Weekly Newsletter 009/2017

Weekly Newsletter 009/2017



Kenya Law

Weekly Newsletter


Role of the Kenya Revenue Authority on Tax Assessment and Tax Exemption with regards to Persons with Disabilities
Stephen Kariuki Kamau & 5 others v Kenya Ports Authority & 6 others
Constitutional Petition No. 21 of 2016
High Court of Kenya at Mombasa
A Emukule, MBS M.J J
October 27, 2016
Reported by Phoebe Ida Ayaya
Download the Decision
Constitutional Law- constitutional issues- justifiable constitutional issues- whether there was a justifiable constitutional issue as regards to the infringement to right of privacy with people with disabilities to be determined by the Court as raised by the Petitioners
Constitutional Law- fundamental rights and freedoms- right to privacy- rights of persons with disabilities -circumstances under which the right to privacy could be waived -Constitution of Kenya, 2010 articles 28, 29(d) (f), 31,36, 47; Persons with Disabilities Act sections 12, 15 & 35; Persons with Disabilities (Income Tax Deduction and Exemptions) Order, 2010 rule 4(4)
Tax Law- income tax- exemption of people with disability with regards to Income tax- the mandate of KRA with regard to exemption- Role of the Kenya Revenue Authority on Tax Assessment and Exemption with regards to persons with Disabilities- whether the registration of persons under the National Council for Persons with Disabilities constituted an exemption from tax reassessment- Persons with Disabilities Act sections 12, 15 & 35; Persons with Disabilities (Income Tax Deduction and Exemptions) Order, 2010 rule 4(4)
Tax Law- income tax- exemption of people with disability with regards to Income tax- the mandate of KRA with regard to exemption- whether the actions by the management of the 1st and 2nd Respondents in calling the Petitioners for purposes of assessment of their respective disabilities, and thereby calling into question their continued enjoyment of tax benefits and privileges as persons with disabilities was a violation of their constitutional rights and freedoms as guaranteed in the respective articles of Constitution of Kenya 2010

Brief facts:
The Petitioners who described themselves as persons with disabilities duly registered with The National Council for Persons with Disabilities claimed that their rights to tax exemption under the Income Tax Act was being violated and/or threatened with violation by the Respondents requirements to subject them to medical re-examination to confirm their status as persons with disabilities, and consequently entitled to tax exemption.
The Petitioners claimed that the Respondents had no such power, and that the actions in particular of the 1st and 2nd Respondents were in violation of the provisions of Persons with Disability Act sections 12,15 and 35 and articles 31,36, 29(d) (f) ,28, 47 of The Constitution of Kenya, 2010 and rule 4(4) of the Persons with Disabilities (Income Tax Deduction and Exemptions) Order, 2010. The Petitioners therefore sought for; conservatory orders, declaration of rights, compensation from the Respondents and costs of the petition.

Issues:
  1. Whether there was a justifiable constitutional issue as regards to the infringement to right of privacy with people with disabilities to be determined by the Court as raised by the Petitioners
  2. The Role of the Kenya Revenue Authority on Tax Assessment and Exemption with regards to People with Disabilities
  3. Whether the registration of persons under the National Council for Persons with Disabilities constituted an exemption from tax reassessment
  4. Whether the actions by the management of the 1st and 2nd Respondents in calling the Petitioners for purposes of assessment of their respective disabilities, and thereby calling into question their continued enjoyment of tax benefits and privileges as persons with disabilities was a violation of their constitutional rights and freedoms as guaranteed in the respective articles of Constitution of Kenya 2010

Relevant Provision of the Law
Constitution of Kenya, 2010
Article 260 defines disability as including –

“…any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long term effect on an individual’s ability to carry out ordinary day-to-day activities.”

Persons with Disabilities Act
Section 6 defines “disability” as meaning –

“physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability which impacts adversely on social, economic or environmental participation.”

Held:
  1. Disability was defined in article 260 of the Constitution of Kenya, 2010 and section 6 of The Persons with Disability Act (The Act). For purposes of determining whether any person was suffering from disability as was defined in the Constitution of Kenya, 2010 and the Persons with Disabilities Act, section 7(1)(c) of the Act provided for registration of persons with disabilities for the Kenya Revenue Authority (2nd Respondent) to determine whether any employee of the Kenya Ports Authority (1st Respondent) was subject to disability as so defined.The Kenya Revenue Authority Act imposed upon the 2nd Respondent the duty to investigate all claims and information received from any source to the effect that any party had evaded the lawful payment of taxes and to conduct periodic audits for purposes of confirming that proper taxes were declared and paid.
  2. Under section 5 of the Kenya Revenue Authority Act the 2nd Respondent as the agency of the Government for the collection and receipt of all revenue was charged with the administration and enforcement of all tax laws.
  3. Under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010 eligibility for tax exemption was not automatic.The process of qualification must have been complied with to the satisfaction of the Commissioner of Inland Revenue, that the person to be declared as disabled, was duly registered upon a recommendation of the National Council for Persons with Disabilities.
  4. The Commissioner was required to act within sixty (60) days of receipt of a recommendation from the Council, to determine an application for tax exemption.The conditions for determining such an application included; the person’s physical, visual or mental impairment, that such impairment was long term, and the impairment substantially limited the daily activities of the person concerned.
  5. Unlike the National Council for the Persons with Disabilities whose interest was about the total population of persons with disability, the interest of the 2nd Respondent was only with Persons with Disability who qualified for tax exemption status. The 2nd Respondent was responsible for decisions which brought about an efficient and effective administration and integrity of the tax system which included – taxpayer perceptions, fairness, impartiality, confidentiality and the responsibilities of taxpayers to comply with the law.
  6. The 2nd Respondent Commissioner was empowered under the provisions of Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 to require for any other information that he might have considered necessary to facilitate the determination of an application, including requiring the applicant to appear before him for an interview. The Commissioner could revoke a tax exemption certificate issued if he was satisfied that the status of the Applicant had significantly changed in a manner that affected his or her eligibility status for the tax exemption and that the applicant omitted material information at the time of making the application that if such information was submitted it could have affected his or her eligibility for tax exemption.
  7. A comparative analysis of the case law in Kenya and other jurisdictions clearly showed that the right to privacy was not absolute. The Medical Practitioners and Dentists Board (Disciplinary Proceedings) Rules made under the Medical Practitioners and Dentists Act which prohibited abuse of professional confidence as provided in Rule 8
  8. The Medical Practitioners and Dentist Board (Disciplinary Proceedings) (Procedure) Rules may be summarized into three principles –
    1. a medical practitioner or a medical facility (hospital/clinic) is under obligation not to release confidential information about a patient without the patient’s knowledge or consent;
    2. there are however, circumstances in which a medical practitioner or institution may be required to release such information for valid governmental and public interest reasons;
    3. a medical practitioner or institution may be required by law or a court order to release information about a patient without the patient’s consent
  9. Having received information that the privileges conferred under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 were being abused by among others, employees of the 1st Respondent who were registered as persons with disabilities, the 1st Respondent had a legal duty to carry out a review of all its employees subject to disabilities.
  10. The Petitioners were accordingly informed in writing of the reasons and the action the 1st and 2nd Respondents were proposing to take in order to ascertain that the benefits and privileges accorded to the Petitioners under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 were not abused by any of the persons granted such benefits and privileges.
  11. The 1st Respondent would be failing in its administrative and legal obligation to ensure that any person with disability and who was a beneficiary of the tax reliefs was legally and therefore constitutionally entitled thereto.That included the approval of not only of salaries, and wages, but other forms and conditions and terms of service.
  12. It was the constitutional duty under article 201 of the Constitution for the 2nd Respondent to ensure that the public finance system promoted an equitable society where the burden of taxation was shared fairly.The Kenya Revenue Authority Act, conferred upon the 2nd Respondent the jurisdiction to administer and enforce inter alia the Income Tax Act, and for that purpose, to assess, collect and account for all revenues in accordance with that Act, and other laws it was entrusted under the said Act, to administer.
  13. The 1st and 2nd Respondents had a clear mandate under respective statutes to ensure for purposes of accounting for revenue, that no person including persons with disabilities would abuse the benefits and privileges conferred upon such person or persons under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010.
  14. Neither the 1st nor the 2nd Respondent breached any of the Petitioners’ rights either under the Constitution or the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010.The 1st and 2nd Respondents merely informed the Petitioners and other staff of the 1st Respondent that they would be re-assessed or re-examined in the course of the Respondents’ respective normal duties to protect the integrity and efficiency of the tax system.
  15. In effect, the majority of the persons re-assessed and re-examined were found to be persons with disabilities, persons whose disability had, or was perceived by a significant sectors of the community to have had a substantial or long term effect on an individual’s ability to carry out ordinary day to day activities.
  16. Of those four (4) out of the eighty-six (86) re-assessed and re-examined, none had been denied the extensive benefits and privileges under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 or other benefits under sections 35 or 36 of the Persons with Disabilities Act, (That could only be done after re-assessment and re-examination by the Director of Medical Services, the 2nd Interested Party.The Petitioners themselves were willing to be so re-assessed and/or re-examined.The Respondents too were well aware of that requirement.
  17. The functions of the 1st Interested Party, (the National Council for Persons with Disabilities) set out in section 7 of the Persons with Disabilities Act, did not include the conferment of tax benefits or privileges.The registration of persons with disabilities was only a first step and did not constitute an exemption from tax.That was a function of the Minister responsible for matters relating to finance and revenue, and to whom the Second Respondent was accountable.
  18. The re-assessment and re-examination of the Petitioners and other persons with disabilities was a lawful administrative action by the 1st and 2nd Respondents and did not constitute any violation of any provisions of the Constitution or articles 25, 28, 31, 47 and 54 in particular.There was no material evidence of any inhuman or cruel treatment, or violation of human dignity which was the core of all human rights, or the right to privacy, or the right to fair administrative action, or the rights of persons with disabilities.
Petition dismissed with costs to each party.
Kenya Law
Case Updates Issue 009/2017
Case Summaries

LAW OF THE SEA

Jurisdiction of the National Land Commission over the territorial sea, the exclusive economic zone and the sea bed

Water Resources Management Authority V. Kensalt Limited
ELC Civil Case No. 28 of 2013
Environment and Land Court at Malindi
O. A. Angote
October 17, 2014.
Reported by John Ribia & Felix Okiri.

Download the Decision

Law of the sea – freedom of the seas (mare liberum) - ownership of rights of exploitation, conservation and management of the natural resources of Maritime Zones - jurisdiction of the State to regulate and manage the use of sea water - whether sovereignty of a coastal state extends beyond its land territory and internal waters to the territorial sea – whether a State could regulate and manage the use of sea of water – Constitution of Kenya article 66 - Maritime Zones Act, Section 5. United Nations Convention on the Law of the Sea, Article 2(1) of Part II

Constitutional Law- land and environment - water resources – public land – composition of public land - whether public land includes the territorial sea, the exclusive economic zone and the sea bed - Constitution of Kenya 2010, article 62(1)(j)

Constitutional Law – land and environment – water resources – marine waters – legal nature of marine waters – whether land includes any marine waters in the territorial sea and the exclusive economic zone - Constitution of Kenya 2010 article 260

Land Law - National Land Commission – mandate of the National Land Commission – jurisdiction of the National Land Commission to regulate and manage the use of sea water – whether the National Land Commission had the constitutional mandate to administer, manage and regulate the territorial sea, the exclusive economic zone and the sea bed – Constitution of Kenya 2010, article 62(3)

Land Law – water resources – regulation and management of internal water resources – what was the authority mandated to issue permits and charges for the use of water derived from a water resource - Water Resources Management Rules, Rule 104

Brief facts:
On November 21, 2013, the Plaintiff/ Respondent commenced the suit by way of a Plaint seeking the payment of Kshs.270,295,759 by the Defendant/ Applicant being the outstanding water use charges for the period between 1st October 2007 to September 31, 2013 together with interest as per the Water Resources Management Rules, 2007 (the Rules).

The Defendant/Applicant filed an Application dated January 17, 2014 pursuant to the provisions of Order 2 Rule 15 (1) (a) and (d) of the Civil Procedure Rules seeking orders that the Plaintiff/Respondent’s plaint be struck out and that the suit be dismissed with costs for failure to disclose a reasonable cause of action as against the defendant/applicant.

Defendant/Applicant claimed that sea water was not a water resource as was defined under section 2 of the Water Act (the Act) and consequently, the Defendant/ Applicant did not require a permit for the use of the sea water.
The defendant/ Applicant also claimed that the National Land Commission was the relevant state organ that had exclusive jurisdiction over sea water falling within the territorial sea and the exclusive economic zone. And that sea water was resnulliusand was incapable of ownership by any person in law and in equity.

Issue:
  1. Whether the Kenyan Government could regulate the use of sea waters.
  2. Which state organ had the constitutional mandate to administer, manage and or regulate the territorial sea, the exclusive economic zone and the sea bed?
  3. Whether sea water was res nullius (a thing which has no owner)and incapable of ownership.
  4. Whether the National Land Commission could impose tax or licensing fees for the usage of sea water without any enabling legislation
  5. What was the status of legislation that were not repealed by the Land Act 2012 and that dealt with the administration and management of the territorial sea, the exclusive economic zone and the sea bed before the enactment of the Constitution of Kenya 2010?
  6. Whether sea water was a water resource as defined under the Water Act.Read More...

Held:

  1. The Constitution of Kenya, 2010, local legislation and international law provided a framework for the definition of sea waters. Article 62(3) of the Constitution defined land to include any marine waters in the territorial sea and the exclusive economic zone. Article 62(1)(j) defined public land to include the territorial sea, the exclusive economic zone and the sea bed. Article 62(3) provided that the territorial sea, the exclusive economic zone and the sea bed were vested in and were held by the national government in trust for the people of Kenya and were to be administered on their behalf by the National Land Commission. Section 5 of the Maritime Zones Act provided that Kenya could within the exclusive economic zone, exercise sovereign rights with respect to the exploitation and conservation and management of the natural resources of the zone. Article 2(1) of Part II of the United Nations Convention on the Law of the Sea, which Kenya ratified, provided that the Sovereignty of a coastal state extended beyond its land territory and international waters, to an adjacent belt of sea, described as the territorial sea.
  2. The totality of the decision by the Court of Appeal in Kenya Power Ports Authority V East African Power & Lighting Company (1982) KLR 410 (the KPA case), that held that no government or person had any proprietary rights in the water above the sea, was that sea water could be used by all and sundry and could even be polluted to any extent possible because such water was not owned by anybody. The decision in the KPA case was premised on the ground that no actual damage had been caused to any of the appellant’s property by virtue of the pollution of the port waters and therefore, the pecuniary loss which arose out of the precautionary measures taken by the appellant to clean up the polluted water was not recoverable at common law. That might have been the position before the enactment of the Environmental Management and Coordination Act, 1999 and the proclamation of the Constitution of Kenya in 2010, but not anymore. The KPA decision had been made before the country ratified the United Nations Convention on the Law of the Sea.
  3. Section 3 (1) of the Environmental Management and Coordination Act, 1999 provided that every person in Kenya was entitled to a clean and healthy environment and had the duty to safeguard and enhance the environment. The Act defined the word environment as the physical factors of the surroundings of human being, which included sea water. Section 3 (3) and (4) of the Act allowed any person who alleged that the entitlement conferred under subsection (1) had been, was being or was likely to be contravened in relation to him to bring an action notwithstanding that such a person could show that the defendant’s act or omission had caused or was likely to cause him any personal loss or injury. That provision was repeated at Article 70 of the Constitution.
  4. In so far as the Constitution had included the territorial sea, the sea bed and the exclusive economic zone in the definition of public land, and had defined land at Article 260 to include marine waters in the territorial sea, sea water was not capable of ownership. Sea water, otherwise then known as marine water in the territorial sea, was vested in the State notwithstanding the fact that it was unidentifiable and kept on moving. That was based on the provisions of article 61(1) of the Constitution which provided that all land in Kenya, including marine water in the territorial sea belonged to the people of Kenya collectively as a nation, as communities and as individuals. The people of Kenya were therefore the owners of the marine water in the territorial sea and the exclusive economic zone and the national government held such land in trust for them.
  5. The Forth Schedule to the Constitution stipulated under Part 1, paragraph 2 that the use of international waters and water resources was a function of the national government, clearly showing that such waters were not res nullius. Sovereignty over such waters could not be separated from ownership. Under International law, there were exceptions to the issue of exclusive ownership of sea water, like the right of innocent passage through the territorial sea.
  6. The fundamental restriction upon the sovereignty of the coastal state was the right of the other nations to innocent passage through the territorial sea, and this distinguished the territorial sea from the international waters of the State, which were fully within the unrestricted jurisdiction of the coastal nation.
  7. The right of other nations to innocent passage upon the territorial sea or the exclusive economic zone of the country under international law did not negate the concept of ownership of such waters in so far as the Constitution and the international law was concerned. The rights of other States to use sea water within the territorial sea or exclusive economic zone of Kenya had been provided for in various Conventions and at section 6 of the Maritime Zones Act. Those rights included navigation and over-flight, laying of submarine cables and properties and other lawful uses recognised in international law.
  8. The United Nations Convention on the Law of the Sea and the Maritime Act allowed Kenya to exercise sovereign rights with respect to the exploration, exploitation, conservation and management of the natural resources within its territorial waters and exclusive economic zone. It could not be said that it could not own such waters other than pursuant to the exceptions provided for by the international and domestic law.
  9. One could only explore and exploit the natural resources in such water if one owned the water and as long as the water was within the territorial sea and the exclusive economic zone. The marine water in the territorial sea was indeed public land. Consequently, sea water could only be used in accordance with the laws of Kenya including international law.
  10. Article 62 (4) of the Constitution provided that Public land ought not to have been disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use. The territorial sea, the exclusive economic zone and the seabed, according to Article 62(3) of the Constitution, was vested in and was held by the national government on behalf of the people of Kenya and administered on its behalf by the National Land Commission. Article 62(3) of the Constitution was complemented by Article 67 (2) (a) which provided that it was the National Land Commission that should manage public land on behalf of the national and county government. This function of the National Land Commission had been repeated in section 5 (1) (a) of the National Land Commission Act, 2012.
  11. The National Land Commission was the only body that was supposed to administer and manage the territorial sea, the exclusive economic zone and the sea bed on behalf of the people of Kenya and not any other State organ.
  12. The constitutional and statutory provisions meant that although the territorial sea, the exclusive economic zone and the sea bed were owned by the national government on behalf of the people of Kenya, the national government or its organs could not purport to deal with the territorial sea, the exclusive economic zone and the sea bed in any manner it wanted. Only the National Land Commission could decide on how the territorial sea, the exclusive economic zone and the sea bed could be used. It alone could regulate its use. That was because the National Land Commission was the only body that was constitutionally mandated to administer and manage public land.
  13. The Black’s Law Dictionary, 9th edition defined the word ‘administration’ to mean the management or performance of the executive duties of a government, institution or business. All the performance of the executive duties in relation to the use of the territorial sea, the exclusive economic zone and the sea bed was therefore bestowed to the National Land Commission by the Constitution and the National Land Commission Act, 2012.
  14. Subject to article 66(1) of the Constitution, the only occasion that the national government could regulate the use of the territorial sea, the exclusive economic zone and the sea bed was in the interest of defence, public safety, public order, public health or land use planning.
  15. The Constitution of Kenya 2010, Article 62 (4) stipulated that public land, which included the territorial sea, the exclusive economic zone and the sea bed, was not to be used except in the manner specified in an Act of Parliament. Legislation on regulation of land use and property was supposed to be enacted by parliament within five years from the date of the promulgation of the Constitution pursuant to the provisions of the Fifth Schedule of the Constitution. Parliament had enacted the Land Act, 2012 which provided how the administration of public land was to be carried out. Part III. Section 20 (1) of the Land Act provided that the National Land Commission could grant a person a licence to use unalienated public land which included the territorial sea, the exclusive economic zone and the sea bed for a period not exceeding five years.
  16. Under the new constitutional dispensation, it was only the National Land Commission that could license a person to utilize sea water within the territorial sea and the exclusive economic zone for the period stipulated in the Land Act and not any other State organ.
  17. It was puzzling that the Land Act only repealed the Way leaves Act and the Land Acquisition Act. The other pieces of legislation dealing with the administration and management of public land like the Water Act and the Kenya Maritime Authority Act, amongst others, were still in force. The pieces of legislation that purported to create bodies that tended to perform the functions reserved for the National Land Commission by the Constitution were bound to be declared unconstitutional in the foreseeable future.
  18. It was only the National Land Commission which had the constitutional mandate to administer and manage all public land, including the territorial sea, the exclusive economic zone and the sea bed on behalf of the national government, and not any other State organ. That mandate included deciding the person that could use such resources by issuing of licenses.
  19. The administration and management of the territorial sea, the exclusive economic zone and the sea bed could only be defined and contextualized upon the passing of relevant legislation. In the meantime, any legislation that purported to deal with the administration and management of the territorial sea, the exclusive economic zone and the sea bed, if any, had to be construed with alteration, adaptations, qualification and exceptions, necessary to bring it into conformity with section 7 of the sixth schedule of the Constitution.
  20. Although it was the National Land Commission that had the mandate of administering and managing all public land, either on behalf of the national government or the county government, the Commission could not levy taxes on the usage of such land. It was only the national government, through its organs, that could impose tax or licensing fee for the usage of sea water which was a national resource, pursuant to the provisions of Article 209 (1) and (2) of the Constitution.
  21. Article 210 of the Constitution bared the imposition of any tax or licensing fee except as was provided for by legislation. The Plaintiff could therefore lawfully levy taxes for the usage of a water resource as was defined in the Water Act on behalf of the national government. Any charges that were imposed on a subject must have been imposed by clear and unambiguous language. In a taxing Act, clear words were necessary in order to tax the subject. In a taxing Act, one had to look merely at what was clearly said. There was no room for any intendment. There was no equity about tax. There was no presumption as to a tax. Nothing was to be read in, nothing was to be imposed. One could only look fairly at the language used.
  22. Sea water was not included in the definition of the word ‘water resource’ under Section 2 of the Water Act which included :- any lake, pond, swamp, marsh, streams, water course, estuary, aquifer, artesian basin or other body of flowing or standing water, whether above or below the ground.
  23. The wordsother body of flowing or standing water’, as were used in the Act were general words which followed particular and specific words as were set out in the definition of what a water resource was. Under the ejusdem generis rule (of the same kind), those general words were supposed to be confined to things of the same genus.
  24. All the waters that were defined by the Act as ‘water resource’ were what could be described as internal waters. That was water within the territory of Kenya excluding the territorial sea and the economic exclusive zone. The wordsother body of flowing or standing water’, whether above or below ground, as were used in the statute could only refer to the internal waters and not the territorial sea or sea water.
  25. The non-similarity of what a lake, a pond, a swamp, a marsh, a stream, a watercourse, an estuary, an aquifer and an artesian basin was and what sea water was could be discerned from the definition of what ‘land’ and ‘public land’ was in the Constitution. Rivers, lakes and other water bodies as was defined by an Act of Parliament had been clustered together at Article 62(1) (i) of the Constitution while the territorial sea, the exclusive economic zone and the seabed had been clustered under Article 62(1) (j).
  26. The intention of Parliament to confer jurisdiction on the Plaintiff to levy charges for the use of only internal waters and not sea water could also be discerned from the Water Resources Management Rules, 2007. Rule 4(2) provided that the Rules ought to have applied to all water resources and water bodies in Kenya including all lakes, watercourses, streams and rivers, whether perennial or seasonal, aquifers. Rule 4 (2) limited the application of the rules to coastal channels leading to the territorial waters thus stopped the Plaintiff from exercising its rights over the territorial sea or sea water.
  27. The draft Water Bill, 2014 had now taken care of the lacuna in the Water Act by proposing to redefine the definition of the word water resource, as any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or other water body of flowing or standing water, whether above or below the ground and included trans-boundary water resources within the territorial jurisdiction of Kenya. The section further defined ‘trans-boundary’ waters as the ocean water beyond territorial waters.
  28. The meaning of a water resource as was defined in the Water Act had to be confined to the water resources that existed on the main land. Other body of standing or flowing water could not include water that existed outside the mainland such as marine water. This was because all the examples of water bodies given in the Act referred to water bodies that existed within the land territory of a State, otherwise then known as internal waters.
  29. If Parliament had intended to include sea water in the definition of a water resource for the purpose of levying taxes, nothing would have been easier than for it to state so considering that the definition of sea or ocean was quite distinct from other standing or flowing water within the internal boundaries of a country.
  30. It could be argued that the strict interpretation of what flowing or standing water was would allow the Defendant and other parties to evade tax. Construction that was favoured left an easy loophole through which the evasive taxpayer might have found escape. That could have been so but it was not the function of a court of law to give to words a strained and unnatural meaning because only thus will a taxing section apply to a transaction which, had the legislature thought of it, would have been covered by appropriate words.
  31. A statute that imposed tax on the subject must have been clear in its language so as not to allow speculation on what was payable with the concomitant result of abuse by the State organ mandated to collect taxes. Parliament should have specifically stated that sea water was a water resource for the purpose of levying charges for its use by the Plaintiff.
  32. A lake, pond, swamp, marsh, stream, water course, estuary, aquifer, artesian basin and sea water were two different categories of water and could not be said to be of the same kind, class or nature for the purpose of statutory interpretation. The Plaintiff therefore did not have the locus standi to levy charges for the use of sea water under the Water Act and the Water Resources Management Rules.
  33. The Plaintiff’s suit was wholly based on the erroneous presumption that it could levy charges for the use of sea water pursuant to the provisions of the Water Act and the Water Resources Management Rules. The Plaintiff’s suit did not disclose a reasonable cause of action in law as against the Defendant.

Plaintiff’s suit struck out with costs to the defendants/applicants.

CONSTITUTIONAL LAW Conflict between principles of usages of International Law and Kenyan Law

Federation of women Lawyers (Fida Kenya) & 4 others v Attorney General as Representative of Lands & 2 other
Environment and Land Court at Malindi
ELC Constitutional Petition No. 8 of 2013
O A Angote J
September 14, 2016
Reported by Kipkemoi Sang & Priscilla Mtawe

Download the Decision

Constitutional Law-fundamental rights and freedoms-right to own property- Whether the Giriama people were discriminated against and their rights to own property dating back to the historical times were violated -Constitution of Kenya 2010, article 40

Constitutional Law- conflicts of law- conflict between municipal law and principles of usages of International Law -which law takes precedent where there was conflict between principles of usages of International Law and Kenyan Law- European Convention on Human Rights, 1950, articles 8, 9, 13 and 14; Land Title Act (repealed) section 2 and 15(1)

Constitutional Law-constitutionality of statutory provisions-whether the provisions of Land Titles Act (repealed) contravened the European Convention on Human Rights (ECHR), and the provisions of the repealed Constitution-Constitution of Kenya, 1963 (repealed); European Convention on Human Rights, 1950, articles 8, 9, 13 and 14; Land Title Act (repealed) section 2 and 15(1)

Land Law- colonial land governance- law which governed ownership of land in the pre-colonial and colonial period -what set of land laws governed land at the coastal strip from the day of the proclamation of protectorate in 1895- Land Title Ordinance of 1908

Brief facts:
The Petitioners filed the claim on their own behalf and on behalf of the Giriama people alleging inter alia violation of rights of the Giriama people and their long gone ancestors. The genesis of their claim was that one of their ancestors Mzee Mtsunga together with his ten wives lived in the suit property way before the land was surveyed and allocated to Mohamed bin Salim in 1911. The Petitioners contested that the issuance of Certificate of Title to one Sheikh El Mazrui in 1911 was unconstitutional because they were discriminated against and their rights to own property were violated. In light of the said unconstitutionality, the Petitioners sought judicial review orders to quash all the subsequent deeds, agreements and Certificates of Titles relating to the suit property and a declaration that section 2 and 15 (1) of Land Titles Act (repealed) contravened articles 8, 9, 13 and 14 of the European Convention on Human Rights (ECHR), and also inconsistent with the provisions of the repealed Constitution.


Issues:

  1. What set of land laws governed land at the coastal strip from the day of the proclamation of protectorate in 1895?
  2. Whether the provisions of Land Titles Act (repealed) contravened the European Convention on Human Rights (ECHR), and the provisions of the repealed Constitution.
  3. Which law took precedent where there was conflict between principles of usages of International Law and Kenyan Law?
  4. Whether the Giriama people were discriminated against and their rights to own property dating back to the historical times were violated. Read More...

Held:

  1. From the day of the proclamation of the protectorate in 1895 until when the Land Title Ordinance of 1908 was enacted, there were no formal set of land laws at the Coast. The Imperial British East Africa Company inherited all the rights to acquire, regulate and alienate land within the 10 mile coastal strip which remained under the sovereignty of the Sultan of Zanzibar.
  2. Pursuant to section 15 of the Land Titles Act all persons who claimed interest in land along the coastal strip were required to lodge their claims with the Recorder of Titles. Any dispute that arose from those claims was dealt with by the Land Registration Court. Where the Recorder of Titles was satisfied that a claim was valid, a Certificate of Ownership would issue to the claimant. In the instant case the Petitioners did not present their claim to the recorder of titles.
  3. Section 21 of the Land Titles Act provided that every Certificate of Title issued by the Recorder of Titles would be conclusive evidence against all persons including the Government and the Certificate of Ownership would be conclusive proof that the person to whom the Certificate was granted was the owner of the land.
  4. Section 17 of the Land Titles Act (repealed) provided that all land situated in an area to which the Act applies which no claim for a Certificate of Ownership had been made, would be deemed to be Government land. That provision explained why land which was not private land in the Coastal region was government land as opposed to Trust land.
  5. Section 75 of the Constitution of Kenya (repealed) guaranteed the right to own property. Article 40 of the Constitution of Kenya, 2010 provided that every person had the right, either individually or in association with others, to acquire and own property in any part of Kenya, except where that property had been found to have been unlawfully acquired. The 2nd Respondents (The Kagaa Farmers’ Co-Operative Society Ltd) showed how they acquired the suit property.
  6. Although the Petitioners claimed that the provisions of the Land Titles Ordinance contravened the provisions of the European Convention on Human Rights of 1950, the said Convention was ratified after the enactment of the Land Titles Ordinance, which was subject to the repealed constitution and not international conventions.
  7. Before the promulgation of the 2010 Constitution, Kenya followed the dualist approach in interpretation of domestic laws viz-a-viz international conventions. Where the Court was to decide a question involving a conflict between Kenyan law on one hand and principles usages of international law on the other, it was impossible to reconcile the two, Kenyan law prevailed. In the instant case there were no inconsistencies between articles of ECHR and the provisions of the repealed Land Titles Act.
  8. The adjudication of land pursuant to the provisions of the Land Titles Ordinance could have been unfair to Giriama ancestors. However, considering that the whole country was colonized, and in view of the fact that with that colonization, the country borrowed its laws heavily from England and India, which laws were enacted pursuant to the Constitution of the country, Kenya could not afford to go back to the situation that was existing before the era of the enactment of the laws by the then legislators in conformity with the Constitution.
  9. Having agreed as a country to be governed by the rule of law, and having adopted word for word the laws that were borrowed by the colonialists, Kenya had to abide by that state of affairs unless and until it was shown that those laws were unconstitutional. If the Court were to determine that the Giriama ancestors were discriminated against and that the enforcement of the alleged infringed rights should be enforced, then almost all Kenyans would be entitled to that order considering that the whole country was colonised and a new legal system of land ownership was put in place.
  10. In the instant case, the 2nd Respondent had acquired the suit property in 1978 and had since subdivided the land with individual title deeds having been issued to its members; they had the constitutional right to own property. Furthermore, the Petitioners did not sue the individual members of the 2nd Respondent despite averring that the suit property had been subdivided and Title Deeds issued to the said members.

Petition dismissed. Each party to bear their own costs

TORT LAW Plaintiffs Must Prove any Matter Founded in Defamation

Rumba Kinuthia v Judith A. Achar & another
Civil Case No 143 of 2008
High Court of Kenya at Nairobi
RE Aburili J
September 19, 2016
Reported by Phoebe Ida Ayaya

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Tort Law-defamation- libel-remedy of damages for defamation- consideration for award of damages-whether the Plaintiff was entitled to an award of damages-what were the factors to be considered by a trial court in awarding of damages- whether the Plaintiff was defamed by the memo dated April 17, 2007 and if the publication which concerned the Plaintiff was defamatory - whether the Plaintiff was entitled to damages

Tort Law-defamation-libel-elements of libel—legal opinion- whether a difference in legal opinion by two different advocates and the client believed one advocate and not the other could be construed to bear a defamatory connotation- whether words which were published could be said to be defamatory to the Plaintiff where the Plaintiff did not call any witness or third party evidence to prove that they read the words and found them defamatory to the Plaintiff- whether the Plaintiff had demonstrated the effect of the defamation in his life as a person, professionally, financially and politically as a result of the defamation and whether it was published maliciously

Words and Phrases-defamatory statement-definition-a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or Business-Halsbury’s Laws of England, 4th Edition VOL 28 paragraph 10

Brief facts:
The Plaintiff, an advocate of the High Court of Kenya instituted the suit against the two Defendants Judith Achar and Kenya Railways Corporation (KRC) seeking for general damages, exemplary and punitive damages for defamation, costs and interest. The claim by the Plaintiff against the Defendants was contained in his plaint dated April 2008.The Plaintiff alleged that in or about November 2006 he had been instructed by the employees of the Rift Valley Railways (RVR) to represent them in a legal suit as against Kenya Railways Corporation for terminal benefits, amongst other legal remedies and that the 1st Defendant in her individual capacity participated in instructing the plaintiff to act for the parties in HCC 35/2007. The Plaintiff claimed that on or about April 17, 2007 the 1st Defendant caused to be published a defamatory letter/memo Ref. RVR/PR/1/3 addressed to all staff of Rift Valley Railways concerned an update on High Court Civil Case No. 35 of 2007- Ex Kenya Railways Corporation Employees Vs Kenya Railways Corporation. In the said memo, paragraphs 3,4, and 5 clearly mentioned the plaintiff as the advocate who was engaged to assist in settling the issues of transfer of services of staff from Kenya Railways Corporation to Rift Valley Railways. The memo also stated that a technical problem was detected in the suit lodged by M/S Rumba Kinuthia & Advocates. In the suit, Kenya Railways Corporation was not given a 30 days’ notice of intention to sue as was required by section 87 of Kenya Railways Corporation Act, when Rumba met with staff and the issue of compliance with the Act was raised, he replied that he had given 38 days’ notice to Kenya Railways Corporation. There was no doubt, the publication complained of concerned the plaintiff’s handling of HCC 35/2007 specifically, the issue of notice to institute suit as required by section 87 of Kenya Railways Act.
The 2nd Defendant was accused of legalizing the use of its materials which led to the publication of the letter subject matter of the suit hence it was alleged to have been negligent in allowing the publication of the aforesaid letter on its letter head. The Plaintiff claimed that as a result of the negligent acts of the 2nd Defendant, he suffered loss and damage and he claimed for damages. He also claimed that the said letter was actuated by malice, spite and ill will against the Plaintiff.

Issues:

  1. Whether the Plaintiff was defamed by the memo dated April 17, 2007 and if the publication which concerned the Plaintiff was defamatory in nature
  2. Whether a difference in legal opinion by two different advocates and the client believed one advocate and not the other could be construed to bear a defamatory connotation
  3. Whether words which were published could be said to be defamatory to the Plaintiff where the Plaintiff did not call any witness or third party evidence to prove that they read the words and found them defamatory to the Plaintiff
  4. Whether the Plaintiff had demonstrated the effect of the defamation in his life as a person, professionally, financially and politically as a result of the defamation and whether it was published maliciously
  5. What constituted defamation in the legal profession and the damages available?
  6. Whether the Plaintiff was entitled to damagesRead More...

Held:

  1. It was important to establish what defamation was; it was common ground that in a suit founded on defamation the Plaintiff must prove-:
    1. That the matter of which the Plaintiff complained was defamatory in character;
    2. That the defamatory statement or utterances was published by the Defendant and that Defendant’s publication in the sense of defamation meant that the defamatory statement was communicated to someone other than the person defamed.
    3. That it was published maliciously.
    4. In slander, subject to certain exceptions that the Plaintiff has suffered special damages.
  2. It was not in dispute that although the memo was written by the 1st Defendant it was distributed/circulated and or published by the 2nd Defendant through its Human Resource Department and Human Resource officers in the regions. That evidence was brought about by the 1st defendant’s witnesses and especially DW4 who was a Human Resource Officer himself and who confirmed that DW5 Mr. David Rimberia the Head Quarter Human Resource Manager endorsed the memo before it was circulated to the region to be distributed by Human Resource Officers in those regions.
  3. From the very nature and definition of defamation as a tort, defamation was the publication of a false statement which tended to lower a person’s reputation in the estimation of right thinking members of the society generally and which made or caused him to be shunned or avoided. A plaintiff in a suit founded on defamation be it libel or slander, must prove that:
    1. The matter of which the Plaintiff complained of was published by the defendant
    2. That the publication concerned or referred to the Plaintiff
    3. That the publication was defamatory in character.
    4. That it was published maliciously
    5. In slander, subject to certain exceptions, that the Plaintiff has thereby suffered special damages.
  4. Freedom of expression had never been recognized as obsolete. The right of public discussion was, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition were concerned. In a word, freedom of discussion meant freedom governed by law, the holding echoed the spirit and letter of articles 32(1) 33(1) and 33(3) of the Constitution of Kenya, 2010 which not only guaranteed the freedoms of speech and expression but also limited the same freedoms under article 33(3) thereof where defamation or vilification of others, propaganda for war or hate speech was concerned.
  5. It therefore followed that albeit the Defendants hung on article 32(1) of the Constitution of Kenya, 2010, the freedom guaranteed therein was not absolute. The Plaintiff must have proven that the publication tended to lower him in the estimation of right thinking members of the society generally and caused them to shun or avoid him or treat him with contempt.
  6. Consideration must have been given to the particular significance reputation had for an advocate of the High Court of Kenya, and a senior advocate for that matter. A lawyer’s practice was founded and maintained upon the basis of a reputation for professional integrity and trust worthiness. It was the cornerstone of a lawyer’s professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer could not survive without a good reputation Judges relied upon commitments and undertakings given to them by counsel. The whole system of administration of justice depended upon counsel’s reputation for integrity. Anything that led to the tarnishing of a professional reputation could be disastrous for a lawyer.
  7. While changing instructions from one advocate to another by a client could be construed as being due to lack of faith in the competence of the first advocate, it must have been understood that a party had a right to be represented in court or any proceedings before any tribunal, by an advocate of their own choice, whether under the current Constitution or the repealed Constitution. That being the case, there was no lack of faith in the advocate’s competence and therefore seeking a second or even 8 opinions to satisfy oneself of the status of one’s case would amount to being disrespectful and therefore defamatory of an advocate.
  8. The advocate who had lost a client like the Plaintiff herein, and therefore losing out his legitimate expectation to earn hundreds of millions of shillings in legal fees following the departure of the client had a sure remedy in law. He would never go empty handed. The Advocates Act gave him the right to file and or tax his advocate/client bill of costs and obtain judgment for those costs under section 52 of the Advocates Act. The remedy was not found in suing the instructing client(s) for defamation of character. Advocates who were students of professional ethics were forever reminded that clients remain clients. They were never friends of their counsels. The fact that clients came and went was not necessarily attributable to disrespect or out of lack of the appreciation of their counsel’s industry, although that may have been the main reason, in most cases.
  9. The Plaintiff case did demonstrate to the satisfaction of the Court that the impugned memo portrayed him as not being qualified to practice law or handle client’s cases in a competent way, the impugned memo merely communicated to the staff the summarized form of the legal opinion received from the advocate.
  10. The Plaintiff did not produce any letter showing that his clients withdrew instructions from him following the publication of the memo. None of his clients or other general members of the public testified that they read the memo and found it to be defamatory of the Plaintiff. Reputation was what other people thought of a person who alleged that he was defamed by the publication. It was not one’s own opinion of him.
  11. Words tendto injure one’s reputation, the person or claimant must have adduced evidence to prove that the published words tended to cause other people to shun or avoid or treat him with contempt. In other words, the right thinking members of the society generally who read the publication and viewed the claimant with disrespect, ridicule, dislike or de esteem must have been called as witness(s) or communication from those people in the form of emails produced to show their reaction after they read the impugned publication. In other words, the Plaintiff must have proven that there were those people who believed that he was defamed by the publication
  12. In defamation cases, there was necessity for independent evidence to show that indeed there were those who believed the Plaintiff was defamed by the publication. The Plaintiff could even have called his emissaries whom he sent out to confirm that the memo was all over the 2nd Defendant’s regional offices and whether those emissaries read the memo and whether they considered it to be defamatory of the Plaintiff, the words in the impugned published memo had no defamatory tendency, in as much as they may have vexed or annoyed the Plaintiff but there was no defamatory imputation or connotation in those words and therefore not actionable.
  13. Malice could be inferred from a deliberate or reckless or even negligently ignoring of facts, malice did not necessary mean spite or ill will but recklessness itself could be evidence of malice. Evidence of malice could also found in the publication itself if the language used was utterly beyond or disproportionate to the facts. In the present case, even if the Court was to find that the memo as published was defamatory, which as stated was not defamatory, there was absolutely no manifestation of any deliberate or reckless or negligent ignoring of facts.
  14. The evidence on record was clear that the author and the committee that she was writing the memo on behalf of were not lawyers and that was the reason why they sought legal counsel and advisory of another advocate to assist in interpreting to them the effect of non- compliance with section 87 of the Kenya Railways Corporation Act. The evidence was clear that it was upon receipt of that legal opinion that the claimants’ representatives went for a second option of filing Judicial Review proceedings and brought to the attention of the Plaintiff the advice received.
  15. The fact of calling the Plaintiff “a lawyer” or ‘Rumba’ in the mentioned memo was not evidence of disrespect, spite or malice, although the plaintiff wanted the Court to believe that choosing Rachier & Amollo advocates was the best option for the 1st Defendant and her team, that was not the case. The memo was recommending, as per the legal advisory opinion, that Judicial Review would be the alternative and that they had instructed Rachier & Amollo Advocates to file for judicial review since, going by the advisory of Mr. Charles Dulo advocate, the time frame for instituting Judicial Review was almost expiring hence the matter had to be filed expeditiously. The impugned memo was also clear that Judicial Review proceedings were to run concurrently with the HCC 35/2007 hence there was no overreaching language used in the impugned memo that was utterly beyond or disproportionate to the facts.
  16. The Plaintiff failed to demonstrate that he was defamed by the publication of the memo dated April 17, 2007. However, had liability been found for the Plaintiff, the next issue was what damages if any would the Plaintiff be entitled to.
  17. A successful Plaintiff in a defamation action was entitled to recover as general compensation damages such sum as would compensate him for the wrong he had suffered. That sum must have compensated him for the damages to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication had caused. The Court must have taken the necessary precaution to ensure that whatever award it gave a successful Plaintiff was generally in line with what courts had been awarding.
  18. The Plaintiff would have been awarded damages to vindicate for his alleged embarrassment and disrespect. Considering the case law relied on by both the Plaintiff and 2nd Defendant in their submissions, and the principles laid regarding quantum of damages, namely:
    1. The objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any reputation.
    2. The subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself
    3. Matters tending to mitigate damages such as the publication of an apology.
    4. Matters tending to reduce damages.
    5. Vindication of the Plaintiff’s reputation past and future.
  19. Taking into account the above guidelines, and considering the fact that was a one off publication which was distributed to staff of Rift Valley Railways country wide; not repeated and with no apology offered and there being no aggravating or mitigating factors, an all-inclusive sum of Kshs 4,000,000 general damages for defamation of character would have sufficed to compensate the Plaintiff, vindicating him to the public and solarium for any wrong done. He would also have been awarded costs and interest at court rates from date of judgment until payment in full.

Application dismissed

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