Weekly Newsletter 007/2020



Kenya Law

Weekly Newsletter


Presidential immunity of civil proceedings extends to acts or omissions which resulted from civil proceedings commenced prior to assumption of the office of the President.
 
Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR
Civil Appeal No. 147 of 2015
Court of Appeal at Nairobi
D K Musinga, S G Kairu & A K Murgor, JJA
November 8, 2019.
Reported by Kakai Toili
Download the decision
 
 
Constitutional Law Executive – Office of the President - presidential immunity - protection from civil proceedings – where the civil proceedings were based on acts or omissions that had resulted in civil proceedings commenced prior to assumption of the Office of the President - whether presidential immunity from civil proceedings extended to acts or omissions that had resulted in civil proceedings commenced prior to assumption of the Office of the President - what were the elements required for presidential immunity in civil proceedings to be applied under article 143(2) of the Constitution - Constitution of Kenya 2010, article 143; Court of Appeal Rules, rule 82
Jurisdiction jurisdiction of the Court of Appeal – jurisdiction to interfere with the High Court’s discretion in awarding costs - what were the circumstances in which the Court of Appeal could interfere with the High Court’s discretion in awarding costs
Words and Phrases public interest – definition of public interest – the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation - Black’s Law Dictionary, 9th Edition

Brief facts:
Following investigations into the 2007 post-election violence, the International Criminal Court (ICC) commenced prosecutions and preferred charges against several people, among them the 3rd and 4th respondents. In so doing, the trial chamber of the ICC committed them to full trial, having satisfied itself that they were either contributors or indirect co- perpetrators to the crimes against humanity that were committed after the election. At the time, the 3rd and 4th respondents were holding the State offices of Deputy Prime Minister and Member of Parliament respectively. ICC subsequently confirmed the said charges against the 3rd and 4th respondents.
Following the confirmation of the charges, the appellants and the 1st, 2nd, 3rd, 4th and 5th petitioners instituted petitions against the 3rd and 4th respondents amongst other respondents. The petitions sought among others orders that the Elections Act and the Constitution precluded the 3rd and 4th respondents from being cleared to contest elections in Kenya until the indiscretions demonstrated while serving in the public office were addressed. The petitions were consolidated and the High Court in dismissing the petition awarded costs to the respondents. Aggrieved by the High Court’s decision, the appellants filed the instant appeal on grounds among others that the court was wrong in condemning them to pay the costs of the suit without considering that the petition was brought in the public’s interest


Issues:
  1. Whether presidential immunity from civil proceedings extended to acts or omissions that had resulted in civil proceedings commenced prior to assumption of the office of the President.
  2. What were the elements required for presidential immunity in civil proceedings to be applied under article 143(2) of the Constitution?
  3. What were the circumstances in which the Court of Appeal could interfere with the exercise of the High Court’s discretion in awarding costs?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 143

1. Criminal proceedings shall not be instituted or continued in any court against the president or a person performing the functions of that office during their tenure in office.
2. Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their power under this Constitution
 
Held:
  1. A court had no power to make one step without jurisdiction. Where a court had no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court downed its tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.
  2. The principles applicable in the interpretation of the Constitution included the widest construction possible. The Constitution should be given according to the ordinary meaning of the words used, the entire Constitution had to be read as an integrated whole and no one particular provision destroying the other, all provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument, the Constitution should be given a generous and purposive interpretation to realize the full benefit of the guaranteed rights.
  3. Article 143(1) of the Constitution related to criminal proceedings against the President, article 143(4) was also concerned with criminal prosecution and provided that the President’s immunity did not extend to crime under any treaty to which Kenya was a party and which prohibited such immunity. Therefore, as concerned criminal proceedings, the Constitution precluded the institution and continuation of such proceedings whilst the President was in office, with the reservation that, the immunity did not extend to crimes prescribed under any treaty to which Kenya was a party.
  4. Article 143(2) of the Constitution dealt with civil proceedings against the President. In effect, a plain and ordinary interpretation of article 143(2) would infer that, the President’s immunity was limited; to proceedings instituted during his or her term in office and to anything done or not done in exercise of the President’s powers under the Constitution. Put differently, the immunity did not extend to acts or omissions that had resulted in civil proceedings commenced prior to assumption of the office of the President or that were not in exercise of the President’s powers.
  5. It was the intention of the framers of the Constitution to limit the extent of the President’s immunity in civil proceedings to only those instituted while he or she was in office. That intent was evident from the difference in construction between article 143(1) and (2). Whereas article 143(1) expressly prohibited institution or continuance of criminal proceedings once the President assumed office, under article 143(2) the immunity in civil proceedings was limited to only those suits instituted against the President during the term of office in respect of anything done or not done in the exercise of power as the President of Kenya. Acts or omissions that gave rise to civil proceedings instituted prior to assuming office were not covered by the prescribed immunity.
  6. The framers’ intent was evinced by the stark distinction that emerged when article 143(2) of the Constitution was compared with section 14(2) of the repealed Constitution that addressed a similar immunity. The construction of section 14(2) accorded civil proceedings with absolute immunity before and during the period in office in the same way as article 143(1) spelt out the immunity specified for criminal proceedings, whether or not the cause of action was done or omitted to be done in exercise of the functions of office of the President. More importantly, section 14(2) expressly prohibited continuation of civil proceedings against the President whilst he or she was in the office. That was not the case with article 143(2). The words “or continuing” were clearly absent, meaning that it was never intended that immunity would extend to civil litigation that preceded the assumption of office, without inclusion of the words “or continuing”, the provision effectively allowed proceedings instituted prior to assumption of office to continue even while the President was in office.
  7. The interpretation of the phrase “the President or the person performing the functions of that office during their tenure of office.” was instructive. It would infer that immunity was limited to the functions of that office as well as during their tenure of office. To be covered by the immunity under article 143(2) of the Constitution;
    1. the person should have been in office;and
    2. the impugned actions should have taken place during the tenure of office. Immunity would not therefore extend to acts or omissions not connected to the office or carried out before or after the term of office.
  8. The impugned acts took place after the 2007 general election before the 3rd respondent assumed the office of President, they were outside the purview of article 143(2) of the Constitution and consequently the immunity provided thereunder did not extend to those acts.
  9. By virtue of rule 82 of the Court of Appeal Rules, the appeal having been instituted on June 22, 2014 could be construed as proceedings instituted whilst the President was in office. Since the appeal was concerned with alleged actions that did not fall within the 3rd respondent’s term in office, then they were not covered by the immunity specified by article 143(2) of the Constitution. In so far as the actions complained of did not relate to the exercise of presidential powers whilst in office, and were acts that took place prior to presumption of office, the appeal was excluded from the presidential immunity donated by article 143(2).
  10. An appellate court would not interfere with the exercise of the trial court’s discretion unless it was satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it was manifest from the case as a whole that the court had been clearly wrong in the exercise of judicial discretion and that as a result there had been misjustice. Therefore, though costs followed the event they were awarded at the discretion of the court, that exercise had to be based on facts. If, however, there were some grounds to support the exercise by the trial court of the discretion it purported to exercise, the question of sufficiency of those grounds for that purpose was entirely a matter for the trial court itself to decide, and the appellate court would not interfere with its discretion in that instance.
  11. Where a trial court had exercised its discretion on costs, an appellate court should not interfere unless the discretion had been exercised unjudicially or on wrong principles. Where it gave no reason for its decision the appellate court would interfere if it was satisfied that the order was wrong. It would also interfere where the reasons were given if it considered that those reasons did not constitute good reason within the meaning of the rule.
  12. Article 22(2) and 258 of the Constitution allowed every person the right to institute court proceedings in public interest and where a claim or contravention or infringement of a right or fundamental freedom, or threat thereto, or a contravention or threat to violate the Constitution was alleged. It was therefore clear that in suits involving genuine public interests litigation, courts were slow to award costs. In the instant case, the subject matter of the suit was in the nature of a public interest where the concern was more particularly, on the threat to the office of the President and Deputy President of the Republic with both the 3rd and 4th respondents facing criminal proceedings in the ICC.
  13. Condemning an unsuccessful party to pay costs in genuine public interest litigation could become a deterrent. More likely than not, many a party would hesitate to institute suits in defence of the bill of rights and the Constitution for fear of being condemned to pay costs.
  14. The appellants should not pay costs because the respondents had to defend several petitions. The record clearly showed that the appellants filed one petition, that was Petition No. 579 of 2012and though it was consolidated with other petitions filed by the other petitioners in their own right and for their own reasons, lumping the petitions together and ordering the payment of costs for that reason without due consideration of the public interest nature of the appellants’ petition, was a misdirection, and it was necessary to interfere with the court’s exercise of discretion on costs.
  15. Public interest litigation played a transformative role in society. It allowed various issues affecting the various spheres of society to be presented for litigation. That was the Constitution’s aim in enlarging locus standi in human rights and constitutional litigation. Locus standi had a close nexus to the right of access to justice. In instances where claims in the interest of the public were threatened by administrative action to the detriment of constitutional interpretation and application, the court had discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it. That discretion was drawn from the command of article 259(1) of the Constitution, to interpret the Constitution in a manner that promoted its values and purposes, advanced the rule of law, human rights and fundamental freedoms, permitted the development of the law and contributed to good governance.
 
Appeal allowed.
Kenya Law
Case Updates Issue 007/2020
Case Summaries

CONSTITUTIONAL LAW The impeachment and removal of the Speaker of Kisumu County Assembly from office was lawful.

George Onyango Oloo v Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 others (Interested Parties)
Petition No 32 of 2019
Employment and Labour Relations Court at Kisumu
Mathews N Nduma, J
December 10, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law – devolution - county governments - speaker of a county assembly - impeachment and removal of a speaker from office - legal requirements relating to the removal of a speaker from office - whether the Speaker of the Kisumu County Assembly was lawfully impeached and removed from office.
Constitutional Law devolution - county governments - assets of a county assembly - consequences of the removal of a county assembly speaker from office - whether it was lawful to ask the Speaker of the Kisumu County Assembly to return certain assets allocated to him upon his removal from office.

Brief facts:
The petitioner challenged his impeachment and removal from office as Speaker of the Kisumu County Assembly. Via e-mail, the petitioner was served with a notice requiring him to defend himself against ten allegations which formed the basis of the impeachment motion attached to the e-mail. The allegations included a corruption matter. The petitioner did not attend the impeachment proceedings. He alleged that goons blocked the entrance of the County Assembly chambers and he therefore failed to gain access. Further, the petitioner challenged the lawfulness of the decision to ask him to return certain assets including a motor vehicle which was allocated to him by the County Assembly.
The petitioner stated that the impeachment process that led to his removal from office violated articles 10, 21, 25, 27, 28, 41, 47, 50 and 232 of the Constitution and standing orders 61(1), 61(5) & 154 of the Kisumu County Assembly. He alleged that there had been violations of his rights to fair hearing, equality and equal protection before the law, fair administrative action, human dignity and fair labour practices.

Issues:

  1. Whether the impeachment process leading to the removal of the Speaker of the Kisumu County Assembly from office was lawful.
  2. Whether it was lawful to ask a former speaker who had been removed from office to return assets allocated to him by the county assembly. Read More..

Held:

  1. There were ten allegations made against the petitioner and the most critical one related to alleged corruption while he served as the Chairman of the Lake Basin Development Authority. It was a proven fact that the petitioner faced those corruption allegations in the Chief Magistrate's Court at Milimani Anti-Corruption Case No 20 of 2018.
  2. It was proven that the impeachment motion was introduced to the house on September 17, 2019 and was slotted for debate on September 18, 2019. It was also proven that a resolution was passed to remove the petitioner from office.
  3. The petitioner was served with the impeachment motion a day before the hearing of the motion. It was therefore upon the petitioner to prove on a balance of probabilities that he was blocked from attending the hearing.
  4. The petitioner bore the onus of proving on a balance of probabilities that there was no just cause for his removal and that the procedure used for his removal from office violated the relevant standing orders of the house, the relevant statutory provisions under the County Governments Act and the relevant provisions of the Constitution especially articles 2, 10, 21, 27, 41, 47, 50, 178, 232 and 259 under which the petition was premised.
  5. Evidence showed that the conditions precedent to the impeachment of a speaker had been met. A formal notice issued to the Clerk of the County Assembly stating the grounds of removal and bearing the signature of 29 members from the County Assembly was filed and served on the petitioner via e-mail. The petitioner was invited to attend the hearing of the motion on September 18, 2019 at 2:30 pm. The proceedings were presided over by a member elected in accordance with the law and a resolution to remove the speaker was passed by 42 members of the county assembly and that number constituted at least 75% of the membership of the assembly.
  6. On a balance of convenience, it was important to uphold public interest as a major consideration in the matter. The petitioner prayed for reinstatement as speaker. The court was conscious of the corruption case being faced by the petitioner and the fact that the petitioner was to be presumed innocent until proven guilty.
  7. There were no statutory or constitutional guidelines placed before the court to show how a substantive speaker of a County Assembly was to be handled pending the determination of criminal proceedings against him.

Petition dismissed.
Orders:-

  1. The petitioner was to release to the 2nd respondent motor vehicle registration no. 42C9039A – Toyota Land Cruiser.
  2. The 2nd respondent was to pay the terminal benefits due and owing to the petitioner less liabilities owed by the petitioner to the 2nd respondent.
  3. Each party to bear its costs.
INSOLVENCY LAW Legal requirements applicable to the making of an application for the recognition of foreign insolvency proceedings.

In re Cooperative Muratori & Cementisti – CMC DI Ravenna
Misc Application No E088 of 2019
High Court at Nairobi
F Tuiyott, J
November 22, 2019
Reported by Beryl Ikamari

Download the Decision

Insolvency Law - cross border insolvency - application for recognition of foreign insolvency proceedings - institution of the application - nature of persons with the capacity to institute such an application - effect of the institution of such an application in the name of a debtor as opposed to a foreign representative where it was actually the foreign representative making the application under the debtor's name - Insolvency Act (No 18 of 2015), Fifth Schedule, paragraphs 4 & 17. 
Insolvency Law - cross border insolvency - application for recognition of foreign insolvency proceedings - legal requirements applicable to the making of the application - effect of failure to comply with those requirements - Insolvency Act (No 18 of 2015), Fifth Schedule, paragraph 17.

Brief facts
The applicant, a manufacturing and labour cooperative company registered in Ravenna, Italy, had a branch in Kenya known as CMC DI Ravenna Kenya Branch. The applicant wanted the court to recognize foreign insolvency proceedings that were pending before the Court of Ravenna wherein the applicant was a party. The applicant stated that the Court of Ravenna issued a decree on December 6, 2018 and extended it on February 6, 2019. The decree entailed that court's acceptance of the applicant's request to commence a business rescue plan. The applicant prayed for various orders from the court. The orders related to issuance of notice by the applicant to interested or affected parties of the proceedings before the Court of Ravenna and also the instant application. The applicant also prayed for a stay of all adverse civil actions and any orders or decrees issued against it. Various creditors opposed the application.

Issues:

  1. What was the effect of filing an application for the recognition of foreign insolvency proceedings in the name of a debtor instead of the name of the foreign representative as required by law?
  2. What were the legal requirements relating to the making of an application for the recognition of foreign insolvency proceedings?
  3. What was the effect of failure to comply with the applicable legal requirements when making an application for the recognition of foreign insolvency proceedings? Read More..

Relevant provisions of the law.
Insolvency Act (No 18 of 2015)
Fifth Schedule, paragraph 4
..."foreign representative” means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor's assets or financial affairs or to act as a representative in the foreign proceeding;...

Fifth Schedule, paragraph 17
17. Application for recognition of a foreign proceeding
(1) A foreign representative may apply to the Court for recognition of the foreign proceeding in which the foreign representative has been appointed.
(2) An application for recognition may be rejected if it is not accompanied by—

(a) a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative;
(b) a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative; or
(c) in the absence of evidence referred to in sub-paragraphs (a) and
(b)—any other evidence acceptable to the Court of the existence of the foreign proceeding and of the appointment of the foreign representative.

(3) An application for recognition may also be rejected if it not accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative.
(4) The Court may require a translation of documents supplied in support of the application for recognition into English as the official language of Kenya.

Held:

  1. Under section 720 of the Insolvency Act, the United Nations Commission on International Trade Law (Model Law on Cross-Border Insolvency) also known as the UNCITRAL Model Law on Cross-border Insolvency, in the form that it was set out in the Fifth Schedule to the Insolvency Act, had the force of law in Kenya. Section 720 of the Insolvency Act provided for cross border insolvency.
  2. Cross border insolvency could take either of two forms; universalism or territoriality. Under universalism an insolvent debtor with assets in multiple countries would be liquidated in the country where it had its centre of main interests (COMI). The court in the COMI would have a global reach that covered the debtor's assets worldwide. Under territoriality, creditors in each country where the debtor's assets were located would commence proceedings on the basis of local laws in courts within their jurisdiction. That was also known as the grab rule because local creditors would race to grab assets situated in their jurisdiction to the detriment of other creditors worldwide. Under paragraph 18(3) of the Fifth Schedule to the Insolvency Act, it was clear that Kenya adopted the universality model.
  3. A foreign representative was the proper applicant to an application for recognition of foreign insolvency proceedings under paragraph 17(1) of the Fifth Schedule to the Insolvency Act. Further paragraph 4 of that Schedule defined a foreign representative as a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the re-organisation or the liquidation of the debtor's assets or financial affairs or to act as a representative in the foreign proceeding.
  4. Although the application was brought under the name of the debtor, the person moving the motion was one of the three judicial commissioners duly appointed by the Court of Ravenna to administer the reorganization plan of the debtor. As long as it was the foreign representative that was presenting the application, then despite it being under the name of the applicant, it was the foreign representative that was the applicant. It would be too narrow an interpretation to find that merely because the application was in the debtor's name then it was the debtor who was the applicant.
  5. Paragraph 17 of the Fifth Schedule to the Insolvency Act provided for the requirements relating to an application for the recognition of foreign insolvency proceedings. It provided that such an application could be rejected by the court if it was not accompanied by a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative or a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative or any other evidence on the existence of the foreign proceedings that was acceptable to the court. Without the certified copy of the foreign decision and certificate, the court had wide powers to grant recognition.
  6. In attempting to fulfil the requirements of paragraph 17(2)(a) of the Fifth Schedule to the Insolvency Act, the applicant provided a copy of the decree of the Court of Ravenna and a copy of the preventive application to commence the process of voluntary arrangement but did not provide a certified copy of the decree or decision appointing the foreign representative. Further, there was no certificate from the Court of Ravenna affirming the existence of the foreign proceedings and/or the appointment as required under paragraph 17(2)(b) of the Fifth Schedule to the Insolvency Act.
  7. While the court could rely on other evidence that could prove the existence of the foreign proceedings and appointment of the foreign representative, no such evidence was provided to the court. The copies of the application for recognition in South Africa or the order recognizing those proceedings in Singapore, while, perhaps evidence of the existence of those recognition proceedings in South Africa and Singapore were not primary (and therefore acceptable) evidence of existence of the foreign proceedings in Italy and appointment of the foreign representative.
  8. If allowed, the application had consequences for Kenyan creditors as it would bar all adverse civil action against the debtor's local branch. Therefore the court had to be satisfied as to the actual existence of foreign proceedings and appointment of the foreign representative before subjecting persons within its jurisdiction to stay orders made in deference to proceedings outside Kenya. 
  9. The other reason as to why the court would not accept the application was the requirements of paragraph 17(3) of the Fifth Schedule to the Insolvency Act. Under that paragraph the court could reject an application if it was not accompanied by a statement identifying all foreign proceedings in respect of the debtor that were known to the foreign representative. Reference had been made to recognition proceedings in South Africa and Singapore but that was not sufficient as the requirement related to all foreign proceedings against the debtor and not applications for recognition proceedings.

Application struck out.
Orders:-

  1. The applicant was to file another application that conformed to the law for consideration on merit.
  2. Costs were awarded to creditors who filed grounds or affidavits in opposition.
CONSTITUTIONAL LAW

Granting bail on terms that a county governor, who faced corruption charges, would not access his office until the conclusion of the corruption case is lawful.

Ferninand Ndung’u Waititu Babayao v Republic
Civil Appeal No 416 of 2019
Court of Appeal at Nairobi
D K Musinga, S Gatembu Kairu & A K Murgor, JJA
December 20, 2019
Reported by Beryl Ikamari

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Constitutional Law – fundamental rights and freedoms - rights of an arrested person - right to bail - conditions attached to the grant of bail - reasonableness and lawfulness of conditions requiring an accused person not to access his office until the conclusion of the corruption case and orders for cash bail or bond- Constitution of Kenya 2010, article 49(1)(h); Anti-Corruption and Economic Crimes Act, No 3 of 2003, sections 62(6) and 62(1).

Statutes - interpretation of statutory provisions - scope of applicability of sections 62(6) and 62(1) of the Anti-Corruption and Economic Crimes Act (ACECA) - where section 62(1) of ACECA allowed for the suspension on half pay of public officers facing corruption and economic crimes charges while section 62(6) of ACECA provided that section 62 of ACECA was inapplicable to public offices for which the Constitution provided for the mode of removal of the public officer - whether the provisions were applicable to the grant of bail to an accused person, a county governor facing corruption charges, on terms that required him not to access his office until the case was concluded - Constitution of Kenya 2010, article 49(1)(h); Anti-Corruption and Economic Crimes Act, No 3 of 2003, sections 62(6) and 62(1).

Brief acts:
The Governor of Kiambu County, (the appellant) and 12 others were arraigned before the Anti-Corruption Court at Nairobi in Anti-Corruption Case No. 22 of 2019. The appellant was released on bail with terms including an order that he would not access his office until the criminal case was heard and determined. He sought a revision of the court's decision.
In determining the revision application, the High Court held inter alia that attaching terms to the grant of bail was not tantamount to removing a governor from office and that the orders for Kshs. 15,000,000 cash bail or bond of Kshs. 30,000,000 with a surety of similar amount were not harsh or excessive. The application for revision was dismissed. An appeal was lodged against the High Court decision at the Court of Appeal.

Issues:

  1. Whether the grant of bail on terms that an accused person, a county governor facing corruption charges, would not access his office until the corruption case was concluded was unlawful and unconstitutional on grounds that it amounted to the removal of a governor from office in a manner not contemplated by the law.
  2. Whether a reading of sections 62(6) and 62(1)of the Anti-Corruption and Economic Crimes Act, which provided for the suspension on half pay of public offices facing corruption and economic crimes charges and the inapplicability of that suspension to public offices for which the Constitution provided for the mode of removal of the office holder, meant that court orders requiring a county governor not to access his office until the conclusion of a corruption case in which that governor was an accused person, could not be issued.
  3. Whether it was reasonable to grant bail to a county governor who faced corruption charges on terms that he would not access his office until the corruption case was concluded.
  4. Whether it was reasonable for a trial court to exercise discretion and grant bail, in a corruption case, on terms which included orders for Kshs. 15,000,000 cash bail or bond of Kshs. 30,000,000 with a surety of similar amount where the subject matter of the corruption case related to a sum of Kshs. 51,249,000.Read More...

Relevant provisions of the law
Anti-Corruption and Economic Crimes Act, No 3 of 2003,
Section 62(1);
...A public officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case...

Section 62(6);
...This section shall not apply with respect to an office if the Constitution limits or provides for the grounds upon which the holder of the office may be removed or the circumstances in which the office must be vacated...

Held:

  1. The case at the trial court was a criminal case and the revision of the trial court’s ruling on bail was a criminal revision at the High Court. However, the appeal filed against the criminal revision was a civil appeal. It was noteworthy that appeals dealing with constitutional issues could be civil in nature. The appeal would not be struck out as filing it as a civil appeal as opposed to a criminal appeal was a matter of form rather than substance and it would be contrary to the spirit and intent of article 159(2)(d) of the Constitution.
  2. Article 49(1)(h) of the Constitution provided that an arrested person had the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there were compelling reasons for that person not to be released. Under section 62(1) of ACECA, a public officer facing corruption or economic crime charges had to be suspended on half pay until the conclusion of the case but under section 62(6) of the same Act, the provision relating to suspension on half pay did not apply to offices to which the Constitution provided for the removal of the office holder.
  3. Neither the trial court nor the High Court purported to remove or suspend the appellant from the office of Governor, Kiambu County and therefore section 62(6) of ACECA was inapplicable to the matter. The High Court could not be said to have failed to apply the omitted case cannon of statutory interpretation in affirming the terms on grant of bail.
  4. The issue about the constitutionality of section 62(6) of ACECA was not before the Court of Appeal for determination. The court could not offer an opinion on it.
  5. Considering the nature of the charges that the appellant was facing, the circumstances relating to the commission of the offence and the fact that some prosecution witnesses were county staff answerable to the appellant, the prosecution's apprehension of the possibility that the appellant could interfere with the witnesses and thereby compromise the case, if not barred from accessing his office, was not farfetched.
  6. The statutory function and responsibilities of county governor, the structure of governance and administrative functions of a county, were such that the impugned bail terms were unlikely to paralyze the operations of Kiambu County.
  7. The High Court correctly held that the grant of bail by a trial court was an exercise of discretion which it could not interfere with unless it was shown that the decision was plainly wrong or granted without considering the relevant factors. The High Court was right in holding that the orders for Kshs. 15,000,000 cash bail or bond of Kshs. 30,000,000 with a surety of similar amount were appropriate and not harsh or excessive.

Appeal dismissed with costs to the respondents. 

CONSTITUTIONAL LAW

The same starting salary is to be paid to all judges without a distinction as to whether they were appointed from within or outside the judiciary.

Sollo Nzuki v Salaries and Remuneration Commission & 2 others
Constitutional Petition No 18 of 2018
High Court at Machakos
G V Odunga, J
December 18, 2019
Reported by Beryl Ikamari

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Constitutional Law - fundamental rights and freedoms - rights to equality and freedom from discrimination, fair labour practices and fair administrative action - failure to give equal pay for equal work - where the set starting salary for judges appointed from within the judiciary was higher than the starting salary for judges appointed from outside the judiciary - whether the differential pay occasioned violations of the rights to equality and freedom from discrimination, fair labour practices and fair administrative action - Constitution of Kenya 2010, articles 27, 41, 47 and 160(4).

Labour Law – employment – fair labour practices – equal pay for equal work - appointment of judges with differences in starting salaries, based on whether they were appointed from within the judiciary or they were appointed from outside the judiciary – whether those circumstances occasioned violations of the rights to equality and freedom from discrimination, fair labour practices and fair administrative action - Constitution of Kenya 2010, articles 27, 41 and 47.

Constitutional Law - principle of separation of powers and supremacy of the Constitution - constitutionality of the actions of public bodies - role of the court in assessing the legal propriety of actions undertaken by public bodies under the authority of the Constitution - whether the High Court could entertain a claim relating to the setting of salaries by the Salaries and Remuneration Commission -Constitution of Kenya 2010, articles 165(3)(d)(i), 165(3)(d)(ii) and 230(4).

Brief facts:
The petitioner complained that the Salaries and Remuneration Commission (the 1st respondent) and the Judicial Service Commission (the 2nd respondent,) gave preferential treatment amounting to discrimination, to judges who were appointed while serving in the judiciary as compared to judges who were appointed from outside the judiciary. He said that contrary to their legitimate expectations, the starting salary for judges appointed from outside the judiciary was much lower than that of those who had served in the judiciary before being appointed as judges. The consequence of the lower salary was that some judges were unable to access benefits such as their full mortgage entitlement because their salary could not sustain it.
The petitioner stated that judges appointed in the years 2011 and 2012 had a low starting salary but were compensated when their salaries were adjusted upwards and they were paid arrears backdated to their respective dates of appointment. However, judges appointed in 2014, 2015 and 2016 were offered a low starting salary as compared to their predecessors. The petitioner stated that the differential treatment offered to the judges occasioned violations of certain rights including equality and freedom from discrimination, fair labour practices and fair administrative action.

Issues:

  1. Whether under the principle of separation of powers and the supremacy of the Constitution, the High Court had jurisdiction to entertain a petition relating to alleged discrimination in the setting of the salaries of judges by the Salaries and Remuneration.
  2. Whether the setting of salaries in a manner that meant that judges appointed from within the judiciary earned higher starting salaries as compared to judges appointed from outside the judiciary, was a violation of rights to equality and freedom from discrimination, fair labour practices and fair administrative action. Read More...

Held:

  1. The broad principle of separation of powers incorporated a scheme of checks and balances but it was not applied in theoretical purity because its ultimate object was good governance which involved phases of co-operation and collaboration. The system of checks and balances served the cause of accountability and it was a two-way motion between different state organs and among bodies that exercised public power. Commissions and independent offices restrained the government and other state organs and vice versa. The spirit and vision behind separation of powers was the existence of checks and balances and that no single person or institution should have a monopoly of all powers.
  2. Under article 165(3)(d)(i) and 165(3)(d)(ii) of the Constitution, the High Court had jurisdiction to interpret the Constitution and to make determinations on the constitutionality of laws and actions done under the authority of the Constitution. After the passing of laws by legislative bodies where an issue about the constitutionality of any law arose, it was the High Court that had the mandate to determine such an issue. The High Court’s decision on such an issue was capable of being subjected to an appeal or appeals in accordance with the law.
  3. The legislature had no supremacy that would allow it to act beyond the contemplation of the Constitution. It was the Constitution that was supreme and any organ that performed a constitutional function had to perform it in conformity with the Constitution.
  4. The court could intervene in actions of other arms of government and state organs where it was alleged or demonstrated that the Constitution had been violated or threatened with violation. That was one of the core mandates of the High Court.
  5. When the 1st respondent set remuneration, it made or implemented public policy decisions. It was therefore bound under article 10 of the Constitution to take into account principles of non-discrimination. If it acted in a discriminatory manner, the court could intervene in exercise of its mandate.
  6. Article 27 of the Constitution provided for the right to equality and freedom from discrimination. There was a disparity between the salaries of judges appointed from within the judiciary and those appointed from outside the judiciary. The reason was that the judges appointed from within the judiciary would carry forward their salaries to their new office of judge. The effect was that judges from outside the judiciary earned lower salaries as compared to their peers that were appointed from within the judiciary. Therefore, the issue to be settled was on whether the mandate to set salaries was exercised lawfully and constitutionally.
  7. Becoming a judge of a superior court was question of appointment and not promotion. A serving judicial officer who applied to be appointed as a judge would not lose the protection offered under article 160(4) of the Constitution. The said article 160(4) provided that the remuneration and benefits payable to a judge would not be varied to the disadvantage of that judge and the retirement benefits of a retired judge would not be varied to the disadvantage of the retired judge during the lifetime of that retired judge. Even a magistrate who was appointed as judge would not by virtue of the appointment become disadvantaged in terms of his/her remuneration.
  8. Creating a disparity between those appointed from within the judiciary and those appointed from outside the judiciary would imply that there was an added advantage for judges who were appointed from within the judiciary. That disparity had no legal basis. In order for a disparity or differentiation to be permissible, it had to be founded in an intelligible differentia which distinguished persons or things that were grouped together from others that were left out of the group and it had to have a rational relation to the object sought to be achieved by the law in question.
  9. Judges appointed from within the judiciary and those appointed from outside the judiciary performed the similar tasks. The respondents did not demonstrate the existence of intelligible differentia which distinguished a judge recruited from within the judiciary and one recruited from outside the judiciary. Similarly a rational relation between the disparity in remuneration between judges recruited from within the judiciary and those recruited from outside the judiciary to the object sought to be achieved by the policy in question was not shown.
  10. The powers of the 1st respondent as set out in article 230(4) of the Constitution included advising the national and county governments on the harmonization, equity and fairness of remuneration for the attraction and retention of requisite skills in the public sector. By failing to harmonize the remuneration of judges appointed from within the judiciary with those appointed from outside the judiciary, the 1st respondent abdicated its constitutional and statutory mandate.
  11. Remuneration of judges was one of the tenets of the independence of the judiciary and that was why the remuneration and benefits payable to a judge was constitutionally protected and it could not be varied to the disadvantage of the judge. Similarly, the retirement benefits of a retired judge could not be varied to the disadvantage of the retired judge.
  12. The disparity in remuneration which was based on whether a judge was appointed from within the judiciary or from outside the judiciary was not permissible under any law and it was not justifiable. A system wherein a magistrate could earn more than a judge was unacceptable in the face of judicial hierarchy. The 1st respondent had to set remuneration in such a way that each tier of the judiciary was remunerated according to its superior rank.
  13. Article 23 of the Constitution provided that a court could grant appropriate relief, including a declaration of rights, when confronted with rights violations. Appropriate relief meant an effective remedy because without effective remedies the rights entrenched in the Constitution would not be upheld or enhanced.

Petition allowed with no order as to costs.
Orders:-

  1. A declaration that paying judges of the High Court of Kenya and judges of equal status a starting rate that was lower than the starting remuneration of other judges of the High Court of Kenya and courts of equal status appointed to the same office on the same day was a violation of the affected judges’ rights not to be discriminated against as guaranteed by article 27 of the Constitution of Kenya, 2010 and a violation of their rights as guaranteed by articles 41 (2) of the Constitution.
  2. A declaration that an appointment to the office of judge of the High Court of Kenya or a judge of courts of equal status was a substantive appointment and not a promotion from a position of magistrate or any other office and as such all persons appointed to office of judge of the High Court of Kenya and courts of equal status were entitled to similar starting remuneration and benefits.
  3. A declaration that the purported categorization by the 1st and 2nd respondents of the High Court judges and judges of courts of equal status based on whether they were appointed from outside or within the judiciary was unconstitutional.
  4. A declaration that the 1st respondent’s communication on the remuneration of judges and magistrates contained in its letter Ref No. SRC/TS/HRCOH/3/25 dated June 10, 2013 was discriminatory to the extent that it subjected judges appointed in 2014, 2015 and 2016 to a lesser starting salary than the starting salary of those appointed prior to the said period.
  5. A declaration compelling the 1st and 2nd respondents to pay (unless already paid) all the affected judges the starting salary equal to the starting salary paid to the judges appointed with them on their respective dates of appointment (whichever was higher), and, that the said amount(s) plus benefits be backdated to their respective dates of appointment and paid promptly.

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