Weekly Newsletter 003/2021



Kenya Law

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Kenya Law
Case Updates Issue 003/2021
Case Summaries  

   
CONSTITUTIONAL LAW Quarantining members of the public without an order of a magistrate and forcing them to pay for their upkeep is contrary to section 27 of the Public Health Act on the Isolation of persons who have been exposed to infection

Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya National Commission on Human Rights (Interested Party) [2020] eKLR

Petition 140, 28 & 128 of 2020(Consolidated)

High Court at Nairobi

JA Makau, J

December 3, 2020

Download the Decision

Constitutional Law - fundamental rights and freedoms – right to health – where the Cabinet Secretary for the Ministry of Health issued a directive that required persons suspected to have contracted covid-19 to go into compulsory quarantine for public health protection to pay for their upkeep – whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was unconstitutional - Constitution of Kenya, 2010, articles 2(6) and 43; Public Health Act, Cap 242, section 27; ; Health Act (No. 21 of 2017), sections 5(1) and (2); International Covenant on Economic, Social and Cultural Rights, article 12(1).

Civil Practice and Procedure – pleadings – petitions – documents accompanying petitions – supporting affidavits vis a vis verifying affidavits -requirement that a petition be filed together with supporting affidavit - what was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition - whether verifying affidavits accompanying petitions had evidentiary value – Constitution of Kenya, 2010, article 1592)(d); Civil Procedure Rules, 2010, Order 4 rule 1.

Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – limitation to the right to access of health care services – requirement that a limitation to a right in the Bill of Rights had to be justifiable and reasonable - whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable – Constitution of Kenya, 2010, articles 2(6), 24, 43 and Sixth Schedule section 7; Public Health Act, Cap 242, section 27; Health Act (No. 21 of 2017), sections 5(1) and (2).

Civil Practice and Procedure – pleadings – pleadings in a claim for special damages - what was the effect of failure to plead a claim for specific damages in a claim for refund.

Words and Phrases- sub-judice – definition of sub-judice - before the court or judge for determination - Black’s Law Dictionary 10th Edition.

Brief Facts

The petitioners aggrieved that contrary to the express provisions of section 27 of the Public Health Act (PHA) the Cabinet Secretary, Ministry of Health (CS) forced persons required to go into compulsory quarantine for public health protection to pay for their upkeep yet the law required the State to foot their bills, filed the instant consolidated petitions. The 1st petitioner also contended that the CS issued Legal notice No. 46 of April 3, 2020, and Legal Notices Nos. 50, 51, 52, 53, and 54 of April 6, 2020 without both public participation and parliamentary approval being in violation of the Constitution of Kenya, 2010 (Constitution) and the Statutory Instruments Act, 2013.

The 3rd petitioner contended that the directive given by the CS had declined to acknowledge the sanctity of life and denying the poor Kenyans the right to medical services. Furthermore, he contended that quarantine was not given the sensitive attention it deserved but instead had been made punitive even against the poor. As such, he averred that the directive was presumptive, unenforceable as it undermined express provisions of the Constitution and thus had to be vacated.

The petitioners sought among others orders that; the decision to quarantine members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA; and the Government should refund in full the money each and every person who it quarantined was forced to pay for their upkeep.

Issues:

  1. Whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was unconstitutional.
  2. What was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition?
  3. Whether verifying affidavits accompanying petitions had evidentiary value.
  4. Whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable.
  5. What was the effect of failure to plead a claim for specific damages in a claim for refund? Read More..

Relevant provisions of the law

Constitution of Kenya, 2010

Article 94

(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.

Article 159

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(d) justice shall be administered without undue regard to procedural technicalities;

Civil Procedure Act

Section 6

No Court shall proceed with the trial of any suit or proceeding on in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such or proceedings is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.

Public Health Act

Section 27

Where, in the opinion of the medical officer of health, any person has recently been exposed to the infection, and may be in the incubation stage, of any notifiable infectious disease and is not accommodated in such manner as adequately to guard against the spread of the disease, such person may, on a certificate signed by the medical officer of health, be removed, by order of a Magistrate and at the cost of the local authority of the district where such person is found, to a place of isolation and there detained until, in the opinion of the medical officer of health, he is free from infection or able to be discharged without danger to the public health, or until the Magistrate cancels the order.

Held:

  1. A party filing a petition was obligated to file the petition together with an affidavit if he wished to rely on any document, which should be annexed to the supporting affidavit, which document should be served upon the respondent with the petition. Therefore, a petition without supporting affidavit with annextures to the affidavit contained mere allegations without affidavit evidence intended to accompany the petition to support allegations in the petition and that meant the petition was incomplete and incompetent.
  2. The verifying affidavit annexed to the 2nd petitioners’ petition did not meet the mandatory requirements as set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), as there was no single annexure attached to the verifying affidavit. The documents filed by the 3rd respondent were not accompanied by any supporting affidavit and as such they did not qualify to be annexures nor were they commissioned by the commissioner of oaths as exhibits to any affidavits.
  3. Under Order 4 rule 1 of the Civil Procedure Rules where verifying affidavit were intended to accompany plaints in verification of the correctness of the averments contained in the plaint were required to be properly presented before the court. The verifying affidavit filed by the 2nd petitioner was misplaced and of no legal effect whatsoever. The verifying affidavit and documents attached to the 3rd petitioner’s petition had no evidentiary value on the petitions. The requirement that a petition be accompanied by a supporting affidavit was not a procedural technicality as affidavit contained the evidence a party wished to rely on in support of his case.
  4. Article 159(2)(d) of the Constitution could not aide the 2nd and 3rd petitioners because the requirement that a petition be accompanied by a supporting affidavit was not a procedural technicality since an affidavit contained the evidence a party wished to rely on in support of the case. It was an important part of pleading that guided the parties to a matter. Thus, in absence of such vital evidence (affidavit evidence), the 2nd and 3rd petitioner’s petitions were fatally defective for lack of affidavit evidence in their support.
  5. The principle of sub judice was defined in section 6 of the Civil Procedure Act. Considering the pleadings in Petition No. 132 of 2020, Law Society of Kenya v CS of Health and others and Petition No. 140 of 2020 (the first petition), the constitutionality or otherwise of Legal Notices Nos. 50 to 54 were an issue in Petition No. 132 of 2020. The court pronounced itself when it delivered its judgment in Petition No. 132 of 2020 on June 25, 2020, on the same issues. To the extent that the petitions sought to challenge the same issues as regards constitutionality or otherwise of Public Health (COVID-19) Restriction of Movement of Person and Related Measures) Rules, 2020, were res judicata.
  6. It would indeed be a waste of judicial time to rehash the arguments in the instant petition where the High Court had already considered and pronounced itself on the very same issues most eloquently as it did in Petition No. 132 of 2020. Under the principle of res judicata, the court was barred from entertaining a matter by the same parties or those acting on their behalf, over the same issue or subject matter where the issue had been conclusively determined by a court of competent jurisdiction. Section 7 of the Civil Procedure Act was clear on res judicata and acted as a bar to such future proceedings as a way of bringing litigation to an end.
  7. Article 94(5) of the Constitution provided that the CS could make provisions having the force of law under authority conferred by legislation as he did. The provisions of the Statutory Instruments Act that allowed for implementation of statutory instruments were merely an expression of the legal principle of presumption of legality of legal instruments and Government action.
  8. The issues raised in the first petition were sub judice, pending determination in Petition 132 of 2020. The petition had already been determined. The instant consolidated petitions were res judicata as regards all similar issues raised and determined in Petition No. 132 of 2020.
  9. Parties were always bound by their pleadings and the issue of as to whether a declaration of a state of emergency was necessary and a condition precedent to the enactment and enforcement of the emergency policies and legislation did not form part of the pleadings. That issue was misplaced and could not be dealt with by the instant court.
  10. The 1st respondent acted properly and put in place policy measures as envisaged under the provisions of both the Health Act and the Public Health Act. The use of quarantine was internationally accepted as a means of containing pandemics like covid-19. The 2nd respondent further made provisions for protocols that specified how quarantine sites were to be administered.
  11. The decision to limit the use of Government quarantine facilities which were limited to more deserving cases as opposed to persons flagrantly breaching the measures put in place to contain the spread of pandemic was reasonable; widely accepted and recommended by the World Health Organization (WHO) in containment of the spread of Covid-19.
  12. The right to Health found expression in regional and international law which formed part of the Kenyan law by dint of article 2(6) of the Constitution which decreed that any treaty or convention ratified by Kenya formed part of the law of Kenya under the Constitution. The Fourth Schedule to the Constitution in Part 2 thereof provided in section 2 that county health services, including in particular county health facilities and pharmacies; and promotion of primary health care and functions of country governments.
  13. The Public Health Act (PHA) preceded the Constitution and the provision of section 7 of the Sixth Schedule to the Constitution would apply. According to section 7 of the sixth schedule to the Constitution, all law in force immediately before the effective date continued in force and would be construed with alternations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, therefore local government could be construed as county government.
  14. The issue related to section 27 of the PHA was not one of the issues in previous Petitions No. 132 of 2020 and Petition No. 120 of 2020. Under section 27, a person could be isolated based on opinion of a medical officer accompanied by an order of a magistrate and that the costs associated with the isolation were to be borne by the local authority of the district (state) where the isolated person was found.
  15. Considering section 27 of the PHA; section 5(1) and (2) of Health Act, 2017; article 2(6) of the Constitution; and article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the action of quarantining persons without an order from a magistrate and at their own cost was a violation of section 27 of the PHA, article 43(1)(a) of the Constitution and the relevant regional and international instruments. The local authority where the isolated person was found had the solemn constitutional and statutory duty to provide health care services to the people and that included but was not limited to shouldering the quarantine costs.
  16. The 1st petitioner’s claim for refund was one that had to be specifically pleaded and strictly proved being a claim for special damages. The 1st petitioner had neither pleaded the claim nor particularized the same nor specifically proved the same; such claim had to fail. Further, no such parties had been enjoined in the pleadings as petitioners or interested parties. No evidence had been produced in support of the claim. The claim could not therefore stand. In addition, such a claim was solely against county governments, who had not been made a party to the proceedings. It would be against the principle of natural justice and the Constitution to condemn county governments to refund such sums when they had not been enjoined and without affording them an opportunity to be heard on their defence.
  17. It would be contrary to provisions of the Civil Procedure Act and the rules of natural justice for the court to embark on determination on a non-pleaded subject matter and to what parties had not left to court to determine.

2nd and 3rd petitioners’ petitions dismissed; each party to bear own costs.

Orders

  1. The consolidated petitions were res judicata by virtue of Petition Nos 132 of 2020 and 120 of 2020 in most of the issues raised thereto save the issue (d) on whether quarantine for members of public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and whether it contravened the constitutional imperative of the rule of law under article 10 and 47 of the Constitution and (e) on whether the Government should refund the money each person who was quarantined and forced to pay for their upkeep.
  2. A declaration was issued that the decision to quarantine members of the public at various facilities without an order of magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and forcing pay for their upkeep contravened section 27 of the Public Health Act and was thereby unconstitutional.
  3. A declaration was issued that the Government should refund in full the money each and every person who it quarantined and was forced to pay for their upkeep was not particularized, specifically pleaded and strictly proved and the county governments who were required to make payments having not been joined as parties, the claim for refund was not proved and was declined.
  4. Prayers under numbers (c), (d), (e), (f), (g), and (h) were res judicata by virtue of courts’ decisions in Petitions No. 120 of 2020 and Petition No. 132 of 2020 and were accordingly dismissed.
CONSTITUTIONAL LAW

The Parliamentary Service Commission’s unilateral decision to determine and operationalize a housing allowance for Members of Parliament without consulting Salaries Remuneration Commission declared ultra vires and unconstitutional.

Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties) [2020] eKLR
Constitutional Petition No. 208 of 2019 Consolidated With Petition Numbers 185 and 339 of 2019
High Court at Nairobi
P Nyamweya, W Korir & J Mativo, JJ

December 10, 2020

Reported by Beryl Ikamari & George Kariuki

 

Download the Decision

Constitutional Law - Parliamentary Service Commission (PSC) – powers and functions of the PSC – whether the PSC had the mandate to set and make payments for accommodation or housing allowance for Members of Parliament (MPs) - Constitution of Kenya 2010, article127(6)(a); Parliamentary Service Commission Act, No 13 of 2012, section 18.

Constitutional Law - Salaries and Remuneration Commission (SRC) - powers and functions - whether the SRC had the mandate to reduce sitting allowances for parliamentary committee meetings and to also cap the number of meetings -whether the SRC had the exclusive mandate to set the amount, if it all, that would be paid as accommodation or housing allowance to Members of Parliament - Constitution of Kenya 2010, article 230(4); Salaries and Remuneration Act, No 10 of 2011.

Constitutional Law - fundamental rights and freedoms - equality and freedom from discrimination - legality of differential treatment - whether the SRC discriminated against MPs when it failed to set accommodation or housing allowance for MPs while doing the same for governors, deputy governors, the President and the Deputy President - Constitution of Kenya 2010, article 27.

Constitutional Law - institution of a constitutional petition - joinder of parties - whether members of independent constitutional commissions could be sued in their personal capacities for acts or omissions of the commissions - when would a commissioner bear personal responsibility for loss of public funds - Constitution of Kenya 2010, article 250(9); Public Finance Management Act, No 18 of 2012, section 66.

 

Brief Facts:

This consolidated petition arose from actions of the PSC to unilaterally prescribe to MPs housing allowances in lieu of the mandate constitutionally granted to the SRC. PSC secretly resolved to pay a monthly house allowance of Kshs. 250,000/= to each of the 418 MPs backdated to August 2018. Consequently, PSC paid backdated house allowances of Kshs. 2.25 million in April 2018 to each MP.

Aggrieved by this turn of events, two independent petitions were lodged before the constitutional court; namely Petition 185 of 2019 and Petition 208 of 2019.

The gist of the two petitions was that not only was the housing allowance benefits paid to MPs already contemplated in their gross pay but they also received a housing mortgage of Kshs. 20 million per term to cater for their housing needs. Additionally, MPs could not purport to compare themselves to deputy governors, governors, the deputy president, the president among other senior state officers whose job descriptions required special housing such as hosting state delegations at their official residences.

Additionally, PSC had sought SRC’s approval to pay MPs a housing allowance, which approval was declined. Despite the provisions of article 259(11) of the Constitution, PSC went ahead and authorized payment of the allowances.

The two petitioner’s case was that PSC’s unilateral decision had resulted in the loss of public funds in excess of Kshs 99,500,000/= per month and Kshs. 1.194 billion annually.

In response PSC lodged a cross petition (Petition 339 of 2019). PSC’s case was that on March 1, 2013 and March 8, 2013, the SRC published the remuneration and benefits for state officers serving in Parliament, the Executive, constitutional commissions, independent offices and county governments. Further, that the MPs’ remuneration was reduced from Kshs. 851,000/= to Kshs. 532,500/= a 37.4% reduction. Dissatisfied with this demotion of allowances and benefits, PSC began negotiations with SRC to resolve such issues as ‘facilities and benefits’ which negotiations hit a brick wall.

Further, SRC on July 7, 2017 abolished the Kshs. 5 million car grants that had been prescribed to MPs, reduced the sitting allowance for committee meetings and limited the meetings to a maximum of 16 meetings per month. SRC also reduced the number of children that could be covered by the medical cover from 5 to 4 children, without providing any reasons, and abolished medical ex-gratia assistance to MPs and their families who exceeded their medical cover entitlement. Lastly, SRC reduced housing mortgage for MPs from Kshs. 35 million down to Kshs. 20 million.

PSC’s case was that the SRC had interfered with the independence of Parliament by purporting to limit parliamentary business (by limiting the number of committee meetings per month). PSC also made a case for discrimination against MPs by the SRC seeing that the SRC had failed to prescribe a housing allowance for MPs as it had for other state officers.

PSC further contended that it was a body corporate that could sue and be sued in its own name. Therefore, the enjoinment of its members as respondents in the petitions was irregular since they had discharged their mandate in their official capacities as members of PSC and in good faith.

The three petitions were consolidated as they raised similar and related issues.

Issue:

  1. Whether the decision by the Parliamentary Service Commission (PSC) to make a payment to MPs for their accommodation was ultra vires and unconstitutional.
  2. Who as between the Parliamentary Service Commission (PSC) and the (SRC) had the legal mandate to make the payment for the accommodation of MPs?
  3. Whether the SRC interfered with the constitutional mandate and independence of the PSC and Parliament when it adjusted the remuneration and benefits payable to MPs.
  4. What legal instruments regulated the remuneration and benefits payable to MPs?
  5. Whether the SRC failed to set a house allowance for MPs and if so, whether it amounted to discrimination against MPs.
  6. Whether the SRC acted ultra vires its constitutional and statutory mandate in capping the number of remunerable meetings the MPs and PSC could hold in one month.
  7. Whether the suit against the 3rd to 12th respondents (members of an independent constitutional commission) and the 2nd Interested Party (individual Members of Parliament) was incompetent as they were sued in their personal capacities. Read More...

Held:

  1. In determining whether the decision by the PSC to make a payment to MPs for their accommodation was ultra vires and unconstitutional, it was important to strike a balance between SRC’s mandate under article 230 (4) of the Constitution of setting remuneration and benefits for all state officers and PSC’s mandate of provision of housing allowance or housing benefit to MPs under the ambit of “services and facilities” as under article 127 (6) (a) of the Constitution to ensure the efficient and effective functioning of Parliament.
  2. Despite being premised on the doctrine of constitutional supremacy, principles of constitutional interpretation called upon courts to reconcile two conflicting constitutional goals: one, to establish a state system with enough power to govern, and two, to find ways of constraining and regulating such power so that it was not abused. Therefore, the rule of law, and the related principles of legality and accountability were the central constitutional doctrines governing the exercise of public power.
  3. To demarcate the powers and functions of the two independent commissions, it was necessary to consider the input and meaning of salary and remuneration and salaries and benefits as provided under the Constitution as well as the subsidiary legislations governing the two bodies. According to the Salaries and Remuneration Act, salary and remuneration included the ordinary, basic or minimum wage or pay and any additional emoluments and benefits whatsoever payable, directly or indirectly, whether in cash or in kind, by an employer to an employee and arising out of the employment of that employee. The Act did not define the word benefit”. On the other hand, the Parliamentary Service Commission Act defined “services and facilities to include all means by which members of the National Assembly were officially assisted in performing their parliamentary duties. Just as the Salaries and Remuneration Act failed to define the phrase services and facilities.”, the Parliamentary Service Commission Act did not define the words “remuneration and benefits.”
  4. The argument by PSC that it was empowered to determine certain benefits for MPs to facilitate proper functioning of parliamentary business failed on several fronts, namely: -
    1. In PSC’s letter to SRC dated February 22, 2019 PSC alluded to a request for housing allowance as opposed to the impugned housing benefits. There was no mention of a facilitative allowance.” In fact, the phrases “service”, “benefits” and facilities” and “facilitative allowance” were only introduced in Petition No 339 of 2019 after the impugned payment was challenged in the other two petitions.
    2. The operative words in articles 127 (6) (a) of the Constitution– powers and functions of the PSC and 230 (4) (a) of the Constitution – powers and functions of the SRC, were “services and facilities” and “remuneration and benefits” respectively. In searching for the meaning of the said words, it was inevitable to consult dictionaries, judicial pronouncements and a consideration of their statutory context.
    3. The Black’s law dictionary defined “remuneration” to mean payment, compensation, the act of paying or compensating. On the other hand, it defined “a benefit” as an advantage or privilege. It also defined “fringe benefit” to mean a benefit (other than direct salary or compensation) received by an employee from an employer, such as insurance, a company car, or a tuition allowance.
    4. Judicial interpretation of the terms defined the terms “salary” and “remuneration” as follows: “salary" meant a recompense or consideration made to a person for his pains, industry or work for another person, wages, allowances or other remuneration for work or service; while “remuneration" ordinarily meant “reward, recompense, pay, wages or salary for service rendered".
    5. Taken in that context, therefore, remuneration meant payment for services rendered or work done (salary) while benefit meant the allowance paid by the State-to-State officers and public officers. Consequently, a house allowance was a specific allowance payable as part of employees’ remuneration to cater for their housing costs. Therefore, whether it was named as accommodation allowance, a house allowance or a facilitative allowance, the cross-cutting and relevant feature for those purposes was that the payment made in the instant case was meant to cater for the MPs accommodation during the performance of their official duties.
    6. The words “services and facilities” referred to the amenities, offices and equipment which were necessary for the MPs to perform their duties and therefore the function contemplated to PSC under article 127 of the Constitution and section 18 of the Parliamentary Service Commission Act.
    7. The distinction between allowances on one hand and services and facilities on the other, was made even clearer by the provisions of sections 19 and 20 of the Parliamentary Service Commission Act which demonstrated the services and facilities envisaged under article 127(6) (a) of the Constitution to assist the MPs in the performance of their duties were physical and logistical in nature, and not in the nature of payment of funds.
    8. A faithful reading of article 127 and the Parliamentary Service Commission Act therefore showed that PSC could not sustain the impugned meaning of “services and facilities” as extending to “facilitative housing allowance” for the MPs.
    9. Additionally, even if PSC’s argument that “services and facilities” ought to have been construed to mean “facilitative house allowance,” it would amount to suggesting the existence of a contradiction between articles 127(6) (a) and 230 (4) (a) of the Constitution.
    10. A reading of several judicial precedents on ambiguity between general versus specific provisions showed that general provision would not normally prevail over the specific and unambiguous provisions. The specific provision ought to have been construed as limiting the scope of the application of the more general provision. Therefore, if a general provision was capable of more than one interpretation and one of the interpretations resulted in that provision applying to a special field which was dealt with by a specific provision, in the absence of clear language to the contrary, the specific provision ought to prevail should there be a conflict.
  5. The payment made to MPs was a remunerative allowance and not a provision of a service and facility within the meaning of article 127 (6) (a) of the Constitution.
  6. SRC’s mandate, codified under article 230 of the Constitution and section 11 of the Salaries and Remuneration Act was to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers without regard to whether such a decision was unpalatable to those whose remunerations and benefits were subject to the mandate of SRC. Additionally, any advice or directive from the SRC had legal force on any person or institution addressed, including the PSC.
  7. The mandate of PSC as provided under article 127 of the Constitution and section 11 of the Parliamentary Service Commission Act was merely to provide services and facilities to ensure the efficient and effective functioning of Parliament. PSC erred in law by purporting to determine and operationalize housing allowances for MPs. Its argument that article 127 (6) (a) of the Constitution vested in it the mandate to set and provide a housing benefit to MPs was erroneous. PSC’s decision was therefore ultra vires its constitutional mandate and offended the principle of legality which required that decisions by public bodies flow from a legal rule/the law.
  8. The mandate to determine and set a housing or accommodation allowance, was a function exclusively and constitutionally vested in the SRC by article 230 (4) (a) of the Constitution and the Salaries and Remuneration Act.
  9. Only the SRC was clothed with the requisite power and authority to determine allowances and benefits payable to state officers including Members of Parliament.
  10. The Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations, 2013 was rendered void by virtue of Statutory Instruments Act, as was the reasoning in the case of Parliamentary Service Commission v Salaries Remuneration Commission; Attorney General & 3 others (Interested Parties), High Court JR No. 686 of 2017; [2018] eKLR. The repeal of the regulations meant that any remuneration of the MPs of the 11th Parliament and any other consequent Parliament coming into existence (the existing Parliament included) could only be determined by the SRC.
  11. Accounting officers of constitutional commissions, including the PSC, were expected to monitor, evaluate and oversee the management of public finances in the commission as per section 66 of the Public Finance Management Act.
  12. Article 226 (5) of the Constitution addressed the issue of recovery of lost public funds and stated that where the holder of a public office, including a political office, directed or approved the use of public funds contrary to law or instructions, the person was liable for any loss arising from that use and was required to make good the loss, whether the person remained the holder of the office or not. It was the responsibility of the accounting officers in the PSC to ensure that public finances were used lawfully and in a prudent manner. Fundamental to the use of public finance was regularity and propriety. Regularity meant compliance with the Constitution and the governing statute including obtaining required consents/approvals from the relevant bodies including the SRC.
  13. PSC’s failure to seek SRC’s consent or approval as the only body constitutionally mandated to set and pay salaries and remuneration of State officers contravened several statutory provisions including articles 230(4), 206 (4) and 259(11) of the Constitution.
  14. Accounting officers of independent bodies were obligated by law to comply with regularity and propriety and the need for efficiency, economy, effectiveness and prudence in the administration and use of public resources and to secure value for public money. Therefore, the accounting officers for the PSC and Parliament were culpable for failing to undertake their obligations under the Public Finance Management Act in that regard. The said accounting officers therefore broke the law and it was upon them to recover the money paid to the MPs.
  15. MPs could not purport to compare themselves to deputy governors, governors, the deputy president, the president among other senior state officers whose job descriptions required special housing such as hosting state delegations at their official residences. It was lawful to accord different treatment to different categories of persons if the circumstances so dictated.
  16. The differential treatment between MPs and other superior state officers did not necessarily amount to discrimination. Anyone purporting to rely on article 27 of the Constitution was required to establish that because of the distinction made between the claimant and others, the claimant was denied equal protection or benefit of the law. It did not necessarily mean that differential treatment or inequality would per se amount to discrimination and a violation of the constitution.
  17. A three-step test was established to determine discrimination due to differential treatment. The first step was to establish whether the impugned decision differentiated between different persons. The second step entailed establishing whether that differentiation amounted to discrimination. The third step involved determining whether the discrimination was unfair.
  18. PSC failed to prove how the differential treatment amounted to a constitutional violation.
  19. The mandate to set and determine remuneration including allowances, was a function constitutionally vested in the SRC by article 230 (4) (a) of the Constitution and the Salaries and Remuneration Act. No ground was established by the PSC to merit this court’s interference in the manner in which the SRC set and determined the number of MPs remunerable meetings.
  20. Members of the PSC who had been sued in their personal capacities had objected their enjoinment in the suit. Article 250 (9) of the Constitution provided that a member of a commission, or the holder of an independent office, was not liable for anything done in good faith in the performance of a function of office. Therefore, 3rd to 12th respondents enjoyed immunity for actions performed in good faith in the performance of their duties.
  21. The petitioners did not endeavour to establish bad faith on the part of the 3rd to 12th respondents. Therefore, the suit against the 3rd to the 12th respondents in their personal capacities offended article 250(9) of the Constitution, and was therefore unsustainable.
  22. Members of Parliament enjoined in the suit were however found to have been bona fide parties to the petition. They had an identifiable stake or legal interest/duty in the proceedings in the constitutional petition. The named MPs were the beneficiaries of the impugned payments set and facilitated by the PSC, and would be directly affected by the decision of the court on the said payment, particularly because it had adverse effects.

Orders:-

  1. The prayers sought in petition No. 339 of 2019 by the SRC were declined, and the petition dismissed with no order as to costs.
  2. Petition No. 208 of 2019 and Petition No. 185 of 2019 filed by the 1st and 2nd petitioners respectively were found to be meritocratic and the following orders granted:
    1. A declaration that the setting and approval of the payment of an accommodation or house allowance to MPs was a function exclusively vested in the Salaries and Remuneration Commission by Article 230 (4) and (5) of the Constitution.
    2. A declaration that the decision of the Parliamentary Service Commission to set and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure of remuneration and benefits of all state officers in Parliament that was set and communicated by the Salaries and Remuneration Commission, and without the approval of the SRC was in violation of article 230 (4) and (5) of the Constitution.
    3. A declaration that the decision of the Parliamentary Service Commission to set and approve the payment of an accommodation or house allowance to MPs contrary to the structure of remuneration and benefits of all state officers in Parliament as set out and communicated by the SRC, and without its approval was ultra vires the prescribed constitutional powers of PSC contained in article 127(6) of the constitution.
    4. A declaration that the decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to remuneration and benefits of all state officers in parliament that was set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration was in violation of the provisions of article 259(11) of the Constitution that required the prior approval of Salaries and Remuneration Commission.
    5. A declaration that the decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure of remuneration and benefits of all state officers in Parliament that was set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration Commission was an exercise of state authority not authorised by the Constitution and in violation of the provisions of article 2(2) of the Constitution
    6. A declaration that the decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure remuneration and benefits of all state officers in Parliament as set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration Commission the functions was in violation of the provisions of article 73(1) of the Constitution - that any State authority assigned to a state officer was a public trust that ought to have be exercised in a manner consistent with the purposes and objects of the Constitution.
    7. A declaration that the decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure of Remuneration and Benefits of all State Officers in Parliament that was set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration Commission the functions that are exclusively vested to the SRC was in violation of the binding national values and principles of governance prescribed in article 10 of the Constitution on the rule of law, transparency and accountability.
    8. An order of certiorari to bring into court and remove (quash) the decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure of remuneration and benefits of all state officers in parliament as set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration Commission in disregard of article 230(4) (a) of the Constitution.
    9. An order of mandamus directing the clerk of the Senate and the clerk of the National Assembly to, within a period of twelve calendar months from the date of order, recover in full from the salaries and allowances of each Member of Parliament the entire amount of monies paid as accommodation and/or house allowance to the Members of Parliament, pursuant to the illegal and unconstitutional decision of the Parliamentary Service Commission to set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to the structure of remuneration and benefits of all state officers in parliament as set and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration Commission.
    10. Each party was ordered to bear their respective costs in the two petitions.
CIVIL PRACTICE AND PROCEDURE

Decretal sums are generally not a form of income that is subject to tax deductions.

AM Bahaji & Company Limited v Kenya Ports Authority [2020] eKLR
Civil Suit 410 of 2002
High Court at Mombasa
DO Chepkwony, J
November 24, 2020
Reported by Beryl Ikamari

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Civil Practice and Procedure - decree - satisfaction of decrees -whether a decretal sum awarded under the terms of a consent letter filed in court, could be subjected to tax deductions which were not provided for in the consent letter.

Taxation Law - income tax - withholding tax - whether a decretal sum was a form of income which could be the subject of withholding tax deduction, where the decree of the court did not provide for such a tax deduction.

Brief facts:

The applicant applied for a stay of execution. The grounds for the application were that after judgment had been entered, the parties negotiated and agreed on a decretal sum of USD.1,136,552.12, payable by the defendant to the plaintiff, as per the terms of a consent letter that had been filed in court. The parties also agreed to a sum of Kshs.2,137,200/= payable as costs to the plaintiff’s advocate.

The applicant (who was also the defendant) stated that it paid the amount due save for the fact that it deducted USD.104,419.97 as withholding tax that was payable to the Kenya Revenue Authority. The plaintiff filed a replying affidavit stating that the decree had not been settled fully because the consent amount agreed on by the parties was not subject to deductions. The plaintiff however, conceded that a deductible discount of USD22,000 had been given to the defendant.

Issue:

  1. Whether a decretal sum awarded by virtue of a consent letter filed in court could be subjected to a tax deduction not reflected in the consent letter.
  2. Whether a decretal sum was a form of income that could be subjected to taxation. Read More...

Held:

  1. The Black's Law Dictionary, 8th Edition, defined withholding tax as a portion of income tax that was subtracted from salary, wages, dividend or other income before the earner received payment. That definition as read together with section 3 of the Income Tax Act, did not lead to the conclusion that a court decree was a taxable item. If the intendment of the income tax law was to have a court decree as a taxable item, the legislature would have provided for that clearly. A court decree was not a form of income.
  2. Income under the Black's Law Dictionary was defined as the return in money from one’s business, labour, or capital invested. Therefore, a decretal sum was not income.
  3. There was no evidence that the deducted sum of money was paid to the Kenya Revenue Authority on July 20, 2020 as alleged.
  4. The plaintiff was at all times entitled to an amount of USD.1,136,552.12 being the decretal amount agreed on inter parties by a consent filed and adopted as a judgment of the court on May 13, 2020. If there was an oversight where in statutory deductions had been overlooked, the same should have been suggested, proffered and negotiated.
  5. The applicant was under no obligation to retain portions of the decretal sum and remit the same to the Kenya Revenue Authority. The decretal sum was not an income for purposes of withholding tax under the Income Tax Act. The deductions made on account of withholding tax were illegal and unsupported by the law.

Application dismissed with costs.

JURISDICTION

Petition raising questions on whether there were provisions of the Constitution that were not capable of amendment referred to the Chief Justice for the empaneling of a bench of an uneven number of judges, being not less than three judges.

David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae) [2020] eKLR

Petition No E282 of 2020

High Court at Nairobi

AC Mrima, J

November 30, 2020

Reported by Beryl Ikamari

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Jurisdiction - jurisdiction of the High Court - jurisdiction to determine questions related to constitutionality - whether the High Court could determine a petition which sought declarations that certain provisions of the Constitution were incapable of being amended - Constitution of Kenya 2010, article 165(3).

Civil Practice and Procedure - preliminary objection - nature of a preliminary objection - whether a preliminary objection could contain points of law that require a consideration of evidence.

Constitutional Law - judiciary - judges - empanelment of a bench of an uneven number of judges being not less than three - circumstances under which the High Court would certify that a matter raised substantial questions of law warranting the empanelment of a bench of judges - Constitution of Kenya 2010, article 165(4).

Brief facts:

The petition sought various declarations meant to assert applicability of various judicial doctrines to Kenya's Constitution. The doctrines included the doctrine of the basic structure of a Constitution, the doctrine and theory of unamendability of eternity clauses, the doctrine and theory of constitutional entrenchment clauses and unamendable constitutional provisions. The petitioner sought declarations whose import was that certain provisions of the Constitution could not be amended either under article 256 of the Constitution by Parliament or through popular initiative under article 257 of the Constitution.
The provisions which the petitioner said were in the form of the basic structure, entrenchment clauses or eternity provisions of the Constitution of Kenya 2010 were Chapter One on sovereignty of the people and supremacy of the Constitution, Chapter Two on the Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary .
The petitioner filed an application seeking an order that the petition raised substantial questions of law under article 165(3)(b) and 165(3)(d) of the Constitution and for the referral of the petition to the Chief Justice for assignment of an uneven number of Judges, being not less than three to hear it.
The 1st respondent filed a preliminary objection. Generally, the 1st respondent stated that the petition was non-justiciable as there were no justiciable issues and it were not ripe. The 1st respondent's preliminary objection was also premised on the ground that the petition sought an advisory opinion which court lacked jurisdiction to issue. The 2nd respondent also raised a preliminary objection which was inter alia based on the issue of justiciability and ripeness, the petition being speculative and anticipatory and it being scandalous and vexatious.
The 3rd respondent's preliminary objection was premised on grounds that the petition was theoretical, that it sought to challenge the validity and legality of the Constitution, which was contrary to article 2(3) of the Constitution, it was frivolous, incompetent and vexatious, it did not disclose any infringement or violation of the petitioners' rights and that the court lacked jurisdiction to hear and determine the petition.
Three applications were also made for the joinder of three amici curiae.

Issue:

  1. Whether the High Court had jurisdiction to hear and determine a petition, that sought declarations to the effect that certain provisions of the Constitution were subject to doctrines of the basic structure of the Constitution, eternity clauses, constitutional entrenchment clauses and unamendable constitutional provisions, and they could not be amended.
  2. Whether a preliminary objection could be based on a point of law which required consideration of evidence.
  3. When would the High Court issue certification that a matter raised substantial questions of law warranting the empanelment of an expanded bench? Read More...

Held:

  1. A preliminary objection was a point of law which had been pleaded or which arose by clear implication out of the pleadings and, which if argued as a preliminary point, would dispose of the suit. The objections raised fell short of standing as preliminary objections. The issues raised were highly contested and largely dependent on evidence. For example, there was no concurrence that the parliamentary Bills annexed in support of the petition amounted to a threatened violation of the Constitution.
  2. Jurisdiction as defined in Black's Law Dictionary, 9th Edition, was the court's power to entertain, hear and determine a dispute before it. A court's jurisdiction was derived from the Constitution, statute or a settled judicial precedent. Jurisdiction was a central issue in court proceedings. A court that acted without jurisdiction acted in vain. Issues about jurisdiction were capable of being raised at any stage in proceedings.
  3. There was no doubt that the supremacy of the Constitution was not subject to challenge. The petition aimed to defend and protect the Constitution and not to challenge the supremacy of the Constitution or sovereignty of the people. What the petitioners sought was for the court to clearly pronounce itself on the parameters which would prevent the destruction of what the petitioners referred to as the basic structure of the Constitution, during the process of constitutional amendment.
  4. The court had jurisdiction to hear and determine the petition under article 165(3) of the Constitution.
  5. The petitioner had an obligation to demonstrate with some degree of precision the right, fundamental freedom or part of the Constitution that it alleged had been violated or was threatened with violation, the manner or evidence of the violation or threatened violation and the relief it sought for that violation or threatened violation. Proof was based on evidence.
  6. An allegation of a threat or violation of rights, fundamental freedoms or the Constitution was a matter of fact. Such a factual allegation could only be dealt with by presentation of evidence. Preliminary objections could not be used to contend that the Bills annexed to the petition did not amount to evidence of a threatened violation of the Constitution. A preliminary objection had to be based on settled facts and it could not be used to challenge the quality of evidence in support of a petition.
  7. The question as to whether the petition was non-justiciable on account of the doctrine of ripeness could be canvassed at an appropriate manner and at an appropriate time. Out of abundance of caution, the question as to whether what the petition sought was an advisory opinion could also be canvassed an appropriate time and manner.
  8. The principles governing certification by the High Court that a matter raised a substantial question of law so as to warrant the empanelment of an expanded bench were settled in judicial precedent. The petition met the set criteria. It was of immense public interest; the issues raised were not only weighty but also complex and unsettled. The issues fell within the terms of articles 165(3)(b) or 165(3)(d) of the Constitution and the petitioner crafted clear issues of law to be dealt with.

Orders : -

  1. The High Court was seized of the jurisdiction to deal with the petition dated September 16, 2020.
  2. The preliminary objection dated September 29, 2020, the preliminary objection dated October 2, 2020 and the undated preliminary objection were struck out with no order as to costs.
  3. It was certified that the petition dated September 16, 2020 raised substantial questions of law as to warrant an expanded bench of the High Court.
  4. The matter was referred to the Honourable the Chief Justice of the Republic of Kenya to assign an uneven number of judges, in terms of article 165(4) of the Constitution to hear and determine it.
  5. The applications for joinder were to be dealt with by the expanded bench.

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