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The appellant and the 1^st respondent married under the African Christian Marriage and Divorce Act  (repealed) and were blessed with a son.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. 

Students admitted at a branch of a public university campus that transitioned to a fully-fledged university were entitled to be graduated by the public university that originally admitted them and not the new fully-fledged university.

Brief facts

The 1^st respondent was admitted to Moi Univesity and was placed at its Central Kenya Campus based at Karatina. At the time of admission at the University, the appellant was a bona fide student of Moi University pursuing a degree of Bachelor of Science (B.Sc).   While still conducuting his studies, the Central Kenya Campus went through a Process of being elevated to a constituent college of Moi University.  Two months before the 1^st respondents graduation, a Charter for the said constituent college was granted transforming it into a full-fledged university known as Karatina University (2^nd respondent).  

On completion of his studies, the 1^st respondent wished to be awarded a degree by the appellant and not by the new and relatively unknown Karatina University, the 2^nd respondent. That inevitably led to the litigation before the courts. The High Court held that the 1^st respondent was a former student of Karatina University College eligible under paragraph 33 of the charter to be conferred a degree of Karatina University. The court further held that if the 1^st respondent had any legitimate expectation to be conferred a degree by the appellant, the same was extinguished by operation of law. 

Aggrieved,  the 1st respondent appealed the decision at the Court of Appeal which allowed the appeal and held that 1^st respondent had no contractual and legal relationship with the 2^nd respondent in so far as it related to the award and conferment of its degree to him and that relationship lay with the appellant. The appellate court also held that the doctrine of legitimate expectation was inapplicable to the relationship between the 1^st and 2^nd respondents and that the appellant could perform the contract between itself and the 1^st respondent. The Court of Appeal further held that the subject matter of contract between the appellant and the 1^st respondent was still in existence; that there was no dissolution or intervening incapacity of either party; and that there was no supervening illegality or change in law or method to make it impossible for the appellant to discharge its obligation, among others.

Aggrieved, the appellant, Moi University, filed the instant appeal before the Supreme Court. The appeal was on grounds that a university could not award a degree to a student who was no longer registered with it and whom it had neither taught nor examined. The appellant contended that the Court of Appeal erred by failing to find that the statutory relationship, created by operation of law between the appellant and the 1^st respondent was terminated by the award of the charter to the 2^nd respondent under the Universities Act. To the appellant, the creation of a separate entity with the ultimate intention of making it a chartered university divested it of any further responsibilities and any grievance by the students lay in rule 23 of the University (Establishment of Universities) (Standardization, Accreditation and Supervision) Rules 1989. 

The 1^st respondent was adamant that the conversion of the campus into a constituent college did not alter the status of the students in so far as the degrees to be awarded belonged to the appellant and that the admission and training for the courses was undertaken by the appellant. The 1^st respondent maintained that he was never issued with any other admission letter, admission number or any other correspondence to warrant any concern as concerns changes to his degree program. 

The 2^nd respondent contended that it graduated the appellant as it had full legal capacity to do so and submitted a copy of the degree certificate issued to the 1^st respondent. 

Issues

1. Whether the absence of a proper mechanism to address the fate of the students in a campus of an existing public university which transformed to a constituent college and eventually granted a charter to a fully-fledged University, implied that students who were initially admitted by the university and posted to its campus remained the students of that university and entitled to be graduated by the university.
2. What effect did charters that revoked the status of a higher learning institution from a university college/campus to a fully-fledged university have on the students at the institution at the time of the transition?
3. Whether the status of students admitted to a campus of a public university that transitioned to a fully-fledged university could be automatically conferred to the new fully fledged university.
4. Whether students admitted to a campus of a public university that transitioned to a fully-fledged university had the legitimate expectation to be conferred degrees by the public university they were initially admitted to.
5. Whether students admitted to a campus of a public university that transitioned to a fully-fledged university had a contractual relationship with the fully-fledged university.
6. What was the distinction between the admission of a student in a university and registration of courses?
7. Whether, based on the facts of the instant case, the absence of transition mechanism either in the Universities Act or the charter establishing the 2^nd respondent could infer an intention to apply the law retrospectively.
8. Whether an appellant could as a matter of right raise a point that was not connected with the certified point of law to be argued on appeal during a second appeal.
9. Whether when determining an appeal for a cause of action that arose in a time where the law had not been streamlined to address the issue in contention in appeal, an appellate court could apply the current law as opposed to the law at the time of the cause of action.

Held

1. The Supreme Court was mandated to settle any constitutional or legal controversies and develop rich jurisprudence taking into account Kenyas unique circumstances. That was the import of section 3 of the Supreme Court Act.
2. It was a matter for the exercise of the courts discretion whether to allow a point in no way connected with the certified point of law to be argued on appeal. It was not to be assumed that the appellant could as a matter of right raise any such point.
3. Submissions should narrow down or mirror the issues raised in the petition of appeal. It had turned otherwise. Though the additional issues raised by the appellant were connected with the certified issues, the additional issues could as well be answered as part of or as a consequence of the determination of the certified issue, including as part of reliefs available to the parties before the court, if any.
4. The issues raised for appeal were not being raised for the first time before the Supreme Court. However, it was the first time the court was properly seized of them. The instant case was a case that was being determined a decade after the cause of action arose. While the law may have since been streamlined to address the predicament that was not the case at the time the litigation was initiated.
5. For any contract to be valid at law, it had to meet certain elements commencing with offer and acceptance. An agreement was not binding as a contract unless it showed an intention by the parties to create a legal relationship. Three basic rules underpinned the formation of a contract, namely: an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable all essential terms governing the relationship of the parties had to be incorporated. The subject matter had to be certain. There had to be positive evidence that a contractual obligation, born out of an oral or written agreement as in existence.
6. The evidentiary value of the contract was underpinned by section 97(1) of the Evidence Act which provided that when the terms of a contract or a grant or any other disposition of property had been reduced to the form of a document, and in all other cases which any matter was required by law to be reduced to the form of a document, no evidence was to be given in proof of the terms of such contract, grant or other disposition of property or such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence was admissible under the provisions of this Act sufficed.
7. The relationship between the 1^st respondent and the appellant was contractual. The 2^nd respondent was not existing at the time. The contract could not exist in a vacuum as education and matters learning institutions were regulated by statutes.
8. The legal notice elevated the Central Campus into a constituent college of the appellant known as Karatina University College. Reference to the college as a constituent college of the appellant as part of the official letterhead. As at September 29, 2011, when the 1^st respondent registered for courses in the academic year 2011/2012 for his third year of study, the first semester, the application was submitted to the Karatina University College, a constituent college of Moi University. 
9. That discounted the argument that the 2^nd respondent independently taught or examined the 1^st respondent. Even though the 1^st respondent was physically premised at the 2^nd respondents institution, all the circumstances pointed to the training and examination being done at the behest and/or supervision of the appellant. The 1^st respondent did not have any difficulty with that development since the degree to be conferred upon him would still be that of Moi University, both the Campus and the constituent college not having been totally unshackled from the appellants grip.
10. The undergraduate transcripts issued to the 1^st respondent for his first to third year of study were issued by the 2^nd respondent. That was manifestly improper on several fronts. The 2^nd respondent did not exist in fact and in law prior to the year 2013, secondly, the 1^st respondent did not ever apply to register courses under the 2^nd respondent, as aptly demonstrated by the application form alluded to above and thirdly, the charter establishing the 2^nd respondent made no reference to the transition of the students. Paragraph 3 of the charter only made reference to the 2^nd respondent being a successor to Karatina University College and the transfer of all rights, liabilities and assets held on behalf of the college fully transferred to the 2^nd respondent. 
11. The establishment of the constituent college out of the central campus automatically affected the status of the students. The degrees offered to the students would still be those of the appellant notwithstanding that the University College had a separate legal standing. The contractual engagement between the 1^st respondent and the appellant still remained, there never having been a breach, rescission or frustration thereof. The fact that the students were based in a constituent college of the appellant did not strip them of their status as the appellants students. That also applied to the payment of fees and processing of Higher Education Loans Board for the public sponsored students which were in any event available to the 1^st respondent on the basis of his original and only admission letter.
12. Registration as a student as contemplated in the legal notice was a continuous process manifested in the registration of courses, payment of fees. It was distinguishable from admission which was a one off occurrence. However, the starting point for any student in any institution of learning was admission. Once one was admitted to the institution, there arose the other procedural processes from time to time in the course of the studies. The 1^st respondent was admitted to only the appellant - initially at its central campus then to the constituent college, Karatina University College. 
13. The legal order that established the constituent college made a transitional provision that the constituent college would initiate mechanisms to ensure that the charter was granted. Paragraph 32 of the Karatina University Charter revoked Legal Notice No. 163 of 2010. Paragraph 3 of the Charter only made reference to transfer of rights assets and liabilities. The transition provision failed to take into account the different categories of students.
14. Section 23(3) of the Interpretation and General Provisions Act, provided that where a written law repealed in whole or in part another written law, then unless a contrary intention appeared, the repeal was not to affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed and it was not to affect an investigation, legal proceedings or remedy in respect of a right, privilege, obligation and such legal proceedings or remedy could be instituted, continued or enforced as if the repealing written law had not been made. From Section 23(3) of the Interpretation and General Provisions Act, and from the rights of the 1^st respondent as a student of the appellant having crystalized and being of a continuing nature, the court could not fathom how the revocation of the college automatically conferred a new status on the 1^st respondent. That position was exacerbated by the lack of the definition of the term student and the charter containing inadequate transitional provisions.
15. A charter resulted into a new status of the institution in form of a university. A charter to a university was granted pursuant to sections 19 and 21 of the Universities Act (2012). Section 19 of the Universities Act stipulated, inter alia, that the Cabinet Secretary was not to recommend to the President the grant of a charter and under section 21 of the Act, the Cabinet Secretary was to by notice in the gazette; publish the charter granted under section 19. While the charter, just like the legal notices, was a legal instrument by way of subsidiary legislation, the charter establishing the 2^nd respondent equated the 2^nd respondent to the appellant while completing the detachment of the appellant from the 2^nd respondent. Pursuant to the grant of charter, the president appointed a chancellor and council members to govern the 2^nd respondent.
16. The charter did not consider that there were students who were undergoing training in the different courses at different stages of their academic programs. There needed to be a clear mechanism put in place. While the Universities Act (2012) defined a student as any person registered in the university or an institute offering university education, that definition did not automatically cover the 1^st respondent in regard to the 2^nd respondent. He was neither admitted nor registered to the 2^nd respondent. The 2^nd respondent never existed in fact and law until March 2013 when the 1^st respondent was about to sit his final examinations and complete his studies, otherwise under the appellant directly or through its supervision.
17. In the absence of transition mechanism either in the Universities Act or the Charter establishing the 2^nd respondent, it could not infer an intention to apply the law retrospectively. For a law to apply retrospectively, the legislative instrument had expressly stated so.
18. The 1^st respondent did not become a student by operation of law, the charter establishing the respondent did not have a retrospective operation clause. Section 23(3)(c) and (e) of Interpretation and General Provisions Act provided that a right, privilege or liability acquired, accrued or incurred was not repealed. The status of students admitted by the appellant could not be automatically conferred to the 2^nd respondent.
19. The position that the 1^st respondent was a student of the college and now of the University was not achievable from the facts and law. There was no new admission letter, admission number or even information shared. The grant of charter did not suffice as operation of law. To the contrary, there was evidence on record that the 1^st respondent sought clarification of that status and the status of his education the first time that issue was brought to his attention and no concrete answer was forthcoming other than the imposition of the 2^nd respondent on the 1^st respondent and his fellow students. 
20. The plight of students caught up in the transitions was ignored. It only took the bravest, persistent and most patient of them to engage in litigation to assert or clarify their legal rights. At all times the contractual relationship between the appellant and the 1^st respondent subsisted and that there was none in place between the 1^st and 2^nd respondent.
21. There was need for exhaustion of existing avenues provided for in statute.  Rule 23(1) of the University (Establishment of Universities) (Standardization, Accreditation and Supervision) Rules, 1989 revealed that the grievance had to be made against the decision of the Commission. The decision of the commission to grant the charter did not bother the 1^st respondent. The 1^st respondent was only preoccupied with the institution that would award him the degree and at all times was keen that the same be done by the appellant and not the 2^nd respondent. The declaratory reliefs sought before the High Court by the 1^st respondent well espoused his protest. That type of complaint did not lend itself to rule 23 as the 1^st respondent was not open to appeal to the Minister. The Commission for University Education was not a party to the proceedings and no reliefs were sought against it.
22. The 1^st respondents disquiet only materialized upon the actual grant of the charter that established the 2^nd respondent and only when it became apparent that the 2^nd respondent was keen on awarding him a degree within three months of its establishment. It was only the grant of the charter that totally disassociated the 2^nd respondent from the appellant and the 1^st respondent felt that he would not only be disadvantaged in the human resource market by being a graduate of a relatively new university but also that he had made a conscientious decision to undertake his course at the appellant. 
23. The 1^st respondents rights to education from a university of choice based on a contractual relationship. The fact that there werent any universities established in similar manner and graduated students who did not challenge the same did not in itself validate the position. 
24. In matters of policy formulation, the court had a very minimal role to play, in matters education as especially professional training. Where such policy decisions affected the fundamental rights and freedoms protected by the Constitution, then those actions invited the High Court and courts in general to intervene and safeguard those rights and freedoms.
25. The 1^st respondent, when he first approached the High Court, neither sought reliefs under the Constitution nor administrative review prayers. The transition itself and establishment of the 2^nd respondent did not form the gist of the dispute. Instead, the case portrayed the predicaments of students who found themselves victims of policy decisions undertaken without a pragmatic consideration of all the relevant ramifications. The intentions could be noble but the same should not be at the expense of the affected students. 
26. The instant matter fell within the limited contours warranting our intervention. The matter largely revolved around the transitional statutory and regulatory regime which was within court intervention. The court was not called upon to interrogate the quality or qualification for the award of degree or to otherwise descend into policy making. The instant case merely asked of the court to determine who between the appellant and the 2^nd respondent should award the degree to the 1^st respondent and those in similar predicaments.
27. The position that the Supreme Court decision in Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR (Martin Wanderi case) that there was no cause of action against Moi University as the once the students of the former Western Campus of Moi University were incorporated into MMUST by operation of law, Moi University ceased to have any responsibility for them was not the position in the instant case. The position in the Martin Wanderi case was that the issue of ordering the award of Moi University degrees to the petitioners therein was not properly before the court for consideration. The position expressed in Martin Wanderi case was distinguishable and inapplicable in the manner portrayed by the appellant.
28. It was not practical that the 2^nd respondent was in a position to teach, train and examine someone who was already in the final year of study with two or so months left. The mere fact that the 2^nd respondents senate was empowered under paragraph 24(4)(j) of the charter establishing the 2^nd respondent to approve the award of degrees, that function was not exclusively limited to approval of awards of degrees from the 2^nd respondent. Paragraph 24(4)(k) of the charter empowered the senate to determine which qualifications or credits from other universities or institutions were to be acceptable as equivalent to particular qualifications of the University. That could be the only basis upon which the degree certificate was eventually issued to the 1^st respondent by the 2^nd respondent. The 1^st respondent had not acquiesced and never attended the graduation ceremony or took the certificate, unlike those students in Masinde Muliro University of Science and Technology referred to in the Martin Wanderi case.
29. The court could not impose the 2^nd respondents degree certificate on the 1^st respondent. The appellant did not discharge its obligation towards its students by contract, operation of law or otherwise. None of the parties could have been at fault as all parties seem to have been caught up in the unraveling events. That highlighted the initial rallying call to the stakeholders to be keen when undertaking the otherwise noble activities of expanding university education outreach through the commissioning and granting of charters to new universities, especially by way of upgrading of constituent colleges. There was such a thing as public participation as directed by article 10 of the Constitution which was not cosmetic.
30. The greater good was served by upholding the sanctity of the appellant as weighed against condoning an academic status founded on unsound legal basis. The fact that the 2^nd respondent had already issued the degree certificate to the 1^st respondent did not automatically validate the same. The 1^st respondent was entitled to a degree from his contracted university. The instant finding was only limited to clarifying the legal position obtaining in regard to the 1^st respondent and his fellow students at the time. Unlike the 1^st respondent, the other affected students seemed to have acquiesced to the award of their degrees by the 2^nd respondent. The other affected students were not before the instant court. It was over a decade since the universities were granted the charters. Any opener of the floodgates would have to surmount limitation of actions and lached considering the time lapsed.
31. In the absence of a proper mechanism set out in the transition legislation to specifically address the fate of the students in a campus of an existing public university which transformed to a constituent college and eventually granted a charter to a fully-fledged University, the students who were initially admitted by a university and posted to its campus remained the students of that university and entitled to be graduated by the said University.

Approvals issued by the County and NEMA to develop land adjacent to airports were on condition that one should obtain a development permit from the Kenya Airports Authority.

Brief facts

The appellant had undertaken to construct 24 maisonettes on land adjacent to Wilson Airport. The appellant secured financing in the sum of Kshs. 67,671,000.00 and began construction.  No sooner had he commenced the construction than the respondent, in exercise of its powers under the Kenya Airports Authority (the KAA) Act issued a cessation order to stop any construction or development on the ground that the suit property fell within the protected aircraft runway protection zone of the Wilson Airport. 

Aggrieved the appellant challenged the cessation order at the High Court via judicial review but the matter was dismissed. Aggrieved by the judgment of the High Court, the appellant filed an appeal at the Court of Appeal which had affirmed the finding of the High Court, that the respondent (Kenya Airports Authority (KAA)) acted within its statutory powers, when it declined to approve the construction of 24 maisonettes by the appellant in a parcel of land adjacent to Wilson Airport, in Nairobi, and; that the respondents decision did not amount to compulsory acquisition of the latters property to warrant compensation. 

Further aggrieved, the appellant filed the instant appeal. The appellant sought a declaration that his right to property had been violated and sought special damages for loss of earnings, a liquidated sum of Kshs. 992,336,004 which he claimed was loss suffered based on violations of his right to property.

Issues

1. Whether the Supreme Courts jurisdiction to determine appeals as of right from the Court of the Appeal if they involved constitutional interpretation and application extended to appeals alleging the violation of ones property rights.
2. Whether the Kenya Airports Authority had the power to control the development of land adjacent to airports.
3. Whether the Kenya Airports Authority had the power to stop persons with land adjacent to airports from developing their property. 
4. Whether approvals issued by the County and the National Environment Management Authority to develop land adjacent to airports were pegged on the condition that one would require to obtain a development permit from the Kenya Airports Authority. 
5. Whether obtaining the necessary approvals from the County and the National Environment Management Authority to develop land adjacent to an airport exempted one from obtaining a development permit from the Kenya Airports Authority. 
6. Whether the act of Kenya Airports Authority stopping the development of property adjacent to an airport was a violation of the property holders right to property.
7. What conditions did one need to meet to satisfy an award of damages for violation of ones constitutional rights?

Relevant provisions of the law

Kenya Airports Authority Act (CAP. 395)

Section 15

15.      Power to enter land to prevent accidents, etc.

(1)       Any authorized employee of the Authority may for the purposes of this Act, enter upon land and

(a)      cut down or remove any tree or other obstruction, not being a building; or

(b)      execute such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident.

(2)       If any tree or other obstruction cut down or removed under subsection (1)(a) came into existence subsequent to the construction of any aerodromes or to the service being provided thereafter, no compensation shall be payable in respect of such entry or the cutting down or removal of such tree or other obstruction.

(3)       Where any person erects any building which in any way interferes with the operation of any service provided by the Authority under this Act, the Authority may, unless such person has previously obtained the approval of the managing director to the erection of such building, or has modified it to the satisfaction of the managing director, apply to the High Court for an order for the demolition or modification of such building, or, as the case may require, for the payment to the Authority of the cost incurred in the resetting or replacement necessary to prevent such obstructionor danger and the court at its discretion may grant such order as it may deem fit as to the payment of compensation and costs.

Held

1. Jurisdiction was everything. Without it, a court had no power to make one more step. In its absence, the court could not do anything  but  to dismiss the case. Without jurisdiction, the court could not proceed to judgment on the merits; if it did, the result was a nullity.
2. Appeals from the Court of Appeal lay as of right to the Supreme Court under article 163(4) of the Constitution, if they involved constitutional interpretation and application, or upon certification, by either the Court of Appeal or that court, that matters of general public importance were involved. However there was the need to invoke the correct constitutional or statutory provision that clothed it with jurisdiction to entertain any matter before it.
3. The appellants claim had throughout been based on the interpretation and application of the Constitution, specifically that his property rights under article 40 were violated by the cessation order and that he was entitled to compensation under article 23 as read with article 24 of the Constitution. The court had jurisdiction under article 163(4)(a) of the Constitution to determine the appeal.
4. The trial court in R v. Managing Director, Kenya Airports Authority ex-parte Patrick Thoithi Kanyuira, HC Misc. No. 86 of 2009, was right in drawing the distinction between the causes of action in the two suits. In one the appellant had sought the quashing of the cessation order by certiorari, while the petition before the instant court was for compensation for violation of the appellants constitutional rights. The cessation order was properly issued by the respondent. To that extent, that issue was res judicata. It was a decision in rem, confirming that one of the bodies whose authorisation had to be obtained before making any development in the vicinity of the airport was the respondent. The appellant ought to have heeded the caution in the execution of the project on the suit property.
5. The right to own property and develop it to its full potential was a human right, recognized not only by the Constitution but also by international and regional instruments that Kenya was a party to.
6. The appellant was the holder of a certificate of title to the suit property issued under the repealed Registration of Titles Act, which by section 23 guaranteed its sanctity by providing that the certificate would be conclusive evidence that the person named as proprietor of the land was the absolute and indefeasible owner, only subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
7. The Kenya Airports Authority Act (KAA Act) provided the Kenya Airports Authority (KAA) with the power to enter upon any land to conduct a survey, to remove or cause to be removed any obstruction, materials, structures or buildings, including slaughterhouses which were likely to attract birds that may be hazardous to aircraft operations; to enter upon any land to prevent accidents by; cutting down or removing any tree or other obstruction, not being a building; or executing such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident. The Authority or any of its authorized employees could also enter upon any land and alter the position of any pipe, electric, telephone or telegraphic wire after giving reasonable notice. The wide powers exercised by KAA upon private land had the sole aim of making airports adjacent to private land secure and safe.
8. Section 13(3) of the KAA Act provided that prior approval of the director was a necessary pre-condition and requirement. Only for the purpose of demolition or modification of any building within the proximity of the airport which could pose aviation risk, was the respondent required to obtain an order of the court. It was precisely because of that that the respondent filed in a suit that sought an order of the court to demolish the structures on the suit property which stood spent after the appellant ingeniously withdrew the suit taking away the forum for hearing of the application.
9. All the powers vested in the respondent by sections 14, 15 and 16 of the KAA Act were aimed at guaranteeing the safety of aircrafts, vehicles and persons using the aerodrome as well as to prevent danger to the public. There was no logic in the argument that there was no basis for the respondent to stop the construction without evidence of how it would interfere with aviation safety and security.
10. In the instant case, however, there was proof presented to the trial court by three pilots that the construction would be a danger to aircrafts using Wilson Airport. One of the pilots shared their practical ordeal following a plane crash in which he was personally involved near the suit property; that upon crashing, his aircraft burst into flames that would have consumed the suit property had it been constructed.
11. Prior approval or rejection had to of necessity be based on the independent assessment by the respondent of architectural designs of any proposed construction from which matters like the height of the proposed building could be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
12. Because the suit property was adjacent to the airport, it was common factor that the appellant sought approval from the respondent pursuant to the provisions of section 15 of the KAA Act. At no point, in the course of exchanging correspondence did the appellant question the respondents authority to control the use of land adjacent to airports.
13. It was as perplexing as it was disconcerting that the appellant would, after all the exchanges and engagement with the respondent turn around and claim that the respondent had no role in approving his project and insist that, the KCAA, as the only body, in law from which he required approval, and from which he had in fact obtained such authorization, there was no basis for the respondent to insist on compliance with the cessation order.
14. It was unfortunate for the appellant to contend that the project having been approved by the then City Council of Nairobi and by National Environment Management Authority (NEMA), that he did not require approval from the respondent. By the time the appellant applied to the respondent for approval on January 10, 2008 and even as NEMA gave its approval the appellant had commenced the construction in 2007.
15. Apart from the respondent, there were other regulatory agencies whose authorization would be necessary for and must be obtained before any development could be commenced within the proximity of the aerodrome areas in Kenya, such as the KCAA, NEMA and NCC, it was the approval of each that would give a licence for any proposed develop in such areas.
16. One or two approvals without the concurrence of the other would not do, hence the need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.
17. Sections 9 of the repealed Civil Aviation Act which was worded in the same terms as section 56 of the Civil Aviation Act, 2013, and despite the provisions of any law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary could, where he considered it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order. A declared area was any area adjacent to or in the vicinity of an aerodrome.
18. Section 10 of the repealed Civil Aviation Act, which was reproduced in section 57 of the 2013 Act, if the Director-General considered that provisions for civil aviation safety and security or efficiency of air navigation ought to be made, whether by lighting or otherwise for giving aircraft warning of the presence of any building, structure, tree or natural growth or formation on or in the vicinity of an aerodrome; or by the removal or reduction in height of any such obstruction or surface, he or she may by order, and subject to any conditions specified in the order, require or authorise either the owner or occupier of the land on which the obstruction was situated or any person acting on behalf of the Director-General to enter upon the land and carry out such work as was necessary to enable the warning to be given or the obstruction to be reduced in height. Further, the Cabinet Secretary under section 82(2)(x) could regulate or prohibit in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatever which obscures or may obscure visibility.
19. NEMA was responsible for promoting the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. That in turn ensured the improvement of the quality of human life in Kenya.  The approval had to be obtained prior to commencement of a project. It was the duty of the proponent of a project to undertake an environmental impact assessment study and submit a report for consideration by NEMA.  The approval of a proposed project by NEMA was subject to approval by any other body authorized to do so by any law; and that approval by NEMA was subject to environmental impact of the project.
20. Similarly County of Nairobi, the predecessor of Nairobi City County (NCC), as a local authority had the sole mandate of physical planning in the city. Under the repealed Physical Planning Act, no development within the city could be carried out without a development permission granted by NCC. It was a punishable offence to contravene that requirement. Therefore, any person that intended to carry out any development in the city could only do so after obtaining what the Act termed development permission from the Director of Physical Planning. Before granting permission NCC was required by section 32(2) to consult several bodies.
21. Each of the multi-actor regulatory agencies inevitably involved highly-specialized expertise, with different legal mandate and framework. Their mandates could at times overlap or contradict. That was instead of looking at single institutions. One had to map the full and relevant existing legislative spectrum to appreciate their linkage.
22. The fragmentation of roles between the regulators only went to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ended and that of the other began. To avoid that, the agencies had to develop and maintain synchrony with each other.  Such synergy was created, for instance in section 10(1) of the repealed Civil Aviation Act, where the National Civil Aviation Security Committee responsible for, among other things, co-ordinating security activities between agencies and other organizations, airports and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the civil aviation security was established. Its membership, appointed by the Minister, included the respondent. Section 32(2) of the repealed Physical Planning Act was another example.
23. Section 6 of the Physical and Land Use Planning Act, 2019, which repealed the Physical Planning Act established the National Physical and Land Use Planning Consultative Forum, whose functions were, inter alia, to provide a forum for consultation on the national physical and land use development plan; promote effective co-ordination and integration of physical and land use development planning and sector planning; and consider national security and advise on strategic physical and land use development projects of national, inter-county, county, or transnational importance.
24. It was in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA that the approval was subject to the appellant complying with all the relevant principal laws, by-laws and guidelines issued for the development of the project by all relevant authorities.
25. Further evidence showed that the regulatory agencies had to work and that in the instant case they worked in coordination.  An example was a letter by  the respondent in response to the Director General KCAAs letter explaining to the latter that it had not approved the on-going developments on the suit property for the reason that it lay within the approach funnel of the main runway of Wilson Airport. It was surprising that there would be an approval by KCAA that the appellant was exclusively relying on to continue with the construction in the absence of one from the respondent. The appellant was on a bad and unhelpful frolic. The respondent lawfully and within the remit of the Constitution issued cessation order in issue.
26. The compensation contemplated by articles 22 and 23 of the Constitution could only be awarded where there was proof that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened.
27. A claim in public law for the deprivation of fundamental rights and freedoms, compensation could include loss of earnings.  There was nothing in section 33 of the KAA Act that would entitle the appellant to be compensated in the claimed sum of Kshs. 992,336,004. That was because his loss, injury or damage, if any, were as a result of his own subversive actions.
28. The right to property under article 40 of the Constitution was not an absolute right. In appropriate circumstances it could be limited by the law. The respondent had produced evidence in support of the justification to stop the project pursuant to the KAA Act. The security and safety of flight paths was in public interest which permitted the limitation on enjoyment of the right and freedoms in the Bill of Rights of a private individual.
29. In determining whether the limitation of a right was justifiable, a court had to consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual did not prejudice the rights of others.
30. The respondents action did not extinguish the appellants ownership rights to the suit property nor did it technically amount to acquisition of the suit property by the respondent. The cessation order only sought to restrict the activities that, in the view of the respondent would compromise aviation safety and security.

Supreme Court extends time for filing a supplementary record of appeal over one year after the filing of the record of appeal.

Brief facts

The applicant filed the instant application seeking leave to file its supplementary record of appeal being the replying affidavit of its then managing director. The applicant claimed that it inadvertently, by omission, failed to include as part of the record the replying affidavit by the then managing director of the applicant and that the omission was only discovered while the applicant was preparing submissions to the petition. Further, that upon realization, the applicant proceeded to file the instant application in good faith. The applicant also claimed that the replying affidavit formed the crux of the interpretation of the law by the Court of Appeal and was integral to the disposition of the Court of Appeal.

Issues

Whether the Supreme Court could extend the time for filing a supplementary record of appeal over one year after the filing of the record of appeal.

Held

1. Though the applicant had invoked the courts jurisdiction to extend time under rule 15(2) of the Supreme Court Rules, 2020, the application did not seek any express relief for extension of time. Nevertheless, rule 40 of the Supreme Court Rules, 2020 dealt with the contents of a record of appeal which included the relevant pleadings required to determine the appeal. Under rule 40(4) where a document was omitted from the record of appeal under that rule, the appellant could within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record.
2. It was well over fifteen days and indeed over one year between the filing of the record of appeal and the instant application. The applicants counsel merely stated in his affidavit that he discovered the absence of the supplementary record of appeal when preparing the submissions for the petition making it difficult to address the question of delay. The applicant had not explained the delay or when he made the discovery.
3. The nature of the proceedings was such that they involved matters of great public interest that deserved conclusive determination. Considering the nature of the document sought to be introduced through the supplementary record of appeal, the replying affidavit by the then managing director of the applicant was a very crucial document as it was the substantive response to the petition as filed at the High Court and it was placed before the Court of Appeal as part of the record that was considered by the appellate court in its decision. The applicant was deserving of the courts exercise of discretion in its favour and no prejudice would be occasioned to the respondents.

An attempt by an advocate to conceal material facts in a matter was unethical and a breach of the duties of an advocate as an officer of the court.

Brief facts

The Court of Appeal had overturned the judgment and orders of the High Court in Petition No. 72 of 2011. In dismissing the 1^st to 4^th respondents petition, the High Court had held that the petitioners had acted within the law in demanding payment of excise duty on returnable containers and that there was no breach of any constitutional rights of the 1^st to 4^th respondents. 

Aggrieved by the decision of the Court of Appeal, the petitioners filed the instant petition of appeal and the matter was eventually set for hearing. However, before the hearing and upon perusing the filed pleadings and record of appeal, the Supreme Court noted some serious anomalies: that the petition of appeal omitted any prayer for relief, and that the petition filed in the High Court as well as a substantial part of the affidavit supporting it, was missing from the record of appeal. As such, the court found that it was necessary to ascertain the status of these documents before proceeding to hear the matter. 

Counsel for the petitioners indicated that their petition of appeal contained the reliefs sought. It was their submission that the court ought to make pronouncements on the principles of taxation in terms of that paragraph. Counsel further urged the court to allow them to ventilate the matter and not strike out the appeal, arguing that such a move was too draconian and that if necessary, the petitioners should then be allowed to amend the petition. On the other hand, counsel representing the respondents submitted that the petition did not contain any reliefs sought. In that regard, he submitted that the petition could not now be amended and urged that the omission was fatal because the arguments to be advanced by the parties had to result in reliefs that the court could properly grant. It was further contended that there being no reliefs sought, proceeding to hear the matter would be undertaking an academic exercise as a court determined issues pleaded and granted reliefs sought by the parties.

Issues

1. Whether a record of appeal that did not contain the required documents relating to the proceedings at the trial court was fatally defective.
2. Whether an attempt by an advocate of the High Court of Kenya to conceal material facts of a matter was unethical and a breach of the duties an advocate owed to the court as an officer of the court.

Held

1. There were no actual legally recognized reliefs pleaded by the petitioners for the court to grant, the petition of appeal before the court was fatally defective for lack of reliefs sought and ought to be struck out.
2. The record indicated that the instant matter was severally mentioned before the Deputy Registrar for the petitioners to file a supplementary record of appeal. The mentions culminated into a consent dated October 5, 2020 adopted as a court order on October 8, 2020 where the court directed and ordered that the supplementary record of appeal be filed and served within 14 days from the date of recording the consent. The petitioners filed a supplementary record but it only contained the order and proceedings of the Court of Appeal. Therefore, the defect was not cured as the High Court petition and part of the affidavit were still missing.
3. Rule 33(4) of the Supreme Court Rules, 2012 (repealed) which rules were applicable at the time of filing stated that for the purpose of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal had to contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub rule (3) and had to further contain the following documents relating to the appeal in the first appellate court  being the certificate, if any, certifying that the matter was of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. The petitioners were obligated by law to include all the pleadings and documents relied upon during the hearing in the two superior courts. Failure to comply with section 33(4) of the Supreme Court Rules, 2012 (repealed) was fatal as the window for such compliance was closed. The petition was fatally defective and incurable
4. The Supreme Court was concerned with the demeanour of counsel appearing for the petitioners. Even when he was aware that essential documents were missing from the record of appeal, he intended to proceed with the matter without duly informing the court or the other parties in the matter. That apparent attempt by counsel to mislead the court, fell short of professional etiquette and conduct that was expected from an advocate and officer of the court. It was improper, dishonest, and discourteous for an advocate to deliberately conceal material facts that were important to arriving at a just and fair decision. The Supreme Court frowned greatly upon such behaviour.

The absence of legislation did not render a court helpless.

Brief facts

The petitioners challenged the judgment and orders of the Court of Appeal delivered on November 11, 2016. The dispute revolved around three first-row beach adjoining pieces of land (suit lands). By a constitutional petition lodged at the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants claim, among others, that initially, between the first-row beach plots and the Indian Oceans high-water mark, there was a strip of land that was reserved for public use (reserve land). That the 3^rd respondent illegally demarcated from the reserve land and granted title to the 1^st respondent as a first allottee for a term of 99 years. In the process of consolidating various parcels of land owned by the 2^nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. They claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.

Aggrieved, the 1^st and 2^nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 1992 while the petition was filed over 20 years later, and the High Court judge, therefore, erred in applying article 47(1) and (3) of the Constitution while failing to appreciate that the same was forward-looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Courts decision and orders.

Dissatisfied by the Court of Appeals judgment, the appellants lodged the instant appeal. They challenged, among others, the appellate courts finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the appellate court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal challenging, among others, the jurisdiction of the Supreme Court to determine the appeal. They argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the 2010 Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the Commencement of the 2010 Constitution. They also submitted that the suit properties were unalienated government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them.

Issues

1. Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively.
2. Whether in the absence of legislation giving effect to the right to fair administrative action, the High Court was divested of jurisdiction to review administrative action.
3. What amounted to public land?
4. Whether un-alienated government land was public land.
5. Whether a foreshore felt within the category of public land.
6. Whether any right to a foreshore would be conferred to a private entity.
7. Whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission.

Held

1. The jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of the Supreme Court was being impugned was not borne out of fact, in that, the dispute before the court had never been finalized by the Court of Appeal before the commencement of the Constitution. The judgment of the Court of Appeal which gave rise to the appeal was delivered on November 11, 2016. The Supreme Court was properly seized with jurisdiction to entertain and determine the appeal.
2. Although the respondents relied on the Supreme Courts decision in the case of Samuel Kamau Macharia v. Kenya Commercial Bank [2012] eKLR (Macharia case) to argue that the Constitution did not apply retrospectively, a clear reading of the courts pronouncement left no doubt that the court did not out-rightly rule out the retrospective application of the Constitution. The court, however, cautioned that where the language of a particular provision in the Constitution did not contain even a whiff of retrospectivity, then such provision could not apply retroactively. Noteworthy, the court in other cases had gone ahead to identify a number of provisions in the Constitution which it considered relevant to the dispute before it, notwithstanding the fact that the questions before it had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward-looking.
3. Article 47 of the Constitution was a Bill of Rights provision which was stated in deliberate and clear normative terms. It set out clear and unambiguous entitlements within the language of the Bill of Rights. They were expressed in normative terms as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. Contrary to the holding by the Court of Appeal, those were substantive entitlements whose enjoyment was not intended to be suspended by article 47(3) of the Constitution. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The Constitution required that such legislation provided for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action was already provided for in article 47(1) of the Constitution, being expedition, efficiency, lawfulness, reasonableness and procedural fairness. The effect of sub-article 3 was therefore to perfect the enjoyment of those rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
4. The absence of legislation did not render a court helpless given the interpretative refuge afforded by article 20 (3) of the Constitution. The High Court correctly applied article 47 of the Constitution in addressing the original claim.
5. The assertions by both parties regarding the dates of completion of the transfer of the suit lands and the commencement of the erection of the wall had not been factually controverted. For a party to be time-barred from litigating its claim, such limitation of time had to be stated in the Constitution, statute or as a principle of common law. To be successfully raised against a litigant, a court had to determine when the time started running. The question as to when the cause of action arose had to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor were they evident on the face of the appellate courts conclusions. It was not lost to the court that the gravamen of the appellants grievance was the allocation of the disputed land by the 3^rd respondent to the 1^st and 2^nd respondents and the consequent erection of the wall by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. There was no basis upon which the appellants could be said to have slept on their rights.
6. The status of the suit properties could only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards that end, article 62(1)(a) and (i) of the Constitution provided that public land was inter alia, a land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date and all land between the high and low watermarks.
7. Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provided that coastal offshore reservation where un-alienated government land fronting on the area coast was being surveyed for alienation, a strip of land not less than 60 metres in width could normally be reserved above the high-water mark for government purposes provided that, if the interests of development require, the Minister would direct that the width of that reservation be less, than 60 metres in special cases.
8. Section 82 of the repealed Government Lands Act provided that a conveyance, lease or license under it ought not, unless otherwise expressly provided therein, confer any right to the foreshore. Therefore, unalienated government land was public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). That notwithstanding the fact that the expression public land only came to the fore with the promulgation of the 2010 Constitution.
9. Article 62 of the Constitution clearly delimited the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of public tenure. The repealed constitution used the term government instead of public to define such lands. It was incorrect for the respondents to assert that the lands in question were unalienated government land but not public land. It was even more inaccurate to argue that the said parcels had never been public land. Unalienated government land remained public until it was privatized through allocation to individuals or other private entities.
10. To the extent that the assertion by the appellants remained un-controverted, the additional portion of land which was allocated to the 2^nd and 1^st respondents was hived off the coastal foreshore by the 3^rd respondent. Such foreshore consisted of land lying between the low-water mark and the high-water mark plus an additional 60 metres above the high-water mark within the meaning of regulation 110 (1) of the Survey Regulations of 1994. Such land was reserved for government/public use.
11. Although article 62(1)(l) of the Constitution made no reference to the 60 metres above the high-water mark, only limiting itself to the language of the high and low water mark. Article 62(1)(n) of the Constitution provided for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date or enacted after the effective date, hence the relevance of regulation 110(1) of the Survey Regulations of 1994 which was enacted before the effective date pursuant to section 45 of the Survey Act. Further, section 82 of the Government Lands Act (repealed) which predated the Survey Act, and under which the suit lands fell as un-alienated government land, out-rightly forbade the conferment of any right to the foreshore by a conveyance, lease or license.
12. The right of access to the ocean through the foreshore by members of the public or any other owner of land along the coast, being the appellants, whether for economic, recreational or aesthetic reasons, was a public right secured by a public easement. Such right was not acquired through a private treaty. It followed that a person or private entity who had encroached on the foreshore could not interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the government would interfere with or limit such easement only in promotion or protection of the public interest as guaranteed by the Constitution and the law.

The declaration of an Act as unconstitutional by the courts did not prohibit Parliament from subsequent enactment of law that would repeal the impugned unconstitutional Act.

Brief facts

The petitioners moved to the Supreme Court vide a Petition of Appeal that sought to overturn the judgment and orders of the Court of Appeal save for the declaration that sections 24(3)(c) and (f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 violated the principle of separation of powers. In essence, they sought to invalidate the Constituency Development Fund Act 2013 as amended by the Constituencies Development Fund (Amendment) Act 2015 for various reasons stated in the petition. On its part, the 1^st respondent filed a notice of cross-appeal that sought to uphold the Court of Appeals decision.

The petitioners filed an application that sought leave to attach additional evidence, being copies of the Hansard which were not available to them at the time of filing the petition of appeal. The petitioners claimed that the additional evidence removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit and the respondents could easily respond to, and the court could as well take judicial notice of the evidence. Further, the additional evidence fit the issues framed in the petition relating to the Constituency Development Fund Act offending the division of functions, principles of public finance, and division of revenue.

The respondents objected to the application on grounds that the additional evidence was not directly relevant to the matter and that the petitioners should not be allowed to patch up points that they had not raised at the trial court at the appellate court.

Issues

1. Whether courts could make reference to the Hansard while making judicial determinations.
2. Whether parliamentary privilege extended to acts that could be considered a violation of the Constitution.
3. Whether the declaration of a law as unconstitutional by the courts prohibited Parliament from subsequent enactment of a law that would repeal the impugned unconstitutional Act.
4. Whether a party could seek a determination of a matter that was pending in the High Court at the Supreme Court.

Held

1. Under section 60(1)(b) of the Evidence Act, courts had to take judicial notice of the general course of proceedings and privileges of Parliament, but not the transactions in their journals. It was not uncommon for courts to make reference to the Hansard in making their determinations as they had done in the past. As elected representatives of the citizens, there was public interest in allowing citizens to access proceedings of Parliament which included broadcast to the public particularly under the dispensation of the Constitution of Kenya, 2010. Such proceedings were reduced into a Hansard that was readily accessible to the public which could explain why the petitioners had ready access to it, notwithstanding that it was not an original or a certified copy.
2. Parliament in Kenya could not enjoy privilege, immunities and powers which were inconsistent with the fundamental rights guaranteed in the Constitution. Thus, whereas parliamentary privilege was recognized, it did not extend to violation of the Constitution hence Parliament could not flout the Constitution and the law and then plead immunity; where a claim to parliamentary privilege violated Constitutional provisions, the courts jurisdiction would not be defeated by the claim to privilege; that the concept of statutory finality did not detract from or abrogate the courts jurisdiction in so far as the complaints made were based on violation of constitutional mandates or non-compliance with rules of natural justice; that whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power had to be fully respected, the courts could however interfere with the work of Parliament in situations where Parliament acted in a manner that defied logic and violated the Constitution.
3. The parliamentary privileges and immunities were not absolute in the event of a valid grievance by a litigant based on the violation of the Constitution. The petitioners had brought action against the National Assembly alleging infringement of the Constitution. At the instant juncture, before the appeal was heard, the court could not say that Parliament had violated the Constitution in debating or expressing itself on any legislative action. That issue had to await the hearing and determination of the appeal and parties allowed to respond to the new evidence, if at all it was eventually admitted.
4. The proposed additional evidence was subject to litigation before the High Court in which the petitioners were involved. There was no justification for destabilizing the same to enable the Supreme Court to render itself, as the apex court, on an issue that could otherwise end up before it using the normal litigation and appellate channels. The evidence sought to be introduced would be best interrogated in those pending litigations before the High Court and subsequently through appeal should it have come to that.
5. The relevance of the debates to the appeal was not readily apparent to the deponent. The instant proceedings did not relate to the Constitutionality of the National Government Constituency Development Fund and the Division of Revenue Bill 2021. A perusal of the issues for determination and reliefs sought in the petition of appeal and the notice of cross-appeal before the Supreme Court revealed that the remedies sought related to the constitutionality of the Constituency Development Fund Act, 2013.
6. While the High Court had declared the Constituency Development Fund Act as unconstitutional, the order of invalidity was suspended for a period of 12 months and the National Government was allowed to remedy the defect within the suspension of invalidity period or by repeal whichever came first. That did not prevent Parliament from subsequent enactment of law that would repeal the impugned Constituency Development Fund Act 2013. The National Government Constituency Development Fund Act was enacted in that context.
7. The Constitution gave recourse for any party to challenge the Constitutionality of any laws to the extent of the contravention. The petitioners were engaged in challenging the National Government Constituency Development Fund Act before the High Court as alluded to earlier in the ruling.
8. The additional evidence should have been admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and seeking that such evidence be considered in determining the constitutionality of the 2013 Statute was quite inappropriate as it not only introduced fresh facts but also introduced them at the penultimate stage of the proceedings before the apex court. That was compounded by the fact that the main appeal was ready for hearing. The interests of justice were better served in having the appeal disposed of expeditiously.