Newsletter Issue 007/2013

10-12-2013 Kenya Law Newsletter | Issue 007/2013



Kenya Law

Weekly Newsletter


Entry requirements to the Kenya School of Law are not subject to exemptions

Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others
Civil Appeal No 121 of 2013
Court of Appeal at Nairobi
D K Maraga, G B M Kariuki, S Gatembu Kairu, JJA
 November 22, 2013
Reported by Nelson K Tunoi & Beatrice Manyal

Download the Decision

Brief Facts
The appellant (Eunice Cecilia Mwikali Maema) upon completion of her Bachelor of Laws (LLB) at Coventry University in England and Master of Laws (LLM) degree in University of Warwick in England in 2011 applied to be admitted to the Advocates Training Programme (ATP) for the 2013/2014 Academic Year. She however received a regret letter from the Kenya School of Law’s (KSL) Director on the basis that her LLB degree did not meet the threshold of the 16 core subjects as prescribed by law for purposes of admission to ATP.

Aggrieved by that decision she petitioned the High Court seeking declarations that she had complied with all requirements for admission to the ATP under Legal Notice 169 of 2009. She sought an order of certiorari to quash the decision contained in the letter rejecting her application for admission to the ATP; an order of mandamus to compel KSL and the Council to admit her to ATP. The High Court (Isaac Lenaola J) dismissed the appellant’s petition hence the appeal.

It was argued by the appellants counsel that when the appellant applied for admission the law did not require completion of the 16 core subjects; that the requirement only came with the enactment of the Legal Education Act of 2012, which could not apply retrospectively. They submitted that Legal Notice 170 of 2009 had nothing to do with admission with ATP but only dealt with accreditation of legal education institutions in Kenya. It only required universities to offer the 16 core subjects and there was no requirement that the students had to take those subjects.
Further that if some subjects had not been covered at the university than they should be undertaken during the ATP at KSL.

The respondents however argued that Legal Notice 169 did not contain the councils prescribed examinations but they were set as core subjects in the Legal Notice 170 of 2009 to be offered by all accredited universities.  That other applicants in a similar position as the applicants had taken the missing subjects at locally accredited universities
 
Issue
  1. Whether it was a legal requirement for an applicant to have covered the 16 core subjects at the LLB degree Programme prior to application for admission to the Kenya School of Law.
 
Held
  1. While the under graduate Programme offered by any accredited institution had to compromise core units, there was no express requirement that a student undertaking the Programme at such institution had to take those units.
     
  2. Students enrolling for legal education Programmer at universities or other institutions did so for a variety of reasons. Some might or might not have wished to seek postgraduate admission to the ATP. However, for those who wished to gain admission to the ATP at KSL, the Council, under Regulation 5(2) (a) of the Council of Legal Education (KSL) Regulations, 2009 set relevant qualifying examinations.
     
  3. The relevant qualifying examinations had to include the 16 core subjects prescribed for the universities under Paragraph 20 of Part III of the Third Schedule to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations.
     
  4. The 16 identified subjects or units were so central and important that for purposes of regulating standards, an under graduate Programme that did not include those units failed the test of accreditation. The Council could not on the one hand determine certain subjects to be core for purposes of accrediting an institution and at the same time not consider them as core for purposes of qualifying for admission to the advocates training Programme at the School.
     
  5. The subsidiary legislation by the Council could have been better framed and structured to make it abundantly clear that a degree from any institution that did not include those units would not be recognized for purposes of admission to advocates training Programme.
     
  6. Any ambiguity or lack of clarity however was removed with the enactment of the Legal Education Act, that commenced operation on 28th September 2012 and whose objective was to promote legal education and the maintenance of the highest possible standards in legal education. Section 23 of that Act expressly provided for core degree courses and stipulated that a legal education provider offering a course for the award of a degree in law was to in addition to any other courses offered, provide instruction and examination for each of the core courses set out in Part II of the Second Schedule to that Act.
     
  7. While foreign universities and institutions outside Kenya were outside the accreditation jurisdiction of the Council, the requirement that a degree from a foreign university or institution had to contain the core units was not to extend the accreditation jurisdiction of the Council to foreign universities but to avoid different or double standards for local and foreign law degree holders.
     
  8. Law degrees earned from foreign universities or institutions had to for purposes of admission to the advocates training Programme at the school, be held against the standards that the council had set out. All applications for admission to the School had to be considered against the same standards set by the Council.
     
  9. To exclude the appellant from complying with the fulfillment of the requirement of core subjects was propagating the very discrimination the appellant complained about.  She could not be admitted to KSL and be required to study the remaining core subjects there as the school no longer offered them.

Appeal dismissed with each party bearing their own costs of the appeal.
 
 
Kenya Law
Case Updates Issue 39/2013
Case Summaries  

CONSTITUTIONAL LAW Hospitals cannot detain dead bodies as a means of debt recovery

Isaac Ngugi v The Nairobi Hospital & 2 others
Petition No 407 of 2012
High Court at Nairobi
D S Majanja, J
September 30, 2013
Njeri Githang’a Kamau & Victor L Andande

Download the Decision

Brief Facts:
Brief facts The petitioner was the son and administrator of the estate of Elizabeth Mary Wamaitha Ngugi (the deceased). He had been granted a limited grant of letters of Administration ad Litem to pursue the case on behalf of the deceased. The crux of the petitioner’s case was that his late mother’s rights and freedoms were violated by Nairobi Hospital(the Hospital) when it refused to discharge her after she was due to discharge on account of unpaid hospital bills incurred in her treatment. The petitioner’s contention was that despite the doctor’s recommendation for discharge, the Hospital refused to release the deceased on account of an unpaid hospital bill.
The petitioner filed a chamber summons with the main suit in which he sought an order that the cadaver of the deceased be released pending the hearing and determination of the matter.
In its ruling, the court ordered the petitioners or any of his agents to pay the Nairobi Hospital a sum of Kshs. 2,000,000 within four days whereupon the Hospital was to release the body of the deceased to the petitioners or his appointed representatives.
The body was subsequently released to the petitioner for interment on the terms set out in the ruling.

Issues:

  1. Whether the hospital could rightfully detain a dead body as a means of debt recovery.
  2. Whether detention of a patient in hospital for non-payment of hospital bills was a violation of the person’s fundamental rights and freedoms.
  3. Whether the Bill of Rights was to apply to private relationships and if so to what extent.

Constitutional Law –fundamental rights and freedoms – right to liberty – detention of a patient - claim by the petitioner that his mother’s right to liberty had been violated by detention - whether detention of a patient by hospital to enforce payment of a medical bill was in violation of right to liberty – whether in the circumstances the patient’s right to liberty had been violated – the Constitution of Kenya, 2010, articles 29(a),39; International Covenant on Civil and Political Rights, articles 9(1),11.

Constitutional Law -fundamental rights and freedoms – right to human dignity – claim by the petitioner that her deceased mother’s right to dignity had been violated by the hospital in detaining her body – whether in the circumstances the deceased’s right to dignity had been violated – Constitution of Kenya, 2010, article 28.

Constitutional Law -Bill of Rights – enforcing the bill of rights – whether the bill of rights could be enforced in private relationships. Read More...

Article 29(a) of the Constitution of Kenya, 2010 provides that:-

Every person has the right to freedom and security of the person, which includes the right not to be –
(a) deprived of freedom arbitrarily or without just cause.

Article 9(1) of the International Covenant on Civil and Political Rights provides:-

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article 11of the International Covenant on Civil and Political Rights states that:-

“No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

Held:

  1. The supremacy clause of the Constitution recognised that the Constitution was the supreme law and binding on all persons and all State organs at both levels of government. Article 3(1) stated that every person had an obligation to respect, uphold and defend the Constitution while Article 19(1) provided that the Bill of Rights applied to all law and was binding on all State organs and all persons.
  2. The term ‘person’ included a company, association or other body of persons whether incorporated or not such as the hospital, in accordance with article 260 of the Constitution. (Sonia Kwamboka Rasugu v Sandalwood Hotel and Resort Limited and others Nairobi Petition No. 156 of 2011 [2013] eKLR).
  3. The question as to whether the Bill of Rights was to be applied horizontally or just vertically against the State depended on the nature of the right and fundamental freedom and the circumstances of the case.
  4. The Court would be reluctant to apply the Constitution directly to horizontal relationships where specific legislation existed to regulate the private relations in question. In other cases, the mechanisms provided for enforcement were simply inadequate to effectuate the constitutional guarantee even though there existed private law regulating a matter within the scope of application of the constitutional right or fundamental freedoms. In such cases the court could proceed to apply the provisions of the Constitution directly.
  5. The history and the events leading to the promulgation of the 2010 Constitution left no doubt that it was intended to be a transformative document. The Court was hesitant to adopt a hard and fast position that would prevent the principles and values of the Constitution being infused into the lives of ordinary Kenyans through application of the Bill of Rights to private relationships where necessary.
  6. It would be repugnant to public policy to sanction the use of dead bodies as objects of debt recovery. Dead bodies were for interment or cremation or other disposal without delay. The dispute was on a debt for medical services solicited for by someone who was still alive, not the deceased, and there were legal ways of binding such person to pay the debt owed. The dead body of the deceased could not be part of that equation as it was trite law that there was no property in a dead body. There was no legal basis for detaining it, and it would be sad to hold otherwise. (Ludindi Venant and another v Pandya Memorial Hospital Msa HCCC No. 63 of 1998 [1998] eKLR.)
  7. Detaining a patient for non-payment or failure to pay a contractual debt was a violation of article 29(a) of the Constitution. Such detention was also in violation of the right to dignity under article 28of the Constitution. (Sonia Kwamboka Rasugu v Sandalwood Hotel and Resort Limited and Others Nairobi Petition No. 156 of 2011 [2013] eKLR.)
  8. The negotiations of the hospital bill which the petitioner, as manager of the patient’s estate had authority to pay were on the understanding that the Hospital would continue to take care of the patient. Since no instructions were issued, it could not be said that the patient was being detained in violation of her rights. The petitioner and his legal advisors, who had authority to demand that the patient be discharged or transferred to another facility, were aware that the Hospital would continue to take care of the patient as long as she remained in Hospital.

Orders
a) As regards the holding of the deceased body, the issue was settled by orders issued by the court in its earlier ruling that ordered for the release of the body upon conditions stated in the said ruling.
b) As to whether the deceased rights and fundamental freedoms were violated by the failure, neglect and or refusal of the Hospital to release her when she was recommended for discharge on, the petitioner did not prove that the deceased’s rights and fundamental freedoms were violated.
c) Amended Petition dismissed. Each party to bear their own costs.

ELECTION LAW Court nullifies election of Senator for Bungoma County

Musikari Nazi Kombo v Moses Masika Wetangula & 2 others
Petition No 3 of 2013
High Court of Kenya at Bungoma
F Gikonyo, J
September 30, 2013
Reported by Teddy Musiga

Download the Decision

Issues:
  1. Whether there is a distinction between burden of proof and standard of proof.
  2. Whether there were electoral offences; massive and wide spread electoral malpractices and irregularities which affected the integrity of and the results of the elections for Senator for Bungoma County.

Election LawElection petition – nullifying election petitions – grounds for nullifying election petitions – who bears the degree and standard of proof in nullifying election petitions –Elections Act, section 83

Election Law –Election offences – bribery of voters – treating of voters –responsibility for commission of electoral offences – distinction between electoral offences committed by the candidate himself and electoral offences committed by an agent to the candidate in the electoral process – whether conviction on grounds of commission of electoral offences is sufficient grounds for nullifying an election – Elections Act, Sections 62 and 64 Read More...

Section 83 of the Elections Act state that:

“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

Held:

  1. The distinction between the burden of proof and standard of proof lay in the finer distinction between the legal burden and the evidential burden. The legal burden in an election petition lay with the petitioner; for he/she was the party desiring the court to take action on the allegations in the petition. The evidential burden initially lay on the party who bore the legal burden but as the weight of the evidence given by either side during the trial varied, so did the evidential burden shift to the party who failed without further evidence.
  2. The standard of proof referred to the level or degree of proof demanded by law in a specific case in order for the party to succeed. In election petitions, the standard of proof in allegations other than those of commission of electoral criminal offences was higher than that of balance of probabilities required in civil cases although it did not assume the standard of proof beyond reasonable doubt. However, where the petitioner alleged commission of criminal offences, the standard of proof on criminal charges was beyond reasonable doubt.
  3. The constitution commanded the courts to always adopt interpretations of the law which gave effect to the objects and purposes of the Constitution. The petitioner had a right of re-examination on new issues which could have arisen during cross examination by an advocate (representing the 1st respondent) who did not have a valid practicing license. Expunging those proceedings from the court records would not only have been a great injustice to the first respondent but to the due process of the law generally and in the instant case in particular. As such, the court upheld the proceedings consisting in cross examination of witnesses conducted by the advocate who did not have a valid practice license and held them to validly remain part of the court records.
  4. The allegation by the 1st respondent that the petitioner was engaged in cultism in the quest for power was not proved and failed totally. In any case, for such allegations to succeed, the essential elements of the illegal oathing or ceremony had to be specifically proved beyond reasonable doubt for they were criminal in nature and once proven the culprit was liable to be indicted. Television clips could have been produced in accordance with the law on electronic evidence to support their allegations.
  5. From the report of the Deputy Registrar on double registration and voting, there was clearly an electoral malpractice on the part of the Independent Electoral and Boundaries Commission (IEBC) officers and the persons who voted when they were not entitled to vote. According to section 10 of the Elections Act, eligibility to vote did not extend to a person who had been prohibited from voting under any written law. Under section 57 of the Elections Act, a person who had committed electoral offences could not be eligible to vote in that election or the next. Section 58 of the Elections Act established as electoral offences where a person voted more than once in any election.
  6. Although one of the witnesses confessed to have been a member of the steering committee allegedly set up by the 1st respondent to subvert the electoral process through registering people and making them vote more than once, there was no sufficient evidence to prove the scheme was hatched by the 1st respondent. Therefore, based on evidence of those witnesses who confessed and the findings of the inquiry report and that of scrutiny proved there was a serious electoral malpractice.
  7. The report on scrutiny and recount of votes also revealed the same incidents found in the report on inquiry on double registration and voting. Persons who were not entitled to vote voted. There were some instances where there was a huge difference between the number of ballot papers used, votes cast and the number of people whose names were crossed. In such a case, it was not possible to verify how many ballot papers were issued correctly when there was a big disparity between the number of names crossed/marked in the register, the number of votes cast and number of spoilt or rejected votes. The presence of the handwritten names of voters was not explained at all by IEBC who were involved in the scrutiny exercise and were also called upon to make submissions on the report.
  8. The petitioner’s allegation of the introduction of foreign ballot boxes during a power blackout was not supported with enough evidence. There was need to supply the court with much succinct details of the persons who were involved and other information which would have designated the transaction as rigging. Mere transportation of ballot boxes was not enough because many other people had been contracted to transport ballot boxes before and after voting.
  9. The petitioner’s allegation that the polling staff were not properly trained was not supported with enough evidence. The court was satisfied that the polling clerks were properly trained on how to handle the elections. Any errors of the officers fell into what was either a human error or culpable negligent error on their part for which they were to be held personally accountable.
  10. The petitioner’s allegation that dead voters voted during the election in dispute was not supported with enough evidence. The petitioner produced a letter from the assistant chief which stated that some three individuals died in unspecified dates in February 2013 – which was before the elections. The letter was not dated. That aside, it was not a legal proof of death. A certificate of death issued by the registrar of deaths and births under the relevant law was what constituted legal proof of death unless there was an order on presumption of death. Even if a death certificate had not been issued, there were other ancillary documents which could have been produced like a burial permit.
  11. The petitioner alleged massive irregularities with Form 35s which included; lack of statutory comments, lack of official signature; erasures which were not counter signed as good practice demanded; there were Form 35s for the same polling station containing different information; some Form 35s found in the ballot boxes were blank yet those with IEBC contained results; some Form 35s were missing; in some Forms the votes allocated to each candidate differed from the total votes cast; other Form 35s included results for double marked voters. Such malpractices completely vitiated the results in the concerned Forms 35s. They amounted to malpractices that struck at the heart of the entire electoral process and certainly cast doubt on the credibility of that election.
  12. The Form 35s were the primary source of information on the expression of the people and when they were tinctured with multiple and widespread anomalies, they failed to serve their cardinal purpose as the expression of the will of the people in a free and fair elections; and served a different purpose altogether of vitiating the election. The incidents of errors in Forms 35s were not simple errors. They were errors which fundamentally went to the root of the election thereby impeached the integrity of the process and the validity of the results.
  13. Article 86(c) of the Constitution of Kenya, 2010 demanded that at every election, the IEBC had to ensure that the results from the polling stations were openly and accurately collated and promptly announced by the returning officer. Open and accurate collation of results by the returning officer and county returning officer was an integral part of the electoral process and its purpose was to ensure the elections were free and fair and the results were credible. The collation is what the Elections Act termed as “tallying” and section 84 of the said Act placed tallying at the Constituency and County levels. Form 36 was equally important for it had to reflect the results in Form 35 and was prepared after tallying had been done on Form 35 to ensure the results were accurate.
  14. Form 36 therefore served as a safe design for accountability of what the presiding officers had returned as results announced at the polling stations. Tallying made sure the results were accurate. It was also a tool which provided verified information to the County Returning Officer particularly in respect of Senate results which encompassed the entire County results. Filing of Forms 36 was therefore not just another step in the electoral process or a superfluous exercise which could be done or could be omitted. With the errors and irregularities identified in Form 35, the collation of results and filing in Form 36 needed to be done openly, correctly and accurately.
  15. With the finding of the court that the entire results that the County Returning Officer had been put in doubt, the purported margin of the win was completely unraveled in the eyes of the law thus putting he victory of the 1st respondent to serious doubt. Section 83 of the Elections Act provided that elections could only be annulled for reason of non-compliance with the electoral laws. The expression “non-compliance affected the results of the election in a substantial manner” could only mean that the votes the candidate obtained would have been different in a substantial manner, if it were not for the non-compliance substantially. That meant that, to succeed the petitioner did not have to prove that his winning majority would have been reduced. Such reduction however would have to be such as would have put the victory to doubt. (Besigye v Museveni Election Petition No. 1 of 2001)
  16. From the evidence available and the account given by the various returning officers and the County Returning Officers, there was doubt whether proper tallying of results presented in Form 35 was done in all constituencies with the exception of Kabuchai constituency. The several Form 36 exhibited by the petitioner were obtained from IEBC and the multiplicity of those forms was not explained at all by the IEBC or the Returning officers who were responsible for their preparation. In the absence of the so called official and original Form 36 which could have given us the tallied results, it was difficult to say that the results for the Senate seat for the County of Bungoma were collated and announced in accordance with the constitutional principles on electoral system and other electoral laws in Kenya. The presence of different Form 35 and 36 which bore different results and information only added to the already sore situation.
  17. The court found that the 1st respondent and one Hon. Alfred Khangati were engaged in treating of voters and bribery of voters contrary to sections 62 and 64 of the Elections Act it also found that Hon. Khangati was not a party to the proceedings and was not afforded any opportunity to call evidence to show cause why he should not be reported to the Director of Public Prosecutions for prosecution. It was established beyond reasonable doubt that the two gave a sum of money of Ksh. 260,000/= to Bishops, pastors and other participants in a meeting held at Red Cross, Kanduyi. The corrupt intention of giving money was to influence and induce voters to vote for the 1st respondent as senator for the County of Bungoma and other CORD coalition candidates in other elective seats. Further, the intention of the bribery and treating of voters was to influence and induce voters to refrain from voting for particular candidates or political parties during the March 4th elections.
  18. The court took the position that where the candidate was the one who was found to have committed an election offence of bribery of voters and treating of voters, his election became void. In such a case, a single incident of commission of those offences by the candidate was sufficient to invalidate an election and it was not necessary to prove a series of bribery and treating of voters for such an election to be declared void. The law was so designed to prevent a person from reaping leadership procured through illegal means. Elections were so sensitive to electoral malpractices and offences, and more so, when they were committed by those who were aspiring or claimed to be leaders of the people. In essence, the commission of electoral offences of bribery and treating of voters by the respondents completely alters and affects the results to the extent that the election was voided.
  19. But in cases where the offences of bribery and treating of voters was committed by agents of the candidates, the law afforded the affected candidate an opportunity to claim exoneration from the acts of his agents. Equally, a claim based on bribery and treating of voters by agents or other persons could require to be shown that the acts of bribery and treating of voters were so extensive that they affected the results.
  20. There were extensive irregularities which impeached the electoral process and affected the validity of results. Forms 35s were questioned and results therein could not be said to reflect the will of the people of Bungoma County. They contained serious negligent errors. A further apex opportunity was lost when the County Returning Officer did not collate and tally results before announcing results for Senator for County of Bungoma. Those malpractices obscured the final results thereby putting the victory of the 1st respondent in doubt. Those malpractices were so fundamental to the process and the results that they materially affected the results of the election in dispute.
  21. The report on scrutiny and recount of votes revealed major electoral malpractices and irregularities on the part of the electoral officers. Some of the electoral evils revealed by the report included; cases of names being crossed twice in two incidental registers for the same stream or station; people who were not entitled to vote were provided with ballot papers and voted; results of the names which had been crossed were included in the final results; a marked register was found in possession of the returning officer and was only availed at the time of scrutiny; it was not clear how ballot papers were issued as the laid procedure was not followed. Those malpractices affected the results. There was real possibility that electoral offences prescribed under section 59 of the Evidence Act were committed by IEBC officers who manned the respective polling stations where electoral mishaps were detected by the report.
  22. From the foregoing findings, the petitioner proved to the required standard that the election for member of Senate for County of Bungoma was not conducted in accordance with the Constitution and the Elections Act. Article 81(e) of the Constitution of Kenya, 2010 was violated as the election was not free of improper influence or corruption, it was not transparent, it was tinctured with bribery and treating of voters and the results were not verified or verifiable. There were multiple malpractices and irregularities which substantially affected the validity of results for the election in dispute.

Petition allowed. The 1st respondent was not validly elected. His election as Senator for Bungoma County declared null and void.
Costs awarded to the petitioner at ksh. 4,000,000/=
Security of costs placed by the petitioner released forthwith.

CONSTITUTIONAL LAW The State must use due process in recovering illegally acquired property

Evelyn College of Design Ltd v Director of Children’s Department & another
Petition No 228 of 2013
High Court at Nairobi
D S Majanja J
September 27, 2013
Njeri Githang’a Kamau & Victor L Andande

Download the Decision

Issues:

  1. Whether the State, upon issuing a title to land, could assert a right inconsistent with the title without following due process.
  2. What was the scope of the requirement of due process under the Constitution?

Constitutional Law-fundamental rights and freedoms – right to property – claim by the petitioner that its right to property had been violated by the respondents since it had been denied access and use of the suit land – where the State claimed that the petitioner had illegally acquired the suit land – what was the scope of the right to property - Constitution of Kenya, 2010, article 40.Read More...

Held:

  1. Even where property was said to be illegally acquired; it could not be dispossessed without due process. Such dispossession could not be effected by preventing the petitioner from enjoying the incidents of ownership of the land.
  2. A finding of unlawful acquisition referred to in article 40(6) of the Constitution had to be through a legally established process and not by forceful occupation of property by State institutions or by preventing a person from enjoying the incidences of ownership of the property.
  3. The requirement of due process was underpinned by several provisions of the Constitution as follows:-
    1. It was implicit in article 40(2)(a) which prohibited the legislature from passing legislation that arbitrarily deprived a person of any interest in or right over any property of any description.
    2. Article 40(6)was clear that rights acquired under the article did not extend to any property that was found to have been unlawfully acquired. Such finding could not be by any other means other than due process.
    3. Article 47(1) guaranteed every person fair administrative action which included due process

Orders
The respondents, by themselves, their servants, and or agents to be restrained from interfering in any manner whatsoever with the petitioner’s property.
ii. The petitioner awarded Kshs.100,000 as general damages for trespass to be paid by the 1st respondent.
iii. The 1st respondent to bear the costs of the petition.

CONSTITUTIONAL LAW Court declares the regulations relating to noise control constitutional

James Jessie Gitahi & 202 others v Attorney General & 2 others
Petition No 683 of 2009
High Court at Nairobi
D S Majanja J
September 27, 2013
Njeri Githang’a Kamau & Victor L Andande

Download the Decision

Brief facts
This was a Petition by 203 petitioners who were aggrieved by the provisions of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009 contained in Legal Notice No. 61 of 2009 (the Regulations) which were made by the Minister under section 147 of the Environmental Management and Coordination Act (EMCA).
The 1st petitioner (James Jessie Gitahi) was a Christian pastor, gospel musician and trader in the music industry. The other petitioners were musicians, gospel and secular artisans, traders and businessmen and women in the music industry. They were aggrieved by the Regulations which they claimed interfered with their livelihood which involved the use of creative sounds and sound effects to reach the public.
The petitioners’ claimed that they had been arrested and charged for contravening the Regulations and as a result they had sustained loss of business as their sound equipment had been confiscated. They alleged that their businesses remained threatened as long as the Regulations remained in force.
The petitioners challenged the Regulations on three broad grounds. First, that the Minister did not have the power to prescribe offences under EMCA. Second, that the law and procedure followed was contrary to the provisions of section 34 of the Interpretation and General Provisions Act (Chapter 2 of the Laws of Kenya) as the Regulations were not placed before the National Assembly for approval. Thirdly, that the Regulations violated the fundamental rights of the petitioners as they were arbitrary, oppressive, impractical and disproportionate.

Issues
  1. Whether the power donated to the Minister to make rules under EMCA included the power to prescribe offences under the Regulations.
  2. Whether the Regulations had to be laid before the National Assembly for them to be valid.
  3. Whether the Regulations violated the petitioners’ fundamental rights and freedoms by regulating noise levels.

Constitutional Lawfundamental rights and freedoms – right to livelihood – where the petitioners had been arrested for violating the Regulations relating to noise – claim by the petitioners that their right to livelihood had been violated by their arrest and confiscation of their sound equipment – whether in the circumstances the petitioners rights had been violated – Constitution of Kenya (repealed) sections 70, 71, 72, 77, 78, 79 and 82.

Environmental Law - regulation of noise – what was the scope of the regulations - Environmental Management and Coordination Act, sections 101, 102and103. Read More...

Article 42 of the Constitution of Kenya, 2010 provides:-
42. Every person has the right to a clean and healthy environment, which includes the right—

(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70.

Article 70 of the Constitution of Kenya, 2010 provides:-
70.(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate—
(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Section 147 of Environmental Management and Coordination Act provides as follows:-
147(1) The Ministry may, on the recommendation of the Authority and upon consultation with the relevant lead agencies, make regulations prescribing for matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving full effect to the provisions of this Act.
(2) Regulations made under subsection (2) may–

a) make provisions for the issue, amendment and revocation of any licence;
b) provide for the charging of fees and levying of charges;
c) adopt wholly or in part or with modifications any rules, standards, guidelines, regulations, by laws, codes, instructions, specifications, or administrative procedures prescribed by any lead agency either in force at the time of prescription or publication or as amended from time.

Section 144 of Environmental Management and Coordination Act provides:-
144. Any person who commits an offence against any provision of this Act or of regulations made thereunder for which no other penalty is specifically provided is liable, upon conviction, to imprisonment for a term of not more than eighteen months or to a fine of not more than three hundred and fifty thousand shillings or to both such fine and imprisonment.

Section 31(e) of the Interpretation and General Provisions Act provides as follows:-
31. Where an Act confers power on an authority to make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of the subsidiary legislation –
(e) there may be annexed to the breach of subsidiary legislation a penalty, not exceeding six thousand shillings or such term of imprisonment not exceeding six months, or both, which the authority making the subsidiary legislation may think fit.

Regulation 10 of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009 provides as follows:-
10(1) No person shall –
a. Preach, tout, advertise, promote or sell any goods; or
b. Engage in any commercial activity,

In such a manner as to emit noise by shouting within the Central Business District of any town , a residential area, a silent zone, or any other area declared as a silent zone by the Authority,
Provided that the provisions of this Regulation shall not be construed to prohibit selling the selling of merchandise, food and beverages at licenced sporting events, parades, fairs, circuses and other similar licenced public entertainment events.
2) Any person who contravenes this Regulation commits and offence.

Held:

  1. EMCA was an Act of Parliament to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected and incidental thereto. Under sections 101, 102 and 103 of EMCA, noise was considered a matter concerning the environment and was therefore a subject of legislation.
  2. The Act prohibited excessive noise and the Minister had broad power, under section 147, to make regulations to enforce the provisions of the Act including making of regulations concerning excessive noise.
  3. Regulation 28, which provided a general penalty for breach of the regulations, was not ultra-vires EMCA as it merely restated what the Act provided as a penalty for infraction of the regulations made under the Act.
  4. The power to make regulations included the power to prescribe penalties for violation. This was implied in the provisions of section 31(e) of the Interpretation and General Provisions Act.
  5. Where the subsidiary legislation did not prescribe a penalty then in the absence of contrary provision in the parent statute, the penalty prescribed was that under section 31(e) of the Interpretation and General Provisions Act. In the case of the Regulations, the penalty for breach thereof was prescribed and was within the framework provided by EMCA.
  6. Where a contrary intention was inferred from the unequivocal words of the statute as enacted in section 144 of EMCA, the Interpretation and General Provisions Act had no application in this respect. As long as those regulations were not ultra vires the parent statute or the Constitution, then they could not be voided.
  7. If ministerial instruments were not laid before the National Assembly they did not become utterly void. It was clear at the very least, that all things done under such rules would not become void, even if the National Assembly were to revoke the rules in question. General national practice was a highly relevant consideration in such a matter. The practical judicial attitude in such a situation was to look to fundamental issues only. (Republic v Wilfred Onyango Nganyi and another, Nairobi Criminal Appeal No. 96 of 2005.)
  8. Sections 101, 102 and 103 of EMCA dealt with the issue of noise pollution by setting out a framework for establishing noise standards and prohibiting excessive noise. The prevention of noise and vibration pollution was recognised as a component of a clean and healthy environment. Noise pollution covered sound which could result in hearing impairment while vibrations pollution covered vibration transmitted to the human body through solid structures. Both excessive noise and vibration could cause injury to the body hence the need to regulate the level of noise through the Regulations.
  9. In determining whether the noise was loud several factors were to be considered including the time of the day, the proximity to a residential neighbourhood, whether the noise was recurrent, intermittent or constant, the level or intensity of the noise, whether the noise had been enhanced by any electronic or mechanical means or whether the noise could be controlled without effort or expense to the person making the noise. A violation of the general prohibition was an offence and attracted a penalty under the Act and the Regulations.
  10. The objects of the Act and indeed the Regulations fell within the range of activities that were necessary for the protection and promotion of a clean and healthy environment and were therefore not unconstitutional on this ground.
  11. The offence contained in regulation 10 could not be read alone but had to be read within the context of the EMCA and the entire Regulations. The prohibition was not against noise generally but against noise as defined under the Regulation 2. The prohibition was not a blanket ban on noise but was limited to shouting within the Central Business District (CBD) of any town, residential areas and silent zones as could be clearly seen from wholesome reading of the impugned regulation.
  12. All the law required of the petitioners was that they adhere to certain level of noise so as not to harm the public in the manner they conducted their business. Their livelihood was affected only to the extent that they could not carry on their business through the use of excessive noise as defined in the Regulations. This was a case where the rights and freedoms of the petitioners had to be balanced with those of the general public and that balance was reached through the Regulations governing conduct.

Petitioners’ case dismissed. No order as to costs.

Found jurisprudence
Republic v Wilfred Onyango Nganyi & another, Nairobi Criminal Appeal No. 96 of 2005 (Unreported).

ELECTORAL LAW High Court upholds Mombasa gubernatorial election

Suleiman Said Shahbal v Independent Electoral and Boundaries Commission &3 others
High Court at Mombasa
Election Petition 8 of 2012
F A Ochieng J
September 27, 2013
Reported by Andrew Halonyere & Cynthia Liavule

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Issues:
  1. Whether the Mombasa County gubernatorial election held on 4th March, 2013, was conducted in accordance with the principles of the Constitution of Kenya, 2010 and the Elections Act 2011.
  2. Whether the Mombasa gubernatorial election conducted on 4th March ,2013 was substantially free, fair and transparent.
  3. Whether the 3rd respondent, Hassan Ali Joho was validly elected and declared the winner of the Mombasa gubernatorial elections
Electoral Lawelection petition - gubernatorial election - conduct and results - whether there was compliance with the provisions of the Constitution and Elections Act 2011 - whether the Mombasa gubernatorial election was substantially free, fair and transparent - whether alleged election offences and irregularities substantially affected election results - Elections Act, 2011 section 83. Read More...

Held:

  1. The petitioner did not lead any evidence to prove that his agents or the agents of other parties were removed from the polling stations or from the tallying centers. If anything, the petitioner's own witnesses had proved that there was no truth in that allegation. The petitioner also failed to prove that there was intimidation of voters or violence occasioned against either the agents or the supporters of the petitioner which affected the petitioner’s supporters’ voter turnout.
  2. . The petitioner failed to bring the results which his agents allegedly collected, and which were said to have been different from the results announced by the Independent Electoral and Boundaries Commission (IEBC). Furthermore, the evidence from the Forms 35 which were produced by the IEBC there were many agents of the other political partied signed them. The failure of candidates or of agents to sign the Forms 35, did not, in law, of itself, invalidate the results. 3. Regulations 73(4) and 79(8) of The Elections (General) Regulations, 2012, required the Presiding Officer to ferry the ballot boxes, as soon was practicable, to the Returning Officer. There was no legal requirement that the Presiding Officer had to make provision for the agents to accompany the ballot boxes from the polling stations to the tallying centre as the petitioner asserted.
  3. The results of scrutiny carried out disproved the petitioner's contentions that the ballot boxes were stuffed, and that there was inaccurate tallying of results. No evidence of manipulation of figures was manifested. Based on the grounds cited in the petition, and the consensus between all the parties, that the scrutiny would answer all the issues save for intimidation of voters and agents; violence; bribery and treating of voters; and partiality and favoritism by IEBC judgment would have been concluded save for some issues that arose during trial the Judgment at this stage.
  4. The petition did not assert that the elections were a nullity. Bearing in mind the legal requirement that each party was bound by his pleadings, one of the reliefs being claimed for in this petition was a declaration that the petitioner was the validly elected Governor of Mombasa County. For the petitioner to seek to be declared the validly elected Governor, he must be deemed to have recognized the fact that elections were actually held in Mombasa County. If the electoral process was a nullity, as suggested in the petitioner’s submissions, he could not possibly be declared to have been validly elected, even assuming that the election of the 3rd Respondent was nullified. There was no basis, in law or in fact, to warrant the declaration that the elections in issue were a nullity.
  5. Bearing in mind the fact that the burden of proof rested on the petitioner, it could not be presumed that because some polling day diaries were not produced by the IEBC, the contents thereof would have proved the petitioner’s case. Finding so would constitute a shifting of the burden to the respondents, to prove that the assertions made by the petitioner were untrue. No such burden vested upon the respondents. By suggesting that if the IEBC had made available the Polling Day Diaries, that would prove the petitioner’s case, he appeared to be saying that those materials were necessary to help him prove his case. If that were the case, there was nothing that could have stopped the petitioner from applying for orders that the said diaries to be produced in court.
  6. The petitioner had not satisfied the court that there were such malpractices or violations of either the Elections Act or of the Constitution, that would warrant the declaration that the elections for the office of the governor of Mombasa County were either unconstitutional or unlawful.
  7. There was no evidence of any election offences committed by the respondents and the elections, although not perfect, were conducted in a free, fair, transparent, verifiable and accountable manner. In effect, the 3rd Respondent, Hassan Ali Joho, was validly elected as the Governor for Mombasa County; and the 4th Respondent, Hazel Ezabel Nyamoki Ogunde was validly declared the Deputy Governor for Mombasa County.

Petition dismissed
Petitioner to pay to the respondents costs of the petition.
Certificate to issue pursuant to section 86(1) of the Elections Act,

ENVIRONMENTAL LAW NEMA’s power to institute proceedings against lead agencies charged with the preservation and protection of the environment

Republic v National Environment Management Authority & another
Ex-parte Philip Kisia & another
Jr Case No 251 of 2011
Judicial Review Division
 High Court at Nairobi
W K Korir, J
September 26, 2013
Lynette A Jakakimba

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Issues:

  1. Whether the City Council of Nairobi and the National Environment Management Authority (NEMA) held complimentary roles under the Environmental Management and Co-ordination Act (EMCA) as regards coordination and enforcement of environmental protection.
  2. Whether NEMA could take an adverse action against any lead agency charged with the preservation and protection of the environment, when the lead agency failed to comply with the directives given by NEMA.
  3. Whether it was against public policy for NEMA to charge the City Council of Nairobi for failure to comply with its directive.
  4. Whether the consent of the Director of Public Prosecutions (DPP) was required before prosecution of offences under EMCA by NEMA.
  5. Whether NEMA by charging the town clerk of Nairobi, contravened the provisions of section 87 of the Local Government Act which protected a member or officer of a local authority from personal liability for anything done in the cause of duty.

Environmental Law - coordination and enforcement of environmental protection – role of NEMA vis-à-vis the role of lead agencies charged with the preservation and protection of the environment- whether NEMA could take an adverse action against any lead agency charged with the preservation and protection of the environment which failed to comply with the directives given by NEMA- Environmental Management and Co-ordination Act section 12

Criminal Practice and Procedure - prosecutorial powers- Director of Public Prosecutions power to prosecute criminal cases- prosecution of environmental offences- whether the consent of the Director of Public Prosecutions was required before prosecution of offences under Environmental Management and Co-ordination Act - Constitution of Kenya, 2010 article 157

Criminal Practice and Procedure-criminal liability-immunity from criminal liability- immunity of local authority officers from personal liability for anything done in the cause of duty- whether the immunity from personal liability of officers of local authorities extended to criminal liability-whether NEMA by charging the town clerk of Nairobi, contravened the provisions of section 87 of the Local Government Act which protected a member or officer of a local authority from personal liability for anything done in the cause of duty- Local Government Act section 87- Environmental Management and Co-ordination Act section 145 Read More...

Environmental Management and Co-ordination Act
Section 12

The Authority may after giving reasonable notice of its intention so to do, direct lead agency to perform, within such time and in such manner as it shall specify, any of the duties imposed upon the lead agency by or under this Act or any other written law, in the field of environment and if the lead agency fails to comply with such directions, the Authority may itself perform or cause to be performed the duties in question, and the expense incurred by it in so doing shall be a civil debt recoverable by the Authority from the lead agency.

Section 145

(1) When an offence against this Act, is committed by a body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, shall be guilty of an offence.
(2) Where an offence is committed under this Act by a partnership, every partner or officer of the partnership who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, commits an offence.
(3) A person shall be personally liable for an offence against this Act, whether committed by him on his own account or as an agent or servant of another person.
(4) An employer or principal shall be liable for an offence committed by an employee or agent against this Act, unless the employer or principal proves that the offence was committed against his express or standing directions.

Local Government Act (Repealed)
section 87

No matter or thing done or omitted to be done and no contract entered into by a local authority, and no matter or thing done or omitted to be done by any member or officer of a local authority, shall, if the matter or thing were done or omitted to be done or the contract were entered into in good faith for the purpose of this Act, or of any other written law conferring powers or imposing duties on the local authority, its members or officers, subject any such person personally to any action, liability, claim or demand whatsoever; and any expense incurred by a local authority or any such person in consequence of such action shall be paid by the local authority out of its revenues:
Provided that nothing in this section shall exempt any such member, officer or other person aforesaid from liability to be surcharged by the inspector under section 236
.

Held:

  1. Lead agencies which were mandated to control or manage the environment or natural resources had to cooperate with NEMA in the preservation and protection of the environment. NEMA was however given the mandate to exercise general supervision and coordination over all matters related to the environment and was the principal instrument of Government in the implementation of all policies related to the environment. Therefore when a lead agency failed to comply with the directives given by NEMA then NEMA had no option but to engage the powers granted to it by EMCA and the attempt by the applicants to escape liability by upgrading their roles in the preservation of the environment failed.
  2. Section 12 of EMCA granted NEMA the option of directing a lead agency to perform a duty imposed on the lead agency by the EMCA. Where the lead agency failed to comply, NEMA could carry out the duty at the expense of the lead agency. All these powers were optional and they did not therefore compel NEMA to exercise the powers under section 12 before exploring other options provided by EMCA. .
  3. Under the Constitution of Kenya, 2010 the duties of the Attorney General in relation to prosecution of criminal cases had been taken over by the Director of Public Prosecutions. The role of the DPP when it came to the prosecution of matters under NEMA was supervisory in nature. The actual prosecution was left to an environmental inspector but the DPP could, if necessary, exercise the powers granted under article 157(6) of the Constitution.
  4. Under section 87 of the Local Government Act it was clear that the immunity officers of local authorities did not extend to criminal liability. By virtue of section 145 of EMCA, the principal officers of local authorities could be charged for committing offences under EMCA.
  5. Section 144 provided a general penalty for offences in EMCA for which no specific penalties had been provided. Section 145 (1) did not create any offence. It simply extended criminal liability to principal officers of a body corporate. Offences under EMCA were found in sections 137 to 143. Section 145(1) or section 145 in entirety did not create any offence. The applicants were therefore being asked to undergo trial for an offence which was not recognized or created by the law.
  6. The town clerk of Nairobi under Count 1 was charged with failing to exercise due diligence and efficiency to ensure compliance contrary to section 145 (1) as read with section 144 of EMCA. Section 144 provided a general penalty for offences in EMCA for which no specific penalties had been provided. Section 145 (1) did not create any offence, it simply extended criminal liability to principal officers of a body corporate. Count 1 was therefore unlawful as the town clerk of Nairobi (1st Applicant) was being asked to undergo trial for an offence which was not recognized or created by the laws of Kenya.
  7. In Count 2 the 1st Applicant was accused of failing to comply with a lawful order by an environmental inspector contrary to section 137 (b) EMCA. In order for that count to be proved, there had to be an order that had been issued by an environmental inspector. NEMA produced two letters to show that the 1st Applicant was given restoration orders to comply with. The two letters did not comply with the provisions of section 109 of EMCA. There was therefore no valid or proper environmental restoration order which the 1st Applicant had disobeyed.

Application allowed with no order as to costs.

CONSTITUTIONAL LAW Transitional provisions, relating to suits filed against local authorities, in the devolved governance system

John Michael Wanjau v Municipal Council of Eldoret
E & L 285 of 2013
(Consolidated with E & L 286 of 2013)
Environment & Land Court of Kenya at Eldoret
Munyao Sila, J
September 26, 2013
Reported by Beryl A Ikamari

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Issues:

  1. Whether, in light of the provisions of the Local Government Act (Cap 265) (repealed), the County Governments Act, No. 17 of 2012 and the Transition to Devolved Government Act, 2012, the Municipal Council of Eldoret was a legal entity capable of being sued when the plaintiff filed the suit.
  2. Whether the plaintiff's suit against the Municipal Council of Eldoret was incurably defective, for allegedly being a suit instituted against a disbanded entity.

Constitutional Law - devolved government-county government-transitional provisions-transition from local authorities to county governments-status of suits filed against local authorities after the repeal of the Local Government Act (Cap 265) -Constitution of Kenya, 2010; article 184, Local Government Act (Cap 265); sections 5 & 6, Urban Areas and Cities Act, No. 13 of 2011; section 59, County Governments Act, No. 17 of 2012; section 1, and Civil Practice and Procedure Act, 2010; order 1 rule 9 & 10, & order 8 rule 3.

Administrative Law - local government-local authorities-status of suits filed against local authorities after the repeal of the Local Government Act (Cap 265)-whether a suit filed against the Municipal Council of Eldoret was incurably defective on grounds that the municipality was no longer a legal entity-Constitution of Kenya, 2010; article 184, Local Government Act (Cap 265); sections 5 & 6, Urban Areas and Cities Act, No. 13 of 2011; section 59, County Governments Act, No. 17 of 2012; section 1, and Civil Practice and Procedure Act, 2010; order 1 rule 9 & 10, & order 8 rule 3.

Civil Practice and Procedure - parties to a suit-substitution and addition of parties-effect of filing a suit against an entity that was no longer in existence and whose role had been assumed by a new entity-whether the effect of filing a suit against the Municipal Council of Eldoret, as concerned the performance of a role taken over by the Uasin Gishu County Government, would make a suit incurably defective- Constitution of Kenya, 2010; article 184, Local Government Act (Cap 265); sections 5 & 6, Urban Areas and Cities Act, No. 13 of 2011; section 59, County Governments Act, No. 17 of 2012; section 1, and Civil Practice and Procedure Act, 2010; order 1 rule 9 & 10, & order 8 rule 3. Read More...

Held:

  1. The promulgation of the Constitution of Kenya, 2010, repealed Kenya's independence Constitution of 1963 and introduced the devolved system of governance wherein 47 county governments were created to function across the regions of Kenya. The idea behind the creation of the county governments was to enable such governments to play the role that had been carried on by municipal councils and county councils.
  2. The import of the Urban Areas and Cities Act, No. 13 of 2011, particularly as provided for in section 9, was that a County Governor, on the resolution of the county assembly, could confer the status of municipality to a town that met the criteria stipulated by the Act. A new Municipal Council of Eldoret, was not created and the Municipal Council of Eldoret that was in operation was the one created under the repealed Local Government Act (Cap 265).
  3. Section 59 the Urban Areas and Cities Act, No. 13 of 2011, preserved any legal right that accrued or cause of action commenced in court, before the repeal of the Local Government Act (Cap 265).
  4. The Urban Areas and Cities Act, was to come to force upon the repeal of the Local Government Act (Cap 265). The Local Government Act (Cap 265) was repealed when the final results of the first general election conducted under the Constitution of Kenya, 2010 were announced while the County Governments Act, No. 17 of 2012, came into effect when the same results were announced.
  5. When the Local Government Act was repealed, the legal effect was that all bodies created by it also ceased to exist. Therefore, municipalities, including the Municipal Council of Eldoret, created under the statute became disbanded entities.
  6. At the time the suit was filed by the plaintiff, the Municipal Council of Eldoret was a disbanded entity, and the suit made against it was not covered by transitional provisions. Particularly, section 59 of the Urban Areas and Cities Act, No. 13 of 2011, could only preserve such a suit if it had been filed before the municipality became a disbanded entity, before the repeal of the statute which created it.
  7. Pursuant to the provisions of order 1 rule 9 and order 1 rule 10 of the Civil Procedure Rules, 2010, the court had the discretion to order the name of an improperly joined party to be struck out or to order the name of any person who ought to have been joined, added.
  8. Further, under the provisions of order 8 rule 3, it was within the court's discretion to allow a party to amend pleadings filed in court.

Preliminary objection upheld & leave to amend the plaint granted.

ELECTORAL LAW High Court upholds Webuye West Parliamentary election

Joash Wamang’oli v Independent Electoral and Boundaries Commission & 3 others
High Court at Bungoma
Election Petition 6 of 2013
H A Omondi J
September 26, 2013
Reported by Andrew Halonyere & Cynthia Liavule

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Issues:

  1. Whether the Webuye West Parliamentary election conducted on 4th March ,2013 was substantially free, fair and transparent
  2. Whether the 3rd respondent, Daniel Wanyama Sitati was validly elected and declared the winner of the Webuye West Parliamentary elections
  3. Whether the report of reconciled parliamentary votes given by the 1st and the 2nd respondents regarding alleged discrepancies in forms 34, 35, and 36 was capable of resolving the controversy surrounding the votes cast in favour of each parliamentary candidate

Electoral Law-election petition- -Parliamentary election-conduct and results-whether there was compliance with the provisions of the Constitution and Elections Act 2011- whether the Webuye West Parliamentary election was substantially free, fair and transparent-whether irregularities substantially affected election results- Elections Act, 2011 section 83 Read More...

Held:

  1. It was the duty of an election petitioner to place evidence before court to prove that the elections were not substantially conducted in accordance with the electoral laws and that the irregularities complained of had a significant effect on the results as to compel the court to declare the election void.-Raila Odinga V IEBC and Others Petition No.5 of 2013.
  2. Generalized allegations were not the kind of evidence required to prove election petitions. However, court did not agree with the respondent’s contention that want of particulars in the petitioner’s submissions had the effect of rendering the entire petition fatally defective.
  3. The evidence adduced by the petitioner and his witnesses relating to allegations of bribery had glaring lapses and inconsistencies .There was nothing capable of proving that one of the 3rd respondent’s witnesses did the acts complained of on the instruction or with the approval or connivance of the 3rd respondent. The evidence was based on pure suspicion and did not prove the claims made.
  4. Whereas it was maintained that the 4th respondent interfered with the tallying process, the respondents, exonerated him from blame and said that he only played his role of providing security, according to the demands of the situation. Given these contradictory views on the actions of the 4th respondent, it was impossible to agree with the petitioner that the evidence on record proved commission of election offences by the 4th respondent or even to shift the burden of proof to him.
  5. From the totality of the submissions filed in support of the petitioner's case, the petitioner's contention was premised on article 88(4)(e) of the Constitution of Kenya, 2010 which denied a returning officer and the Independent Electoral and Boundaries Commission the jurisdiction to settle electoral disputes in form of petitions or disputes subsequent to the declaration of election results. Neither had the mandate to deal with disputes relating to election petitions or disputes which arose after declaration of the results of the elections.
  6. The report of reconciliation had been prepared by the Returning Officer following the filing and service of this petition on him, and without involvement of any of the parties to the dispute. It was unable to clear the doubt raised over the result declared by the 2nd respondent. However, there was nothing wrong with the 2nd respondent preparing the document for purposes of explaining the admitted omissions and discrepancies. The effect of the omissions and discrepancies on the results could only be determined by the court.
  7. The petitioner's submission that section 83 of the Elections Act, in as far as it tolerated noncompliance with the law was inconsistent and in contravention of the Constitution did not hold water. In exercise of its jurisdiction under article 87 of the Constitution, Parliament perhaps, in recognition that no election could be 100% perfect, through section 83, sought to protect elections that were conducted substantially in accordance with the law regarding elections. Mere recognition that errors were bound to occur during an electoral process, did not mean that Parliament breached any Constitutional principles.
  8. The petitioner failed to prove that non-conformities rendered the results unverifiable or even affected the results based on the report by the Deputy Registrar after recount and scrutiny of votes. Evidence on record showed that at the tallying centre, results from polling stations were only accepted and fed into form 36 after verification and concurrence on their authenticity between party chief agents and the 1st respondent's officers at the tallying centre.
  9. The reconciliation document disclosed that the errors and omissions in the results used to declare the winner affected all the candidates. The errors were not tailor-made to favour any particular candidate.
  10. Regarding failure to print, sign and issue Form 36 to party agents at the polling stations, court was persuaded that the 2nd respondent was prevented from so doing by the chaos that arose at the tallying centre. From the evidence on record, form 36 was in existence, albeit in soft copy. The candidates and their agents knew their scores. In fact, it was on the basis of the said form 36 in soft copy that the petitioner requested for recount. The law did not prohibit reading of results from the computer, and it had not been shown how this adversely affected the results- Edward Akongo Oyugi V IEBC & 2 others Kisii Petition No.3 of 2013
  11. Although the final Form 36 was not signed by any of the candidates or their agents, and was in fact generated the next day, that did not invalidate the form whose contents largely corresponded with the forms 35, and where there were variances, the reconciliation and scrutiny helped to verify the results. The explanation given by the Returning Officer was reasonable and did not suggest deliberate or dishonest intent to tilt the outcome of the election in the 3rd respondent’s favour.
  12. The failure to generate and give to the candidates or their agents Form 36 did not prejudice any of the parties. As such, it could not form the basis of invalidation of the results declared by the 2nd respondent. The Webuye West Parliamentary elections were conducted in a substantially free, fair and transparent manner.
  13. The 3rd respondent was validly elected and declared the winner of the Webuye West Parliamentary elections conducted on 4th March, 2013.Evidence on record showed he garnered the most votes and also demonstrated that he did not participate in any election malpractices or commit any electoral offences.

Declaration that Daniel Wanyama Sitati, the 3rd respondent was validly elected and declared winner of the Webuye West Parliamentary seat The security for costs deposited by the Petitioner to be released
A certificate to issue forthwith as provided by section 86 of The Elections Act to the 3rd Respondent

ELECTORAL LAW High Court upholds Kabuchai Parliamentary election

Philip Mukui Wasike v James Lusweti Mukwe & 2 others
High Court at Bungoma
Petition 5 of 2013
H A Omondi J
September 26, 2013
Reported by Andrew Halonyere & Cynthia Liavule

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Issues:

  1. I. Whether the electoral process for Kabuchai Parliamentary elections held on 4th March, 2013 was credible, free and fair? II. Whether the 1st respondent, James Lusweti Mukwe was validly elected and declared the winner of the Kabuchai Parliamentary elections conducted on 4th March, 2013 III. Whether allegations of electoral offences substantially affected election results

Electoral Law -election petition- -Parliamentary election-conduct and results-whether there was compliance with the provisions of the Constitution and Elections Act 2011-whether proceedings were bad in law by virtue of unqualified person giving legal representation as well as drafting documents - whether the Kubachai Parliamentary election was substantially credible, free and fair -whether allegations of electoral offences substantially affected election results- Elections Act, 2011 section 83,Advocates Act sections 9,31,34 Read More...

Held:

  1. The issue of competence of the lead Counsel in the petition to represent the petitioner as well as the firm of advocates was not a technicality capable of being cured by invoking article 159(2) (d) of the Constitution. It was not in dispute that the petition filed was substantially prosecuted by an advocate who had been suspended from legal practice for a period of six months effective from May 2012.
  2. The pleadings were drawn in contravention of section 34 of the Advocates Act. This fact made the pleadings bad in law and incapable of forming the basis of prosecution of the petition either by the petitioner personally or through any other representative.
  3. The evidence on record was insufficient to prove bribery to the required standard or even shift the burden of proof to the respondents. Despite the petitioner having made allegations that the voters were unduly influenced by acts of witchcraft or violence, he neither stated where or how the voters were influenced by the alleged incidences nor did he lead any evidence to prove commission of the alleged acts by the 1st respondent or his supporters. It was not the paraphernalia that should have been the subject of investigation by the court, but rather their effect. The evidence on this was weak, speculative and at worst, sensational – Bernard Shinali Masaka V Boni Khalwale and 2 others Election Petition No.2 of 2008
  4. Whereas the evidence of petitioner and one of his witnesses was based on alleged confession by the persons who indulged in multiple registration the petitioner never bothered to call any of the said persons as a witness or even file any witness statement in support of the said allegations. Without any independent evidence of confession in court the alleged confessions were no more than hearsay evidence which by dint of Section 63 as read with Section 25A of the Evidence Act, Chapter 80 laws of Kenya, was inadmissible. 110. Since the alleged confession could not form the basis of making a determination that they or any of them was registered more than once as a voter contrary to Section 57(1), equally, it could not suffice to prove the alleged scheme.
  5. The evidence on record was insufficient to prove commission of any election offence by the respondents. From the totality of the evidence adduced in respect of electoral malpractices, irregularities or omissions committed before and during the Kabuchai Parliamentary elections conducted on March 4th 2013, some of which had been admitted by the respondents, the entire electoral process did conformed with the law.
  6. Form 36 was built from data contained in Form 35. There were entries in Form 36 which did not correspond with those in Form 35. However the exercise of scrutiny clearly disclosed that these entries were human errors, probably arising from the fast pace at which the information was expected to be transferred. The errors did not cumulatively affect the outcome for the petitioner or the respondent .Admittedly there were irregularities such as the candidates not signing Form 36, but that alone could not invalidate the election.
  7. The duty of the court was to give effect to the will of the people and forms 35 upon scrutiny confirmed that the results reflected the will of the people of Kabuchai Constituency. James Lusweti Mukwe, the 1st respondent was validly declared the winner for Kabuchai National Assembly seat. The electoral process was credible.

Petition dismissed with costs.
Costs not exceeding Ksh.3 million to be borne by the petitioner. The Registrar to tax the respondents bills of costs.
A certificate to issue as provided under section 86 of the Elections Act.

DEVOLUTION Names of nominees to County Assemblies once rejected cannot be resubmitted

John Kipng'eno Koech & 2 others v Nakuru County Assembly Committee on Appointments & 5 others
Petition No 23 & 25 of 2013 (Consolidated)
High Court at Nakuru
M J Anyara Emukule, J
September, 25 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

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Issues:

  1. Whether the rejection of the names of nominees given by the Governor, for the positions of County Executive Committee, and Public Service Board was contrary to the provisions of the Constitution
  2. Whether an order of certiorari could be granted to quash the decision of the committee on the vetting of Nakuru county executive committee nominees rejecting the names.
  3. Whether the names of the rejected nominees could be resubmitted to the County Assembly.

Devolution-County Government – rejection of the names of nominees to the positions of County Executive Committee and Public Service Board – procedure prescribed for the vetting of nominees to the positions of County Executive Committee and Public Service Board – where the names of the nominees given by the Governor were rejected – whether the rejection of the nominees was contrary to the provisions of the Constitution – whether the names of the rejected nominees could be resubmitted to the County Assembly – County Government Act, section 35 – Public Appointments (Parliamentary Approval) Act sections 7 & 10. Read More...

County Governments Act
Section 35
(1).The governor shall, when nominating members of the executive committee –

(a)ensure that to the fullest extent possible, the composition of the executive committee reflects the community and cultural diversity of the county; and
(b) take into account the principles of affirmative action as provided for in the Constitution

(2). The county assembly shall not approve nominations for appointment to the executive committee that do not take into account

(a) not more than two thirds of either gender;
(b) representation of the minorities, marginalized groups and communities; and
(c) community and cultural diversity within the county.

(3). A person is qualified for appointment for the position of the County Public Service Board under Section 58 (3) if he-

(a) satisfies the provisions of Chapter Six of the Constitution;
(b) is not a state or public officer;
(c) in the case of chairperson or vice-chairperson, possesses a minimum qualification of a bachelor’s degree from a recognised university and working experience of not less than ten years; and
(d) in the case of any other members-

(i) possesses a minimum of a bachelor’s degree from a recognised university and working experience of not less than five years; and
(ii) is a professional, demonstrates absence of breach of the relevant professional code of conduct.

Held:

  1. Although the conditions which the committee on the vetting of Nakuru county executive committee nominees indicated in their first report as being the ones they used in interviewing and examining the candidates during vetting them were generally relevant, they were not in accord with the provisions of either chapter six of the Constitution of Kenya, 2010 or the provisions of section 35(2) of the County Governments Act.
  2. Under section 7 of the Public Appointments (Parliamentary Approval) Act, which the committee on the vetting of Nakuru county executive committee nominees adopted for use in the hearings, an approval hearing had to focus on a candidate's academic credentials, professional training and experience, personal integrity and background, and the criteria set out in the schedule was to be used by a committee during an approval hearing for the purpose of vetting a candidate.
  3. Those criteria were cumulative in effect, and none of them was to be taken in isolation, or regarded as more important than the other. None of them was cited as grounds for rejection of the nominees for the positions in the county executive committee and therefore the Nakuru county assembly committee on appointments, the speaker of the Nakuru county assembly, the Nakuru county assembly and the Attorney-General acted ultra vires the Constitution of Kenya 2010 and the County Governments Act.
  4. For appointment to the position of county secretary however, section 44(2)(a) of the County Governments Act required that the county secretary had to be competitively sourced amongst persons who were university graduates with at least ten years’ experience in administration and management. The nominee for the position of county secretary deponed that he was the interim county secretary for the county and though he could continue serving as interim county secretary, he could only do so pending competitive recruitment of a substantive holder in terms of section 44(2)(a) of the County Governments Act.
  5. Unlike before the Constitution of Kenya 2010 when the power to grant judicial review orders of certiorari, mandamus and prohibition were tacked away in sections 8 and 9 of the Law Reform Act, article 23(3)(f) provided that in any proceedings brought for enforcement of fundamental rights and freedoms of the individual and under article 22 of the said Constitution, the court's jurisdiction and scope to grant those orders was widened and was constitutionally underpinned.
  6. An order of certiorari would issue in circumstances when there were grounds of procedural errors or illegality. A county assembly exercising its administrative function of approval of nominees, had a statutory duty to exercise that function to the fullest extent with the requirements of the enabling law, and failure to do so, would have rendered its findings, ultra vires sections 35(2) & (3) and 58(2) & (3)of the act.
  7. Section 10 of the Public Appointments (Parliamentary approval) Act on rejection of nomination stated that where the nomination of a candidate was rejected by parliament, the appointing authority could submit to the relevant house the name of another candidate, and the procedure for approval specified in the Act would apply accordingly. There was no similar provision in the County Governments Act, which was a later act, having come into effect on 4th or 5th March 2013 (depending upon when the final results of the elections of 4th March 2013 were announced), whereas the former came into force on 14th November 2011.
  8. Therefore, if parliament had intended the provisions of section 10 of the Public Appointments (Parliamentary Approval) Act to apply to appointments under the County Governments Act it would have incorporated it expressly. Though section 14 of the County Governments Act referred to incorporation or adoption of standing orders of the National Assembly, there was no express provision for adoption of the practice under section 10 of the Public Appointments (Parliamentary Approval) Act. The provision would only be regarded as directory and not mandatory in relation to rejected nominees.

Order of certiorari issued to bring to the Court and quash the findings and decisions of the County Assembly of Nakuru as set out in the First Report of the Committee on the Vetting of Nakuru County Executive Committee Nominees; County Public Service Board, Members and County Secretary.

ELECTORAL LAW Special Circumstances when an Election Petition would Proceed to determination without a Supporting Affidavit

Henry Okello Nadimo v Independent Electoral and Boundary Commission & 2 others
Petition No 2 of 2013
High Court at Busia
F Tuiyott, J
September 24, 2013
Reported by Mercy Ombima

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Brief Facts:
The Petitioner, a voter in Budalangi constituency, challenged the outcome of the elections for Budalangi constituency held on the 4th March 2013 general elections, whereby the Second respondent was declared to be the winner. The Petitioner alleged that the Respondents had committed various anomalies during the election process.
He claimed that he had witnessed some irregularities in compilation of data in Forms 34, 35 and 35 and that some party agents were never allowed to sign those forms, among other allegations. The returning officer had confirmed that because of the lack of sufficient copies of Form 35 in some polling stations, not all parties or candidates were provided with a copy of the Form. For that reason, they had resorted to providing copies of the Form to coalitions of parties.
During the elections proceedings, the commissioner for oaths appearing in the Petitioner’s affidavits alleged that he had not commissioned four of the Petitioner’s affidavits. He claimed that the signature appearing on the affidavits was not his, and neither was the stamp of his office. The Respondents wanted the pleadings to be struck off because of that anomaly.

Issues:

  1. Whether the striking out an affidavit in support of an election petition would make the pleadings unsustainable.
  2. Whether in an election petition, an affidavit was a self-contained statement of a petitioner’s claim and hence not part of the election petition.
  3. What is the role of political party agents in an election?
  4. What were the requirements to be met in proving voter bribery?
  5. Whether the failure by IEBC to provide its officers with sufficient electoral documents (Form 35) would warrant for the nullification of the election results

Electoral Law – election offences – forgery of election evidence – where some of the Petitioner’s affidavits were forged – claim that the signature and stamp appearing in the affidavits did not belong to the commissioner for oaths in question – where the deponents of the said affidavits did not see the commissioner for oaths append his signature on the affidavits or stamp them with his office mark – where the court found that the affidavits were invalid – where the issue of illegality of the affidavits was raised after the pre-trial proceedings – whether the election petition could survive without the affidavit in support of them - Civil Procedure Rules order 3 rule 2.

Electoral Law – political party agents – roles, responsibilities and duties of political party agents in an electoral process – Elections Act 2011 section 30; The Election,(General) Regulations 2012, regulation 62 ; 76(4)

Electoral Law - electoral malpractices – voter bribery – proof of bribery – claim that several voters were bribed in a bid to persuade them to vote for the Second Respondent - conduct that amounts to voter bribery - whether the Petitioner had proved that voter bribery occurred during the 4th March 2013 general elections for Budalangi Constituency - Elections Act 2011 section 64 Read More...

Held:

  1. Since the witnesses of the Petitioner did not appear before the commissioner for oaths, no oath was administered on them. The four affidavits were not valid and were therefore not affidavits as contemplated by the Oaths and Statutory Declarations Act Cap 15, Laws of Kenya. The Election Petition Rules required an election petition to be signed by the petitioner or a person duly authorized by the petitioner. The petition was required to be supported by an affidavit containing grounds on which the relief was sought, setting out the facts relied on by the petitioner.
  2. Both the Constitution and statutes were silent on the features of an election petition. It was left to the Election Rules to flesh out the form and contents of a petition, and the manner of its presentation. The accompanying affidavit set out the grounds on which the relief was sought and the facts relied on by the petitioner. That gave notice to the respondent as to the exact nature of the action to be answered. That requirement was not unreasonable, burdensome or onerous. It in fact supported fair trial. An affidavit was therefore not an integral part of an election petition.
  3. Had the issue of legality of the affidavits been brought to the attention of the court earlier, it would have been open to the court to consider whether or not leave to file a fresh affidavit was deserved. The flaw in the affidavits was pointed out after the close of the Petitioner’s case and when the Respondents case had already commenced. There was no begrudging the Respondents as to the timing because the offended counsel (commissioner for oaths) was not a participant in the petition. He only came to learn of the existence of the affidavit when the deponent’s representative called on him requesting for his Practicing Certificate.
  4. It was not tenable for the court, at that stage of the proceedings, to order for the filing of a fresh affidavit and in effect to reboot the hearing. Starting the matter afresh would not have been an efficient way of using judicial time. To restart hearing the matter would have left the parties and court scrambling for limited time. The court would have been irresponsible if it put the proceedings in such a quandary.
  5. Although counsel for the First Respondent had pointed out that the court would be the first if it were to allow the petition to proceed to determination without a supporting affidavit, the unusual circumstances of the case called for an unusual approach. The affidavit was not an integral part of the petition and its absence could not deal a fatal blow to the proceedings. Also, the approach did not prejudice the Respondents. The Election Rules required that the Supporting Affidavit should contain the grounds on which the relief was sought and set out the facts to be relied on by the Petitioner. One reason for that requirement was that the Respondents should be made aware, with reasonable specificity, about the case which they were required to answer. Ambush and surprise were eliminated. In that instant case, the invalid affidavits had given information to the Respondents.
  6. The invalid affidavits could be treated as unsworn written statements of witnesses akin to those accompanying the filing of a suit in the civil process, under order 3, rule 2 of the Civil Procedure Rules. Those statements provided the Respondents with the substance of evidence they were to confront at trial and this helped them prepare their defense, so no harm was suffered by them.
  7. An election court was directed by the provisions of section 83 of the Elections Act as to when it could declare an election to be invalid. Those provisions were to the effect that no election should be declared to be invalid by reason of non-compliance with electoral written laws. That would happen if it appeared that the election was conducted in accordance with the principles laid down in the Constitution and that the non-compliance did not affect the result of the election.
  8. Some of the principles laid down in the Constitution were found in article 81 which provided that, apart from the electoral process being free and fair, it had to be ;-
    1. By secret ballot;
    2. Free from violence, intimidation, improper influence or corruption;
    3. Conducted by an independent body;
    4. Transparent; and
    5. Administered in an impartial, neutral, efficient, accurate and accountable manner.
  9. During voting, the agents observed the process and could raise any queries about it. The agents had a right to be present when a presiding officer assisted or supported assisted voters. At the end of voting, a counting agent observed the counting. Under regulation 76 (4) the agent had a right to raise certain contentions or objections in respect to counting. In addition the agent had a right to require the presiding officer to re-check or re-count the votes. After the count, the agent was expected to sign the Declaration of Results Form and where the agent refused or failed to sign, he was under an obligation to record the reasons for the refusal or failure to sign.
  10. An agent was not merely an exalted observer. He was the eye and ear of the candidate in the election. It was through agents that candidates participated in and observed the election process. It was also through those agents that candidates and the public could require that the Independent Electoral and Boundaries Commission (the IEBC) administered the election in an impartial, neutral, efficient, accurate and accountable manner. When agents carried out their roles diligently, pressure was put on the IEBC to carry out its mandate as was expected by the Constitution and the electoral laws.
  11. An Agent who accepted or acquiesced to an outcome but wished to recant it was required to give plausible reasons for the change of heart. On the converse, the court could take a benign view of the evidence of an agent who raised a legitimate compliant or query in a formal and timeously fashion. Those were but a few instances on how the evidence of an agent could assist the court to assess the credibility of the election process.
  12. Section 64 of the Elections Act defined conduct that amounted to voter bribery. Both the giver and the taker deserved censure. An allegation of the offence must be proved with cogent, credible and firm evidence. The confession of the person alleged to have been bribed was not conclusive evidence that it happened. The claim for bribery could not stand because the alleged evidence was not sufficiently proved. There had been a lot of inconsistencies in the evidence tendered by the Petitioner’s witnesses which weakened the quality of evidence required by the law to prove the existence of bribery.
  13. The Constitution and electoral laws required that an election be conducted in a transparent, accurate and accountable manner. It was for that reason that regulation 79 (2) of the Election Regulations 2012 required a presiding officer to provide each political party, candidate, or their agent with a copy of the Declaration of the Results form. The IEBC was required to ensure that it had sufficient electoral material to enable it carry out its mandate as expected by the Law. There could not be a good excuse for the IEBC to fail to have sufficient copies of such an important document. Although the IEBC failed in its duty to provide sufficient Forms 35 to the all the candidates, that non-compliance with the Law did not affect the result of the election. In so far as the Forms were not a distortion of the count, the non-compliance was not substantial.
  14. The apparent errors and variations on forms 35 and 36 in four of the sixty four polling stations did not cause any benefit or prejudice to any candidate. The variations only made a minute difference to the outcome of the results. Even if the errors were to be corrected, it would fail to significantly close the big gap between the winner and the runners up. The irregularities in Form 36 were therefore not substantial enough for the court to annul the outcome of the election.

Petition Dismissed

ELECTORAL LAW Circumstances in which the High Court can declare a candidate winner in an in an election petition

John Oroon & another v Zebedeo John Opore & 2 others
High Court at Kisii
Election Petitions 2 & 4 of 2013
R N Sitati J
September 20, 2013
Reported by Andrew Halonyere & Cynthia Liavule

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Issues:

  1. Whether the Parliamentary election for Bonchari Constituency held on 4th March, 2013, was conducted in accordance with the principles of the Constitution of Kenya, 2010 and the Elections Act 2011.
  2. Whether the Parliamentary elections was marred with irregularities or malpractices which materially affected the election results.
  3. Whether the High Court had jurisdiction to give effect to section 80 (4) of the Elections Act 2011 by automatic declaration of the apparent winner on a recount as validly elected leader.

Electoral Law- election petition - Parliamentary election - conduct and results - whether there was compliance with the provisions of the Constitution and Elections Act 2011 - whether there was lawful conduct in the Member of the National Assembly Bonchari Constituency election - whether irregularities substantially affected election results - Elections Act, 2011 section 83.

Electoral Law - election petition - Parliamentary election - recount and scrutiny - jurisdiction of the High Court - whether the High Court had jurisdiction to automatically declare an apparent winner on recount as validly elected Member of National Assembly - Constitution of Kenya,2010 article 81 (e),Elections Act 2011,section 80(4).

Statutes-interpretation of statutes - whether the High Court had jurisdiction under section 80(4)of the Elections Act to automatically declare a petitioner a validly elected leader where they were apparent winner on recount of votes during an election petition. Read More...

Constitution of Kenya, 2010
Article105
(1) The High Court shall hear and determine any question whether—
(a) a person has been validly elected as a member of Parliament; or
(b) The seat of a member has become vacant.

(2) A question under clause (1) shall be heard and determined within six months of the date of lodging the petition.

(3) Parliament shall enact legislation to give full effect to this Elections Act, 2011

Section 80(4)
An election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if—
(a) Upon recount of the ballots cast, the winner is apparent; and
(b) That winner is found not to have committed an election offence.

Held:

  1. Section 83 of the Elections Act embodied two principles in which nullification of election results could be allowed. These were when the election was so badly conducted that it was not substantially in accordance with the law as to elections; and when a breach of the rules or a mistake at the polls affected the results. Section 83 of the Act embodied these principles in its provisions to ensure that in all electoral disputes, the will of the electorate was respected.
  2. The evidence before court did not support the allegation of arrest or intimidation by the petitioners. Even if it were to be accepted that there was arrest, it was as result of the unbecoming behavior the petitioner’s election agents while at polling stations. Evidence of the Occurrence Book produced showed that there was no arrest of any of the 1st petitioner’s agents. Even if the allegation was true, it was not so substantial as to affect the result of the election.
  3. Under Regulation 63 of the Elections Regulations, 2012, the presiding officer was under a duty to keep order at his or her polling station. In the circumstances, the claims by the agents that they had been denied access had no basis and even if they were proved, they could not be said to have been a departure from the law and principles of elections; nor could it be said that their denial of access to the polling station room in those circumstances affected the result of the election.
  4. According to the wording of Regulation 79 of the Election Regulations 2012 and section 83 of the Elections Act 2011, mere non-compliance with the regulation did not invalidate the result, and unless the petitioners proved that there were certain other factors that would result in a substantial departure from the law and the principles of elections, the result would not be affected. Applying the provisions of section 83 of the Act, the non-compliance was not such as would invalidate the results announced under Regulation 79 (2) (a). The explanation given by the respondents as to why some agents did not sign the Form 35’s was satisfactory and the petitioner’s allegation that the agents failure to sign the Form 35’s affected the result was not valid.
  5. There was evidence that the Returning officer and some of his presiding officers did not give Statutory comments. Section 83 of the Elections Act provided that no election could be declared to be void by reason of non-compliance with any written law relating to that election if it appeared that the election was conducted in accordance with the principles laid down in the constitution and in that written law or that the non-compliance did not affect the result. The failure to give statutory comments on Form 35’s did not materially affect the result- Wavinya Ndeti –vs- IEBC & 4 others, EP No.4 of 2013.
  6. The purpose of declaration of election results and the issuing of the certificate was to inform those present and for the information of the people of the Constituency the person whom they had elected and that result would not be alterable in view of the certificate issued- Bashir Haji Abdullahi –vs- Aden Mohammed Nooru & 3 others – Garissa EP NO.7 of 2013. The 1st petitioner’s allegations of the Returning officer and IEBC breaching the provisions of article 81 of the Constitution and regulation 83 by failing to publicly declare results had to be dismissed since they were bound by their pleadings in which they stated that the Returning Officer both announced and declared the results of the election. The elections were in a free, fair and transparent manner and the results thereat were duly announced and declared.
  7. On the allegation that some polling stations had few or no agents or that some had more agents than the law required, it was the duty of parties and candidates to appoint agents and send them to the polling stations. The number of agents at any one particular polling station would depend on whether all the candidates had their agents and whether the parties also had agents. Regulation 85 (2) only limited one agent per candidate or political party to the tallying centre.
  8. The evidence from the recount and scrutiny showed and confirmed that there were errors, mistakes and irregularities in forms 35 and 36. It was because of these errors, mistakes and irregularities that the recount and scrutiny in the 49 polling stations isolated by the parties herein was undertaken. These mistakes, whether they were deliberate or innocent as contended by the respondents, affected the result in view of the fact that the 3rd respondent won the election by a margin of 5 votes.
  9. The question of the registers was critical because of some discrepancies between the total votes cast and the number of persons who voted as per the register. The scrutiny revealed that there was a loose register which was christened “Missing Names” and that persons from the said register actually voted. It was not clear to the court whether the “Missing Names” voters were the ones who brought about the difference between the total number of votes cast and the number of persons who voted as per the register. If there had been an apparent beneficiary of these differences, the scrutiny and the recount would have brought it out. The recount and scrutiny only confirmed 1st petitioners’ contention that the 5 disputed votes were cast for him. Therefore the alleged differences between the register and the number of voters were not proved by cogent evidence.
  10. After the ballots were recounted and the scrutiny carried out, the 1st petitioner emerged the winner with a margin of 4 votes with one disputed vote. Section 80 (4) of the Elections Act gave the High Court the options to take after the result of a recount was established, namely to direct the Commission to issue a certificate of election of the concerned elective office where upon recount, the winner was found not to have committed an election offence. The subsection had to be read together with Article 105 of the Constitution.
  11. The High Court had both the power and the jurisdiction to give effect to section 80 (4) of the Elections Act. The automatic declaration of the apparent winner on a recount had however been a subject of discussion and divergent views in a number of decisions both locally and internationally -James Omingo Magara –vs- Manson Oyongo Nyamweya & 2 others – Civil Appeal No.8 of 2010 and Richard Kalembe Ndile case. In both cases, despite a recount establishing the petitioner to have garnered the highest number of votes, they were denied an automatic entitlement to the respondent’s seat. In the James Omingo Magara case which was applied by Majanja J in the Richard Kalembe Ndile Case, the court was of the view that a scrutiny and recount were not an end in themselves.
  12. Article 81 (e) (iv) and (v) of the Constitution had to be considered in light of the recount and scrutiny of votes. The article provided for a transparent election administered in an impartial, neutral, efficient, accurate and accountable manner. The Court was alive to the fact that the will of the electorate of Bonchari Constituency was paramount, so that even where there had been significant breaches of official duties and election rules, so long as such breaches did not affect the result, the 1st petitioner who appeared to have garnered the highest vote on recount could be declared winner if he was found not to have committed an election offence.
  13. While the result of the recount and scrutiny was not the only consideration to be taken into account in deciding whether or not to declare the petitioner entitled to the parliamentary coveted seat, each case had to be decided on its own circumstances. It appeared that the outcome of the petition had reflected the will of the people of Bonchari Constituency in the choice of their member of the National Assembly and there was no reason for punishing the taxpayer a second time.
  14. Considering all the circumstances of the case, including the results of the recount and scrutiny, which brought out the same number of winning votes, but now in favour of the 1st petitioner, there was no reason why the apparent winner in the election could not be declared the winner. Throughout the petition, no finger had been pointed at the 1st petitioner as having committed any election offence. The only attempt made to suggest that he had committed an election offence was by the Returning Officer when he alleged that he had forged the second Form 36. That allegation however was not evidenced.
  15. The 1st respondent’s contention that he won the election had been crushed by the evidence of the recount and scrutiny. The voice of the people of Bonchari Constituency was heard, and their will expressed through their vote on 4th March 2013, where the 1st petitioner won the election by a margin of 4 votes. It was not appropriate to order a fresh election in the matter.

The 1st respondent, Zebedeo John Opore was not validly elected as the member of the National Assembly for the Bonchari Constituency Seat.
The 1st Petitioner John Oroo Oyioka was validly elected as the Member of the National Assembly for Bonchari Constituency
The Certificate in accordance with section 86 of the Elections Act shall issue.
IEBC to bear the costs of the petition as follows:-
1st petitioner to get full costs of the petition.
1st respondent to get full costs of the petition.
2nd petitioner’s costs be capped at Kshs.750, 000/=.
Total costs for 1st petitioner and 1st respondent be capped at Kshs. 1, 500,000/= for each party.
The deposit paid in court to remain so deposited pending the outcome of the taxation by the Deputy Registrar.

CONSTITUTIONAL LAW Engaging in politics not a ground for summary dismissal from employment

John Willice Opot v Starehe Boys Centre
Cause No 375 of 2011
Industrial Court of Kenya at Nairobi
M Onyango, J
September 17, 2013
Reported by Nelson K Tunoi & Beatrice Manyal

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Brief Facts
The Claimant was employed by the respondent in 2003 as Assistant Games Master. His employment was terminated on 8th September 2010 for engaging in active politics by campaigning for Starehe Parliamentary seat. Upon termination he was paid 1 months’ salary in lieu of notice at Shs.25, 080 (net) and service pay of Shs.59, 631. Being aggrieved by the dismissal he filed this claim.

Issues:

  1. Whether the involvement of the claimant in political activities constituted gross misconduct, conflict of interest and/or illegality to warrant his summary dismissal.
  2. Whether the claimant was subject to the Teachers Service Commission Code of Regulations and Public Service Code of Regulations.
  3. Whether the Claimant’s constitutional rights were infringed by his dismissal.

Constitutional Law- fundamental rights and freedoms - freedom of association - right to participate in the activities of a political party or campaign for a political cause – where the claimant was dismissed from employment for engaging in active politics by campaigning for Starehe Parliamentary seat - whether the claimant’s constitutional rights were infringed by his dismissal - Constitution of Kenya, 2010 articles 36 & 37; Employment Act section 44(4),

Employment Law - termination of employment - summary dismissal - grounds for summary dismissal - whether the involvement of the claimant in political activities constituted gross misconduct, conflict of interest and/or illegality to warrant his summary dismissal - where the claimant campaigned for a parliamentary seat in Starehe Constituency in the September 2010 by elections- Employment Act section 12, 44(4),

Employment Law-terms of service - whether the claimant was subject to the Teachers Service Commission Code of Regulations and Public Service Code of Regulations - where starehe Boys center was a non-governmental organization not under the public service – where the claimant was not employed under the Teachers Service commission Read More...

Employment Act section 44 (4) provided;-
(4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause if;-

(a) without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work
(b) during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;
(c) an employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly
(d) an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;
(e) an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.
(f) in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty or,
(g) an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.

Held:

  1. Section 44 of the Employment Act set out what constituted gross misconduct for which disciplinary action could be taken against an employee. Engaging in political activity was not listed as one of the grounds constituting gross misconduct under that section.
  2. The respondent did not show that there were any terms and conditions of service affecting the claimant that prohibited him from participating in active politics. Section 46 of the Employment Act expressly provided that political opinion or affiliation shall not constitute a fair reason for dismissal or for imposition of a disciplinary penalty.
  3. The code of regulations for Teachers which applied to teachers employed by the Commission and the Code of regulations for Public Service which applied to the Civil Service did not apply in the instant case as the respondent (Starehe Boys Centre) was not part of the public or civil service. It was a non-governmental body and was not owned, sponsored or run by the Ministry of Education.
  4. The claimant was not an employee of either the Teachers Service Commission or the Public Service Commission. His terms and conditions of service were therefore not subject to the Code of Regulations for Teachers and the Code of Regulations for Public Service.
  5. If the respondent wished to import the terms of either the Teachers Code of Regulations or the Public Service Code of Regulations into the Claimants terms of employment, it should either have stated so in his letter of appointment or in some other document specifically applying to the respondent’s employees who were not subject to the Teachers or Public Service Code or Regulations.
  6. Although section 12 of the Employment Act required every employer who employed at least 50 employees to have disciplinary rules in a document which was reasonably accessible to the employees. The respondent did not produce any such rules.
  7. The claimant testified that he had been involved in active politics with the knowledge of the respondent over a period of time and this had not interfered with his work. This was not denied by the respondent.
  8. Although the respondent’s constitution at paragraph 3 provided that the Centre shall not participate in any activity of a political nature it did not however state that this applied to employees of the respondent.
  9. The Claimant’s constitutional rights of freedom of association and right to participate in political activities was infringed by the respondent and the termination of his employment was therefore unfair.

Application allowed; claimant awarded Kshs.382, 587.50 and costs of the suit.

EMPLOYMENT LAW An employee cannot be declared redundant without proper redundancy procedures being complied with

Hesbon Ngaruiya Waigi v Equatorial Commercial Bank Limited
Cause No 60 of 2013
Industrial Court at Nairobi
M Mbaru, J
September 16, 2013
Reported by Emma Kinya Mwobobia & Obura Paul Michael

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Brief facts:
The claimant was employed as a Legal Clerk in November 2009 by the respondent who was then operating as Southern Credit Banking Limited, which later merged to form Equatorial Commercial Bank Limited. He served on a probationary contract till March 2011 when he was declared redundant on the basis that since the respondent had become a corporate bank, all his work had been outsourced to external persons and hence his position was redundant hence his immediate termination. He was evaluated twice during this period although without any feedback or being issued with a letter of confirmation. He was never confirmed as an employee, he was denied staff loan facilities and staff training opportunities. He was discriminated against, was harassed, treated with abusive, demeaning and embarrassing language and treated separately as against other staff and against the respondent policy. He sought compensation for unfair termination and damages for discrimination.

Issues:

  1. Whether the claimant was terminated due to redundancy or as per the probationary contract.
  2. Whether the probationary provisions of the contract were still applicable to the claimant.
  3. Whether the claimant suffered discrimination.

Employment Law- termination- termination on account of redundancy- where the claimant claimed he served on a probationary contract exceeding the legal probationary period- claims by the respondent that the claimant’s position was no longer relevant to them- whether the redundancy claims were justified in the circumstances- Employment Act, section 40

Employment Law-termination- termination under a probationary contract- what constitutes a probationary contract- where the claimant served on a probationary contract that exceeded the legal probationary period and was later terminated on account of redundancy- whether the termination ought to have been under the terms of probation rather than on redundancy- whether the termination was unfair in the circumstances- Employment Act, sections 42, 45 Read More...

Section 40 of the Employment Act 2007 provided that:
40. (1) an employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions—

a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;
b) Where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;
c) The employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;
d) Where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;
e) The employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;
f) The employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and
g) The employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.

Held:

  1. Where redundancy was declared by an employer, the procedure to follow had to be as set out under the provisions of section 40 of the Employment Act and where not followed, any termination as a result would be deemed unprocedural and unfair. The conditions provided in section 40 were mandatory and not left to the choice of an employer. Redundancies affected workers livelihoods and where this had to be done by an employer, the same had to put into consideration the provisions of the law.
  2. The process had to be participatory, consultative and informative. The employer must undertake a process to rationalise the various positions in their productivity and business line, which exercise affect various positions as held by their employees. Thus the positions become redundant and not the employees who were employed with skills needed by the employer. The process of redundancy ought not to have affected the performance, qualification or conduct of the employees.
  3. In the current case, the respondent issued the termination letter on the basis that the claimant had become redundant. However in evidence, there was no indication as to the steps taken by the respondent in pursuance to the provisions of section 40 of the Employment Act. It was clear that the claimant was terminated under the terms of probations.
  4. Section 42 of the Employment Act relate to the termination of probationary contracts. The claimant was still held to be on probation even after serving them for over 16 months. The termination was therefore on the basis of a probationary contract that exceeded six months. This was a misapplication of the provisions of the contract as between the claimant and the respondent as the clause on probation provided for 6 months, which could not be extended for more than the legal period of one year and could be terminated within seven days.
  5. However, the respondent decided to rely on this clause for the termination of the claimant as well as not affording him other benefits due to other employees similar placed as him. He could not access loan facilities due to the status of his contract, being on probation, he could be terminated with a 7 days’ notice under the law or as under his contract for one month. He was never considered as a permanent employee who could earn long term benefits like a loan that would take time to repay. This was an unfair labour practice under the meaning of section 45 of the Employment Act.
  6. Where a person was treated differently from others similarly situated like him, then it amounts to discrimination. If the treatment in differentiation was on a specified ground, then whether there was discrimination would depend upon whether, objectively, the ground was based on reasons which had the potential to impair the fundamental rights of a person or to affect them adversely in a comparably serious manner. If there was a specified ground for discrimination, then unfairness would be presumed. If on unspecified ground, unfairness would have to be established by the claimant. In this case, the test of unfairness focused primarily on the impact of the discrimination on the claimant and others in his situation. Where differentiation was found to be unjustified, the same would be discriminatory, unfair and not justified.
  7. Instead of confirming the claimant, he was declared redundant. Even though the respondent stated that other employees were affected by the redundancy situation, records were not availed. Even if this had been availed, the fact remained that the claimant was left as though he was still on probation contrary to the law and this affected his employment benefit. He was not put on the pension scheme as other employee thus diminishing his pension benefits.

Orders:
A declaration that the claimant was unfairly terminated by the respondent
A declaration that the claimant was discriminated against by the respondent
Compensation for unfair termination assessed at 12 months pay amounting to Kshs.360, 000.00
Damages for discrimination assessed at kshs.100, 000.00.
Total award amounting to Kshs.460, 000.00
Costs of the suit awarded to the claimant.

EMPLOYMENT LAW Award of damages for malicious prosecution of employee

Cosmas M Nzau & 2 others v Attorney General
Civil Suit No 714 of 2000
High Court of Kenya at Nairobi
H P G Waweru, J
September 6, 2013
Reported by Teddy Musiga

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Brief Facts The plaintiffs filed the present suit seeking appropriate general and exemplary damages for wrongful and unlawful suspension and ultimate dismissal from service, breach of their constitutional rights, false imprisonment and malicious prosecution, attendant mental anguish, suffering and defamation.

Issues:

  1. Whether the by sending an employee on compulsory leave, interdiction on half pay, suspension without pay and ultimately dismissal from employment amounted to violation of constitutional rights.
  2. Whether a claim for defamation could stand out of a claim for malicious prosecution.
  3. Whether the suspension and ultimate dismissal of the plaintiffs was wrong and unlawful.
  4. Whether there was reasonable and proper cause for the defendant to prosecute the plaintiffs and whether the prosecution was actuated by malice

Employment Law-Employer & employee relationship – suspension and dismissal of employee from service – circumstances in which employment disciplinary mechanisms may amount to malicious prosecution – whether a claim for malicious prosecution is a ground for defamation. Read More...

Held:

  1. The plaintiffs had failed to demonstrate by evidence how the ordinary disciplinary measures of being sent on compulsory leave, interdicted on half pay, then suspended without pay and finally dismissed from their employment amounted to the very serious allegation of being held in servitude, mentally torture and being subjected to degrading treatment. Therefore, no constitutional rights of the plaintiffs were breached sufficient to require the intervention of the court.
  2. For a cause of defamation to stand, it required that the actual words complained of had to be pleaded. In the present case, there was no plea of any words published by the defendant that tended to defame the plaintiffs. The claim per se in defamation had to fail.
  3. The plaintiffs’ suspension was to facilitate a criminal investigation of certain AIEs (Authority to incur Expenditures) they had issued or caused to be issued. It mattered not that they were eventually acquitted of the criminal charge. The suspension from duty was a normal procedure necessary for the matter then at hand to be investigated. It was therefore not unlawful.
  4. The dismissal of the 1st and 3rd plaintiffs was not unlawful or contrary to the law. As regards the 2nd plaintiff, he was not dismissed but merely sent on compulsory retirement on age grounds. Therefore there was no justification why he was denied his pension and other benefits.
  5. Whereas there could have been serious lapses, deliberate or otherwise on the part of the plaintiffs in their performance of their duties with regard to issuance of the AIEs concerned, there was no criminality involved. Imputation of criminality in what were clearly work-discipline issues was a clear manifestation of malice on the part of their superiors who decided to criminally prosecute them. Therefore, there was no reasonable or proper cause to prosecute the plaintiffs, and that their prosecution was actuated by malice on the part of their superiors.
  6. The instant case was not based on defamation but the court had to take into account such proved damage to the plaintiffs’ characters, prospects or fortunes on account of malicious prosecution. It was to be expected that malicious prosecution caused a certain amount of anxiety and distress to the person prosecuted. There was also attendant trouble and inconvenience. But where the plaintiff claimed that the malicious prosecution had damaged his character and reputation, he had to provide some evidence tending to prove such damage. The same applied to any alleged damage to his prospects or fortunes.
  7. Apart from their own testimonies, the plaintiffs did not call or lead evidence regarding damage to their character and reputation or to their prospects or fortunes. They did not call any family member or friend or professional colleague to testify to give credence to their testimonies in that regard. Since the prosecution of the plaintiffs took about two years to complete and each one of them spent some hours in custody before their bail was processed caused them anxiety, annoyance and other inconveniences during the prosecution.

Judgment entered for the plaintiff.
Each plaintiff to be awarded the sum of Ksh. 800,000/= as general damages for malicious prosecution.

JURISDICTION Court rules it is unethical for a Presiding Officer to leave a polling station during elections

Charles Ong’ondo Were v Joseph Oyugi Magwanga & 2 others
Petition No 1 of 2013
High Court at Homa Bay
E N Maina, J
September 2, 2013
Reported by Mercy Ombima

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Brief Facts The Petitioner lost his seat for Kasipul Constituency in Homa Bay County to the First Respondent, during the 4th March 2013 general elections. He complained that various irregularities occurred during that election exercise. He gave an example of where the number of votes cast in several polling stations had exceeded the number of registered voters, among others. The Petitioner wanted the court to annul the election results for Kasipul Constituency due to the alleged irregularly. The First Respondent had in turn disputed the Petitioner’s legal standing to institute the petition, claiming that the Petitioner had not met the academic qualifications set out in the law, for one to be qualified to vie for a constituency seat. He also argued that the Petitioner was not properly nominated as a candidate because he had decamped from his original political party (Orange Democratic Movement ODM)) to another party (The Independent Party (TIP)) after the window for nominations had closed.

Issues:

  1. I. What constitutes a free and fair election? II. Whether it was proper electoral practice for a presiding officer in a polling station to leave the station unmanned during the election process. III. Whether the Member of Parliament for Kasipul Constituency had been validly elected during the 4th March 2013 general elections. IV. Whether the election court had jurisdiction to determine issues on nominations and validity of a contestant’s candidature before elections were conducted.

Jurisdiction – jurisdiction of an elections court – jurisdiction to determine election disputes arising before elections were conducted – whether the court had mandate to determine pre-election issues – where the Petitioner’s candidature to vie for a seat in Kasipul Constituency was objected to – claim that the Petitioner had not been properly nominated – whether the election court was the proper forum for ventilating such issues – Elections Act of 2011, section 74

Electoral Law– electoral malpractices – conduct of electoral officers (IEBC officials) during the election process – claim that the presiding officer of one of the polling stations (Opondo polling station), irregularly left the station to go and vote elsewhere - where the polling station was left under the control of polling clerks and agents – whether the absence of the presiding officer at the polling station constituted electoral malpractice - Constitution of Kenya 2010 articles 81(a); 81(b); 81(c); 81(d); 81(e); 86, Elections Act 2011, section 83 Read More...

Held:

  1. An elections court was obliged to bear in mind the provisions of section 83 of the Elections Act 2011 in arriving at its determination. Not only was it to be established that the irregularities had occurred, it was also to be established that the said irregularities were of such a magnitude, that they substantially and materially affected the result of the election
  2. A free and fair election was one that complied with article 81 ((a)-(e) of the Constitution of Kenya 2010. An election was to comply with the principles of universal suffrage based on the aspiration for fair representation and equality of vote. It was required to be by secret ballot, free from violence, intimidation, improper influence or corruption. Elections were conducted by an independent body, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. Article 86 of the Constitution set out the parameters within which the Independent Electoral and Boundaries Commission was expected to conduct elections. Elections were also required to be in conformity with the principles and procedures provided for in the Elections Act 2011.
  3. Although nothing in the Elections Act and the Independent Electoral and Boundaries Commission Act (IEBC Act) prevented a presiding officer from leaving his station during elections, it would be unethical to do so. It would also be a breach of the code of conduct for members and employees of the IEBC which required them to perform their duties in a manner that maintained public confidence in the Commission. IEBC officials were required to discharge all their duties in a professional, timely and efficient manner, and in line with the Rule of Law.
  4. No election could be said to be free of irregularities. Although the electronic voter identification device at one polling station (Agawo Primary School) had malfunctioned, that was not a unique occurrence. It was common knowledge that the failure had occurred countrywide. The evidence adduced by the Petitioner to prove that the elections were not free, fair and credible fell far short of the standard required. It was contradictory, inconsistent and untrustworthy.
  5. The allegation that the Petitioner was not a qualified candidate to vie for the constituency seat for Kasipul and hence not fit to institute an election petition, could not be entertained in court. The court was not the right forum to adjudicate those issues. Those issues were pre - election issues which under section 74 of the Elections Act, should have been ventilated before the IEBC Dispute Resolution Committee. Once the Petitioner was cleared by IEBC, and ran and lost the elections, and later felt aggrieved, he had a right to file the petition.

The election for Kasipul Constituency was substantially conducted in conformity with the Constitution and the First Respondent was validly elected as the Member of the National Assembly for Kasipul Constituency.

ELECTORAL LAW Power of an elections court to review its own decisions

Clement Kungu Waibara & another v Francis Kigo Njenga & 3 others
Petition No15 of 2013
High Court at Hairobi
R M Mwongo, J
August 29, 2013
Reported by Cornelius Lupao and Mercy Ombima

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Brief Facts
The Petitioners instituted an application to vary or set aside a previous court’s ruling that had struck out their petition for being filed out of time. The court had earlier ruled that the petition had offended electoral laws for not having been filed within twenty eight days from the date of declaration of the election results. The Petitioners wanted the court to enlarge the time and reinstate that election petition.

Issues:

  1. Whether an elections court had power to review its own decisions
  2. Whether the failure to file an election petition within the stipulated time was curable in law and a matter that the court could handle as a procedural technicality.
  3. Whether the Civil Procedure Act and Rules were inapplicable to elections petitions.

Electoral Law – review – review of a ruling made by an elections court - where the court had previously struck out an election petition for being filed out of time – where the Petitioners instituted an application to review those orders - claim that the court had discretion to review its previous orders and reinstate the petition – claim that the failure to file the petition within the stipulated time was a procedural issue which the court had the discretion of varying – whether the court could review its own previous ruling and reinstate the petition – whether an elections court could apply civil procedure rules to review its previous order - Constitution of Kenya 2010 articles 22; 23 (3) (f); 87 , Elections Act 2011 section 76(1)(a), Civil Procedure Act section 80; order 45(1)(a)

Electoral Law-election petition – applicability of the Civil Procedure Rules to election petitions – where the Petitioners sought review of an election decision while applying the Civil Procedure Rules - whether the Civil Procedure Rules were applicable to election petitions - Civil Procedure Act section 80; order 45(1)(a). Read More...

Held:

  1. The proper way to correct a judge’s alleged misapprehension of procedure in the substantive law or alleged wrongful exercise of his discretion was to appeal the decision. That would happen unless the error was apparent on the face of the record and therefore requiring no elaborate argument to expose - Eastern and Southern African Development Bank vs. Africa Greenfields Ltd. & 20 others. The court had previously found that no constitutional authority existed for extension of an election petition. The court could thus not review the same. The only route available to the Applicants in respect of extension of time was through appeal.
  2. Article 87 (2) of the Constitution and section 76 (1) (a) of the Elections Act made provisions for the twenty-eight mandatory period for filing an election petition. There was no other way of construing those provisions to allow for bending of timeframes to file an election suit. Any such interpretation would be repugnant to the justice expected by a respondent to a petition, who was by law entitled to respond to a case against it. That was because a respondent’s response was required to be filed within the timeframes provided for under the Elections Act. Any elasticity in time for a petitioner would have a knock-on effect on a respondent. That would affect such a respondent, on his/her part, in complying with the legal timeframes for replying to a case.
  3. Article 87 of the Constitution was not a mere procedural and technical provision, which would fall afoul of article 159 (1) (d); that required the courts to administer justice without undue regard to procedural technicalities. Both articles were constitutional provisions, and none had inherent supersession over the other. There was no principle of constitutional interpretation that required the court to subjugate article 87 (2) to article 159 (2) (d).
  4. The Civil Procedure Rules did not apply to election petitions except where specifically provided for - Party of Independent Candidates of Kenya and John Harun Mwau v Mutula Kilonzo & 2 others. The Applicants had not made a case warranting review of the court’s earlier ruling, or for extension of time so as to reinstate the petition. The court had no power under the Elections Act to review its decision and further, the review provisions of the Civil Procedure Act and Rules had not been imported into the comprehensive, substantive and procedural electoral law regime.

Application Dismissed

CONSTITUTIONAL LAW Circumstances in which the High Court can deny spouse alimony after dissolution of marriage

SMR v PHS
High Court at Nairobi
Divorce Cause No 5 of 2012
W M Musyoka J
August 15, 2013
Reported by Andrew Halonyere& Cynthia Liavule

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Issue:

  1. What was the effect of article 45 (3) of the Constitution on section 25 of the Matrimonial Causes Act in relation to alimony.

Constitutional Law – rights of spouses in a marriage – whether parties to a marriage are entitled to equal rights at the time of marriage during marriage and at dissolution of marriage – Constitution of Kenya, 2010 article 45 (3) – Matrimonial Causes Act (Cap 152) section 25.

Statutes-interpretation of statutes-effect of article 45(3) of the Constitution on provisions of section 25 of the Matrimonial Causes Act Read More...

Constitution of Kenya, 2010
Article 45

(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

Matrimonial Causes Act (Cap 152) 25.
(1) In any suit under this Act, the wife may apply to the court for alimony pending the suit, and the court may thereupon make such order as it may deem just:
Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue in the case of a decree nisi of dissolution of marriage or of nullity of marriage until the decree is made absolute.

Held:

  1. Section 25 of the Matrimonial Causes Act empowered the court to make such orders as it deemed just in the event of being confronted with an alimony application. Under the provision the court could order provision for a wife by her husband. The order however would depend on the circumstances of each case.
  2. Under article 45(3) of the Constitution, the standard in determining the rights of spouses in a marriage was that the husband and wife must be treated as equals and neither had a greater or lesser obligation than the other in relation to maintenance.
  3. Where spouses had no children, a wife did not enjoy advantage over a husband or vice versa and the age-old tradition in which men were deemed to be the sole breadwinners and to carry the burden of maintaining their spouses did not hold true anymore. Under the Constitution, the respondent had a duty to support and maintain herself no less than the petitioner had to support himself and there was no greater obligation on the part of the petitioner to support himself than there was on the part of the respondent to support herself.
  4. No spouse who was capable of earning could be allowed to shirk responsibility to support himself or herself or turn the other spouse into a beast of burden, but where a spouse deserved to be paid maintenance in the event of divorce or separation the law had to be enforced to ensure that a deserving spouse enjoyed spousal support so as to maintain the standard of life he or she was used before separation or divorce. The financial capacity of the spouses had to be examined before the court made a ruling as to whether a spouse should pay maintenance and if so how much.

Application dismissed.


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