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P M R V Republic [2014] eKLR

Case Number: Criminal Appeal 276 of 2011 Date Delivered: 16 Jan 2014

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: P M R v Republic

Citation: P M R V Republic [2014] eKLR

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Republic V Nyoro Mwenga [2014] eKLR

Case Number: Criminal Case 25 of 2011 Date Delivered: 16 Jan 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Republic v Nyoro Mwenga

Citation: Republic V Nyoro Mwenga [2014] eKLR

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George S Onyango OGW V Board Of Directors Of Numerical Machining Complex Limited Minister For Industrialization Attorney- General

Case Number: Petition 35 of 2012 Date Delivered: 16 Jan 2014

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney - General

Citation: George S Onyango OGW V Board Of Directors Of Numerical Machining Complex Limited Minister For Industrialization Attorney- General

 

Enforcement of Constitutional Jurisdiction in Labour Law Practices

George S. Onyango v  & Board of Directors of Numerical machining Complex Ltd & 2 others

Petition No 35 of 2012

Industrial Court at Nairobi

James Rika, J

Reported by Phoebe Ida Ayaya

 

Constitutional Law –petition- constitutional jurisdiction -whether the petitioner properly invoked the constitutional jurisdiction-whether the constitutional jurisdiction was enforced- The Constitution of Kenya, 2010

 

Employment Law-employment practices-validity of decisions made by company with regards to employment practices of a company-

 

Statutes-interpretation of statutes-whether sections a 3 and 38 of the State Corporations Act Cap 446 governed the company- State Corporations Act Cap 446 sections 3 , 38

Issues

 

[a] Whether the Petitioner properly invoked the Constitutional Jurisdiction?

[b] Whether the Company is fully governed to the State Corporations Act Cap 446 the Laws of Kenya?

 [c] Whether the Board of Directors of the Company was properly constituted so as to render its employment decisions concerning the Petitioner legitimate?.

 

Held:

  1. Every exercise of state power was subject to constitutional review. All law derived its force from the organic law, and all conduct sourced in law, shall as a logical matter be consistent with the organic law. There were common considerations in private and public law claims. Although the bewitching perception of the Constitution is that it defined the relationship between the State and its Citizens, there was a growing seepage of fundamental rights into common law disputes between private parties. Interpretation of the law was not necessarily contingent upon the parties to the case. 
  2. An act that was deemed unconstitutional when raised by an individual against the state would still be deemed unconstitutional when raised by the individual against another individual. Some of the most notorious violators of fundamental freedoms and rights in the labour market today were not states; they were individual and corporate employers. The Court did not see the Petitioner’s invocation of constitutional jurisdiction as misplaced. His contract was the first port of entry, and he may as well have sought remedy from within the common law, or relevant legislation.

 

  1.  Numerical Machining Complex was wholly owned by two Government Institutions- Kenya Railways and the University of Nairobi, and though registered as a Private Company under the Companies Act, was fully governed by the State Corporations Act.  Section 3 allowed the President to establish State Corporations, while Section 5A allowed the President to exempt State Corporations not created by the President under Section 3, from any of the provisions of the State Corporations Act. There was no material availed by the Petitioner to suggest that the Company was exempted from any provisions of the Act.  The Act applied in full to the Company
  2. The Respondents submitted there was no properly appointed Board prior to the 18th November 2011. The truth is that even after 18th November 2011, there was no validly created Board. It was not made clear why the previous Board was not, in the eyes of the Respondents, properly in office.  There was nothing reversing the instruments by which the first Board was established.
  3.  The Court was convinced the Board Chaired by Professor Nick Wanjohi, which was the subject matter of the Petition, had no legal validity.; that any decisions made by the illegally constituted Board were illusory and had no effect in law.
  4. Any decisions made by the Board constituted after 18th November 2011 relating to labour and employment at the workplace; the recruitment, supervision, promotion, demotion, and administration of contracts of employment were not valid. {Julius Nyarotho v. the Attorney General & 3 Others [2013] e-KLR]

Orders

[a] It is declared that the President of Kenya and the Acting Minister for Industrialization contravened the Articles of Association of the Numerical Machining Complex Limited, the State Corporations Act, and the Constitution of Kenya by appointing the Chairman to the Board of Numerical Machining Complex Limited on 18th November 2011, and by appointing the Board Members of the Numerical Machining Complex Limited, on 20th January 2012.

 

[b] The Board of the Numerical Machining Complex Limited was declared to have been unlawfully created.

 

[c] The Legal Notice No. 14701 appointing the Chairman, and Legal Notice No. 450 appointing the aforesaid Board Members, were declared null and void ab initio.

 

[d] The Petitioner shall be compensated by the Respondents for violation of his fundamental rights and for breach of his contract of employment by payment of coalesced damages assessed at Kshs. 600,000.

 

[e] The Respondents shall bear the costs of the Petition.

 

Cases

East Africa

1.East African Portland Cement Co Limited v Attorney General & another Petition No 9 of 2012 –(Followed)

2.GMV v Bank of Africa Limited Cause No 1227 of 2011–(Applied)

3.Kinyua, Anne v Nyayo Tea Zone Development Cause No 1065 of 2012 –(Followed)

4.Kenyatta, Uhuru Muigai v Nairobi Star Publications Limited Petition No 187 of 2012 –(Mentioned)

5.Munga, Alphonse Mwangemi & 11 others v Africa Safari Club Petition No 564 of 2004 –(Applied)

6.Musau, Isabel Wayua v Copy Cat Limited Cause No 1562 of 2011 –(Followed)

7.Njeru, Julie Topirian v Kenya Tourist Board Cause No 886 of 2010 –(Explained)

8.Nyarotho, Julius v the Attorney- General and 3 others Miscellaneous Civil Application No 36 of 2012 –(Applied)

9.Wafubwa, Alex Malikhe & 7 others v Elias Nambakha Wamita & 4 others Petition No 7 of 2012 (Mentioned)

South Africa

1.Carmichele v Minister of Safety and Security [2001] [4] SA 938, 2001 [10] BCLR 995 –(Explained)

India

1.JP Bansal v State of Rajastan & another Civil Appeal 5982 of 2001 –(Applied)

Texts & Journals

1.Tribe, LH., 1989. The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics. 103 Harvard Law Review pp 1, 7, 8, 20

Statutes

East Africa

1.Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 53 –(Interpreted)

2.Companies Act (cap 486) –(Interpreted)

3.Constitution of Kenya, 2010 articles 22, 23, 27(1)(c); 28; 41; 47; 258–(Interpreted)

4.State Corporations Act (cap 446) sections 3, 5(3); 6(1); 7(3) –(Interpreted)

Advocates

1.Mr JO Arwa for the Petitioner

2.Mr Imende for the 1st Respondent

3.Mr L Muiruri, Senior Principal State Counsel, for the 2nd & 3rd Respondents

 

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Republic V Ahmed Ibrahim Farah [2014] eKLR

Case Number: Criminal Case 8 of 2012 Date Delivered: 16 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Republic v Ahmed Ibrahim Farah

Citation: Republic V Ahmed Ibrahim Farah [2014] eKLR

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Republic V Shukri Abdi Harun [2014]eKLR

Case Number: Criminal Case10 of 2012 Date Delivered: 16 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Republic v Shukri Abdi Harun

Citation: Republic V Shukri Abdi Harun [2014] eKLR

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Abdul Mohamed Abdulrahman V Republic [2014] eKLR

Case Number: Criminal Appeal 81 of 2013 Date Delivered: 16 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Abdul Mohamed Abdulrahman v Republic

Citation: Abdul Mohamed Abdulrahman V Republic [2014] eKLR

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Japheth Anyira Agura & 6 Others V Registrar Of Trade Unions [2014]eKLR

Case Number: Appeal Number 1 of 2011 Date Delivered: 16 Jan 2014

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: Japheth Anyira Agura, Mathew Cheruyiot, Mary Toto Emojong, Timothy Osiru Okata, Violet Kadogo Mukangai, . Jane Wairimu Kabuthia, Eston Kidiga Adambi [Appealing As The Promoters Of Kenya Union Of Employees Of Polytechnics, Colleges And Allied Institutions [Kuepcai] v Registrar Of Trade Unions

Citation: Japheth Anyira Agura & 6 Others V Registrar Of Trade Unions [2014] eKLR

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Peter Muthui Mutinda & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeal 79 of 2012 Date Delivered: 16 Jan 2014

Judge: Weldon Kipyegon Korir, Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Peter Muthui Mutinda, Johnson Muthusi Mutinda & James Musee Mwove v Republic

Citation: Peter Muthui Mutinda & 2 Others V Republic [2013] eKLR

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Timothy John Bukibinga Igaga V Dt Dobie & Co. (K) Limited [2013] eKLR

Case Number: Cause 1417 of 2012 Date Delivered: 16 Jan 2014

Judge: Nzioki wa Makau

Court: Industrial Court at Nairobi

Parties: Timothy John Bukibinga Igaga v Dt Dobie & Co. (K) Limited

Citation: Timothy John Bukibinga Igaga V Dt Dobie & Co. (K) Limited [2013] eKLR

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Haron Ogari Ondieki & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 154 And 156 of 2012 [consolidated] Date Delivered: 16 Jan 2014

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Haron Ogari Ondieki & Jeremiah Onyambu Sambura v Republic

Citation: Haron Ogari Ondieki & Another V Republic [2014] eKLR

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In Re Baby J Alias M [2014] eKLR

Case Number: Adoption Cause 217 of 2013 (OS) Date Delivered: 16 Jan 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Baby J Alias M

Citation: In Re Baby J Alias M [2014] eKLR

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In Re The Matter Of Baby A W Alias Baby W M

Case Number: Adoption Cause 205 of 2013 (Os) Date Delivered: 16 Jan 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re The Matter Of Baby A W Alias Baby W M

Citation: In Re The Matter Of Baby A W Alias Baby W M

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In Re Of S A W (Minor) [2014] eKLR

Case Number: Adoption Cause 262 of 2013 (OS) Date Delivered: 16 Jan 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re of S A W (Minor)

Citation: In Re Of S A W (Minor) [2014] eKLR

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In Re Of Baby J K [2014] eKLR

Case Number: Adoption Cause 221 of 2013 (Os) Date Delivered: 16 Jan 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Of Baby J K

Citation: In Re Of Baby J K [2014] eKLR

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Amos Ohuru Wasonga V Kingsway Tyres Co. Limited [2014] eKLR

Case Number: Cause190 of 2013 Date Delivered: 16 Jan 2014

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Nairobi

Parties: Amos Ohuru Wasonga v Kingsway Tyres Co. Limited

Citation: Amos Ohuru Wasonga V Kingsway Tyres Co. Limited [2014] eKLR

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K N M V A M M [2014] eKLR

Case Number: Divorce Cause 2 of 2011 Date Delivered: 15 Jan 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: K N M v A M M

Citation: K N M V A M M [2014] eKLR

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Ruth Atieno Otieno V Republic [2014] eKLR

Case Number: Criminal Appeal 46 of 2012 Date Delivered: 15 Jan 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Ruth Atieno Otieno v Republic

Citation: Ruth Atieno Otieno V Republic [2014] eKLR

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Reuben Mbilunzu V Republic [2014] eKLR

Case Number: Criminal Appeal 192 A of 2011 Date Delivered: 15 Jan 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Reuben Mbilunzu v Republic

Citation: Reuben Mbilunzu V Republic [2014] eKLR

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Muthui Kitheka V Republic [2014] eKLR

Case Number: Criminal Appeal 2 of 2013 Date Delivered: 15 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Muthui Kitheka v Republic

Citation: Muthui Kitheka V Republic [2014] eKLR

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Republic V Aden Iddi Abdi [2014] eKLR

Case Number: Criminal Case 5 of 2011 Date Delivered: 15 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Republic v Aden Iddi Abdi

Citation: Republic V Aden Iddi Abdi [2014] eKLR

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Moses Kiarie Kairuri & 4 Others V Attorney General & 3 Others [2014] eKLR

Case Number: Petition 280 of 2013 Date Delivered: 15 Jan 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Moses Kiarie Kairuri Samuel Macharia Kamau Naftally Mwangi Kamau Joseph Kamau Nganga John Waithaka Wambui Suing As Westlands Environmental Care Taker Group , (Suing On Their Own Behalf And On Behalf Of All Persons Trading In Flowers, Plants And Pots On Plot No. 209/12721 Located At Lower Kabete Road) v The Hon. Attorney General , The City Council Of Nairobi, County Government Of Nairobi & Stationery Express Limited … Interested Party

Citation: Moses Kiarie Kairuri & 4 Others V Attorney General & 3 Others [2014] eKLR

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Dennis Tumbo Munene V Republic [2014] eKLR

Case Number: Criminal Appeal 116 of 2012 Date Delivered: 14 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Dennis Tumbo Munene v Republic

Citation: Dennis Tumbo Munene V Republic [2014] eKLR

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John Kariuki Macharia V Commissioner Of Lands [2014] eKLR

Case Number: Elc Suit 251 Of 2013 Date Delivered: 14 Jan 2014

Judge: Pauline Nyamweya

Court: Environment and Land Court at Nairobi

Parties: John Kariuki Macharia v Commissioner Of Lands

Citation: John Kariuki Macharia V Commissioner Of Lands [2014] eKLR

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Stephen Kamau Mutambuki V Republic [2014] eKLR

Case Number: Criminal Appeal 65 of 2013 Date Delivered: 14 Jan 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Stephen Kamau Mutambuki v Republic

Citation: Stephen Kamau Mutambuki V Republic [2014] eKLR

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Abraham Mwangi Ndirangu V Republic [2014] eKLR

Case Number: Criminal Appeal 90 of 2013 Date Delivered: 14 Jan 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Abraham Mwangi Ndirangu v Republic

Citation: Abraham Mwangi Ndirangu V Republic [2014] eKLR

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S M K V Republic [2014] eKLR

Case Number: Criminal Appeal 15 & 16 of 2012 Date Delivered: 14 Jan 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: S M K v Republic

Citation: S M K V Republic [2014] eKLR

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Simon Mbuthia Wangeche V Republic [2014] eKLR

Case Number: Criminal Appeal 109 of 2013 Date Delivered: 14 Jan 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Simon Mbuthia Wangeche v Republic

Citation: Simon Mbuthia Wangeche V Republic [2014] eKLR

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Kudheiha Workers V Masaku School For The Physically Disabled [2014] eKLR

Case Number: Cause 2105 of 2012 Date Delivered: 14 Jan 2014

Judge: Nzioki wa Makau

Court: Industrial Court at Nairobi

Parties: Kudheiha Workers v Masaku School for the Physically Disabled

Citation: Kudheiha Workers V Masaku School For The Physically Disabled [2014] eKLR

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Ibrahim Mweny Kotit V Alemu Sia Kot [2014] eKLR

Case Number: Civil Suit 18 of 2011 Date Delivered: 14 Jan 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Ibrahim Mweny Kotit v Alemu Sia Kot

Citation: Ibrahim Mweny Kotit V Alemu Sia Kot [2014] eKLR

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Paul Irungu Kogi V Skytech Communications Resources Ltd [2014] eKLR

Case Number: Cause 2273 of 2012 Date Delivered: 14 Jan 2014

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Paul Irungu Kogi v Skytech Communications Resources Ltd

Citation: Paul Irungu Kogi V Skytech Communications Resources Ltd [2014] eKLR

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Peter Maina Mwangi V Republic [2014] eKLR

Case Number: Criminal Appeal 116 of 2013 Date Delivered: 14 Jan 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Peter Maina Mwangi v Republic

Citation: Peter Maina Mwangi V Republic [2014] eKLR

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Timamy Issa Abdalla V Swaleh Salim Swaleh Imu & 3 Others [2014] eKLR

Case Number: Civil Appeal 36 of 2013 Date Delivered: 13 Jan 2014

Judge: Hannah Magondi Okwengu, Milton Stephen Asike Makhandia, Fatuma sichale

Court: Court of Appeal at Malindi

Parties: Timamy Issa Abdalla v Swaleh Salim Swaleh Imu, Fahim Yasin Twaha, Independent Electoral And Boundaries Commission & Silvano Buko Bonaya

Citation: Timamy Issa Abdalla V Swaleh Salim Swaleh Imu & 3 Others [2014] eKLR

Court of Appeal Reinstates Timamy Issa Abdalla as the Duly Elected Governor in the Lamu Gubernatorial Elections

Timamy Issa Abdalla v. Swaleh Salim Imu & 3 others [2014] eKLR

Civil Appeal No 36 of 2013

Court of Appeal at Malindi

H M Okwengu, M A Makhandia & F Sichale, JJA

January 13, 2014

Reported by Nelson K. Tunoi

 

Issues for determination:

i)        Whether in determining the integrity of the electoral process and the democratic will of the voters in Lamu, the election court properly interpreted and applied the general electoral principles provided in the Constitution, together with the provisions, rules and regulations stipulated under the Elections Act.

ii)      Whether the nullification of the results of the gubernatorial elections for Lamu County and the election of the appellant was the appropriate legal consequence.

iii)     Whether the results of the scrutiny and recount of the ballots that was initiated by the court suo motto should have been used in determining the two petitions (consolidated) filed before the election court.

iv)   Whether the election court was right in drawing a conclusion that the IEBC had failed in its constitutional duty provided under article 86 of the Constitution because the counterfoils were not in ballot boxes.

v)     Whether the irregularities of the missing vote bundles affected the outcome of the election results.

 

Election Law - election petition - gubernatorial election - conduct and results - documents to be placed in the ballot box - ballot papers - counter foils - whether there was a legal requirement that counterfoils of the used ballot papers be stored in ballot boxes - Elections (General) Regulations, Regulation 81(2)

 

Facts:

The appellant (Timamy Issa Abdalla) sought to have the judgment and the certificate issued by the election court under section 86 of the Election Act altering the election of the appellant as the duly elected Governor of Lamu County set aside.  The memorandum of appeal filed by the appellant raised 32 grounds, alleging inter alia, that the election court erred in law and fact in: failing to give effect to the democratic will of the voters in Lamu county by failing to uphold the election of the appellant; nullifying the election of the appellant on the basis of alleged missing counterfoils for four polling stations when the elections and results for the four polling stations were in dispute; and misdirecting itself on the issue of the burden and standard of proof in an election petition by shifting the burden to the appellant, 3rd and 4th respondents.

In his cross appeal the 1st respondent challenged the dismissal of his petition on several grounds, inter alia, that the election court erred in making separate findings in two election petitions which had been consolidated under rule 18 of the Election Petition Rules; that having found that the election was not conducted within the requirement of articles 81 and 86(d) of the Constitution, the election court ought to have allowed the 1st respondent’s petition; and that having exercised its discretion and ordered scrutiny the judge erred in applying the evidence arising from the scrutiny selectively in Petition No 5 of 2013 and not Petition No 4 of 2013. 

The 2nd respondent opposed the main appeal and filed under section 94 of the Court of Appeal Rules, 7 grounds for affirming the decision of the election court, which grounds included the fact that the election process was grossly flawed, inaccurate and the results prematurely announced; that the burden of proof in regard to the missing counterfoils and extra bundle of votes found in the sampled ballot boxes shifted to the appellant and the IEBC as per section 108, 112 and 119 of the Evidence Act, which burden was not discharged as no explanation was offered to rebut any adverse presumption; and that allowing the appellant’s appeal would cause a constitutional crisis as the right of appeal under section 85A of the Elections Act 2011 is irreconcilable with article 182(5) of the Constitution. 

The IEBC (3rd respondent) and 4th respondents supported the main appeal and opposed the 1st respondent's cross appeal.  IEBC and 4th respondent challenged the election court’s finding that the election process was not transparent, free and fair on account of missing vote bundle of the appellant’s votes and missing counterfoils in the ballot boxes, contending that the current election laws did not oblige the presiding officer to insert the used counterfoils in the ballot boxes; that the election court failed to accept the report on scrutiny which showed that the appellant had received the most number of votes and that the election court’s decision was based on speculation.

Held:

1.      The scrutiny and recount of the ballots was an issue before the election court, and the findings of the election court on issues arising therefrom were not superfluous matters but matters originating from the pleadings. Thus the election court could not ignore the scrutiny report or its findings thereon. The election court had an obligation to use its findings on the primary facts established before it, in determining the integrity of the elections.

2.      Under Regulation 86 the Returning Officer was required after the final tallying and announcement of the results to seal in separate tamper proof envelopes, the counted ballot papers which were not in dispute, the disputed ballot papers, and rejected disputed ballot papers, and put the sealed tamper proof packets in used ballot box. Thus it was evident that at no time were the counterfoils required to be sealed in the ballot box, but were required to be delivered to the Returning Officer in tamper proof sealed envelopes. This position was a departure from the former regulations provided under the National Assembly and Presidential Elections Act (cap 7). Regulation 34 of the Presidential and Parliamentary Elections Regulations listed counterfoils of used ballot papers among the documents required to be put in separate sealed packets, which packets were, under Regulation 39(3) of the same Regulations, to be put inside the ballot boxes and delivered to the Returning Officer.

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

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

5.      The election court’s conclusion that the will of the people of Lamu County would not be said to have been done with such “glaring evidence of manipulation” was further an apparent misdirection and contradiction in light of the election court's findings in regard to the irregularities complained of in the petition, all of which were found either not established or where established not to have affected the elections. 

6.      There were no primary facts established by the election court which could support the finding that the missing vote bundles was evidence of glaring manipulation of the election result. The facts established revealed an administrative mistake and not deliberate manipulation of the election such as could reasonably lead to a conclusion that the electoral principles in regard to free and fair elections were breached.  In addition the election court did not apply section 83 of the Elections Act, 2012 as neither the missing counterfoils nor the missing vote bundles were irregularities that affected the elections or undermined the integrity of the electoral process, such as could justify the nullification of the appellant's election.

7.      The election court did not give effect to the will of the electorate in Lamu County in regard to the Lamu gubernatorial election. The will of the electorate could not be determined through conjecture and supposition. The will of the electorate was clearly demonstrated by the majority votes cast in favour of the appellant in an election that was apparently free and fair, as the administrative mistakes committed by IEBC and 4th respondent did not affect the results of the elections or undermine the integrity of the electoral process.

8.      Under Rule 18 of the Election Petition Rules, 2013, the consolidation of the petition was only intended for the purpose of expediting the hearing of the election petitions, so that one inquiry was carried out in regard to petitions arising from the same election. The Rule did not take away the individual characteristic of the petitions, as each petition questioned the conduct of the elections on its own peculiar grounds. While a general inquiry into the conduct of the election was carried out, the election court was obliged to make specific findings in regard to the grounds put forward by each petitioner, to the extent that the general inquiry applied. Where necessary the election court would have to go beyond the general inquiry in addressing issues peculiar to a particular petition.

9.      The election court properly applied Rule 18 to arrive at a conclusion regarding the specific prayers sought in Petition No. 4 of 2013 and Petition No 5 of 2013. The decision of the court in dismissing one petition and allowing the other was obviously informed by its findings on the specific grounds upon which the conduct of the elections was challenged, and the prayers sought in each petition.

10. There was no selective application or discrimination in applying the results of the scrutiny and recount of the ballots to petition No 5 of 2013 and not Petition No 4 of 2013. Nor was there any violation of the 1st respondent’s constitutional rights under article 27 of the Constitution of Kenya, 2010. Moreover, the finding made by the election court that there was breach of articles 81 and 86(d) of the Constitution of Kenya, 2010 was wrong as it was a conclusion that a reasonable tribunal could not have arrived at given the primary facts that were established.

11. On the issue of costs, under section 84 of the Election Act, the election court had discretion to award costs but such costs should follow the cause. Further Rule 36(2) of the Election (Parliamentary and County Election) Petition Rules 2013, gave the election court discretion to make orders on costs. Thus, the award of costs was in the unfettered discretion of the election court.

12. An appellate court could only interfere if the election court’s discretion was not exercised judiciously. In imposing the burden of payment of costs upon IEBC and the 4th respondent whose conduct led to Petition No 5 of 2013 being allowed, and ordering the 1st respondent (whose petition was dismissed) to meet its own costs, the election court exercised its discretion judiciously and in accordance with the relevant provisions of the law.

Appeal allowed, appellant declared the validly elected as Lamu County Governor; order by election court nullifying the gubernatorial elections quashed and set aside; cross appeal dismissed with costs to the 1st & 2nd respondents equally.

Cases:

East Africa;

  1. Albeity, Hassan Abdalla v Abu M Abu Chiaba & another Election Petition No 9 of 2013 – (Mentioned)
  2. Amana, Richard v Independent Electoral and Boundaries Commission & 2 others Election Petition No 6 of 2013– (Explained)
  3. Attorney General v David Marakaru (1960) EA 484 – (Distinguished)
  4. Bura v Sarwatta (1967) EA 234 – (Explained)
  5. Bwana, Bwana Mohamed v Shakilla Abdalla Mohamed Election Petition No 7 of 2013 – (Explained)
  6. Ferdinand Waititu v Independent Electoral and Boundaries Commission & 8 others Election Petition No 1 of 2013 – (Explained)
  7. Joho v Nyange (2008) 3 KLR 500 – (Explained)
  8. King'ara, Peter Gichuki v Independent Electoral & Boundaries Commission & 2 others Civil Appeal No 23 of 2013 – (Explained)
  9. Mbowe v Eliufoo, (1967) EA 140 – (Distinguished)
  10. Motor Vessel  “Lillian S” v Caltex Oil (Kenya) LTD [1989] KLR 1 – (Followed)
  11. Musau, Thomas Mulinda & 2 others v   Independent Electoral and Boundaries Commission & 2 others Election Petition No 2 of 2013– (Followed)
  12. Musimba, Patrick Mweu v Richard N Kalembe Ndile & 3 others Civil Application No 231 of 2013 – (Explained)
  13. Nairobi City Council v Thabiti Enterprises (1995-1998) 2 EA 231 – (Explained)
  14. Ndile, Richard Kalembe v Patrick Musimba Election Petition No 117 of 2013 – (Explained)
  15. Nyamweya, Manson v James Magara & 2 others Election Petition No 3 of 2008 – (Followed)
  16. Odinga, Raila & 3 others v Independent Electoral and Boundaries Commission & 2 others Petition No 5 of 2013 – (Explained)
  17. Peters v Sunday (1958) EA 424 – (Explained)
  18. Selle v Associated Motor Boats Company Limited (1968) EA 123 – (Explained)
  19. Speaker of the Senate & another v Attorney General & another & 3 others Advisory Opinion Reference No 2 of 2013 – (Followed)
  20. Wambua, Gideon Mwangangi v Independent Electoral and Boundaries Commission & others Election Petition No 4 of 2013 – (Explained)

United Kingdom;

  1. Associated Provincial Picture Houses Ltd v Wednessbury Corporation [1947] EWCA Civ 1 – (Explained)
  2. Bracegirdle v Oxley (1947) 1All ER 126; [1947] KB 349  - (Followed)
  3. Morgan v Simpson (1974) 3All ER – (Followed)

Statutes:

East Africa;

  1. Appellate Jurisdiction Act (cap 9) section 3(1) – (Interpreted)
  2. Constitution of Kenya, 2010 articles 27, 38, 81(e); 86(d); 88(5); 164(1)(3); 182(4)(5)  – (Interpreted)
  3. Court of Appeal Rules, 2010 (cap 9 Sub Leg) rules 32(6); 94 – (Interpreted)
  4. Election (Parliamentary and County Elections) Petition Rules, 2013 (Act No 11 Sub Leg) rules 9(a); 18; 21; 33; 34(1); 36(1)(2); 39(3) – (Interpreted)
  5. Elections (General) Regulations, 2012 (Act No 11 Sub Leg) regulations 73(3)(4); 74; 77(1)(d); 78; 79(6)(7); 8(1)(2); 83(1)(a); 86; 93(1); 97(1) – (Interpreted)
  6. Elections Act, 2011 (Act No 24 of 2011) sections 2; 80(3); 82(1), 83, 85A,  – (Interpreted)
  7. Evidence Act (cap 80) sections 107, 108, 112, 119 – (Interpreted)
  8. National Assembly and Presidential Elections Act (cap 7) (Repealed) section 23(4) – (Interpreted)

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Case Number: Petition 557 of 2013 Date Delivered: 23 Dec 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Royal Media Services Ltd, Nation Media Group & Standard Group Limited v Attorney General, Ministry of Communication & Technology, Communications Commission of Kenya, Signet Kenya Ltd, Star Times Media Ltd, Pan African Network Group Kenya Ltd & Go Tv Kenya Ltd & Consumer Federation of Kenya (Cofek) & West Media Ltd

Citation: Royal Media Services Ltd & 2 Others V Attorney General & 8 Others [2013] eKLR

Why the Media House Lost the Digital Migration Case

 

Royal Media Services Ltd & 2 others v Attorney General & 8 others

Petition No. 557 of 2013

High Court at Nairobi

D. S. Majanja, J

December 23, 2013

Reported by Mercy Ombima

Brief Facts

Kenya ratified the Convention of the International Telecommunication Union (“ITU Convention’) which obligated its members to migrate its television signal transmissions from analogue to digital. The government had, in bid to implement the ITU Convention, set up a taskforce known as the Taskforce on the Migration from Analogue to Digital Broadcasting ("the Migration Taskforce ") to spearhead the migration process. One public broadcaster called Kenya Broadcasting Corporation (“KBC”) had in that regard been granted a conditional signal distribution license. The other Broadcast Signal Distribution (“BSD”) licenses were to be given to private investors by the Third Respondent, the Communications Commission of Kenya (CCK) through a competitive procurement process, when the market conditions were suitable. CCK was a body charged with granting licenses to any person(s) to provide signal distribution services. The Petitioners were limited liability companies engaged in the provision of broadcasting and media services throughout the Republic of Kenya. The First and Second Petitioners, Royal Media Services Ltd and Nation Media Group Limited, had through their consortium, National Signal Network, bid for the BSD license and lost.

The Petitioners, aggrieved in that regard, instituted a constitutional petition in court to challenge the same. They argued that the issue of the licenses to other licensees to their exclusion was a violation of articles 33 and 34 of the Constitution, on their right of media and establishment as television broadcasters. They were of the view that as established broadcasting houses, they had a right to be granted digital broadcasting licenses as of right. They also argued that the proposed switch over date from analogue television transmission to digital terrestrial television broadcasting, of 13th December 2013, was punitive and against public interest. This was because public consumers were required to change their television set to boxes from analogue to digital, which sets were more expensive and unaffordable to majority of the average Kenyans. They alleged that the switch-over would infringe on their right of establishment as media houses and broadcasters and would disenfranchise the public's right to receive information.

 

Issues

i. Whether the migration of the television signal transmission from analogue to digital, infringed on the Petitioners’ right of media and establishment as media houses.

ii. Whether the timing of the switch-over set on the 13th December, 2013, was unreasonable, being at a period when majority of average Kenyans would be burdened with expenses such as school fees, which are usually due at the beginning of the year.

 iii. Whether the migration of television transmission signals to digital broadcasting would contravene citizen’s consumer rights, being that the majority of average Kenyans would be required to change their television set top boxes from analogue to digital at an expensive cost.

iv. Whether the migration of television signal transmission from analogue to digital would disenfranchise the public's right to receive information, especially for those who would be unable to purchase the digital set-top boxes.

v. Whether the issue of Broadcast Signal Distribution licenses through a competitive procurement process was in violation of the petitioners’ freedom of media and right of establishment as broadcasting and media houses.

 

Constitutional Law – fundamental rights – freedom of the media – right of establishment - where the petitioners, broadcasting and media companies were denied Broadcast Signal Distribution (“BSD”) licenses – where the BSD licenses were issued in line with the requirement of migration of television signal transmission from analogue to digital – where the Third Respondent, the Communications Commission of Kenya (CCK) was required to issue the BSD licenses through a competitive procurement process, when the market conditions were suitable – where the First and Second Petitioners, Royal Media Services Ltd and Nation Media Group Limited, had bid for the BSD license and lost – claim that their denial to be issued with the BSD license was in contravention of their fundamental right of freedom of the media and the right of establishment as broadcasting companies – whether the Petitioners were entitled to be issued with the BSD licenses as of right – Constitution of Kenya 2010 articles 2(5); 2(6); 10; 27; 33; 34;35; 227(1), United Nations Declaration on Human Rights article 19

 

Constitutional Law – fundamental rights and freedom – right to information – where the government of Kenya adopted the switch-over of television transmission signals from analogue to digital – whereby in order to receive the digital signal, consumers were required to purchase digital set top boxes – claim that the digital set top boxes were costly and hence unaffordable by majority of consumers – claim that the digital migration unreasonably limited and restricted the public's right to choose between analogue and digital broadcasting in contravention of the Constitution - claim that the digital migration would cause hardship and inconvenience to Kenyans – where the switchover date was scheduled to be on 13th December 2013 – whether the timing of the switch-over was reasonable - Constitution of Kenya 2010 articles 2(5); 2(6); 10; 27; 33; 34;35; 227(1), United Nations Declaration on Human Rights article 19

 

Held

1. Article 34 of the Constitution of Kenya 2010 embodied a free standing freedom of the media. That freedom was intended to buttress the freedom of expression guaranteed under article 33. It supported the democratic nature of the State of Kenya by enhancing the national values and principles embodied in article 10, including among others, participation of the people, good governance, integrity and accountability.

2. The nature of the frequency spectrum was a public resource. It was a scarce public resource allocated by the Communications Commission of Kenya (CCK) in order to ensure utilization in a co-ordinated manner so as to benefit the public as a whole - Royal Media Services Limited v Attorney General and others Nairobi Petition No.  346 of 2012

3. Article 34 of the Constitution did not exclude regulation of electronic media. The article in fact contemplated licensing procedures that were necessary to regulate the airwaves and other forms of signal distribution. There was nothing in article 34 that excluded the Petitioners or any other media house from the purview of regulation that was necessary.

4.  Moreover, the fact that the Petitioners were established prior to the promulgation of the Constitution 2010 did not grandfather their established rights and privileges into the Constitution. Existing licenses were still subject to the regulation that was applicable to all other broadcasting media companies. Such regulation was subject to the Constitution and the values of democracy, human rights, human dignity, non-discrimination, public participation and all the other values set out in article 10 of the Constitution.

5. The process adopted by the CCK to competitively source for the second BSD license through the Public Procurement and Disposal Act found its pedigree in article 227(1) of the Constitution . The article provided that when a state organ or any other public entity contracted for goods or services, it was to do so in accordance with a system that was fair, equitable, transparent, competitive and cost-effective. In enacting the Public Procurement and Disposal Act, Parliament acted in accordance with the mandate donated to it under article 227(2) which required it to enact legislation to provide a framework within which policies relating to procurement and asset disposal should be implemented.

6. Nothing in the Constitution or law entitled the Petitioners, as established media houses, to BSD licenses as of right. Article 34 of the Constitution did not entitle any broadcaster or any person to a BSD license or any other license as a matter of right. It did not give preference to any person or group on the basis of historical and substantial investment in the broadcasting sector. No doubt the petitioners, as many other investors, had made huge contributions to the economic wellbeing of the country. That, however, could not be used to secure a license as of right. It would be unsettling to accept such a proposition and absent a constitutional provision or a justifiable statutory requirement grounding such a venture. The court could not be used to advance such a course.

7. Licensing was a process that was subject to certain conditions governed by the relevant statutory framework underpinned by the Constitution.  A finding that the Petitioners had a legitimate expectation to a license would be inconsistent with the Petitioners participation in the Migration Taskforce.  It would be contrary to the fact that the First and Second Petitioners, as a consortium, bid for the license when the same was put up by CCK and the fact that they were given a further opportunity to apply for a license on the basis of affirmative action, which opportunity they did not avail themselves. A finding in favor of the Petitioners, that the nature and extent of investment in broadcasting infrastructure established a legitimate expectation, that they would be granted a broadcasting license of another kind in the future as of right would be inconsistent with constitutional principles and values under article 10 of the Constitution.

8. Conversely, if the legitimate expectation argument was to be claimed, it would be used in favor of the Respondents and other investors who, based on the publicized government’s digital migration policy, had strived to align their business accordingly and had invested heavily to take advantage of the anticipated changes. Those players had also acquired rights which could not be glossed over. Granting the Petitioners a favorable position based on their substantial previous investment would, without more, violate the right to equality and freedom from discrimination from prospective players, in the media and broadcasting industry. It would thus amount to a breach of article 27 of the Constitution. Such an approach would injure the spirit of competition by giving the Petitioners an unjustified and unfair advantage over other media players, and hence undermine the values and principles of national governance by entrenching the privilege of incumbency.

9. Further, the failure to obtain the BSD license would not hinder the Petitioners’ ability to broadcast.  All they were required to do was to enter into a contract with signal distributors to distribute their content. That requirement was not an unreasonable imposition on the Petitioners as it was intended to meet the policy objectives in the Migration Taskforce Report.

10. The digital migration was going to cause some hardship to the Petitioners’ business and other inconvenience to Kenyans.  But that was not the kind of hardship or inconvenience that could be put on hold indefinitely. No date for the switch-over would be convenient and perfect either then or in the future. What remained a constant was that technology continued to evolve and the framework for adapting to that change had been developed by the Second and Third Respondents with the participation of the Petitioners. That could not hold back the clock for three reasons;

a. First, the date of switch over was not one that was arrived at unilaterally but was one in which the Petitioners’ representatives had a say in.

b. Second, the migration process was being implemented in phases, beginning with Nairobi and then gradually spreading throughout the country.

c. Third, although the issue of availability and affordability of the digital set –top boxes was a valid concern, the Respondents would do well to consider mitigating as the process was implemented.

11. The resolution of teething problems could be done once the problems were identified, and that could only be done once the switch-over was implemented. There was no reason for the court to step in and forestall the digital migration process merely on the basis of the anticipated challenges, whether real or perceived.

12. Many investors were waiting for the digital migration to be concluded so that they could realize their investment. Other investors had already invested in digital transmission through importing and selling the digital set-top boxes while others are preparing to begin investment in broadcasting content.  Digital migration had been implemented on the basis of a programme rolled out by the Digital Television Committee. All the activities undertaken were dependent on a certain and predictable policy environment which the Ministry and CCK were expected to engender and maintain. The Petitioners could not call upon the court to review policy decisions that had been taken on a consultative basis by applying specific experiences from other countries.

13. While the Petitioners were right that television was an important medium of communication, the Constitution did not prescribe the kind of technology to be used in broadcasting. The manner in which broadcasting was carried out, whether on an analogue or digital platform, was a matter of policy. The frequency spectrum was not an infinite resource and policy makers had the obligation to adopt, through licensing procedures, technologies that led to optimum utilization of the frequency spectrum.

14. The bodies charged with formulating and implementing policies had examined the challenges and opportunities and had concluded that on the whole, the benefits of digital migration outweighed any difficulties in implementing such a policy. The Petitioners, as broadcasters, were involved in the entire process and as a result they had the opportunity to align their businesses to anticipated policy and technology changes. Businesses had to adapt to changes in technology or risk extinction. Neither the Constitution nor the Court could insure the Petitioners’ business against the changes in technology which had been embraced and implemented through a participatory, open and transparent process.

Petition Dismissed With Costs

Cases:

East Africa;

  1. COFEK v Minister for Information and Communications & 2 others Petition No 563 of 2013 - (Explained)
  2. Consumer Federation of Kenya v Minister for Information and Communication & 2 others Petition No 563 of 2013 – (Explained)
  3. Kenya Transport Association v Municipal Council of Mombasa & another Petition No 6 of 2011 – (Explained)
  4. Kilonzo, Diana Kethi & another v Independent Electoral and Boundaries Commission & 2 others Petition No 359 of 2013. (Explained)
  5. Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Appeal No 290 of 2012 - (Explained)
  6. Mong’are, Denis Mogambi v Attorney General Petition No 146 of 2011 - (Explained)
  7. Mwakwere, Chirau Ali v Robert Mabera & 4 others Petition No 6 of 2012 - (Explained)
  8. Mwangi, Peter Njoroge & 2 others v Attorney General & another Nairobi Petition No 73 of 2010 - (Explained)
  9. Mwau, John Harun & 3 others v Attorney General & 2 others Petition No 65 of 2011 - (Explained)
  10. Nairobi Metropolitan PSV Saccos United Ltd & 25 others v County of Nairobi Government & 3 others Nairobi Petition No 486 of 2013 -  (Explained)
  11. Olum & another v Attorney-General of Uganda [2002] 2 EA 508 - (Explained)
  12. Omwenga, Joel Nyambuto & 2 others v Independent Electoral and Boundaries Commission & another Election Petition No 2 & 6 of 2013 (Consolidated) - (Explained)
  13. Republic v National Environment Management Authority Civil Appeal No 84 of 2010 - (Explained)
  14. Royal Media Services Limited v Attorney General & others Petition No 346 of 2012 - (Explained)
  15. Royal Media Services Limited v Director of Public Prosecutions Miscellaneous Application No 43 of 2013 - (Explained)
  16. Trade Bank Limited v LZ Engineering Construction Limited [2000] 1 EA 266 (Explained)
  17. Wananchi Group (Kenya) Limited v Communication Commission of Kenya & another Petition No 98 of 2012 - (Explained)
  18. Wanjiku, Beatrice & another v Attorney General & another Petition No 190 of 2012 - (Explained)

Australia;

  1. Benjamin v Minister of Information &Broadcasting [2001] 4 LRC 272 – (Explained)
  2. Central Broadcasting Services Limited v Attorney General [2007] 2 LRC 19  - (Followed)
  3. Retrofit v Posts & Telecommunications Corporation [1996] 4 LRC 489 – (Explained)

Bermuda;

  1. Observer Publication v Mathew and others [2001] 4 PRC 288 (PC) - (Explained)

South Africa;

  1. Minister of Health & others v Treatment Action Campaign & others, CCT 8/02, [2002] ZACC 15 – (Followed)

United Kingdom;

  1. Hunter v Chief Constable of the West Midlands Police & others [1981] UKHL 13 – (Mentioned)

United States;

  1. Red Lion Broadcasting Co v FCC 395 US 367 (1969) – (Mentioned)

Statutes:

East Africa;

  1. Constitution of Kenya, 2010 articles 2(5)(6); 10; 22; 27; 33(2); 34(3)(5)(b); 35; 227(1)(2); 261(1) – (Interpreted)
  2. Constitution of Kenya, 2010 section 7(1) – (Interpreted)
  3. Kenya Information and Communications (Amendment) Bill, 2013 In general - (Interpreted)
  4. Kenya Information and Communications Act (cap 411A) section 5 – (Interpreted)
  5. Kenya Information and Communications Act, 1998 (Repealed) In general – (Interpreted)
  6. Public Procurement and Disposal Act, 2005 (Act No 3 of 2005) section 100 – (Interpreted)
  7. Treaty Making and Ratification Act, 2012 (Act No 45 of 2012) In general – (Interpreted)

Texts & Journals:

  1. Lord Simonds et al (Eds) (1973) Halsbury’s Laws of England London LexisNexis Butterworths 4th Edn p 861

International Instruments & Covenants:

  1. United Nations Declaration on Human Rights, 1948 article 19

International Telecommunication Union Convention in 1964

 

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