation that the principle of
equality would be applied generally in the division of
matrimonial property irrespective of contribution.
The test to be applied to determine the extent of
contribution was ultimately one of a case to case
basis.
The court noted that equality of parties to a marriage
had largely been interpreted and construed in two
ways. On the one hand, an interpretation of article
45(3) of the Constitution had been construed to
mean a division of matrimonial property down the
middle through the literal application of the 50:50
division ratio. Proponents of that argument largely
opined that since non-monetary contribution could
not be quantified but was equally important, a split
right in the middle would be more appropriate. The
second approach was that ‘equal’ as provided for
under article 45(3), meant that a party obtained an
equivalent of what one contributed, monetarily or

otherwise.
The court was emphatic that article 45(3) of the
Constitution underscored the concept of equality as
one that ensured that there was equality and fairness
to both spouses. Equality and fairness were therefore
one and intertwined. Equality also underscored
the concept that all parties should have the same
rights at the dissolution of a marriage based on
their contribution, each party’s contribution to the
acquisition of matrimonial property could not have
been done in an equal basis as a party could have
significantly contributed more in acquiring property
financially as opposed to the other party.
The court stated that equity denoted that the
other party, though having not contributed more
resources to acquiring the property, could have
nonetheless, in one way or another, through their
actions or their deeds, provided an environment that
enabled the other party to have more resources to
acquiring the property. That was what amounted to
indirect contribution. Equity therefore advocated
for such a party who could seem disadvantaged for
failing to have the means to prove direct financial
contribution not to be stopped from getting a share
of the matrimonial property.
It was the court’s finding that the the maxim
‘equality is equity’ had never been truer. Equity was
an important principle when it came to matrimonial
property since what was fair as it related to equity
was not a question of the quantitative contribution
by each party but rather the contribution by any
party in any form, whether direct or indirect. Any
substantial contribution by a party to a marriage
that led to acquisition of matrimonial property,
even though such contribution was indirect, but
nevertheless had in one way or another, enabled the
acquisition of such property amounted to significant
contribution. Such direct or indirect acts could
include:
a. Paying part of the purchase price of the
matrimonial property.
b. Contributing regularly to the monthly payments
in the acquisition of such property.
c. Making a substantial financial contribution to
the family expenses so as to enable the mortgage
installments to be paid.
d. Contributing to the running of and welfare of
the home and easing the burden of the spouse
paying for the property.
e. Caring for children and the family at large as the
other spouse worked to earn money to pay for
the property.
The court found that while article 45(3) of the
BB Issue 60, January - March 2023
Constitution dealt with equality of the fundamental
rights of spouses during and after dissolution of
marriage, equality did not mean the re-distribution
of proprietary rights at the dissolution of a marriage.
Neither did the reading of that provision lead to the
assumption that spouses were automatically entitled
to a 50% share by fact of being married.
The court opined that the stated equality under
article 45(3) of the Constitution meant that
the courts were to ensure that at the dissolution
of a marriage, each party to a marriage got a fair
share of the matrimonial property based on their
contribution. That was best done by considering the
respective contribution of each party to ensure no
party was unfairly denied what they deserved as well
as ensuring that no party was unfairly given more
than what he or she contributed.
In the court’s view, in a marriage, the general
assumption was that both spouses shared everything
and on the face of it, both parties contributed
towards the home or family in one way or another,
to whichever extent, however big or small. Both
spouses could also work and earn income, which
inevitably, at most instances, always ended up being
spent on the family unit. It could be the whole
income or a substantial part of it, but ultimately, a
percentage of it went into the family. That was the
essence of section 14 of the Matrimonial Property
Act, 2013.
The court furthermore held that in the event that a
marriage broke down, the function of any court was
to make a fair and equitable division of the acquired
matrimonial property guided by the provisions of
article 45(3) of the Constitution. To hold that article
45(3) had the meaning of declaring that property
should be automatically shared at the ratio of 50:50
would bring huge difficulties within marriages.
Noting the changing times and the norms in the
society, such a finding would encourage some parties
to only enter into marriages, comfortably subsist in
the marriage without making any monetary or non-
monetary contribution, proceed to have the marriage
dissolved then wait to be automatically given 50%
of the marital property. That could not have been
the intention of Kenya’s law on the subject.
The court averred that the respondent took out
loans and contributed substantially to the purchase
of the matrimonial property and rental units. The
50-50 division was therefore reasonable in the
specific circumstances of the instant case. The appeal
was dismissed and the appellant was to bear the
respondents’ costs.
9
 BB Issue 60, January - March 2023

Supreme Court
There was a need for statute law that dealt with the rights and obligations of
cohabitees in long-term relationships
MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021)
[2023] KESC 2 (KLR) (Family) (January 27, 2023) (Judgment)
Petition 9 of 2021
Supreme Court of Kenya
January 27, 2023
PM Mwilu, DCJ and VP; SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
Reported by John Ribia

Family Law – marriages – applicable law - legal title - Black’s Law Dictionary 9th Edition at pg
applicable for marital disputes that arose before 2013 1649.
– application and operation of the Married Women’s
Brief facts
Property Act (repealed) - what was the applicable law
to matrimonial disputes that arose before the enactment The respondent instituted Nairobi High Court
of the Marriage Act, 2014, and Matrimonial Property Civil Suit No 6 of 2012, POM vs MNK, by way of
Act, 2013 - whether parties to a union arising out of an originating summons dated November 5, 2013
cohabitation and/or in a marriage unrecognized by against the appellant whom he claimed to be his wife.
law could file proceedings under the Married Women’s The respondent invoked the provisions of section 17
Property Act (repealed). of the Married Women’s Property Act (repealed) (1882),
(MWPA) on the claim for division of matrimonial
Family Law – marriages – types of marriage –
property. The respondent’s contention was that he
presumption of marriage – conditions precedent - what
and the appellant began to cohabit as husband and
were the parameters in which courts could presume a
wife sometime in 1986. It was his case that from
marriage – whether a party that had separated from a
joint savings, they purchased the suit property. He
previous marriage but had not formally registered the
asserted that he belonged to the Kisii tribe and that
divorce had the capacity to be presumed to be married –
the seller who belonged to the kikuyu tribe was
who had the burden of proving presumption of marriage
not comfortable selling the parcel of land to a non-
- Evidence Act (Cap 80), sections 109 and 119.
Kikuyu therefore, the parties resolved to have the
Family Law – marriage – matrimonial property property registered in the appellant’s name although
– contribution – principles applicable in assessing they had both contributed to its acquisition.
beneficial interests after a separation – direct financial
The High Court dismissed the suit and found that
contribution vis-à-vis other forms of contribution -
although there was long cohabitation between the
where the parties were cohabitees that had acquired
parties, the principle of presumption of marriage,
property together through the existence of their
was inapplicable under the circumstances seeing
relationship – whether property acquired under such
that the appellant was already in a married to KM.
circumstances formed part of a constructive trust -
The court held that the appellant did not have
whether a constructive trust as envisioned could be
the capacity to marry the respondent, that the
applied in solving disputes relating to cohabitees –
relationship between the parties was adulterous and
whether a constructive trust could be inferred from the
the resulting cohabitation could not be deemed a
conduct of cohabitees who purchased property together
marriage. In the absence of a marriage, the court held
in the subsistence of their relationship - what principles
that the respondent could not rely on the provisions
were courts to consider in assessing the beneficial
of MWPA (repealed) whose reliefs are based on proof
interests due to cohabiting parties who separated -
of marriage.
whether courts were to consider both direct financial
contributions to the acquisition of the property and Dissatisfied, the respondent approached the Court
other forms contributions – Land Act (Act No 6 of of Appeal which held that the High Court erred
2021), section 38. in finding that there was long cohabitation but
declined to presume marriage because of a one KM,
Words and Phrases – constructive trust – definition of
whose existence the Court of Appeal found was not
- the right, enforceable solely in equity, to the beneficial
proved. The appellate court presumed the existence
enjoyment of property which another person holds the

10

of a marriage and allowed the appeal, and ordered
the suit property to be divided into two halves, a
share for each party.
Aggrieved the appellant filed the instant appeal. The
appellant argued that parties to a marriage must have
the capacity to enter into a marriage and that she did
not have the requisite capacity for the relationship
between her and the respondent to be presumed a
marriage as she was married to KM and had three
children out of that relationship. The appellant also
argued that a long-term relationship that resembles
a marriage was not a marriage. The appellant further
argued that she solely contributed to the acquisition
of the suit property.
Issues
i. What was the applicable law to matrimonial
disputes that arose before the enactment of
the Marriage Act, 2014, and Matrimonial
Property Act, 2013.
ii. Whether parties to a union arising out of
cohabitation and/or in a marriage unrecognized
by law could file proceedings under the Married
Women’s Property Act (repealed).
iii. What were the parameters in which courts could
presume a marriage?
iv. What was the definition and application of a
constructive trust?
v. Whether a constructive trust as envisioned under
section 38 of the Land Act could be applied in
solving disputes relating to cohabitees.
vi. Whether a constructive trust could be inferred
from the conduct of cohabitees who purchased
property together in the subsistence of their
relationship.
vii. What principles were courts to consider
in assessing the beneficial interests due to
cohabiting parties who separated?
a. Whether courts were to consider both direct
financial contributions to the acquisition of
the property and other forms contributions.
Held
1. The cause of action arose in 2011 and the
matter was filed in 2012 before the enactment
of the Marriage Act, 2014, and Matrimonial
Property Act, 2013. The Marriage Act, 2014
and Matrimonial Property Act No 49 of 2013
were not applicable in the instant matter as the
cause of action arose before the said statutes
were enacted into law and could not be applied
retrospectively.
2. Section 17 the Married Women Property Act
(MWPA) of the MWPA (repealed) provided
BB Issue 60, January - March 2023
that in any question between husband and
wife as to the title to or possession of property,
either party could apply to the High Court for
orders with respect to the property in dispute.
The MWPA (repealed) applied only to parties
to a marriage; husband and wife. The MWPA
(repealed) only referred to parties to a marriage
and married women. It did not go into details
as to how the marriage came to be or how it
was contracted. Parties to a union arising out of
cohabitation and/or in a marriage unrecognized
by law could file proceedings under the MWPA
(repealed) upon the basis that the MWPA
(repealed) did not distinguish between marriages
recognized or unrecognized in law. The MWPA
(repealed) applied to all marriages recognized or
unrecognized in law.
3. If a man and woman cohabit and held themselves
out as husband and wife, that in itself raised a
presumption that they were legally married.
Section 119 of the Evidence Act provided that
courts may presume the existence of any fact
which it thought likely to have happened,
regard being had to the common course of
natural events, human conduct and public and
private business, in their relation to the facts of
the particular case. Courts were permitted to
make a prima facie legal inference that certain
facts existed without proof, regard being taken
to the common course of natural events and
human conduct, in relation to the facts of a
particular case.
4. The presumption covered two aspects, that the
parties must have had capacity to enter into a
marriage and that they did so in effect. During
the continuance of a previous marriage, the
already married party would have no capacity
to enter into the new marriage, and the new
marriage would be null until the previous
marriage had been brought to an end by a final
decree or divorce.
5. The appellant’s father was MW and his name did
not appear in the appellant’s identity document.
The Court of Appeal disregarded the appellant’s
evidence regarding her name and the reasons for
use of the name ‘P’ and ‘K.’ The appellant did
not have capacity to contract a marriage with
the respondent. The appellant’s name was MNK
and the name K was attributable to her deceased
husband ‘KM’.
6. There was long cohabitation between the
appellant and the respondent. He who alleged
the existence of certain facts had to prove their
existence. Section 109 of the Evidence Act
11
 BB Issue 60, January - March 2023
provided that the burden of proof as to any
particular fact lay on the person who wished
the court to believe in its existence unless it
was provided by any law that the proof of that
fact was to lie on any particular person. The
respondent, having claimed that he was married
to the appellant, ought to have adduced cogent
evidence to prove the marriage. However, in
his own testimony in the record, he had a first
wife and the appellant was allegedly his second
wife. He also confirmed that he had not paid
dowry for the appellant. His cohabitation with
the appellant was not sufficient to prove his
marriage to the appellant.
7. The respondent did not controvert the evidence
by the appellant that she was married to KM until
2011 when he died. She only had the capacity to
marry from 2011. The appellant’s evidence that
she was married to KM under Kikuyu customary
marriage was uncontroverted. Uncontroverted
evidence was weighty and courts would rely on
it to prove facts in dispute.
8. The instant case was not one of the safe
instances where a court could rightly presume
a marriage. The appellate court erred in
presuming a marriage between the parties.
The relationship between the parties and the
resulting cohabitation could not be deemed to
have brought forth a marriage. A presumption
of marriage could not apply in the instant case.
9. The strict parameters within which a
presumption of marriage could be made were:
a. the parties must have lived together for a
long period of time.
b. The parties must have the legal right or
capacity to marry.
c. The parties must have had intended to
marry.
d. There must be consent by both parties.
e. The parties must have held themselves out to
the outside world as being a married couple.
f. The onus of proving the presumption was on
the party who alleged it.
g. The evidence to rebut the presumption
had to be strong, distinct, satisfactory and
conclusive.
h. The standard of proof was on a balance of
probabilities.
10. The doctrine of presumption of marriage was on
its deathbed of which reasoning was reinforced
by the changes to the matrimonial laws in
Kenya. The presumption should only be used
sparingly where there was cogent evidence to
buttress it.
12
11. Marriage was an institution that had traditional,
religious, economic, social and cultural meaning
for many Kenyans. However, it was becoming
increasingly common for two consenting
adults to live together for long durations where
these two adults had neither the desire, wish
nor intention to be within the confines of
matrimony. There existed relationships where
couples cohabit with no intention whatsoever of
contracting a marriage. In such contexts, such
couples may choose to have an interdependent
relationship outside marriage. While some may
find that amoral or incredible, it was a reality of
the times we live in today.
12. A person may have been in a marriage before
and the marriage was no more due to death
of a spouse or divorce. Due to their prior
experiences, such persons may choose to have
an interdependent relationship outside of
marriage. For others, it may just be their desire
never to marry but have a partner without the
confines of marriage. Where such situation was
evident and there was no intention whatsoever
of contracting a marriage, the presumption
of marriage must never be made where this
intention did not exist. Marriage was a voluntary
union. Courts should shy away from imposing
marriage on unwilling persons.
13. Statistics revealed that a man and a woman could
choose to cohabit with the express intention that
their cohabitation did not constitute a marriage.
The pervasiveness of having interdependent
relationships outside marriage over the past
few decades meant that no inferences about
marital status could be drawn from living under
the same roof. Inter-dependent relationships
outside marriage was not a new concept.
14. It was time for the National Assembly and the
Senate, in collaboration with the Attorney-
General to formulate and enact statute law that
dealt with cohabitees in long-term relationships;
their rights, and obligations.
15. The circumstances in which presumption of
marriage could be upheld were limited. A
presumption of a marriage was the exception
rather than the rule.
16. The two parties contributed to the acquisition
and development of the suit property which led
to their proprietary rights. Those proprietary
rights arose out of a constructive trust. A
constructive trust was the right, enforceable
solely in equity, to the beneficial enjoyment of
property which another person held the legal
title.

17. Whenever two parties by their joint efforts
acquire property to be used for their joint benefit,
the courts may impose or impute a constructive
or resulting trust. The legal owner was bound
to hold the property in trust for them both.
That trust did not need any writing. It could
be enforced by an order for sale, but in a proper
case the sale could be postponed indefinitely.
It applied to husband and wife, to engaged
couples, and to man and mistress, and maybe
to other relationships too. Their contributions,
financial and otherwise, to the acquisition of the
land, the building of the house, the purchase of
furniture and the making of their home, were
on the basis of, and for the purposes of, that
joint relationship.
18. Disputes between cohabitants or former
cohabitants over ownership, occupation, or use
of the property had to be resolved by applying
ordinary legal rules applicable to strangers.
Legislation that enabled courts to allocate
or reallocate beneficial interests in the assets
following a divorce did not apply to cohabiting
couples.
19. Kenya did not have laws to protect parties to
cohabitation in case of a dispute relating to
property acquired during the subsistence of such
cohabitation. However, the issue of cohabiting
couples’ property had increasingly become a
social problem due to the high number of people
resorting to cohabitation and in the process of
acquiring properties, upon separation there was
no legislation governing the division of property.
While resolving such disputes was difficult, a
laissez fair approach could result in injustice
for parties to a relationship who might be more
vulnerable or who contributed less in financial
terms than their partners. The interventionist
approach risked creating uncertainty, and
attaching a monetary value to the party’s actions
within that type of relationship was often highly
complex as was in the instant case.
20. Common intention of the parties at the time
of purchase was sufficient to give rise to a
constructive trust, which could be inferred
from conduct other than making financial
contributions to cohabitees.
21. Even though constructive trust was premised on
section 38 of the Land Act, 2012 the same had
not been applied in solving disputes relating to
cohabitees. Common intention of the parties at
the time of purchase of the suit property gave
rise to a constructive trust between the appellant
and the respondent.
BB Issue 60, January - March 2023
22. The appellant and respondent had been
cohabiting since 1986. In 1991 the suit property
was bought by the two parties and registered
in the name of the appellant. The respondent
was present during the drafting and signing
of the sale agreement and was a witness. The
parties lived in one of the rooms from 1993
and ploughed the proceeds of rent to construct
more rental units. It was proved that the meters
were in his name and operated a bar on the same
premises. There was a common intention for
the appellant and respondent to have beneficial
interests in the suit property.
23. However, in 2011 when the parties separated
the appellant evicted the respondent from
the matrimonial home and from the business
premises contrary to the common intention,
they had at the time of purchasing the property.
Thereby, unjustly enriching herself with a
property meant to be of benefit to her and the
respondent. The respondent paid for the water
and electricity connection charges and bills
from when the property was constructed to
2011 when he was evicted from the property
and that jointly the parties had made several
improvements on the suit property. The
common intention could be inferred from the
appellant and respondent’s conduct during the
existence of their relationship.
24. In assessing the beneficial interests due to the
parties, the court could not only be primarily
focused on the direct financial contribution
to the acquisition of the property but also
interrogate other forms of contribution such
as actions of the parties in maintaining and
improving such properties.
25. The appellant and the respondent jointly
contributed to the acquisition and the
construction of the suit property and the two
jointly invested in the property for more than
20 years. The respondent proved his case on a
balance of probabilities that the suit property
was acquired and developed through joint
efforts and/or contribution of the parties. The
share of the parties was apportioned as 70% for
the appellant and 30% for the respondent based
on their respective contributions.
Appeal partly allowed; each party was to bear their own
costs.
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 BB Issue 60, January - March 2023

Scope and extent of judicial review

Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated))
[2023] KESC 6 (KLR) (Civ) (January 27, 2023) (Judgment)
Medium Neutral Citation: [2023] KESC 6 (KLR)
Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
Reported by John Ribia

Words and Phrases – judicial review – definition
– “a court’s power to review the actions of other
branches of government; esp., the court’s power to
invalidate legislative and executive actions as being
unconstitutional. The constitutional doctrine providing
for this power. A court’s review of a lower court’s or an
administrative body’s factual or legal findings”- Black’s
Law Dictionary, 9th Edition, Pg. 924.
Administrative Law – judicial review – character
and scope of judicial review – evolution of judicial
review pre and post the Constitution of Kenya, 2010
- whether the High Court as a judicial review court
could go through the merits and demerits of the
decision challenged in judicial review - between the
process only approach to judicial review and the merit
review approach in appropriate cases, which school of
thought was applicable in judicial review in Kenya –
Constitution of Kenya, 2010 article 47; Law Reform
Act (Cap 26) sections 8 and 9; Civil Procedure Rules
(Cap 21) order 53.
Constitutional Law – Office of the Director of Public
Prosecutions – decision to charge - administrative Law
– judicial review– review of decision of the Director of
Public Prosecutions (DPP)to charge – considerations -
what were the circumstances in which a judicial review
court could interfere with the decision of the DPP to
charge an accused person - whether a challenge on the
interpretation of the provisions used to charge an accused
was an issue concerning the propriety or otherwise of
the decision by the DPP to charge an accused warranty
consideration by a judicial review court – Constitution
of Kenya, 2010, articles 10, 25(c), 27, 28, 29, 41
and 50; Constitution of Kenya, 2010 article 47; Law
Reform Act (Cap 26) sections 8 and 9; Civil Procedure
Rules (Cap 21) order 53.
Brief facts
The appellants were employees of Geothermal
Development Company ( GDC). GDC was
fully owned by the Government of the Republic
of Kenya as a state corporation carrying on the
business of geothermal exploration. GDC issued
an advertisement for tender No. REF. GDC/
HSQ/086/2011-12 (tender) for the provision of rig
move services for the Menengai Geothermal Project.
The tender was awarded to Bona fide Clearing and
Forwarding Company Limited (hereinafter referred
to as the “BCFCL”) for Kshs. 42,746,000 per rig
move. The appellants were members of GDC’s
Tender Committee that procured the provision of
the rig move services.
The Ethics and Anti-Corruption Commission
(EACC/ 2nd respondent) asserted that it received
a complaint regarding the failure of GDC’s Tender
Committee to comply with procurement law
in the procurement of rig move services tender.
The complaints were based on the conduct of the
appellants in their capacity as members of the GDC
Tender Committee for the acquisition of rig moves
in tender No. Ref. GDC/HQS/086/2011-2012.
More specifically the difference in the procurement
of the rig-move services for the year 2011/2012 at a
cost of Kshs. 42,746,000/= from BCFCL while the
previous year the same services were tendered at a
cost of Kshs. 19,550,000/= to the same company,
BCFCL, at a cost of per rig move. The difference
in price in the procurement of the rig-move services
was considerably higher than comparable similar
rig move services by the same provider, BCFCL,
by other government institutions more specifically
KenGen for rig move services at Olkaria and
Eburru Geothermal fields vide tender no. KGN-
OLK-179-2012 resulted in an agreement dated
February 5, 2014 at a cost ranging between Kshs.
13,565,040 and Kshs. 24,429,600.
Due to that, DPP on the recommendation of EACC,
elected to charge the appellants with various offences
including wilful failure to comply with the law
relating to procurement contrary to section 45 (2)
(b) as read with section 48 of the Anti-Corruption
and Economic Crimes Act and inappropriate
influence on evaluation contrary to section 38(1)
(b) as read with 38(2)(a) of Public Procurement and
Disposal Act and abuse of office contrary to section
46 as read with section 48 of the Anti-Corruption
and Economic Crimes Act.
Before the said criminal case could be heard and
determined, the 1st appellant, pursuant to leave of
the court filed judicial review proceedings which
inter alia sought for an order of certiorari to quash
EACC’s decision recommending her prosecution
for the aforesaid anti-corruption offences; and
DPP’s decision directing her prosecution. The High

14

Court granted an order of prohibition barring the
DPP from prosecuting. Aggrieved the respondents
appealed and the Court of Appeal held that the
judicial review application did not merit the exercise
of the High Court’s discretion and found that the
High Court misdirected itself in deciding to issue
orders of certiorari and prohibition.
Aggrieved, the appellants’ filed two appeals
which were consolidated. Their grievances were
distinctively similar. They both contended that the
charges preferred against them were non-existent
and that the DPP failed to holistically interpret and
understand the Public Procurement and Disposal
Act (2005) and the Public Procurement and Disposal
Regulation (2006).
Issues
i. Between the process only approach to judicial
review (as established under section 8 and 9
of the Law Reform Act and order 53 of the
Civil Procedure Rules) and the merit review
approach in appropriate cases (article 47 of the
Constitution and the Fair Administrative Action
Act), which school of thought was applicable in
judicial review in Kenya?
ii. Whether the High Court as a judicial review
court could go through the merits and demerits
of the decision challenged in judicial review.
iii. What were the circumstances in which a judicial
review court could interfere with the decision of
the Office of the Director of Public Prosecutions
(DPP) to charge an accused person?
iv. Whether a challenge on the interpretation of
the provisions used to charge an accused was an
issue concerning the propriety or otherwise of
the decision by the DPP to charge an accused
warranty consideration by a judicial review
court.
v. Whether the Court of Appeal erred in holding
that the High Court exceeded its jurisdiction in
interfering with the prosecutorial mandate of
the DPP as set out in the Constitution.
Held
1. Judicial review established the court’s authority
to hold the government as well as the subordinate
courts and bodies exercising quasi-judicial
authority accountable to the law. Judicial review
was the court’s way of enforcing the rule of law:
ensuring that public authorities functions were
undertaken according to law and that they were
accountable to law. Ensuring that public bodies
were not above the law.
2. Before the promulgation of the Constitution
2010, judicial review was governed by the
principles of common law largely borrowed
BB Issue 60, January - March 2023
from the United Kingdom. The jurisdiction
to entertain applications for judicial review
remedies was vested in the High Court. The basis
of judicial review in Kenya was derived from
the Law Reform Act and order 53 of the Civil
Procedure Rules, 2010. Section 8 and 9 of the
Law Reform Act provided the substantive basis
while order 53 provided the procedural basis.
The remedies in judicial review were certiorari,
prohibition and mandamus. The grounds
upon which one could base an application
for judicial review were under the heads of
illegality, irrationality, procedural impropriety
and proportionality.
3. Post the Constitution of Kenya, 2010, judicial
review was no longer a common law prerogative,
but was now entrenched in the Constitution to
safeguard the constitutional principles, values
and purposes. In particular, article 23 (3)(f )
provided for the orders of judicial review as
one of the available remedies concerning the
enforcement of the bill of rights. Article 47(1)
of the Constitution guaranteed every person
the right to administrative action that was
expeditious, efficient, lawful, reasonable and
procedurally fair. Article 165(6) granted the
High Court supervisory jurisdiction over the
subordinate courts and over any person, body or
authority exercising a judicial or quasi-judicial
function, but not over a superior court. In 2015,
Parliament in adherence to article 47 of the
Constitution enacted the Fair Administrative
Action Act, No. 4 of 2014, Laws of Kenya (FAA
Act).
4. Due to the codification of the law on judicial
review, two schools of thought emerged. The
first believed that since the promulgation of
the Constitution 2010, judicial review had
shifted from the process only approach to merit
review in appropriate cases. The second school
of thought had maintained the traditional
approach that believed that judicial review
proceedings involved a process only approach
limited to the interrogation of the process and
not the merits of the decision being challenged.
5. The Fair Administrative Actions Act provided
the parameters of judicial review to be the
power of the court to review any administrative
or quasi-judicial act, omission or decision of any
person, body or authority that affected the legal
rights or interests of an aggrieved person. The
judicial review court examined various aspects of
an act, omission or decision including whether
the body or authority whose decision was being
challenged had done something which it had
15
 BB Issue 60, January - March 2023
no lawful authority to do. It may have abused
or misused the authority which it had. It may
have departed from procedures which either
by statute or at common law as a matter of
fairness it ought to have observed. As regards the
decision itself it could be found to be perverse,
or irrational, or grossly disproportionate to
what was required. The parameters were set out
extensively in section 7 of the Fair Administrative
Actions Act (FAAA).
6. The framers of the Constitution when
codifying judicial review to a constitutional
right, the intention was to elevate the right to
fair administrative action as a constitutional
imperative not just for state bodies, but for any
person, body or authority. It was a clarion call
to ensure that the constitutional right to fair
administrative actions permeated every aspect
of the lives of Kenyans, from their engagements
with educational facilities such as universities, to
employer-employee relationships, to engaging
with public bodies in whatever capacity, or any
body, person or authority that exercises quasi-
judicial functions. That approach was consistent
with realizing the right of access to justice
because justice could be obtained in other places
besides a courtroom.
7. For the court to get through that extensive
examination of section 7 of the FAAA, there
had to be some measure of merit analysis. That
was not to say that the court had to embark on
merit review of all the evidence. For instance,
how would a court determine whether a
body exercising quasi-judicial authority acted
reasonably and fairly in the circumstances of the
case without examining those circumstances and
measuring them against what was reasonable
or fair, and arriving at the conclusion that the
action taken was within or outside the range of
reasonable responses. It was not to be limited
to the examination of uncontroverted evidence.
The controverted evidence was best addressed
by the person, body or authority in charge.
8. There was nothing doctrinally or legally wrong
about a judge adopting some measure of review,
examination, or analysis of the merits in a judicial
review case in order to arrive at the justice of
the matter. Rather a failure to do so, out of a
misconception that judicial review was limited
to a dry or formalistic examination of the process
only led to intolerable superficiality. That would
be against article 259 of the Constitution which
required the courts to interpret it in a manner
that inter alia advanced the rule of law, permited
the development of the law and contributes to
16
good governance.
9. The intention was never to transform judicial
review into to full-fledged inquiry into the
merits of a matter. Neither was the intention to
convert a judicial review court into an appellate
court.
10. The nature of evidence in judicial review
proceedings was based on affidavit evidence.
That could not be the best suited form of
evidence for a court to try disputed facts or
issues and then pronounce itself on the merits
or demerits of a case. More so on technical or
specialized issues, as the specialised institutions
were better placed to so. The courts were
limited in the nature of reliefs that they may
grant to those set out in section 11(1) and (2)
of the FAAA. The court could not substitute the
decision it was reviewing with one of its own.
The court could not set about forming its own
preferred view of the evidence, rather it could
only quash an impugned decision (section 11(1)
(e) and (h) of the FAAA).
11. The merits of a case were best analysed in a
trial or on appeal after hearing testimony,
cross-examination of witnesses and examining
evidence adduced. In matters involving the
exercise of judgment and discretion, a public
officer or public agency could only be directed
to take action; it could not be directed in the
manner or the particular way the discretion was
to be exercised.
12. Article 157(6) of the Constitution empowered
the Director of Public Prosecutions (DPP) to
institute and undertake criminal proceedings
against any person before any court in respect
of any offence alleged to have been committed.
Being one of the independent Constitutional
offices established, article 157(10) safeguarded
that independence by decreeing that the
DPP was not to require the consent of any
person or authority before commencement of
proceedings, neither was the DPP under the
direction or control of any person. That was
not to say that that power was absolute. Article
157(11) required the DPP in exercise of his
duties to have regard for public interest, interests
of administration of justice and to prevent or
avoid abuse of the legal process.
13. Whenever it seemed that the DPP was utilizing
criminal proceedings to abuse the court process,
to settle scores or to put an accused person to
great expense in a case which was clearly not
otherwise prosecutable, then the court could
intervene.

14. Although the DPP was not bound by any
direction, control or recommendations
made by any institution or body, being an
independent public office, where it was shown
that the expectations of article 157(11) of the
Constitution had not been met, then the
High Court under article 165(3)(d)(ii) could
properly interrogate any question arising
and make appropriate orders. The following
guidelines read alongside article 157 (11)
of the Constitution were a good gauge in the
interrogation of alleged abuse of prosecutorial
powers:
a. where institution/continuance of criminal
proceedings against an accused person may
amount to the abuse of the process of the
court or that the quashing of the impugned
proceedings would secure the ends of
justice;
b. where it manifestly appeared that there
was a legal bar against the institution or
continuance of the said proceedings, eg.
want of sanction;
c. where the allegations in the first Information
report or the complaint take at their face
value and accepted in their entirety, did not
constitute the offence alleged;
d. where the allegations constituted an offence
alleged but there was either no legal evidence
adduced or evidence adduced clearly or
manifestly fails to prove the charge.
15. In matters that involved exercise of judgment
and discretion, a public officer or public agency
could only be directed to take action; it could
not be directed in the manner or the particular
way the discretion was to be exercised. The
only exception where a court could compel a
public agency to implement a recommendation
was where there was gross abuse of discretion,
manifest injustice or palpable excess of authority
equivalent to denial of a settled right which the
petitioner was entitled, and there was no other
plain, speedy and accurate remedy.
16. Issues on the interpretation or misrepresentation
of the provisions one was charged with by
the DPP in a criminal court were not issues
concerning the propriety or otherwise of the
decision by the DPP to charge them. Those were
contentions of fact, evidence and interpretation
of the law better suited to be examined by a
trial court. Certainly, not for the High Court
while exercising its judicial review jurisdiction.
It was not for the High Court as a constitutional
court to go through the merits and demerits
BB Issue 60, January - March 2023
of the case as that was the duty of the trial
court. It was not for a judicial review court to
undertake the merits and demerits of a matter
based on controverted evidence and contested
interpretations of the law.
17. The High Court, whether sitting as a
constitutional court or a judicial review, could
only interfere where it was shown that under
article 157(11) of the Constitution, criminal
proceedings had been instituted for reasons
other than enforcement of criminal law or
otherwise abuse of the court process.
18. A distinction of the applicable procurement
laws and whether the appellants participated in
the tender process hence liable to prosecution
was a determination best arrived at upon
consideration of viva voce evidence and through
cross examination of witnesses. The Court of
Appeal did not err in holding that the High
Court exceeded its jurisdiction in interfering
with the prosecutorial mandate of the DPP as
set out in the Constitution.
19. The right to fair hearing was broad and
included the concept of the right to fair trial
as it dealt with any dispute whether they arose
in a judicial or an administrative context. By
refusing to submit to the jurisdiction of the trial
court where their innocence may be upheld or
their guilt established, the appellants removed
themselves from the protections of article 50(1)
of the Constitution. Whatever the case, the
criminal justice system was required to protect
against the abuses claimed by the appellants,
which the trial court was competent to resolve
when challenged by an accused person, properly,
during the trial.
20. The claim for constitutional rights violations fell
by the wayside. It would be pragmatic that the
appellants let the trial commence and conclude,
during which trial they may raise all the issues
they had as against the law under which they
were charged. If successful, it was only then that
they would pursue their rights on appeal.
Appeal dismissed.
Orders
i. The 1st appellant’s petition of appeal dated October
25, 2019 and lodged on even date and the 2nd to
8th appellants’ petition of appeal dated October
25, 2019 and lodged on October 29, 2019 were
dismissed.
ii. Anti-Corruption Case No 20 of 2015 before the
Chief Magistrates’ Court in Milimani was to
proceed and be heard on priority basis.
iii. Each party was to bear its own costs.
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 BB Issue 60, January - March 2023
The Senate had powers to summon county governors in the performance of its
oversight role over county revenue
Senate v Council of County Governors & 6 others (Petition 24 & 27 of 2019 (Consolidated))
[2022] KESC 57 (KLR) (October 7, 2022) (Judgment)
Supreme Court of Kenya
MK Koome, CJ; MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ
Reported by Kakai Toili
Constitutional Law - Senate - oversight powers of the
Senate - powers to summon county governors - whether
the Senate was constitutionally empowered to summon
governors to appear before it or any of its committees
for purposes of answering questions and providing
requisite information - whether the Senate’s oversight
authority was limited to nationally allocated revenue
- Constitution of Kenya, 2010, articles 96, 110-112;
Public Finance Management Act No. 18 of 2012,
section 8.
Devolution - county governments - county assemblies
- oversight powers of county assemblies - whether
county assemblies had the power of first tier oversight
over county government revenue whether nationally
allocated or locally generated.
Brief facts
On February 8, 2014, the Senate Committee
on County Public Accounts and Investments
summoned fifteen county governors to appear
before it to answer questions on county financial
management. Several county governors appeared
before the Committee save for four who expressly
declined to honor the summons. The four governors
instead filed a petition before the High Court
challenging the summons. On April 16, 2014, the
High Court found that the Senate was well within
its constitutional mandate to issue the summons.
Consequently, the Senate issued fresh summons
to the governors, requiring them to appear before
the Committee on August 26, 2014. However,
the governors of Bomet, Kiambu, Murang’a and
Kisumu Counties declined to honor the summons
despite the court orders. That prompted the Senate
to pass a resolution, in accordance with section 96
of the Public Finance Management Act (PFMA),
recommending that the Cabinet Secretary, Treasury
halts the transfer of funds to the concerned county
governments and the Controller of Budgets
withholds the approval of withdrawal of public
funds by those county governments.
Aggrieved, the governors filed a second petition on
among other grounds that under articles 96 and
226(2) of the Constitution of Kenya, 2010 (the
Constitution)and section 148 of the PFMA, the
Senate could not summon governors to personally
18
appear before it to answer questions of county
government finances.
The High Court held among others that the Senate
could summon governors to answer questions on
county public finance management and that the
resolution passed by the Senate directing the National
Treasury and Controller of Budget not to release
funds to counties was unconstitutional. Aggrieved,
the respondents filed an appeal at the Court of
Appeal while the appellant filed a cross-appeal at the
same court. The Court of appeal dismissed both the
appeal and cross-appeal for lack of merit and upheld
the High Court judgment. Aggrieved by the Court
of Appeal decision, the appellants filed the instant
consolidated appeals.
Issues
i. Whether the Senate was constitutionally
empowered to summon governors to appear
before it or any of its committees for purposes
of answering questions and providing requisite
information.
ii. Whether the Senate’s oversight authority was
limited to nationally allocated revenue.
iii. Whether county assemblies had the power of
first tier oversight over county government
revenue whether nationally allocated or locally
generated.
Relevant provisions of the law
Constitution of Kenya, 2010
Article 96 - Role of the Senate
(1) The Senate represents the counties, and serves
to protect the interests of the counties and their
governments.
(2) The Senate participates in the law-making function
of Parliament by considering, debating and approving
Bills concerning counties, as provided in Articles 109
to 113.
(3) The Senate determines the allocation of national
revenue among counties, as provided in Article 217,
and exercises oversight over national revenue allocated
to the county governments.
Held
1. Article 96 of the Constitution as read together
with articles 110 to 112 of the Constitution,
 BB Issue 60, January - March 2023

left no doubt that the Senate was established principle of separation of powers. The county
to perform fundamental roles of governance assemblies could not for example, take over
concerning counties; they were legislative, the role of implementing Government policies
budgetary and oversight. It had been granted and projects. Their role was to provide checks
considerable latitude in ensuring that county and balances to the county executives so as to
governments operated at optimal and within promote transparency and accountability in the
accountability standards, if the objectives of manner county affairs were run.
devolution were to be realized. There was no
5. Article 96(2) of the Constitution, which
way by which the Senate could perform such
conferred legislative powers upon the Senate
an important role without having the powers
regarding Bills concerning county governments,
to summon a governor and to require him/
had to be read together with articles 109 to 113
her to provide answers and offer explanations
of the Constitution. Those provisions entrusted
regarding the management of the county
the Senate with the mandate of legislating for
finances and related affairs. Without such
county governments in fields that spanned the
power, the Senate would not be able to protect
entire spectrum of governance. With regard
the interests of the counties, nor would it be
to county finances, the foregoing provisions
able to exercise effective oversight over national
did not limit Senate’s legislative power to the
revenue allocated to counties.
nationally allocated revenue.
2. Article 96(3) of the Constitution was buttressed
6. A holistic reading of all the relevant provisions
by section 8 of the PFMA which provided
of the Constitution and the law, put in context,
for the responsibilities of the Senate Budget
led to the conclusion that both the Senate and
Committee in public finance matters. For the
county assemblies had the power to oversight
Senate to perform its functions as stipulated in
county revenue whether nationally allocated or
section 8, it had to incorporate the input of the
locally generated. The fact that county revenue
respective chief finance officers of the counties,
was locally generated did not remove it from the
who were in turn appointed by the governor.
purview of Senate oversight. Such revenue falls
The office that was ultimately answerable to the
within the rubric of public finance whose use
Senate was that of the governor.
had to remain under the radar of scrutiny and
3. The Senate was constitutionally empowered, to oversight by the State organs established for that
summon governors to appear before it or any purpose. Similarly, the fact that county revenue
of its committees for purposes of answering was nationally allocated did not place it beyond
questions and providing requisite information. the oversight of county assemblies.
In appearing before Senate, there was nothing
7. The purpose of the Constitution was to entrench
to stop a governor from going with his/her
good governance, the rule of law, accountability,
technical team from the county executive. By
transparency, and prudent management of
the same token, if the Senate was of the view that
public finances at both levels of Government.
the questions to be answered or information to
Such grand purpose could not be served if
be provided did not need the personal input of
either the Senate or county assemblies began to
the governor, it could restrict its summons to the
develop centres of oversight/influence. In that
relevant county official or executive committee.
regard, the county assemblies provided the first
4. Article 185(3) of the Constitution provided tier of oversight while the Senate provided the
that a county assembly, while respecting the second and final tier of oversight.
principle of separation of powers, could exercise
8. By exercising its oversight role in the manner
oversight over the county executive committee
determined, the Senate could not be said to be
and any other county executive organs. Article
violating the principle of separation of powers.
185(3), although permissively framed, conferred
There was no potential danger of encroachment
powers upon county assemblies to oversight the
upon the mandate of the independent offices
county executive. That therefore meant that
of the Controller of Budget or the Auditor
among other things, county assemblies could
General. What the Senate could not do under
question the county executives’ management
the guise of oversight, was to usurp the county
of county affairs, including the use of revenue.
executives’ mandates or to purport to supervise
What the county assemblies could not do was
county assemblies.
to usurp the role of the county executive under
the guise of oversight, for that would offend the Appeal partly allowed with no orders s to costs.

19
 BB Issue 60, January - March 2023

Orders to nationally allocated revenue but extended to

i. In the performance of its oversight role over county
revenue, the Senate had powers to summon county
governors to answer any questions or provide any
requisite information.
ii. The Senate’s oversight authority was not limited
locally generated revenue by the counties.
iii. County assemblies had the power of first tier
oversight over county government revenue, whether
nationally allocated or locally generated.

There is no conflict between articles 177(1) and 177(4) of the Constitution which
provided for election to the county assembly to be on the same day as a general
election of members of Parliament being the second Tuesday in August in every fifth
year and that a county assembly is elected for term of five years respectively
County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested
Party) (Petition 22 of 2017) [2022] KESC 66 (KLR) (October 28, 2022) (Judgment)
Supreme Court of Kenya
MK Koome, CJ; PM Mwilu, DCJ; MK Ibrahim, SC Wanjala & NS Ndungu, SCJJ
Reported by Kakai Toili

Constitutional Law - interpretation of the expectation - application of the doctrine of legitimate

Constitution - interpretation of articles 177(1) and
(4) and the transition and consequential provisions of
the Constitution - where article 177(1) provided for
election to the county assembly to be on the same day
as a general election of members of Parliament, being
the second Tuesday in August, in every fifth year while
article 177(4) provided that a county assembly was
elected for term of five years - nature of transition and
consequential provisions in the Constitution - whether
there was conflict between articles 177(1) and 177(4)
- whether the holding of the second general elections
under the Constitution of Kenya, 2010 in August 8,
2017 was unconstitutional for reducing the terms of
office for holders of elective posts below the five-year
mark - Constitution of Kenya, 2010, articles, articles
101(1), 102(1), 136(2)(a), 177(1) and (4), 180(1)
and 259.
Civil Practice and Procedure - appeals - appeals to
the Supreme Court - appeals as of right in a matter
involving the interpretation or application of the
Constitution - what were the requirements to be met
for one to appeal to the Supreme Court under article
163(4)(a) of the Constitution as of right in a matter
involving the interpretation or application of the
Constitution - Constitution of Kenya, 2010, article
163(4)(a).
Jurisdiction - jurisdiction of the High Court -
jurisdiction to determine matters on the enforcement
of rights and fundamental freedoms - whether the High
Court had the jurisdiction to determine matters on
the enforcement of rights and fundamental freedoms
touching on employment and labour - Constitution of
Kenya, 2010, articles 22, 23 and 165.
Constitutional Law - doctrine of legitimate
expectation - what were the principles of application of
the doctrine of legitimate expectation.
Brief facts
The appellant filed a petition at the High Court
challenging the date of the second general
elections under the Constitution of Kenya, 2010
(Constitution) which was scheduled by the
2nd respondent, the Independent Electoral and
Boundaries Commission (IEBC) on August 8, 2017.
The first general elections after the promulgation of
Constitution was held on March 4, 2013. As such,
they claimed that holding the general elections on
the aforementioned date would unconstitutionally
reduce the Members of the County Assemblies
(MCAs) term in office by a period of eight (8)
months, taking into account that their term, as fixed
by article 177(4) of the Constitution, was five (5)
years. In essence, they contended that there was an
apparent conflict between articles 177(1)(a) and
article 177(4) of the Constitution.
The appellant sought among other reliefs that
a declaration that the term of office of the then
existing MCAs was to end on March 5, 2018, being
five (5) years from the date of the general elections
held on March 4, 2013. The High Court partly
allowed the petitions and found that the tenure
of office for Members of Parliament (MPs) and
MCAs was different. The High Court found that for
MCAs, their position was muddied by article 177(4)
of the Constitution. The court found that that was
in conflict with article 177(1)(a) and that it was not
possible to give effect to both provisions at the same
time. The court thus found that the term of office
for MCAs was plainly set out in articles 177(4) and

20

194(f ) so that a county assembly was elected for a
term of five years expiring at the end of the term of
the assembly. The court upheld the election date of
August 8, 2017.
Aggrieved by the decision, the 1st and 2nd respondents
filed an appeal at the Court of Appeal while the
3rd respondent filed a cross appeal whose main
contention was that it would be impossible to hold
the following general elections on August 8, 2017
without limiting the term of county assemblies. The
Court of Appeal found that the validity or legality
of any the Constitution’s provisions could not
be questioned by any court. The Court of Appeal
further found that articles 177(1)(a) and 177(4)
could not be construed to be in conflict or to
contradict each other. The Court of Appeal allowed
the appeal and set aside the judgment of the High
Court. The appellant aggrieved by the decision of
the Court of Appeal filed the instant appeal.
Issues
i. Whether there was conflict between article
177(1) of the Constitution which provided
for election to the county assembly to be on
the same day as a general election of members
of Parliament, being the second Tuesday in
August, in every fifth year and article 177(4)
of the Constitution which provided for that a
county assembly is elected for term of five years.
ii. Whether the holding of the second general
elections under the Constitution of Kenya,
2010 in August 8, 2017 was unconstitutional
for reducing the terms of office for holders of
elective posts below the five-year mark.
iii. What were the requirements to be met for
one to appeal to the Supreme Court under
article 163(4)(a) of the Constitution as of right
in a matter involving the interpretation or
application of the Constitution?
iv. Whether the High Court had the jurisdiction
to determine matters on the enforcement of
rights and fundamental freedoms touching on
employment and labour.
v. What was the nature of transition and
consequential provisions in the Constitution?
vi. What were the principles of application of the
doctrine of legitimate expectation?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 163 - Supreme Court
(4) Appeals shall lie from the Court of Appeal to the
Supreme Court—
(a) as of right in any case involving the
BB Issue 60, January - March 2023
interpretation or application of this
Constitution; and
Article 177 - Membership of county assembly
(1) A county assembly consists of—
(a) members elected by the registered voters
of the wards, each ward constituting a single
member constituency, on the same day as a
general election of Members of Parliament,
being the second Tuesday in August, in every
fifth year;
(4) A county assembly is elected for a term of five years.
Held
1. The court’s appellate jurisdiction was set out
in article 163(4) of the Constitution. So as to
bring the appeal as of right pursuant to article
163(4)(a) of the Constitution, it had to be
demonstrated that the issues of contestation
revolved around the interpretation or application
of the Constitution. It was the interpretation or
application of the Constitution by the Court
of Appeal that formed the basis of a challenge
to the court. So that, where the dispute had
nothing or little to do with the interpretation or
application of the Constitution, the court under
article 163(4)(a) would have no jurisdiction
to entertain an appeal brought under that
provision.
2. The instant matter was not a mere electoral dispute
arising from or touching on an election. Joinder
of the Salaries and Remuneration Commission
was unnecessary as the issues before court were
not on the amount of compensation to be paid
to the MCAs for services rendered. Rather, they
included questions of interpretation of articles
177(1) and 177(4) of the Constitution as well
as whether MCAs were entitled to damages for
the reduced term in office as a consequence of
the election date in 2017.
3. The question of enforcement of rights and
fundamental freedoms even touching on
the employment and labour was within the
competence of the High Court pursuant to
article 22 of the Constitution. Articles 23 and
165 of the Constitution fortified that position
as they were the provisions that gave the High
Court jurisdiction to hear and determine
applications for redress of denial, violation or
infringement of rights or fundamental freedoms
in the Bill of Rights. Consequently, the appeal
fell squarely within the ambit of article 163(4)
(a) and the court had jurisdiction to entertain
the appeal.
21
 BB Issue 60, January - March 2023
4. Article 2(3) of the Constitution stipulated that
the validity or legality of the Constitution was
not subject to challenge by or before any court
or other State organ. The Court of Appeal
was not determining the constitutionality
or otherwise of articles 177(1) and (4) of the
Constitution, only on the interpretation and
application as regards the context of the instant
case. To purport to question the validity of a
constitutional provision was to question the
very foundation of authority of the courts was
not only contra article 2(3) but also against the
will of the people of Kenya.
5. Article 259 of the Constitution gave the
approach to be adopted in construing the
Constitution. By that provision therefore, the
Constitution called for its holistic interpretation.
No constitutional provision was more superior
to the other. They all ranked equally and had
to be all be interpreted and applied together
to give them their full tenor and meaning. The
court was guided by article 2(1) and (3) of the
Constitution which provide for the supremacy
of the Constitution over other laws and thereby
its validity and legality were not subject to
challenge by or before any court or other State
organ.
6. The Constitution was consistent in the date of
the general elections in various articles other than
article 177(1). The election date was predicated
on the election of MPs which was provided
for under article 101(1). The designated date
for general elections was not a set date but
rather the second Tuesday in August, in every
fifth year. Further, the Constitution provided
that all elections for the positions of President,
governor, senator, MPs and MCA had to be
held on the day.
7. Kenya held its third general elections in 2022
since promulgation of the Constitution on
August 27, 2010. The 2017 general elections
were held on August 8, 2017. While the 2022
general elections were held on August 9, 2022,
thereby fulfilling the requirement of holding
general elections every five years. There did
not exist a conflict between articles 177(4)
and 177(1) of the Constitution, apparent or
otherwise. If the two were to be put side by side,
they could both be given effect at the same time
as demonstrated by the continued election cycle.
8. The first general elections following
promulgation of the Constitution were held
on March 4 2013. That date was arrived at
22
following the decision by the Court of Appeal
in Center for Rights Education and Awareness &
another v John Harun Mwau & 6 others [2012]
eKLR. That case was distinguishable from the
instant dispute as the main issue in contention
therein was the first general election and not
subsequent elections. The courts therein were
not called upon to make a determination on
harmonizing the terms of office of MCAs
pursuant to article 177(1) and (4) contrasted
with other elective posts.
9. The date of the first elections, March 4, 2013,
was informed by the transition clauses of the
Constitution. More specifically, section 9(1) of
the Sixth Schedule to the Constitution which
provided that the first elections under the
Constitution were to be held within sixty days
after the dissolution of the National Assembly.
Vide Legal Notice No. 1 of 2008, the term of the
National Assembly commenced on January 15,
2008 and ended on January 14, 2013. Hence,
sixty days later, was March 4, 2013, achieving
the first hurdle in transitioning the elections of
Kenya from the old constitutional dispensation
to the Constitution of Kenya, 2010.
10. The transitional provisions of the Sixth Schedule
to the Constitution were only for a limited period
of time and once they served their purpose, the
nation reverted to the permanent provisions of
the Constitution. On general elections, the date
stipulated in articles 101(1), 102(1), 136(2)(a),
177(1)(a) and 180(1) was reverted to. That was
such that, after the first general elections was
held, IEBC then had a constitutional duty to
apply those provisions of the Constitution with
regard to the future elections. That was not a
simple duty, as IEBC had to decide between
holding the elections in August of 2018, five
years after 2013 or alternatively in August of
2017. IEBC elected to hold the second general
elections on August 8, 2017. that date fell short
of the five-year mark by eight (8) months. That
was not just for the MCAs but for all elective
positions.
11. Perhaps what informed IEBC’s decision
regarding the election date in 2017, was to ensure
the terms in office for all elected officials would
not fall outside the constitutionally stipulated
five years. Holding the election in August 2018
would have meant that the term in elective
office for all officials would have been over and
above the five-year timeline by approximately
five months. The court could infer that IEBC
was trying to avoid generating a gap whereby
 BB Issue 60, January - March 2023

the holders of the various elective offices would under the Constitution by virtue of the second
either not be legally in office, or if they elected general elections being held on August 8, 2017.
to go home, then the elective offices would be
16. Pursuant to article 38(3) of the Constitution,
vacant for eight months. The ramifications of
the MCAs had a right to hold office. However,
such scenarios were far greater than that the
they held elective office subject to application
office of the MCAs, as it cut across all elective
and interpretation of the Constitution. The
positions. One such office being that of the
Constitution required a holistic and purposive
President. That would have had the resultant
interpretation, which included considering
effect of placing Kenya in constitutional
the provision of article 24 of the Constitution
crisis. Such an effect would not have been the
on limitations of rights and freedoms. The
intention of the framers of the Constitution and
implication of that was that, outside the non-
would not have been a reflection of the will of
derogable rights enshrined in article 25 of the
the people.
Constitution, the rest were not absolute hence
12. Transitional and consequential provisions in subject to some forms of limitations provided
the Constitution were supposed to be a bridge that the limitation did not go against article 24.
between two constitutional dispensations.
17. Legitimate expectation was a doctrine well
Those provisions provided for the orderly
recognized within the realm of administrative
implementation of law helping to avoid the
law and well reflected in judicial practice
shock that could result from an abrupt change
in Kenya. The principles of application of
in the law. However, transitions were not always
legitimate expectation were as follows;
smooth and often times called for compromise.
The effects of the transition in the Kenyan a. there had to be an express, clear and
context did not end with the holding of the first unambiguous promise given by a public
general elections pursuant to the Sixth Schedule authority;
to the Constitution. One compromise that had b. the expectation itself had to be reasonable;
to be made was the date of the second general c. the representation had to be one which it
elections. was competent and lawful for the decision-
maker to make; and
13. By choosing to hold the elections on August 8, d. there could not be a legitimate expectation
2017, IEBC were selecting the more rational against clear provisions of the law or the
and judicious option of having the terms in Constitution.
office for holders of elective posts, end a few
18. The Constitution provides under article 1 that
months short of the five-year mark. Rather than
all sovereign power belonged to the people
ending five months over and above their term
of Kenya and should be exercised only in
limits. A secondary consequence of that choice
accordance with the Constitution. It further
was ensuring a smooth transition from one
provided that the people of Kenya could
Government to another. The eight-month gap
exercise their sovereign will either directly or
was a compromise that the Kenyan people and
indirectly through their democratically elected
by extension, their elected leaders had to make
representatives. Sovereign power under the
in order to complete the transition from the
Constitution was delegated to Parliament
old constitutional order to the Constitution of
and the legislative assemblies in the county
Kenya, 2010. The third general elections, falling
governments, the national executive and the
on the fifth year being August 9, 2022 from
Judiciary and independent tribunals. That was
August 8, 2017, that transition was complete.
reiterated in Chapter Six of the Constitution,
14. The decision by IEBC to hold the second general more specifically article 73.
elections under the Constitution of Kenya, 2010
19. It was due to public trust that elections were
to August 8, 2017 was not unconstitutional.
considered to be sui generis affecting not just the
IEBC was seeking to give effect to the will of
contestants for public office but the people on
the people as expressed in the provisions of the
whose behalf they vied. Public office to which a
Constitution in a manner that resonated with a
portion of the sovereignty of the people, either
purposive interpretation of articles 177(1) and
legislative, executive or judicial, attached for
as read with article 259 the Constitution.
the time being and which was exercised for the
15. There was a reduction of the term of office benefit of the public, did not vest in the holder
of MCAs elected in the first general elections of the office the right to property of the office.

23
 BB Issue 60, January - March 2023

20. The holders of elective office vied and held general elections on August 8, 2017 thereby
office, not for their private benefit but for the occasioning the gap of eight (8) months.
benefit of their constituents on whose behalf
21. The MCAs term in office ended by operation
they acted. The holders of such office retained
of the Constitution, thereby running afoul the
their rights to fair administrative actions,
principles of legitimate expectation. Further,
access to justice and fair hearing as enshrined
election into public office was not anchored on
in articles 47, 48 and 50 of the Constitution.
a promise. The appellant’s claim for legitimate
They could not be removed from office, other
expectation lacked merit. The appellant’s claim
than by operation of the law. In the instant suit,
that the MCA’s had proprietary rights to the
it was the interpretation and application of the
unexpired eight-month period also failed.
constitutional requirement to hold elections
on the second Tuesday in August, in every fifth Appeal dismissed; each party to bear their own costs.
year, that imposed the need to hold the second

The High Court did not have the jurisdiction to overturn or to order the Court of
Appeal to try an appeal de novo a final decision of the Court of Appeal which was
determined a Judge that was removed by the vetting board
Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62
(KLR) (Civ) (7 October 2022) (Judgment)
Petition 16 of 2020
Supreme Court of Kenya
October 7, 2022
MK Koome, CJ and P; SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
Reported by John Ribia

Jurisdiction – hierarchy of courts – jurisdiction of the
High Court vis-à-vis the jurisdiction of the Court of
Appeal - application that sought the High Court to
overturn or to request the Court of Appeal to try an
appeal de novo - whether the High Court had the
jurisdiction to overturn or to order the Court of Appeal
to try an appeal de novo a final decision of the Court
of Appeal which was determined a Judge that was
removed by the vetting board – Constitution of Kenya
(2010) articles, 163, 164 and 165.
Jurisdiction – jurisdiction of the Judges and Magistrates
Vetting Board – decisions by the Judges and Magistrates
Vetting Board – effect of decision of the vetting board
on decisions rendered by judges/magistrates who
were removed from service for impropriety - whether
decisions by the Judges and Magistrates Vetting Board
were supra-judicial pronouncements that had the effect
of setting aside every decision made by a judge who was
removed for impropriety.
Brief facts
The instant petition of appeal sought to set aside the
judgment of the Court of Appeal in Civil Appeal No.
404 of 2018 delivered on which affirmed the High
Court. The appellant’s claim was predicated on the
outcome and report by the Judges and Magistrates
Vetting Board, (vetting board).
At the High Court the appellant sought to have the
decision of the Court of Appeal that was the apex
time at the time of the appeal to be overturned on
24
account that one of the judges that determined
the appeal was unsuitable to continue holding
the position of Judge of the Court of Appeal. The
petition was dismissed on grounds that the High
Court lacked the jurisdiction to order the Court
of Appeal to try an appeal de novo or to overturn
a decision of the Court of Appeal. The Court of
Appeal affirmed the decision of the High Court.
Aggrieved the appellant approached the Supreme
Court for orders that the High Court erred in law
in finding that it had no jurisdiction to entertain the
matter.
Issues
i. Whether the High Court had the jurisdiction to
overturn or to order the Court of Appeal to try
an appeal de novo a final decision of the Court of
Appeal which was determined a Judge that was
removed by the vetting board.
ii. Whether decisions by the Judges and
Magistrates Vetting Board were supra-judicial
pronouncements that had the effect of setting
aside every decision made by a judge who was
removed for impropriety.
Held
1. The issue faced by the High Court was not
on whether the High Court had jurisdiction
to entertain a constitutional petition and its
dispensation, but on whether the High Court
had the jurisdiction to set aside a Judgment

issued by the Court of Appeal as well as to order
the Court of Appeal to try an appeal de novo.
2. Jurisdiction was everything as it denoted the
authority or power to hear and determine
judicial disputes. Civil Appeal No. 149 of 2007
was conclusively determined on April 2, 2009
and that judgment still stood save for the review
judgment issued on November 20, 2009 that
altered the dates of interest. Similarly, the High
Court judgment in HCCC No. 367 of 2000
still stood and the appellant had not sought
any orders to have that judgment impugned.
The appellant was asking the Supreme Court to
make its determination based on proceedings
brought under the Constitution where the
decision of the Judges and Magistrates Vetting
Board (vetting board) was the basis for its main
argument that the judgment by the Court of
Appeal in Civil Appeal No. 149 of 2007 was
obtained through alleged bias or impropriety on
the part of O’Kubasu JA despite the appellant
not having any complaints against the other two
Judges of the Court of Appeal who determined
Civil Appeal No. 149 of 2007.
3. The High Court could not overturn a
final decision of the Court of Appeal. The
Constitution could not itself to issue the reliefs
sought by the appellant.
4. Though article 163(4)(b) of the Constitution
did not confer the Supreme Court with the
jurisdiction to entertain appeals from the Court
of Appeal before the coming into force of the
2010 Constitution, the same principle applied
in that the High Court could not and did not
have any jurisdiction to reopen cases finalized
by the Court of Appeal, which was the apex
court at the time.
5. The Constitution could address any injustice
with the High Court having jurisdiction under
article 165 to hear and determine applications
for redress of a denial, violation or infringement
of, or threat to a right or fundamental freedom
in the Bill of Rights. However, the High Court
could not overturn or order final decisions
BB Issue 60, January - March 2023
issued by higher courts than itself to start de
novo, especially on appeals that had been finally
concluded by the highest court at the time.
6. Superior courts could not grant orders to reopen
or review decisions of their peers of equal and
competent jurisdiction much less those courts
higher than themselves.
7. A court’s jurisdiction flowed from either the
Constitution or legislation or both. Thus, a
court of law could only exercise jurisdiction as
conferred by the constitution or other written
law. The decisions by the vetting board could not
be elevated to supra-judicial pronouncements
that would have the effect of setting aside every
decision made by a judge who was removed for
impropriety.
8. The appellant, having exercised his right of
appeal (albeit unsuccessfully) to a higher
court, in the instant case, the Court of Appeal,
could not proceed to launch an attack upon a
judgment of the Court of Appeal, by making
an application for redress under article 23 of
the Constitution to the High Court, another
superior court nonetheless, but one inferior
to the court that delivered such judgment. To
allow such an action would be subversive to the
principle of rule of law.
9. Though the courts found bias to amount to
a breach of constitutional rights, the inferior
courts were not asked to set aside the judgments
made by superior courts, the vetting bard
proceedings notwithstanding. The principle of
finality in litigation was relevant. There had be
an end to litigation and it was intolerable that
litigants could be allowed to approach courts
to reconsider final orders made in judgments
by a superior court in the hierarchy of courts
and to have such final judgments re-opened.
There was no justifiable fault in the decision
of the appellate court affirming the trial court’s
decision.
Appeal dismissed; each party was to bear its own costs.
25
 BB Issue 60, January - March 2023

The Constituencies Development Act, 2013, declared unconstitutional for, among

others, violating the constitutional principles of separation of power, accountability,
good governance public finance and division of revenue
Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition
1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment)
Neutral citation: [2022] KESC 39 (KLR)
Supreme Court of Kenya
August 8, 2022
MK Koome, CJ; PM Mwilu, DCJ; SC Wanjala, NS Ndungu and W Ouko, SCJJ
Reported by James Nginya & Kakai Toili

Constitutional Law - constitutionality of statutes -
constitutionality of the Constituencies Development
Fund Act, 2013 (CDF Act, 2013) and the
Constituencies Development Fund (Amendment) Act,
2013 (CDF (Amendment) Act, 2013) - where the CDF
Act, 2013, established a constituencies development
fund (CDF) - claim that the CDF Act, 2013, shared
revenue raised nationally to constituencies - claim that
the Senate was not involved in the passing of the (CDF
(Amendment) Act, 2013) despite it containing matters
that concerned counties - whether failure to involve the
Senate in the enactment of the CDF (Amendment) Act,
2013, rendered the CDF Act, 2013 unconstitutional
- what was the nature of a constituency and whether
it had a service delivery mandate - whether the CDF
Act, 2013, violated the division of functions between
the national and county levels of Government by
sharing revenue raised nationally to constituencies -
whether the CDF Act, 2013 violated the constitutional
principles on public finance by requiring the Cabinet
Secretary responsible for matters relating to the CDF in
allocating the fund to seek concurrence of the relevant
parliamentary committee - Constitution of Kenya,
2010, articles 202(1), 206(2)(c) and 218(1)(a);
Constituencies Development Act, 2013, sections 4 and
10.
Devolution - functions of the National Government vis
a vis county government - inter-governmental transfer
of functions - whether the constituencies development
fund, which was distributed to constituencies,
amounted to an inter- governmental transfer of
functions - whether granting of Members of the National
Assembly the power of appointment of members of the
constituency development fund committee and being
an ex-officio member of the committee amounted to a
violation of values and principles of accountability and
good governance - Constitution of Kenya, 2010, article
187(1).
Devolution - principle of subsidiarity - nature of the
principle of subsidiarity - division of powers between
the National and County Governments - role of the
Legislature in the performance of functions by devolved
units - whether allowing a Member of the National
Assembly to play a role related to functions vested in
devolved units compromised division of powers between
the National and County Governments - Constitution
of Kenya, 2010, Fourth Schedule.
Civil Practice and Procedure - institution of suits
- doctrine of mootness - when would a matter be
considered to be moot.
Brief facts
Aggrieved by the enactment of the Constituencies
Development Fund Act, 2013 (CDF Act, 2013)
and the Constituencies Development Fund
(Amendment) Act No. 36 of 2013 (CDF Act, 2013),
two petitions, which were consolidated, were filed at
the High Court by the appellants. The consolidated
petitions challenged the constitutionality of the
CDF Act 2013. The High Court determined that
the CDF Act, 2013 was unconstitutional and
held that the CDF Act, 2013, was passed without
the involvement of the Senate. The High Court
established that the constituencies development
fund (CDF) was not a conditional grant to the
county governments within the meaning of article
202(2) of the Constitution of Kenya, 2010.
The High Court also held that the CDF Act, 2013,
violated the division of functions between the
National and County Government, the court found
that in as much as the National Government was
free to infiltrate its policies at the county levels, it
had to do so through the structures recognized
under the Constitution and those that did not run
parallel to them. The court also noted that charging
the CDF with implementing local development
projects under section 22 of the CDF Act, 2013,
upset the division of functions between the two
levels of government.
Aggrieved with the judgment of the High Court,
the 1st and 4th respondents filed appeals at the Court
of Appeal. The appellants raised a preliminary
objection to the appeals challenging the Court of
Appeal’s jurisdiction on the ground of the doctrine
of mootness. They urged that the appeals had been
rendered moot following the repeal of the CDF
Act, 2013 and the enactment of the National

26

Government Constituencies Development Fund,
2015 (NGCDF Act, 2015).
The Court of Appeal partially allowed the appeals,
by declaring sections 24(3)(c), 24(3)(f ), and 37(1)
(a) of the CDF Act, 2013 unconstitutional and
invalid for violating the principle of separation of
powers. The court also overturned the declaration,
that the CDF Act, 2013, was unconstitutional
in its entirety. The Court of Appeal also held that
the NGCDF Act, 2015, did not expressly repeal
the CDF Act, 2013. Dissatisfied with the Court of
Appeal’s decision, the appellants filed the instant
appeal. The 1st respondent also filed a notice of
cross-appeal in the instant court.
Issues
i. Whether the Constituencies Development Act,
2013, violated the division of functions between
the national and county levels of Government
by sharing revenue raised nationally to
constituencies.
ii. Whether failure to involve the Senate in the
enactment of the Constituencies Development
Fund (Amendment) Act, 2013, rendered the
Constituencies Development Fund Act, 2013
unconstitutional.
iii. Whether allowing a Member of the National
Assembly to play a role related to functions
vested in devolved units compromised division
of powers between the National and County
Governments.
iv. Whether the constituency development fund,
which was distributed to constituencies,
amounted to an inter- governmental transfer of
functions.
v. Whether the Constituencies Development Act,
2013 violated the constitutional principles
on public finance by requiring the Cabinet
Secretary responsible for matters relating to the
CDF in allocating the fund to seek concurrence
of the relevant parliamentary committee.
vi. Whether granting of Members of the National
Assembly the power of appointment of
members of the constituency development
fund committee and being an ex-officio member
of the committee amounted to a violation of
values and principles of accountability and good
governance.
vii. What was the nature of a constituency and
whether it had a service delivery mandate?
viii. What was the nature of the principle of
subsidiarity?
ix. When would a matter be considered to be moot?
BB Issue 60, January - March 2023
Held
1. A matter was moot when it had no practical
significance or when the decision would not have
the effect of resolving the controversy affecting
the rights of the parties before it. If a decision of
a court would have no such practical effect on
the rights of the parties, a court would decline
to decide on the case. Accordingly, there had to
be a live controversy between the parties at all
stages of the case when a court was rendering
its decision. If after the commencement of
the proceedings, events occurred changing the
facts or the law which deprived the parties of
the pursued outcome or relief then, the matter
became moot. Where a new statute was enacted
that unequivocally addressed the concerns that
were at the heart of a dispute then such a dispute
would be moot.
2. Sections 3, 4 and 53 of the NGCDF Act, 2015
contained some of the pertinent issues that were
raging controversies before the Court of Appeal
for determination even after the coming into
force of the NGCDF Act, 2015. Moreover,
given that the impugned provisions of the
CDF Act 2013 had also been re-enacted in the
NGCDF Act, 2015, it did not unequivocally
settle the issues in dispute between the parties.
As such, there was live controversy between
the parties and therefore it was in the public
interest to have the questions that were raging
adjudicated and determined by the Court of
Appeal. The appeal before the Court of Appeal
was not moot
3. Applying a purposive interpretation, the
amendment in section 2 CDF (Amendment)
Act, 2013 of the touched on the main object
and purpose of the CDF Act, 2013, which
was to ensure that a specific portion of the
national annual budget was devoted to the
constituencies for inter alia community projects
and infrastructural development. Essentially,
the amendment had the effect of changing the
constitutional basis for the fund from being an
additional revenue to the county governments
from the National Government under article
202(2) of the Constitution; to transforming the
CDF into a fund of the National Government
under the consolidated fund established under
article 206(2) of the Constitution.
4. Some of the functions contemplated by
section 3 of the CDF Act, 2013, concerned
county governments. Therefore, the CDF
(Amendment) Act, 2013 should have been
tabled before the Senate in accordance with
27
 BB Issue 60, January - March 2023
article 96 of the Constitution for consideration.
5. While the concurrence of the Speakers of the
National Assembly and the Senate was significant
in terms of satisfaction of the requirements of
article 110(3) of the Constitution it did not by
itself oust the power of the court vested under
article 165(3)(d) of the Constitution where a
question regarding the true nature of legislation
in respect to article 110(1) was raised.
6. The CDF (Amendment) Bill, 2013 involved
matters concerning county governments and
therefore the Bill should have been tabled before
Senate for consideration, debate, and approval in
accordance with article 96 of the Constitution.
Failure to involve the Senate in the enacting of
the CDF (Amendment) Act, 2013, rendered
the CDF Act 2013 unconstitutional. The
Constitution did not create a federal State but a
unitary system of government that decentralized
key functions and services to the county unit.
7. Article 6(2) of the Constitution provided that
the governments at the national and county
levels were distinct and interdependent and
should conduct their mutual relations on
the basis of consultation and cooperation. In
addition, article 186(1) of the Constitution
stated that the functions and powers of the
National Government and county governments
would be as set out in the Fourth Schedule to
the Constitution.
8. Parliament was one of the arms of the
Government under the Constitution. It
consisted of the Senate and National Assembly.
The legislative remit of the National Assembly
fell under the National Government in the
vertical division of powers between the National
Government and the county governments. That
was evident from article 95 of the Constitution
which provided for the roles of the National
Assembly.
9. From article 95 of the Constitution, the
Constitution did not grant the National
Assembly the power to implement projects
as a service delivery unit at the county level.
Members of the National Assembly were
granted the mandate to legislate and oversight
the national revenue and its expenditure.
10. Article 1(4) of the Constitution stipulated that
the sovereign power of the people was exercised
at the national level and the county level. In
addition, the Constitution established the
county executive committee as the executive
authority in the county government. Article
28
179(1) of the Constitution stated that the
executive authority of the county was vested and
exercised by, a county executive committee. It
meant that the service delivery mandate, which
in its essence was an executive function, relating
to functions assigned to the county governments
ought to be exercised by the county executive
committee.
11. Members of National Assembly’s legislative
mandate was linked or tied to the National
Government and not the county governments.
Therefore, where a Member of the National
Assembly was allowed to play a role related
to functions vested in devolved units, then
that would compromise the vertical division
of powers between the National and County
governments.
12. The determinative phrase “community-based”
was not defined anywhere in the statute. A look
at the Fourth Schedule to the Constitution
(pursuant to the terms of article 186(1) of
the Constitution) that distributed functions
between the National Government and the
county governments, showed that it was the
county governments that were allocated most of
the functions and powers that could be said to
be community or local in orientation. Examples
of such functions and powers included those
relating to county health services, county
transport, trade development, county public
works and services, pre-primary education, and
village polytechnics, amongst others. In contrast,
to a large extent, the functions and powers of
the National Government with respect to most
of those functions related to policy formulation.
13. The approach in the Fourth Schedule to the
Constitution resonated with the principle of
subsidiarity which underpinned the division of
powers under devolved systems of Government.
Subsidiarity was the broad presumption that
sub-national governments ought to be assigned
those functions and powers which vitally affected
the life of the inhabitants and allowed the
development of Kenya in accordance with local
conditions of sub-national units, while matters
of national importance concerning Kenya as a
whole and overarching policy formulation were
assigned to the National Government.
14. The implementation of community-based
projects envisaged under section 22 of the CDF
Act, 2013, and the infrastructural development
projects envisaged under section 3 of the CDF
Act, 2013, would inevitably cover and target the
functions assigned to county governments.

15. The CDF did not amount to an inter-
governmental transfer of functions. The
Constitution paid keen attention to ensure
that the National Government did not usurp
the mandate of county governments by
specifying a clear process for the transfer of
functions from a county government to the
National Government. Article 187(1) of the
Constitution stipulated that a function or power
of government at one level could be transferred
to a government at the other level by agreement
between the governments.
16. The instant dispute subject did not involve the
transfer of functions by agreement between
governments as contemplated under article
187(1) of the Constitution. Instead, it was a
dispute about alleged constitutionally forbidden
encroachment by an agency of the National
Government onto the terrain of the county
governments.
17. Under article 1(4) of the Constitution, the
sovereign power of the people was exercised
at the national level and the county level. The
functions of service delivery which was the
character and nature of community-based
projects targeted by the CDF Act, 2013, were
by nature Executive functions. Accordingly,
by nature they would be discharged by the
Executive structures of the appropriate level of
Government in terms of article 1(3) (b) of the
Constitution which vested Executive functions
in the National Executive and the executive
structures in the county governments.
18. The constituency as conceptualized in
the Constitution was tied to political
representation. Throughout the Constitution,
the idea of constituency whenever it was
used was linked to being an electoral unit for
political representation. In its true essence, a
constituency was a form of territorial districting
that defined how voters were grouped for the
election of Members of Parliament and were not
conceptually envisaged to be service delivery
units.
19. The role that a constituency as an electoral
unit discharged and its place within the
constitutional scheme was tied to the functions
constitutionally vested in the Member of the
National Assembly. That role was a legislative
role and not a service delivery mandate. The
constituency under the constitutional scheme
was tied to the election of representatives to the
Legislature and representation of the people of
the constituency at the National Assembly.
BB Issue 60, January - March 2023
20. The decentralization of service delivery had to be
undertaken within the confines of the structures
of the National Government or county
governments, not parallel to the two levels of
Government. Therefore, the court saw a third
or parallel structure of Government as altering
the basic premises of the system of Government
created by the Constitution and as distorting
the devolved structure of Government. That
was more so in a context such as the CDF
fund which had the effect of creating structures
that were incompatible with the nature of the
distribution of functions between the two levels
of Government. The CDF Act, 2013, violated
the division of functions between the national
and county levels of Government.
21. In interpreting article 202(1) of the Constitution
which stipulated that revenue raised nationally
should be shared equitably among the National
and County Governments, the court needed to
bear in mind a key concern behind the enactment
of the provision was to ensure the optimal
funding and working of the devolved system
of government. In addition, a harmonious
interpretation of the Constitution as one whole.
Pursuant to that interpretive approach article
218(1)(a) of the Constitution provided for the
manner of enacting the Division of Revenue
Bill. It provided that a Division of Revenue Bill,
should divide revenue raised by the National
Government among the national and county
levels of Government in accordance with the
Constitution.
22. What was contemplated by articles 202(1)
and 218(1)(a) of Constitution was that
revenue raised nationally was all the revenue
accruing from all the revenue-raising powers
of the National Government. Revenue raised
nationally was synonymous with what was
termed equitable share and was allocated
between the two levels of Government. Prior
to allocation, the revenue was not yet available
to the National Government to allocate to its
agencies. Only after the National Government
had received its portion of the equitable share
under the Division of Revenue Act as envisaged
in article 218(1)(a), would be in a position to
allocate funds to agencies and instrumentalities
falling under its mandate.
23. The National Government and county
governments were the only entities entitled
to participate in the vertical division of the
revenue raised nationally. To allow an agency of
the National Government or a third structure
whose location within the constitutional system
29
 BB Issue 60, January - March 2023
was unclear to participate in the sharing of the
revenue raised nationally was a violation of not
only article 202(1) but also article 218(1)(a) of
the Constitution.
24. Section 4 of the CDF Act, 2013, violated the
provisions of the Constitution as it sought to
disrupt the revenue sharing formula by directly
allocating 2.5% of all the national revenue while
the Constitution required that the revenue
raised should be shared equitably among the
National and County Governments. If at all any
monies was to be deducted from the national
revenue, the money should be granted from
the National Government revenue as a grant
but not directly from the national revenue.
The CDF Act, 2013, violated the principles of
the division of revenue as stipulated in article
202(1) of the Constitution.
25. Article 201 of the Constitution expressed the
idea of responsible governance. It envisaged
that the two levels of Government would
manage fiscal resources prudently by putting in
systems that ensured that the implementation of
projects aimed at delivering a public good and
service was cost-effective. It also embodied the
desire for fiscal efficiency which spoke to the
need to eliminate wastages in service delivery
and provision of public good and service. It
meant that where it was a policy objective of the
Government to deliver a particular public good
or service then the system for delivery of that
policy objective should be designed in a manner
that ensured that public funds were not wasted
or abused.
26. There was a real threat of the CDF creating
confusion as to which project was being
implemented by which level of Government. In
addition, it created the prospect of duplication of
funding for the same project leading to wastage
of scarce public resources. It created a state of
lack of clarity as to which level of Government
was responsible for which particular project
therefore compromising on accountability.
27. While the court appreciated the concerns that
motivated the creation of the CDF and public
support for it, there were more effective ways of
decentralizing funding to the local level without
compromising on key constitutional principles
like those of public finance.
28. Even though the CDF (Amendment) Act,
2013 provided that the monies under the Act
should be considered as funds allocated under
article 206(2)(c) of the Constitution, under
section 10 of the CDF Act, 2013, the Cabinet
30
Secretary responsible for matters relating to the
CDF in allocating the fund for each financial
year had to seek concurrence of the relevant
parliamentary committee. That violated the
principles of accountability and integrity due
to likely conflict of interest. That was because
a Member of Parliament could not oversee
the implementation or coordination of the
projects and at the same time offer oversight
over the same projects. To that end, the CDF
as structured under the CDF Act, 2013,
violated the constitutional principles on public
finance, particularly the principle of prudent
and responsible management of public funds as
enshrined in article 201(d) of the Constitution.
29. The doctrine of separation of powers was a
fundamental principle of law that required the
three arms of Government to remain separate,
and that one arm of Government should not
usurp functions belonging to another arm.
article 1(3) of the Constitution delegated power
vertically and horizontally to State organs namely,
Parliament and the legislative assemblies in the
county governments, National Executive and the
executive structures in the county governments,
and Judiciary and the independent tribunals.
Therefore, the Constitution required that each
level of Government have both institutional and
functional distinctiveness from each other.
30. The impugned section 22(3)(c) of the CDF Act,
2013, envisaged that the Member of the National
Assembly was to appoint eight (8) of the ten
(10) members of the constituency development
fund committee. That was in addition to section
24(3)(f ) of the CDF Act, 2013, which made
the Member of the National Assembly an ex-
officio member of the committee. The Black’s
Law Dictionary defined an ex-officio member as
a member appointed by virtue or because of an
office and explained that an ex-officio member
was a voting member unless the applicable
governing document provided otherwise. As the
CDF Act, 2013, did not provide otherwise, a
Member of the National Assembly who was a
member of the committee by virtue of his office
as a Member of National Assembly was a voting
member.
31. It was the constituency development fund
committee that was vested with the responsibility
of initiating the process for identification and
prioritization of the projects, employment of
staff, allocation of funds to various projects,
the tabling of reports and monitoring the
implementation of the projects. Two of its
members were among the three signatories to
 BB Issue 60, January - March 2023

the bank account. The projects implementation separation of powers and the system of checks
committee which implemented the projects and balances would not be constrained given
works under its direction. Those were typical the absence of legislative oversight and therefore
service delivery mandates that fell within the would be prone to be abused. In effect, a fund that
constitutional mandate of the Executive branch. allowed personnel from the legislative branch
to exercise Executive powers was problematic
32. The power of appointment of the members of the
from a constitutional lens. In the context of the
constituency development fund committee and
case, the constitutional scheme on separation of
being an ex-officio member of the committee,
powers should be upheld given its implication
the Member of the National Assembly was in
for underlying constitutional values; that was
effective control of the constituency development
the maintenance of accountability and good
fund committee and that meant that he/
governance. Were the court to adopt a contrary
she influenced the selection, prioritization of
approach, even for the best of policy reasons,
projects, allocation of funds and also monitored
those constitutional values and principles would
the implementation of the projects. That meant
be eroded.
that the fund as conceived under the CDF Act,
2013, vested in the Legislature and its personnel 37. Given the constitutional scheme on separation
– being the Members of the National Assembly, of powers; members of legislative bodies, being
functions that typically fell within the nucleus, members of the National Assembly, senators,
core function, or pre-eminent domain of the county women representatives, and members
Executive branch. of county assemblies ought not to be involved
in the implementation of any service-based
33. The national values and principles idea of good
mandates which were a preserve of the Executive
governance and accountability represented the
branch. That was the only way to respect the
aspiration that a person in a position of public
constitutional scheme on separation of powers
trust should not make decisions regarding
and ensure that the legislators’ oversight
questions on which they had an interest. Put
mandate was not compromised through conflict
differently, all State and public officers should
of interest. Tolerating a contrary position
avoid conflict of interest in the discharge of
would harm the Constitution’s value system,
their mandate.
particularly the national values and principles
34. As conceived and structured under the CDF of accountable and good governance. The fund
Act, 2013, Members of the National Assembly as structured violated the vertical separation of
would have a personal interest or stake in the powers.
determination and implementation of projects
38. The fact that the CDF had been operational
by the fund in their constituencies. The
in Kenya since 2003 was not a good enough
perceived failure or success of the fund within
answer to the question on the constitutionality
their constituency would also influence their
of the fund in the post-2010 constitutional
prospects of re-election. What that state of affairs
dispensation. A fund directed at service
did, was that, it created a conflict of interest
delivery mandate could only be constitutionally
with the Member of Parliament’s oversight role.
complaint if structured in a manner that did
35. Given the constitutional edict in article 259(1) not entangle members of legislative bodies and
(a) and (d) that the Constitution should be legislative bodies in the discharge of the service
interpreted in a manner that promoted its delivery mandate however symbolic. Such funds
purposes, values, and principles, and contributed ought to be integrated and subsumed within the
to good governance. Adopting an interpretation structures of either the county executive or the
that allowed conflict of interest undermined National Executive.
the oversight role of the Legislature. Allowing
Appeal allowed; cross-appeal dismissed; each party to
legislators any role, even a merely ceremonial
bear their own costs.
role in discharging a mandate that belonged
to the Executive branch at either the national Order
or the county level, would promote conflict of
A declaration made that the Constituencies
interest and compromise their oversight role.
Development Fund Act, 2013 was unconstitutional.
Therefore, the CDF Act, 2013 violated the
values and principles of accountability and good
governance.
36. A fund operating outside the strictures of

31
 BB Issue 60, January - March 2023

Court of Appeal
The Employment and Labour Relations Court can determine constitutional issues
only if they arise from employer-employee disputes
National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil
Appeal 656 of 2022) [2023] KECA 80 (KLR) February 3, 2023 (Judgment)
Neutral citation: [2023] KECA 80 (KLR)
Court of Appeal at Nairobi
HM Okwengu, MA Warsame & JM Mativo, JJA
Reported by Kakai Toili

Jurisdiction – ingredients required to invest a court
with jurisdiction – jurisdiction of the Employment and
Labour Relations Court - jurisdiction to determine the
constitutionality of statutes - under what circumstance
could the Employment and Labour Relations Court
determine the constitutionality of statutes - where the
matter did not arise from an employer-employee dispute
- whether the Employment and Labour Relations Court
had jurisdiction to determine the constitutionality
of the National Social Security Fund Act, 2013 -
Constitution of Kenya, 2010, articles 162(1),(2)(a)
and (b) and 165(3)(d)(i); Employment and Labour
Relations Court Act, 2011, sections 12(1) (a)-(f ).
Jurisdiction – jurisdiction of the High Court vis a vis the
Employment and Labour Relations Court - jurisdiction
to determine the constitutionality of statutes - whether
a mixed bench of 3 judges from the High Court and the
Employment and Labour Relations Court could have
the jurisdiction to determine the constitutionality of the
National Social Security Fund Act, 2013.
Jurisdiction – jurisdiction of the Court of Appeal –
jurisdiction where there was an appeal on a substantive
matter and the court’s jurisdiction had been challenged
- what was the role of the Court of Appeal where
there was an appeal on a substantive matter and its
jurisdiction had been challenged.
Devolution – powers and functions of the National
Government vis a vis county governments - distinction
between overlap and concurrency of powers and
functions of the National and County Governments
- principles to be considered in determining whether
a matter fell within a particular National or County
Government jurisdiction - pith and substance test
- what was the nature of the pith and substance test
in national and county legislations - Constitution of
Kenya, 2010, articles 109 to 114, Fourth Schedule
parts 1 and 2.
Constitutional Law – constitutionality of statutes –
constitutionality of the National Social Security Fund
Act, 2013, - claim that the National Social Security
Fund Act, 2013 ought to have been considered by the
Senate before it was enacted - whether the National
Social Security Fund Act, 2013 was unconstitutional
for failure to involve the Senate in its enactment.
Words and Phrases - include - definition of include -
to contain as part of something. The participle typically
indicates a partial list.…including but not limited to
means the same thing - Black’s Law Dictionary 10th
Edition.
Words and Phrases - including - definition of
including - containing as part of the whole being
considered - Concise Oxford English Dictionary 12th
Edition.
Brief facts
The instant appeal was against the decision of the
Employment and Labour Relations Court (ELRC)
which declared the National Social Security Fund
Act, 2013 (NSSF Act, 2013 unconstitutional. The
appellant challenged the jurisdiction of the ELRC
to entertain consolidated petitions at the ELRC
challenging the constitutionality of the NSSF Act,
2013. The appellant argued that determining the
constitutionality of an Act of Parliament was a
preserve of the High Court. The appellant submitted
that; the ELRC wrongfully assumed jurisdiction
over a dispute falling within the High Court’s
domain; the consolidated petitions concerned the
constitutionality of the NSSF Act, 2013 and/or
specific sections of the Act; the petitions did not
disclose any employer-employee relationship to
invoke the jurisdiction of the ELRC; and that none
of the petitions raised a constitutional issue ancillary
to or incidental to the matters contemplated under
section 12(1) of the Employment and Labour
Relations Court Act, 2011, (ELRC Act).
The respondents argued that the petitions were
initially filed in the High Court but they were
transferred to the ELRC by the court on grounds

32

that social security and employment issues fell within
the jurisdiction of the ELRC. The respondents
further argued that the appellants never opposed
the transfer. The respondents claimed that the bulk
of the contributors to the funds established by the
NSSF Act, 2013 were employees and employers
who were subject to the Employment Act, 2007
and contributions to the fund was subject to the
existence of a contract of service.
The respondents submitted that in their petitions
at the ELRC, they questioned the constitutionality
of the NSSF Act, 2013 which imposed on them
additional liability by requiring employers to pay
enhanced contributions towards their employees’
account in the fund. Further, the petitioners
being representatives of employees questioned the
constitutionality of being made to pay enhanced
contributions because they had a contract of service
with various employers.
Issues
i. Whether the Employment and Labour
Relations Court had jurisdiction to determine
the constitutionality of the National Social
Security Fund Act, 2013.
ii. Under what circumstance could the
Employment and Labour Relations Court
determine the constitutionality of statutes?
iii. What were the ingredients required to invest a
court with jurisdiction to hear a matter?
iv. Whether a mixed bench of 3 judges from the
High Court and the Employment and Labour
Relations Court could have the jurisdiction to
determine the constitutionality of the National
Social Security Fund Act, 2013.
v. Whether the National Social Security Fund Act,
2013 was unconstitutional for failure to involve
the Senate in its enactment.
vi. What were the principles to be considered
in determining whether a matter fell within a
particular National or County Government
jurisdiction?
vii. What was the nature of the pith and substance
test in national and county legislations?
viii. What was the distinction between overlap and
concurrency of powers and functions of the
National and County Governments?
ix. What was the role of the Court of Appeal where
there was an appeal on a substantive matter and
its jurisdiction had been challenged?
Relevant provisions of the law
Employment and Labour Relations Court Act,
2011
Section 12 - Jurisdiction of the Court
(3) In exercise of its jurisdiction under this Act, the
BB Issue 60, January - March 2023
Court shall have power to make any of the following
orders:
(i) interim preservation orders including injunctions
in cases of urgency;
(ii) a prohibitory order;
(iii) an order for specific performance;
(iv) a declaratory order;
(v) an award of compensation in any circumstances
contemplated under this Act or any written law;
(vi) an award of damages in any circumstances
contemplated under this Act or any written law;
(vii) an order for reinstatement of any employee within
three years of dismissal, subject to such conditions as
the Court thinks fit to impose under circumstances
contemplated under any written law; or
(viii) any other appropriate relief as the Court may
deem fit to grant.
Held
1. The Constitution left it to Parliament to
determine the jurisdiction and functions of
the courts contemplated in article 162(1) and
(2). Pursuant to article 162(3), Parliament
enacted the. The preamble to the Act provided
that it was an Act of Parliament to establish
the Employment and Labour Relations Court
(ELRC) to hear and determine disputes relating
to employment and labour relations and for
connected purposes.
2. Section 12(1)(a)-(j) of the ELRC Act provided
for the jurisdiction of the court. Despite the
clear-cut jurisdictional demarcation prescribed
by the Constitution and section 12(1)(a)–
(j) of the ELRC Act and numerous judicial
pronouncements by the superior courts
defining the jurisdiction of courts of equal
status, there appeared to be hitches either in the
understanding of the scope of the jurisdiction
of the specialized courts or the application of
the law and precedents to specific facts or both.
3. When there was an appeal on the substantive
matter to the Court of Appeal and the issue of
jurisdiction was raised, (as in the instant case),
the Court of Appeal should first make a finding
on jurisdiction. But, if it found that it had no
jurisdiction, it was prudent to go ahead and
say so and give a considered judgment on the
substantive matter. That was so because as the
penultimate court it had to make its decision on
the substantive appeal known should an appeal
to the apex court ensue.
4. A mixed bench of 3 judges from the High Court
and the ELRC could not have been properly
constituted or possess the requisite jurisdiction.
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 BB Issue 60, January - March 2023
Jurisdiction was a threshold matter which went
to the competence of the court to hear and
determine a suit. Jurisdiction could be raised at
any stage of the proceedings in the High Court,
on appeal and even in the Supreme Court for
the first time. It could be raised by any of the
parties or by the court, and once raised the
court would do well to examine it and render a
considered ruling on it.
5. Jurisdiction, a mantra in adjudication connoted
the authority or power of a court to determine
a dispute submitted to it by contending parties
in any proceeding. A court of law was invested
with jurisdiction to hear a matter when:
a. it was properly constituted as regards
numbers and qualifications of members of
the bench, and no member was disqualified
for one reason or another;
b. the subject matter of the case was within
its jurisdiction, and there was no feature in
the case which prevented the court from
exercising its jurisdiction; and
c. the case came before the court initiated by
due process of law, and upon fulfilment of
any condition precedent to the exercise of
jurisdiction.
6. The above three ingredients had to co-exist in
order to infuse jurisdiction in a court. Where
a court was drained of the jurisdiction to
entertain a matter, the proceedings flowing
from it, no matter the quantum of diligence,
dexterity, artistry, sophistry, transparency and
objectivity injected into it, would be marooned
in the intractable web of nullity.
7. The promulgation of the Constitution and
the enactment of the ELRC Act marked a
watershed moment in the resolution of labour
and employment disputes in Kenya because it
brought about immeasurable advancement in
the jurisdiction and powers of the ELRC. The
ELRC Act not only resolved the question of the
jurisdiction and status of the ELRC as a superior
court of record, but it also established the court
as the prime and exclusive judicial body for
the resolution of all labour, employment and
industrial relations disputes in Kenya. In terms
of subject matter, the ELRC was a court of
limited jurisdiction. It could not entertain any
matter outside the prescribed subject matter
area.
8. The jurisdiction of the courts of equal status was
jealously guarded by the Constitution. Article
34
165(5)(b) of the Constitution in peremptory
terms provided that the High Court did not have
jurisdiction in respect of matters falling within
the jurisdiction of the courts contemplated in
article 162(2) of the Constitution.
9. In terms of the Constitution, the ELRC was
constrained in its decision-making power by the
supremacy of the Constitution (article 162(a))
and the rule of law. It was further constrained
by legislation (section 12 (1) (a)-(f )) of the
ELRC Act, the common law, precedents
and procedural rules. When examining the
jurisdiction conferred on the ELRC by section
12(1) (a)-(f ), the word “includes” had to be
borne in mind. However, there could not be any
inflexible rule that the word “includes” should
be read always as a word of extension without
reference to the context.
10. The key to the opening of every law was the
reason and spirit of the law — it was the animus
imponentis, the intention of the law-maker,
expressed in the law itself, taken as a whole.
Hence, to arrive at the true meaning of any
particular phrase in a statute, that particular
phrase was not to be viewed detached from its
context in the statute. It was to be viewed in
connection with its whole context as well as the
title and preamble of the statute.
11. It was to the preamble that the court was to
look for the reason or spirit of every statute;
rehearsing that, as it ordinarily did, the evils
sought to be remedied, or the doubts purported
to be removed by the statute, and so evidencing,
in the best and most satisfactory manner, the
object or intention of the Legislature in making
and passing the statute itself. However, two
propositions were quite clear a preamble could
afford useful light as to what a statute intended
to reach and if an enactment was itself clear and
unambiguous, no preamble could qualify or cut
down the enactment.
12. The issue under consideration in the petitions
was the constitutional validity of a statute
and or some specific provisions of the NSSF
Act, 2013. The constitutional validity of the
statute or the targeted provisions did not arise
from an employer-employee dispute. The
intention of Parliament was clear both from the
preamble and section 12(1)(a)-(f ). The ELRC
Act was enacted to resolve employer-employee
disputes as provided by article 162(a) of the
Constitution. That was the purpose and context
which could not be ignored in interpreting

provisions of the ELRC Act. Decided cases were
in agreement that constitutional issues could be
determined by the ELRC only if they arose from
an employer-employee dispute. The germane
issue framed by the ELRC did not arise in an
employer-employee dispute nor did it fall under
section 12(1)(a)-(f ).
13. The Constitution should always be the point
of reference by any court while adjudicating
disputes. The ELRC failed to appreciate that a
claim questioning constitutional validity of a
statutory provision was not merely an ancillary
claim to the issue before it nor did the issue arise
during the adjudication of the dispute (which
in any event was not an employer-employee
dispute). The germane issue which was identified
by the court as early as at paragraph one of its
judgment was a substantive claim brought
under article 165(3)(d)(i) of the Constitution.
That was a stand-alone issue not emanating
from a dispute under section 12(1) (a)-(f ) of the
ELRC Act.
14. The words “including” or “connected thereto”
could not be deployed to swallow such a
substantive issue so as to justify invocation of
other claims. While enacting the provisions of
article 165(3)(d)(i) of the Constitution which
conferred on the High Court the jurisdiction to
hear any question respecting the interpretation
of the Constitution including the determination
of the question whether any law was inconsistent
with or in contravention of the Constitution,
the drafters of the Constitution were not acting
on a clean slate. They had before them cognate
provisions of articles 162(1)(2)(a) and (b) and
(3) of the Constitution.
15. Having identified the germane issue before it
as early as at paragraph 1 of the judgment, the
ELRC fell into a grave error when it failed to
appreciate that the issue before it fell within the
jurisdiction of the High Court as prescribed
by article 165(3)(d)(i) of the Constitution.
Further, the bench fell into error when it failed
to appreciate that authorities were replete on the
following positions;-
a. the constitutional issues had to arise from
an employer-employee dispute for the
ELRC to assume jurisdiction; and
b. employment cases were not the appropriate
mechanism for the ventilation of grievances
of litigant’s constitutional issues except
where the issues arose in an employer-
employment dispute.
BB Issue 60, January - March 2023
16. The ELRC failed to appreciate that jurisdiction
was determined on the basis of pleadings before
consideration of the substantive merits of the
case. The petitions challenged the constitutional
validity of the legislative process leading to
enactment of a legislation and or some of its
provisions. The instant matter was not an
employer-employee dispute. The ELRC failed
to appreciate that laws affected many things in
a variety of ways, large and small, but those side
winds did not determine what matter a law was
in relation to. That was determined by analyzing
the central focus of the law, what it was really
all about. In order to analyze what matter a
challenged law was “in relation to” the court had
to separate it from matters incidentally affected
by the law. The bench failed to appreciate that
crucial separation.
17. From a reading of articles of 162(1), (2)(a) and
(b) and (3) and 165 (3) (d)(i) of the Constitution
and section 12 (1) (a)-(f ) of the ELRC Act and
the germane issue before the ELRC, the ELRC
wrongfully assumed jurisdiction. Parties could
not by consent confer jurisdiction on a court,
which it did not have by virtue of its enabling
statute. When it came to determining the issue
of jurisdiction, a court could not be influenced
by sympathy. Where the statute creating a court
conferred it with jurisdiction over a limited
subject matter, it could only entertain any such
claim that fell within the purview of the subject
matter.
18. If proceedings were conducted by a court
without jurisdiction, they were a nullity. Any
award or judgment and or orders arising from
such proceedings of a court acting without
jurisdiction were also a nullity. The plea by
counsel of the respondents that in the event the
court finds the ELRC had no jurisdiction, the
matter to be referred back to the High Court
was undesirable. In any event, the parties were
given an opportunity to address the court on
the question of jurisdiction after the directions
by the Chief Justice. That was the opportune
moment to make such a plea. Instead, the
parties fiercely defended their respective
positions on jurisdiction, then came the court
ruling affirming its jurisdiction.
19. The legislative competence conferred to both
Houses of Parliament and the procedure for
enacting legislation was provided for under
article 109 of the Constitution. Basically, any
Bill could originate from the National Assembly
(article 109(2) of the Constitution). A Bill not
35
 BB Issue 60, January - March 2023

concerning county government was considered were a function expressly conferred to the
only in the National Assembly, and passed in National Government.
accordance with article 122 of the Constitution
23. In order to determine whether authority to
and the Standing Orders of the Assembly
enact a particular piece of legislation vested only
(article 109(3) of the Constitution. A Bill
in the National Assembly or concurrently in
concerning county government could originate
the National Assembly and the Senate, it was
in the National Assembly or the Senate, and
necessary to determine whether the legislation
was passed in accordance with articles 110 to
in question was a legislation with regard to
113, 122 and 123 of the Constitution and the
a matter concerning county governments
Standing Orders of the Houses (article 109(4)
that fell within a functional area listed in the
of the Constitution).
Fourth Schedule part 2 of the Constitution.
20. Article 110(1)(a) of the Constitution defined Where the legislation fell within the functions
Bills concerning counties as Bills which had in the Fourth Schedule, there was no difficulty
provisions affecting the functions and powers determining whether it was a matter concerning
of the county governments as set out in the the county governments. Difficulties could only
Fourth Schedule to the Constitution; Bills arise where the legislation fell outside any of the
which related to the election of members of matters covered in the Fourth Schedule and the
the county assembly or county executive; court was invited to determine whether it was
and Bills referred to in Chapter Twelve of the a matter for the National Assembly or county
Constitution affecting the finances of the county governments. Even then, in such situations,
governments. That was a very broad definition courts had come up with a test.
which created room for the Senate to participate
24. Pith and substance was a legal doctrine in
in the passing of Bills in the exclusive functional
constitutional interpretation used to determine
areas of the national level of Government for as
under which head of power a given piece of
long as it could be shown that such Bills had
legislation fells. In the case of national legislation,
provisions affecting the functional areas of the
the application of the pith and substance test to
county governments.
legislative competence could lead to a conclusion
21. The Fourth Schedule to the Constitution that the Bill’s pith and substance placed it
distributed functions between the National wholly within functional areas of the National
Government and the county governments. Parts Government, even though certain provisions
1 and 2 of the Fourth Schedule provided the of the Bill (which for that purpose would be
functional areas of the National Government viewed as ancillary or incidental) fell within
and county governments respectively. However, the functional areas of county governments (an
the list in parts 1 and 2 of the Fourth Schedule exclusive county government competence).
did not provide a detailed definition of the
25. In the case of county legislation, the pith and
functional areas.
substance test could lead to a conclusion that the
22. Considerable overlap between the functional Bill’s pith and substance placed it wholly within
areas assigned to the two levels of Government the fourth schedule part 2 of the Constitution
could lead, in practice, to an overlap of functions, even though certain provisions of the
powers and functions. Overlap was distinct Bill (again viewed for that purpose as ancillary
from concurrency. Within the meaning of the or incidental) could fall outside the Fourth
Constitution, concurrency of powers referred to Schedule part 2.
the existence of the same powers over the same
26. If a statute was found in substance to relate to a
functional areas. Overlap of functions, on the
topic within the competence of the Legislature,
other hand, occurred where more than one level
it should be held to be intra vires even though
of Government had authority (be it legislative,
it could incidentally trench on topics not
Executive, or both) over the same functional
within its legislative competence. The extent
area. A function was the responsibility to
of the encroachment on matters beyond its
perform a role and deliver a given service. Any
competence could be an element in determining
function that was not explicitly assigned to any
whether in the guise of making a law on a
of the two levels was a National Government
matter within its competence, the Legislature
responsibility. Under part 1 of the Fourth
was, in truth, making a law on a subject beyond
Schedule to the Constitution, standards for
its competence. However, where that was not
social security and professional pension plans

36

the position, the fact of encroachment did not
affect the vires of the law even as regards the area
of encroachment.
27. Purpose was relevant to determine whether,
in the instant case, Parliament was legislating
within its jurisdiction, or venturing into an
area under county government jurisdiction.
The legal effect referred to how the law would
affect rights and liabilities, and was also helpful
in illuminating the core meaning of the law.
The effects could also reveal whether in form,
the law appeared to address something within
the Legislature’s jurisdiction, but in substance,
it dealt with a matter outside that jurisdiction.
28. Two major principles were used in determining
whether a matter fell within a particular national
or county government jurisdiction:
a. the Constitution had to be interpreted
flexibly to meet social, political and historic
realities.
b. The principle of devolution had to be
respected, keeping in mind power was
shared by two levels of Government, each
autonomous in developing policies and
laws within their own jurisdiction.
29. One would have expected the ELRC to
undertake a pith and substance analysis to
satisfy themselves on the true character of the
legislation under challenge. That crucial analysis
was not done. The ELRC did not engage in
any interpretation of articles 109 to 114 of the
Constitution. Instead it based its conclusions
on the Supreme Court Advisory Opinion
Reference No 2 of 2013 without interrogating
the peculiar facts before it so as to satisfy itself
that the advisory opinion was relevant to the
issues before it. A case was only an authority for
what it decided. It was not meant to be a general
proposition for the entire law.
30. The ELRC not only failed to analyze the
provisions of articles 109 to 114 of the
Constitution, the clear provisions of parts 1 and
2 of the Fourth Schedule to the Constitution
which defined the functional areas of both levels
of the Government, but it also ignored several
decisions of the court which had interpreted
those articles. The bench fell into a grave error
by failing to establish the true character of the
legislation before it so as to satisfy itself that
the legislation affected functions of the county
government.
31. The jurisdiction of the Senate did not extend
BB Issue 60, January - March 2023
to each and every legislation passed by the
National Assembly. To so hold would render
article 110 of the Constitution redundant
since it was difficult to think of any law that
did not touch on counties. Although the Fourth
Schedule to the Constitution gave a wide array
of functions to the counties, it was incumbent
upon the person who alleged noncompliance
with article 110 to demonstrate that the law in
question concerned county governments.
32. It was a cardinal principle of law
that legislative enactments enjoyed a
presumption of constitutional validity. That
presumption operated until the person
alleging unconstitutionality dislodged it by
demonstrating the alleged unconstitutionality.
The ELRC erred by failing to appreciate that the
parties citing the alleged unconstitutionality did
not rebut that presumption.
33. Article 110(3) of the Constitution only applied
to Bills concerning counties and it was to those
Bills alone that the concurrence process would
be subjected. The extent of the legislative role
of the Senate could only be fully appreciated if
the meaning of the phrase concerning counties
was examined. The ELRC failed to appreciate
that the impugned legislation had no provisions
affecting the functional areas of the county
governments as listed in part 2 of the Fourth
Schedule to the Constitution.
34. The exclusive powers of the counties related
to matters which could be regulated within
the counties. The impugned Act related to
a function which exclusively fell under the
National Government functions. None of the
objects of the Bill touched on the functional
areas assigned to the county government. The
ELRC erred in law by holding the concurrence
of the Senate and the National Assembly was
required in enacting the impugned legislation.
The decision declaring the NSSF Act, 2013,
unconstitutional for failure to involve the Senate
in its enactment was not supported by the law.
35. Even after declaring the entire statute
unconstitutional, the ELRC went further and
declared specific sections of the NSSF Act, 2013
as unconstitutional. Having declared the entire
Act as unconstitutional, the inquiry ended
there. Any further proceedings or declarations
served no utilitarian value because the statute
was no longer law. It was absolutely unnecessary
for the ELRC to deploy the much-needed
energy to determine the constitutional validity
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 BB Issue 60, January - March 2023

of provisions of a statute it had already nullified.
In any event, the prayers touching on those
sections were alternative prayers, and it was not
proper to grant alternative prayers after allowing
the main prayer.
Appeal allowed; the entire judgment and all the
consequential orders of the ELRC was set aside; each
party to bear its own costs for the appeal.

There is need for urgent intervention by way of legal reforms or determination by

the Supreme Court on the constitutional validity of the mandatory death penalty in
capital offences other than the offence of murder
Katana & another v Republic (Criminal Appeal 8 of 2019) [2022] KECA 1160 (KLR) October 21, 2022
(Judgment)
Neutral citation: [2022] KECA 1160 (KLR)
Court of Appeal at Malindi
SG Kairu, P Nyamweya & JW Lessit, JJA
Reported by Kakai Toili

Constitutional Law - constitutional validity of
mandatory death sentences - constitutional validity
of mandatory death sentences in other capital offences
other than the offences of murder - where the Supreme
Court had already made a determination on the
constitutionality of the death sentence in murder cases
- whether the decision of the Supreme Court on the
constitutional validity of the mandatory death sentence
in the offence of murder was applicable to other capital
offences.
Criminal Procedure - identification parades - conduct
of identification parades - whether an identification
parade was necessary where the witness was positively
confident at the time of commission of the crime as
to the identity of the perpetrator of the offence - what
were the circumstances to be considered in determining
whether the identification of an accused person by a
witness met the positive threshold.
Criminal Law - defences - defence of alibi - where
an accused in robbery with violence case pleaded the
defence of alibi - what was the nature of the defence of
alibi in criminal matters and who bore the burden of
proving the falsity of an accused’s defence.
Constitutional Law - fundamental rights and
freedoms - right to fair hearing - right to legal
representation in criminal proceedings - what was
the operative circumstance that triggered the necessity
of legal representation in criminal proceedings -
Constitution of Kenya, 2010, articles 50(2)(g) and (h).
Jurisdiction - jurisdiction of the Court of Appeal -
jurisdiction to vitiate a High Court’s decision on the
basis of an issue that was not raised at the High Court
- whether the Court of Appeal could vitiate a High
Court’s decision on the basis of an issue that was not
raised at the High Court.
Brief facts
The appellants were jointly convicted for the offence
of robbery with violence contrary to section 295
as read with section 296(2) of the Penal Code and
sentenced to death by the Chief Magistrates Court
(trial court). The appellants were dissatisfied with
the decision of the trial court and appealed to the
High Court on among other grounds; that their
defences were not considered and that the death
sentence was not safe. The High Court upheld the
trial court’s decision and held that the death sentence
was the only sentence for the offence of robbery with
violence.
The appellants were dissatisfied with the High
Court’s decision and thus filed the instant appeal.
The appellants filed the appeal on among other
grounds that they were denied the right to a fair
trial by proceeding with the trial without ensuring
that the appellants were provided and or afforded
the assistance of an advocate; and by imposing the
mandatory death sentence which they argued was an
unconstitutional sentence. The appellants therefore,
sought for, among others, the quashing of the
conviction and sentence.
Issues
i. Whether the decision of the Supreme Court
on the constitutional validity of the mandatory
death sentence in the offence of murder was
applicable to other capital offences.
ii. What were the circumstances to be considered
in determining whether the identification of an
accused person by a witness met the positive
threshold?
iii. Whether an identification parade was necessary
where the witness was positively confident at
the time of commission of the crime as to the
identity of the perpetrator of the offence.
iv. What was the nature of the defence of alibi in

38

criminal matters and who bore the burden of
proving the falsity of an accused’s defence of
murder?
v. What was the operative circumstance that
triggered the necessity of legal representation in
criminal proceedings?
vi. Whether the Court of Appeal could vitiate a
High Court’s decision on the basis of an issue
that was not raised at the High Court.
Held
1. The instant matter was a second appeal. By dint
of the provisions of section 361 of the Criminal
Procedure Code, the court was enjoined to
consider only matters of law. The court could
not interfere with the decision of the superior
court on facts unless it was demonstrated that
the trial court and the first appellate court
considered matters they ought not to have
considered or that they failed to consider matters
they should have considered or that looking at
the evidence as a whole they were plainly wrong
in their decision, in which case such omission or
commission would be treated as matters of law.
2. The evidence relating to identification had to
be scrutinized carefully, and should only be
accepted and acted upon if the court was satisfied
that the identification was positive and free
from the possibility of error. The surrounding
circumstances had to be considered. The relevant
circumstances to be considered in determining
whether the identification by a witness met the
positive threshold were as follows:
a. The length of time the witness had the
accused under observation and in what
distance and light.
b. Whether the observation by the witness was
impeded in any way.
c. Whether the witness had ever seen the
accused before, and if so, how often.
d. The length of time that elapsed between
the original observation and the subsequent
identification to the police.
e. Whether there was any material discrepancy
between the description given by the witness
and the actual appearance of the accused.
3. The High Court considered the circumstances
of the appellants’ identification. The source
of information as regards the presence of the
appellants at the hospital was immaterial and of
no legal consequence, since the appellants had
already been positively identified by PW1 and
PW2 during the commission of the offence. An
identification parade was not necessary where
the witness was positively confident at the time
BB Issue 60, January - March 2023
of commission of the crime as to the identity
of the perpetrator of the offence, and would
only become necessary where the victim of
the crime did not know the accused before his
acquaintance with him during the commission
of the offence or identification was made under
difficult circumstances such that the witness
could have made a mistake.
4. An alibi defence arose when a person charged
with an offence said that he was not at the
scene of crime at the time the alleged offence
was committed and was somewhere else and
therefore was not the person who committed
the offence. The burden of proving the falsity, if
at all, of an accused’s defence of alibi lay on the
prosecution.
5. PW1 and PW2 positively placed the appellants
at the scene of the crime, and testified that the
date was March 13, 2014, the time was at 10
am and the scene was Ganda on the way to
Malindi. That evidence, was not controverted
by the appellants’ evidence. The appellants’
defence evidence did not raise any doubts on
the prosecution’s case. The High Court did not
err in its evaluation of the evidence or make any
wrong findings of fact and law in upholding the
appellants’ conviction.
6. The operative circumstance that triggered the
necessity of legal representation in criminal
proceedings arising from the examination of
articles 50(2)(g) and (h) of the Constitution
and decisions of the court was where substantial
injustice would occur arising from the
complexity and seriousness of the charge against
the accused person or and the incapacity and
inability of the accused person to participate
in the trial. It should be standard practice in
every criminal trial for the accused person to
be informed, at the onset, of his right to legal
representation since the Constitution demanded
it.
7. The issue of a violation of the right to a fair trial
was not raised by the appellants in their appeal
before the High Court, and therefore could
not be the basis for vitiating the High Court’s
decision. Be that as it may, the record of the trial
court showed that the appellants indicated they
were ready to proceed with the trial, actively
participated in the trial and cross-examined all
the witnesses, and it was not evident that they
suffered any or any substantial injustice. There
was no merit in the appellants arguments that
their rights to a fair trial on under articles 50(2)
39
 BB Issue 60, January - March 2023

(g) and (h) of the Constitution were violated. and the instant court was therefore precluded
from addressing that issue on appeal. By the time
8. On July 6, 2021 the Supreme Court in Francis
the trial court and High Court were delivering
Karioko Muruatetu & another v Republic; Katiba
their decisions on June 11, 2015 and August
Institute & 5 others (Amicus Curiae) (2021)
31, 2016 respectively, the Supreme Court had
eKLR (Muruatetu II) directed in respect of other
not delivered the decision in Muruatetu I on
capital offences such as treason under section
the constitutionality of the mandatory death
40(3), robbery with violence under section
sentence, which decision was delivered on
296(2) and attempted robbery with violence
December 14, 2017, whereupon the appellants
under section 297(2) of the Penal Code, that
filed their memorandum of appeal in October
a challenge on the constitutional validity of the
2018.
mandatory death penalty in such cases should
be properly filed, presented, and fully argued 11. Under the doctrine of stare decisis , which was
before the High Court and escalated to the applied by article 163(7) of the Constitution, the
Court of Appeal, if necessary, at which a similar court was bound by the decision of the Supreme
outcome as that in that case could be reached. Court in Francis Karioko Muruatetu & another
Francis Karioko Muruatetu & Another v Republic v Republic; Katiba Institute & 5 others (Amicus
[2017] eKLR (Muruatetu I) as it stood could Curiae) (2021) eKLR (Muruatetu II). The
not directly be applicable to those cases. outcome of the instant case, predicated upon
Muruatetu II, was unfair and disproportionate,
9. The Supreme Court clarified that its decision in
in light of the rationale by the Supreme Court
2017 in the Muruatetu I case applied only in
for declaring the mandatory death sentence
respect to sentences under sections 203 as read
unconstitutional in Muruatetu I. There was need
with section 204 of the Penal Code and did not
for urgent intervention in that regard by way of
invalidate mandatory sentences or minimum
the necessary legal reforms, or determination
sentences in the Penal Code, the Sexual Offences
by the Supreme Court regarding constitutional
Act or any other statute.
validity of the mandatory death penalty in such
10. The appellants did not raise the issue of the cases as the instant one.
constitutionality of the death sentence imposed
Appeal dismissed.
upon them in their appeal to the High Court,

Section 12D of the Income Tax Act on minimum tax violates tax payers’ rights to fair
treatment and dignity
Kenya Revenue Authority v Waweru & 3 others; Institute of Certified Public Accountants & 2 others
(Interested Parties) (Civil Appeal E591 of 2021) [2022] KECA 1306 (KLR) (December 2, 2022)
(Judgment)
Neutral citation: [2022] KECA 1306 (KLR)
Court of Appeal at Nairobi
DK Musinga, HA Omondi & KI Laibuta, JJA
Reported by Kakai Toili

Statutes – interpretation of statutory provisions –
interpretation of section 12D of the Income Tax Act
– where section 12D provided for the introduction of
minimum tax at the rate of 1% of the gross turnover –
claim that section 12D had the potential of subjecting
taxpayers to double taxation and loss-making businesses
to payment of taxes from their capital – factors to consider
in determining whether there was double taxation -
whether section 12D amounted to subjecting taxpayers
to double taxation - claim that section 12D failed to
take into consideration the circumstances under which
tax payers found themselves in a loss-making position
– whether levying of minimum tax on gross turnover
would lead to a loss making taxpayer bearing a heavier
burden than other taxpayers contrary to article 201 of
the Constitution on the principles of public finance –
whether the minimum tax under section 12D violated
the right to fair treatment and dignity of taxpayers in
loss making positions - Constitution of Kenya, 2010,
articles 28 and 201; Income Tax Act, Cap 470, section
12D.
Brief facts
The Finance Bill, 2020 included an amendment to
the Income Tax Act at section 12D, introducing
the minimum tax. The amendment provided for
the minimum tax at the rate of 1% of the gross
turnover. To implement the impugned amendment,
the appellant published Guidelines on Minimum
Tax whose central feature was the definition of

40

gross turnover. Aggrieved by the amendment to
the legislation, two petitions were instituted by the
1st and 2nd respondents at the trial court.
The petitions sought declarations that: section 12D
of the Income Tax Act was illegal and contrary
to the provisions of articles 10, 27, 40, and 46 of
the Constitution of Kenya, 2010,Constitution
and that under section 3 as read with section 15
of the Income Tax Act, the taxable income was the
net income after deduction of expenditure wholly
and exclusively incurred in the production of that
income. The appellant, the 3rd and 4th respondents
opposed the petition and argued that the process
of the enactment of the impugned legislation met
the constitutional and procedural threshold; that it
did not create any ambiguity; and that it was not
discriminatory.
The trial court declared section 12D of the Income
Tax Act null and void as it violated article 201(b)
of the Constitution; and that failure to comply
with the Statutory Instruments Act, rendered
the Guidelines on Minimum Tax void. Accordingly,
the trial court granted an order of prohibition
restraining the implementation, administration or
enforcement of the contested amendment on the
following grounds: that the imposition of the tax
had the potential of subjecting people to double
taxation and that the amendment unfairly targeted
businesses which were in genuine loss making
positions, to pay taxes from their capital rather than
from their profits while placing thriving businesses
at an advantage. Aggrieved, the appellant filed the
instant appeal.
Issues
i. What were the factors to consider in determining
whether there was double taxation?
ii. Whether section 12D of the Income Tax Act
which provided for introduction of minimum
tax amounted to subjecting taxpayers to double
taxation.
iii. Whether levying of minimum tax on gross
turnover would lead to a loss-making tax payer
bearing a heavier burden than other taxpayers
contrary to article 201 of the Constitution on
the principles of public finance.
iv. Whether the minimum tax under section 12D
of the Income Tax Act violated the right to fair
treatment and dignity of taxpayers in loss making
positions by failing to take into consideration
the circumstances under which taxpayers found
themselves in loss-making positions.
Relevant provisions of the Law
Income Tax Act, Cap 470
Section 12D –
BB Issue 60, January - March 2023
Minimum tax
(1) Notwithstanding any other provision of this Act, a
tax to be known as minimum tax shall be payable by
a person if —
(a) that person’s income is not exempt under
this Act;
(b) that person’s income is not chargeable to
tax under sections 5, 6A, 12C, the Eighth or
the Ninth Schedules; or
(c) the instalment tax payable by that person
under section 12 is lower than the minimum
tax.
(2) The tax payable under this section shall be paid in
instalments which shall be due on the twentieth day
of each period ending on the fourth, sixth, ninth and
twelfth month of the year of income.
Held
1. The court’s mandate on a first appeal as set out
in rule 29(1) of the Court of Appeal Rules,
2022 required the court to reappraise the
evidence and to draw its own conclusions.
2. On the issue of double taxation, the trial court
did not set out which two taxes were of a similar
nature, imposed on the same income and in the
same period to justify the conclusion of double
taxation. The trial court only noted that the
imposition of minimum tax had the possibility
of double taxation, the key word there being
“possibility”, but, nowhere in its judgment
did the court show that possibility of double
taxation.
3. Section 12D of the Income Tax Act eliminated
the possibility of the same income being taxed
twice, as it excluded a person who had already
remitted minimum tax pursuant to section 12D,
which effectively excluded such a person from
corporation tax or taxation under section (2)(a)
(i) of the Income Tax Act. On the other hand,
if a loss making entity subsequently moved to a
profit making position, then section 12(3) and
(4) of the Act set in, thereby eliminating any
possibility of double taxation.
4. The trial court ought to have considered the
nature of the tax, the circumstances under which
it was levied, and the period in which it was
levied. The trial court misconstrued the manner
in which the tax was to be effected; considered
the sole issue of the tax burden, without taking
into account that the imposition of different
taxes concurrently did not necessarily result in
double taxation.
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 BB Issue 60, January - March 2023
5. From a reading of the entire provisions in section
3(2) of the Income Tax Act it would appear that
the trial court assumed that income tax was
levied only in respect of gains and profits, which
was provided for under section 3(2)(a) yet that
was just one of the seven types of incomes
upon which income tax was levied under that
provision. Indeed, the number of incomes upon
which income tax was levied were listed under
section 3(2) (a) to (h) of the Act.
6. In the construction of a taxing Act, the court
had primary regard to the statutory words
themselves. From the interpretation given by the
trial court, the trial court erred in considering
the wording of section 3(2)(a) of the Income
Tax Act only, instead of considering the other
incomes alluded to in paragraphs (a) to (h) of
section 3(2) and to that extent applied a rather
limiting definition of the term “income” for tax
purposes. That was not what was envisioned by
the Act.
7. By virtue of section 12D of the Income Tax
Act being a non-obstante clause, it in effect
removed all obstructions which would arise in
its implementation. Accordingly, section 12D
was not subject to any contradicting clause in
the Income Tax Act and that the income to
which minimum tax was levied under section
12D was not subject to sections 15 and 16 of
the Act, which dealt with deductions.
8. Sections 15 and 16 of the Income Tax Act
shed light as to what was considered as taxable
income. Certain deductions in form of expenses
had to be allowed and, therefore, for the
appellants to now claim that minimum tax was
to be levied on gross turnover without allowing
for deductions as provided for under the Act
would be contrary to the purpose and objects
of the Act as provided for under section 3 of the
Act, which was titled as the charging section of
the Act.
9. As a general rule when a taxing provision was
ambiguous, it had to be construed in favour of
the assessee. Such an interpretation was also in
consonance with ordinary notions of equity and
fairness, and would further fortify the trial court
in adopting such a course of interpretation. The
concept of fair taxation or a fair tax burden had
no linear definition. The threshold for fairness
was ensuring that everyone bore their fair share
of taxation and paid the correct amount and
which was seen to be fair by vigorous pursuit of
tax avoidance and evasion.
42
10. The ultimate purpose for imposing the
minimum tax was to net tax evaders, by placing
all loss-making entities under the appellant’s
bracket (as they nonetheless benefitted from
infrastructure maintained by the Government),
and prevent tax evaders from escaping their
fair share of tax liability. Levying of minimum
tax on gross turnover as opposed to gains or
profit would lead to a situation where a loss
making taxpayer, would bear a heavier burden
than other taxpayers contrary to article 201 of
the Constitution.
11. Punishing entities that were already battling with
a stifled economy because of a few miscreants
was the epitome of unfairness. Both the purpose
and effect could invalidate legislation. Given the
nature of the tax and the circumstances under
which it was to be levied made the purpose
irrational, miscalculated and did not reflect the
spirit of article 201(b)(i) of the Constitution.
12. Respect for dignity meant not being devalued
as a human being or treated in a degrading or
humiliating manner. Surely, there could be
no lesser humiliation than the imputation of
criminal conduct for one who was grappling with
a difficult economic environment. Accordingly,
there was no error in the trial court’s finding
that the imposition of a minimum tax would
undoubtedly lump innocent business that were
in a loss making position with evaders, which
violated the innocent taxpayers’ right to dignity.
13. Section 12D of the Income Tax Act as introduced
by the Finance Act, 2020 and as amended by
the Tax Laws Amendment (No 2)Act, 2020 was
null and void to the extent that: the levying of
minimum tax on gross turnover as opposed to
gains or profit would lead to a situation where
a loss making tax payer, would bear a heavier
burden than on other taxpayers contrary to
the spirit of article 201 of the Constitution;
and lumping innocent entities that were in a
loss making position with tax evaders in a bid
to expand the tax base violated the innocent
taxpayers’ constitutional right to fair treatment
and dignity.
Appeal dismissed; judgment of the High Court upheld.
Order
Each party to bear their own costs of the appeal.

High Court
A nolle prosequi does not infringe upon the right to information of the victims of the
crime
Republic v Kamotho & another (Criminal Case 60 of 2019) [2022] KEHC 16055 (KLR) (Crim)
(December 6, 2022) (Ruling)
High Court at Nairobi
DO Ogembo, J
Reported by John Ribia
Criminal Law – nolle prosequi – nature and scope
- what were the circumstances in which the Director
of Public Prosecutions could enter a nolle prosequi -
whether an accused person could be subjected to the
same charges later after a nolle prosequi had been
entered – Constitution of Kenya, 2010, article 157;
Office of Director of Public Prosecutions Act (Act No. 2
of 2013) section 5(1)(b)(iii).
Constitutional Law – Director of Public Prosecutions
– powers of the DPP - whether the Director of Public
Prosecution exercised absolute and unfettered authority
in the exercise of its functions – Constitution of
Kenya, 2010, article 157; Office of Director of Public
Prosecutions Act(Act No. 2 of 2013) section 5(1)(b)
(iii).
Constitutional Law – fundamental rights and
freedoms – right to information - rights of victims to
an alleged crime – where a nolle prosequi had been
entered – rights of a victim to a crime where a nolle
prosequi had been entered discharging the accused -
whether the decision to enter a nolle prosequi had a
bearing on the rights of victims of the accused’s crime. -
whether the Director of Public Prosecutions in entering
a nolle prosequi infringed upon the rights of the victim
of the accused alleged crime to be informed in advance
of the evidence the prosecution and defence intended to
rely on and to have reasonable access to that evidence
– whether the Director of Public Prosecutions had the
duty to inform the victims of an alleged crime of the
reasons why they entered a nolle prosequi - Constitution
of Kenya, 2010, article 35 and 157; Victim Protection
Act (Act No. 17 of 2014) sections 23(1); Office of
Director of Public Prosecutions Act(Act No. 2 of 2013)
section 5(1)(b)(iii).
Brief facts
The accused persons had been jointly charged with
the offence of murder. They pleaded not guilty.
When the matter came up for pre-trial conference,
the Director of Public Prosecution (DPP) entered
a nolle prosequi (unwilling to pursue) with the
intention to have the charges against the accused
persons withdrawn.
BB Issue 60, January - March 2023
The nolle prosequi was opposed by the victims on
the grounds that the DPP had not given in writing
reasons for entering the nolle prosequi, that the nolle
prosequi was entered into in bad faith, and that
the nolle prosequi infringed upon the rights of the
victims under the Victims Protection Act.
Issues
i. What were the circumstances in which the
Director of Public Prosecutions could enter a
nolle prosequi?
ii. Whether an accused person could be subjected
to the same charges later on after a nolle prosequi
had been entered by the DPP.
iii. Whether the Director of Public Prosecutions
had the duty to inform the victims of an alleged
crime of the reasons why they entered a nolle
prosequi.
iv. Whether the decision to enter a nolle prosequi
had a bearing on the rights of victims of the
accused’s crime.
v. Whether the Director of Public Prosecutions
in entering a nolle prosequi infringed upon the
rights of the victim of the accused alleged crime
to be informed in advance of the evidence the
prosecution and defence intended to rely on
and to have reasonable access to that evidence.
vi. Whether the Director of Public Prosecution
exercised absolute and unfettered authority in
the exercise of its functions.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 157
157. Director of Public Prosecutions
(1) There is established the office of Director of
Public Prosecutions.
(2) The Director of Public Prosecutions shall
be nominated and, with the approval of
the National Assembly, appointed by the
President.
(3) The qualifications for appointment as Director
of Public Prosecutions are the same as for the
appointment as a judge of the High Court.
43
 BB Issue 60, January - March 2023
(4) The Director of Public Prosecutions shall have
power to direct the Inspector-General of the
National Police Service to investigate any
information or allegation of criminal conduct
and the Inspector-General shall comply with
any such direction.
(5) The Director of Public Prosecutions shall hold
office for a term of eight years and shall not be
eligible for re-appointment.
(6) The Director of Public Prosecutions shall
exercise State powers of prosecution and may—
(a) institute and undertake criminal
proceedings against any person
before any court (other than a court
martial) in respect of any offence
alleged to have been committed;
(b) take over and continue any criminal
proceedings commenced in any court
(other than a court martial) that
have been instituted or undertaken
by another person or authority,
with the permission of the person or
authority; and
(c) subject to clauses (7) and (8),
discontinue at any stage before
judgment is delivered any criminal
proceedings instituted by the Director
of Public Prosecutions or taken over
by the Director of Public Prosecutions
under paragraph (b).
(7) If the discontinuance of any proceedings under
clause (6)(c) takes place after the close of
the prosecution’s case, the defendant shall be
acquitted.
(8) The Director of Public Prosecutions may
not discontinue a prosecution without the
permission of the court.
(9) The powers of the Director of Public
Prosecutions may be exercised in person or by
subordinate officers acting in accordance with
general or special instructions.
(10) The Director of Public Prosecutions shall not
require the consent of any person or authority
for the commencement of criminal proceedings
and in the exercise of his or her powers or
functions, shall not be under the direction or
control of any person or authority.
(11) In exercising the powers conferred by this
Article, the Director of Public Prosecutions
shall have regard to the public interest, the
interests of the administration of justice and
the need to prevent and avoid abuse of the
legal process.
(12) Parliament may enact legislation conferring
44
powers of prosecution on authorities other
than the Director of Public Prosecutions.
Held
1. The nolle prosequi had been entered by
the Director of Public Prosecution (DPP)
pursuant to article 157(6)(c) and 159(9) of the
Constitution of Kenya, 2010, Constitution.
The DPP was constitutionally mandated and
granted the powers discontinue any criminal
proceedings instituted by itself or taken over at
any stage before judgment.
2. The independence of the office of DPP was
guaranteed under article 157(10) of the
Prosecutions. The DPP did not exercise absolute
and unfettered authority in the exercise of its
functions. Article 157(II) of the Constitution
gave the caveat to the DPP on the conduct of its
functions to have regard to the public interest,
interests of the administration of justice and
the need to present and avoid abuse of the legal
process.
3. The DPP was required to satisfy the court that
the nolle prosequi sought to be entered was in
public interest, in the interest of administration
of justice and was not an abuse of the process
of the court. The nolle prosequi would fail
and collapse were the DPP fail to satisfy the
constitutional threshold.
4. The Victims Protection Act did not give any
directions regarding on, how the right to the
information was to be exercised or enjoyed; the
format the information was to be given and
neither did it direct on the period of time within
which the information had to be availed.
5. The DPP had power to recharge the accused
person after a nolle prosequi. The significance of
the nolle prosequi was that if the circumstances
which led to the entry of the nolle prosequi
remained the same, the accused would remain
discharged of the offence until such a time there
was prima facie evidence incriminating him of
the offence.
6. A victim had a right to be informed in advance
of the evidence the prosecution and defence
intended to rely on and to have reasonable
access to that evidence. The manifest purpose
of the Victim Protection Act was to assist in the
prosecution of cases but also they were entitled
to notice and information to the ongoing
proceedings of the court. The decision not
to prosecute had a direct correlation with the
victims’ rights to compensation by the offender.
7. On entering of a nolle prosequi, the accused would
stand discharged. They would not be acquitted
 BB Issue 60, January - March 2023

of the charges. In effect, upon conclusion of the
inquest as intended, the accused persons could
still be charged with the offence and the victims
would still have and enjoy their rights as victims
in the criminal proceedings.
8. The instant case was an old case filed over 3 years
ago. It had however never commenced in terms
of taking evidence. The DPP had nor exercised
its powers under article 157(1) and 157(9) of
the Constitution as read with section 5(1)(b)(iii)
of the Office of Director of Public Prosecutions
Ac in bad faith. The objections raised by the
victims were accordingly dismissed. The court
allowed the nolle prosequi entered by the DPP.
The two accused persons were discharged.
Nolle prosequi allowed.

Whether an employer can send an employee on compulsory leave where it is not

provided for in the employer’s human resource policies and procedures
Chiloba & another v Chebukati & 6 others; Attorney General (Interested Party) (Petition 29 of 2018 &
Cause 617 of 2019 (Consolidated)) [2022] KEELRC 14636 (KLR) (October 27, 2022) (Judgment)
Neutral citation: [2022] KEELRC 14636 (KLR)
Employment and Labour Relations Court at Nairobi
Nzioki Wa Makau, J
Reported by Kakai Toili

Labour Law - employment - leave - compulsory leave
- whether an employer could send an employee on
compulsory leave where it was not provided for in the
employer’s human resource and administrative policies
and procedures manual.
Brief facts
The claimant was the secretary of the Independent
Electoral and Boundaries Commission (the 7th
respondent). Being aggrieved by the decision of the
7th respondent to send him on compulsory leave, the
claimant filed Petition No 29 of 2018 and thereafter
Cause No 617 of 2019 following his suspension and
eventual termination from employment. The two
suits were consolidated. The claimant averred that
the 1st, 3rd and 4th respondents purported to sit as a
plenary session of the 7th respondent and resolved
to send him on compulsory leave. The claimant
claimed that he was not informed in writing of the
meeting and neither was he afforded an opportunity
to defend the decision to send him on compulsory
leave.
The claimant averred that the internal audit report
relied upon did not contain adverse findings against
him and that the respondents violated provisions of
various statutes and of the Constitution of Kenya,
2010 (The Constitution). Further, the claimant
averred that compulsory leave was not provided for
in the HR and administrative policies and procedures
manual. The claimant stated that his suspension was
unlawful and irregular. Furthermore, the claimant
averred that the procedure undertaken before
termination of his employment was an abrogation of
his constitutional rights to human dignity, privacy,
access to information, fair labour practices and fair
administrative action
The claimant sought for among others; a declaration
that the purported internal audit report relied
upon as basis for the notice to show cause which
culminated in the claimant’s termination was a
nullity; a declaration that his termination from
employment was unlawful; and general damages for
breach of his constitutional rights.
Issue
Whether an employer could send an employee on
compulsory leave where it was not provided for in
the employer’s human resource and administrative
policies and procedures manual.
Held
1. On Friday April 6, 2018, the 1st, 3rd and 4th
respondents purportedly sitting as a plenary
session of the 7th respondent resolved to send the
claimant on compulsory leave. The claimant was
however not informed in writing of the meeting.
He was neither afforded an opportunity to
defend the decision to send him on compulsory
leave nor defend himself. The internal audit
report relied upon by the respondents to make
those moves against the claimant contained no
adverse findings against the claimant or anyone
else for that matter as to justify sending the
claimant on compulsory leave.
2. The respondents violated various provisions of
a number of statutes and the Constitution. The
creature known as compulsory leave was not
provided for in the 7th respondent’s HR and
administrative policies and procedures manual
and was thus unavailable to the respondents
in the quest to remove the claimant from
employment. Under the HR and administrative
policies and procedures manual and section
41 of the Employment Act, an employee was
entitled to a fair hearing and it was apparent the
claimant was not accorded that right.
3. The claimant had sought a slew of reliefs a
45
 BB Issue 60, January - March 2023
majority of which could not be granted. For
instance, the claimant was not entitled to
general damages for breach of his constitutional
rights, nor was he entitled to payment for the
balance of his term. In addition, the claimant
was not entitled to back pay by virtue of annual
increments due but not paid for twenty (20)
months being Kshs 1,441,440.
Consolidated suit partly allowed; claimant awarded
costs of the suit.
Orders
i. The claimant was entitled to the following: -
a. A declaration that the purported internal audit
report relied upon as basis for the notice to
show cause which culminated in the claimant’s
termination was irregular, illegal and therefore a
nullity.
Prerequisites for the creation of informal charges
Kingdom Bank Limited v Okotsi (Civil Suit E004 of 2021) [2022] KEHC 12771 (KLR)
(August 30, 2022) (Judgment)
Medium Neutral Citation: [2022] KEHC 12771 (KLR)
High Court at Vihiga
PJO Otieno, J
Reported by John Wainaina
Land Law – charges – informal charges - creation of
an informal charge - statutory power of sale - where a
loan had been secured by property had been defaulted
- whether a loan secured via a parcel of land created
an intention to create an informal charge - whether
a dispute as to calculation of interest was a ground to
deny a chargor of the right to realise the security offered
- whether the circumstances of the suit entitled the
plaintiff to realise the security hence the need to grant
leave - Land Act (Act No. 6 of 2012) section 79.
Brief facts
The plaintiff (bank) sought to be granted leave to
exercise its right of sale of a property (suit property).
The plaintiff contended that the suit property had
been pledged to it by way of an informal charge under
section 79(6)(b) of the Land Act. The respondent
objected to the application on grounds that the
instant court lacked jurisdiction to determine the
matter and that whereas the suit title was deposited
with the plaintiff to secure the payment of the loan
advanced and the respondent been paying the loan
but the plaintiff negligently managed the account
by debiting the account with illegal non-contractual
and unconscionable charges. The respondent also
denied being served with statutory notices.
The plaintiff took the position that the title having
been deposited on the understanding that it would
secure the debt, it was the duty of the court to enforce
46
b. A declaration that his termination from employment
was unfair, unlawful and un-procedural.
c. Maximum statutory compensation for the unfair,
unlawful and un-procedural termination being
Kshs 14,022,360 (Kshs 1,168,530/- x 12 months)
d. Payment of the claimant’s service gratuity – Kshs
14,307,912.36 (31% per year under the contract)
e. Payment of the claimant’s salary during the
suspension period Kshs 3,305,590 (August,
September and October 2018)
f. One month’s pay in lieu of notice being Kshs
1,168,530.
g. Interest on the sums in (c), (d), (e) and (f ) above at
court rates from the date of judgment till payment
in full.
h. A certificate of service from the 7th respondent
in strict compliance with section 51 of the
Employment Act.
that covenant not to diminish or rewrite it and that
the offer of it as security equated the property to a
commodity to be sold upon default.
Issues
i. Whether a loan secured via a parcel of land
created an intention to create an informal
charge.
ii. Whether a dispute as to calculation of interest
was a ground to deny a chargor of the right to
realise the security offered.
iii. Whether the circumstances of the suit entitled
the plaintiff to realise the security hence the
need to grant leave.
Relevant Provisions of the Law
Land Act (Act No. 6 of 2012) section 79
79. Informal charges
(1) An owner of private land or a lessee, by an
instrument in the prescribed form, may charge
the interest in the land or a part thereof for
any purpose including but not limited to
securing the payment of an existing or a future
or a contingent debt or other money or money’s
worth or the fulfillment of a condition.
(2) The power conferred by subsection (1) shall
include the power to create second and
subsequent charges.
(3) A charge of a matrimonial home, shall be valid
only if any document or form used in applying

for such a charge, or used to grant the charge,
is executed by the chargor and any spouse of
the chargor living in that matrimonial home,
or there is evidence from the document that it
has been assented to by all such persons.
(4) The power conferred by this section shall be
exercisable subject to—
(a) any prohibition or limitation
imposed by this Act or any written law; and
(b) any restriction contained in an
instrument creating or affecting
the interest in land that is to be the
subject of a charge.
(5) A formal charge shall take effect only when it is
registered in a land register and a chargee shall
not be entitled to exercise any of the remedies
under that charge unless it is so registered.
(6) An informal charge may be created where—
(a) a chargee accepts a written and
witnessed undertaking from a
chargor, the clear intention of which
is to charge the chargor’s land or
interest in land, with the repayment
of money or money’s worth, obtained
from the chargee plus interest as
agreed by the chargor and the
chargee”;
(b) the chargor deposits any of the
following—
(i) a certificate of title to the
land;
(ii) a document of lease of land;
(iii) any other document which
it is agreed evidences
ownership of land or a right
to interest in land.
(7) A chargee holding an informal charge may
only take possession of or sell the land which is
the subject of an informal charge, on obtaining
an order of the court to that effect.
(8) An arrangement contemplated in subsection (6)
(a) may be referred to as an “informal charge”
and a deposit of documents contemplated in
subsection (6)(b) shall be known and referred
to as a “lien by deposit of documents.”
(9) A chargor shall not possess or sell land whose
title documents have been deposited by a
chargee under an informal charge without an
order of the court.
Held
1. Section 79 of the Land Act created prerequisites
for the creation of both formal and informal
charges. For informal charges what was required
was writing to disclose clear intent to offer the
title out laid or an interest in land to secure the
payment of a debt whether existing, contingent
BB Issue 60, January - March 2023
or future, which instrument was then accepted
by the chargee as a written commitment and the
deposit of any document agreed to evidence the
ownership of the land by the chargor.
2. The only document exhibited to demonstrate
the agreement between the parties was the letter
of offer. To establish if the parties intended to
create an informal charge one had to peruse
that document and establish if the requirements
of section 79 (6), (7), (8), and (9) of the Land
Act had been established.
3. The intention had to be that the chargor and
the chargee agreed that the document deposited
with them was to secure the payment of the
debt. While there had not been exhibited any
document to show what document of title was
pledged or deposited, there was a demonstration
in the letter of offer to show the intention to
charge the property, informally, to secure the
payment of any amount that would be availed
to the defendant in the form and nature of a
temporary overdraft facility.
4. It was proved within a balance of preponderance
that there was created an informal charge. A case
was made out for the court to grant the leave
sought. It was the default to pay that founded
the right for leave to sell or possess. Leave was
granted to the plaintiff to take possession, and
if need be, sell the property whose title and
interest were charged to the bank pursuant to
section 79(9) of the Land Act.
5. Once the informal charge was determined to
have been created, the duties and obligations of
a chargee including the obligation to protect and
secure the equity of redemption and trusteeship
to the chargee were called into play and the
statutory notices, including notices of default
and notice of intention to sell, was to issue, if
not yet issued in strict compliance with the Act.
6. Section 79 of the Land Act appeared to be
incorrectly headed. While its head note was
clearly on informal charges, subsections 1 to 4
had to be read and understood to regard formal
charges while subsections 6 to 9 strictly applied
to informal charges. The heading could be
relooked at in law reform.
Application allowed.
Orders
i. The originating summons dated August 17, 2021
was allowed.
ii. Leave was granted to the plaintiff to sell its security
in the informal charge subject to compliance of the
law on realisation of securities.
iii. Costs of the suit were awarded to the plaintiff.
47
 BB Issue 60, January - March 2023

Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
The CaseBack service aims to contribute to the rule of law and the development of jurisprudence by providing
an information loop in which judicial officers continually develop and improve upon their understanding and
application of the principles of law.

During the reporting period Jan – March 2023, 1455 cases were casebacked.

Hon. Justice FA Ochieng Thank You for the Case Back.

Court of Appeal It is always useful to be informed of the outcome of an
appeal or an application which arose from my decision.
Learning is a continuing process.

Hon. AH Athman Thank you very much for your continued support and feedback.
Principal Kadhi It is invaluable and much appreciated.
Isiolo Law Courts

Hon. Justice SO Okong’o

MBS
Environment and Land Great Service
Court, Kisumu

Hon. Justice FM Njoroge Thank you for this feedback. Please keep them coming.
Environment and Land
Court, Nakuru

48
 BB Issue 60, January - March 2023

Legislative Updates
Christian Ateka & Brian Kulei, Laws of Kenya Department.

This is a synopsis of Acts and Bills of Parliament for the period ending 28th February, 2023.

A. ACTS OF PARLIAMENT

Act Title INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

(AMENDMENT) ACT
Act No. 1 of 2023
Assent Date 23rd January, 2023
Commencement Date 6th February, 2023
Objective This Act amends the Independent Electoral and Boundaries Commission Act (No. 9
of 2011) by deleting and substituting therefor sub-paragraph 2(1) of the First Sched-
ule. The new sub-paragraph provides that:
The selection panel shall consist of —
a) one man and one woman, nominated by the Parliamentary Service Commission;
b) one person nominated by the Public Service Commission;
c) one person nominated by the Political Parties Liaison Committee;
d) one person nominated by the Law Society of Kenya; and
e) two persons nominated by the Inter-Religious Council of Kenya.

B. NATIONAL ASSEMBY BILLS

Bill Title NATIONAL YOUTH COUNCIL (AMENDMENT) BILL, 2023

Dated 9th February, 2023
Objective This Bill seeks to amend the National Youth Council Act (No. 10 of 2009) to depo-
liticize the membership of the National Youth Council by allowing the competitive
recruitment of the youth serving in the council through the office of the County Di-
rectors of Youth.
Sponsor Joshua Chepyegon Kandie, Member of Parliament.

Bill Title PUBLIC PROCUREMENT AND ASSET DISPOSAL (AMENDMENT) BILL,

2022
Dated 16th December, 2022
Objective The principal object of this Bill is to amend the Public Procurement and Asset Dis-
posal Act (No. 33 of 2015) to enhance the amount for tenders where Kenya citizens
are given exclusive preference from the sum of five hundred million shillings to twenty
billion shillings. This is to protect the Kenyan traders from foreign competitors.
Sponsor Mejjadonk Benjamin Gathiru, Member of Parliament.

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 BB Issue 60, January - March 2023

Bill Title ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2022

Dated 16th December, 2022
Objective The principal object of the Bill is to provide for the regulation of assisted reproduc-
tive technology; to prohibit certain practices in connection with assisted reproductive
technology; to establish an Assisted Reproductive Technology Directorate; to make
provision in relation to children born of assisted reproductive technology processes
and matters connected thereto.
Sponsor Millie Odhiambo Mabona, Member of Parliament.

Bill Title PUBLIC SERVICE INTERNSHIP BILL, 2022

Dated 16th December, 2022
Objective The principal object of this Bill is to establish a legal framework for
the regulation of internship programmes within the public service.
The Bill seeks to ensure the provision of a monthly stipend, insurance
and other entitlements to persons engaged in internships within the public
service for the duration of the internship programme. The provision of
stipend to interns is necessary as the interns contribute to the manpower of
the organization by offering their professional skills as apprentice.
Sponsor Naisula Lesuuda, Member of Parliament.

Bill Title PUBLIC SERVICE (VALUES AND PRINCIPLES) (AMENDMENT) BILL, 2022
Dated 18th November, 2022
Objective The purpose of this Bill is to amend the Public Service (Values and Principles) Act
(No. 1A of 2015) to require all state organs in the national and county governments
and state corporations to submit annual reports on details of the human resource in
constitutional Commissions, independent offices and County Public Service Boards
and County Assembly Service Board.
Sponsor Joyce Kamene, Member of Parliament.

Bill Title PENAL CODE (AMENDMENT) BILL, 2022

Dated 16th November, 2022
Objective The principal object of the Bill is to amend the Penal Code (Cap. 63) by repealing sec-
tion 182 which prescribes the offence of idle and disorderly persons.
Sponsor David Gikaria, Member of Parliament.

Bill Title KENYA DRUGS AUTHORITY BILL, 2022

Dated 10th November, 2022
Objective This Bill seeks to regulate the use of medicines, pharmaceutical practice, drugs, sched-
uled substances, therapeutic cosmetics, medical devices and related substances which
has been in fragmented legislation. The Bill establishes the Kenya Drugs Authority
as a corporate body with power to perform all such other things or acts for the proper
discharge of its functions under the Act.
Sponsor Robert Pukose, Member of Parliament.

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 BB Issue 60, January - March 2023

C. SENATE BILLS

Bill Title COTTON INDUSTRY DEVELOPMENT BILL, 2023

Dated 6th February, 2023
Objective The principal object of this Bill is to provide for the policy and institutional framework
within which cotton industry operates by among others establishing the Cotton Industry
Development Board. The highlight of this Bill is the revamping of cotton farming in order
to make it a profitable, sustainable and development-oriented activity.
Sponsor Beth Syengo, Senator.

Bill Title LEARNERS WITH DISABILITIES BILL, 2023

Dated 31st January, 2023
Objective This Bill is aimed at providing a proper legal framework in order to ensure the actualiza-
tion of the right to basic education for learners with disabilities in Kenya at all the three
levels of education in Kenya. The Bill creates provisions of law that obligate the National
Government through the Ministry of Education and the County governments to carry out
their duties in bringing the special needs education of learners with disabilities to parity
with normal learners and to end the exclusion of learners with disability from the educa-
tion cycle.
Sponsor Margaret Kamar, Senator & Crystal Asige, Senator.

Bill Title MUNG BEANS BILL, 2022

Dated 30th December, 2022
Objective The principal object of the Bill is to provide for the development, regulation and promo-
tion of the mung bean sector in Kenya. It provides for the support of farmers of mung
beans in each county in the production and marketing of their produce.
Sponsor Enoch Kiio Wambua, Senator.

Bill Title STARTUP BILL, 2022

Dated 30th December, 2022
Objective The object of this Bill is to provide a framework—
a. for the registration of startups and the linkage of such startups with, financial in-
stitutions, the private sector research, institutions and such other institutions at the
National and county level of government;
b. to facilitate investments in and the provision of fiscal and, non-fiscal support to start-
ups in Kenya;
c. for the establishment of incubation facilities at the National and county levels of gov-
ernment and environment that promotes the establishment of startups; and
d. for the monitoring and evaluation of the legal and regulatory framework and the
mechanisms put in place to encourage the development of startups.
Sponsor Crystal Kegehi Asige, Senator.

Bill Title AGRICULTURAL AND LIVESTOCK EXTENSION SERVICES BILL, 2022

Dated 30th December, 2022
Objective The principal object of this Bill is to provide for the policy and institutional framework
within which the agricultural and livestock industry operates by among others establishing
the Agricultural and Livestock Extension Service.
Sponsor Maureen Tabitha Mutinda, Senator.

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 BB Issue 60, January - March 2023

Bill Title EMPLOYMENT (AMENDMENT) BILL, 2022

Dated 30th November, 2022
Objective The principal object of the Bill is to provide for the right to disconnect in the digital age.
This Bill seeks to strike a balance between work and private life to allow digital technology
to have a positive effect on workers’ quality of life supported by employer.
Sponsor Samson Cherarkey, Senator.

Bill Title COUNTY LICENSING (UNIFORM PROCEDURES) BILL, 2022

Dated 29th November, 2022
Objective The principal objective of this Bill is to put in place uniform proce-
dures for licensing of various activities by counties to ensure certainty in the
process and ultimately encourage private sector players to do business in
the counties.
Sponsor Mariam Omar, Senator.

Bill Title OFFICE OF THE COUNTY PRINTER BILL, 2022

Dated 29th November, 2022
Objective The principal object of the Bill is to establish the office of the county printer in each of the
forty-seven counties. The establishment of this office is necessitated by the provisions of the
County Governments Act, 2012 which makes reference to publication of Bills, Acts and
other documentation in a “County Gazette’’.
Sponsor Edwin Sifuna, Senator.

Bill Title PRESERVATION OF HUMAN DIGNITY AND ENFORCEMENT OF ECONOMIC

AND SOCIAL RIGHTS BILL, 2022
Dated 9th November, 2022
Objective The principal object of this Bill is to give effect to Article 43 of the Constitution in order to
ensure the preservation of human dignity as set out under Article 19 of the Constitution.
The Bill seeks to establish a framework for national monitoring, benchmarking and evalu-
ation of progress made in fulfilling economic and social rights by all actors.
Sponsor Danson Buya Mungatana, Senator.

Bill Title NATURAL RESOURCES (BENEFIT SHARING) BILL, 2022

Dated 8th November, 2022
Objective This Bill seeks to provide a legislative framework for the establishment and enforcement
of a system of benefit sharing in natural resource exploitation between natural resource
exploiters, the National Government, county governments and local communities.
Sponsor Danson Mungatana, Senator.

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 BB Issue 60, January - March 2023

Legal Supplements
Christian Ateka & Brian Kulei, Laws of Kenya Department.

This article provides a summary of Legislative Supplements published in the Kenya Gazette on matters of general public
importance in the period ending 28th February, 2023.

DATE OF L E G I S L A T I V E CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
25th November, 2022 92 Statutory Instru- The Parliamentary Service Commission, Commission, in exercise of the
ments powers conferred by section 21(2) of the Statutory Instruments Act,
(Exemption from 2013, in consultation with the National Assembly Select Committee
Expiry) Regulations, on Delegated Legislation, makes the Statutory Instruments (Exemption
2022. from Expiry) Regulations, 2022 to provide for the Statutory Instru-
ments specified below that have a continuing purpose is extended for a
period of twelve months with effect from the 24th day of January, 2023:
• Parliamentary Service (Constituency Offices) Regulations, 2005
(L.N. 77/2005);
• Parliamentary Services (Centre for Parliamentary Studies and
Training) Regulations, 2011 (No. 95/2011);
• Public Finance (Parliamentary Mortgage (Staff) Scheme Fund)
Regulations, 2013 (LN 18/2013);
• Public Finance Management (Parliamentary Car Loan (Staff)
[L.N. 214/2022] Scheme Fund) Regulations, 2013 (LN 19/2013);
• Parliamentary Services (Offices of Members of Parliament) Regu-
lations, 2013 (LN 65/2013);
• Public Finance Management (Parliamentary Mortgage (Members)
Scheme Fund) Regulations, 2013 (LN 67/2013); and
• Public Finance Management (Parliamentary Car Loan (Members)
Scheme Fund) Regulations, 2013 (LN 68/2013).
14th December, 2022 96 Public Finance The Cabinet Secretary for the National Treasury and Economic Plan-
Management ning in exercise of the powers conferred by section 24(4) of the Public
(National Peace Finance Management, 2012 makes the Public Finance Management
Support Operations (National Peace Support Operations Fund) Regulations, 2022 whose
Fund) Regulations, object is to establish a fund to be known as the National Peace Support
2022 Operations Fund which shall operate under the budgeting, accounting,
reporting and auditing framework of the Act.
[L.N. 219/2022]
30th December, 2022 97 Marura (Ewaso The Water Resources Authority, in exercise of the powers conferred
Narok) Swamp by section 22 of the Water Act, 2016, makes Marura (Ewaso Narok)
Catchment Protec- Swamp Catchment Protection Area Order, 2022 which shall apply to
tion Area Order, the National Government, national government entities, County Gov-
2022. ernments, county government entities and any other person being a
user of water resources and the riparian reserve of the protected area.
[L.N. 220/2022]
30th December, 2022 97 Manguo Swamp The Water Resources Authority, in exercise of the powers conferred by
Groundwater Con- section 23 of the Water Act, 2016, makes Manguo Swamp Groundwa-
servation Area Order, ter Conservation Area Order, 2022 which shall apply to the National
2022. Government, national government entities, County Governments,
county government entities and any other person being a user of water
resources and the riparian reserve of the Manguo Swamp Groundwater
Conservation Area.
[L.N. 221/2022]
30 December, 2022
th
97 Kabeere Springs The Water Resources Authority, in exercise of the powers conferred by
Catchment section 22 of the Water Act, 2016, makes Kabeere Springs Catchment
Protection Area Protection Area Order, 2022 which shall apply to the National Govern-
Order, 2022. ment, national government entities, County Governments, county gov-
ernment entities and any other person being a user of water resources
and the riparian reserve of the protected area.

[L.N. 222/2022]

53
 BB Issue 60, January - March 2023

30th December, 2022 97 Kajulu Hills Catch- The Water Resources Authority, in exercise of the powers conferred
ment by section 22 of the Water Act, 2016, makes Kajulu Hills Catchment
Protection Area Protection Area Order, 2022 which shall apply to the National Govern-
Order, 2022. ment, national government entities, County Governments, county gov-
ernment entities and any other person being a user of water resources
[L.N. 223/2022] and the riparian reserve of the protected area and feeder rivers.
20 January, 2023
th
1 Merchant Shipping The Cabinet Secretary for Mining, Blue Economy and Maritime Affairs
(Training and Certifi- in the exercise of the powers conferred by section 450 of the Merchant
cation) (Amendment) Shipping Act, 2009, makes, Merchant Shipping (Training and Certifi-
Regulations, 2022. cation) (Amendment) Regulations, 2022 to provide for, inter alia:
a. periodic audits by the International Maritime Organization;
b. trainings for personnel on a passenger ship;
[L.N. 1/2023] c. safety training; and
d. personnel working on board ships subject to Polar Code.
27th January,2023 2 Energy (Revocation) The Cabinet Secretary for Energy and Petroleum in exercise of the pow-
Regulations, 2023. ers conferred by section 198(2)(z) of the Energy Act, 2019 revokes the
Petroleum Rules, 1981 (L.N.86/1981).
[L.N. 2/2023]
27 January,2023
th
2 Petroleum The Cabinet Secretary for Energy and Petroleum in exercise of the
(Importation) Regu- powers conferred by section 101 of the Energy Act, 2019 on recom-
lations, 2023. mendation by the Energy and Petroleum Regulatory Authority makes,
Petroleum (Importation) Regulations, 2023 which shall apply to im-
[L.N. 3/2023] portation of refined petroleum products listed in the First Schedule of
the Regulations.
27th January, 2023 3 Income Tax (Finan- The Cabinet Secretary for the National Treasury and Economic Plan-
cial Derivatives) ning in the exercise of the powers conferred by section 9(4) of the In-
Regulations, 2023. come Tax Act, makes the Income Tax (Financial Derivatives) Regula-
tions, 2023 to provide for:
a. scope of gains from financial derivatives;
b. realization of gain or loss;
[L.N. 4/2023] c. record and characterization of income from financial deriva-
tives; and
d. due date of payment of taxes.
27th January, 2023 3 The Proposed Acqui- The Competition Authority of Kenya in the exercise of the powers con-
sition of Control of ferred by section 42(1) of the Competition Act, 2010, excludes the pro-
Amrod Investments posed acquisition of control of Amrod Investment Proprietary Limited
Proprietary Limited by Alchemy Promotions Holdings Limited from the provisions of Part
by Alchemy Pro- IV of the Act due to the following reasons —
motions Holdings a. the merger will not affect competition negatively;
Limited
b. although the combined value of assets, which is higher than
the turnover, was above KSh. 1 billion for the preceding year,
2021, the target’s value of assets was KSh. 63,300,000 which
is less than KSh. 500 million; and
[L.N. 5/2023] c. the transaction meets the threshold for exclusion provided
under the Competition (General) Rules, 2019.
27th January, 2023 3 The Proposed Acqui- The Competition Authority of Kenya in the exercise of the powers
sition of Control of conferred by section 42(1) of the Competition Act, 2010, excludes
sole control of AG the proposed acquisition of sole control of AG Land Holdings S1
Land Holdings S1 Limited by Evergreen Avocados Limited from the provisions of Part IV
Limited by Evergreen of the Act due to the following reasons—
Avocados Limited a. the merger will not affect competition negatively;
b. the value of the assets, which is higher than the turnover of
the acquirer was KSh. 477,574,120 for the preceding year,
2021 while that of the target was KSh. 287,732,185; and;
[L.N. 6/2023] c. the combined value of assets of KSh. 765,306,305 meets
the threshold for exclusion provided under the Competition
(General) Rules, 2019.

54
 BB Issue 60, January - March 2023

27th January, 2023 3 The Proposed Acqui- The Competition Authority of Kenya in the exercise of the powers
sition of sole control conferred by section 42(1) of the Competition Act, 2010, excludes the
of Real People Kenya proposed acquisition of sole control of Real People Kenya Limited by
Limited Chike Africa Limited from the provisions of Part IV of the Act due to
by Chike Africa the following reasons —
Limited a. the merger will not affect competition negatively;
b. the combined value of assets, which is higher than the turn-
over, for the preceding year, 2021 was KSh. 579,951,000;
and;
c. the transaction meets the threshold for exclusion provided
[L.N. 7/2023] under the Competition (General) Rules, 2019.
7th February, 2023 4 Tax Procedures The Cabinet Secretary for the National Treasury and Planning in the
(Common Reporting exercise of the powers conferred by section 6B(6) of the Tax Procedures
Standards) Regula- Act, 2015 makes the Tax Procedures (Common Reporting Standards)
tions, 2023 Regulations, 2023 to provide that Reporting Financial Institutions shall
comply with the due diligence procedures which include establishing,
maintaining and documenting the due diligence procedures set out that
[L.N. 8/2023] are designed to identify Reportable Accounts maintained by the institu-
tion.

KENYA LAW REPORTS 2017 VOL 1

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
• Civil practice and procedure
• Constitutional law
• Family law (divorce and division of
matrimonial property)
• Judicial review
• Jurisdiction
• Tax law
• Tort law (negligence)
• Labour law
• Various aspects on devolution

55
 BB Issue 60, January - March 2023

International
Jurisprudence
Selected International Cases for BB60
The African Committee of Experts on the Rights and Welfare of the Child holds that
forced pregnancy testing, expulsion of pregnant girls, and their illegal detention
is cruel, inhuman, and degrading treatment and subjects them to further trauma
especially if they are survivors of sexual violence
Legal and Human Rights Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v
United Republic of Tanzania
0012/Com/001/2019
African Committee of Experts on the Rights and Welfare of the Child
Joseph N, CP; Anne M, VCP; Aboubekrine EJ, RC; Sidikou AM; Aver G, Hermine GK, Moushira K,
Robert DN, Theophane MX, Karoonawtee C, Wilson AA, MsC
Reported by Faith Wanjiku and Bonface Nyamweya

Constitutional law-Bill of rights- right against cruel,
inhuman and degrading treatment – where the com-
plainants had been subjected to forced pregnancy testing
and expulsion from schools in events they were found
pregnant or married- whether practices of mandatory
pregnancy testing and expulsion and illegal detention
of pregnant girls who were sometimes also survivors of
sexual violence amounted to cruel, inhuman and de-
grading treatment- African Charter on the Rights and
Welfare of the Child, 1999, articles 3 and 16; Maputo
Protocol, 2003, 1(f ).
Constitutional law- Bill of Rights-right to education-
where the complainants had been subjected to forced
pregnancy testing and expulsion from schools in events
they were found pregnant or married- whether the ex-
pulsion of pregnant and married girls from schools with
no chance of re-entry violated article 11 of the Char-
ter on the right to education- African Charter on the
Rights and Welfare of the Child, 1999, article 11.
Criminal law- offences- sexual violence-margin of
appreciation doctrine in relation to sexual violence-
where the complainants had been subjected to forced
pregnancy testing and expulsion from schools in events
they were found pregnant or married- whether manda-
tory testing and expulsion of pregnant and married girls
could be justified by the doctrine of margin of apprecia-
tion- what was the meaning and scope of the margin of
appreciation doctrine in relation to sexual violence- Af-
rican Charter on the Rights and Welfare of the Child,
1999, articles 3 and 16; Maputo Protocol, 2003, 1(f ).
Criminal law- offences - sexual violence - where the
complainants had been subjected to forced pregnancy
testing and expulsion from schools in events they were
found pregnant or married- whether the applicants
were entitled to any remedies resulting from the man-
datory testing and expulsion from school.
Brief facts
The complainants alleged that primary and second-
ary school girls were subjected to forced pregnancy
testing and expulsion from schools in events where
they were found pregnant or married. Mandatory
pregnancy testing was practiced in almost all pub-
lic schools subjecting girls as young as 11 years of
age to pregnancy testing. The testing did not follow
any standard and sometimes painful methods, such
as poking, were applied to check for pregnancy by
school personnel. Pregnancy testing was undertak-
en without the consent of the girls and most often
the results were not communicated to the girls but
rather shared with school staff without the consent
of the girls. Girls were also required to take a preg-
nancy test when they enrolled in schools. The sexual
reproductive health services available in the respon-
dent state were not youth-friendly; hence, girls were
not encouraged to access such services even when
available. Lack of information and services on sexual
reproductive health resulted in unwanted and un-
planned pregnancy of girls who were then forced to
leave their education due to pregnancy. It was also
increasing the number of unsafe abortions among
adolescent girls, which was also exacerbated by the
restrictive abortion law of the respondent state,
hence the communication.
Issues
i. Whether practices of mandatory pregnancy
testing and expulsion and illegal detention
of pregnant girls who were sometimes also
survivors of sexual violence amounted to

56

cruel, inhuman and degrading treatment.
ii. Whether the expulsion of pregnant and
married girls from schools with no chance
of re-entry violated article 11 of the Charter
on the right to education.
iii. Whether mandatory testing and expulsion
of pregnant and married girls could be justi-
fied by the doctrine of margin of apprecia-
tion.
iv. What was the meaning and scope of the
margin of appreciation doctrine in relation
to sexual violence?
v. Whether the applicants were entitled to any
remedies resulting from the mandatory test-
ing and expulsion from school.
Relevant provisions of law
African Charter on the Rights and Welfare of the
Child, 1999
Article 3-Non Discrimination
Every child shall be entitled to the enjoyment of the
rights and freedoms recognized and guaranteed in this
Charter irrespective of the child’s or his/her parents’ or
legal guardians’ race, ethnic group, colour, sex, lan-
guage, religion, political or other opinion, national and
social origin, fortune, birth or other status.
Article 11(5) and (6)-Education
5. State Parties to the present Charter shall take all ap-
propriate measures to ensure that a child who is subject-
ed to schools or parental discipline shall be treated with
humanity and with respect for the inherent dignity of
the child and in conformity with the present Charter.
6. State Parties to the present Charter shall take all ap-
propriate measures to ensure that children who become
pregnant before completing their education shall have
an opportunity to continue their education on the basis
of their individual ability.
Article 16-Protection Against Child Abuse and
Torture
1. State Parties to the present Charter shall take spe-
cific legislative, administrative, social and educational
measures to protect the child from all forms of torture,
inhuman or degrading treatment and especially physi-
cal or mental injury or abuse, neglect or maltreatment
including sexual abuse, while in the care of the child.
2. Protective measures under this Article shall include
effective procedures for the establishment of special
monitoring units to provide necessary support for the
child and for those who have the care of the child, as
well as other forms of prevention and for identification,
reporting referral investigation, treatment, and follow-
up of instances of child abuse and neglect.
Maputo Protocol, 2003
BB Issue 60, January - March 2023
Article 1(f )
1(f ) Discrimination against women means any dis-
tinction, exclusion or restriction or any differential
treatment based on sex and whose objectives or effects
compromise or destroy the recognition, enjoyment or the
exercise by women, regardless of their marital status, of
human rights and fundamental freedoms in all spheres
of life.
Held
1. The state was responsible for acts that violated
article 16 of African Charter on the Rights
and Welfare of the Child, 1999 (the Charter)
on protection against child abuse and torture
which were perpetrated by private actors where
the state had not acted to prevent or investigate
such acts, so long as it could be shown that rep-
resentatives of the state knew or had reasonable
grounds about the occurrence of such acts.
2. The enforcement of pregnancy testing and ex-
pulsion had been employed throughout schools
as part of the state’s efforts to discourage chil-
dren from having sexual relations. Whereas the
respondent state alleged that it was not aware
the illegal detention of pregnant girls had been
occurring, it had been widely reported on and
brought to the state’s attention by the com-
plainant and its national human rights insti-
tution. The police acted on behalf of and were
employed by the state and its alleged conduct
was, therefore, a matter of state responsibility.
The state thus had reasonable grounds to believe
those illegal detentions were occurring and had
an obligation in exercise of its responsibilities to
investigate that matter.
3. The African Commission endorsed the defini-
tion of cruel, inhuman, and degrading treat-
ment as a treatment that caused mental or phys-
ical harm. Gender-based violence was a form of
cruel, inhuman and degrading treatment and
included physical and psychological acts com-
mitted against victims without their consent or
under coercive circumstances. The Commit-
tee acknowledged the psychological harm and
physical pain experienced by girls forced to un-
dergo pregnancy tests as well as the humiliating
manner in which many girls were subsequently
expelled amounts to practices that were cruel,
inhuman, and degrading treatment.
4. The respondent state had not respected its obli-
gation to provide children with legal protection
in conditions of freedom, dignity and security
as far as it had failed to; properly investigate sus-
pected illegal detentions, and to prevent such
illegal detentions from occurring.
57
 BB Issue 60, January - March 2023
5. Sexual violence was itself a form of cruel, in-
human, and degrading treatment and a viola-
tion of article 16 of the Charter. Subjecting girls
who were survivors of sexual violence to illegal
detention was thus a continuation of the cruel,
inhuman, and degrading treatment they had
already suffered. The forced pregnancy testing,
expulsion of the pregnant girls, and their illegal
detention was cruel, inhuman, and degrading
treatment and subjected them to further trauma
if those girls were survivors of sexual violence.
The respondent state had violated article 16 of
the Charter in all instances.
6. The right to education was an inherent right
of all children, recognized under the African
Charter on the Rights and Welfare of the Child
(ACRWC) and other international and regional
instruments. Article 11 of the Charter provided
for the right to education of all children, and
it set out the aim of education, states’ obliga-
tion towards the realization of children’s right to
education as well as special measures that should
be undertaken to support certain groups such as
girls and gifted children.
7. Article 11(6) of the Charter provided that states
parties to the present Charter should have all
appropriate measures to ensure that children
who become pregnant before completing their
education should have an opportunity to con-
tinue with their education based on their indi-
vidual ability. The Committee noted that article
11(5) and (6) of the Charter provided for edu-
cation for all with no condition being attached.
The Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Women in
Africa (the Maputo Protocol) indicated that the
promotion of the enrolment and retention of
girls in education and prevention of any exclu-
sion from education, which amounted to dis-
crimination in education was the JN 18 obliga-
tion of states in fulfilling the right to education.
8. States were required to take measures such as re-
viewing laws and policies that facilitated the ex-
pulsion of pregnant girls and ensure there were
no restrictions on their return following child-
birth. The Committee and the African Com-
mission on Human and Peoples’ Rights had
stipulated that States had to undertake measures
to encourage pregnant girls to continue with
their education and, more specifically ensure
that there was retention and re-entry of preg-
nant and married girls, and where they were un-
able to return to schools, to provide them with
alternative education programs. The UN Com-
58
mittee on the Rights of the Child (UNCRC)
had also provided that expulsion of girls from
school based on pregnancy was a discrimina-
tory act which should be prohibited and that
adolescent mothers should be provided with an
opportunity to continue with their education.
9. The responsibility of states in realizing the
right to education included the obligation to
promote, respect, protect and fulfil education.
The obligation of states to respect the right to
education entailed that states should not inter-
fere with the right to education of girls, rather
they should provide enabling policies, allocate
budgets and fulfil the right to education of
girls. The education that was being provided by
states should be provided with respect for hu-
man rights and fundamental principles set out
in human rights instruments. Schools should
be free from any kind of violence, abuse, and
deprivation of rights. Any pre-condition set to
access education that was not in line with hu-
man rights standards was a violation of the right
to education as inherently the right to education
was provided for every child.
10. The respondent state’s argument that its policy
on pregnant and married girls being carried out
was in line with article 11(2)(c) of the Char-
ter which stipulated that education should be
geared toward the preservation of African mor-
als was not founded within the general prin-
ciples of the Charter. Article 11(2)(c) vividly
highlighted that only positive African morals,
values and cultures should be strengthened
through education. Positive African morals, val-
ues, and cultures were premised on tolerance,
consultation and dialogue and were not to be
interpreted to include practices harming the
child and violating the Charter.
11. Article 11(2)(c) of the Charter needed to be
read in line with the whole context of article 11
whose aim was to accord all children the right to
education and which also provided specific sup-
port to pregnant girls to continue their educa-
tion under article 11(6). Article 11(2)(c) should
also be read in line with the general principles
of the Charter which included among others,
the best interests of the child, and the principle
of non-discrimination. The argument of the
respondent state that sexual relations among
children was not an African value and that the
policy aimed to discourage sexual relations was
not acceptable. The fact that no distinction was
made among children who fell pregnant due to
sexual abuse and exploitation was a manifes-

tation that the policy’s intent was not mainly
aimed at discouraging sexual relations. The pro-
motion of a certain value could not be achieved
by establishing rules and policies that were not
in conformity with the Charter.
12. The terminology of mandatory testing con-
tained the same meaning as forced since the
girls had no option of refusing the test to access
education. The Committee was of the view that
no proof was required as to an increase in drop-
out of school to establish that forced pregnancy
testing was a violation of the right to educa-
tion. Any form of unlawful requirement to ac-
cess and continue education and any violation
of children’s rights that occurred in schools and
curtails education was, in and by itself, a viola-
tion of the right to education. Forced or manda-
tory pregnancy testing to access education was
a pre-condition that was not aimed at fostering
education, rather it violated the right to dignity,
freedom from torture and the right to privacy
of children. The Committee found that manda-
tory pregnancy testing was a violation of article
11 of the Charter.
13. The doctrine of the margin of appreciation
was provided for in the preamble to the Euro-
pean Convention on Human Rights (the Con-
vention) as introduced by protocol 15 which
amended the preamble to the Convention. The
provisions required parties to the Convention to
follow the principle of subsidiarity, to exercise
their primary responsibility to secure the rights
and freedoms in the Convention and the Pro-
tocols thereto, to engage in a margin of appre-
ciation, subject to the supervisory jurisdiction
of the European Court of Human Rights. The
margin of appreciation doctrine allowed states
leverage in the fulfilment of their obligations
under the human rights instrument in a manner
that did not defeat the promotion and protec-
tion of the rights of an individual.
14. The doctrine of the margin of appreciation en-
tailed that states should have the discretion to
interpret and apply some of the elements of the
provisions of the European Convention on Hu-
man Rights in fulfilling their obligations there-
in. Article 10(2) of the Convention provided for
a margin of appreciation for states in ensuring
the right to freedom of expression as it provided
for certain ground for the limitation of the right
and certain conditions for the enjoyment of the
right. It alluded to the fact that the margin of
appreciation did not accord states unlimited
power of appreciation but rather it was under-
BB Issue 60, January - March 2023
stood and implemented along with the Euro-
pean supervision. Any margin of appreciation
that states had had to be applied for a legitimate
aim and only if it was necessary for a democratic
society.
15. The Convention was the basis or the floor as
the unqualified minimum guarantee of human
rights which a state was not able to go below, an
area which lay above the basis or floor, within
which the state could elect to exercise discretion
on condition that its decision was above the
floor. The state party could exercise its margin
of appreciation as long as it was not violating its
obligations or the rights under the Charter.
16. Elements of article 11 of the Charter in general
and article 11(1) in particular left no room for
limitation or condition in the application of the
rights provided, hence the argument of the re-
spondent state on the application of the mar-
gin of appreciation went against the protected
right of education under the African Children’s
Charter. Article 11 (3)(d)(e) and 11(6), pro-
vided clear obligations by requiring state to take
special measures in respect of girls and prevent
drop-out of school as well as to support girls
who fell pregnant while in school.
17. The respondent state had introduced policies
and practices which excluded pregnant and
married girls from public schools and had intro-
duced mandatory pregnancy testing in schools
the outcome of which results in expulsion with
no re-entry. Those policies and practices were
not contested by the respondent state but rather
defended on the grounds of morality. No ar-
gument of morality or margin of appreciation
could justify a policy and practice which was
against the explicit provisions of the Charter.
The Committee did not accept the justification
of the respondent state based on the doctrine of
margin of appreciation.
18. The expulsion and the prohibition of re-entry
of pregnant and married girls was another form
of the perpetuation of the negative societal at-
titude towards the same group of girls including
stigmatization and segregation that was deeply
entrenched in most African communities. Edu-
cation should be used as a tool to address such
negative attitudes and not perpetuate or con-
form to such attitudes. Providing education to
such disadvantaged groups should have been
part of the education strategy of the state party
by providing them with the necessary support
and affirmative action to overcome the dispro-
portionate impact of their situations. The re-
59
 BB Issue 60, January - March 2023
spondent state acted in violation of article 11
of the Charter through its policy of expulsion of
pregnant and married girls from schools as well
as introducing a condition of mandatory/forced
pregnancy testing to be enrolled in schools. The
re-entry policy of the respondent state was a vio-
lation of the right to education which required
the states to make education accessible to all.
19. The prevention of sexual relations among ado-
lescents was not an internationally recognized
obligation of the State. Countries in Africa had
different ages for sexual consent ranging from
12 to 18 years. Consensual and non-exploitative
sexual relations among adolescents should be
decriminalized. The exclusion of pregnant and
married girls from schools with no opportunity
for re-entry created a vicious cycle of gender-
based discrimination as those girls would be ex-
cluded from the benefits of education.
20. Education was not only a substantive right,
but the enjoyment of the right to education
also facilitated the realization of other rights of
children and the elimination of discrimination
against girls. Article 1(f ) of the Maputo Proto-
col provided that discrimination against women
included any form of discrimination against
women from the enjoyment of their rights re-
gardless of their marital status. The expulsion
of pregnant and married girls with no re-entry
amounted to discrimination based on sex, mari-
tal status, and health status (pregnancy) within
the meaning of article 3 of the Charter, and fur-
ther entrenched gender-based discrimination.
21. Mandatory pregnancy testing was differential
treatment on the ground of sex and interfered
with the right to education, the right to priva-
cy, and the health of girls among others. The
mandatory pregnancy testing presumed that all
girls who fell pregnant had committed an im-
moral act which was a perpetuation of structural
gender-based discrimination which subjected
girls to scrutiny on their sexuality although they
were victims of sexual abuse. Mandatory preg-
nancy testing also amounted to discrimination.
The detention of pregnant girls was discrimi-
nation based on their gender, age, and health
status (pregnancy) as they were being targeted
on those grounds while having committed no
crime.
22. Article 21 of the Charter did not provide for a
definition of harmful practices, it rather provid-
ed certain grounds for the prohibition of harm-
ful practices. It stated that any practice that af-
fected the welfare, dignity, development health,
60
and life of the child and was discriminatory on
prohibited grounds should be eliminated. Ar-
ticle 21(2) explicitly prohibited child marriage
and betrothal of children. The Committee, in
further elaborating article 21(1) of the Charter,
adopted the definition of harmful practices pro-
vided by the Committee on the Rights of the
Child and the Committee on the Elimination
of Discrimination Against Women. The two
Committees had identified 4 criteria for defin-
ing harmful practices if:
a. They constituted a denial of the dignity
and/or integrity of the individual and a vio-
lation of their human rights;
b. They constituted discrimination limiting
the capacity of girls to fully participate in
society;
c. They were practices that were prescribed
and/or kept in place by social norms that
perpetuated male dominance and inequal-
ity of women and children, on the basis of
sex, gender, age and other intersecting fac-
tors; or
d. They were imposed on women and children
by family members, community members
or society at large regardless of the victim’s
lack of or inability to consent.
23. The mandatory pregnancy testing of girls and
their expulsion from school when found preg-
nant or married impaired the enjoyment of
their rights under the Charter and that such
practice was discriminatory within the ambit of
article 3 of the Charter and violated the right to
dignity, freedom from torture, and the right to
privacy of girls, among others. The Committee
stressed that schoolgirls who were married and
fell pregnant were victims of a larger pattern of
gender-based discrimination which the respon-
dent state was required to address by taking the
necessary safeguards through law and practice as
well as providing redress to victims.
24. The failure of state parties to ensure compliance
with the minimum age of marriage set at 18
was a violation of article 21 of the Charter. The
policy and the practice of the respondent state
subject victims to secondary victimization and
hinder the apprehension of perpetrators of sexu-
al violence by shifting the blame on the victims.
25. When children in situations where their health
and well-being were implicated, they should be
provided with adequate and appropriate infor-
mation to understand the situation and all the
relevant aspects concerning their interests, and
be allowed, when possible, to give their consent

in an informed manner. The complainants fur-
ther submitted that the procedure was painful
and traumatic for some girls, including some
of the deponents of the affidavits. The prac-
tice of mandatory pregnancy testing had also
been shown to involve publicly announcing
results- in cases where the child was found to
be pregnant- to shame the child concerned. Be-
yond mandatory testing being a clear violation
of article 4 of the Charter, that practice was a
violation of that provision at every point in the
process through which mandatory pregnancy
testing was undertaken, including the events be-
fore and after the test. The entire practice should
thus be eliminated.
Orders
The Committee recommended for the respondent state
to:
i. Immediately prohibit mandatory pregnancy test-
ing in schools and health facilities and publicly an-
nounce the prohibition;
ii. Review the Education (Expulsion and Exclusion of
Pupils from School) Regulations, 2002 G.N. No.
295 of 2002 and in doing so remove wedlock as
a ground of expulsion and provide an indication
that the moral ground of expulsion should be in-
terpreted narrowly and should not apply in cases of
pregnancy of schoolgirls;
iii. Undertake concrete steps to prevent the expulsion of
pregnant and married girls from schools including
by providing laws and policies on the same;
iv. Remove any policy of non-re-entry of schoolgirls in-
cluding girls who had dropped out of school due to
pregnancy or wedlock;
v. Immediately re-admit schoolgirls who had been ex-
pelled due to pregnancy and wedlock and provide
special support programmes to compensate for the
lost years and ensure better learning outcomes for
the returned girls;
vi. Provide clear guidance to school administrators that
girls who dropped out of school due to pregnancy or
wedlock with their preference were allowed to come
back to school with no preconditions;
vii. Investigate the cases of detention of pregnant girls
and immediately release detained pregnant girls
who were being interrogated to reveal who impreg-
nated them and stop such kinds of illegal arrests of
pregnant girls;
viii. Provide sexuality education for adolescent children
and provide child friendly sexual reproductive and
health services;
ix. Undertake extensive sensitization of teachers,
health care providers, police and other actors with
BB Issue 60, January - March 2023
regards to the protection that should be accorded to
pregnant and married girls;
x. Undertake proactive measures towards the elimina-
tion of child marriage and other harmful practices
that affected girls including by taking measures to
address the underlying factors such as gender-based
discrimination, poverty, and negative customary
and societal norms;
xi. Create a conducive reporting and referral mecha-
nism for survivors of sexual violence including
child marriage, and provide psychosocial support,
rehabilitation and reintegration services for the
survivors;
xii. Investigate and prosecute perpetrators of sexual vio-
lence and child marriage;
xiii. Take action against any actors who conducted
forced pregnancy testing of any kind, or who dis-
criminate against girls on the grounds of their preg-
nancy or marital statuses such as expulsion and
detention;
xiv. Provide special support to pregnant and married
girls to continue their education in a school of their
choice and based on their consent.
xv. Report to the Committee on all measures taken to
implement the decision of the Committee within
180 days from the date of receipt of the Commit-
tee’s decision.
Relevance to the Kenyan jurisprudence
Matters solved by the African Committee of Experts
on the Rights and Welfare of the Child are relevant
to Kenya because article 3 of the Treaty Establishing
the East African Community, 1999, makes Kenya a
member of the Community when it highlights that:
The members of the Community, in this Treaty referred
to as the Partner States, shall be the Republic of Kenya,
the Republic of Uganda and the United Republic of
Tanzania and any other country granted membership
to the Community under this article.
Sexual based violence is basically any offence per-
petuated on a person based on their gender. It is im-
portant to highlight that:
In a patriarchal society like Kenya, SGBV is fueled by
patriarchal beliefs, mindsets and myths that impact the
response at all levels. These have the potential of colour-
ing evaluation and decision making by professionals
in the justice sector including prosecutors. The beliefs
include and not limited to perceiving certain persons
as deserving to be violated, shifting the blame to the
victim because of their choice of dress, venue, time, pro-
fession or company; excusing certain violations in the
name of culture, among others.1
1 UNODC, ‘Handbook on Effective Prosecution Responses to Violence
Against Women and Girls’ Criminal Justice HandBook Series (2014).
61
 BB Issue 60, January - March 2023

The Constitution of Kenya in article 28 talks of
human dignity and in article 29(d)(f ) prohibits
inhumane treatment. Article 31 talks about right
to privacy. The Sexual Offence Act in section 46 (a)
notes that:
The Minister shall - (a) prepare a national policy
framework to guide the implementation, and
administration of this Act in order to secure acceptable
and uniform treatment of all sexual related offences
including treatment and care of victims of sexual
offences.
In the case of CKW v Attorney General & DPP Petition
No. 6 of 2013 [2014] eKLR, the court decried
criminalization of discretional teenage sex. The court
in C.K. (A Child) & 11 Others v. Commissioner of
Police/ Inspector-General of the National Police Service
& 2 Others stressed on the responsibility of the state
to investigate and prosecute Sexual Gender Based
Violence cases.
Therefore, this case is relevant to the Kenyan
jurisprudence because it expands the scope on the
privacy, dignity and right to education of female
persons in relation to sexual gender based violence as
it holds that the forced pregnancy testing, expulsion
of the pregnant girls, and their illegal detention
is cruel, inhuman, and degrading treatment and
subjects them to further trauma if these girls are
survivors of sexual violence.

Decisions for grant of parole to prisoners should be based on the minimum period
of imprisonment that a convicted person or offender should serve before they could
be considered for parole and not on the seriousness of the offense that they had
committed
Janusz Jakub Walus v Minister of Justice and Correctional Services and Others
Case CCT 221/21
Constitutional Court of South Africa
Zondo CJ, & J; Madlanga, Majiedt, Mhlantla, Theron, Tshiqi and Unterhalter, JJ; Mlambo, AJ
November 21, 2022
Reported by Faith Wanjiku and Betty Nkirote

Constitutional law-Bill of Rights-right to a fair ad-
ministrative action-where the applicant sought leave to
appeal against the judgment and order of the Gauteng
division of the High Court, Pretoria in the matter con-
cerning a decision of the 1st respondent rejecting the
applicant’s application to be placed on parole-whether
the court had the jurisdiction to determine the appli-
cant’s application for leave to appeal against the judg-
ment and order of the Gauteng division of the High
Court, Pretoria (High Court) which had dismissed the
applicant’s application to have the decision of the 1st
respondent rejecting to release him on parole reviewed
and set aside-whether it was in the interest of justice for
the court to grant the applicant leave to appeal against
the judgment and order of the High Court which had
dismissed the applicant’s application to have the deci-
sion of the 1st respondent not to release him on parole
reviewed and set aside-which type of remarks made by
the trial court at the time of imposing a sentence were to
be taken into account while deciding whether to release
the applicant on parole-whether the decision by the 1st
respondent not to release the applicant on parole was
irrational- whether the court was in a position to deter-
mine whether the applicant could be released on parole.
Brief facts
The applicant brought an application for leave to ap-
peal against a judgment and order of the Gauteng
Division of the High Court of South Africa Pretoria
(High Court) which had dismissed the applicant’s
application to have the decision by the 1st respon-
dent rejecting his application for parole reviewed
and set aside.
The applicant was convicted for the offense of mur-
der and illegal possession of firearm in October 15,
1993. He was sentenced to death for the murder
and given five years for the illegal possession of the
firearm. The death sentence was commuted to life
imprisonment on November 7, 2000.
The applicant made numerous applications for pa-
role which were all refused for various reasons. On
March 16, 2020, the Minister made a new decision
in accordance with the order of the High Court
emanating from a review application of a previous
parole application. The 1st respondent’s reasons for
refusing parole were inter alia, that the positive fac-
tors in favor of parole being granted to the applicant
were outweighed by the negative factors.
Issues
i. Whether the Constitutional court had the juris-
diction to determine the applicant’s application
for leave to appeal against the judgment and or-
der of the Gauteng division of the High Court,
Pretoria (High Court) which had dismissed the
applicant’s application to have the decision of
the 1st respondent rejecting to release him on
parole reviewed and set aside.

62

ii. Whether it was in the interest of justice for the
Constitutional court to grant the applicant leave
to appeal against the judgment and order of the
High Court which had dismissed the applicant’s
application to have the decision of the 1st re-
spondent not to release him on parole reviewed
and set aside.
iii. Which type of remarks made by the trial court
at the time of imposing a sentence was to be
taken into account while deciding whether to
release the applicant on parole?
iv. Whether the decision by the 1st respondent not
to release the applicant on parole was irrational.
v. Whether the court was in a position to deter-
mine whether the applicant could be released on
parole.
Relevant provisions of the law
Constitution of the Republic of South Africa,
1996
Section 33- Just administrative action
(1) Everyone has the righttoadministrative action1 that
is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has; the right to be given writ-
ten reasons.
(3) National legislation must be enacted to give effect to
these rights,and must-
(a) provide for the review of administrative action by a
court or, where appropriate,, an independent and im-
partial tribunal.
Promotion of Administrative Justice Act, 2000
Section 6-review of administrative action
(1)Any person may institute proceedings in a court or
a tribunal for the judicial review of an administrative
action.
Correctional Services Act, 1998
Section 36
With due regard to the fact that the deprivation of lib-
erty serves the purposes of punishment, the implemen-
tation of a sentence of imprisonment has the objective
of enabling the sentenced prisoner to lead a socially re-
sponsible and crime-free life in the future.”
Section 78
“(1) Having considered the record of proceedings of the
Correctional Supervision and Parole Board and its rec-
ommendations in the case of a prisoner sentenced to life
imprisonment, the court may, subject to the provisions
of section 73(6) (b)(iv), grant parole or day parole or
prescribe the conditions of community corrections in
terms of section 52.
Section 136
BB Issue 60, January - March 2023
(3)(a) Any sentenced offender serving a sentence of life
incarceration immediately before the commencement of
Chapters IV, VI and VII is entitled to be considered for
day parole and parole after he or she has served 20 years
of the sentence.
(b) The case of a sentenced offender contemplated
in paragraph (a) must be submitted to the National
Council which must make a recommendation to the
Minister regarding the placement of the sentenced of-
fender under day parole or parole.
(c) If the recommendation of the National Council is
favourable, the Minister may order that the sentenced
offender be placed under day parole or parole, as the
case may be.”
Held
1. The decision of the High Court in respect to
which the applicant applied for leave to appeal
related to a review application under the Pro-
motion of Administrative Justice Act (PAJA)
which gave effect to section 33 of the Constitu-
tion. The matter was a constitutional matter and
the court had jurisdiction.
2. The issues raised in the matter did not only af-
fect the applicant but also affected other prison-
ers who served life imprisonment sentences. The
matter had reasonable prospects of success and
it was in the interest of justice for the court to
grant the applicant leave to appeal.
3. The 1st respondent misconceived the sentenc-
ing remarks contemplated in the department’s
document policy. The court’s remarks he took
into account related to the seriousness of the of-
fense that the applicant had committed and to
the fact that the offense had been planned and
committed in cold blood. The sentencing re-
marks referred to in the policy document could
only be remarks about the minimum period of
imprisonment that a convicted person or of-
fender should serve before he or she could be
considered for parole.
4. The decision by the 1st respondent to release the
applicant on parole was irrational. If more than
26 years after the applicant was sentenced for
the crime of murder, it was appropriate for the
1st respondent not to release him on parole in
2020, because of the nature of the crime, the se-
riousness thereof and the court’s sentencing re-
marks on why would it be appropriate for the 1st
respondent to release him one or two or three or
five years thereafter. The factors relied by the 1st
respondent in his decision to deny the applicant
parole were immutable. They would not change
one or two or three or five years later.
63
 BB Issue 60, January - March 2023
5. The 1st respondent’s decision not to place the
applicant on parole was not rationally connect-
ed to the power conferred upon him. Denying
the applicant parole simply on the basis of the
nature of the crime, and the seriousness thereof
and the trial court’s and the Supreme Court of
Appeal’s sentencing remarks despite the fact
that the applicant had complied with all other
requirements for him to be placed on parole was
inexplicable. The 1st respondent’s decision was
irrational and therefore reviewed and set aside.
6. The 1st respondent had considered all the factors
that were to be considered in deciding whether
to place the applicant on parole and concluded
that, except for two, all the other factors sup-
ported the conclusion that the applicant be
released on parole. The two factors that the 1st
respondent considered to count against the ap-
plicant were immutable and could no longer
stand in the way of the release of the applicant.
The applicant had served more than 25 years of
his sentence of life imprisonment during which
he had kept a clean disciplinary record and com-
plied with every requirement that he had been
told by the prison authorities to comply with in
order to improve his prospects of placement on
parole. In the circumstances, it was just and eq-
uitable for the court to order the 1st respondent
to place the applicant on parole.
Application allowed; costs awarded to the applicant.
Orders
i. Leave to appeal was granted.
ii. The appeal was upheld.
iii. The decision of the Gauteng Division of the High
Court, Pretoria dismissing the applicant’s applica-
tion was set aside and replaced with the following
order:
a. The decision of the Minister of Justice and
Correctional Services made in March 2020,
rejecting the applicant’s application for parole
was reviewed and set aside.
b. The Minister of Justice and Correctional Ser-
vices was ordered to place the applicant on
parole on such terms and conditions as he
deemed appropriate and to take all such steps
as needed to be taken to ensure that the ap-
plicant was released on parole within ten (10)
calendar days from the date of the order.
c. The Minister of Justice and Correctional Ser-
vices was ordered to pay the applicant costs in-
cluding the costs of two counsel.
iv. The Minister of Justice and Correctional Services
was to pay the applicant’s costs including the costs
of two counsel as well as the applicant’s costs in the
64
Supreme Court of Appeal in respect of the petition
for leave to appeal.
Relevance to the Kenyan jurisprudence
In Kenya, the primary legislation on matters relat-
ing to prisoners and control of prisons is the Prisons
Act Cap 90 Laws of Kenya. Section 49 of the said
Act provides for release of prisoners on parole in the
following terms:
49. Release on parole
(1) Within three months of the date upon which a pris-
oner serving a sentence of or exceeding four years is due
for release, the Commissioner may allow such prisoner
to be absent from prison on parole for such length of
time and upon such conditions as the Commissioner
may specify.
(2) The Commissioner or an officer in charge may at
any time recall a prisoner released on parole.
(3) Any prisoner who fails to return to prison in ac-
cordance with the conditions of his parole or when in-
formed that he has been recalled under subsection (2)
of this section may be arrested without warrant, and
he shall be guilty of an offence and liable to the same
punishment as if he had escaped from prison.
(4) A prisoner who, when released on parole, contra-
venes or fails to comply with the conditions imposed
upon him shall be guilty of an offence and liable to
imprisonment for a term not exceeding six months.
In Elkana Rono Kirui v Republic [2021] eKLR, it was
observed that:
The court has made presentations in other fora which
sought suggestions or proposals on establishment of
parole system within the power of mercy structure in
Kenya, to the effect that:
Parole refers to the release of a convicted offender un-
der conditions after they have served a portion of their
sentence. In varied jurisdictions, the offender who is
released on parole is placed under supervision of a pa-
role officer or probation officer and breach of condi-
tions of release may lead to the offender going back to
prison. Parole is therefore inextricable to the power of
mercy especially for purposes of conditional pardon...
Linking the Power of Mercy Act to the Probation of
Offenders Act through appropriate amendments in the
two legislations to create parole system with appropriate
support or operational mechanisms, is the sound move.
The probation officer appointed under the Probation of
Offenders Act should constitute the parole officer under
the Power of Mercy Act.
Release of prisoners on parole is not practiced in Ke-
nya. This can be attributed to the fact that Kenya
does not have a national parole board and parole
regulations. This in itself hinders the implementa-
tion of the parole system. Consequently, there is
 BB Issue 60, January - March 2023

need for reform in the correctional services in Ke-
nya. Criminal laws need to be reviewed to incorpo-
rate rules on parole.
Therefore, Kenya should take steps towards the
implementation of section 49 of the Prisons Act so
as to ensure placement of prisoners on parole after
they have served a certain period of their term of
imprisonment. This will help in solving the problem
of overcrowding in prison as it will facilitate proper
structure in prisons.
This case is relevant to the Kenyan jurisprudence
since upon implementation and practice of the pa-
role system, it can be used by prisoners to challenge
the rationality of a decision of the Commissioner
General of Prisons rejecting to place them on parole
where they consider his decision irrational. Also, the
case provides useful guidance to the courts on the
factors to be considered when determining whether
to order the release of a prisoner on parole.

KENYA LAW REPORTS 2018 VOL 1

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:
• Constitutional law
• 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

65
 BB Issue 60, January - March 2023
Law Reform Issues January-March, 2023
Compiled by Faith Wanjiku
LAW REFORM ISSUE BRIEF FACTS & METADATA OF JUDGMENT
A 1.
Section 7 (1) of the Director of Public Prosecution v Okemo & 4 others (Petition
Extradition Act that 14 of 2020) [2022] KESC 33 (KLR) (29 July 2022) (Reasons)
provided for extradition (with dissent - W Ouko, SCJ)
proceedings to be Petition 14 of 2020
initiated through an Supreme Court of Kenya
authority to proceed was MK Koome, CJ & P; MK Ibrahim, SC Wanjala, NS Ndungu
declared incongruous and W Ouko, SCJJ
with article 157 (6) July 29, 2022
of the Constitution Brief facts
of Kenya 2010 on On May 26, 2011, the Attorney General of Jersey made a request
the powers to initiate for the extradition of the Appellants. The Office of the Attorney
and conduct criminal General (AG) (Kenya) handed over the Department of Public
matters being conferred Prosecutions (then a department in the office of the AG) which
upon the DPP not the later became the Office of the Director of Public Prosecutions
AG. (ODPP). The DPP issued an authority to proceed to the Chief
Magistrate and filed extradition proceedings.
Aggrieved, the 1st and 2nd via judicial review at the High Court
challenged the authority of the ODPP to issue an authority to
proceed to institute extradition proceedings. Their position
was that Extradition (Commonwealth Countries) Act made
no mention of the ODPP, they contended that the relevant
authority with the power to institute extradition proceedings
was the AG. The High Court held that extradition proceedings
were of a criminal in character. The High Court further held that
extradition proceedings were properly initiated by the ODPP.
Dissatisfied with the High Court’s decision, the 1st and 2nd
respondents lodged their respective appeals in the Court of
Appeal. The Court of Appeal overturned the High Court’s
decision and held that extradition proceedings fell wholly within
the ambit of international law and were sui generis in nature; that
it was the AG as opposed to the DPP who was empowered to
issue the authority to proceed; and therefore, the extradition
proceedings in issue were a nullity.
Aggrieved the ODPP filed the instant appeal in which they
contended that the Court of Appeal erred in finding that
extradition proceedings were sui generis in nature and were to
be instituted by the Ag. They sought for the Supreme Court
to declare that the function institute and litigate extradition
proceedings were vested in the ODPP.
66
HOLDINGS PERTINENT TO LAW REFORM
The Extradition Act was in existence prior to the
promulgation of the Constitution, 2010; and
that initiation and conduct of criminal matters by
virtue of article 157(6) of the Constitution was
conferred upon the DPP and not the AG. It was
necessary for purposes of bringing section 7(1) of
the Act in conformity with the Constitution to
construe the provision as prescribing that it was
the DPP who could issue an authority to proceed
thereunder.
2. The fact that the Extradition Act had been
amended as late as the year 2012 without any
alteration to section 7(1) by itself could not
warrant interpretation of the said provision in
manner that was contrary to the Constitution.
That was due to the supremacy of the
Constitution.
3. The Supreme Court was unable to see how
holding that it was the DPP who could issue
an authority to proceed would render the
Extradition Act unworkable or inoperative on
account of the other functions conferred therein
to the AG as insinuated by the Court of Appeal.
Extradition had elements of international
relations between States; the AG retained the
executive authority to receive requests for
extradition and was required to transmit the
same to the DPP for the necessary action.
4. Based on the provisions of article 157(6) of the
Constitution as well as the ODPP Act, the DPP
was bestowed with the power to prosecute any
criminal matter save for matters within the sphere
of a court martial and the legislation envisaged
to be enacted under article 157 (12) of the
Constitution. The breadth of the prosecutorial
powers included extradition proceedings. The
authority to proceed issued in regard to the
extradition proceedings against the 1st and 2nd
respondents on July 6, 2011 was valid.

B Mbae v Speaker, County Assembly of Nakuru & another;
Section 14 of the Political
Parties Act declared
unconstitutional to the
extent that it required
a sitting member of
county assembly to
resign as a precondition
to switching political
parties for purposes of
general elections within
180 days preceding
the date of the general
elections.
others (Interested Party)
Constitutional Petition E004 of 2022
High Court at Nakuru
JM Ngugi, HK Chemitei & TM Matheka, JJ
July 7, 2022
Brief facts
The petitioner was a sitting member of the County Assembly
of Nakuru County (the County Assembly). He filed the instant
petition seeking among others; a declaration that to the extent
that section 14 of the Political Parties Act required a sitting
member of the County Assembly and the National Assembly to
resign from their respective seats as a precondition to moving from
one political party to another for purposes of an election within
the timelines set by the law and the Independent Electoral and
Boundaries Commission (IEBC) for such change of membership
ahead of a general election, that section was unconstitutional; and
a reading in order in section 14 that a Member of Parliament or
a county assembly who resigned from one political party to the
other on the last day of the times lines set by the law and the
IEBC for purposes of participation in a general election needed
not thereby resign from and/or lose his seat by reason of such
change of party membership.
The petition was centered on an alleged unconstitutionality of
section 14 of the Political Parties Act in light of articles 194(1)
of the Constitution of Kenya, 2010, Constitution articles 38
and 101(4)-(5) of the Constitution as read together on the
other hand. In particular, the petitioner was aggrieved by the 1st
respondent’s, the Speaker of the County Assembly of Nakuru
(the Speaker) interpretation of article 194 as read together with
section 14 as revealed in the Speaker’s communication made
to the Nakuru County Assembly on February 22, 2022 (the
impugned communication).
The petitioner argued that the Speaker fell into error when he
read article 194(1)(e) of the Constitution in isolation to require
that any time a member of the County Assembly resigned from
the party that sponsored him or her, the office of the member
of the County Assembly fell vacant. Instead, the petitioner
argued, when read together with articles 38 and 101(4)-(5) of the
Constitution, article 194(1)(e) did not mandate that such a seat
of the member of the County Assembly fall vacant at the end of
the electoral cycle when a by-election could not be held by virtue
of article 101(5) of the Constitution. According to the petitioner,
that was the necessary interpretation to preserve and promote the
objects, purposes and principles of the Constitution.
BB Issue 60, January - March 2023
1. The only interpretation that was constitutionally
sound as derived from a faithful application of the
canon of constitutional interpretation applicable
in Kenya was one that avoided the constitutional
harms by reading the Constitution holistically
and in a way that aggrandized its purposes,
objects and principles. That interpretation was
one that would ensure that a ward, constituency
or county would not remain unrepresented in the
County Assembly, National Assembly or Senate
for a period exceeding 90 days. Differently put,
the constitutionally-compliant interpretation
was one that did not automatically tie the
switching of political parties to loss of seats in
the final 180 days immediately before a general
election.
2. The constitutionally-compliant interpretation
was not the one taken by the impugned
communication and section14 of the Political
Parties Act. Therefore, both the impugned
communication and section 14 were
constitutionally deficient.
3. To cure the unconstitutionality inherent in
section 14 of the Political Parties Act, the court
had jurisdiction to read in a proviso to section
14 of the Political Parties Act to provide that
a vacancy did not arise after the last day for
changing parties set by IEBC before a general
election or within the 180 days preceding a
general election so as to bring that statute in line
with the Constitution. The instant matter was a
proper case for reading in to save the legislative
scheme from a declaration of unconstitutionality.
Besides, the curative measure suggested was not
fundamentally at odds with the intent of the
legislation in question.
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 BB Issue 60, January - March 2023

C Katiba Institute & Another v the Attorney General & another; 1. The use of firearms on property and persons
The National Police Independent Policing and Oversight Authority & 3 others called for balance and exercise of restraint, but
Service (Amendment (Interested Parties) it could not be flatly held that life could not be
Act) No 11 of 2014, Constitutional Petition No. 379 of 2017 suppressed in protection to property.
Sixth Schedule, Part High Court at Nairobi 2. The extent of any limitation imposed by
B, paragraph 1(c), (d) AC Mrima, J legislation was found in the wording or the text
and (e) which provided December 16, 2022 of the legislation. The extent of the limitation
that the Police may Brief facts lacked clarity. It was not reasonably possible to
use firearms to protect The petitioners contended that paragraph 1(c), (d) and (e) deduce that the contemplated use of firearms
life, property and to of part B of the sixth schedule to the National Police Service in the impugned amendments had to lead
prevent felonies from (Amendment) Act that provided that the firearms may be used to the limitation of the right to life. It was
escaping lawful custody to protect life and property on preventing felonies from escaping that ambiguity that deprived the impugned
contravened the rights to lawful custody was a claw back from the gains made by the amendments the clarity on the extent of
life, human dignity and Constitution as far as the protection of the right to life, dignity the limitation. The need to ensure that the
fair hearing. and fair hearing was concerned under articles 23, 28 and 50 of enjoyment of rights and fundamental freedoms
the Constitution. The petitioners claimed that the impugned by any individual did not prejudice the rights
amendments were unconstitutional for failing to provide for and fundamental freedoms of others. Although
the necessary safeguards as articulated under article 24(2) of the the nature of the proportionality test would vary
Constitution and for failing to provide justification of the of depending on the circumstances, in each case
the limitation that met the requirements of article 24(1) of the courts would be required to balance the interests
Constitution. of society with those of individuals and groups.
3. There was a delicate balance to be struck between
a person’s right to property or the need to
apprehend law breakers on one hand and on the
other hand, such entitlement not be seen to be a
justification to terminate another person’s right
to life.
4. The impugned amendments variously impugned
the Constitution. They infringed article 2(4) of
the Constitution. The intended limitations to
the rights and fundamental freedoms vide the
impugned amendments were not in consonance
with article 24 of the Constitution. They failed
the limitation test.

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 BB Issue 60, January - March 2023

D Katana & another v Republic 1. The Supreme Court clarified that its decision
There is need for Criminal Appeal 8 of 2019 in 2017 in the Muruatetu I case applied only in
urgent intervention in Court of Appeal at Malindi respect to sentences under sections 203 as read
way of the necessary SG Kairu, P Nyamweya & JW Lessit, JJA with section 204 of the Penal Code and did not
legal reforms, or October 21, 2022 invalidate mandatory sentences or minimum
determination by Brief facts sentences in the Penal Code, the Sexual Offences
the Supreme Court The appellants were jointly convicted for the offence of robbery Act or any other statute.
of Kenya regarding with violence contrary to section 295 as read with section 296(2) 2. The appellants did not raise the issue of the
constitutional validity of the Penal Code and sentenced to death by the Chief Magistrates constitutionality of the death sentence imposed
of the mandatory death Court (trial court). The appellants were dissatisfied with the upon them in their appeal to the High Court,
penalty in capital decision of the trial court and appealed to the High Court on and the instant court was therefore precluded
offences other than the among other grounds; that their defences were not considered from addressing that issue on appeal. By the time
offence of murder. and that the death sentence was not safe. The High Court upheld the trial court and High Court were delivering
the trial court’s decision and held that the death sentence was the their decisions on June 11, 2015 and August
only sentence for the offence of robbery with violence. 31, 2016 respectively, the Supreme Court had
The appellants are dissatisfied with the High Court’s decision and not delivered the decision in Muruatetu I on
thus filed the instant appeal. The appellants filed the appeal on the constitutionality of the mandatory death
among other grounds that they were denied the right to a fair trial sentence, which decision was delivered on
by proceeding with the trial without ensuring that the appellants December 14, 2017, whereupon the appellants
were provided and or afforded the assistance of an advocate; and filed their memorandum of appeal in October
by imposing the mandatory death sentence which they argued 2018.
was an unconstitutional sentence. The appellants therefore, 1. Under the doctrine of stare decisis , which was
sought for, among others, the quashing of the conviction and applied by article 163(7) of the Constitution, the
sentence. court was bound by the decision of the Supreme
Court in Francis Karioko Muruatetu & another
v Republic; Katiba Institute & 5 others (Amicus
Curiae) (2021) e KLR (Muruatetu II). The
outcome of the instant case, predicated upon
Muruatetu II, was unfair and disproportionate,
in light of the rationale by the Supreme Court
for declaring the mandatory death sentence
unconstitutional in Muruatetu I. There was need
for urgent intervention in that regard by way of
the necessary legal reforms, or determination
by the Supreme Court regarding constitutional
validity of the mandatory death penalty in such
cases as the instant one.

69
 BB Issue 60, January - March 2023
E MNK v POM; Initiative for Strategic Litigation in Africa
It was time for the (ISLA) (Amicus Curiae))
National Assembly Petition 9 of 2021
and the Senate, in Supreme Court of Kenya
collaboration with the PM Mwilu, DCJ and VP; SC Wanjala, NS Ndungu, I Lenaola
Attorney-General to and W Ouko, SCJJ
formulate and enact January 27, 2023
statute law that deals Brief facts
with cohabitees in long- The respondent instituted Nairobi High Court Civil Suit No
term relationships; their 6 of 2012, POM vs MNK, by way of an originating summons
rights, and obligations. dated November 5, 2013 against the appellant whom he claimed
to be his wife. The respondent invoked the provisions of section
17 of the Married Women’s Property Act (repealed) (1882),
(MWPA) on the claim for division of matrimonial property. The
respondent’s contention was that he and the appellant began to
cohabit as husband and wife sometime in 1986. It was his case
that from joint savings, they purchased the suit property. He
asserted that he belonged to the Kisii tribe and that the seller
who belonged to the kikuyu tribe was not comfortable selling the
parcel of land to a non-Kikuyu therefore, the parties resolved to
have the property registered in the appellant’s name although they
had both contributed to its acquisition.
The High Court dismissed the suit and found that although
there was long cohabitation between the parties, the principle
of presumption of marriage, was inapplicable under the
circumstances seeing that the appellant was already in a married
to KM. The court held that the appellant did not have the
capacity to marry the respondent, that the relationship between
the parties was adulterous and the resulting cohabitation could
not be deemed a marriage. In the absence of a marriage, the court
held that the respondent could not rely on the provisions of
MWPA (repealed) whose reliefs are based on proof of marriage.
Dissatisfied, the respondent approached the Court of Appeal
which held that the High Court erred in finding that there was
long cohabitation but declined to presume marriage because of
a one KM, whose existence the Court of Appeal found was not
proved. The appellate court presumed the existence of a marriage
and allowed the appeal, and ordered the suit property to be
divided into two halves, a share for each party.
Aggrieved the appellant filed the instant appeal. The appellant
argued that parties to a marriage must have the capacity to enter
into a marriage and that she did not have the requisite capacity for
the relationship between her and the respondent to be presumed
a marriage as she was married to KM and had three children
out of that relationship. The appellant also argued that a long-
term relationship that resembles a marriage was not a marriage.
The appellant further argued that she solely contributed to the
acquisition of the suit property.
70
1. The doctrine of presumption of marriage was on
its deathbed of which reasoning was reinforced
by the changes to the matrimonial laws in Kenya.
The presumption should only be used sparingly
where there was cogent evidence to buttress it.
2. Marriage was an institution that had traditional,
religious, economic, social and cultural meaning
for many Kenyans. However, it was becoming
increasingly common for two consenting
adults to live together for long durations where
these two adults had neither the desire, wish
nor intention to be within the confines of
matrimony. There existed relationships where
couples cohabit with no intention whatsoever
of contracting a marriage. In such contexts, such
couples may choose to have an interdependent
relationship outside marriage. While some may
find that amoral or incredible, it was a reality of
the times we live in today.
3. A person may have been in a marriage before
and the marriage was no more due to death
of a spouse or divorce. Due to their prior
experiences, such persons may choose to have an
interdependent relationship outside of marriage.
For others, it may just be their desire never to
marry but have a partner without the confines of
marriage. Where such situation was evident and
there was no intention whatsoever of contracting
a marriage, the presumption of marriage must
never be made where this intention did not exist.
Marriage was a voluntary union. Courts should
shy away from imposing marriage on unwilling
persons.
4. Statistics revealed that a man and a woman could
choose to cohabit with the express intention that
their cohabitation did not constitute a marriage.
The pervasiveness of having interdependent
relationships outside marriage over the past few
decades meant that no inferences about marital
status could be drawn from living under the
same roof. Inter-dependent relationships outside
marriage was not a new concept.
5. It was time for the National Assembly and the
Senate, in collaboration with the Attorney-
General to formulate and enact statute law that
dealt with cohabitees in long-term relationships;
their rights, and obligations.
 BB Issue 60, January - March 2023

KENYA LAW REPORTS 2019 VOL 1

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:
• Constitutional law
• Contract law
• Company law
• Civil practice and procedure
• 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

71
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