Procurement and contractual agreements for the standard gauge railway done on behalf of the Kenyan and Chinese Governments were not subject to the provisions of the Public Procurement Disposal Act, 2005

Brief facts

On August 12, 2009, the Ministry of Transport executed a memorandum of understanding (MOU) with the 4^th respondent, China Road and Bridge Corporation (CRBC), a state- owned corporation of the Peoples Republic of China. Under the MOU, CRBC was to undertake, at its own cost, a feasibility study of the construction of phase 1 of the standard gauge railway (SGR) and come up with a preliminary design for the project. The feasibility and preliminary design report was approved by the 1^st appellant, Kenya Railways Corporation (KRC) with revisions on June 26, 2012. KRC and CBRC executed commercial contracts. In a bid to meet its portion of the funding of the project, the Government introduced a railway development levy at the rate of 1.5% of the customs value of imported goods to be charged on all imports. 

The 1^st, 2^nd and 3^rd respondents filed petitions at the High Court challenging the procurement process for the construction of the SGR and the resultant contracts in favour of CRBC. In their petition, the 1^st and 2^nd respondents urged that there was lack of due diligence on the part of the Government. The 1^st and 2^nd respondents argued that single sourcing or direct procurement for a mega project such as the SGR was illegal. Consequently, they sought among other orders; a declaration that there was no valid contract between the Government of Kenya and CRBC; and a declaration that the railway should be procured through competitive bidding. 

The petition by the 3^rd respondent (LSK) challenged the procurement process of the SGR project on largely similar grounds as those raised by the 1^st and 2^nd respondents, the only addition being that KRC should have ensured public participation in the procurement. LSK sought among other orders; an order of certiorari to quash the award of contract for the supply and installation of facilities, locomotives and rolling stock for the SGR or any agreement for the supply of the same. KRC lodged a cross petition challenging the reliance by the 1^st, 2^nd and 3^rd respondents on documents that were produced contrary to articles 31 and 35 of the Constitution and section 80 of the Evidence Act. 

The High Court dismissed the consolidated petitions and allowed the cross petition to the extent of expunging documents it had found inadmissible. The High Court found that the project was funded by a loan from China through Exim Bank and as such, the procurement in question was not subject to the Public Procurement and Disposal Act, 2005 (PPDA, 2005), but was governed by the terms of the negotiated loan. The court found that an autonomous environmental impact assessment (EIA) was conducted and an EIA license issued and that the respondents failed to challenge the EIA license issued to CRBC for the project at the National Environment Tribunal (the Tribunal). The High Court also found that the SGR was not a World Bank funded project and therefore the blacklisting of CBRC was not an automatic bar to participation of CRBC in any other project.

Aggrieved, the 1^st, 2^nd and 3^rd respondents filed appeals at the Court of Appeal which upheld the High Courts decision save for setting aside the finding that the procurement of the SGR project was exempt from the provisions of PPDA, 2005. It substituted the same with a declaration that KRC, as the procuring entity, failed to comply with, and violated the provisions of article 227 (1) of the Constitution of Kenya, 2010 (Constitution) sections 6(1) and 29, of the PPDA, 2005 in the procurement of the SGR project. Aggrieved by the Court of Appeals decision, the appellants filed the instant appeal.

Issues

1. Whether a State corporation qualified to be a procuring entity where it followed directives issued to it by the Executive and never allocated funds towards a project directly from the consolidated funds.
2. Whether procurement and contractual agreements between two State corporations of two governments was a government-to-government transaction and thus not subject to the provisions of the Public Procurement and Disposal Act, 2005. 
3. Whether irregularly obtained public documents/information were admissible as evidence in court. 
4. Whether documents obtained pursuant to parliamentary processes mutated into public documents where parties to a suit got into possession of the documents through an opaque process. 
5. Whether courts had the jurisdiction to determine matters relating to issuance of environment impact assessment licenses when the same had not been challenged at the National Environment Tribunal. 
6. What were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution? 
7. What was the nature of the doctrine of mootness?
8. When did the right to institute an action in a claim of violation of the right to access information crystallize? 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 227 - Procurement of public goods and services

1. When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Held

1. A courts jurisdiction emanated from either the Constitution or legislation or both, and a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. A court could not arrogate itself jurisdiction exceeding that which was conferred upon it by law.
2. Under article 163(4)(a) of the Constitution, appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. For a litigant to invoke the courts appellate jurisdiction, it must be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, and requiring the courts final input. Further, at the very least, an appellant must demonstrate that the courts reasoning and conclusions which led to the determination of the issue, could properly be said to have taken a trajectory of constitutional interpretation or application. Each case must, however, be evaluated on its own facts.
3. The issues identified revolved around the interpretation and application of provisions of the Constitution. In the premises, the issue of certification under article 163(4)(b) of the Constitution did not arise. The court was clothed with jurisdiction under article 163(4)(a) of the Constitution to determine the three identified issues.
4. Mootness of a matter arose where a live controversy no longer existed between parties to a suit and the decision of the court, in such instance, would have no practical effect. The doctrine of mootness enquired whether events subsequent to the filing of a suit would have eliminated the controversy between the parties.
5. At the time the petitions were presented to the High Court, the construction was yet to commence. Parties, however, opted to forego applications seeking interim conservatory relief aimed at stopping the construction. In focusing on instead, pursuing the hearing of the substantive petitions, it only meant that the respondents were alive to the fact that execution of the contract would have an impact on their pending petitions. The orders sought at the High Court, seeking to restrain the appellants from contracting with CRBC, and to ensure that there was no single sourcing in the procurement of the SGR were moot as they were overtaken by events, the contracts having been executed.
6. Completion of the construction of the SGR project did not render moot the consideration and determination of the remaining issues as to whether the SGR project complied with article 227 of the Constitution and section 6(1) of the PPDA, 2005; whether the 1^st, 2^nd and 3^rd respondents could rely on evidence provided by whistle blowers in support of their petitions, and the environmental considerations under the Constitution. Those were live issues that remained available for the courts consideration. Further, they raised matters of public importance owing to the sheer enormity of the project, the public finance expended and the project being for public use. In any event, the operative law surrounding the litigation remained unsettled.
7. The SGR project, though completed continued to raise questions especially in relation to the constitutionality of the project and the surrounding procurement process. The matters which the Court of Appeal dealt with were not moot.
8. From the pleadings filed at the High Court, the 1^st, 2^nd and 3^rd respondents did not disclose their source for the documents in support of the petitions at the High Court. The Evidence Act applied to all proceedings, including constitutional petitions save for the exceptions set out therein. The Evidence Act provided for admissibility of evidence with section 80 setting out the manner in which public documents may be produced in court. That procedure ensured the preservation of the authenticity and integrity of the public documents filed and produced in court. Further, section 81 of the Evidence Act allowed the production of certified copies of documents in proof of the contents of the documents or parts of the documents of which they purported to be copies.
9. Public documents could only be produced in court as evidence through the procedure set out. They could be produced as evidence in court by way of producing the original document or a copy that was duly certified. The documents having been adduced in evidence without adhering to the rather straightforward provisions, were outrightly rendered inadmissible.
10. Article 35 of the Constitution provided for the right to access information held by the State, including that held by public bodies. The Access to Information Act No. 31 of 2016 was enacted to give effect to article 35 and set out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to that provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. The right to institute an action in court only crystallized once a citizen had requested for the information from the State and the request had been denied or not provided. The 1^st, 2^nd and 3^rd respondents did not make a request to be provided with the information relied on.
11. To admit the illegally obtained information was detrimental to the administration of justice and the provisions of article 50(4) of the Constitution. Allowing such documents was akin to sanitising illicit actions of the 1^st, 2^nd and 3^rd respondents of irregularly obtaining evidence, in violation of article 31 of the Constitution on the right to privacy including privacy of communication. Further, such documents adduced by the 1^st to 3^rd respondents were of utmost confidentiality and related to communication within Government circles, between civil servants, relating to Government engagement and operations. Even if the authenticity or contents of the documents was not questioned by the appellants, the production of such documents as evidence must be in accordance with the law. Not having obtained and adduced the documents in the manner set out under sections 80 and 81 of the Evidence Act or requested for information under article 35 of the  Constitution, the documents were inadmissible.
12. It did not matter that some of the documents in issue had been readily tabled before Parliament and were subjected to debate at the different committees. Parliamentary processes were subject to certain privileges and immunities. Article 117 of the Constitution provided for powers, privileges and immunities. The objective of the powers, privileges and immunities as set out in article 117(2) was for the purpose of the orderly and effective discharge of the business of Parliament. Those powers, privileges and immunities extended to the parliamentary committees, the chairpersons of committees and Members of Parliament.
13. Parliament was empowered under article 125 of the Constitution to call for evidence including the production of documents. It could not be that documents obtained pursuant to parliamentary processes mutated into public documents just because the respondents were in possession of the documents through an otherwise opaque process. The 1^st to 3^rd respondents had not demonstrated how they gained possession of the impugned documents that were otherwise within a constitutionally sanctioned parliamentary process, to which the respondents had not explained their role.
14. The National Environment Management Authority (NEMA), just like any other statutory regulator, was only seized of the documents in furtherance of its statutory mandate to grant a licence. There existed a specific mechanism of dealing with and/ or relying upon information and documents availed to NEMA, bearing in mind the context within which NEMA received such documents. NEMA was not party to the court proceedings subject to the instant appeal. It was not enough for the 1^st to 3^rd respondents to allege that the documents were obtained from NEMA without the attendant contextualisation especially when the respondents failed to invoke the mechanism provided under the Environmental Management and Co-Ordination Act No. 8 of 1999 (EMCA).
15. The burden of proof always lay with the claimant, that was to say, he who asserted. Indeed, the reading of sections 35, 107 and 109 of the Evidence Act together with rules 15 and 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 revealed that newspaper articles were inadmissible as evidence in law. That was because facts contained in newspaper articles were merely hearsay.
16. In respect of corruption allegations complained of by the 1^st and 2^nd respondents, there were constitutional and statutory mandated bodies to address those. The Ethics and Anti-Corruption Commission Act No.22 of 2011 enacted pursuant to article 79 of the Constitution provided for the functions of the Ethics and Anti-Corruption Commission (EACC) at section 11(1) to include receiving complaints on the breach of the code of ethics by public officers, investigating and recommending to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under the Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, the Witness Protection Agency established under section 3A of the Witness Protection Act No.16 of 2006 had its purpose set out under section 3B(1) as to provide the framework and procedure for giving special protection on behalf of the State, persons in possession of important information and who were facing potential risk or intimidation due to their co-operation with prosecution and other law enforcement agencies.
17. Whereas article 22 of the Constitution entitled every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened, and article 258 of the Constitution entitled every person to institute court proceedings claiming that the Constitution had been contravened or was threatened with contravention, those provisions ought not to be abused in the name of public interest. That was, more so, where the litigants sought to advance private or political interests or other considerations through proxies. Attractive as it may sound, public interest litigation must abide by laid down rules of procedure and the law, and must be aimed at addressing genuine public interests and not used for personal gain or vendetta.
18. Public-spirited litigants rushed to courts to file cases in profusion under the attractive name of public interest litigation. They must however inspire confidence in courts and amongst the public, and most importantly, be above suspicions. Easy access to courts under article 22 and 258 of the Constitution should therefore not be misused as a license to file frivolous claims disguised as public interest. Articles 22 and 258 of the Constitution were not open-ended panacea or bogey provisions to be resorted to as a panacea to any person under the guise of public interest. Like any other well intended provision of the Constitution, it was bound to be abused and when that happened, the courts should not hesitate to rein in such abuses.
19. Article 42 of the Constitution entitled every person to the right to a clean and healthy environment which included the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in article 69 and to have obligations relating to the environment fulfilled under article 70 of the Constitution.
20. Article 69 of the Constitution  set out the obligations of the State which included, to eliminate processes and activities that were likely to endanger the environment and establishing systems of EIA, environmental audit and monitoring of the environment. Article 70 of the Constitution provided for the enforcement mechanism and provided that where there were allegations of violations of the rights under article 42 of the Constitution, or there was a likelihood of being denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that were available. The court may then make orders or directions appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment; compel the public officer to take measures to prevent or discontinue any act or omission that was detrimental to the environment or provide compensation for victims of violation of the right.
21. EMCA  was the legislation enacted to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto. Section 58 of EMCA, made provision for the application of an EIA. Every proponent of a project specified under the Second Schedule to EMCA was required to conduct an EIA. Under regulation 4 of the Environmental (Impact Assessment and Audit) Regulations of 2003, no licensing authority shall issue any license, permit or approval prior to the issuance of an EIA.
22. From the EIA report on record, the scope of the report included the identification and discussion of any adverse negative impacts to the environment anticipated from the proposed project and mitigation measures set out therein, on the possible impacts on the environment including emissions to air and exhaust emissions. A notice of the EIA study report of the SGR project in accordance with the provisions of EMCA was published in the Kenya Gazette and a similar publication in a newspaper of wide circulation in Kenya. The gazette notice and the newspaper publication invited members of the public to give comments and/ or complaints within sixty days as required under EMCA. The 1^st to 3^rd respondents had neither rebutted that proposition nor indicated any attempts to react to that notice. Kenya Wildlife Service being a statutory body mandated to conserve and manage wildlife in Kenya, was at liberty to engage its appropriate mechanism. As it was not a party to the instant proceedings.
23. NEMA granted an EIA license to the CRBC. Pursuant to section 129(1) of EMCA, any person aggrieved by the grant of a license or permit or a refusal to grant a license or permit or the transfer of a license or permit under the Act may within sixty days appeal to the tribunal established under section 125 of EMCA. The 1^st and 2^nd respondents grievances on the issuance of the license and the EIA therefore fell within the jurisdiction of the tribunal. They did not avail themselves their day before the tribunal, thereby taking a fatal step to the courts.
24. The bilateral agreement and the MoU were executed in 2009 prior to the promulgation of the Constitution of Kenya, 2010, while the commercial contracts were signed in 2012. From the definition in the Blacks Law Dictionary 11^th Edition, an MoU was preliminary to a contract and or agreement between parties and was characterized as non-binding and unintended to create any contractual obligations on either party. That did not mean that courts were not faced with the question of establishing the binding nature of an MoU. When that happened, a court considered the wording and the apparent intention of the parties.
25. The intention of the parties could be inferred from the wording of the MoU. The MoU was a precursor to the parties entering into legally binding agreements depending on the results of the feasibility study. It was those commercial contracts, once entered into that operationalized the SGR project. The contracts, signed in 2012 and 2014 created legally binding obligations and not the MoU. That was after the Constitution of Kenya, 2010 had been promulgated and operationalized.
26. The issue of retrospective application of the Constitution did not arise as the operationalization of the SGR project occurred under the dispensation of the Constitution of Kenya, 2010. The petitions before the High Court were filed in 2014, four years into the 2010 constitutional dispensation invoking the High Courts jurisdiction under article 165 of the Constitution and under the Sixth Schedule to the Constitution of Kenya, 2010, section 7 thereof allowed all law in force immediately before the effective date to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
27. Article 227 of the Constitution, just like any other provisions of the Constitution were applicable. The applicability of the Constitution of Kenya, 2010 was not pegged on when and how the SGR project was conceptualized or the timing of the documents. The execution of the MoU was before the Constitution of Kenya, 2010 while the commercial agreements and the financing agreement were executed after the  Constitution of Kenya, 2010, had already come into force.
28. Article 227(2) of the Constitution provided for the enactment of a statutory framework within which policies relating to procurement and asset disposal may be implemented to give effect to article 227. That resulted in the enactment of the Public Procurement and Asset Disposal Act, No. 33 of 2015 (PPADA, 2015) which commenced on January 7, 2016, after procurement processes for the SGR. The effect of that enactment was that it repealed the PPDA 2005. Despite its repeal, the PPDA, 2005 applied to the instant dispute as it was the law in force as at the time the petition was filed at the High Court.
29. Section 29 of the PPDA, 2005 dealt with choice of procurement procedure and allowed a procuring entity to use open tendering or an alternative procurement procedure under Part VI which included restricted tendering, direct procurement, request for proposals, request for quotations, low-value procurement, and specially permitted procurement procedure. Section 26 of the PPDA set out the threshold matrix and segregation of responsibilities which any procurement entities needed to have in place for the purpose of ensuring that its decisions were made in a systematic and structured way. Part of such responsibilities was to ensure sufficient funds had been set aside in the budget to meet the obligations.
30. The provisions of the PPDA, 2005 could be ousted under section 6(1) of the PPDA, 2005 where any provision of the Act conflicted with any obligations of the Republic of Kenya arising from a treaty or other agreement to which Kenya was a party, the Act shall prevail except in instances of negotiated grants or loans.
31. KRC was not the procuring entity but merely an implementing entity. That was because it only followed directives issued to it by the Executive. KRC was, despite being a State corporation, never allocated funds towards the project directly from the consolidated funds as the Government itself opted to implement the financing model. KRC could not and did not therefore qualify as a procurement entity under the provisions of section 26(6) of the PPDA 2005.
32. The procurement and contractual agreements between KRC and CRBC, who were both State corporations, were done by the two entities in furtherance of government-to-government understandings for an on behalf of those two governments. That squarely brought the arrangement within the realm of a government to government transaction that was not subjected to the provisions of the PPDA, 2005 as stipulated by section 6(1) of PPDA, 2005. The 1^st to 3^rd respondents, perhaps appreciating the nature of the procurement- as being government to government, never challenged the Ministrys actions before the 3^rd appellant.
33. The position that KRC should have undertaken a limited tender process inviting other Chinese firms with the necessary expertise to bid was untenable as it was no longer upon KRC to undertake any tender process, the Government having intervened and done government to government agreements. The procurement of CRBC was not undertaken by KRC but by the Government through the Ministry of Transport. As the Ministry was not included in the proceedings both before the 3^rd appellant and before the instant court, it would be academic for the court to interrogate the issue further. In any event, the provisions of the PPDA 2005 were ousted in the SGR project.
34. Procurement must conform to the provisions of article 227 of the Constitution even when done pursuant to the obligations of a treaty or agreement or any other procedure. The use of any procurement method including direct procurement did not exclude the principles of fairness, equitability, transparency, competitiveness and cost-effectiveness as provided for under article 227(1). Legality of the Executives actions and directives could only be interfered with by the courts when it was in breach of the Constitution.
35. It had not been demonstrated how KRC, acting not as the procuring entity, but on the directives of the Executive, failed to comply with the provisions of article 227(1) of the Constitution. In any event, government to government procurement was permissible under section 6 of the PPDA 2005. None of the respondents were challenging the constitutionality of that statutory provision. There were avenues such as public participation during the enactment of section 17 of the Customs Tax Act that introduced the railway development levy; the challenge of the constitutionality of the provision of section 6 of the PPDA 2005, and challenge of the environmental concerns at the licensing stage of the project before the National Environment Tribunal pursuant to EMCA to name just but a few of them. None of the respondents and/or the members of the public pursued such avenues before resorting to court litigation.
36. The SGR project was subject to interrogation before Parliament in two committees and none of the respondents opted to be involved. That parliamentary process, which was open to the public, cleared the projects. Under Kenyas constitutional design, the people had the power to exercise their oversight power through elected representatives who were domiciled in Parliament. Whether a citizen agreed with or was satisfied with what was undertaken was a matter of conjecture provided that the laid-out procedure was followed. Like in every democracy, the concept of representing the people or public interest remained a hydra headed mongrel which could not be defined with certainty as it was never possible to get a homogenous viewpoint from the populace. The procurement process for the SGR project met the requirements of article 227 of the Constitution as read together with the provisions of the PPDA, 2005.

Scope of the powers of the Supreme Courts Registrar to impose sanctions/costs on a party that is not compliant with the Registrars directions.

Brief facts

The instant matter emanated from two interrelated appeals in which the Deputy Registrar of the Supreme Court had directed the parties to file submissions. The 3^rd respondent contended that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application to adduce more evidence. Subsequently the Deputy Registrar barred the 3^rd respondent from filing submissions. Aggrieved the 3^rd respondent filed the instant application to review and discharge the decision of the Supreme Court Registrar requiring the filing of submissions. 

Issues

1. What considerations should a courts registrar make in imposing sanctions against a party who failed to comply with the registrars directions?
2. Whether the actions of the 3^rd respondent to not file submissions in compliance with the registrars directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous.

Held

1. The role of a registrar to impose sanctions or orders costs against a party who failed to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and the Supreme Courts authority to review the decision of the registrar under section 11 of the Supreme Court Act as read with rule 6(2) of the Supreme Court Rules 2020.
2. Prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules were merely restated without justification may result in injustice.
3. The 3^rd respondents actions were not in any way contemptuous. The reasons afforded by the 3^rd respondent were cogent and valid. It was fair and reasonable for the application to adduce further evidence to be heard and determined first before the 3^rd respondent filed its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.

Guidelines to consider when balancing a childs best interests vis--vis the enforcement of parental rights and responsibilities.

Brief facts

The appellant and the 1^st respondent married under the African Christian Marriage and Divorce Act  (repealed) and were blessed with a son. The marriage between the appellant and 1^st respondent broke down and the appellant petitioned for its dissolution. Prior to the dissolution, the parties had entered into a Parental Responsibility Agreement (PRA).

In 2014, the appellant, who was living with the minor in Kenya, moved to York in the United Kingdom to pursue a masters degree in Law. The 1^st respondent gave the appellant his consent for her to be accompanied by the child to the United Kingdom. The parties turned on one another. It was the appellants case that the 1^st respondent used his influence in London and falsely accused her of having intentions to injure the child with the aim of having her arrested. On the other hand, the 1^st respondent deposed that, as a consequence of complaints made to him by the child, he contacted the National Society of Prevention of Cruelty to Children in the United Kingdom and they sent social services to speak to the minor. During all those incidents, the appellant averred that she succumbed to illness causing her to relocate back to Kenya. The appellant applied for a childs arrangement order, in the United Kingdom for the child to live with her. The 1^st respondent cross applied for a child arrangement order that the child would live with him.

The appellant also filed suit at the High Court that sought for the PRA to be adopted as an order of the court with the High Court granting the order sought. At the time the order to adopt the PRA had been granted, the 1^st respondent had moved from the United Kingdom and was residing in Tanzania, but the child was still in boarding school in the United Kingdom. Armed with the order from the High Court adopting the PRA, the appellant went to the High Court at Dar-es-Salaam in Tanzania and sought to have the order enforced under the Reciprocal Enforcement of Foreign Judgments Act (cap 8, RE 2002) in Tanzania. The Tanzanian High Court found that, under section 2 of the Judgment Extension Act (cap 7, RE 2002), decrees from Kenya that could be executed in Tanzania were only those that related to debts, damages or costs and that the parental responsibility agreement did not fall in either of those categories.

The Family Court in United Kingdom High Court of Justice Family Division determined that the minor was habitually resident in England and Wales, the minor was not habitually resident in any other jurisdiction, whilst the child continued to be habitually resident in England and Wales, the English Courts retained jurisdiction to determine any issue in respect of parental responsibility. The English Court also recorded that the appellant had on at least one occasion hit her son causing him physical harm; that the appellant had been charged with the criminal offence of child cruelty and a criminal trial was pending; that the appellant had failed to attend two hearings in respect of the criminal charges and a warrant had been issued for her arrest. The child was declared a ward of the court and needed permission of the court to travel out of the English Courts jurisdiction, custody was also awarded to the 1^st respondent. 

Subsequently the appellant filed a petition at the High Court of Kenya in which she alleged that her constitutional rights and freedoms and that of the child had been contravened. She claimed that the 1^st respondent caused the child to be admitted as a ward of the United Kingdom Court which infringed on the childs right to Kenyan nationality and citizenship.  The High Court determined that the 1^st respondent had not infringed or violated any of the fundamental rights and freedoms against the appellant or against the child.  Further aggrieved the appellant filed an appeal at the Court of Appeal on the same grounds as in the High Court which was also dismissed.

The appellant filed the instant appeal before the Supreme Court where she contended that the decisions of the English Court and of the Kenyan High Court and Court of Appeal were against the best interest of the child and were derogation from the PRA which was in force. 

Issues

1. Whether issues pertaining to parental access of a child, custody of a child, best interest of the child, parental rights after a child has attained the age of eighteen (18) years warranted an appeal to the Supreme Court as matters  involving the interpretation or application of the Constitution
2. What was a Parental Responsibility Agreement?
3. Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination.
4. What guidelines should courts consider when balancing a childs best interests vis--vis the enforcement of parental rights and responsibilities?
5. Whether Kenyan Courts were bound by a decision of the High Court of England where the English Court pronounced itself on custody and parental responsibilities and the same parties were before the Kenyan courts.
6. Whether the rights and responsibilities issued by the Kenyan High Court in a Parental Responsibility Agreement could be extinguished by a foreign court without considering Kenyas laws for the best interests of the child.
7. Whether the High Court and the Court of Appeal deferred to the English Court by disregarding Kenyan Law as well as a High Court order that was in force while determining the matter that was before them.

Held

1. The running theme in both superior courts was the enforcement of parental rights vis--vis rights of the child. The instant appeal touched on parental rights, the childs best interests and the right to fair hearing.  The instant matter was within the Supreme Courts jurisdiction under article 163(4)(a) of the Constitution.
2. The determinations made by the superior courts relied on the findings by the English Court. However, the English Court did not consider the significance of the Parental Responsibility Agreement (PRA) and the consequences of its violation. Judgments from foreign courts did not fall within the purview of the issues for consideration on judicial notice under the Evidence Act.  The Court of Appeal erred in placing credence on the findings of the family court in England which largely disregarded the PRA; an agreement that could not be violated without consequence. The PRA was a binding agreement between both the appellant and the 1^st respondent and could only be terminated by the High Court.
3. There were express provisions on the procedure to follow to vacate a PRA. The PRA attained more force when it was adopted as an order of the High Court. The PRA was entered into voluntarily by both the appellant and the 1^st respondent and neither of them had made any steps towards vacating it. The English Court alluded to the PRA and dismissed it ever so casually, without taking into account the Kenyan legal regime surrounding the PRA. Specifically, it ignored Kenyas article 53 of the Constituion on the rights of Children, the Children Act and case law with regard to PRAs. Most importantly, it overlooked the fact that there was a legally binding court order on the PRA. Those liberties could not be taken by Kenyas superior courts.
4. The English Court made orders on the PRA that disregarded the sovereignty of the Kenyan legal system over its own nationals. The superior courts ought not to have succumbed to the same temptation. They should have had regard to section 26 of the Children Act (repealed). It was imperative for them to interrogate the status of the PRA seeing that High Court had adopted it as an order of the court. Once adopted as an order of the court, it could not be violated without consequences. If one parent violated the agreement, then they were liable to legal proceedings. Not being vacated, the PRA remained a binding order of the High Court until the child attained eighteen years of age.
5. The superior courts erred by accepting and relying on the English Courts decision on the PRA. The error of their finding was compounded by the fact that the Childrens Act had specific provisions on how a PRA was vacated.  It was improper for the superior courts to rely on the Englishs court determination which made no reference to Kenyan laws, the Convention of the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child (ACRWC). That was the legal regime by which the PRA ought to have been considered. At the very least, the trial court ought to have heard the parties to the PRA before invalidating it. English courts orders of August 7, 2015 did not supersede the PRA.
6. The childrens rights legal regime (the Constitution, Children Act (repealed), CRC, and the African Charter on the Rights and Welfare of the Child) emphasized the centrality of the best interest of the child. The best interest of the child was determined by the circumstances of the case as they specifically related to the child. That comprised the principles that prime the childs right to survival, protection, participation, and development above other considerations and included the rights contemplated under article 53 (1) of the Constitution. The focus had to be on the child and what was best for the child.
7. There was no hierarchy in the childrens rights provided for under the Constitution. All the rights provided under article 53 were in the childs best interest. The best interests concept was further strengthened by being the paramount consideration. The best interests of the child were to be the determining factor when making a decision on the child. It was against that aspect that parental rights ought to be balanced. No right should be compromised by a negative interpretation of a childs best interest. The record did not provide any cogent evidence of the English Court balancing between parental rights and the best interest of the child.
8. The court could not tell which legal standards were applied to arrive at the conclusion that the appellant was an unfit mother because the superior courts did not test the evidence and no warrant of arrest was in the record as evidence.
9. The appellant produced as part of her testimony two medical reports by paediatricians from the United Kingdom and Kenya on the child which revealed that there was no indication of any form of abuse against the child. Although the English Courts did not find it necessary to determine each of the allegations made by the child, the superior courts erred by not considering and testing the evidence tendered before them by the appellant on the allegations of abuse. The instant court was unconvinced that the appellant received a fair hearing. Nothing on the record indicated whether the appellant was heard at all on that issue. Nothing was indicative of whether the English or Kenyan courts considered the belt-beating discipline: excessive or otherwise. It remained unproven whether the appellant posed a continuous danger to the child.
10. The record reflected an email dated July 21, 2013 from the 1^st respondent expressing gratitude to the appellant for her wonderful mothering skills. There wasnt sufficient cogent evidence on record to lead to the finding that the appellant was an unfit mother liable to zero direct contact with the child. The appellate court erred in endorsing the High Court decision which purported to extinguish the appellants parental rights and responsibilities.
11. The Supreme Court could not endorse the decisions of the superior courts which embraced the decisions of the English court because the English court did not consider the totality of the circumstances of this case in the following ways. Firstly, the English court declared that the child was habitually resident in England and Wales while ignoring that he was first and foremost a Kenyan national with attendant rights. He was deprived of a country of his own and of its protection and support socially and culturally. The minor was made a ward of an alien court when he was a Kenyan national. In adopting the findings, the Court of Appeal did not consider that that was in contravention of the rights enshrined in article 53(1)(a) of the Constitution and the CRC.
12. The childs constitutional rights to nationality, parental care, and responsibility which included equal responsibility of the mother and father to provide for the child whether they were married to each other or not had been infringed. That finding was also in light of the English courts orders that the 1^st respondent had care and control of the child. The mother was to have no direct contact with the child. The father could determine every aspect of the childs life: where he went to school, lived, or holidayed. The same courts determined that child could ably articulate himself on the degree of integration in a social and family environment (how he saw his connections, social relationships, and support system). It was ironic because his perspective would largely be in the lens of the 1^st respondent. He had been deprived of direct contact with his other parent, so even though his views and desires were heard, he could not have had a balanced assessment of the situation.
13. It was evident from sections 6(1) and (2) and 24 (1) of the Children Act (repealed), article 9 of the CRC and article 19 of The African Charter on The Rights and Welfare of The Child that the child had a right to parental care and it was in the best interest of the child that he was brought up and cared for by his or her parent. That right could only be denied if it was proved with cogent evidence and valid grounds that a parent was not suitable or was incapable of taking care of the child. A child needed both of their parents which was their right, especially where a parents incapacity had not been proven as in the instant case.
14. The society in which children grew up shaped who they were. Having both a mother and father involved in a childs life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution.
15. The concept of the childs best interest was flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs.
16. Parental rights did not trump the best interests of the child. However, parental rights could not be ignored if they were in the best interests of the child. The concept of the childs best interests was aimed at ensuring both the full and effective enjoyment of all the childrens rights recognized in the Constitution, the Children Act, the CRC, and the African Charter on The Rights and Welfare of The Child. They were all geared towards the holistic development of the child.
17. Courts while making a decision that would impact the child were mandated to consider all circumstances affecting the child. The following guidelines ought to be considered when balancing a childs best interests and parental rights and responsibilities:
    1. the existence of a PRA between the parties.
    2. The past performance of each parent.
    3. Each parents presence including his or her ability to guide the child and provide for the child's overall well-being.
    4. The ascertainable wishes of a child who was capable of giving/expressing his/her opinion.
    5. The financial status of each parent.
    6. The individual needs of each child.
    7. The quality of the available home environment.
    8. Need to preserve personal relations and direct contact with the child by both parents unless it was not in the best interests of the child in which case supervised access to the child was to be granted.
    9. Need to ensure that children were not placed in alternative care unnecessarily.
    10. The mental health of the parents.
    11. The totality of the circumstances.
18. It was never in the best interest of a child when the parents were engaged in a protracted court battle. Court battles relating to children were more often than not very selfish in nature and it was easy to overlook the psychological and mental harm done to the child in the process. In the instant matter, the appellant had not had direct contact with the minor since August 7, 2015. That was in contravention of Kenyas legal regime on the rights of the child. The child turned eighteen (18) on February 12, 2022. As such, the child was at liberty to choose whom to live with and whether or not he wanted the see the appellant.

Refusal to register an organization of persons within the LGBTQI community amounts to violation of the freedom of association and freedom from discrimination

Brief facts

In April 2012, the 1^st respondent applied on three separate occasions to the Non-Governmental Organizations Co-ordination Board (the appellant) for the reservation of one of the six different variations of names submitted for a proposed non-governmental organization (NGO) to address the violence and human rights abuses suffered by the lesbian, gay, bisexual, transgender, queer or questioning (LGBTQI) community in Kenya. The proposed names were, National Gay and Lesbian Human Rights Commission, National Coalition of Gays and Lesbians in Kenya, National Gay and Lesbian Human Rights Association, Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organization.

The appellant rejected the 1^st respondents application and informed him that the proposed names and the objects of the proposed NGO were offensive to public policy and stood in conflict with sections 162, 163 and 165 of the Penal Code, which outlawed homosexual liaisons. Aggrieved, the 1^st respondent challenged the appellants decision of rejecting his application at the High Court. The High Court in determining the substantive question of violations of the respondents constitutional rights found that the respondents right of association guaranteed by article 36 of the Constitution of Kenya, 2010 (Constitution) was violated by the failure of the appellant to accord just and fair treatment of gay and lesbian persons living in Kenya seeking registration of an association of their choice.

Aggrieved, the appellant filed an appeal at the Court of Appeal. The Court of Appeal held that the appeal before it raised only two questions: whether the petition filed before the High Court was competent on account of jurisdiction based on the doctrine of exhaustion of remedies and whether, in rejecting the application for reservation of a name, the appellant breached article 36 of the Constitution. The Court of Appeal held that section 19 of the Non-Governmental Organizations Co-ordination Act (NGO Co-ordination Act) on appeals did not apply to the circumstances of the case and consequently, the High Court had the requisite jurisdiction to entertain the petition.

The majority of the Court of Appeal upheld the High Courts decision, and found, on the second question that the 1^st respondents rights were violated by the appellants failure to register the proposed organization. Further aggrieved, the appellant filed the instant appeal.

Issues

1. Whether the refusal to register an organization of persons who fell within the lesbian, gay, bisexual, transgender, queer or questioning community violated their freedom of association.
2. Whether it was unconstitutional to limit the right to associate through denial of registration of an association on the basis of sexual orientation? 
3. Whether refusal to reserve a name of an intended non-governmental organization on the ground that the Penal Code criminalized gay and lesbian liaisons amounted to discrimination. 
4. Whether the refusal to allow the reservations of names which included the terms gays and lesbians was unreasonable, irrational or illegitimate? 
5. Whether the right to form, join or participate in the activities of an association of any kind in article 36 of the Constitution included associations whose activities were contrary to the law. 
6. Whether the use of the words any person who has carnal knowledge of any person against the order of nature in section 162 of the Penal Code included female same-sex relationships as unnatural. 
7. Whether the refusal to approve the reservation of names of a proposed non-governmental organization was subject to the dispute resolution mechanism under section 19 of the Non-Governmental Organizations Coordination Act on appeals. 
8. What were the grounds in which an administrative decision could be challenged and struck down by courts. 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 27 -Equality and freedom from discrimination

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 36 - Freedom of association

(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

(2) A person shall not be compelled to join an association of any kind.

(3) Any legislation that requires registration of an association of any kind shall provide that

(a) registration may not be withheld or withdrawn unreasonably; and

(b) there shall be a right to have a fair hearing before a registration is cancelled.

Non-Governmental Organizations Co-ordination Act, 1990

Section 19 - Appeals

(1) Any organization which is aggrieved by decision of the Board made under this Part may, within sixty days from the date of the decision, appeal to the Minister.

(2) On request from the Minister, the Council shall provide written comments on any matter over which an appeal has been submitted to the Minister under this section.

(3) The Minister shall issue a decision on the appeal within thirty days from the date of such an appeal.

(3A) Any organization aggrieved by the decision of the Minister may, within, twenty-eight days of receiving the written decision of the Minister, appeal to the High Court against that decision and in the case of such appeal

(a) the High Court may give such direction and orders as it deems fit; and

(b) the decision of the High Court shall be final.

(4) If the Council is satisfied that the organization has ceased to exist, its recommendation to the Board shall include suggestions of how the assets and liabilities of the organization should be distributed and the reasons thereon.

Penal Code, Cap 63

Sections 162 - Unnatural offences

Any person who

(a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if

(i)         the offence was committed without the consent of the person who was carnally known; or

(ii)        the offence was committed with that persons consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act. [Act No. 5 of 2003, s. 32.]

Section 163 - Attempt to commit unnatural offences

Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

Section 165 - Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Non-Governmental Organizations Coordination Regulations, 1992

Regulation 8 - Approval of names

(1) An applicant for the registration of any proposed organization shall prior to such application seek from the Director approval of the name in which the organization is to be registered.

(2) The application for approval under Paragraph (1) shall be in Form 2 set out in the Schedule and accompanied by the fee specified in regulation 33.

(3) The Director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered Organizations kept at the documentation centre and shall notify the applicant either that

(a) such name is approved as desirable; or

(b) such name is not approved on the grounds that

(i) it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or Organization existing under any law; or

(ii) such name is in the opinion of the Director repugnant to or inconsistent with any law or is otherwise undesirable.

(4) A name which has been approved under paragraph (3)(a) shall be entered in the register of reserved names on behalf of the applicant for a period of thirty days or such longer period, not exceeding sixty days, as the Director may allow and such period shall commence from the date of notification of such approval to the applicant.

Held

1. The appeal was filed as of right pursuant to article 163(4)(a) of the Constitution. From a perusal of the judgments of the superior courts, both courts interrogated the decisions of the Executive Director of the appellant (the Director) in view of article 36 and 27 of the Constitution. The instant matter was properly before the court.
2. The instant matter was not about the legalization or decriminalization of LBGTQI or the morality of same-sex marriage but revolved around the question of whether refusal to register an organization of persons who fell within the LGBTQI contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.
3. According to article 159(1) of the Constitution, judicial authority was derived from the people and vested in, and should be exercised by, the courts and tribunals established by or under the Constitution. In that regard, the Constitution encouraged use of alternative means of dispute resolution mechanism.
4. Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it was only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.
5. The administrative action concerned was the refusal to approve the 1^st respondents name. The relevant statute, the NGO Coordination Act, did not provide for a dispute resolution mechanism for the administrative action concerned. Unlike the Companies Act, the NGO Coordination Act did not anticipate that the reservation of names was an administrative action which would attract the dispute resolution mechanism provided for under section 19 of the NGO Coordination Act. In other words, there were no substantive provisions on approval of names under the NGO Coordination Act. In addition, from the provisions of Regulation 8 of the NGO Regulations, there were no administrative mechanisms to which the 1^st respondent ought to have exhausted, following the directors decision under that regulation.
6. Neither the NGO Coordination Act nor the NGO Coordination Regulations provided for any internal dispute resolution mechanism for a party aggrieved by the decision made by the director when exercising its mandate under Regulation 8 of the NGO Regulations. An Act of Parliament had to clearly provide for an internal dispute resolution mechanism before an aggrieved party could be bound by such a mechanism.
7. The petition before the High Court concerned interpretation and application of the Constitution, a jurisdiction bestowed upon that court. The minister, therefore, did not have the jurisdiction to entertain issues such as the constitutionality of the decision taken by the Director and the appellant. Therefore, the suit before the High Court was proper. There was no internal dispute resolution mechanism under NGO Coordination Act and the NGO Coordination Regulations, 1992 to challenge the impugned decision.
8. The right to freedom of association was recognized in international and regional human rights instruments which Kenya had ratified. Article 260 of the Constitution defined a person to include a company, association, or other body of persons whether incorporated or unincorporated. A literal reading of article 36 of the Constitution was that the LGBTQI group was not excluded from the definition under article 36. Article 36(3) required that any legislation that required registration of an association of any kind should provide that registration would not be withheld or withdrawn unreasonably. The right to form an association was an inherent part of the right to freedom of association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status.
9. The right to freedom of association could not be limited unless as provided for under the Constitution. There was no evidence placed before the 1^st appellant to demonstrate that persons who professed to be LGBTQI were criminals or that it was only them who were capable of committing the offence of unnatural acts. That was a mere assumption which was not born out of evidence when indeed it was confirmed by empirical data that even heterosexuals commit such offences more often than not most callously.
10. Not all rights were absolute, some rights were subject to limitation. In that context, article 36(3) of the Constitution contemplated that the right to freedom of association was subject to limitation. However, any limitation on any fundamental rights and freedom was subject to article 24 of the Constitution.
11. Although sections 162, 163, and 165 of the Penal Code prohibited any person from committing acts that went against the order of nature, those sections did not distinguish between heterosexual or homosexual offenders. The sections did not limit the perpetrators of such acts to persons who were LGBTQI; indeed, the words, any person, connoted a potential offender under those sections who could very well be heterosexual, homosexual, intersex or otherwise.
12. Sections 162, 163, and 165 of the Penal Code did not, pursuant to the provisions of article 24 of the Constitution, express the intention to limit LGBTQIs right to freedom of association. Likewise, the sections did not specify the nature and extent of the limitation of the freedom of association, if any. The 1^st respondents intention was to register an organization to champion for the rights of LGBTIQI, and that had no correlation whatsoever with the offences articulated under sections 162, 163 and 165.
13. The appellants interference to the 1^st respondents right to freedom of association did not pursue any legitimate aim such as national security or public safety, the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedom of others. Therefore, the appellants limitation of the right to freedom of association was not proportionate to the aim sought.
14. The Constitution required State organs, State officers and public officers to uphold national values and principles of governance such as human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized. In addition, the Constitution, in article 21(1) provided that it was a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the bill of rights.
15. Article 21(3) of the Constitution imposed an obligation on all State organs and all public officers to address the needs of vulnerable groups within society including members of minorities and marginalised communities. Given that the right to freedom of association was a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, that right was inherent in everyone irrespective of whether the views they were seeking to promote were popular or not.
16. It would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants. Therefore, the appellants decision was unreasonable and unjustified. LGBTQI had a right to freedom of association which included the right to form an association of any kind. All persons, whether heterosexual, lesbian, gay, intersex or otherwise, would be subject to sanctions if they contravened existing laws, including sections 162, 163 and 165 of the Penal Code. By refusing to register the proposed NGO, the persons were convicted before they contravened the law. Such action was retrogressive. The appellant violated the 1^st respondents right to freedom of association under article 36 of the Constitution.
17. The use of the word sex under article 27(4) of the Constitution did not connote the act of sex per se but referred to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further, the word including under the same article was not exhaustive, but only illustrative and would also comprise freedom from discrimination based on a persons sexual orientation. Therefore, an interpretation of non-discrimination which excluded people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.
18. To allow discrimination based on sexual orientation would be counter to the constitutional principles. Therefore, the appellants action of refusing to reserve the name of the 1^st respondents intended NGO on the ground that sections 162, 163 and 165 of the Penal Code criminalized gay and lesbian liaisons was discriminatory in view of section 27(4) of the Constitution. The 1^st respondents right not to be discriminated directly or indirectly based on their sexual orientation was violated by the appellant.

Factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intends to investigate

Brief facts

A complaint had been lodged before the 1^st appellant, the Ethics and Anti- Corruption Commission (EACC) alleging Kshs. 280 million had been fictitiously paid into the 1^st respondents advocate-client bank account. Based on that allegation, the EACC obtained warrants to investigate and inspect the bank account ex-parte. Aggrieved, the 1^st respondent filed a constitutional petition contending that the warrants had been issued ex-parte and had been obtained and enforced secretly without notice. 

The 1^st respondent urged that the EACCs actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing; and contradicted sections 28(1, (2), (3) and (7) of the Anti-Corruption and Economic Crimes Act (ACECA), which required EACC to issue a notice informing him of its intended application and affording him an opportunity to be heard before a court could legitimately issue any warrants. 

The High Court held among others that the warrants to investigate the bank account breached the 1^st respondents rights and fundamental freedoms under the provisions of articles 47(1), 47(2) and 50(1) of the Constitution of Kenya, 2010 (Constitution) hence void for all intents and purposes. Aggrieved, the appellants lodged appeals at the Court of Appeal while the 1^st respondent also filed a cross appeal against part of the judgment. The Court of Appeal upheld the High Court decision and dismissed both the appeals and cross-appeal for lack of merit. The appellants were further aggrieved and thus filed the instant appeal.

Issues

1. What were the factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intended to investigate. 
2. Whether the Ethics and Anti-Corruption Commission was required to always give prior notice to those it intended to investigate before commencing an investigation. 
3. What was the nature of the Ethics and Anti-Corruption Commissions mandate in combating corruption and economic crimes in the society? 
4. What was the nature of an administrative action and whether the Ethics and Anti-Corruption Commissions investigative powers could be described as administrative actions? 
5. What were the factors to consider in invoking the Supreme Courts appellate jurisdiction as a matter involving the interpretation or application of the Constitution? 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 47 - Fair administrative action 

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall

(a)provide for the review of administrative action by a court or, if appropriate, and independent and impartial tribunal; and

(b)promote efficient administration.

Held

1. For a litigant to invoke the courts appellate jurisdiction under article 163(4)(a) of the Constitution, it had to be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, running up to the Court of Appeal and requiring the courts final input. At the very least, an appellant had to demonstrate that the courts reasoning and conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. 
2. The issues before the High Court and Court of Appeal, leading to the impugned judgments squarely brought the instant appeal within the ambit of article 163(4)(a) of the Constitution. Besides, the 1^st respondent having filed a constitutional petition and succeeded before the two superior courts could not claim that the resultant appeal therefrom was not sustainable under article 163(4)(a). The court had the jurisdiction to hear and determine the instant matter.
3. The argument that the impugned warrants which triggered the appeals were sought, issued and enforced in 2015 and as such there was no justiciable issue between the parties was far-fetched given the fact that the enforcement of the impugned warrants did not resolve the grievances. Indeed, it was the issuance of those warrants that prompted the 1^st respondent to move to the High Court seeking to have them quashed. 
4. Articles 47 and 260 of the Constitution did not define an administrative action. Section 2 of the Fair Administrative Action Act (FAA Act) which was enacted to give effect to article 47, defined administrative action as including the powers, functions and duties exercised by authorities or quasi-judicial tribunals or any act, omission or decision of any person, body or authority that affected the legal rights or interests of any person to whom such action related. 
5. The definition of an administrative action under section 2 of the FAA Act did not provide an accurate picture of the meaning of an administrative action. It simply addressed the elemental aspects of the phenomenon before describing its nature. On the face of it therefore, any power, function, and duty exercised by authorities or quasi-judicial tribunals constituted an administrative action. Likewise, any act, omission or decision of any person that affected the legal rights or interests of any person to whom such action related constituted an administrative action. Such definition, without more, would bring within the ambit of an administrative action just about anything done or any exercise of power by an authority or quasi-judicial tribunal. 
6. A close scrutiny of article 47 of the Constitution gave a glimpse of what an administrative action entailed. Towards that end article 47 provided that Parliament was to enact legislation to give effect to the rights in clause (1) and that legislation should promote efficient administration. By stipulating that the legislation so contemplated had to among other things, promote efficient administration, the Constitution left no doubt that an administrative action was not just any action or omission, or any exercise of power or authority, but one that related to the management of affairs of an institution, organization, or agency. That explained why such action was described as administrative as opposed to any other action. 
7. Part IV of the ACECA specifically provided for the EACCs investigative powers. The powers granted therein included powers, privileges and immunities of a police officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, those powers when exercised could not be described as administrative actions within the meaning of article 47 of the Constitution. 
8. Article 20(1) of the Constitution provided that the Bill of Rights applied to all and bound all State organs and all persons. It entrenched the enjoyment of rights and fundamental freedoms in the Bill of Rights by every person and to the greatest extent consistent with the nature of the right or fundamental freedom. The right to fair administrative action, that was expeditious, efficient, lawful, reasonable and procedurally fair was one such right under the Bill of Rights.
9. There was no basis for holding that the 1^st respondents rights were violated for failure to observe the requirements of article 47 of the Constitution. Therefore, in the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of that claim. 
10. Under section 26 of the ACECA, the EACC was required to issue a notice in writing where the Secretary to the EACC (the Secretary) was satisfied that it could assist or expedite an investigation. The language in section 26 was permissive rather than mandatory. It all depended on whether the Secretary was satisfied that the furnishing of information regarding specified property could assist or expedite an investigation. That explained why the person reasonably suspected of corruption was the one required through a notice in writing to furnish the requisite information relating to the property or properties specified in the notice. 
11. If the Secretary was not satisfied that such notice would assist or expedite an investigation, then he/she did not have to issue it. The Secretary could very well be of the opinion that such notice, instead of assisting or expediting an investigation, could actually jeopardize or delay it. Such notice, if necessary, would be issued during an ongoing and not prior to an investigation. Before the conclusion that certain information was required, preliminary investigative processes had to have been undertaken. 
12. Under section 27 of the ACECA, the EACC had two options, either, it could move directly and obtain an ex-parte order from court against an associate of a person suspected of corruption, requiring such associate to produce certain documents or information, or it could with notice in writing require the associate to produce the specified information. Where the EACC opted for the court process, no notice was required to be issued to the associate. Only where it chose to get the information directly from the associate was the EACC required to issue the notice in writing. The language of the statute was permissive rather than mandatory. 
13. Under section 28 of the ACECA, the EACC could with notice in writing to the affected parties seek a court order requiring the production of specified records in the possession of any person whether or not suspected of corruption. The notice could be issued to any person, and not just one suspected of corruption. It could be reasonably assumed that in such a situation, the notice was to be issued before the commencement of an investigation. The section stated that such specified records could be required for an investigation, hence what was envisaged was a process of investigation that was yet to commence. That explained the fact that the notice was not confined to persons suspected of corruption but extended to any others that the EACC believed were in possession of such records. 
14. Under section 28 of the ACECA, the EACC could issue notice directly to a person suspected of corruption or economic crimes, requiring him to produce specified property as opposed to specified records. The property was so required for inspection. In the instant case, it could be reasonably assumed that such notice could be issued by the EACC during an on-going investigation. Section 28 was however silent as to whether in that regard, the issuance of notice by the EACC was also dependent on the opinion of the Secretary.
15. Section 23(4) of the ACECA conferred upon the Secretary and investigators under the Act, powers, privileges and immunities of a police officer in so far as the same were not inconsistent with the provisions of the Act or any other law. Therefore, the Secretary and investigators were given police powers, which they could exercise in the course of their duties under the relevant provisions of other applicable laws. Such laws included the Police Act, the Criminal Procedure Code (CPC), the Evidence Act, among others. The EACC was not limited to the provisions of the ACECA, in carrying out its investigative mandate. Where the provisions of the ACECA were clear and unambiguous, the EACCs first resort had to be to that enabling statute.
16. The EACC had a wide and critical mandate under the Constitution and the law to combat corruption and economic crime in the society. In executing that mandate, the EACC assumed different postures depending on the nature of the specific function it was carrying out. Thus, the EACC could assume a non-confrontational and largely facilitative role when for example, it was educating the public on the nature and vices of corruption, or conducting research into the nature of corruption, or when undertaking a systems review of a specific agency with a view to sealing corruption loopholes. 
17. The EACC could assume a law enforcement posture, when conducting investigations into suspected corrupt conduct, effecting arrests of corruption suspects, disrupting corruption networks and through the Office of the Director of Public Prosecutions, arraigning suspects before courts of law. The EACC could assume an intelligence gathering posture, when for example it was tracing the proceeds of crime (asset tracing) with a view to recovering the same. 
18. The EACC would apply different sets of laws and strategies. Regarding investigations, it all depended on what was at stake, the nature of the evidence required and the urgency with which the evidence had to be acquired. In the circumstances, it could not be said that the EACC had to always give prior notice to those it intended to investigate before commencing an investigation. 
19. Sections 26, 27 and 28 of the ACECA set out very specific circumstances in which the EACC could issue notice. If the conditions so specified obtained, then the EACC could issue notice in writing to the affected parties. If the EACC was carrying out a police operation or an intelligence gathering or asset tracing exercise, it could not be required to issue a prior mandatory notice to the intended targets. In such a situation, the provisions of section 23 of the  ACECA, the Evidence Act, the CPC, and any other enabling legislation came into play. At all times, whatever the nature of the investigations the EACC could be undertaking, it had to do so within the confines of the Constitution and the law. 
20. The court could not state with certainty that the EACC ought to have moved to court under section 26 of the ACECA because there was no information on record showing that the Secretary had formed an opinion that the information sought was to aid or expedite the on-going investigation. Neither could the court state that the 1^st appellant ought to have moved to court under section 27 of the ACECA since it was not investigating the 1^st respondent as an associate of a person suspected of corruption or economic crime. The EACC ought not to have moved to court under section 28 of the ACECA, which was confined to notices requiring the production of records or property as the case could be because in that instance, the investigations had already commenced. 
21. It was difficult to sustain the declaration by the Court of Appeal to the effect that, the EACC was inflexibly bound to issue notice in the conduct of its investigations. Where the EACC was acting under its police powers, it was bound by the laws pursuant to which the police conducted their investigations and connected purposes. Where it conducted investigations in circumstances where the law required it to issue written notice, then it had to issue the notice. At the end of the day, the people expected that the law enforcement agencies established under the Constitution and the law were effective enough to protect them from crime and related dangers. By the same token, the people expected that such agencies would carry out their mandates in accordance with the Constitution and the law.