Weekly Newsletter 034/2020



Kenya Law

Weekly Newsletter


A structural interdict can be issued as an appropriate relief for a violation or a threat of violation of fundamental rights and freedoms at an interlocutory stage
Law Society of Kenya & 7 others v Cabinet Secretary for Health & 8 others; China Southern Co. Airline Ltd (Interested Party) [2020] eKLR
Petition 78, 79, 80 & 81 of 2020 (Consolidated)
High Court at Nairobi
JA Makau, J
August 3, 2020
Reported by Kakai Toili
Download the Decision

 

Constitutional Law remedies -  remedies for violations of fundamental rights and freedoms - structural interdicts – nature and elements of structural interdicts – claim where remedies of structural interdict was issued at an interlocutory stage - whether a structural interdict could be issued at an interlocutory stage - what were the factors to be considered in determining whether inherent powers of a court should be exercised for the ends of justice  - Constitution of Kenya, 2010, articles 22 and 23.
Civil Practice and Procedure – injunctions – mandatory injunctions – issuance of mandatory injunctions at an interlocutory stage - what were the circumstances in which mandatory injunctions could be issued at an interlocutory stage.
Civil Practice and Procedure – orders – conservatory orders – what was the nature and role of conservatory orders.

Brief facts:
Following the outbreak of the coronavirus (COVID-19), which did not have a known cure or vaccine, in China and which was later declared by the World Health Organisation (WHO) as a global health pandemic, Kenya continued to allow flights from China. The petitioners were aggrieved and thus filed the instant an application before the court challenging the Government’s decision to allow flights from China. The petitioners were granted ex parte orders in that application after the court was satisfied that the conduct of the Cabinet Secretary for Health (1st respondent) posed a threat to the right to life and that unless ex parte conservatory orders were issued, Kenyans would continue to be exposed to COVID-19. The court also granted temporary ex parte orders which included that a conservatory order suspending the respondent’s decision to allow resumption of non-essential flights from China to Kenya and a conservatory order in the form of structural interdict compelling the 1st respondent to prepare and present to the court for scrutiny, a contingency plan on prevention, surveillance, control and response systems to COVID-19 outbreak in Kenya. The respondent subsequently filed a report on measures put in place by the Government to deal with the COVID-19 threat in Kenya (report). Aggrieved by the ex parte orders the respondents filed the instant application seeking among others orders that; pending the determination of the application, a stay of the implementation of the court’s orders only to the extent that the same was in the form of a structural interdict compelling the 1st respondent to prepare and present to the court for scrutiny, a contingency plan on prevention, surveillance, control and response system to COVID -19 outbreak in Kenya. The respondents claimed that the impugned orders were in the nature of a mandatory injunction and were granted contrary to the principles of issuance of injunctions. The respondents further claimed that the a structural Interdict could only be issued as a final order or judgment and not at interlocutory stage.  

Issues:

  1. Whether a structural interdict could be issued at an interlocutory stage.
  2. What was the nature and elements of structural interdicts?
  3. What were the circumstances in which mandatory injunctions could be issued at an interlocutory stage?
  4. What was the nature and role of conservatory orders?
  5. What were the factors to be considered in determining whether inherent powers of a court should be exercised for the ends of justice?

Held:

  1. In considering the question whether inherent powers should be exercised for the ends of justice, the court was under duty to take into account relevant consideration;
    1. the existing circumstances;
    2. the injustice caused to the applicant;
    3. the remedy that could be available to the aggrieved party; and
    4. inconvenience and unnecessary expenses likely to be bundled on the parties.
    The court was required to take care that the act of the court did no injury to any of the litigants and in doing so the main concern was to do substantial justice in the administration of justice.
  2. The High Court in its ruling specifically gave the reasons and explanation for its decision. The Attorney-General had a duty to promote, protect and uphold the rule of law and defend public interest. The respondents in seeking the lifting of the structural interdict sought to invoke the court’s inherent powers but chose to not to say anything about the court’s constitutional duty to grant an appropriate relief in the circumstances  of a matter as provided under article 23 of the Constitution of Kenya 2010 (Constitution) to preserve fundamental rights and freedoms. That went against the Attorney-General’s mandate under article 156(6) of the Constitution.
  3. Under article 23(3) of the Constitution, the court was entitled to grant any appropriate relief in any proceedings brought under article 22 of the Constitution. Appropriate relief would be in essence the relief that was required to protect and enforce the Constitution depending on the circumstances of each case.  The relief could be a declaration of rights, an interdict, a mandamus or such other relief as could be required to ensure that the rights as enshrined in the Constitution were protected.
  4. Mandatory injunctions at interlocutory stage would only be granted in clear cases or where special circumstances existed. The petitioner’s case was strong and clear and brought under special circumstances regarding protecting Kenyans due to the threat of the COVID-19 pandemic and due to special circumstances in existence.
  5. Article 22 of the Constitution entitled persons, like the Law Society of Kenya, to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed and was threatened. A threat to a right or fundamental freedom, invoked the court’s jurisdiction to issue conservatory orders.
  6. Conservatory orders bore a more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, were not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the supplicant’s case for orders of stay. Conservatory orders should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes and priority levels attributable to the relevant causes.
  7. One of the remedies which was recognized in jurisdictions with similar constitutional provisions as Kenya’s article 23 of the Constitution was a structural interdict. In essence, structural interdicts (also known as supervised interdicts) required the violator to rectify the breach of fundamental rights under court supervision. Five elements common to structural interdicts had been isolated in that respect; the court issued a declaration identifying how the Government had infringed an individual or group’s constitutional rights or otherwise failed to comply with its constitutional obligations.
    1. The court mandated Government compliance with constitutional responsibilities.
    2. The Government was ordered to prepare and submit a comprehensive report, usually under oath, to the court on a pre-set date. That report, which should explicate the Government’s action plan for remedying the challenged violations, gave the responsible State agency the opportunity to choose the means of compliance with the constitutional rights in question, rather than the court itself developing or dictating a solution. The submitted plan was typically expected to be tied to a period within which it was to be implemented or a series of deadlines by which identified milestones were to be reached.
    3. Once the required report was presented, the court evaluated whether the proposed plan in fact remedied the conditional infringement and whether it brought the Government into compliance with its constitutional obligations. As a consequence, through the exercise of supervisory jurisdiction, a dynamic dialogue between the Judiciary and the other branches of Government in the intricacies of implementation could be initiated. That stage of structural interdict could involve multiple Government presentations at several check-in hearings, depending on how the litigants responded to the proposed plan and whether the court found the plan to be constitutionally sound. Structural interdicts thus provided an important opportunity for litigants to return to court and follow up on declaratory or mandatory orders.
    4. The chance to assess a specific plan, complete with deadlines, was especially valuable in cases involving the rights of poorest of the poor, who had to make the most of rare and costly opportunities to litigate.After court approval, a final order (integrating the Government plan and any court ordered amendments) was issued.Following that step, the Government’s failure to adhere to its plan (or any associated requirements) essentially amounted to contempt of court.
  8. The structural interdict as an appropriate relief could be available at interlocutory stage. The court had jurisdiction to grant a structural interdict including at the interlocutory stage, as was the case herein, if that was the appropriate relief.
  9. From the conduct of the respondents and in view of the fact that an ex parte order had been given, no prejudice was suffered by the respondents nor were they denied rights to fair hearing. The application filed on April 8, 2020 was an afterthought as the respondents filed their replying affidavit on March 6, 2020 and on March 18, 2020 filed a report on the measures put in place by the Government to deal with COVID-19 threat in Kenya. The application to set aside and/or review or vacate the ex parte orders of February 28, 2020 was filed after expiry of 40 days which was dated April 8, 2020 raising the issue as regard the structural interdict. The delay was unexplained and without any basis.
  10. Under article 2 of the World Health Organization Constitution (WHO Constitution), the World Health Organization (WHO) had the following functions relevant to the instant petition; to act as the directing and co-coordinating authority on international health work; to stimulate and advance work to eradicate epidemics, endemics and other diseases, to propose public conventions, agreements and regulations and to make recommendations with respect to international health matters. On regulations, article 21(a) and 22 the WHO Constitution empowered the World Health Assembly to adopt regulations, designed to prevent the international spread of disease. Once adopted by the World Health Assembly, the regulations entered into force for all WHO members states that did not affirmatively opt out of them within a specified time period. Having been adopted by the fifty eight World Health Assembly on May 23, 2005, the International Health Regulations, 2005 (the Regulations) entered into force on June 15, 2007.
  11. The purpose and scope of the Regulations was to prevent, protect against, control and provide a public health response to the international spread of disease in ways that were commensurate with and restricted to public health risks, and which avoided unnecessary interference with international traffic and trade. On issue of public health contingency planning under international law, a required each state party, to develop, strengthen and monitor as soon as possible, but not later than five years from the entry into force of the Regulations for that state party (not later than June 16, 2012). The capacities to detect, asses, notify and report events in accordance with annex 1 of the Regulations. The obligation in annex 1 was reiterated in article 13 of the Regulations on public health responses.
  12. Article 22(1) of the Regulations required competent authorities like the respondents to have effective contingency arrangement to deal with an unexpected public health event. The WHO guidelines on contingency planning (Guidelines) indicated the rationale for contingency planning in protecting public health. The report of March 18, 2020 arose out of an ex-parte courts’ order on interim basis. The court’s order was served on March 2, 2020 and the respondents filed a report on March 18, 2020 within a period of 16 days from the date of service. The report was to be prepared and presented to the court for scrutiny and to satisfy itself with the compliance with the court’s order. The report was lacking in specifics but looking at it and being an interim report as of March 18, 2020 and not being a final report, the National Government had through the Ministry of Health put in place a contingency plan on prevention, surveillance, control and responsive systems to COVID-19 outbreak.
  13. The report had a detailed plan on maintaining a heightened surveillance system at all points of entry, health facilities and communities across Kenya. The report indicated that the ministry had continued to provide prompt and regular updates to the members of public regarding COVID-19. The report of March 18, 2020 was not a final report from the National Government but an interim report that was ordered to be prepared and filed.
  14. The respondents complied with the court’s order of February 28, 2020 and prepared an interim contingency plan and did not violate the right to health under the Constitution and international law. The court was alive to the fact that the report of March 18, 2020 was not the final report on the contingency plan. The report in question was an interim report in pursuance of interim orders of the court pending hearing and determination of the application inter partes and the petition.

Application dismissed; no orders as to costs.

Kenya Law
Case Updates Issue 034
/2020

Case Summaries

LEGAL SYSTEMS Law that banned 14 seater passenger service vehicles declared unconstitutional

Latema Sacco & 52 others v National Transport & Safety Authority & 7 others; Uber Chap Chap & 14 others (Interested Parties)
Petition No. 440 of 2018
High Court at Nairobi
W Korir, J
July 16, 2020
Reported by Ribia John

Download the Decision

Legal Systems – statutory instruments – subsidiary legislation – regulations to an Act Parliament - legal notice – legal notice introducing a new provision to regulations of an Act without the approval of parliament - whether an entirely new provision could be introduced to the regulations of an Act of Parliament via a Legal Notice without the statutory instrument being approved by Parliament - Statutory Instruments Act, section 11(4).
Constitutional Law – fundamental rights and freedoms – public participation – requirement for public participation in law making processes – whether subsidiary legislation should also be subjected to public participation - whether regulation 4 of Legal Notice No. 179 of 2014 that introduced regulation 9(2) of the National Transport and Safety Authority (Operation of Public Service Vehicles) (Amendment No. 2) Regulations, 2014 that outlawed 14 seater public service vehicles was unconstitutional for lack of public participation – Constitution of Kenya, 2010 article 231(1)(d).
Constitutional Law – fundamental rights and freedoms – right to equality and freedom from discrimination – alleged discrimination in enforcement of the law - whether the National Transport and Safety Authority were discriminatory in their application of the law that required taxicabs to have painted on both sides and on the rear a continuous horizontal yellow band applied by enforcing it only against 14 and 25 seater public service vehicles and not enforcing it when licensing taxicabs - Traffic Act section 102(2);  Traffic Act (Taxi Cabs) Rules, rule 70(1).

Brief facts:
The petitioners were challenging the constitutionality and legality of the Legal Notice 161 of 2003 (Michuki Rules), Legal Notice No. 65 of 2005 (Murungaru Rules) and Legal Notice No. 179 of 2014 (which banned licensing of 14 seater public service vehicles). The petitioners case was that the Michuki Rules and the Murungaru Rules were no longer available for litigation.  The petitioners alleged that the Michuki Rules were quashed in Republic v Minister for Transport & Communications & 6 others [2004] eKLR.  Further, that even if the Michuki Rules were legalized through the Murungaru Rules, the Murungaru Rules were stayed in Nairobi HC JR No. 1145 of 2005.  Additional that the Michuki Rules and the Murungaru Rules were bad in law as they were not tabled in Parliament in compliance with section 34(2) of the General Provisions and Statutory Interpretations Act, Cap. 2. The respondents’ case was that the Michuki Rules were saved by the Murungaru Rules because the court had given an opportunity to the respondents in Republic v Minister for Transport and Communications & 6 others (2014) eKLR to re-enact the rules in compliance with the law within six months from the date of the Judgment. Further, that those rules had in any case been overtaken by Legal Notice No. 23 of 2014.
 The petitioners in the two petitions also challenged the Bus Rapid Transit system (BRT system).  The petitioners in petition No. 440 of 2018 additionally challenged the requirement of a yellow line for public service vehicles (PSVs); the non-compliance by taxi cab operators with the requirement for a yellow line; and the failure of the Kenya Bureau of Standards to execute its statutory mandate.

Issues:

  1. Whether the court could determine the validity of laws that were no longer in existence.
  2.  Whether the National Transport and Safety Authority were discriminatory in their application of section 102(2) of the Traffic Act and rule 70(1) of the Traffic Act (Taxi Cabs) Rules that required taxicabs to have painted on both sides and on the rear a continuous horizontal yellow band applied by enforcing it only against 14 and 25 seater public service vehicles and not enforcing it when licensing taxicabs.
  3. Whether the Bus Rapid Transit system was unlawful.
  4. Whether an entirely new provision could be introduced to the regulations of an Act of Parliament via a Legal Notice without the statutory instrument being approved by Parliament in accordance to section 11 of the Statutory Instruments Act.
  5. Whether regulation 4 of Legal Notice No. 179 of 2014 that introduced regulation 9(2) of the National Transport and Safety Authority (Operation of Public Service Vehicles) (Amendment No. 2) Regulations, 2014 that outlawed 14 seater public service vehicles was unconstitutional for lack of public participation. Read More..

Relevant provisions of the Law
Statutory instruments Act
Section 11(4)
(4)      If a copy of a statutory instrument that is required to be laid before Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void.

Legal Notice No. 179 of 2014
Regulation 4
 4.      Regulation 9 of the Principal Regulations is amended by-
          (a) Renaming regulation 9 as regulation 9(1),
          (b) Inserting the following new paragraphs immediately after regulation 9(1)-
 (2)    The authority shall not license any new Public Service Vehicle as commuter service vehicle whose seating carrying capacity is less than twenty-five passengers.
 (3)    The Authority shall not, with effect from the 1st January, 2016 renew the licence of any Public Service vehicle whose seat carrying capacity is less than twenty five passengers.

Held:

  1. The Michuki Rules were no longer open for litigation in this matter as they were subjected to comprehensive litigation in Republic v Minister for Transport & Communications & 6 others [2004] eKLR.  They were also no longer in force. The Michuki Rules were either quashed upon the lapse of six months from the date of the delivery of the judgement in Republic v Minister for Transport & Communications & 6 others [2004] eKLR or they were repealed through the enactment of the Murungaru Rules.  An order could not be issued to quash a thing that was no longer in existence.
  2. Although the petitioners claimed that there was an order staying the implementation of the Murungaru Rules in Nairobi HC JR No. 1145 of 2005, they did not explain why the matter had not been prosecuted for over fifteen years.  There was nothing on record upon which it could be said the Murungaru Rules which were the successor of the Michuki Rules were illegitimate. 
  3. The claim that the respondents were trying to invoke non-existent Rules was without merit. The Traffic Act and the Traffic Rules contained all the laws they enforced. That assertion had merit in that any charge sheet presented to a trial court had to be based on an existing provision of the law and any attempt to charge the petitioners or their employees for committing traffic offences unknown to the law could always be challenged before the trial court. Section 89(5) of the Criminal Procedure Code empowered a magistrate to reject a charge sheet that did not disclose an offence. A blanket order stopping the respondents from executing their statutory and constitutional mandates could not be issued.
  4. In Republic v Cabinet Secretary for Transport & Infrastructure & 6 others [2014] eKLR the court rejected the prescription of the brands of speed governors rather than the standards.  The use of speed limiters in public service vehicles was not outlawed.  A generalized order that speed limiters should not be installed in public service vehicles could not therefore be issued. The law requiring that speed limiters be fitted in public service vehicles and making it an offence not to do so was not quashed.
  5. No evidence was adduced in support of the averment that the yellow line rule only applied to taxicabs and not 14 and 25 seater matatus. The respondents could not be accused of failing to enforce laws against taxicabs whose particulars were not provided and were unknown. Law enforcers had a duty to enforce the laws of the land including section 102 of the Traffic Act.
  6. The assertion that Section 102(2) of the Traffic Act which required taxicabs to have a yellow line could not be extended to matatus was out of place.  Rule 55A of Traffic Rules No. 39 of 1953 as revised in 2018 provided that every matatu was to have painted on both sides and on the rear a broken horizontal yellow band having a width of 150 millimeters and consistency sufficient to enable such band to be clearly visible by day at a distance of at least 275 meters. 
  7. The laws on speed governors and seat belts were also in place.  The standards had been established.  The petitioners made a generalized complaint about the products being substandard but did not avail evidence to support their claim. The claim for special damages was not pleaded and neither was it proved. If the petitioners were dissatisfied with the quality of particular products, they were to take up the issue of the quality of such products with the 7th respondent and only sue when the 7th respondent failed to discharge its statutory mandate.
  8. The petitioners made generalized complaints about the BRT project without stating exactly what the alleged constitutional violation was.  Section 100 of the Traffic Act allowed for the introduction of such a passenger transport system.  The court was as at a loss as to why the petitioners wanted the court to outlaw the BRT system.  The BRT system is still at the conception stage and the appropriate laws would be introduced in due course.
  9. Regulation 9(2) of the National Transport and Safety Authority (Operation of Public Service Vehicles) (Amendment No. 2) Regulations, 2014 was introduced by regulation 4 of Legal Notice No. 179 of 2014 as just a mere amendment.  An act which in one fell swoop decimated the livelihoods of thousands of Kenyans could not be disguised as an amendment in order to evade the attention of the people’s representatives. That was a new provision that required the attention of Parliament in accordance with section 11 of the Statutory Instruments Act.  The provision was entirely new and was not an amendment of any existing provision of Legal Notice No. 23 of 2014.  It introduced a new policy with far reaching consequences on the livelihoods of thousands of Kenyans. Such an amendment required public participation as it introduced a substantive amendment to the law.
  10. The interrogation to which Legal Notice No. 23 of 2014 had been subjected by the court did not extend to the new provision whose effect was to take out of the Kenyan roads PSVs carrying less than 25 passengers.  The new regulation ought to have been subjected to both public participation as required by the Constitution and parliamentary approval as required by the Statutory Instruments Act.
  11. Public participation was a mandatory requirement in the process of making legislation including subsidiary legislation. It was incumbent upon the makers of the regulations to demonstrate that the public was involved in the enactment of the regulations. The respondents had failed to prove that there was public participation in the enactment of the impugned regulation.  Regulation 4 of Legal Notice No. 179 of 2014 did not comply with the constitutional requirement for public participation for enactment of legislation.
  12. The impugned regulation 4 of Legal Notice No. 179 of 2014 ought to have been submitted to Parliament for approval and the failure to submit it to Parliament rendered it null and void within seven days of its publication.  Regulation 4 of Legal Notice 179 of 2014 was enacted in violation of the provisions of the Statutory Instruments Act.

Petition partly allowed:
Orders:

  1. Declaration issued that regulation 4 of Legal Notice No. 179 of 2014 was unconstitutional and unlawful and therefore null and void ab initio.
  2. Each party was to meet their own costs.
CONSTITUTIONAL LAW

Public Service Commission and its decisions were amenable to legal proceedings

County Government of Mandera & another v Attorney General & another; Hussein Dayow Abdullahi & 3 others (Interested Parties) [2020] eKLR
Constitutional Petition No. 118 of 2019
Employment and Labour Relations Court at Nairobi
B Ongaya, J
June 12, 2020
Reported by Chelimo Eunice

 

Download the Decision

Constitutional Law – commissions and independent offices - objects of commissions and independent offices - Public Service Commission – powers and functions of Public Service Commission – appeals to the Public Service Commission - powers of the Public Service Commission to hear and determine appeals in respect of county governments’ public service – Constitution of Kenya, 2010, articles 233, 234, 235, 248, 249 and 252; Public Service Commission Act, (No. 10 of 2017),sections 87, 88 and 89; County Governments Act,(No. 17 of 2012) section 77.
Constitutional Law - constitutionality of statutes – how to determine the constitutionality of a statute - what were the established guiding principles in declaration of statutory provisions as unconstitutional - whether the provision under the Public Service Commission Act on exhaustion of administrative procedure before moving a court was unconstitutional - whether the provisions  of the Public Service Commission Act on review and enforcement of the Public Service Commission’s decision and on disciplinary action for failure to implement the Public Service Commission’s decisions were unconstitutional - Constitution of Kenya, 2010, articles 2, 24, 27, 48, 50 and 259; Public Service Commission Act, (No. 10 of 2017), sections 87(2), 88(1) and (4), 89(1) and ( 2).
Interpretation of Statutes – interpretation of statutory provisions -  Public Service Commission Act – interpretation of section 88(1) of the Public Service Commission Act - whether section 88(1) of the Public Service Commission Act on the right to apply for review of the Public Service Commission’s decision denied a party aggrieved by the decision of the Public Service Commission the right to move a court with competent jurisdiction – whether the Public Service Commission and its decisions were amenable to legal proceedings - Public Service Commission Act, (No. 10 of 2017), section 88(1).
Interpretation of Statutes – interpretation of statutory provisions -  Public Service Commission Act – interpretation of section 88(4) of the Public Service Commission Act – whether section 88(4) of the Public Service Commission Act which prohibited the suspension or deferment of a decision of the Public Service Commission pending review or appeal of the decision by the Commission violated article 24(1) of the Constitution on limitation of the Bill of Rights - what was the effect of the said section on decisions of the Public Service Commission – whether a decision by the Public Service Commission was to be implemented even if a review or appeal had been filed before the Public Service Commission - Public Service Commission Act, (no. 10 of 2017), section 88(4).

Brief facts:
The interested parties, who were employed by the petitioners as land administrators were suspended on May 10, 2018. The interested parties then sued the petitioners, but thereafter, the parties entered a consent to stay the proceedings in that suit to allow the interested parties to appeal to the Public Service Commission (PSC) against the suspension. After hearing the matter, the PSC ordered that the disciplinary process against them was unlawful, irregular and unfair and they be reinstated and be paid all their withheld salaries and allowances.
Aggrieved by the decision, the petitioners sought declarations that sections 87(2), 88(1) and (4), 89(1) and 89(2) of the Public Service Commission Act,pursuant to which the PSC entertained and allowed the appeals by the interested parties were unconstitutional because they allegedly violated articles 27(1), 48, 24(1) and 50(1) of the Constitution. They further argued that the proceedings before the PSC were procedurally and substantively unfair and unconstitutional because the proceedings violated the basic tenets of the right to a fair hearing and rules of natural justice.
The interested parties opposed the petition arguing, among others, that the court had no jurisdiction to hear it as the PSC had clear constitutional and statutory jurisdiction to hear the matter and give the remedies as sought under section 88(5) of the Act.

Issues:

  1. What were the powers and functions of the Public Service Commission?
  2. What were the established guiding principles in declaration of statutory provisions as unconstitutional?
  3. Whether section 87 (2) of the Public Service Commission Act on exhaustion of administrative procedure before moving a court of law was unconstitutional for contravening article 27(1) of the Constitution.
  4. Whether section 88 (1) of the Public Service Commission Act on the right to apply for review of the Public Service Commission’s decision violated article 48 of the Constitution.
  5. Whether the Public Service Commission and its decisions were amenable to legal proceedings.
  6. Whether section 88(4) of the Public Service Commission Act which prohibited the suspension or deferment of a decision of the Public Service Commission pending review or appeal of the decision violated article 24(1) of the Constitution.
  7. Whether section 89(1) of the Public Service Commission Act which provided for enforcement of the Public Service Commission’s appeal decisions contravened articles 27(1), 48 and 50 of the Constitution.
  8. Whether section 89(2) of the Public Service Commission Act on disciplinary action for failure to implement the Public Service Commission’s decisions violated article 50(1) of the Constitution. Read More...

Relevant provisions of the Law
Public Service Commission Act, 2017;
Section 87(2);
“A person shall not file any legal proceedings in any Court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals from county government public service unless the procedure provided for under this Part has been exhausted.”

Section 88 (1);
“(1) A person who is dissatisfied or affected by a decision made by the Commission following an appeal under this section may apply for review and the Commission may admit the application if — (a) fresh material facts arise which with due diligence could not be presented when the decision was initially made; or (b) there is an error apparent on the record of the earlier decision.”

Section 88 (4);
“(4) Despite the right of appeal or the right to apply for review in accordance with this Part, the implementation of the decision shall not be deferred or suspended pending the determination of the appeal or the application for review.”

Section 89(1);
“Any person who is affected by the decision of the Commission made under this Part may file the decision for enforcement by the Employment and Labour Relations Court provided for under Article 162 (2) (a) of the Constitution.”

Section 89 (2);
“Any person who refuses, fails or neglects to implement the Commissions decisions is liable to disciplinary action in accordance with the applicable laws including removal from office.”

Held:

  1. The Public Service Commission (PSC) was established under article 233 of the Constitution. Under article 234(2)(i) of the Constitution, PSC’s powers and functions included to hear and determine appeals in respect of county governments’ public service. Article 234(3)(b) of the Constitution provided that the functions and powers of the PSC did not apply to an office in the service of a county government, except as contemplated in article 234(2)(i) of the Constitution.
  2. Article 235 (1) of the Constitution provided that a county government was responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament, for establishing and abolishing offices in its public service, appointing persons to hold or act in those offices, and confirming appointment; and exercising disciplinary control over and removing persons holding or acting in those offices. Article 235(2) of the Constitution made it clear that article 235(1) of the Constitution did not apply to any office or position subject to the Teachers Service Commission.
  3. The PSC was one of the commissions provided for under chapter 15 of the Constitution on commissions and independent offices as per article 248(2)(g). Article 249 (1) of the Constitution provided for objects of commissions and independent offices, which included protecting the sovereignty of the people and promoting constitutionalism.
  4. With respect to the PSC’s powers and functions under article 234(2)(i) of the Constitution to hear and determine appeals in respect of county governments’ public service, parliament had enacted various statutory provisions. Part XV of the Public Service Commission Act (PSC Act) provided for hearing and determination of appeals in respect of county governments. It was some of the provisions under that part that were impugned in the instant petition. Section 77 of the County Governments Act (CGA) also provided for appeals to the PSC against decisions of the County Public Service Board (CPSB) or a person in exercise or purported exercise of disciplinary control against any county public officer. The section further provided that PSC would entertain appeals on any decision relating to employment of a person in a county government.
  5. In order to determine the constitutionality of a statute, the court had to consider the purpose and effect of the impugned statute or section thereof. If the purpose was not to infringe a right guaranteed by the Constitution, the court had to go further and examine the effect of its implementation. If either the purpose or the effect of its implementation infringed a right guaranteed by the Constitution, the statute or section in question would be declared unconstitutional. The purpose of enacting a legislation or the effect of implementing the legislation so enacted would lead to nullification of the statute or its provision if found to be inconsistent with the Constitution.
  6. There was a general presumption that every Act was constitutional and the burden of proof lay on any person who alleged unconstitutionality. One should not start by assuming that what parliament had done in a lengthy process of legislation was unfair. One should rather assume that what had been done was fair until the contrary was shown.
  7. In considering a case, a litigant would show that a provision of a statute as applied to that litigant was unconstitutional and if the court found as much, the decision would apply to the parties to such litigation, such decision bound only the parties and the matter ended there. In such cases, the statute did not thereby become unconstitutional generally and it remained good law to be applied constitutionally in future circumstances.
  8. If a statutory provision contained unconstitutional prescription or rule and the court found as much, then the statute would not apply to any future circumstances as was a nullity as against every person. Such a statute or statutory provision would be incapable of ever being applied constitutionally. In such cases, where a statute was unconstitutional because it inherently contained a prescription or rule that was unconstitutional, the legislature ought to move with speed to repeal the statute so that the offensive provision did not remain on the statute book. That was more so because by promptly repealing the unconstitutional statute or the offending unconstitutional provision, public officers and the general users of the statute or statutory provision would not be misled to apply it for the time it persisted to exist on the statute book.
  9. The CGA was enacted pursuant to article 200 of the Constitution to give effect to chapter 11 of the Constitution which provided for a devolved government. A statute that was enacted pursuant to or to give effect to a provision in the Constitution would in that regard be constitutional unless if it was established that the statutory enactment by its content inherently violated a constitutional provision or rule.
  10. Section 87(2) of the PSC Act prohibited any person from filing any legal proceedings in any court of law with respect to matters within the jurisdiction of the PSC to hear and determine appeals from the County Government Public Service unless the procedure provided for had been exhausted. There was no material evidence to justify the claim and allegation that the section was unconstitutional. In any event, the section did not purport to conclusively or with finality oust the court’s jurisdiction but only provided for exhaustion of the appeal jurisdiction before the PSC prior to institution of court proceedings with respect to matters falling within the PSC’s appellate jurisdiction. The section had not been shown to violate a constitutional provision in its wording, effect or purpose and it was therefore not unconstitutional.
  11. Article 234(2) (i) of the Constitution provided that the PSC was vested with the function and power to hear and determine appeals in respect of county governments’ public service. Article 262 of the Constitution defined public service to mean the collectivity of all individuals, other than state officers, performing a function within a state organ. Accordingly, the power of the PSC to hear and determine appeals in respect of county governments’ public service constitutionally applied only to public officers, and not state officers, in the service of the county governments or any other state organ. Secondly, section 77 of the CGA amplified and brought into operation article 234(2) (i) of the Constitution.
  12. In considering the constitutional and statutory provisions that empowered the PSC to hear and determine appeals in respect of county governments’ public service, the subject matter was set out in section 77 of the CGA but the decisions the PSC could make were not set out in the Act or the Constitution. In appeals to the PSC, PSC could only make decisions that the county public service board or relevant lawful authority could have made or vary such decision by simply setting it aside or making a decision that was in the Board’s or the other relevant lawful authority’s jurisdiction to make. On appeal, the appellate authority applied the same substantive law and facts as applied by the primary authority that made the decision appealed against and generally considered facts as they were presented before the primary authority so that an appellate authority, in absence of anything else, could only set aside the decision appealed against or substitute the decision with any of the remedies that the primary authority was empowered to make. In other words, the appeal process dealt with the merits or substance of the case and not procedural or legal propriety of the case.
  13. Section 87(2) of the PSC Act, like section 77 of the CGA amplified and brought into operation article 234(2)(i) of the Constitution and being enacted pursuant to that constitutional provision, it had not been shown to have been unconstitutional.
  14. Section 88 (1) of the PSC Act granted a person who was dissatisfied or affected by a decision made by the PSC right to apply for review if fresh material facts arose which with due diligence could not be presented when the decision was initially made or where there was an error apparent on the record of the earlier decision. However, section 88 (4) of the PSC Act provided that despite the right of appeal or the right to apply for review, the implementation of the decision was not to be deferred or suspended pending the determination of the appeal or the application for review. Article 48 of the Constitution made provisions on access to justice. There was no evidence or argument to support the petitioners’ case that the section was unconstitutional.
  15. Section 88 (1) of the PSC Act was clear that where a review of the PSC’s decision or appeal against the county government’s decision was preferred, the appeal or the request for review did not operate as an automatic stay of implementation of the county government’s decision subject of the appeal or the PSC’s decision subject of the review application. The section did not have the effect of saying that such stay of implementation of the decision subject of appeal or review was not available in appropriate cases as the county public service board or relevant county government’s authority, the PSC or other authority such as a court of law with relevant jurisdiction could be moved to grant such stay of execution.
  16. The petitioners had failed to establish that the impugned provisions offended the cited or other constitutional rule or provision, thus the claim and prayer failed. In particular, the provisions did not amount to a limitation of the right to access to justice under article 48 of the Constitution, but it fostered that right. The Constitution by itself had prescribed that the appeals could be made to the PSC. The PSC was subject only to the Constitution and law in undertaking its powers and functions. The impugned provisions gave the PSC an opportunity to review its own decisions within the prescribed parameters. The impugned provisions as well protected a decision already made by the county public service board or relevant county government’s authority, or, the PSC towards its implementation but which could be subject of a review or appeal. Such provisions fostered tenets of justice and did not amount to limitation of the right of access to justice.
  17. Where it was alleged that in the process of considering an appeal as prescribed in the Constitution and statutes, the PSC was proceeding unlawfully or unconstitutionally in any particular case, it was possible for the aggrieved person to move the court for appropriate remedies such as declarations and judicial review remedies.
  18. The Constitution or legislation could provide that a person or public body or authority was not subject to the direction or control of any other person or authority in the exercise of any functions or powers as vested in the person or authority or public body by the Constitution or legislation. The Constitution or legislation could also vest in a person or authority or public body the power or function to consider or entertain given disputes or matters as of first instance or on appeal and to render decisions in that regard in accordance with the prescribed procedures. Such constitutional and legislative provisions ought not to be construed as precluding a court from exercising the relevant jurisdiction in relation to any question whether that person or authority or public body had exercised the powers or functions in accordance with the Constitution or any other law. Such provisions did not oust or extinguish or adjourn the court’s jurisdiction to hear and determine a dispute about the legality or the manner of the exercise of the constitutional or statutory powers and functions by the relevant person, public body or authority as would have been vested in the person, public body or authority under the Constitution or statute.
  19. Article 259(3) of the Constitution provided that a function or power conferred by the Constitution on an office would be performed or exercised as occasion required, by the person holding the office. The power to determine the lawfulness including constitutionality of matters was vested in the Judiciary. The Constitution required the PSC to be subject to the Constitution and the law, and therefore, the impugned provisions did not in any manner begin to operate as a limitation to accessing justice or courts of law.
  20. The impugned provisions did not bar a party aggrieved by the PSC’s decision from moving the court within the prevailing rules of procedure. On the merits of a proper case before the PSC, a party dissatisfied with the PSC’s decision was at liberty to move a court with competent primary jurisdiction and if dissatisfied by that court’s decision was at liberty to move the Court of Appeal as would be appropriate.
  21. In a proper case before the PSC, it was misconceived when it was submitted for the petitioners that section 88(1) of the PSC Act denied an aggrieved party the right to move a court with jurisdiction and thereafter, if dissatisfied, the Court of Appeal. Further, the section used the word may, meaning that a person aggrieved by the PSC’s decision enjoyed a discretion to move the PSC by way of a review or would opt not to do so and therefore was open for such aggrieved person to opt for other appropriate action such as filing legal proceedings in a court with competent jurisdiction.
  22. For avoidance of doubt, section 18 of the PSC Act provided that the CGA applied with respect to any proceedings against the PSC. Thus the PSC and its decisions were amenable to legal proceedings as would be filed in a court of law with competent jurisdiction as provided for in the Constitution and enabling statutes. Thus, article 253 of the Constitution provided that the PSC was a body corporate with perpetual succession and a seal, and was capable of suing and being sued in its corporate name. It was not therefore necessary for the PSC Act to confer jurisdiction to a specified court with respect to legal proceedings that would fall for institution against the PSC or about its decisions because jurisdiction of courts was already provided for in the Constitution and relevant statutes and it was for the aggrieved person to move the appropriate court as would be necessary in individual instances.
  23. The alleged unconstitutionality of section 89 (1) of the PSC Act did not emerge at all. The obvious purpose and effect of section 89 (1) of the PSC Act was to provide for a non-litigious summary procedure to enforce the PSC’s decision and it did not provide that a person or body or authority aggrieved or adversely affected by such decision could not move a court with competent jurisdiction towards an appropriate remedy.
  24. The pleadings and the submissions did not clarify how section 89 (2) of the PSC Act offended article 50(1) of the Constitution. An appeal or a review under Part XV of the PSC Act on hearing and determination of appeals in respect of county public service did not amount to an automatic stay of implementation of the decision appealed against or to be reviewed. Under Part XV of the PSC Act, the decision appealed against was one made by the county public service board or relevant authority or person in the county government system. Further, under part XV, the decision that would be reviewed was one made by the PSC. 
  25. The effect of section 88(4) of the PSC Act was that the decision by the county public service board or relevant authority or person in the county government system was to be implemented and not automatically stayed from implementation by reason that an appeal had been filed before the PSC. The further effect of the section was that a decision by the PSC was to be implemented and not automatically stayed from implementation by reason that a review had been filed before the PSC. Thus the section protected decisions as would be made by the PSC or by the county public service board or relevant authority or person in the county government system.  Also, where a stay of implementation of such decisions was desired, then the stay decision would be obtained from the relevant authority such as the county public service board or relevant authority or person in the county government system; the PSC; or the court with relevant jurisdiction.
  26. It was not necessary for the PSC Act to make an express provision on the manner in which an aggrieved party would seek stay of implementation of the decision by the CPSB or other county authority or by the PSC. Such failure by the statute could not be inferred to mean that the PSC Act offended the Constitution as alleged and claimed for petitioners. It was misconceived when it was submitted for the petitioners that section 88(4) of the PSC Act rendered an intended appeal or review nugatory ab initio. By way of an analogy, even in courts of law, stay of execution of orders and decrees had to be specifically applied for and granted or denied and the mere filing of a review or appeal did not operate as an automatic stay of execution. Further, with respect to PSC’s decisions, a stay decision of implementation or enforcement of the decision would not be obtainable in proceedings under section 89(1) of the PSC Act which essentially was summary and non-litigious, solely aimed at enforcing the PSC’s decision.
  27. There was nothing unconstitutional about section 89(2) of the PSC Act. Instead, it was well within furtherance of good governance and the rule of law that once the PSC had made its decision, such decision was for obedience failing the public officer or state officer responsible for the disobedience was to be culpable in misconduct and therefore punishable in accordance with applicable law. The section clearly provided for due process if the culprit fell for action under the section. The purpose and effect of the section was to foster chapter 6 of the Constitution on leadership and integrity, article 10 of the Constitution on national values and principles of governance and article 232 of the Constitution on the values and principles of public service. The provision had not been shown to be inimical to constitutional provisions as alleged for the petitioners.
  28. The Public Service Commission (County Government Public Services Appeals Procedures) Regulations, 2016 (Regulations) provided for elaborate procedures for hearing of appeals in respect of county public service. The provisions included, among other matters, procedures on lodging an appeal, notification of county government public service about lodging of the appeal, processing of the appeal, service of notices, hearings, recording of proceedings, findings and recommendations, making of decision, communication of the decision, hearing and determining the appeal, review, powers of the PSC on review, communication of review decision, delivery of documents to the PSC and rights of appellants.
  29. The Regulations provided that where the appeal was heard orally, then both the appellant and the respondent were to be given an opportunity to be heard and where necessary to present witnesses. The Regulations advanced due process and upheld rules of natural justice. They were consistent with the purposes of the relevant constitutional provisions and enabling statute that empowered the PSC to hear appeals with respect to county government public service.

Petition dismissed, with each party bearing own costs.

JURISDICTION Circumstances in which the Supreme Court could exercise its advisory opinion jurisdiction

In the Matter of Speaker, County Assembly of Siaya County
Reference No. 4 of 2017
Supreme Court of Kenya
DK Maraga, CJ and P; MK Ibrahim, SC Wanjala, SN Ndungu and I Lenaola
August 4, 2020
Reported by Ribia John

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Jurisdiction – jurisdiction of the Supreme Court – advisory opinion jurisdiction - what were the circumstances in which the Supreme Court would exercise its advisory opinion jurisdiction – Constitution of Kenya, 2010 article 163(6)

Brief facts:
The County Assembly of Siaya County had faced challenges in discharging its role under the Constitution and the County Government Act with regard to the powers of the County Assembly in approving/vetting members of the County Executive Committees already serving their terms, whenever the Governor decided to move them to a different portfolio. The pertinent issue was whether a County Governor had absolute powers to re-deploy members of County Executive Committees without the approval of the County Assembly. Faced with that issue the applicant approached the Supreme Court for an advisory opinion.

Issue:

What were the circumstances in which the Supreme Court would exercise its advisory opinion jurisdiction?Read More..

Held:

  1. The Supreme Court was not a legal adviser of State organs. The scope of an advisory opinion under article 163(6) of the Constitution did not extend to offering legal advice. The jurisdiction vested in the Supreme Court was to offer advisory opinion, and even then, that jurisdiction was circumscribed.
  2. A matter for advisory opinion was one not suitable for the ordinary dispute resolution mechanism; with pleadings, and progressing from the lowest to the highest court. The matter for advisory opinion had to also be urgent and entail the danger of paralysis to the institution concerned. The matter suitable for advisory opinion must be one that did not flow from any contest of rights or claims. The instant matter did not qualify for an advisory opinion.
  3. The instant matter was a justiciable live issue in Siaya County on the varied interpretation of the vetting provisions in the Constitution as well as the County Governments Act and the Public Appointments (County Assemblies Approval) Act. The Supreme Court had to guard against improper transformation of normal disputed issues for ordinary litigation into advisory opinion causes, as the court had to be disinclined to take a position in discord with the core principles of the Constitution. Contested justiciable issues should be canvassed before the High Court and should only reach the Supreme Court through the appellate process where it was necessary and appropriate.

Reference dismissed; each party was to bear its own costs.

CIVIL PRACTICE AND PROCEDURE

Whether absence of a judge’s trial notes in the supplementary record of appeal fundamentally affected the record

Institute for Social Accountability & another v National Assembly of Kenya & 4 others [2020] eKLR
Petition No. 1 of 2018
Supreme Court of Kenya
D K Maraga (CJ & P), P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala and N Njoki, SCJJ
August 4, 2020
Reported by Chelimo Eunice

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Civil Practice and Procedure - appeals – appeals to the Supreme Court – documents required in filing appeals to the Supreme Court – supplementary record of appeal – what should be contained in a supplementary record of appeal – whether absence of a judge’s trial notes in the supplementary record of appeal fundamentally affected the record – whether absence of a judge’s trial notes in the supplementary record of appeal automatically rendered the appeal fatal – whether an application to exclude a judge’s  trial notes would be made through an oral application – Supreme Court Rules, rule 33(5).

Brief facts:
On November 8, 2019, the court in its ruling allowed the applicants to file its supplementary record of appeal containing the certified order of the Court of Appeal and the typed proceedings within 7 days of receipt of the documents.Following the said ruling, the appellants lodged a supplementary record of appeal on November 14, 2019 and a copy of a letter to the Deputy Registrar requesting for the exclusion of proceedings by Justice (Rtd) G.B.M. Kariuki (retired judge) from the intended supplementary record of appeal for non-availability and copies of correspondence between the appellants and the Court of Appeal registry.The 4th respondent through an application dated February 5, 2020 sought orders to strike out the record of appeal for being incomplete and therefore invalid.
On their part, the appellants, under rule 33(5) of the Supreme Court Rules filed an application dated February 10, 2020 seeking to exclude from the record of appeal the trial notes of the retired judge. The application was founded on various grounds, including that; the main petition was ready for hearing and parties had filed submissions on it; the appellants had exercised due diligence to get the trial notes to no avail and that in any case, the presence of the trial notes in a second appeal was not a mandatory requirement.

Issues:

  1. What should be contained in a supplementary record of appeal?
  2. Whether absence of a judge’s trial notes in the supplementary record of appeal fundamentally affected the record?
  3. Whether an application to exclude a judge’s trial notes would be made through an oral application. Read More...

Held:

  1. According to the court’s ruling of November 8, 2019, the filing of the supplementary record was dependent on documents being availed by the Court of Appeal. That presupposed that all the documents would have been made available to the appellants at the same time. It turned out otherwise. The contention that the appellants should not have filed the supplementary record containing documents already received from the Court of Appeal despite the court’s ruling until all the documents were received by them was untenable. The appellants exercised due diligence and bore no fault in the absence of the trial notes.
  2. The situation was compounded by the fact that Justice (Rtd) G.B.M. Kariuki had since retired from public service as a judge of the Court of Appeal. The appellants had brought to the attention of the court’s Deputy Registrar of the intention to exclude the notes by the retired judge through an oral application. Rule 33(5) of the Supreme Court Rules (the Rules) allowed for the making of oral applications and the appellants were entitled to that option until otherwise directed, as they were eventually, to file a formal application.
  3. The 4th respondent’s application to strike out the petition was not made in good faith under the circumstances considering its timing. It was filed barely a day after the mention before the Deputy Registrar and three days before the appellants could file their formal application. The 4th respondent had reasonable notice that the appellants faced challenges in obtaining the trial notes of the retired judge and that they intended to seek court’s intervention, albeit orally. To allow the action by the 4th respondent would be to validate sharp practice of law that the court would not sanction.
  4. Further, in considering the nature of the document to be excluded, the same was so far untraceable. There was no purpose to be served by stalling the appeal and continuing to wait for a document on which nothing might eventually turn. In addition, the judgment by the Court of Appeal, the subject of the instant appeal, was unanimous and the trial notes by the retired judge were not likely to fundamentally affect the record and it did not automatically render the appeal filed before the court fatal.
  5. The court exercised its discretion under rule 33(5) of the Rules in favour of the appellants and added that since the parties had already filed submissions on the substantive appeal and cross appeal, it was imperative that the legal and constitutional questions raised therein be determined on their merits without further delay.

Appellants’ application allowed, 4th Respondent’s application dismissed, with costs being in the appeal.

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