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28th June

Issue 26/2013

CASE OF THE WEEK

A Senator can engage in other gainful employment

John Okelo Nagafwa v Independent Electoral and Boundaries Commission
High Court at Busia
Election Petition No 3 of 2013
F.Tuiyott J
June 5, 2013
Reported by Andrew Halonyere & Cynthia Liavule

Issues

1.Whether a member of the senate was a full time state officer who was barred by article 77(1) of the Constitution from participating in any other gainful employment.
2.Whether failure by the deponent to state his place of abode was a substantive omission that rendered his Affidavit fatally defective.
3.Whether section 23 of the Leadership and Integrity Act applied to elected State Officers

Electoral Law – election petition – affidavits – effect of failure to state place of abode in affidavit-whether failure to state place of abode was fatally defective to the affidavit-Election Petition Rules rule 12(6), 15(7)-Civil Procedure Rules 2010,order 19

Constitutional Law –leadership and integrity-restriction on activities of State officers- whether a senator could sign pleadings and act as counsel in an election petition-whether such conduct was in contravention of Article 77(1) of the Constitution and section 23 of the Leadership and Integrity Act-Constitution of Kenya, Article 77(1),Leadership and Integrity Act, section 23

Statutes – interpretation of statutes – whether section 23 of the Leadership and Integrity Act applied to elected State officers-whether a senator’s political neutrality would be compromised by giving legal representation in an election petition

Constitution of Kenya, 2010
Article 77(1)- (1) A full-time State officer shall not participate in any other gainful employment.
(2) Any appointed State officer shall not hold office in a political party.
(3) A retired State officer who is receiving a pension from public funds shall not hold more than two concurrent remunerative positions as chairperson, director or employee of -
(a) a company owned or controlled by the State; or
(b) a State organ.
(4) A retired State officer shall not receive remuneration from
public funds other than as contemplated in clause (3).

Leadership and Integrity Act 2012

Section 23-
(1) An appointed State officer, other than a Cabinet Secretary or a member of a County executive committee shall not, in the performance of their duties -

(a) act as an agent for, or further the interests of a political party or candidate in an election; or

(b) manifest support for or opposition to any political party or candidate in an election.

(2) An appointed State officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality of the office subject to any laws relating to elections.

(3) Without prejudice to the generality of subsection (2), a public officer shall not

(a) engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;

(b) publicly indicate support for or opposition against any political party or candidate participating in an election.

Section 26

(1) Subject to subsection (2), a State officer who is serving on a full time basis shall not participate in any other gainful employment.

(2) In this section, "gainful employment" means work that a person can pursue and perform for money or other form of compensation or remuneration which is inherently incompatible with the responsibilities of the State office or which results in the impairment of the judgment of the State officer in the execution of the functions of the State office or results in a conflict of interest in terms of section 16.

Election Petition Rules

Rules 12(6) and Rule 15(7)

The provisions of Order 19 of the Civil Procedure Rules, 2010 and the Oaths and Statutory Declarations Act shall apply to affidavits under this rule.

Civil Procedure Rules 2010
Order 19 Rule (4) - provides the particulars of a deponent which must be stated in every Affidavit:
Every affidavit shall state the description, true place of abode and postal address of the deponent, and if the deponent is a minor shall state his age.

Held
1.A deponent in an election petition had to disclose his true physical aboard and failure to do so rendered his affidavit fatally defective. That was more so in situation where the issue of personal service was of paramount importance since the deponent could deliberately want to cover up his place of residence in a bid to show that he was not personally served.

2. The petitioner had not shown what prejudice he would have suffered by the defective affidavit. The Court was not willing to strike out the entire response merely because of an omission in the Affidavit that was not material to the controversy at hand. That would not have been a just way of resolving the public interest dispute.

3. Nowhere else in the Constitution, apart from Article 77 was the term "full time state officer" used. Article 250(5) provided that members of Commissions created by Article 248 could serve on a part-time basis and that obviously was the opposite of full time basis. Members of those Commissions were also state officers within the meaning assigned to them. The import of those provisions was that not all the persons defined as state officers were expected to work on a full-time basis.

4. The following issues were pertinent in determining whether Members of Parliament and County Assembly were also in the category "expected to work on a full time basis."

i.What was the role, duty and responsibility of a Member of Parliament?
ii. How much time would a Member of Parliament be engaged in the Parliamentary and non-Parliamentary functions of the office?
iii. The nature of remuneration, allowances and benefits of a Member.
iv. The experiences of other jurisdictions with similar systems of Government.

In the instant case neither did the parties place sufficient material nor did they articulate these issues in any particular depth and therefore the Court could not determine the question whether or not a Senator was a full-time State officer.

5. Article 77(1) was silent as to the meaning of the term "gainful employment" but it was defined in section 26 of the Leadership and Integrity Act. There being no suggestion that the meaning assigned to the term by the Act was inconsistent with the Constitution, the provisions of article 77(1) of the Constitution and section 26 of the Act were to be read together.

6. Even if a Member of Senate was to be involved in other business of the House such as Committees, Parliamentary business could not engage a member fully from Monday to Friday; 8.00a.m to 5.00p.m.In respect to non-parliamentary business, there was no regulation governing work hours.

7. The petitioner had not persuaded the court that the Senator had used up public time in preparing for and participating in the Election Petition. No evidence had been shown to the court to demonstrate that the senator’s conduct was inherently incompatible or fundamentally in conflict with his role as a member of the Senate.

8. Section 23 of The Leadership and Integrity Act was a provision on political neutrality expected of appointed state officers. The senator held an elective position. Elected members of Senate were politicians. The provisions of section 23 did not apply to them. Even if it was to be assumed that by representing the 3rd Respondent the senator was pursuing a political agenda that would not be inimical to his office as a Member of the Senate.

Application dismissed with costs

Cases referred to
1. Bungoma Election Petition No.1 of 2013
2. Milka Masingo –vs- Robert Wekesa Mwembe & 2 others)
3. Samuel M. Nganga –vs- The Minister For Justice, National cohesion & Constitutional affairs & Another [2013] e KLR Nrb HCC Petition No.354 of 2012

SELECTED NOTICES FROM THE KENYA GAZETTE

Kenya Gazette Vol CXV – No 96 – Dated June 28, 2013

The Post-Humous Award.
The National Council for Law Reporting Act - Appointments.
The Kenya Law Reform Commission Act - Appointment.
The Constitution of Kenya - Delegation of Powers.
The Truth Justice and Reconciliation Act - Notification.
The County Governments Act - Appointments.
The Trust Land Act - Setting Apart of Land.
The Registration of Titles Act - Issue of Provisional Certificates.
The Land Registration Act - Issue of a New Certificate of Lease.
The Registered Land Act - Issue of New Land Title Deed, etc.
The Land Act - Corrigendum, etc.
The Customs Services Department - Goods to be sold at Customs Warehouse.
Probate and Administration.
The Energy Tribunal at Nairobi - Ruling.
The Medical Practitioners and Dentists Act - Approved Institutions.
The Bankruptcy Act - Receiving Order and First Creditors’ Meeting.
The Physical Planning Act - Completion of Part Development Plans.
The Environmental Management and Co-ordination Act - Environmental Impact Assessment Study Reports, etc.
Closure of Roads.
Business Transfer.
Disposal of Uncollected Goods.
Loss of Policies.
Change of Names.

SUPPLEMENT Nos. 89 and 90
Legislative Supplement
LEGAL NOTICE NO. PAGE
102–116 - The Provisional Collection of Taxes and Duties Order, 2013, etc.

SUPPLEMENT Nos. 91 and 92
Bills, 2013
The Supplementary Appropriation Bill (No. 2) 2013.
The Appropriation Bill, 2013.

GAZETTE NOTICE NO. 8651
POST-HUMOUS AWARD

IN RECOGNITION of distinguished services rendered to the Nation in various capacities and responsibilities, I Uhuru Kenyatta, President and Commander-in-Chief of the Defence Forces of the Republic of Kenya confer Post-Humous Award and Honour to the following person:

The Order of the Burning Spear

The Third Class: The Moran of the Order of the Burning Spear (M.B.S.)

The late Joseph Musa Kamsa

Dated the 26th June, 2013.

UHURU KENYATTA,
President.

GAZETTE NOTICE NO. 8652
THE NATIONAL COUNCIL FOR LAW REPORTING ACT
(No. 11 of 1994)
APPOINTMENT

IN EXERCISE of the powers conferred by section 7 (1) of the National Council for Law Reporting Act, the Attorney-General on recommendation of the National Council for Law Reporting appoints -

MICHAEL MUCHIRI MURUNGI

to be the Editor of the National Council for Law Reporting, for a period of three (3) years, with effect from the 1st February, 2013.

Dated the 18th June, 2013.

GITHU MUIGAI,
Attorney-General.

GAZETTE NOTICE NO. 8653
THE KENYA LAW REFORM COMMISSION ACT
(No. 9 of 2013)
APPOINTMENT

IN EXERCISE of the powers conferred by section 11 (1) of the Kenya Law Reform Commission Act, 2013, the Attorney-General appoints -

Margaret Kobia (Prof.),
Kennedy Kihara,
Shaukat Abdulrazak (Prof.),
Joseph Siror (Dr.),
Chacha Odera,
Josephine Mong’are,
Vincent Otieno Oluoch,
Fredrick Collins Omondi,

to be members of the Selection Panel for the purpose of selecting nominees for appointment as the chairperson and members of the Kenya Law Reform Commission, under section 8 of the Act.

Dated the 26th June, 2013.

GITHU MUIGAI,
Attorney-General.


GAZETTE NOTICE NO. 8654
THE NATIONAL COUNCIL FOR LAW REPORTING ACT
(No. 11 of 1994)
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 (1) (e) of the National Council for Law Reporting Act, the Attorney-General nominates -

CHRISTINE AGIMBA

to be a member of the National Council for Law Reporting, for a period of three (3) years, with effect from the 10th February, 2013.

Dated the 18th June, 2013.

GITHU MUIGAI,
Attorney-General.

GAZETTE NOTICE NO. 8655
THE CONSTITUTION OF KENYA
DELEGATION OF POWERS

IN EXERCISE of the powers conferred by Article 157 (9) of the Constitution, the Director of Public Prosecution orders that all the powers vested in him under Article 157 (6) (a) of the Constitution shall be exercised by the persons named in the schedule, acting in accordance with the general or special instructions and subject to such other conditions as the Director of Public Prosecutions may, from time to time, stipulate.

SCHEDULE


P/No

Rank

Name

2002013261/231509

C.I

Elijah Chege Macharia

1989137216/233726

I.P.

Joshua Nyambu Shoka

80027723/37745

P.C.

Charles Nyoka

Dated the 20th June, 2013.

KERIAKO TOBIKO,
Director of Prosecutions.

GAZETTE NOTICE NO. 8656
THE TRUTH, JUSTICE AND RECONCILIATION ACT
(No. 6 of 2008)
NOTIFICATION

IN EXERCISE of the powers conferred by section 48(1),(2) and (3) of the Truth, Justice and Reconciliation Act, the Commission notifies the general public that its Report which was submitted to the President on the 21st May, 2013 has been published.

Dated the 7th June, 2013.

BETHUEL KIPLAGAT,
Chairman,
Truth Justice and Reconciliation Commission.

GAZETTE NOTICE NO. 8657
THE CONSTITUTION OF KENYA
THE COUNTY GOVERNMENTS ACT
(No. 17 of 2012)
NYANDARUA COUNTY EXECUTIVE COMMITTEE
APPOINTMENT

IN EXERCISE of the powers conferred by article 179 (2) (b) of the Constitution as read with sections 30 (2) (d) (e) and 35 of the County Government Act, 2012, and upon approval by the County Assembly in its session held on 13th June, 2013 I, Daniel Waithaka Mwangi, Governor of Nyandarua County, appoint the persons named in the first column of the schedule, to the members of the Nyandarua County Executive Committee responsible for the matters respectively specified in the second column of the schedule.

SCHEDULE

Name of Member

Responsibilities

Nelson Ngaruiya Njoroge

Finance and Economic

Agatha Wamuyu Thuo

Agriculture, Livestock and Fisheries

Peter Kung’u Mbugua

Health Services

Peter Muigai Macharia

Education, Youth, Children Affairs Culture and Social Services

Charles Mugo Chiuri

Roads, Public Works and Transport

Judy Nyambura Muhia

Industrialization, Cooperative Development, Tourism and Wildlife.

Geofrey Nderi Ndiani

Lands, Housing and Physical planning

Grace Wanjiru Gitonga

Water, Energy, Environment and Natural Resources

George Ndung’uKimani

Legal and Public Services

Dated the 25th June, 2013.

DANIEL MWANGI WAITHAKA,
Governor, Nyandarua County.
MR/2728325

GAZETTE NOTICE NO. 8658
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described on the schedule hereto has been duly set apart in accordance with the provisions of part IV of the Trust Land Act, for the purposes specified in the said schedule.

Place. - Masalani, Tana River.
Purpose. - Islamic Charity Project.
Area. - 88.3533 hectares approximately.

The land is situated approximately 7 kilometres to the south of Majengo, Masalani Township. The boundaries are demarcated on the ground and are described as follows:
Starting from point TNI which is a A.I.C., from which Trig. Skt 17 and Skt 18 are 1,350 kilometres and 2,510 kilometres distant on bearing of 1330 00' 00" and 780 00' 00", respectively.

Thence for a distance of 502.93 metres on a bearing of 080 48' 24" to point TN2; thence for a distance of 2,007.8 metres on a bearing of 1260 52' 53" to point TN3 an A.I.C.; thence for a distance of 50,014 metres on a bearing of 1860 25' 43" to point TN4 an A.I.C.; thence for a distance of 2,024.64 metres on a bearing of 3000 31' 39" to starting point.
All bearings given above are magnetic.

A plan of the area may be inspected at the office of the District Commissioner, Kilifi.

Dated the 21st June, 2013.

Z. A. MABEA,
Commissioner of Lands.
MR/2728333

GAZETTE NOTICE NO. 8633
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED HIGH-RISE APARTMENTS, ON PLOT L.R.
NO. 1870/11/251 AND 1870/11/162 OFF GENERAL MATHENGE
ROAD IN WESTLANDS, NAIROBI COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Portofino Properties Limited) is proposing to construct on a three acre plot; a total of 43 high-rise residential units in six (6) blocks, parking area on the ground floor, and a sewage treatment plant on Plot L.R. No. 1870/11/251 and 1870/11/162 off General Mathenge Road in Westlands, in Nairobi County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Nairob County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

ROBERT ORINA,
for Director-General,
National Environment Management Authority.
MR/2727321

GAZETTE NOTICE NO. 9031
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED WATERMAN PETROL STATION ON
PLOT L.R. NO. MAVOKO TOWN BLOCK II/367, IN KATANI
TOWN, MACHAKOS COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Waterman Katani Ltd.) is proposing to put up a petrol station On Plot L.R. No. Mavoko Town Block II/367, in Katani Town, Machakos County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Machakos County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR/2728274

GAZETTE NOTICE NO. 9032
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED PETROL SERVICE STATION ON LR.
NO.MBOONI/ KALAWANI/1609, MAKUENI COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Jackson Muthoka Kieti) intends to construct a petrol service station consisting of 3No. underground tanks, a tyre centre, air pump area, car wash, generator room, service bay and a three sets of dispensing pumps with an overhead canopy. There will also be a shops area that will include a shop, 2No stores, the manager’s office, two toilets, a cyber café, late night chemist, accommodation rooms, a conference room, septic tank, kitchen/Fast food and a liquor store. There is also a verandah, acceleration and deceleration lane, and pavements for easy circulation within the facility.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Makueni County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/2519476

GAZETTE NOTICE NO. 9033
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED SILVER SERVICE STATION ON L.R. NO.
MGUMOPATSA/MAZERAS/46/KILIFI COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Goldnest Trading Co. Ltd.) is proposing to construct a fuel service station on Plot L.R. No. Mgumopatsa/Mazeras/46/Kilifi County consisting of 4 fuel dispensing pumps, 3 underground tanks, carwash, lube store, tyrecentre, service bay, generator and compressor rooms and washrooms.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Kilifi County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

ROBERT ORINA,
for Director-General,
National Environment Management Authority.
MR/2728325

National Council for Law Reporting
Milimani Commercial Courts Building,
Ground Floor
P.O Box 10443 - 00100, Nairobi Kenya.
Tel: (254 020) 2712767, 2719231
Fax: (254 020) 2712694