Reported by Andrew Halonyere &Cynthia Liavule

Issues

1. What happens when there is a direct and clear conflict between the transitional and consequential provisions, and the substantive provisions of the Constitution?

2. Whether the National Assembly as it has been saved under Section 10 of the Sixth Schedule to the Constitution of Kenya, 2010 implies that its members would be exempted from paying taxes on their allowances.

3. Whether there is a legitimate expectation by virtue of the existence of the National Assembly Remuneration Act (Cap 5) and section 6 of the Sixth Schedule to the Constitution.

4. Whether the taxation of allowances of members of parliament would amount to a violation of their right to property as envisaged under Article 40 of the Constitution of Kenya 2010.

5. Whether the executive arm of Goverment has powers to exempt any state officer from payment of tax.

6. Whether the High Court has jurisdiction to assess the amount of tax that is payable by anyone.

Constitutional law – public finance - taxation - taxation of income – where the Constitution makes provision that no class of state officers would be exempt from paying taxes - whether members of parliament were under an obligation to pay taxes – whether the executive arm of Goverment could exempt the members of parliament from paying taxes – whether the High Court had jurisdiction to determine the amount of taxes that any person could pay.

Statutes - interpretation of statutes – interpretation of constitutional provisions – Constitution to be read as an integrated whole – where there is a conflict between substantive provisions and transitional clauses – whether the substantive clauses should prevail – Constitution of Kenya, 2010 Articles 40,27,201,Sixth Schedule section 10, National Assembly and Remuneration Act section 5 (Cap 5).

Constitution of Kenya, 2010

Article 210(1) -There shall be no imposition, waiver or variation of tax or licensing fee except by legislation

Article 210(3) – No law may exclude or authorize exclusion of a state officer from payment of tax

Article 262 -Gives effect to the Transitional and Consequential provisions set out in the Sixth Schedule to the Constitution. The Article also preserves certain rights of Members of the National Assembly as presently constituted until the expiry of their term

Article 230 - Review of salaries of State Officers to be the exclusive duty of the Salaries and Remuneration Commission

National Assembly Remuneration Act section 5 (Cap 5) – provides that All allowances payable under the Act shall be exempt from income tax notwithstanding the provisions of any other written law relating to income tax.

Held

1. The transitional provisions contained in the Sixth Schedule to the Constitution of Kenya, 2010 are intended to assist in the transition into the new order, but are limited in time and in operation and are to remain in force for the period provided in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions are as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution.

2. The Constitution must be read as an integrated whole, and that where there is a conflict between substantive provision and transitional provisions, then the substantive provisions of the Constitution would prevail. The role of the transitional clauses in the Constitution is to ensure a smooth shift from the old to the new order, while the role of the Constitution is to address and correct past injustices, and ensures that the citizens’ rights are protected in the future.

3. The National Assembly Remuneration Act would continue to be in force with regard to the remuneration of the members of the National Assembly. That legislation was enacted before the promulgation of the Constitution of Kenya 2010. The Act however, had to by virtue of section 7 of the Sixth Schedule to the Constitution, be brought into conformity with the Constitution. As a result, any legislation made by parliament or agreement that was made in violation of the provisions of the Constitution was void.

4. Nothing in the substantive provisions of the Constitution, nor in the Transitional and Consequential provisions in the Sixth Schedule suggested that any class of state officers would have been exempted from paying taxes on any part of their income.  Had the intention been to exempt any state officers from the obligation of payment of tax, then that would have been expressly stated.

5. Article 210 of the Constitution provides that where it is envisaged that there will be a waiver or exemption from taxation, then it must be legislated and must also be reported to the Auditor General. Therefore it is not possible to claim that Members of the National Assembly have a right not to pay taxes on their allowances, exemption from taxation is a privilege, and not a right.

6. There was no legitimate expectation that Members of the National Assembly would have been exempted from payment of taxes.

7. The right to property under the Constitution encompasses the right to acquire and own any property, such as land, goods, intellectual property, money or negotiable instruments. The right to property does not encompass the right to be paid tax-free allowances for members of the National Assembly or for any sector of the society.

8. Article 210 has no exclusion or exemption in matters of taxation.  Deviations were subject to judicial scrutiny. Any deviations must not be such as to deprive citizens of fair, transparent and effective tax regimes which are applicable to all in equal measure

9. Taxation is a civil duty, and under the Constitution, all State Officers are under an obligation to pay tax. Due to the supremacy of the Constitution, and the fact that the Constitution binds all persons, as well as the state, there can be no agreement that can exempt any State Officer from the payment of tax.

10. By virtue of section 3 (2) of the Sixth Schedule to the Constitution, the members of the National Assembly were entitled to set their own terms and benefits. That entitlement was however extinguished once the Salaries and Remuneration Commission was established. The court therefore did not have the jurisdiction to determine the amount of taxes that any person could pay. The court was also not in a position to determine the manner in which the National Assembly should allocate public money.

11. The executive could not donate an illegal or unlawful benefit and if it did, it was an act done in violation or contravention of the clear provisions of the Constitution, notwithstanding the consequences of the contravention. Equally, parliament or parliamentarians were not entitled to accept an unlawful advancement of monies belonging to the citizens of Kenya.

Petition allowed

Cases referred to

1. Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR (Petition No. 146 of 2011)

2. Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] 

3. John Harun Mwau & 3 others V Attorney General & 2 others [2012] eKLR (Constitutional Petition No. 65 of 2011 Consolidated with Petitions Nos 123 of 2011 and 185 of 2011)

4. Ng Ka Ling and others v Director of Immigration (Final Appeal No. 14, 15, 16 Of 1998 (Civil)

5. Council Of Civil Service Unions V Minister For Civil Service (1985) AC 375

EFFECT OF THE HIGH COURT DECISION ON THE DELIMITATION OF ELECTORAL UNITS

Reported by Emma Kinya Mwobobia

This was a matter regarding the delimitation of electoral units under Article 89(11) of the Constitution where complaints had been earlier raised regarding the manner in which the 80 new constituencies and 1450 County Assembly wards had been created, their distribution, their names, boundaries and areas of allocation. The movement of sub locations hitherto falling in one constituency to one or more of the propose constituencies was also contested. In disposing of the matter, the court issued orders for the renaming of certain wards, the moving of some wards, locations and sub-locations into other constituencies, the moving of some locations into certain wards and for the amendment of the maps of the affected constituencies in the IIEBC final report.

The instant application therefore seeks orders to review the previous judgment in respect of constituencies so as to reflect the County Assembly wards to accord with the decision.

Issues

1. Whether the movement of the 6 sub locations from one constituency to another would have been contrary to the court’s previous decision which did not interfere with the sub locations?
2. What was the effect and consequence of the judgment that had been previously delivered by the High Court?

Constitutional Law - electoral and boundaries law – delimitation of electoral and administrative boundaries – petition seeking the movement of six sub locations from Nandi Hills constituency to Tinderet constituency – effect and consequence of the previous decision by the High Court – whether the movement of the six sub locations from one constituency to another would have been contrary to the intention of the previous decision by the High Court not to interfere with the sub locations.

Held:

1. To have allowed the application would have been tantamount to undertaking a fresh delimitation. That would have necessitated the re-ordering of other sub locations in neighboring County assembly wards to ensure that they complied with the constitutional threshold.

2. The effect of the previous judgment was to create a right that had now crystallized and taken effect and the nature of the instant application would have had a fundamental effect on the decision.

3. The court was mindful that the delimitation process was not only a legal process but a political one within which strict timelines had been set by the Constitution and the statutes governing the conduct of elections.

Petition dismissed.

Jurisdiction of the court to issue conservatory orders

By Njeri Githang’a

Constitutional Law – Conservatory orders-jurisdiction of the court to issue conservatory orders-circumstances under which conservatory orders can be issued- where the guiding factor should be whether there was a prima facie case with a probability of success at the hearing- whether the court could grant an interim protection or reliefs in view of the weighty and substantial questions raised by the applicants

Issues:

1. Whether the court could to grant an interim protection or reliefs in view of the weighty and substantial questions raised by the applicants?

Held:

1. Under Article 23(3) (c) of the Constitution of Kenya, 2010, the Court had powers to grant conservatory orders at any stage of the proceedings if it deemed fit to do so. However, the court had to be satisfied with;

the credentials of the petitioners,

the prima facie correctness or nature of information available to Court;

whether the grievances are genuine, legitimate, deserving and or appropriate;

whether the applicant has shown or demonstrated the gravity and seriousness of the dispute; and

whether the petitioners have engaged in wild, vague, indefinite or reckless allegations against the respondent.

2. The role of the High Court was to secure observance of Constitutional, Statutory and International Standards of all persons and to ensure that the basic human rights, benefits and privileges are protected, preserved and often times enhanced.
3. The matters raised were not frivolous and indeed needed further inquiry both at the stage of the hearing of the chamber summons and the petition itself. The court had to eventually examine the contours and boundaries of section 23 of the Sixth Schedule and the entire Vetting Act.
4. A party seeking a conservatory order only required to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution.
5. Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court had powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. That was meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission.
6. The determination was not in any way a final definition or determination of the dispute. It was meant to give an interim protection as sought by the applicants.
7. Since the issues raised were weighty and substantial and in order to give the matter a fair and comprehensive interpretation it was appropriate for the composition of the bench be enlarged to five judges.
8. Per G.K. Kimondo J. (Dissenting)
9. Though the amendments to section 23 of the Vetting of Judges and Magistrates Act invited serious constitutional scrutiny, they could only be determined upon hearing all the parties and examining the evidence and materials before the court. The court was enjoined by article 159 of the constitution as well as sections 1A and 1B of the Civil Procedure Act to do substantial justice to the parties.
10. The conservatory orders sought on the other hand were so far reaching and extensive as to bring to a complete halt the operations of the Board. The orders sought permeate the boundaries of the case for the petitioners to extend to all and any other determinations by the board.
11. Key respondents had not had their full say on the application for interim orders. There was also the public interest and costs to be weighed, and further the vetting process was on a strict timetable. The overriding interest and concept of proportionality demanded for the petition to be canvassed fully on the merits.
12. Given the principles of proportionality and balance vis a vis the public, there was undeniably a great public interest in the implementation of the Constitution of Kenya, 2010 that had to override the private right or interest to halt possible prejudice to the administration of justice. There was a legitimate public expectation that the vetting process which had a timeline within which to complete its work had to continue.

Conservatory order denied

Order by the Majority

Matter to be placed before the Chief Justice for purposes of enlarging the panel to five; all matters or proceedings before the Board stayed for a period of 14 days or until further orders

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