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Jurisprudence that Emanated from the Courts in 2014

Contents

SUPREME COURT

COURT OF APPEAL

EMPLOYMENT AND LABOUR RELATIONS COURT

COMMERCIAL LAW

ENVIRONMENT AND LAND COURT

CASES RELATING TO DEVOLUTION

ELECTORAL LAW

CONSTITUTIONAL LAW CASES

 

SUPREME COURT

Reported by Andrew Halonyere

Jurisdiction of the Judges and Magistrates Vetting Board

The Judges and Magistrates Vetting Board was set up to vet the suitability of all the Judges and Magistrates, in office prior to the promulgation of the Constitution of Kenya. Since the establishment of the board, it had vetted a number of Judges and Magistrates and declared some unfit to serve. The Board’s establishment by the Vetting of Judges and Magistrates Act and some of its declarations, has triggered various lawsuits challenging its jurisdiction and scope.

The Supreme Court has clarified the position in the following cases

In Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association [2014]eKLR.

The main issue that was determined was whether the Judges and Magistrates Vetting Board (Vetting Board), in determining the suitability of a Judge or Magistrate to continue to serve in the Judiciary could consider conduct after the effective date of the Constitution of Kenya 2010.

The holding of the majority was that The Vetting Board could only make determination on the suitability of a Judge or Magistrate to continue to serve on the basis of what the Judge or Magistrate was alleged to have done or omitted to do during his tenure in office before the Constitution of Kenya 2010, for it was the actions or omissions, that would determine whether judge or Magistrate was to be vindicated or condemned.  The Board could not wait to act on the basis of what a Judge or Magistrate would do after the promulgation of the Constitution of Kenya 2010.

The Court further held that the Vetting Board in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution could only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date and not after and that to have held otherwise would not only defeat the transitional nature of the vetting process but would transform the Board into something akin to what Lord Mersey in G & C Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd (1913) once called an unruly dog which, if not securely chained to its own kennel, was prone to wander into places where it ought not to be. In the instant matter, that analogy was used to refer to a jurisdictional mandate within the constitutional set up and not the Vetting Board per se.

Another case that touched on the Jurisdiction of the Judges and Magistrates Board was the case of Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others [2014]eKLR, the main issue for determinationwas whether the effect of section 23(2) of the Sixth Schedule to the Constitution of Kenya, 2010 and section 22(3) of the Vetting of Judges and Magistrates Act, No 2 of 2011 was to oust the supervisory jurisdiction of the High Court.

The majority opinion was that section 23(2) of the Sixth Schedule to the Constitution ousted the jurisdiction of the High Court or any other Court to review the decisions of the Judges and Magistrates Vetting Board and also excluded the powers of the High Court to exercise original jurisdiction in claims brought as a consequence of the decisions of the Vetting Board.

It was further held that as per the provisions of section 23(1) of the Sixth Schedule to the Constitution of Kenya 2010, the purpose of the vetting process was to ensure that Judges and Magistrates continued to serve in accordance with the national values and principles of good governance and in accordance with the requirements of article 259 of the Constitution. That among the provisions of article to 259 was the requirement that the Constitution would be interpreted in a manner that promoted its purposes, values and principles and advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights.

The Chief Justice in the said case concurred and emphasized that  that in interpreting the Constitution, Courts had to take cognizance of Kenya’s unique historical context and that the locus classicus case on statutory ouster, Anisminic case, would not apply in interpreting section 23(2) of the Constitution due to Kenya’s unique historical circumstances. He further held that there was need to interrogate other international jurisdictions on whether they had Constitutions with provisions such as articles 1, 23, 159 and 259 which emphasized on sovereignty of the people, article 10 on the national values and principles of good governance, which applied to the interpretation of Kenya’s Constitution 2010. If the answer to these questions was negative, then common law doctrines found in other jurisdictions, foreign cases and foreign Constitutions were to be interpreted in a manner that reflected Kenya’s modern Constitution and unique conditions and needs.

Meaning of Declaration of Election Results.

The Issue of what constituted declaration of electoral results gave rise to difference in judicial reasoning in both the High Court and the Court of Appeal , however the Supreme Court finally settled the issue in the case of Hassan Ali Joho & another v Suleiman Said Sharbal & 2 others [2014]eKLR. The main issue before the Court was whether the 28 days limitation period for filing an election petition begun running after the declaration of election results by the Independent Electoral and Boundaries Commission as provided by article 87(2) of the Constitution or after the publication of the election results in the Kenya Gazette as provided by section 76(1)(a) of the Elections Act, and whether section 76(1)(a) of the Elections Act was inconsistent with article 87(2) of the Constitution and to that extent a nullity.

Section 76(1) (a) of the Election Act ( Cap 7 ) provided that a petition to question the validity of an election had to be filled within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation.

According to the court, declaration or election results took place at every stage of tallying. For example, the first declaration took place at the polling station; the second declaration at the Constituency tallying center and the third declaration at the County returning center. Thus the declaration of election results was the aggregate of the requirements set out in the various forms involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

The Court further held that where a candidate was challenging the declared results of an election, a quantitative breakdown would be a key component in the cause.  It had to be ascertained who the winner and the loser (s) in an election were. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the Election Court. The certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of section 76 (1) (a) of the Elections Act was inconsistent with the provisions of article 87 (2) of the Constitution.

Unconstitutionality of section 76(1) of the Election Petition Act, and its Effect on Election Petitions

 Following the Joho’s  decision of declaring section 76(1)(a) of the Elections Act as unconstitutional various petitions have been filled before the courts seeking inter-alia interpretation of what was the effect of declaring the said section of the Elections Act invalid.  In Mary Wambui Munene v Peter Gichuki King’ara & others, the Supreme Court had to deal with issue whether the declaration of section 76(1)(a) of the Elections Act, 2011 as being invalid had retrospective effect, therefore invalidating the proceedings filed before the date of the Joho’s decision.

It was held that, The Supreme Court had been silent in the Joho’scase on the effect of declaration of invalidity of a statute and therefore unequivocal about the invalidity of any action emanating from section 76(1)(a) of the Elections Act, in appropriate cases, it might exercise its jurisdiction to give its constitutional interpretations retrospective or prospective effect. That was derived from the broad mandate accorded by article 1, 10, 163, 159 and 259 of the Constitution, and section 3 of the Supreme Court Act, 2011.

It was further held that in line with the Constitution, the Court was not precluded from considering the application of the principles of retro activity or pro activity on a case by case basis. As such, in the instant matter, the issue of invalidity of section 76(1)(a) of the Elections Act was bound to the issue of time. Time, as a principle, was comprehensively addressed through the attribute of accuracy, and emphasized by article 87(1) of the Constitution, as well as other provisions of the law. Time, in principle and applicability was a vital element in the electoral process set by the Constitution.

Similarly in the case of Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 others [2014]eKLR, the Supreme Court affirmed its position by holding that, the declaration of invalidity of section 76(1)(a) of the Elections Act, applied retrospectively in the instant case, as in the case of Mary Wambui Munene v Peter Gichuki King’ara & 2 Others Sup Ct Applic. No. 12 of 2014 because the Elections Act was an essential derivative of the Constitution enacted after the promulgation of the Constitution and was meant to set out the guidelines for the proper and effective conduct of elections and necessarily incorporated the element of time and timelines.

The Court further held that the lesson of comparative jurisprudence was that while a declaration of nullity for inconsistency with the Constitution annulled statute law, it did not necessarily entail that all acts previously done were invalidated. In general, laws have a prospective outlook and prior to annulling declarations, situations otherwise entirely legitimate might have come to pass and differing rights might have accrued, that have acquired entrenched foundations. That gave justification for a case by case approach to time span effect in relation to nullification of statute law. In that regard, the Court had a scope for discretion, including the suspension of invalidity and the application of prospective annulment. Such recourses, however, were for sparing and most judicious application in view of the overriding principle of the supremacy of the Constitution as it stood.

Timelines in filing and determining Electoral Appeals

The Supreme Court in the case of Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014]eKLR, had set out the timelines in filing and determining Electoral Appeals. The genesis of the case was that the petitioner had filed an appeal to the Court of Appeal against a High Court’s decision of dismissing the 1st respondents (Waititu) request for scrutiny and recount for votes in an election petition.

However, the appeal was filed 72 days after the delivery of the High Court’s judgment, notwithstanding the provisions of section 85A of the Elections Act, that provided that electoral appeals from the High Court to the Court of Appeal had to be filed within 30 days of the delivery of the High Court’s judgment.

The Court of Appeal In admitting & entertaining the appeal, held that section 85A (a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named in the Constitution itself; and so a court of law could extend the period within which an intending petitioner could lodge an appeal beyond the 30 day limit prescribed in the Elections Act, and that such an extension was proper in the interest of justice, especially where there had been delay in the preparation of court proceedings. That Parliament could not have intended to shut out a litigant from filing an appeal as that would have offended other constitutional provisions such as articles 10, 20 and 25(c). The Court further held that on the strength of rule 35 of Election (Parliamentary and County Elections) Petition Rules, the Court of Appeal Rules were applicable in their totality to election petition appeals before the court; and so Rule 82 (1) of the Court of Appeal Rules (which provided for the certificate of delay) could apply to extend the time for filing an election petition appeal beyond the 30 day.

The petitioners main ground of appeal before the Supreme Court was that the Court of Appeal acted without jurisdiction when they entertained heard and determined an incompetent appeal filed beyond the prescribed timelines, which was in breach of the provisions of article 87(1) of the Constitution of Kenya, 2010 and section 85A of the Elections Act.

The Supreme Court overturned the decision and held that the question of timeliness in filing and determining election petitions as set by the Constitution and the Elections Act, section 85A(a) were neither negotiable nor could they be extended by any court for whatever reason. Section 85A of the Elections Act was neither a legislative accident nor a routine legal prescription. It was a product of a constitutional scheme that required electoral disputes to be settled in a timely fashion.

Thereafter the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]eKLR , set out the principles to be considered in exercise of discretion to extend time for filing an appeal . The principles were:

  1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court.
  2. A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
  3.  Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis.
  4.  Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the Court.
  5. Whether there would be any prejudice suffered by the respondents if the extension was granted.
  6. Whether the application had been brought without undue delay, and.
  7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

Broadcasting Signal Distribution Licensing

Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014]eKLR

The case had its origins at the High Court where Royal Media Services and 5 others sought orders to compel the Communications Commission of Kenya to issue them with Broadcasting Signal Distribution (BSD) licenses & frequencies & an order restraining the CCK from switching off their analogue frequencies, broadcasting spectrums and broadcasting services pending the issuance of a BSD license. However, the High Court dismissed the petition holding that Royal Media Services and other media the petitioners were not entitled to be issued with a BSD license merely on the basis of their established status or legitimate expectation on their part and further that the implementation of the digital migration was not a violation of the petitioners fundamental rights and also that their intellectual property rights had not been infringed.

Aggrieved by that decision, they appealed to the Court of Appeal who set aside the decision of the High Court by holding inter alia that.

  1. The Communications Commission of Kenya was not the independent body contemplated by article 34(3) (b) & (5) of the Constitution and therefore could not grant the BSD licenses.
  2. The direction for the then respondents to air the appellants’ (now respondents’) Free to Air (FTA) programmes  without their consent was a violation of the appellants’ intellectual property rights and was thus declared null and void.

Subsequent to the determination by the Court of Appeal, four petitions were filed at the Supreme Court by the appellants (Petitions Nos. 14, 4A, 14B & 14C of 2014) and were all consolidated into the instant petition.

The main issues for determination before the Supreme Court were whether Communication Commission of Kenya violated the intellectual property rights of the content producers (respondents) by authorizing the 4th & 5th appellants to transmit the respondents’ broadcasts without the respondents’ consent and Whether legitimate expectation for the grant of Broadcasting Signal Distribution (BSD) license can arise on account of substantial/ massive investments in the broadcasting sector.

The Supreme Court held that CCK had exclusive powers under section 5(1) of the Kenya Information & Communications Act to issue broadcast licenses. Section 5B thereof guaranteed the independence of CCK in the performance of its functions. However the promises made to the respondents on account of their substantial investment in broadcast infrastructure, and upon which they claimed legitimate expectation for the grant of BSD licenses emanated from the Permanent Secretary, Ministry of Information, Communications & Technology. Under the Kenya Information & Communications Act, the Permanent Secretary had no role in the granting or cancellation of a BSD license or any other broadcast licenses. It was therefore unlawful for the Permanent Secretary to make such promises to the 1st and 2nd respondents.

The Court further held that although CCK deployed the procurement procedure in the Public Procurement & Disposal Act, in granting a BSD license to the 5th appellant (Pan African Network Group Kenya, Limited) and denying the same to the 1st, 2nd & 3rd respondents, that decision was not informed by the imperatives of the values of the Kenyan Constitution as decreed in article 10. Given the fact that the subject matter of the license was a critical public resource and whose capitalization the Kenyan public had an interest in, CCK was bound to conduct its affairs more responsibly & transparently. Instead CCK chose to be hamstrung by the technicalities of procedure as if it were an ordinary procurement of goods and services. It was operating as if the constitution did not exist.

Mandate of the National Land Commission vis a vis Ministry of Lands, Housing & Urban Development.

Since the establishment of the National Lands Commission, disagreements have arisen in regard to the powers and functions of the National Lands Commission and the Ministry of Lands, Housing & Urban Development.

In Re the Matter of the National Lands Commission under Article 163(6) of the Constitution of Kenya in the Supreme Court of Kenya Reference No 2 of 2014. The National Lands Commission sought an advisory opinion on the said conflicting roles. The main issue before the Court was whether the dispute concerning the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing & Urban Development were those that raised a Justiciable issue and whether the High Court would have been the best forum to resolve that dispute.

The court held that the National Land Commission was a state organ established under article 67(1) of the Constitution, and recognized under article 248(2) (b), and it therefore had the capacity to request the Supreme Court for an advisory opinion.

It was also held that under the National Land Commission Act, 2012 (Act No. 5 of 2012), section 5(2) (b) all land vested in the people and was to be administered by the National Land Commission. Therefore, the applicant as the State organ entrusted with the function of managing public land on behalf of both the national and county governments, its mandate cut across both spectra of national and county government.

The Court further held that the instant reference involved matters concerning county government; in particular, as the relevant issues involved the administration and management of public land, at both the national and the county level, precisely as contemplated under articles 62(2) and 67(2) of the Constitution. From the terms of the Constitution, the applicant (National Land Commission) was a shared institution at the two levels of government, and did not fall within the exclusive sphere of the national government.

 

COURT OF APPEAL

By Nelson K. Tunoi

Banks cannot vary interest rates arbitrarily

Margaret Njeri Muiruri v. Bank of Baroda (Kenya) Limited [2014] eKLR, Civil Appeal No. 282 of 2004 [P N Waki, M A Warsame & S G Kairu, JJA.]

The Court of Appeal ruled that it was morally wrong and unconscionable for Financial Institutions to change interest rates without notifying the borrowers. The court held that under section 44 of the Banking Act, a bank could not increase its rates without the approval of the Cabinet Secretary in charge of finance and that, it was, in the instant case, the duty of  the bank to produce evidence of such approval, which it did not.

We have found in the above discussion that there was no evidence that the interest rate charged by the respondent was in accordance with section 44 of the Banking Act. We have found that it was manifestly excessive, and, in the words of the trial judge, morally wrong. We have further expressed the view that the clause relied on to charge the interest that led to this exorbitant indebtedness was not only unconscionable and without notice to the appellant, but was bad for failure to accord with the relevant provisions of the law. In addition we have found that the bank owed a statutory and fiduciary duty of care to the appellant and the deceased’s estate.” – P N Waki, M A Warsame & S G Kairu, JJA.

Requirement for Presidential Consent before the transfer of beach plots illegal and unconstitutional

Attorney General & 6 others v Mohamed Balala & 11 others [2014] eKLR, Civil Appeal 191 of 2012 [H M Okwengu, M S A Makhandia & F Sichale, JJA]

The Mombasa Law Society (respondents) petitioned the High Court for an order prohibiting the appellants from requiring or insisting on presidential consent as a precondition before transferring beach plots in the 1st and 2nd rows. They also contended that it was an illegal and discriminative against the owners of the beach plots. The High Court held that there was no legal basis for requiring consent to be produced when registration of a transaction over beach plots was carried out and also that such requirement amounted to discrimination. The respondents (now appellants) thus appealed to the Court of Appeal challenging the High Court decision. The Court of Appeal ruled:

Article 40 that deals with Protection of the Right to Own Property  allows the owner of land to use, transfer, enjoy and control his/her private property.  Therefore, a condition of obtaining presidential consent before transferring the plot limits the owner’s right to property and is an unnecessary clog or fetter to that freedom and indeed freedom to contract… National security would ordinarily triumph over the rights of an individual.  It is however in such instances that the court must be convinced that it is absolutely necessary before sanctioning it.  Furthermore, such a decision must be based on the law so as to prevent abuse.  There is currently no law to govern this presidential fiat, leaving it open to misuse and abuse.  This was considered by the learned Judge and she found correctly that it amounted to a breach of the Constitution for contravening the national values under Article 10 of the Constitution, among them being the rule of law.”  – H M Okwengu, M S A Makhandia & F Sichale, JJA.

Legal provisions governing the Court of Appeal’s jurisdiction to review Court of Appeal decisions

Nguruman Limited v Shompole Group Ranch & another [2014][ eKLR, Civil Application 90 of 2013 (Ur 60/2013) [R N Nambuye, D K Musinga, P M Mwilu, J Mohammed & P O Kiage, JJA]

The applicant made an application for review or in the alternative for correction of the orders given by the Court of Appeal (Koome, Gatembu Kairu & Otieno-Odek JJA). The Court of Appeal ruling for which review was being sought, was not decided on the basis of a misapprehension of the requirements of rule 5(2)(b) of the Court of Appeal Rules but was decided on the basis of an interpretation that the relief sought could be granted on grounds of the overarching principle of substantive justice. The Court of Appeal, in that ruling had noted that there was no legal provision allowing for a notice of appeal lodged in a later decision to be used in an application for a stay of execution of an earlier decision.

The five-judge bench ruled that neither the Appellate Jurisdiction Act (Cap 9) nor the Court of Appeal Rules contained any provision for review of the Court of Appeal’s final orders but it has been held that the Court of Appeal had residual jurisdiction to reopen appeals, albeit in very limited circumstances. Rule 57(2) of the Court of Appeal Rules, in particular, granted the Court of Appeal jurisdiction to vary or rescind an order made by the Court of Appeal pursuant to an application. The three judge bench decision, for which review was being sought, was made pursuant to an application and it could be rescinded.

Article 48 of the Constitution of Kenya 2010 gave open ended access to justice including access to ask the Court of Appeal to re-open, re-hear and re-determine a finally concluded matter. Further, article 20(3)(a)(b) enjoined the Court of Appeal to interpret the law in such a way as not to withhold a right including a right to access to justice. The Court was also required to administer justice without undue regard to technicalities as prescribed under article 159(2)(d) of the Constitution.

Circumstances where a Court not being a final court could exercise residual jurisdiction to review its decisions to which there were no appeals – Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR, Civil Application Sup. 16 of 2012 [D K Musinga, G B M Kariuki & W Ouko, JJA.]

One of the main issues before the Court of Appeal was whether the Court had residual jurisdiction to review its own decisions. In dismissing the application seeking to have the Court review and set aside the judgment against the applicants, the Court held that where the Court was one of final resort, and notwithstanding that it had not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it had residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same. That jurisdiction was to be invoked with caution and only in cases whose decisions were not appealable to the Supreme Court.

Prior to the 2010 Constitution, the Court of Appeal took the position that it did not have jurisdiction to review its own decisions and that the only power it had with regard to review was in relation to the slip rule under Rule 35 of the Court of Appeal Rules, 2010 (cap 9 Sub Leg), and further that its inherent power under Rule 2(1) of the Court of Appeal Rules, 2010 was exercisable in hearing appeals when it was still a court of last resort.

The Court of Appeal noted that case law on the issue of review showed that there were two conflicting principles that emerged namely the “finality principle”, which did not support review, and the “justice principle”, which advocated for limited review on the basis that the purpose of litigation was to do justice to the litigating parties. The “finality principle” was urged on the basis of public interest as a public policy issue and was anchored on the need for stability and consistency in law while the “justice principle” was urged on the basis of justice to the parties and to boost the confidence of the public in the judicial system.

Independent Electoral and Boundaries Commission (IEBC) to undertake steps to ensure progressive realization of the right to vote for Kenyans living in the diaspora

 New Vision Kenya (NVK Mageuzi) & 3 others v Independent Electoral & Boundaries Commission & 5 others [2014] eKLR, Civil Appeal 350 of 2012 [R N Nambuye, D K Musinga, K M'inoti, JJA]

The appellants sought declarations from the High Court that Kenyan citizens in the diaspora possessed a fundamental and inalienable right to be registered as voters and to vote and/or seek elective office pursuant to article 38(3)(a) and (b) of the Constitution of Kenya, 2010; and that the failure by the IEBC to provide the diaspora with the opportunity to register and vote was a violation to their fundamental right to vote and a contravention of article 82(1) of the Constitution which provided for the progressive registration of citizens residing outside Kenya and the progressive realization of their right to vote.

They also sought to have the IEBC ordered by the court to declare and set up more polling centers over and above Embassies and Consulates and deploy IEBC officials as Returning Officers or to collaborate with host electoral bodies to provide similar service. The High Court dismissed that petition, hence the appeal. The Court of Appeal held that albeit missing out on the 4th March, 2013 general elections, the appellants were entitled to seek the court’s intervention to ensure that in future, more Kenyans in the diaspora had the opportunity to vote. Hence, their decision to pursue this appeal to its logical conclusion was sound and proper in order for them to seek directions to issue to the IEBC in particular, and the State in general, to take remedial measures to avoid a repeat of the 4th March, 2013 scenario in so far as Kenyans in the diaspora were concerned. The Court held that:

Article 82(1) (e) of the Constitution leaves no doubt that the right to vote of Kenyans in the Diaspora is to be achieved progressively. Article 82, which requires Parliament to enact legislation on elections requires parliament to enact legislation that among other things provides for “the progressive registration of citizens residing outside and the progressive realization of their right to vote… though the proximity of the time span between the time IEBC was requested to take remedial action to facilitate the appellants participate in the then impending general election for 4th March, 2013 may have been too short for the IEBC to make any meaningful suitable arrangement to accommodate the appellants’ desire to  participate in the said past election, we are of the view that directions on the way forward as regards future preparedness was feasible,  considering that there were other declarations which were sought besides the one that was seeking facilitation to vote in the last general election.

A promise by the President to alienate or allocate land is not enforceable in law  Lucy Mirigo & 550 others v Minister for Lands & 4 others [2014] eKLR, Civil Appeal 277 of 2011 [M K Koome, P M Mwilu, J O Odek, JJA]

One of the main issues was whether a promise by the President to alienate or allocate land was enforceable in law. The Court of Appeal held that neither an order of mandamus could not issue to enforce a promise to do anything in the future and nor an order of mandamus could issue to enforce a promise not underpinned by a statutory provision. Additionally, a promise could neither create nor convey an interest in land. Thus, the promise by the former President (Jomo Kenyatta) to allot land was a future promise which did not vest any interest in the suit property on the appellants. Moreover, it was trite law that a future interest in land was void if it did not vest within the stipulated time frame.

The Court of Appeal observed that although article 28 of the Constitution of Kenya, 2010 was to the effect that every person had the inherent dignity and the right to have that dignity respected and protected, the article was not meant to impose a constitutional duty on the government to allocate land to any squatter or person. Likewise, the provisions on social justice, equality, equity and prevention of inhuman, cruel and degrading treatment were not meant to be used to demand land allocation from the government.

The Court concluded by holding that it was the mandate of the National Land Commission to investigate issues of historical land injustices and to recommend appropriate redress as per article 67(1)(e) of the Constitution of Kenya, 2010. It was not the duty of the courts to allocate land and more so the judicial remedy of mandamus was not created to settle ownership disputes or to confer title to land.

 

EMPLOYMENT AND LABOUR RELATIONS COURT

BY Phoebe Ayaya

Correspondence by the employer creating rights and obligations in an employment relationship need not to be countersigned by the employee to become binding in Coastal Bottlers Ltd v George Karanja Cause No 373 of 2013 – The issue was whether every correspondence by an employer creating rights and obligations in an employment relationship needed to be countersigned by the employee in order to become binding.The court held that it was alive to the fact that a contract of employment could consist of terms contained in a series of separate documents and memoranda published by an employer to their staff.  It was therefore not valid for an employer to submit that express terms published and applied on staff were only mere policy guidelines.Not every correspondence by the employer creating rights and obligations in employment relationship required to be countersigned by the employee in order for it to become binding.  For example, the employee need not sign a letter of promotion, salary review and transfer once the employer had exercised that right or discretion.

Termination of services for failure to upgrade professional skills amounts to unfair labor practice in the matter of Sarah Wanyaga Muchiri v Rt Rev Bishop Henry Kathii and anotherIndustrial Cause No 52 of 2013whether an employer could limit or attempt to limit the right of an employee to dispose of his /her wages by insisting that they pay for the improvement the their professional skills.The court held that the claimant did not refuse to undergo the required training. She had a desire to do so but was incapacitated by compelling financial commitments. The respondents were only prepared to refund 50% of the cost of training on condition that the claimant passed the examinations. In other words, a failure would have meant no refund. If the respondents wanted to retain the claimant in employment but at the same time wanted her professional skills enhanced, they were very much capable of sponsoring her fully even if it meant recovering the costs gradually from her salary. Improving the claimant’s professional skills would not only have benefited the respondents but the claimant as well. Therefore, on account of that, the claimant’s termination was unfair. The Employment Act of 2007, by section 17(11), prohibited any employer from limiting or attempting to limit the right of an employee to dispose of his or her wages in a manner he or she saw fit. As a parent, the claimant’s priority was to educate her child and to repay her loan. The respondents’ requirement for the claimant to enroll herself in an accountancy course not only limited her right to use her wages as she pleased, but also amounted to an unfair Labour practice; rendering her dismissal unfair, and one that was outside of the justification set out in section 45(1) of the Employment Act of 2007.

Treating public officers of the same status differently upon termination of their contracts amounts to discrimination in the case of Pravin Bowry v Ethics & Anti-Corruption Commission Cause No 1168 of 2012

The claimant was one of four former assistant directors (legal services) of the Kenya Anti-Corruption Commission (KACC) now repealed and replaced by the Ethics and Anti-Corruption Commission (EACCA). His employment was terminated on the basis that the office of the assistant director (legal services) was abolished by the new act and therefore the employment of the claimant was no longer tenable.

The directors’ employment contract provided for full remuneration in the event of premature termination of the contract although this clause had been deleted from the claimant’s contract of service despite him being of the same status and recruited in the same manner as the other assistant directors.

The main issue was whether the deletion of clause (XI) from the claimant’s contract of service constituted discrimination and was therefore unlawful.

The court held that the difference in treatment with regard to termination of his contract vis-à-vis his counterparts was too profound in terms and in financial consequences that it aroused a sense of shock in any reasonable person’s mind.

In absence of any reasonable explanation, the court had no other alternative but to conclude that the motivation for the discrimination, whatever, it may have been, was unconscionable, and for that reason inequitable, unjust and unlawful

Public notices about suspended employees pending investigations, amounts to unfair Labor Practice In the case of Wilberforce Ojiambo Oundo v Regent Management Limited Cause No 200 of 2011- main issue was whether it was proper labor practice to put up public warnings concerning a suspended employee on whom investigations were still ongoing. The court held that an employee on suspension remained innocent until proved otherwise. In addition, such an employee had a legitimate expectation that they would at the very least be given an opportunity to respond to any adverse findings arising out of the investigation. Since there was no evidence that the claimant had breached any of the allegations, the public notice was unwarranted and was made in bad faith. The timing of the public notice was instructive as it was made during the currency of the claimant’s suspension. There was no concurrence on the mode of effecting the claimant’s separation from the respondent’s employment as between termination and summary dismissal.

“Pleasure Doctrine” not applicable in Kenya’s Public Service in the matter of Richard Bwogo Birir v Narok County Government & 2 others Petition No 1 of 2014

The issues were whether the pleasure doctrine was applicable in Kenya’s public service; and whether the dismissal of a public servant under the pleasure doctrine amounted to contravention of the constitutional and statutory provisions.The “Pleasure doctrine” was a legal principle under jurisprudence in England that public officers within Her Majesty’s service held office at the pleasure of the Crown. By reason of that doctrine, the public officers in her Majesty’s service could not question their dismissal from office in judicial proceedings and could only initiate other remedial measures such as political intervention.

The court held that all persons holding public or state office in Kenya were servants of the people of Kenya.  Despite the level of rank of state or public office as may be held, no public or state officer was a servant of the other but all were servants of the people. Thus, the idea of servants of the crown was substituted with the doctrine of servants of the people.

Removal from public or state office was constitutionally chained with due process of law. At the heart of due process were the rules of natural justice. Thus, the pleasure doctrine for removal from a state or public office had been replaced with the doctrine of due process of law. Article 236 was particularly clear on the demise of the pleasure doctrine in Kenya’s public or state service.

Non Registration of a Collective Bargaining Agreement Does not Invalidate it in Said Ndege v Steel maker s Ltd Cause No158 of 2013 -Main issue was whether an unregistered Collective Bargaining Agreement was legally enforceable by the parties or Court. Section 2 of the Labour Relations Act defined a ‘collective agreement’ to mean a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers or organization of employers while sections 2 of the Employment Act and the Labour Institutions Act defined a collective agreement to mean a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employer’s organization. Section 59(5) of the Labour Relations Act was explicit that a collective agreement became enforceable and had to be implemented upon registration by the Industrial Court, but effective from the date agreed by the parties. Section 60 of the Act placed a primary obligation upon the employer to submit the collective agreement within fourteen days of conclusion to the Industrial Court for registration. If the employer failed to submit the collective agreement for registration, the trade union was given the leeway to submit it to the Court for registration.Similar provision was made in rule 35 of the Industrial Court (Procedure) Rules, 2010, but through the Minister and that the collective agreement was not to take effect until it was registered. The Court affirmed its position on the case of KUDHEIHA v Impala Club, Nairobi Industrial Cause No. 1256 of 2010 that there was a statutory obligation upon the Respondent, Impala Club and or the Federation of Kenya Employers to furnish the Minister with a copy of the 1999 Collective Bargaining Agreement for registration purposes and that any failure to furnish a copy thereof and any legal consequences had to be examined within the obligation placed upon them. The Court was both a Court of law and a Court of equity. Equity always moved in to moderate and constrain unfair dealing consequences that arose from the conduct of a party such as the Respondent where a statutory obligation was placed upon it but for unexplained reasons it failed to fulfill such statutory obligations.

 

COMMERCIAL LAW

By Beryl Ikamari

Extent of the rights of traders operating in public utility land in a demolition exercise, done for purposes of public road construction

John Kamau Kenneth I Mpapale v City Council of Nairobi & 7 others, ELC No 867 of 2012 (Formerly Petition No 63 of 2012), High Court of Kenya at Nairobi

The Petition was brought on behalf of the Mutindwa Market Self-Help Group, an entity formed by traders who had been operating at Mutindwa Market. Mutindwa Market was a public utility land in which traders had erected business stalls and were paying Hawkers Fees to the local authorities. Their stalls were demolished to pave way for the construction of Rabai-Mumias South Road and Umoja II Spine Road.

In the Petition brought in order to challenge the demolition, the question on the nature of the rights enjoyed by the traders over the land and the demolition exercise arose. The traders claimed that there had been a violation of their rights to participate in the planning process leading up to the demolition. They also contended that they had not been given notice or been heard before their livelihoods and their ability to earn a living was interfered with.

The Court’s decision was that the rights of the traders over the land were the rights of temporary licencees. As temporary licencees, the traders were entitled to a reasonable notice to vacate the land without any reason being given to explain the requirement for them to vacate the land. Additionally the Court explained that the economic and social rights recognized in article 43 of the Constitution of Kenya 2010 were inapplicable to the demolition exercise as the property was not utilized as a residential informal settlement but was utilized as business premises.

The Court also found that the Petitioners as traders could not be treated as a minority or marginalized group.

Further, it was the Court’s finding that where private interest and public interest clashed, public interest would prevail. Generally, the Court explained that the Petitioners’ rights over the public utility land and the employment opportunities created by it could not be asserted against the expansion of a public road.

The Petition was dismissed.

Certificate of search is not conclusive proof of actual ownership of a motor vehicle

Superfoam Ltd & another v Mbero, HCCA No 133 of 2002, High Court at Meru

The Court made a determination on whether a certificate of search with respect to a motor vehicle was conclusive proof of ownership of a motor vehicle. Section 8 of the Traffic Act (Cap 403) stated that the person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle.

It was the Court’s finding that a certificate of search from the Registrar of motor vehicles would show the owner of the motor vehicle according to the records held by the Registrar. The Court elaborated that it was possible for a motor vehicle to be sold without the official records reflecting the sale. The Court, in dismissing the Appeal, accepted various documents and a sale agreement as evidence of ownership of a motor vehicle.

Application of the principle of mercy to the grant of injunctions

Al-Jalal Enterprises Limited v Gulf African Bank Limited, Civil Case 161 of 2014, High Court of Kenya at Nairobi

The Plaintiff had obtained a loan of Kshs. 220, 000, 000/= and had only repaid Kshs. 6, 373, 799.86/= and was in default in making repayments. The value of the property offered as security was alleged to be Kshs. 650, 000, 000/=. The Defendant threatened to sell the property via a public action in exercise of the power of sale.

In opposition to the sale, the Plaintiff argued that the loan agreement was invalid as the charge instrument was invalid and the agreement and the interest charged were illegal under Sharia Banking law. The Plaintiff sought an injunction to halt the intended sale.

The court held that the property in question had been turned into a commodity for sale by offering it as security and that the Plaintiff had persistently been in default of making  loan repayments. The Court decided that the contention that the sale agreement and the charge instrument were invalid appeared to be an excuse and an afterthought. The Plaintiff had not raised such issues when the security agreement was executed and had taken the loaned amount on the terms offered in the agreement.

While the Court found that the threshold for the grant of an injunction had not been met, as a court of equity and a court of mercy, it decided to direct the Plaintiff to comply with an order for the repayment of Kshs. 30, 000, 000/= as a relief against the threatened sale.

The application to halt the sale was allowed subject to repayment terms.

Courts rules on payment of withholding tax by non-residents

Motaku Shipping Agencies Ltd v Commissioner of Income Tax, Civil Suit No 60 of 2013, High Court at Mombasa

Under a ship management agreement made with vessel owners from foreign countries, the Appellant was to procure the provision of professional and managerial services to certain vessels during visits to Kenyan ports. The vessel owners remitted funds for the procurement of the services.

The Commissioner of Income Tax carried out a tax audit and issued assessment notices for the payment of taxes including withholding tax for payments made by the Appellant to service providers.

The Commissioner of Income Tax, argued that the Appellant was a resident and the income had been derived in Kenya and that the Appellant was therefore under an obligation to pay income tax including withholding tax. For the Appellant, it was explained that in procuring the services, for which the Appellant made payments to service providers, the Appellant was acting as an agent to principals who were non-residents from foreign countries.

The Court held that the payments for service provision were made by the Appellant acting as the agent of foreign principals. It was the Court’s finding that the Income Tax Act (Cap 470) did not provide for taxation with respect to management or professional fees made by a non-resident even if the payment was made to a resident. As the Appellant was acting in the capacity of an agent for foreign non-resident principals, the Appellant was not under an obligation to retain portions of the service provision payments and to remit the same to the Commissioner of Income Tax on account of withholding tax.

The Appeal was allowed; the decision of the Income Tax Local Committee Mombasa on the question of withholding tax was set aside.

Distribution royalties not subject to customs duty

Republic v Kenya Revenue Authority, Exparte Bata Shoe Company (Kenya) Limited, JR Case No 36 of 2011, High Court of Kenya at Nairobi

The Kenya Revenue Authority demanded taxes for royalties paid by the Applicant, Bata Shoe Company (Kenya) Limited to an entity known as Bata Brands, for the use of the Bata trademark. The Applicant explained that the royalties were paid as a percentage from sales made from locally manufactured shoes and imports from Bata-related suppliers and third party suppliers. It further elaborated that the royalties were not being made directly or indirectly to suppliers of the imported goods.

The Court held that the royalty fees paid to Bata Brands were paid for the use of the Bata trademark in Kenya and had no relationship to the price of imported products. The royalties were not being paid as part of a condition of sale for imported goods within the terms of rule 9(i)(c) of the Fourth Schedule to the East African Community Customs Management Act, 2004. Therefore, the Applicant had no obligation to pay tax on such royalties.

Application allowed.

 

ENVIRONMENT AND LAND COURT

By Teddy Musiga

precondition of presidential consent before transfer of 1st and 2nd row beach plots was unconstitutional and illegal

In Attorney General & 6 others v Mohamed Balala and 10 others, Civil Appeal No. 191 of 2012, the Court of Appeal in Mombasa declared that the precondition of presidential consent before transfer of 1st and 2nd row beach plots was unconstitutional and illegal. The appeal emanated from the High Court where the instant respondents, then petitioners (law society of Mombasa) had petitioned the High Court for an order prohibiting the appellants from requiring or insisting on presidential consent as a precondition before transferring beach plots in the 1st and 2nd rows. They also contended that it was illegal and discriminative against the owners of the beach plots. The High court had held that there was no legal basis for requiring consent to be produced when registration of a transaction over beach plots was carried out and also that such requirements amounted to discrimination. on appeal, the Court of Appeal dismissed the appeal holding that article 40 of the Constitution of Kenya, 2010 guaranteed the right to property. That right allowed the owners of land to use, transfer, enjoy and control their property. Therefore, a condition of obtaining presidential consent before transferring beach plots in the 1st and 2nd rows limited the owners right to property and was unnecessary clog or fetter to that freedom as well as the freedom to contract.

Whether an indigenous community (Ogiek community) had recognisable rights arising from their occupation of parts of East Mau forest

In Joseph Letuya & 21 others v Attorney General & 5 others, ELC Civil suit No. 821 OF 2012, the court was challenged to determine whether an indigenous community (Ogiek community) had recognisable rights arising from their occupation of parts of East Mau forest and also whether in the circumstances, the rights of the indigenous community (Ogiek) had been infringed by their eviction and subsequent allocation of their land to other people. The court held that the applicants were indeed recognised as indigenous and minority groups. Thus they were specifically and differentially affected and discriminated against by the fact of their eviction. Their right to life, dignity and economic and social rights had been infringed when the said land was allocated to other people contrary to the very purpose of excision of the said forest land. The court also questioned the legality of the eviction process and urged that all titles issues irregularly were to be revoked and the members of the Ogiek Community who were not given land were to be settled outside the critical catchment areas.

In Friends of Lake Turkana Trust v Attorney General & 2 others, ELC Suit No. 825 of 2012, concerned the jurisdiction of the Environment and Land court in claims arising out of trans – boundary agreements. The Petitioners alleged that a memorandum of understanding had been entered between the Government of Kenya and the Government of Ethiopia in the year 2006, for the purchase of 500MW of electricity from Gibe III as well as an $800 million grid connection between Kenya and Ethiopia. For purposes of generating the electricity, the Government of Ethiopia constructed dams in River Omo, which entailed a dominant source of water for Lake Turkana.

The Petitioner’s contention was that the construction of Gibe III Dam would cause environmental concerns and have an adverse impact on Lake Turkana. The Petitioner elaborated that Lake Turkana was vital to the livelihood, lifestyle and cultural heritage of the communities living around the lake and further explained that the proposed dam construction could cause a violation of the right to life and human dignity and also the right to a clean and healthy environment. The court held that it had jurisdiction to entertain the matter because it firstly, concerned the obligations of the Kenyan government towards its citizens whilst entering into international agreements thus could not bind the Ethiopian government and secondly, it concerned claims of environmental harm, violation of the right to life, the right to a clean and healthy environment and the right to access to information. However, the petitioners failed to provide sufficient evidence to establish the impact of the electricity generation project and the violation of rights to life, dignity, livelihood and cultural heritage and the right to a clean and healthy environment hence the petition was partly allowed.

 

CASES RELATING TO DEVOLUTION

By Teddy Musiga

The correct procedure for the removal of a governor from office

In Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others, Civil Appeal No. 21 of 2014, the main dispute before the court was whether the county assembly and the senate were best placed to determine whether a motion for removal of a governor was in accordance with the constitution and to determine the correct procedure for the removal of a governor from office. The court held that the process of removal of a governor was hierarchical and sequential in nature. It involved three steps, first, was the initiation of a motion to remove the governor by a member of the County Assembly, second was consideration of the motion by members of the assembly, and third was the speaker of the assembly to forward the county assembly’s resolution to the senate for hearing of charges against the governor. The courts had neither been vested with jurisdiction to initiate a motion, consider a resolution nor hear the charges against the governor. The province of the court in the removal of a governor from office was solely to decide on the rights of the individuals and not to enquire how the county assembly and the senate performed the duties in which they had discretion.

The constitutionality of the Nairobi City County Finance Act of 2013 which in schedule 6.1 empowered the County Government to vary parking charges

In Nairobi Metropolitan PSV Saccos union limited & 25 others v County Government of Nairobi & 3 others, Petition No. 486 of 2013, the court was challenged to determine the constitutionality of the Nairobi City County Finance Act of 2013 which in its schedule 6.1 empowered the County Government with the power to vary parking charges. The court held that since section 5(c) of the fourth schedule to the Constitution of Kenya, 2010 gave county governments exclusive mandates over the county transport which included traffic and parking and further that article 209(4) of the Constitution of Kenya, 2010 empowered the National and County governments to impose charges for the services they provided such as parking. Therefore, County governments had lawful authority to vary parking fee charges within their counties.

Requirements relating to the removal of members to County Public Service Boards from office

In Mundia Njeru Geteria v Embu County Government & 3 others, Petition No. 116 of 2013, the petitioner challenged the procedural requirements relating to the removal of members to County Public Service Boards from office. The court held that, requirements for removal from office under section 58(5) of the County governments Act were such that any removal had to be based on grounds set out for the removal of members of a constitutional commission under article 251(1) of the Constitution and had to be via a vote of not less than 75% of all members of the National Assembly. Under that provision, a holder of such office could be removed from office only for, serious violations of the Constitution or any other law, gross misconduct in the performance of an office holder’s functions or otherwise, physical or mental incapacity to perform the functions of the office, incompetence or bankruptcy.

The transfer of health services to county governments

In Republic v Transition Authority & Another exparte Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) & 2 others, Judicial Review No. 317 of 2013, the petitioners challenged the decision of Transition Authority directing the transfer of health services to County governments on the ground that the respondents had failed to engage all key stakeholders before transferring health care services to County governments and that they had not determined the readiness of Counties to take up devolved functions and in particular in relation to devolution of Health Services as stipulated by Sections 24 (d), (f) and (g) of the Transition to Devolved Government Act inter alia. The court however dismissed the application consequently allowing the transfer of health services to county governments on the basis that the applicants had failed to furnish the court with sufficient material upon which the court could find that the criteria under section 24 of the Transition to Devolved Government Act was not satisfied.

In County Government of Nyeri v Cabinet Secretary, Ministry of Education Science and Technology & Another, Petition No. 3 of 2014, it concerned the scope of intergovernmental disputes within the intergovernmental relations Act. Specifically, the dispute related to selection of form one students in County schools within Nyeri County. The petitioner was the County government of Nyeri while the respondent was a state organ. The court held that in determining the question as to whether the dispute was one between a county and national government to which dispute settlement mechanism under the Intergovernmental relations Act applied, a dispute between governments was a dispute in relation to the functions and exercise of powers within the levels of government. Therefore, there was no reason to reduce to reduce an allegation of breach of fundamental rights and freedoms to a dispute between a county and national government.

Whether the industrial court had the jurisdiction necessary to handle a dispute concerning the impeachment of an elected official (speaker of a county assembly)

In Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another, Petition No. 11 of 2014, the dispute was whether the industrial court had the jurisdiction necessary to handle a dispute concerning the impeachment of an elected official (speaker of a county assembly) and whether for purposes of the Industrial court, there was a distinction between an employee and an elected official and whether there was a difference between an impeachment and a termination from employment. The court held that section 2 and 12 of the Industrial court Act that conferred jurisdiction to the Industrial court was not concerned with the distinction as to whether a person was offering services for a wage was either employed or elected. What was of importance was that there was a dispute with a person who had a contract of service in which services were provided for a wage or salary.

Challenge to the decision of the Inspector General of Police in appointing and deploying 47 county police commanders to aid in the coordination of security activities within counties

In International Centre for Policy and Conflict v Attorney General & 2 others, miscellaneous civil case No. 226 of 2013, the applicants challenged the decision of the Inspector General of Police (respondents) in appointing and deploying 47 county police commanders to aid in the coordination of security activities within counties. They contended that, that was a power of the National Police service commission and not the Inspector General. The court held that whereas the Inspector General was vested with the powers of appointment of any members to the police service, the powers to appoint a person to hold offices in the service were reserved for the commission. There was a distinction between members of the service and offices of the service through their source of appointments. Herein, the Inspector General merely deployed county police commanders to ensure no vacuum was created in the security system following the implementation of the devolved system of government.

Whether the Kiambu Finance Act, 2013 was null and void for levying taxes on stones transported from the County’s quarries

In Robert N. Gakuru & others v Governor Kiambu County & 3 others, Petition No. 532 of 2013(consolidated), the Kiambu County Government enacted and passed the Kiambu Finance Act, 2013, which sought to levy taxes on every stone transported from the County’s quarries. The applicants therefore petitioned the court to make a declaration that the Act violated the provisions of the Constitution since there was no public participation in its enactment, that the Act contained unreasonable and punitive provisions that led to double taxation and that the proposed taxes to be levied by the Act were out of the scope of taxes that could be levied by County governments under article 209 of the Constitution and was therefore null and void. The court declared the Kiambu Finance Act, 2013 null and void and urged that County governments could not levy taxes other than those allowed by the Constitution.

Whether public officers serving on secondment could be placed on probation

In Silas Kipruto & Another v County Government of Baringo & another, Cause No. 30 of 2014, the claimants were serving civil servants who had been seconded to the County government of Baringo by the Public Service Commission. Upon dismissal from their services, the County Government of Baringo argued that the claimants were on probation and could therefore be dismissed. The issue before the court was whether public officers serving on secondment could be placed on probation. The court held that public officers serving on secondment could not be placed on probabtion since such officers were not newly appointed officers. It was therefore untenable for any authority in the County government to emplace experienced officers on probationary service.

In Republic v County Secretary Murang’a County Government ex-parte Stephen Thiga Thuita, Judicial Review Application No. 1 of 2013, the ex-parte applicant had obtained an award of Ksh. 49, 635 against the Municipal Council of Muranga at the Muranga Principal Magistrates court. He contended that the Muranga County government had neglected, refused and or ignored to settle the award saying it was an award against the Municipal council and not the county government. The court held that with the emergence of the county governments, the assets and pre – existing liabilities of the defunct local authorities were to be shared between those county governments and the national government. The transition Authority was the body established to work out how that distribution was to be done. The failure of the Transition Authority to come up with the criteria to determine the transfer of previously shared assets, liabilities of the government and local authorities defeated the claims against the County governments.

Constitutionality of the Kiambu Alcoholics Drinks Control Act, 2013

In John Kinyua Munyaka & 11 others v County Government of Kiambu & 3 others, Petition No. 3 of 2014, the Kiambu County Government (respondents) enacted the Kiambu Alcoholic Drinks Control Act, 2013 whose object was to regulate the production, sale and distribution of alcoholic drinks. The legislation contained provisions specifying by exclusion where liquor was to be sold who could be licensed to sell liquor, hours within which liquor could be sold and it created offences and penalties for non-compliance. The petitioners (Kiambu welfare group) then sought to have the Act declared unconstitutional on grounds that it contravened their constitutional rights, it was retrospective and further that there was no public participation in its enactment. The court held that determination of constitutionality of statutes required that the courts had to consider the purpose and effect of the impugned statutes and section thereof. If either the purpose or effect infringed a right guaranteed by constitution, the statute or section in question had to be declared unconstitutional. The object of the said Act was to provide for licensing and regulation of the production, sale, distribution, consumption and outdoor advertising of alcoholic drinks and connected purposes. Consequently, the court upheld the constitutionality of the Kiambu Alcoholics Drinks Control Act, 2013.

Whether the regulation and management of Water Sanitation Services and Water Services Providers (WSPS) is a matter exclusively within the jurisdiction of County Governments

In Okiya Omtata Okoiti & 3 others v Nairobi City County & 5 others, Petition No. 143 of 2014 (consolidated), the issue before the court was whether the regulation and management of Water Sanitation Services and Water Services Providers (WSPS) is a matter exclusively within the jurisdiction of County Governments, in view of the provisions of Articles 185 (2), 186 (1) and 187 (2) of the Constitution or whether it is a shared mandate with the National Government. The court held “that the provision and management of water services is a shared function, distributed between the two levels of government. Article 6 (2) of the Constitution recognizes the fact that the governments at the national and county levels are distinct and inter-dependent. It enjoins them to conduct their mutual relations on the basis of consultation and cooperation.  With regard to water provision, they should perform their respective functions in the spirit of consultation and co-operation, and in accordance with the legislation, policies and standards set by the state, bearing in mind the provisions of section 7 of the Transitional Provisions which require such adaptations as will ensure accord with the Constitution.”

 

ELECTORAL LAW

By Emma Kinya

What Constitutes a Declaration of Election Results?

The Issue on what constituted declaration of electoral results gave rise to difference in judicial reasoning in both the High Court and the Court of Appeal , however the Supreme Court finally settled the issue in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others where itheld that Since the Constitution and the Elections Act had not defined what amounts to a declaration of election results, the meaning of the term ‘declaration’ could only be inferred from the various contexts in which it had been used in the Constitution, the Elections Act and the Regulations to the Elections Act.

In defining what constituted a declaration of election results, the Court held that it was clear from Regulation 83 that the tallying of votes and the public announcement of the total votes that were cast in favour of each candidate preceded the declaration of election results. Tallying and public announcement were designed by the Constitution [article 86 (b) & (c)] and the Elections Act section 39] to take place immediately after the close of polling. The Constitution specifically emphasized the promptness with which the collated and tabulated results ought to be announced. That was important because it signified the urgency with which the public should be notified of the outcome of the election. Taking into account that requirement of efficiency, which ran through all the electoral provisions, the subsequent stage of declaration ought to have taken place immediately after the tallying and announcement of the election results.

The Court therefore found that declaration took place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying center and the third declaration at the County returning centre. Thus the declaration of election results was the aggregate of the requirements set out in the various forms involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

Consequently in George Mike Wanjohi v Steven  Kariuki & 2 Others  Petition No 2A 2014 the Supreme Court upheld its decision in the previous case and found that ddeclaration of results, for the various elections, was made at different (progressive) stages by use of Forms 34, 35, 36, 37 and  38 as prescribed by the Regulations. The Court further affirmed itself by holding that the determination in the Joho case was a principled enunciation by the Supreme Court marking the essence of a declaration of election results. By that definition, the issuance of a certificate in Form 38 connotes final results which could only be contested before the court under Article 105 (1)(a) and (2) of the Constitution. Since the definition bore a broad span, it took quite a specific illustration to portray a differing circumstance such as should be admitted as a qualification to the norm. No such meritorious exception had been brought up in the instant case.

Human error cannot be a blanket excuse for all election irregularities and mistakes

In Dickson MwendaGithinji v Gatirau Peter Munya & 2 others Civil ppeal No.38 of 2013 the Court of Appeal held that Whereas human error could be an excuse for tallying mistakes, a party that raised that excuse had to prove the existence of human error. Human error was not a blanket excuse that justified and excused any arithmetic, collating or tallying mistakes. Human error was neither an excuse for all errors or mistakes in transposition nor was it an excuse for failure to have statutory forms duly signed by authorized persons. Simply stating that human error was responsible for the mistakes was not proof of existence of the error. The burden to prove the existence of human error was excusable if it was a single, isolated and random occurrence. When the mistakes or errors were multiple and persistent such mistakes ceased to be human errors and pointed towards an inefficient, negligent, careless or even deliberate occurrence of the errors and that affected the credibility of the declared results. In the instant case, the mistakes on record did not reveal a pattern in favour of any one candidate but showed that there were multiple errors and mistakes that went towards the overall integrity and credibility of the figures entered for each candidate. Due to the multiplicity of the mistakes, there were indications that human error was not a plausible explanation for all the irregularities identified. It could not be said that human error was the cause of the mistakes with certainty because there was no evidence.

Whether a certificate of results declaring a candidate as the elected winner could be withdrawn in order to issue a similar certificate declaring a different candidate as the winner

Steven Kariuki v George Mike Wanjohi & 2 others Civil Appeal No 272 of 2013 the Court of Appeal held that the certificate of results (Form 38), issued after the final tally of results, declared the winner of the election and terminated the mandate of the returning officer and shifted jurisdiction, with respect to the challenges relating to the electoral process to the election court.  The Court therefore upheld the Supreme Court in decision in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition 10 of 2013, Supreme Court of Kenya at Nairobi.)

While upholding the Court of Appeal decision in George Mike Wanjohi v Steven  Kariuki & 2 Others  Petition No 2A 2014 The Supreme Court found that The Returning Officer could not, after issuing the Certificate of Results in favour of the 1st respondent, have subsequently cancelled it and issued a fresh Form 38 to the appellant. The Returning Officer having declared the 1st respondent as the winning candidate, and duly issued the Form 38, became functus officio. There was neither scope for the Returning Officer to withdraw a declaration of the election result once made or to cancel the certificate issued in favour of the winning candidate, nor was there a mandate to rectify the Form 38. Once the votes were polled, counted and results declared, it would be perilous to allow the Returning Officer to nullify the result, purportedly in rectification of some error. That would not only have affected the very sanctity of the election process, but also encroached on the powers of the Election Court.

Unconstitutionality of Section 76 of the Election Act and its effect in Election Petitions

The main issue before the Court was whether the 28 days limitation period for filing an election petition begun running after the declaration of election results by the Independent Electoral and Boundaries Commission(IEBC) as provided by article 87(2) of the Constitution or after the publication of the election results in the Kenya Gazette as provided by section 76(1)(a) of the Elections Act, and whether section 76(1)(a) of the Elections Act was inconsistent with article 87(2) of the Constitution and to that extent a nullity.

The Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others held that where a candidate was challenging the declared results of an election, a quantitative breakdown would be a key component in the cause.  It had to be ascertained who the winner and the loser (s) in an election were. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the Election Court. The certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of section 76 (1) (a) of the Elections Act was inconsistent with the provisions of article 87 (2) of the Constitution.

The court further observed that Parliament had enacted a contradictory provision, in the form of section 76(1)(a) of the Elections Act. In considering the effect of that provision, the Court declared section 76(1)(a)of the Elections Act inconsistent with article 87(2) of the Constitution.

Following the Joho’s  decision in declaring section 76(1)(a) of the Elections Act as unconstitutional, various petitions have been filled before the courts seeking inter-alia interpretation of what was the effect of declaring the said section of the Elections Act invalid.  In Mary Wambui Munene v Peter Gichuki King’ara & others, the Supreme Court had to deal with issue whether the declaration of section 76(1)(a) of the Elections Act as being invalid had a retrospective effect, therefore invalidating the proceedings filed before the date of the Joho’s decision.

It was held that, The Supreme Court had been silent in the joho case on the effect of declaration of invalidity of a statute and therefore unequivocal about the invalidity of any action emanating from section 76(1)(a) of the Elections Act. In appropriate cases, it might exercise its jurisdiction to give its constitutional interpretations retrospective or prospective effect. That was derived from the broad mandate accorded by article 1, 10, 163, 159 and 259 of the Constitution, and section 3 of the Supreme Court Act, 2011.

It was further held that in line with the Constitution, the Court was not precluded from considering the application of the principles of retro activity or pro activity on a case by case basis. As such, in the instant matter, the issue of invalidity of section 76(1)(a) of the Elections Act was bound to the issue of time. Time, as a principle, was comprehensively addressed through the attribute of accuracy, and emphasized by article 87(1) of the Constitution, as well as other provisions of the law. Time, in principle and applicability was a vital element in the electoral process set by the Constitution.

The court found that If a statute was void from its very birth then anything done under it, whether closed, completed, or developing, would be wholly illegal and relief in one shape or another had to be given to the person affected by such an unconstitutional law. The Court observed that several constitutional processes had been concluded, and others ensued as a result of the directions of the Courts while handling electoral disputes following the 2013 General Elections. In either of those scenarios, and as a matter of finality of Court processes, parties could not reopen concluded causes of action. The apprehension that a declaration of nullity and its retrospective effect could trigger a frenzy to re-open concluded or determined election cases, could hence not arise or be contemplated.

Recently in Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 Others Supreme Court of Kenya Petition No. 21 of 2014 the Supreme Court held that the declaration of invalidity of Section 76(1)(a) of the Elections Act, applied retrospectively as in the case of Mary Wambui Munene v Peter Gichuki King’ara & 2 Others Sup Ct Applic. No. 12 of 2014, because the Elections Act was an essential derivative of the Constitution enacted after the promulgation of the Constitution and was meant to set out the guidelines for the proper and effective conduct of elections and necessarily incorporated the element of time and timelines.

The court observed that the lesson of comparative jurisprudence was that while a declaration of nullity for inconsistency with the Constitution annulled statute law, it did not necessarily entail that all acts previously done were invalidated. In general, laws have a prospective outlook and prior to annulling declarations, situations otherwise entirely legitimate may have come to pass and differing rights may have accrued that have acquired entrenched foundations. That gave justification for a case-by-case approach to time-span effect in relation to nullification of statute law. In that regard, the Court had a scope for discretion, including the suspension of invalidity and the application of prospective annulment. Such recourses, however, were for sparing and most judicious application in view of the overriding principle of the supremacy of the Constitution as it stood.

Essence of Time Filing and Determining Electoral Appeals

The Supreme Court in the case of Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014]eKLR, set out the timelines in filing and determining Electoral Appeals. The genesis of the case was that the petitioner had filed an appeal to the Court of Appeal against a High Court’s decision of dismissing the 1st respondents (Waititu) request for scrutiny and recount for votes in an election petition. However, the appeal was filed 72 days after the delivery of the High Court’s judgment, notwithstanding the provisions of section 85A of the Elections Act, that provided that electoral appeals from the High Court to the Court of Appeal had to be filed within 30 days of the delivery of the High Court’s judgment.

The Court of Appeal In admitting & entertaining the appeal, held that section 85A (a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named in the Constitution itself; and so a court of law could extend the period within which an intending petitioner could lodge an appeal beyond the 30 day limit prescribed in the Elections Act, and that such an extension was proper in the interest of justice, especially where there had been delay in the preparation of court proceedings. Further, that Parliament could not have intended to shut out a litigant from filing an appeal as that would have offended other constitutional provisions such as articles 10, 20 and 25(c). The Court further held that on the strength of rule 35 of Election (Parliamentary and County Elections) Petition Rules, the Court of Appeal Rules were applicable in their totality to election petition appeals before the court; and so Rule 82 (1) of the Court of Appeal Rules (which provided for the certificate of delay) could apply to extend the time for filing an election petition appeal beyond the 30 day.

The petitioners main ground of appeal before the Supreme Court was inter-alia that the Court of Appeal acted without jurisdiction when they entertained heard and determined an incompetent appeal filed beyond the prescribed timelines, which was in breach of the provisions of article 87(1) of the Constitution of Kenya, 2010 and section 85A of the Elections Act.

The Supreme Court overturned the Court of Appeal decision and held that the question of timeliness in filing and determining election petitions as set by the Constitution and the Elections Act, section 85A(a) were neither negotiable nor could they be extended by any court for whatever reason. Section 85A of the Elections Act was neither a legislative accident nor a routine legal prescription. It was a product of a constitutional scheme that required electoral disputes to be settled in a timely fashion.

Consequently, the Supreme Court in settling the issue of extending timie for filing Election appeals in Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others set out the guiding principles in exercising the discretion to extend time for filing an appeal:

a)    Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;

b)    A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;

c)     Whether the court ought to exercise the discretion to extend time, was  a consideration to be made on a case to case basis;

d)     Whether there was a reasonable reason for the delay, which ought to  be explained to the satisfaction of the Court;

e)    Whether there would be any prejudice suffered by the respondents if the extension was granted;

f)       Whether  the  application  had  been  brought  without  undue delay; and;

g)    Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

Jurisdiction of the Court of Appeal in appellate decisions from the Election Court

Section 85A ordains that appeals to the Court of Appeal in election cases shall be on points of law only. The main issue before the Supreme Court has therefore been whether the Court of Appeal exceeded its jurisdiction by delving into matters of fact, contrary to the provisions of section 85A of the Elections Act, 2011 which was an issue that came up in George Mike Wanjohi v Stephen Kariuki  Application No. 16 of 2014 (Wanjohi case). On this, the Supreme Court held that fact based enquiries are outside the scope of the Court of Appeal owing to the need for timely settlement of election disputes under Article 87(1) of the Constitution. In Peter Gatirau Munya v IEBC & 2 Others, the Supreme Court outlined in detail what the phrase ‘matters of law’ only meant with reference to section 85A of the Elections Act, 2011. It held that Section 85 A of the Elections Act, 2011 was a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion.  It was directed at litigants who were dissatisfied with the judgment of the High Court in an election petition and was meant to limit appeals to the Court of Appeal to matters of law only.

The Supreme Court in this case therefore held that the phrase ‘matters of law’ characterized three elements:

a)    the technical element: which involved the interpretation of a constitutional or statutory provision;

b)    the practical element: which involved the application of the Constitution and the law to a set of facts or evidence on record; and

c)    the evidentiary element: which involved the evaluation of the conclusions of a trial Court on the basis of the evidence on record.

With specific reference to section 85A of the Elections Act, the phrase “matters of law only”, meant a question or an issue which involved:

i.            the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;

ii.             the application of a  provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;

iii.            the conclusions arrived at by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claimed that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial court would probably have arrived at a different conclusion on the basis of the evidence.

In Fredrick Otieno Outa v Jared Odoyo Okello & 4 Others Supreme Court Petition No. 10 of 2014 the court held that by limiting the scope of appeals in the Court of Appeal to matters of law only, section 85A restricted the number, length and cost of petitions and, by so doing, met the constitutional command in article 87, for timely resolution of electoral disputes. Section 85A of the Elections Act was, therefore, neither a legislative accident nor a routine legal prescription.  It was a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion.  The section was directed at litigants who could be dissatisfied with the judgment of the High Court in an election petition.  To those litigants, it said “limit your appeals to the Court of Appeal to matters of law only.”

 

CONSTITUTIONAL LAW CASES

By Njeri Githang’a

Court recognizes the rights of intersex persons & recommends legislation on the issue.

Baby ‘A’ (Suing through the mother E A) & another v Attorney General & 5 others

Petition 266 of 2013

The Petitioner was born with both male and female genitalia and a Lab Report had a question mark in the column indicating the Petitioner’s gender.  The Petitioner was not issued with a birth certificate. In the Petition lodged in Court through the Petitioner’s mother, the Petitioner claimed that the question mark in the medical documents offended the Petitioner’s rights to legal recognition, human dignity and freedom from inhuman and degrading treatment.

The court noted that under section 2a of the Births and Deaths Registration Act (Cap 149), in order to register the birth of a child the prescribed particulars which were to be provided included the sex of the child. Neither the Births and Deaths Registration Act nor the Interpretation and General Provisions Act (Cap 2) defined the term ‘sex.’ However, Form 1, (The Register of Births) in the Schedule to the Registration of Births and Deaths Act (Cap 149) indicated that the sex of a child was either male or female. There was no categorization offered for a child with both male and female genitalia.

Baby A and other intersex persons were entitled to all the rights provided for in the Constitution of Kenya 2010. The court pointed out that there was an obvious lack of guidelines and regulations, in the case of intersex children, on how medical examinations and eventual corrective surgery, if needed, would be carried out. It went further to state that Parliament was the proper forum for purposes of the enactment of legislation which would concern such guidelines and regulations. In conclusion, the court held that the fact that an intersex person did not fall within the definite criterion of being distinctively male or female would not negate his or her rights as a human being in whom rights and freedoms were inherent.

Petition partly allowed. (The Court found that there was no evidence that the Petitioner’s rights had been violated but made findings that the Petitioner’s birth should be registered and that legislation enacted by Parliament governing intersex persons was needed.)

Government policy of funding public secondary schools to the exclusion of private ones is not discriminatory

Gabriel Nyabola v Attorney General & 2 others, Petition No 72 of 2012

The Petitioner brought the suit challenging the Government policy of funding public secondary schools to the exclusion of private ones. He argued that the policy was discriminatory and a violation of the Constitution, the Children Act and various international instruments to which Kenya was a party; and that the right to basic education included secondary education which ought to have been enjoyed by every Kenyan child, irrespective of whether he or she attended public or private secondary school.

The court opined that inequality in treatment was not per se prohibited. The question as to whether discrimination was fair or unfair, hence illegal, was to be weighed against the rationality test. The aim of the inequality ought to have been aimed at achieving a certain legitimate governmental objective.

In order to progressively realize the free secondary school education, the Government had to give priority to public schools which served the majority of students across the country, the court stated.  Under article 43(3) of the Constitution, the State had the obligation to give priority to the most vulnerable and marginalized in the society. That meant that the funding of children in private schools, while a goal to be progressively realized, its immediate application would have undermined affirmative action.

The court concluded that the failure by the State to provide financial and in kind assistance to private schools was not discriminatory. The distinction between children in private and public school was intended to achieve the overall goal of progressively providing free education to all children in the future.

Schools have a right to set rules for the conduct of their students

J K (Suing on behalf of C K) v Board of Directors of R School & Another

Petition No. 450 of 2014

The petitioner filed the mater on behalf of her son, C K, alleging violation of the son’s rights. She alleged that the school rule that prohibited boys from wearing dreadlocks was discriminatory on the basis of their gender and therefore violated article 27 of the Constitution, that the failure to allow CK back to school violated his rights to education under article 43, and that requiring him to shave his dreadlocks violated his rights to culture as guaranteed under article 44. She contended that dreadlocks was a part of the culture of Jamaica from which C K’s father hailed and which C K visited regularly.

The court held that “The “hair length rule” under attack in the instant case was not discriminatory and was not therefore in breach of article 27 of the Constitution. A code of conduct which applied a conventional standard of appearance was not, of itself, discriminatory

Court allows removal of “gender mark” in KCSE certificate for a transgender case

Republic v Kenya National Examination Council & Another ex-parte Audrey Mbugua IthibuJR Case No. 147 of 2013

The applicant was the holder of a Kenya Certificate of Secondary Education (KCSE) awarded to him by the Kenya National Examination Council – KNEC in 2001. Sometimes in 2008 he was diagnosed and treated for gender identity disorder (G.I.D) and depression at Mathari hospital and was still undergoing treatment for the two conditions. The applicant then changed his name from Andrew Mbugua Ithibu to Audrey Mbugua Ihtibu. Thereafter he embarked on changing the particulars on his national identity card, passport and academic papers so as to reflect his gender from male to female. Specifically in the instant matter, the applicant sought the removal of the gender mark from his KCSE certificate so that the certificate did not have any gender mark.

The court noted that the imposition of a candidate’s gender mark was not a requirement of the law under Rule 9 of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009. It could have been done as a tradition to assist in the proper identification of a candidate, but it was not a tradition backed by any rules. The court noted that he applicant had satisfactorily demonstrated that that his situation was unique and that had to be considered when addressing his application. Rule 9(3) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009 provided that KNEC could withdraw a certificate for amendment or for any other reason where it considered necessary. It therefore had the legal backing to comply with the applicant’s request. Where it failed to do so, then the court could issue an order of mandamus to compel it to perform its duty.

Order of Mandamus was issued to compel KNEC to recall the applicant’s KSCE certificate issued in the name of Ithibu Andrew Mbugua and replace it with one in the name Audrey Mbugua Ithibu.

The replacement certificate had to be without a gender mark.

Division of Matrimonial Property as provided for under the Matrimonial Property Act Vis-à-vis Article 45(3) of the Constitution of Kenya, 2010

U M M v I M M Civil Suit No.39 of 2012

The Plaintiff (U) sought for the sharing and division of some property held in the names of her former husband the defendant (I). the main issue before the court was whether the equality contemplated by article 45(3) of the Constitution of Kenya 2010 was an automatic 50:50 sharing of matrimonial property upon dissolution of the marriage and whether the Court could apply article 45(3) in resolving the dispute where the disputed properties were all acquired before the promulgation of the Constitution of Kenya, 2010.

Constitution of Kenya, 2010 Article 45(3) provides as follows:-

“45.(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”

The Matrimonial Property Act, 2013 which received assent on 24th December 2013 and commenced on 16th January 2014.

 “7. Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

Contribution is defined by Section 2 to mean monetary and non-monetary contribution.  And non-monetary contribution includes:-

 a. Domestic work and management of the matrimonial home;

b. Child care;

 c. Companionship;

 d. Management of family business or property; and

e. Farm work;

“Family business” means any business which-

 a)  is run for the benefit of the family by both spouses  or either spouse; and

 b)  generates income or other resources wholly or part  of  which are for the benefit of the family;”

The court found that sections 2, 6 and 7 of the Matrimonial property Act, 2013 fleshed out the right provided by article 45(3) of the Constitution of Kenya, 2010. By    recognizing that both monetary and non-monetary contribution must be taken into account,   it was congruent with the Constitutional   provisions of article 45 (3) of the Constitution that parties to a marriage are entitled to equal rights at the time of the marriage,   during the marriage and at the dissolution of the marriage. The court further stated that

At the dissolution of a marriage each partner should walk away with what he/she deserves.  What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary.  The bigger the contribution, the bigger the entitlement.  Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts   should give it effect. To hold that article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution.  It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property.  That would be oppressive to the spouse who makes the bigger contribution and that cannot be the sense of equality contemplated by Article 45(3).”

The court concluded that article 45(3) requires that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. In division of matrimonial property that right was safeguarded by vesting in each spouse ownership according to their respective contributions be it monetary or non-monetary. For that reason the court would strive to give effect to any monetary or non-monetary contribution that U proved in the acquisition or improvement of the properties in dispute.

To enable the Court make an informed decision, separate valuations be conducted of each of the plots.  The costs of valuation to be shared equally by the parties.  The Court, after receiving the valuation Reports to give its final orders.

Children born out of a surrogacy agreement have a right to know biological parents.

J L N & 2 others v Director of Children Services & 4 others; Petition No 78 of 2014

WKN and CWW entered into a surrogacy agreement with JLN who agreed to be a surrogate mother by undergoing in vitro fertilization. Following the delivery of the children, the issue arose as to whether CWW should be registered as the mother of the children in the Acknowledgement of Birth Notification, as required under the Births and Deaths Registration Act (Cap 149 ) rather than JLN, the birth mother.

The Hospital (the 3rd respondent) informed the 1st respondent, the Director of Children Services of the circumstances concerning the birth of the twins. The Director took the view that the children were in need of care and protection and as a result, his officers took them and placed them under the care of a Children’s Home. The main issue before the court was whether a woman who gave birth under a surrogacy agreement would be recognized as a birth mother and a parent under the law.

The court while acknowledging thatKenya did not have a law that governed surrogacy and related issues noted that in the absence of a law on surrogacy, the Hospital was entitled to seek guidance on the issue from the Director. Under section 38(1) of the Children Act the Director was required to safeguard the welfare of children and in particular, to assist in the establishment, promotion, co-ordination and supervision of services and facilities designated to advance the wellbeing of children and their families.  In the alternative, the Hospital was entitled to seek guidance from the Principal Registrar of Births and Deaths. The Hospital therefore did not violate the petitioner’s rights to privacy when it informed the Director of the surrogacy arrangements between the petitioners. The court held that the Director had violated the rights and fundamental freedoms of the petitioners by taking away the children in a manner that could not be justified under the Children Act,caused them distress and embarrassment by taking away the children. Their right to human dignity under article 28of the Constitution was violated.

Petition allowed in part. (The case against the 3rd respondent was dismissed with no order as to costs. The 1st respondent was to pay each of the petitioners the sum of Kshs. 500,000.00/=)

Golf club rules discriminating between male and female members are unconstitutional

Rose Wangui Mambo & 2 Others V Limuru Country Club & 15 Others; Constitutional Petition No. 160 of 2013

The petitioners, who were female fully paid up members of the 1st respondent (Limuru Country Club) and who had served senior positions at the said club brought a petition seeking for Declaratory Orders that: a by-law that had been made by the club’s Board of Directors barring lady golfers from participating in the club’s General Meetings was unconstitutional, that due process was not followed in their suspension and removal from their positions in the club, and  an order quashing their expulsion from the club and a subsequent reinstatement to their earlier positions in the club. The main issue was whether a private members club’s by-law barring female golfers from participating in its General Meetings was discriminatory or against Constitution provisions. The court ultimately stated that whereas membership of private clubs was by its nature discriminatory, in that it restricted membership to particular groups, any kind of discrimination perpetrated by the club through a by-law against its members was unconstitutional.  By virtue of the by-law in question being rendered void and unconstitutional, the resultant disciplinary process against the petitioners’ was also void.

In conclusion, the court found that the Club’s by-law in question was not only discriminatory but contrary to the Club’s constitution, Article 27 of the Constitution of Kenya, 2010 and not permissible in a just and democratic society.

The resolution to exclude female golfers was found unconstitutional, null and void and an order of reinstatement of the petitioners was made.

Socioeconomic rights: protection offered to the opportunity to earn a living through hawking.

Micro and Small Enterprises Association of Kenya, Mombasa Branch v Mombasa County Government & 43 others, Petition No 3 of 2014

In exercise of powers provided in article 186 and the Fourth Schedule of the Constitution of Kenya 2010, the Mombasa County Government removed hawkers and prevented them from operating their businesses at certain places in Mombasa. The powers exercised included trade development and regulation. The petition was for the enforcement of fundamental rights and freedoms and was based on the contention that there was no notice issued to the traders before their removal and that there was a violation of their right to life in that they had lost the means to earn a living for purposes which included buying food.

The court found that the petitioners’ socioeconomic rights would not arise from the payment of a license fee. The payment of license fees did not create those rights but it was a means of raising revenue for government expenditure. Therefore, the failure to pay license fees did not take away social security rights, and other socioeconomic rights, protected in article 43 of the Constitution of Kenya 2010. The court further averred that in the circumstances, it was necessary to balance the rights of the petitioners to earn a living by hawking and the public interest in security from terrorism, safety in case of fires, the general convenience of vulnerable groups and the development of tourism as a single important revenue earner for the County and the country. The public interest in the free flow of people and traffic along roads and streets was therefore important. However, both interests could be met by allocating appropriate designated areas to hawkers for purposes of hawking.

Conclusion

The respondents were ordered to permit hawking outside of the Mombasa Central Business District (CBD), at designated times and places, subject to the daily or weekly payment of levies, and on condition that no structures were erected on the street. Such permission would take into account the interests of other stakeholders, security concerns, cleanliness and decongestion of the streets.

Cases on the right to accessible and adequate housing and reasonable standards of sanitation

William Musembi & 13 Others V Moi Education Centre Co. Ltd & 3 Others [2014] Eklr,Petition No 264 Of 2013

The petitioners approached the court by way of the two petitions alleging violation, among others, of their right to housing guaranteed under article 43 of the Constitution. They alleged that they were all residents of City Cotton and Upendo villages situated in Nairobi, South C Ward, in which they have been living since the late 1960s till they were evicted. Their petition was filed against the Moi Educational Centre Limited as the 1st respondent, the Inspector General of Police as the 2nd respondent, and the Attorney General as the 3rdrespondent

At the core of the petition was the question whether, in carrying out the eviction of the petitioners from land which admittedly the petitioners had no legal title to, the respondents violated the petitioners’ rights as alleged.

The court held

“An eviction of the nature undertaken by the respondents does not just violate the right to housing. Encompassed in a person’s dwelling is their family life, their ability to take care of their children; their ability to live a secure and dignified life. When they are denied their shelter, their dignity, security, and privacy is impaired…. It is therefore the finding of this court that by their actions which deprived the petitioners of their housing and rendered them homeless, the respondents did violate the petitioners’ rights guaranteed under Articles 28, 29, 43, 53 and 57 of the Constitution.”

The court further stated that “it is important for its officers to remember that its cardinal duty and the duty of all its officers is to safeguard the rights of all, without discrimination, but particularly so, the rights of the vulnerable in society, the poor, children, the elderly and persons with disability. Its officers should never be used to carry out the unlawful acts of any citizen, however powerful.”

The court made the following orders

i.            The 1st respondent to pay a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs 150,000) to each of the petitioners in the consolidated petitions.

ii.            The state to pay to each of the petitioners the sum of Kenya Shillings One Hundred Thousand (Kshs 100,000).

June Seventeenth Enterprises Ltd (Suing on its own behalf & on behalf of & in the interest of 223 other persons being former inhabitants of KPA Maasai Village Embakasi within Nairobi) v Kenya Airports Authority & 4 others [2014] eKLR

The petition revolved around evictions and demolitions without notice. The court held

“The right to be free from arbitrary, unfair evictions and demolition of property is anchored in the values of the Constitution under Article 10 among them human dignity, human rights and social justice.  More particularly evictions directly violate the State’s responsibility to provide access to housing and to reasonable standards of sanitation, to water, education and food.

The court further stated that

“Article 43 of the Constitution imposes on the State a positive duty to ensure access by its citizens to social economic rights.  While access to these rights is progressive and is dependent on the availability of resources, Article 21(1)imposes on the State the duty to, “observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.”  The duty to observe, respect and protect implies that the State has a responsibility to refrain from interfering directly or indirectly with the enjoyment of these rights.  Not only is a positive duty imposed by the Constitution to ensure access to these rights but a negative one as well to ensure that the State does not impair the enjoyment of these rights”

The court ultimately held that the State through the 3rd and 4threspondents were liable for violation of the rights of the occupants of the suit property under Articles 28, 29, 43 and47 (1) of the Constitution. It also found that the State had violated Article 21 by failing to develop and enact a policy and legislation to deal with forced evictions.

Orders

Each of the 223 persons represented in the proceedings by the petitioner awarded Kshs 150,000/= as damages for violation of their fundamental rights and freedoms.

On right to clean and safe water

Okiya Omtatah Okoiti & 3 others v Nairobi City County & 5 others [2014] eKLR

From the analysis above, it is evident that water provision is essential to the health and wellbeing of citizens, and to the realization of other rights such as the right to health. The importance of its provision and management cannot be underestimated, and the Constitution and international covenants impose positive obligations on the state to ensure that it is available to all, and have included an additional obligation on the state to ensure that it is available to vulnerable groups, such as women and communities in marginalized areas of the country.”

Further the court affirmed that

“under the provisions of Article 21 (2) of the Constitution, the state had an obligation to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43, under which the right to water was guaranteed. The achievement of that right was dependent on the proper regulation and management of water and sanitation services, and of the entities that have the duty of service provision.”

Right to education

S K K v D A L [2014] eKLR

The issue was whether could set aside orders of payment of school fees at a specified school, transfer of the subject children from one school to another and stay of proceedings pending appeal. The could held that

“Needless to say that orders for maintenance of children and relating to their education cannot be stayed.  Stay of such orders would not be in their best interests. Children have a fundamental right to education.  They must be kept in school.  Staying the orders of 23rd May 2014 would have the effect of forcing the children out of school.”

John Kiplangat Barbaret & 3 others v Attorney General & 4 others [2014] eKLR

The petition concerned Sagamian Primary School which was established in 1973 and was registered by the Ministry of Education under Code No. 24/68 and by the National Examination Council as an Examination Centre and given the Code No. 56314. sometimes in the year 1979, the school was burnt down and as a result it was closed down and deregistered by the Second Respondent.  Following its closure, a new school Mogoyuet Primary School was established and registered as an Examinations Centre. The students and teachers who were at Sagamian Primary School were transferred to the new school and the property on which Sagamian Primary School was situate was transferred and registered in favour of the Fourth Respondent in the year 1980. This status quo remained until the year 2000 when the community, dissatisfied with the new school, renovated the burnt school and continued offering education to students. The petitioners hence sought for orders demanding the Respondents to re-register the Sagamian Primary School as a public school, recognize and register it as a National Examinations Centre, and provide it with all education facilities, including employment of teachers just like all other primary schools in the   Republic of Kenya.

The court held that

“the Second Respondent denied the children of Sagamian Primary School their right to free and compulsory basic education. Without any lawful justification it failed to provide them with funds and other facilities accorded to other public schools thereby denying them the chance to realise their right to education. Further Article 21 (1) of the Constitution, places a fundamental duty on the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. By failing to support the efforts of this marginalised community to realise their right to education, the State acted and is acting retrogressively…in failing to register Sagamian Primary School as a public school, the Second Respondent has occasioned the curtailment, and has curtailed the enjoyment by the Petitioners, and students of the school, their right to education and also prevented them from benefitting from the law. The breach and failure by the Second Respondents resonates on the Third and Fifth Respondents’ equal failure and denial to provide the school with teachers.”

The Respondents were ultimately directed to re-register the Sagamian Primary School as a public school, recognize and register it as a National Examinations Centre, and provide it with all education facilities, including employment of teachers just like all other primary schools in the   Republic of Kenya.

G N v Chumani Secondary School Board of Management [2014]eKLR

The issues before the court wre whether suspension or expulsion from school of a student minor under a disciplinary process following his fighting in school with another student was a breach of his right to education and best interest of the child; and whether, therefore, an order for reinstatement of the student to school could be granted. The court held that

“The defendant/respondent’s concern on the security of the other students, or of the student, upon return of the student to the school cannot override the paramountcy of the student’s right to education and his best interest in pursuing education qualification by taking the final secondary school examinations. I find that the student has a clear right to education and to his interests being held in paramount regard as against the defendant/respondent’s authority to discipline the student in the circumstances of this case where the applicable law – section 35 of the Basic Education Act, No. 14 of 2013 has not been shown to have been complied with.  The balance of convenience lies with promoting the student’s rights as against the defendant/respondent.”

An order for the immediate reinstatement to the school by the defendant/respondent of the student was issued

Republic v Public Procurement Administrative Review Board & 3 others Ex-Parte Olive Telecommunication PVT Limited [2014] eKLR

“Before delving into the merits of the application we wish to emphasis that the matter the subject of this application and judgment is a very important project for this country. The matter revolves around what is popularly known in this country as the “Laptop Project”. It is a project of the Government of Kenya by which the Government undertook in part fulfilment of the requirements of Articles 43(f) and 53(1)(b) of the Constitution which provide that every person has a right to education and that every child has a right to free and compulsory basic education. The role played by education in the development of a nation cannot be overemphasized. In our view the rights and freedoms guaranteed under the Constitution cannot be realized and meaningfully enjoyed unless the society is properly, efficiently and sufficiently informed and in this era of information technology, access to global sources of information such as internet and other related forms of information is no longer a luxury but a necessity.”

  1. April 16, 2015

    the document is an epitomy of good research,analytical and presentation skills. never tired reading it over and over

    • November 5, 2016

      We need a lot more inhgsits like this!

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