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Law Reform Compilation 2014

2014 Law Reform Compilation for the Blog

Judicial pronouncements relating to an aspect of law that may be in need of reform are an important driver of the legal and administrative reform process. In keeping with Kenya Law’s mission to provide Universal Access to Kenya’s public legal information by monitoring and reporting on the development of jurisprudence the Research and Development Department has prepared an analysis of issues raised in judicial opinions delivered between June 2013 and October 2013 and the full text of the judicial opinions.

Below is a synopsis of the issues canvassed before the courts in this period:

  1. Whether the 28 days limitation period for filing an election petition starts running after the declaration of election results by the 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.
  2. Whether the Court of Appeal had jurisdiction to entertain an interlocutory appeal from decisions of the High Court on election disputes.
  3. Whether the County Assembly Service Board was enabled by legislation to perform its human resource functions.
  4. Whether the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, Legal Notice Number 219 of 2013 issued by the Cabinet Secretary for Transport and Infrastructure was valid having never been tabled before both Houses of Parliament in accordance with section 11 of the Statutory Instruments Act.
  5. Whether provisions of section 45 of the Employment Act are not applicable to complaints of termination during probationary period.
  6. Whether distribution of a deceased’s estate should be equal or equitable.
  7. Suggested amendment to Section 9 of the Law Reform Act to allow for exceptions where extension of time for filing for Judicial Review orders would be allowed especially in cases where such limitation occasioned miscarriage of justice.
  8. Whether the record of appeal was fatally defective to warrant the striking out of the appeal on the basis that the order was not extracted in accordance with rule 34(2) of the Court of Appeal Rules

- Whether a woman who gave birth under a surrogacy agreement would be recognized as a birth mother and a parent under the law.

- Whether children born through a surrogacy agreement were children in need of care and protection.

- Whether the Hospital violated the petitioners’ rights to privacy by disclosing confidential medical information to a third party.

- Whether withdrawal of children from persons claiming to be their parents would, in certain circumstances, be a violation of the right to human dignity.

  1. Whether refusal to answer an employer without good reason and causing embarrassment to the employer amounted to an aggravated case of gross misconduct on the part of the employee.
  2. Whether the Petition filed by the Petitioners in this case raises either a substantial question of law or a question of great public interest as to merit recommendation for hearing and determination by a bench of 3 or more judges.
  3. Whether the Supreme Court of Kenya had jurisdiction to hear a matter that was still pending before the Industrial Court.
  4. Whether section 14(3) of the Political Parties Act which provided for Resignation from political party was unconstitutional for being inconsistent with article 85 of the Constitution which provided for Eligibility to stand as an independent candidate.
  5. Whether the Court of Appeal acted without jurisdiction by entertaining an appeal filed 72 days after the delivery of the trial court’s decision yet section 85A (a) of the Elections Act provided that appeals to the Court of Appeal had to be filed within 30 days from the date of judgment of the High Court.

 

1. Time at which limitation period for filing an election petition starts running

Hassan Ali Joho & another v Suleiman Said Sharbal& 2 others

Petition No 10 of 2013

Supreme Court of Kenya at Nairobi

Kalpana Rawal DCJ, PK Tunoi, M K Ibrahim, JB Ojwang& N Ndungu SCJJ

February 4, 2014

Andrew Halonyere

Issue:

Whether the 28 days limitation period for filing an election petition starts running after the declaration of election results by the 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.

Holding:

The certificate in Form 38 declares the winner of the election and terminates the mandate of the returning officer who acts 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 comprises the declaration of election results. That declaration sets in motion the time-frame within which to lodge an election petition. Consequently, the provision of section 76 (1) (a) of the Elections Act is inconsistent with the provisions of article 87 (2) of the Constitution and is unconstitutional to that extent.

 

2. Court of Appeal jurisdiction to entertain interlocutory appeals from decisions of the High Court on election disputes

Jared Odoyo Okello v Independent Electoral & Boundaries Commission & 3 Others

Court of Appeal at Nairobi

Civil Appeal No. 16 of 2013

R.N Nambuye, G.B.M Kariuki, S. Gatembu, K. M’ Inoti& A.K. Murgor

December 27, 2013

Reported by Emma Kinya Mwobobia

Issue:

Whether the Court of Appeal had jurisdiction to entertain an interlocutory appeal from decisions of the High Court on election disputes.

Holding:

The practice of appealing against interlocutory decisions in the final judgment was not unknown to our jurisdiction. It is the order of the day in criminal cases where interlocutory determinations in the course of the trial were raised on appeal after conclusion of the trial. The concern may be addressed by formulation of procedural rules specific to election petitions.

 

3. Human Resource Functions of the County Assembly Board

Silas Kipruto and another v County Government of Baringo & another

Industrial Court at Nakuru

Cause No. 30 of 2014

April 4, 2014

B Ongaya, J

Reported by Andrew Halonyere and Anne Mbuthia

Issues:

Whether the County Assembly Service Board was enabled by legislation to perform its human resource functions

Holding:

The Boards were not vested with statutory authority to make any subsidiary legislation to guide their business and discharge of their functions.  The elaborate provisions of Part VII of the County Governments Act, 2012 on county public service are found not to apply to the County Assembly Service Board with the consequence that the County Assembly Service Board is particularly not enabled by legislation to perform its human resource functions.
Judgment to be served upon the Attorney General, the Transitional Authority, the Commission for the Implementation of the Constitution, and the Public Service Commission to take steps towards concluding the relevant legislation under Article 235 of the Constitution

 

4. Validity of Legal Notice Number 219 of 2013 issued by the Cabinet Secretary for Transport and Infrastructure

Kenya Country Bus Owner’s Association (Through Paul G. Muthumbi- Chairman, Samuel Njuguna- Secretary, Joseph Kimiri- Treasurer) & 8 Others v Cabinet Secretary for Transport & Infrastructure & 5 Others

Judicial Review Case No. 2 of 2014

High Court of Kenya at Nairobi

G V Odunga J.

April 14, 2014

Reported by Emma Kinya, Andrew Halonyere & Opiyo Lorraine

Issue:

Whether the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, Legal Notice Number 219 of 2013 issued by the Cabinet Secretary for Transport and Infrastructure was valid having never been tabled before both Houses of Parliament in accordance with section 11 of the Statutory Instruments Act.

Holding:

While there was nothing inherently wrong in revoking Legal Notice No. 219 of 2013 upon realizing the same was unlawful, to keep a studious silence and to lull the Court and the country into a false sense of security that the said LN no. 219 of 2013 was still in force was highly dishonest on the part of the 1st Respondent. Legal Notice No. 219 of 2013 declared null and void and thereby quashed.

 

5. Applicability of section 45 of the Employment Act to complaints of termination during probationary period

Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Ltd

Industrial Court of Kenya at Mombasa

Cause No 337 of 2013

S Radido, J

May 23, 2013

Reported by Teddy Musiga and Getrude Serem

Issue:

Whether provisions of section 45 of the Employment Act are not applicable to complaints of termination during probationary period.

Holding:

The court may have reached a different conclusion were it not for the decision of in Samuel G Momanyi v Attorney General & Another (2012) eKLR, declaring that section 45(3) of the Employment Act was inconsistent with Articles 28, 41(1), 47, 48 and 50(1) of the Constitution and therefore invalid. The court doubted whether the declaration presented the correct legal position as to whether termination of an employment contract is subject to Article 47 of the Constitution (right to fair administrative action).

 

6. Distribution of a deceased’s estate

In the Estate of John Musambayi Katumanga (Deceased) [2014] eKLR

Succession Cause No. 399 of 2007

High Court at Nairobi

W Musyoka, J.

May 30, 2014

Reported by Nelson Tunoi & Riziki Emukule

Issue:

Whether distribution of a deceased’s estate should be equal or equitable.

Holding:

Both sections 35 and 40 of the Law of Succession Act would have to apply in the instant case since taken individually they would not meet the needs of the case. Section 35 dealt with a situation where the deceased might have married only one wife while section 40 of the Law of Succession Act addressed a situation where the deceased was a polygamist. The Law of Succession Act did not specifically provide for a situation where a monogamous deceased ended up with two households having remarried after the death of the first wife hence the need to combine the two sections of the Act.

Equal distribution did not always guarantee justice, especially in polygamous situations. There would be no fairness in equal distribution in an instance where the fortunes of one child could be better than those of the other – one could end up in a lowly job, say a driver or office messenger or nurse or nursery school teacher, with the other becoming a commercial pilot or the Chief Executive Officer of a blue-chip company. The law as currently framed did not do justice in such circumstance. Ideally, equal distribution should be the principle, with some discretion left to the court to consider the circumstances of each case.

 

7. Amendment to Section 9 of the Law Reform Act to allow for exceptions where extension of time for filing for Judicial Review orders

Republic v Mwangi Nguyai & 3 Others Exparte Haru Nguyai

High Court at Nairobi

Constitutional &Judicial Review Division

Miscellaneous Application No.89 of 2008)

Odunga, J

Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva

Issue:

Suggested amendment to Section 9 of the Law Reform Act to allow for exceptions where extension of time for filing for Judicial Review orders would be allowed especially in cases where such limitation occasioned miscarriage of justice.

Holding:

In my view it is high time the provisions of Section 9 of the Law Reform Act were amended to provide for extension of time in cases where a strict adherence to the limitations manifests a miscarriage of justice for example where a decision is made and for some reasons the same is not made public with the result that the persons affected thereby are not aware of the decision until after the expiry of the said limitation period. Whether the Court would be entitled to “read in” a provision for extension of time in line with the new Constitutional dispensation, is outside the scope of this decision since the matter before me is not an application for extension of time.

 

8. Striking out of the appeal on the basis that the order was not extracted in accordance with rule 34(2) of the Court of Appeal Rules

Zacharia Okoth Obado v Edward AkongoOyugi& 2 others

Civil Application No 7 of 2014

Supreme Court

M Ibrahim, N S Ndungu, SCJJ

April 23, 2014

Reported by Andrew Halonyere& Valarie Adhiambo

Issue:

Whether the record of appeal was fatally defective to warrant the striking out of the appeal on the basis that the order was not extracted in accordance with rule 34(2) of the Court of Appeal Rules

Holding:

Rule 34(2) of the Court of Appeal Rules was enacted a while back, when the Court of Appeal was the final Court. Consequently, it was contemplated that only the successful party, in whose favour the judgment was delivered, will extract the Order. However, with the establishment of the Supreme Court, it would have been necessary that the drafters consider an amendment to Rule 34(2) so as to allow any party that desired to appeal to the Supreme Court, to be at liberty to draft the Order, a practice akin to the High Court practice under the Civil Procedure Rules.

Where a County should have an incumbent Governor, who has been removed from office but is temporarily in office pending determination of a suit in a Court of law; or conversely, a Speaker acting as temporary Governor pending the election of a new Governor, there is need to limit the exercise of such a person’s powers, until a substantive holder of office is either affirmed or elected. However, such a prescription of limitation does not fall within the jurisdictional mandate of the Supreme Court, or the judicial arm of government as a whole. That power was within the legislative mandate of Parliament.

The Supreme Court in upholding its objective under section 3 of the Supreme Court Act, to protect the Constitution, would not act ultra vires the Constitution, by usurping a mandate not bestowed on it. The Court would therefore recommend that Parliament do consider legislating to limit the exercise of the powers of the office of Governor in temporary situations such as in the instant matter.

 

9. Surrogacy Arrangements

J L N & 2 others v Director of Children Services & 4 others

High Court at Nairobi

Petition No 78 of 2014

D S Majanja, J

June 30, 2014

Reported by Beryl A Ikamari & Karen Mwende

Issue:

Whether a woman who gave birth under a surrogacy agreement would be recognized as a birth mother and a parent under the law.

Whether children born through a surrogacy agreement were children in need of are and protection.

Whether the Hospital violated the petitioners’ rights to privacy by disclosing confidential medical information to a third party.

Whether withdrawal of children from persons claiming to be their parents would, in certain circumstances, be a violation of the right to human dignity.

Holding:

Surrogacy arrangement is one in which one woman (the surrogate mother) agrees to bear a child for another woman or a couple (the intended parents) and surrenders the child at birth. In full surrogacy, the surrogacy mother has no genetic link with the child. The surrogate mother only gestates the embryo, which is usually created from the eggs and sperm of the intended parents.

It is because of lack of a legal regime in Kenya regulating surrogacy arrangements that the parties found themselves in such a situation.

Under Article 53 of the Constitution and section 11 of the Children Act every child has the right to certainty of their parentage, a right to family, a right to a name acquired through issuance of a birth certificate, a right to access health services and a right not to suffer discrimination of any form arising from their surrogate birth.

These rights are buttressed by international instruments like the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child under Articles 7 and 9 respectively.

Surrogacy is not a hypothetical issue any more but a real one and many Kenyans are resulting to surrogacy as an alternative to being parents especially those who cannot for medical reasons have their own children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements.

 

10. What amounts to an aggravated case of gross misconduct on the part of the employee

Linet Akasa Shikoli v Lilian Otundo [2014] eKLR

Cause No. 527 of 2013

Industrial Court at Nairobi

J Rika, J

June 30, 2014

Reported by Nelson Tunoi & Riziki Emukule

Issue:

Whether refusal to answer an employer without good reason and causing embarrassment to the employer amounted to an aggravated case of gross misconduct on the part of the employee.

Holding:

Domestic Employees have for long worked outside the formal labour market. There have been no legal regulatory framework, and many a Domestic Employee, have suffered harsh terms and conditions of employment, in the hands on hard taskmasters. The society is changing, and domestic work is currently being mainstreamed into the agenda of fair and decent work, and a face given to the of’times unrecognizable and unknown Domestic Employee, through Domestic and International Legislative Instruments.

The main Instrument that has set the pace for change in Domestic Work is the ILO Domestic Workers Convention No. 189 of 2011. The Convention was adopted by Member States in 2011, against the background of the realization that Domestic Workers serve without clear terms of employment; are not registered in any employment record; and are excluded from the scope of labour legislations. The Convention aims to protect the human rights of Domestic Workers and promote their right of equality and treatment. The benefit of adoption and ratification of this Convention has already been witnessed in Countries such as Italy and Uruguay, where Domestic Workers were able last year, 2013, to conclude Collective Bargaining Agreements. Kenya needs to ratify ILO Convention No. 189 OF 2011, and put in place clear legislation to enable Domestic Workers enjoy their full labour rights, as demanded by the Convention and Article 41 of the Constitution.

 

11. Matters for hearing and determination before a bench of 3 or more judges

Amos Kiumo & 2 Others v Cabinet Secretary Ministry of Interior & Coordination of National Government & 3 Others

High Court at Meru

Constitutional Petition No. 16 of 2013

Lesiit, J

26th June 2014

Issue:

Whether the Petition filed by the Petitioners in this case raised either a substantial question of law or a question of great public interest as to merit recommendation for hearing and determination by a bench of 3 or more judges.

Holding:

The question of what public participation as envisaged under Article 10 of the Constitution entails, and the nature it should take is a matter that has not been adjudicated upon. There are issues which should be considered, for instance should all the residents be involved in order to satisfy the requirement for public participation? Can a baraza suffice? What if no one or few people turn up for a meeting called to satisfy this? If representation can do, what form should that representation take? All these are matters for consideration and determination.”

“Likewise what fair administrative action means and its scope are matters which are still grey issues, and which have not been settled by superior courts. What constitutes fair administrative action? Who determines what is fair?”

…public participation and fair administrative action are new terminologies creating new rights and or duties or obligations under the 2010 Constitutional dispensation.

We need to develop general principles to be applied to guide courts whenever it is faced with the issues of interpretation of the nature and scope, specifically of the rights and obligations created under Article 10 and 47, as well as when invoking the courts’ authority under Article 165(4) of the Constitution.

 

12. Supreme Court jurisdiction to hear matters still pending before the Industrial Court

Yusuf Gitau Abdallah v The Building Centre (K) Ltd & 4 others

Petition No 27 of 2014

Supreme Court of Kenya

August 13 2014

Reported by Phoebe Ida Ayaya

Issue:

Whether the Supreme Court of Kenya had jurisdiction to hear a matter that was still pending before the Industrial Court.

Holding:

Finally, this matter has brought to the fore the glaring lacuna in the Supreme Court Act and Rules. Judicial time is very precious and should not be wasted by a judge or judges of the Court sitting at the preliminary stage to determine whether a matter has met the prima facie jurisdiction threshold to be admitted to the Supreme Court. Time is now ripe for an amendment to the Act and Rules of this Court to cure this malady. The Registrar of the Court should be empowered to be able to assess cases before filing or even after filing and dismiss matters that do not fall within the four corners of the Supreme Court jurisdiction. I recommend that the Parliament and/or Rules Committee move with speed to implement such an amendment if not for good order then for the preservation of judicial time and for the dignity of this Court. The wheels of justice at the Supreme Court should not be clogged by matters that should not have been admitted in the first place

 

13. Unconstitutionality of section 14(3) of the Political Parties Act

Petition No. 288 of 2014

The High Court of Kenya at Nairobi

Constitutional and Human Rights Division

I Lenaola J

July 30, 2014

Reported by Njeri Githang’a Kamau & Charles Mutua

Issue:

Whether section 14(3) of the Political Parties Act which provided for Resignation from political party was unconstitutional for being inconsistent with article 85 of the Constitution which provided for Eligibility to stand as an independent candidate.

Holding:

Section 14(3) of the Political Parties Act to the extent only that it purports to grant the Registrar of Political Parties the right to bar an independent candidate from vying for an election by reason of non-notification of resignation from a political party was inconsistent with article 85 of the Constitution, invalid and unconstitutional .

 

13. Court of Appeal jurisdiction by entertaining an appeal filed 72 days after the delivery of the trial court’s decision

Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others

Petition No.18 of 2014 (consolidated with Petition No. 20 of 2014)

Supreme Court of Kenya at Nairobi

W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Njoki, SCJJ

August 29, 2014

Reported by Teddy Musiga & Charles Mutua

Issue:

Whether the Court of Appeal acted without jurisdiction by entertaining an appeal filed 72 days after the delivery of the trial court’s decision yet section 85A (a) of the Elections Act provided that appeals to the Court of Appeal had to be filed within 30 days from the date of judgment of the High Court.

Holding:

Per Ndungu, S N SCJ: “Prior to the passing of the Constitution, 2010, the problem of delay in concluding election matters was facilitated by the rules of service, proceedings and the duration taken to deliver the judgments. While most of those impediments have now been cleared, the registry processes with respect to the proceedings remain unaddressed. There is urgent need to reform these administrative processes, including the application of appropriate sanctions upon errant officers working in the registry, where need be to respond to the dictates of articles 25, 50, 87(2) of the Constitution and section 85A of the Elections Act. This is a matter of utmost urgency.”

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