Weekly Newsletter 015/2017

Weekly Newsletter 015/2017



Kenya Law

Weekly Newsletter


Recognition of the Position of the Deputy Speaker of a County Assembly by the Constitution and County Government Act
Nathanael Nganga Reuben V. Speaker, Machakos County Assembly
Constitutional Petition No. 6 of 2016
High Court of Kenya at Machakos
Nyamweya J
December 14, 2016
Reported by Robai Nasike Sivikhe
Download the Decision
 
Jurisdiction- Jurisdiction of the High Court- jurisdiction of the High Court as regards the action of Constitutional or statutory bodies- whether an objection as to the infringement of the doctrine of separation of powers was not a jurisdictional issue, but a substantive and factual issue to be determined upon hearing of evidence and arguments- whether the Court would be offending the doctrine of separation of powers in exercising its jurisdiction
 
Devolution- County Assembly- Deputisation of the Speaker of the County Assembly- Whether the position of deputy speaker was recognized by the substantive applicable laws, that is, the Constitution of Kenya, 2010 and the County Government Act-Whether the recognition of the position of the deputy speaker by section 21 (3) and (4) of the Election Act was unconstitutional and substantively ultra vires- Whether removal of the Petitioner as deputy speaker was an infringement on the Petitioner’s Constitutional Rights- Constitution of Kenya, 2010, Article 178; County Government Act, No. 17 of 2012, Laws of Kenya, section 9 (4) and (5); and Elections Act, No. 24 of 2011, Laws of Kenya, section 21 (3) and (4)
 
Statutes- Interpretation of statutes- interpretation and application of section 21(3) of the Elections Act- Whether the recognition of the position of the deputy speaker by section 21 (3) and (4) of the Election Act was unconstitutional and substantively ultra vires- Elections Act, No. 24 of 2011, Laws of Kenya, section 21 (3) and (4)
 
Constitutional Law- doctrine of separation of powers- legislative authority of County Assemblies- power of court to handle matters that deal with the legislative authority of county assemblies-Whether a decision on the application and interpretation of Standing Orders fell within the purview of the instant Court
 
Brief Facts:
The Petitioner, a duly elected member of the Machakos County Assembly, claimed that he had been elected as the Deputy Speaker/Chairperson of Committees by the Machakos County Assembly. On August 27, 2013 a motion was brought to the assembly, challenging the existence of the position of a Deputy Speaker. Upon debate on the Motion,  the 1st  Respondent ruled  that the position  of a  Deputy Speaker was lawful,  and  that  the holder  of  the position  was to  continue  serving in that capacity. However, on April 7, 2016, a member of the Assembly sought a declaration and ruling that the position of a Deputy Speaker was not in existence and that the position be declared null and void. The motion was based on grounds that since the Petitioner had been elected as Deputy Speaker under the old Standing Orders promulgated by the Transition Authority and adopted by the 2nd Respondent in 2013, the position was not recognized as such under the current Standing Orders that were adopted by the assembly on July 14, 2014. The motion was supported and afterwards adopted, hence the instant petition.  The Petitioner argued that the position of Chairperson of Committees was the same as the position of the Deputy Speaker. The Petitioner relied on Article 178 of the Constitution and sections 9 (4) and 9 (5) of the County Government Act, 2012 to argue that they created the position of the deputy to the Speaker, and suggested that the position of the person who was elected to act as a Speaker in the absence of the Speaker was not ad hoc in nature, but a position that ran for the entire term of the assembly. The Petitioner submitted that the office of a "Deputy Speaker" was expressly provided for and recognized under section 21 (3) of the Elections Act. The Respondents took the position that the instant Court lacked jurisdiction on account of the doctrine of separation of powers.

Issues:
  1. Whether the High Court had jurisdiction to consider the action of Constitutional or statutory bodies
  2. Whether the position of deputy was recognized by the substantive applicable laws, that is, the Constitution of Kenya, 2010 and the County Government Act.
  3. Whether the recognition of the position of the deputy speaker by section 21 (3) and (4) of the Election Act was unconstitutional and substantively ultra vires.
  4. Whether removal of the Petitioner as deputy speaker was an infringement on the Petitioner’s Constitutional Rights.
  5. Whether a decision on the application and interpretation of Standing Orders fell within the purview of the instant Court
 
Held:
  1. Courts could not ordinarily interfere with the exercise of the legislative authority or executive functions of a constitutional body in line with the doctrine of separation of powers, and ought to exercise judicial restraint in matters which deal with legislative authority of County Governments. However, where a question arises as to whether an action was inconsistent with the Constitution or was passed in contravention of the Constitution, the High Court was the institution constitutionally empowered to determine such an issue, subject to appellate jurisdiction given to the Court of Appeal and the Supreme Court.Therefore, the instant Court not only had jurisdiction to hear and determine the Petition, but was also in the circumstances exercising its constitutional function within the doctrine of separation of powers.
  2. Any limitation with regard to the jurisdiction of a court had to be granted by law. There was nowhere in the cited Articles where the jurisdiction granted there under to the High Court was limited as regards the actions of County Assemblies, County Public Service Board or any other constitutional or statutory bodies.
  3. The question of whether the Court, in exercising its jurisdiction, would be offending the doctrine of separation of powers was one that could only be decided upon after the parties had canvassed their respective cases. Upon which, the Court could then make a decision one way or another as to whether the dispute was one that could be resolved by way of judicial processes or by other processes. An objection as to infringement of the doctrine of separation of powers was not a jurisdictional issue, but a substantive and factual issue to be determined upon hearing of evidence and argument.
  4. The Constitution of Kenya 2010 and the County Government Act were the substantive laws that provided for the Members and Offices in a County Assembly.Such offices were incapable of being created by Standing Orders,for the reasons that Standing Orders were subordinate rules of procedure for the conduct of business in legislative assemblies, and were provided for as such under section 14 (1) of the County Government Act . Therefore, any interpretation of Standing Orders could only be in the context of procedure, and not substance. The applicable law as regards the creation of offices in the County Assemblies was the Constitution and County Government Act and not Standing Orders.
  5. The provision of the Constitution of Kenya, 2010 and the County Government Act had not provided for the position of a Deputy Speaker in a County Assembly. The only non-elective member and office in the County Assembly provided for in the Constitution was that of a Speaker, who was an ex official member of the County Assembly. Other offices in the county assemblies created by the County Government Act were the County Assembly Service Boards and the Clerk and staff of the County Assembly under sections 12 and 13 of the Act.
  6. In a plain reading of Article 178 of the Constitution of Kenya, 2010, any member of the county could be elected to preside over a sitting of the County Assembly, and no substantive position of Deputy Speaker was expressly or by implication created by the Article. Likewise, section 9(4) and (5) of the County Governments Act had not created any substantive post of Deputy Speaker, and stated that any member of the County Assembly could be elected to act as Speaker and only during the absence of the Speaker, and could also be removed from that position during the term of the Assembly. In addition, the provisions of the Standing Orders had not created any substantive office, and indeed could vary from county assembly to county assembly as regards the procedures that had to be followed as the assembly undertook its legislative functions.
  7. The chairperson of committees was the member of the county assembly that the Machakos County Assembly had provided would deputise for the Speaker in proceedings in the County Assembly as envisaged in Article 178 and section 9(4) and (5) of the County Governments Act. The County Assemblies were in that regard at liberty and had the powers under section 14 of the County Governments Act to designate any member of the assembly to deputise for the Speaker in their Standing Orders in his duties, and name the member as they prefer, including naming that member a Deputy Speaker or Chairperson of Committees. Likewise they could provide for the appointment and removal of such member in the Standing Orders. The provisions had not created a constitutionally recognized position of Deputy Speaker, and were only limited to the specific procedures of a county assembly.
  8. The purpose of the Elections Act was to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly; to provide for the conduct of referenda; and to provide for election dispute resolution and for connected purposes.To the extent that the substantive applicable law had not created the office of a Deputy Speaker, the provisions of section 21(3) and (4) of the Elections Act was to that extent unconstitutional and substantively ultra vires.
  9. There was no constitutional or statutory position of a Deputy Speaker of a county assembly created. The Respondents had followed the applicable procedures in their Standing Orders to remove the Petitioner as Chairperson of Committees.Hence, the Respondents had not infringed on any constitutional rights, or legitimate expectation of the Petitioner.
  10. A decision on the application and interpretation of Standing Orders did not fall within the purview of the instant Court. It was the role and duty of the Speaker of a legislative assembly to interpret the rules governing procedures in that assembly, and to make a rule on a matter on which there was a conflict or for which there was no provision in the current parliamentary rules. The Petitioner ought to have raised his concerns in the County Assembly and sought a ruling on the same. In the instant case, the Court had to exercise judicial restraint to interfere with the workings of Parliament and County Assemblies on account of their mandate and privilege.
 
Petition dismissed.
Kenya Law
Case Updates Issue 015/2017
Case Summaries

CIVIL PRACTICE AND PROCEDURE

The High Court can only confer jurisdiction on the Sports Tribunal when the parties consent to it.

Xxcel Africa Limited T/A Mathare United Football Club (MUFC) v Kenyan Premier League Limited (KPL) & another
Civil Miscellaneous Application 637 of 2016
High Court of Kenya at Kiambu
B. Thuranira J
March 24, 2017
Reported by John Ribia

Download the Decision

Civil Practice and Procedure – Jurisdiction – Jurisdiction of the High Court – Jurisdiction of the High Court to refer sports disputes to the Sports Tribunal -  whether a sports dispute before the High Court could be referred to the Sports Tribunal where the parties to the dispute had not consented to refer the matter to the Sports Tribunal – whether the High Court has the Jurisdiction to determine sports disputes - what is the jurisdiction of the High Court vis-à-vis the jurisdiction of the Sports Tribunal? - Constitution of Kenya, 2010, article 165 – Sports Act, section 58.

Civil Practice and Procedure – Jurisdiction – Jurisdiction of the High Court – Jurisdiction of the High Court to refer disputes to arbitration - whether a dispute before a court of law could be referred to arbitration where the parties had not consented to arbitration and where the parties were not subject to an arbitration agreement – Constitution of Kenya, 2010, article 165 – Arbitration Act section 6(1) – Civil Procedure Rules, Order 46.

Civil Practice and Procedure – Remedies – Injunctions – Interim injunctions - what were the principles to be applied in granting an interlocutory injunction – Giella v Cassman Brown & Co. Ltd [1973] E.A. 358.

Brief facts:
The plaintiff/respondent (Mathare United Football Club (MUFC)) was a registered football club under the 1st Defendant and was one of the shareholders of the 1st defendant (Kenya Premier League ( KPL)).As a member of the KPL, MUFC had entered into individual team sponsorship agreements with various companies and organizations to enable it to run effectively and cater for sports events and uniforms.  MUFC and the KPL entered into two conflicting sponsorship agreements that allocated exclusive sponsorship rights to two competing betting companies; Ms. Betway Ltd and the Sportpesa (‘Sportpesa’). The dispute before the Court revolved around the capacity of MUFC and other individual clubs to grant exclusive sponsorships rights clubs vis-à-vis the capacity of the KPL to grant the same rights. The matter before the Court was a preliminary objection by the Sportpesa that claimed that the High Court lacked the jurisdiction to determine sports related matters.  The defendants sought to have the dispute between the parties referred to the Sports Tribunal or to Arbitration.


Issues:
  1. whether a sports dispute before the High Court could be referred to the Sports Tribunal where the parties to the dispute had not consented to refer the matter to the Sports Tribunal
  2. Whether a dispute before a court of law could be referred to arbitration where the parties had not consented to arbitration and where the parties were not subject to an arbitration agreement.
  3. What were the principles to be applied in granting an interlocutory injunction?
  4. Read More...

Held:

  1. The 1st and 2nd Defendants had not consented to have the instant matter referred to the Sports Tribunal. Consequently, the dispute did not fall within the ambit of section 58 of the Sports Act.
  2. The Court could not confer jurisdiction on the Sports Tribunal. A court’s jurisdiction flowed from either the Constitution or legislation or both.  A Court of law could only exercise jurisdiction as conferred by the Constitution or other written law.  It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The legislature through the Sports Act had provided for the jurisdiction of the Sports Tribunal.
  3. The teams relied on sponsorship to fund their events and to purchase uniforms. Prima facie, the dispute was sports related as it directly impacted on sporting activities.
  4. Section 6(1) of the Arbitration Act that provided that disputes subject to arbitration must be the subject of an arbitration agreement or subject to the parties’ consent to arbitration. The parties in the instant matter had not agreed to arbitration. It was only where other methods of alternative dispute resolution were concerned that the Court could on its motion refer a matter under such methods. On the other hand, referral of a matter that was already in court to arbitration had to be by the consent of the parties. Had the drafters of the Arbitration Act intended to grant power to the Court to refer matters pending in Court to arbitration suo moto, nothing would have been easier for them than to have stated so.
  5. Arbitration is a consensual process. Unless the parties consented to proceed to arbitration under Order 46 of the Civil Procedure Rules, 2010, they had no option but to submit to the jurisdiction of the Court until the very end of the proceedings.
  6. While article 165 of the Constitution of Kenya, 2010 gave the High Court supervisory jurisdiction over any person, body or authority exercising a judicial and quasi-judicial function to ensure the administration of justice, such authority could only be exercised within the parameters of section 10 of the Arbitration Act where it was expressly provided that no court could intervene in matters governed by the Arbitration Act.
  7. The circumstances of the instant case were such that MUFC’s prayers for interim orders were overtaken by events. The circumstances were such that the said prayers were not granted when the application was heard ex-parte in the first instance and such that the Court had also ruled that the matter was already being heard inter-partes. The best the Court could do was to expedite the hearing of the application and to deliver its ruling.
  8. The established legal position for the grant of injunctive orders was that the grant of injunctions would be based on a consideration of three factors; first, the existence a prima facie case with a probability of success; secondly, whether the Applicant, unless the injunction was granted, would suffer irreparable harm which would not be adequately compensated by an award of damages; and thirdly, where the court was in doubt, an application for an injunction would be decided on a balance of conveniences. (list)
  9. Prima facie, the Applicant seemed to have a valid complaint concerning the interpretation of the Constitution of the KPL and the rights of the MUFC vis-à-vis the rights of the KPL under the said Constitution.
  10. MUFC’s complaint revolved around advertisement rights during the football matches organized by the KPL. The restraining orders sought related to the removal of the billboards and banners of the Plaintiff’s/Respondent’s sponsor (Ms. Betway Ltd) during the football matches in question. Ms. Betway Ltd had not been demonstrated to be the MUFC’s only sponsor. It had also not been shown that the MUFC’s activities would come to a standstill if the sponsor did not advertise during the Applicant’s matches. There was no damage that would be occasioned to MUFC that could not be compensated in monetary terms.
  11.   MUFC and Betway Ltd; and the KPL and Sportpesa;were competing for the same advertising rights during the matches organized by the KPL. MUFC had not exhibited a copy of the agreement with their sponsor. The balance of convenience did not favour the Applicant.
  12. The billboard/posters of MUFC’s sponsors had already been pulled down. Any orders made at the instant stage regarding the erecting of the said billboard/posters again would amount to orders of mandatory injunction. It was not clear at the instant point of the case as to which party was entitled to the advertising rights.
  13. There was no lacuna in law in respect of sports disputes where the parties in the dispute fail to agree to refer the dispute to the Sports Tribunal. If there was no body with the jurisdiction to hear the dispute and the parties to the dispute could not agree to have the dispute determined by any of the other forums, the dispute could be instituted in the High Court.  The High Court had supervisory jurisdiction over the subordinate courts and over any person or body or authority exercising a judicial or quasi-judicial function. Subordinate courts, bodies, tribunals or authorities could not limit the jurisdiction of the High Court, neither could they clothe it with jurisdiction which the Constitution or statute had limited.

Application dismissed, costs awarded to the Respondents.

STATUTES Retirement Benefits Schemes Are Public Entities controlled by the State as provided by the Retirement Benefits Authority Act.

Association of Retirement Benefits Schemes v Attorney General & 3 others
Constitutional & Human Rights Division
Petition No 170 of 2016
J M Mativo J
March 9, 2017
Reported by Phoebe Ida Ayaya

Download the Decision

Statutes-interpretation of statutes- principles of statutory interpretation- -claim seeking whether   section 2 (o) of the Public Procurement and Disposal Act was unconstitutional in that it violated the Petitioners constitutional rights to Property, Freedom of Equality and freedom of contract and that it contravened articles 19 (2), 40 & 27 of the Constitution as alleged - Constitution of Kenya, 2010 articles 159(2),259; Interpretation and General Provisions Act, section 3

Statutes-interpretation of statutes –constitutionality of statutory provision- interpretation of the statutory provision-meaning and interpretations of the statutory provision in the Constitution –the effect of the interpretation of the statutory provision- Interpretation and General Provisions Act

Statutes-interpretations of statutes- the principles that govern interpretation of statutes-interpretation of a public entity- what was a public entity within the meaning of article 227 of the Constitution, 2010 -what was the test in determining whether an entity was a Government body or not as set by the Court- Constitution of Kenya ,2010 article 227; Interpretation and General Provisions Act section 3

Constitutional Law – public entities - scope of public entities - whether the Petitioner was a public entity within the meaning of article 227 of the Constitution, 2010 -what was the test in determining whether an entity was a Government body or not as set by the Court- Constitution of Kenya ,2010 article 227; Interpretation and General Provisions Act section 3

Brief facts:
The petition challenged the constitutionality of section 2 (o) of the Public Procurement and Disposal Act (hereinafter referred to as the act) on the grounds that it infringed on Pension Scheme Funds of public entities rights to Property, Freedom of Equality and freedom of contract and that it contravened articles 19 (2), 40 & 27 of the Constitution. The core of the Petitioner’s case was that pension scheme funds were basically contributions from savings/income of the individual members of the public and not from public funds, hence pension scheme funds were not public bodies within the meaning of the law and should not be classified as such, hence it was improper to subject such private entities to the provisions of the act, hence the unconstitutionality of the above section which purported to classify them as public bodies.  The said Act came into force on January 2016 and was enacted to give effect to article 227 of the Constitution and to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.
The Petitioner averred that section 2 (o) of the Act defined "public entity" to include "a pension fund of a public entity" and also stated that pension funds for public entities were established and registered under section 23 of the Retirement Benefits Authority Act under an irrevocable trust, which connoted a private arrangement between employee as a grantor of the Trust by remitting their funds for the purposes of retirement and the trustee who oversaw the management of the funds. It was alleged that the definition offended the provisions of the Constitution, and was inconsistent with the definition of a public office and a State Organ in article 260 of the Constitution.
 It was also stated that the Pension Funds of Public bodies were obliged to comply with procurement requirements set out under the act and failure to comply amounted to a blatant breach of the law and that the act had paralyzed the procurement function and operations of the Pension Funds of Public entities as they lacked resources to implement the onerous responsibilities under the act, hence pension Public Funds would diminish due to expenses caused by meeting the obligations of the Act. The Petitioners stated that Pension Funds of Public Entities did not receive public funding from the government, hence it ought not be ranked as a public entity or a state organ, and that Pension Funds of Public entities were private property

Issues:

  1. What were the principles that governed the interpretation of statutes?
  2. Whether the Petitioner was a public entity within the meaning of article 227 of the Constitution and what was the test in determining the same as set by the Court.
  3. Whether section 2 (o) of the Public Procurement and Disposal Act was unconstitutional and that it violated the Petitioners constitutional rights to Property, Freedom of Equality and freedom of contract and that it contravened articles 19 (2), 40 & 27 of the Constitution, 2010.
  4. What was the supervisory role of the Retirements Benefits Authority? Read More...

Relevant Provisions of the law
Interpretation and General Provisions Act
section 3 of the Interpretation and General Provisions Actwhich is as follows: -

 "Public body means-
 a) the Government, or any department, institution or undertaking thereof; or
 b) ..
 c) a local authority; or
 d) any authority, board, commission, committee or other body, whether paid or un paid, which is invested with or is performing, permanently or temporarily, functions of a public nature;"

Retirement Benefits Authority Act
Part IV of the Retirement Benefits Authority Act
Section 32 provides as follows: -

  32. (1) There shall be, in respect of every scheme other than a scheme funded out of the Consolidated Fund, a scheme fund into which all contributions, investment earnings, income and all other moneys payable under the scheme rules or the provisions of this Act shall be paid.
 (2) The scheme fund and all moneys therein shall at all times be maintained separately from any other funds under the control of the trustees or the manager thereof.
 (3) Subject to the provisions of this Act, the Minister may, in consultation with the Authority, make regulations with regard to the funding, vesting, custody, management, application and the transfer of scheme funds and the accounting for such funds.

Constitution of Kenya, 2010
Article 227 provides that: -

 (1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Held:

  1. The principles governing the interpretation of statutes are summarized as follows: -
    1. Under article 259 of the Constitution, the Court is enjoined to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. In exercising its judicial authority, the Court is obliged under article 159 (2) (e) of the Constitution to protect and promote the purposes and principles of the Constitution.
    2. There is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on every person who alleges otherwise. The Court should start by assuming that the Act in question is constitutional.
    3. In determining whether a statute is constitutional or not, the Court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself. Further, in examining whether a particular statutory provision is unconstitutional, the Court must have regard not only to its purpose but also its effect.
    4. The Constitution should be given a purposive, liberal interpretation.
    5. That the provisions of the Constitution must be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other.
    6. The spirit of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.
  2. The disposition of issues relating to interpretation of statutes and determining constitutional questions were formidable in terms of some statutory and constitutional principles that transcended the case at hand and was applicable to all comparable cases. Court decisions could not be ad hoc. They were justified and perceived as justifiable on more general grounds reflected in previous case law and other authorities that applied to the case at hand. A constitutional order was a document sui generis to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. It was important to give full recognition and effect to fundamental rights and freedoms
  3. In interpreting the Constitution, the Court attached such meaning and interpretation that met the purpose of guaranteeing Constitutionalism, non-discrimination, separation of powers, and enjoyment of fundamental rights and freedoms.
  4. Statutory interpretation was the process by which courts interpreted and applied legislation. The Court interpreted how legislation would be applied in a particular case as no legislation unambiguously and specifically addressed all matters. Legislation contained uncertainties for a variety of reasons such as: -
    1.  a. Words were imperfect symbols to communicate intent. They could be ambiguous and change in meaning over time.
    2. Unforeseen situations were inevitable and new technologies and cultures made application of existing laws difficult.
    3. Uncertainties could be added to the statute in the course of enactment, such as the need to compromise or cater for certain groups.
  5. A court had to try to determine how a statute should be enforced, to the fact that in constructing a statute, the Court could make sweeping changes in the operation of the law so the judicial power should be exercised carefully. There were numerous rules of interpreting a statute; the most important rule was the rule dealing with the statutes plain language.
  6. The starting point of interpreting a statute was the language itself. In the absence of an expressed legislative intention to the contrary, the language could be taken as conclusive.  Thus, when the words of a statute were unambiguous, then the first canon was also the last and judicial inquiry was complete. The implication was that when the language was clear, then it was not necessary to belabor examining other rules of statutory interpretation.
  7. It was not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision was plain and unambiguous. The Court could not rewrite, recast or reframe the legislation for the very good reason that it had no power to legislate. The power to legislate had not been conferred on the Courts. The Court could not add words to a statute or read words into it which were not there. Assuming there was a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts decided what the law was and not what it should be. The Court of course adopted a construction which would carry out the obvious intention of the legislature but could not legislate itself.
  8. A word in a statutory provision was to be read in collocation with its companion words. The pristine principle based on the maxim noscitur a sociis (meaning of a word should be known from its accompanying or associating words) had much relevance in understanding the import of words in a statutory provision.
  9. A key function of the Court in interpreting a statute was the creation of certainty in law. Certainty in law enabled planning of human affairs in reliance on the law, and the realization of expectations based on such planning. It made for uniformity in the administration of justice, and prevented the unbridled discretion of the judiciary. It made available the tested legal experience of the past. While interpreting the law, change was to be considered and adaption of the law to new and unforeseen conditions. Law must change because social institutions change. In applying generalized legal doctrine, such as statutes, to the facts of specific cases uncertainties and unforeseen problems arose. As conditions change with the passage of time, some established legal solutions become outmoded. The Courts should resolve the uncertainties and assist in adapting the law to new conditions.
  10. While interpreting the law, the Court bore in mind that they should make laws when necessary to make the ends of justice. Legal systems all over the world could not grow as had been the case without a great amount of judicial law making in all fields: Constitutional law, Common Law and statutory interpretation. However, to the extent that judges made laws, they should do so with wisdom and understanding.
  11. Judges were informed on the factual data necessary to good policy making. That included not only the facts peculiar to the controversy between the litigants before them, but also enough of an understanding of how the society worked so that they could gauge the effect of the various alternative legal solutions available in deciding a case.
  12. There were two key assumptions relied on by courts to explain and justify statutory interpretation. One was the assumption that meaning in legislative texts was "plain" - that was, clear and certain, not susceptible of doubt. The assumption was the necessary basis for the plain meaning rule. The other assumption was that legislatures had intentions when they enacted legislation and the intentions were knowable by courts when called on to interpret legislation.
  13. The great advantage of the plain meaning rule was that, in theory at least, it created a zone of certainty - an interpretation-free zone, in effect. It told the public that if the text was plain, it meant what it said and it was safe to rely on it. The emphasis on text at the expense of intention ensured that the law was certain and that the public had fair notice, both of which were prerequisites for effective law.
  14. The touchstone of interpretation was the intention of the legislature. The legislature revealed its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute served as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, one had to read the text closely, keeping in mind that the initial understanding of the text could not be the only plausible interpretation of the statute or even the correct one. Courts generally assumed that the words of a statute meant what an ordinary or reasonable person would understand them to mean.
  15. The principles are not new. There are important principles which apply to the construction of statutes which, also apply to the construction of a Constitution such as:
    1. The presumption against absurdity – meaning that a court has to avoid a construction that produced an absurd result;
    2. the presumption against unworkable or impracticable result - meaning that a court has to find against a construction which produced unworkable or impracticable result;
    3. the presumption against anomalous or illogical result, - meaning that a court has to find against a construction that created an anomaly or otherwise produce an irrational or illogical result
    4. the presumption against artificial result – meaning that a court has to find against a construction that produced artificial result and,
    5. the principle that the law has to serve public interest –meaning that the Court has to strive to avoid adopting a construction which is in any way averse to public interest, economic, social and political or otherwise.
    The Court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution.
  16. In interpreting a statute, the Court was to give life to the intention of the lawmaker instead of stifling it. The intention of the legislature while enacting the Retirement Benefits Authority Act was well captured in the referred to affidavit filed by the interested party, that prior to 1997 the retirement benefits industry in Kenya was largely unregulated, hence it faced numerous problems such as mismanagement of scheme funds, inadequate funding of schemes and arbitrary investment of scheme funds without independent professional advice. There was lack of protection of the interests of members, dominance of sponsors in scheme affairs and absence of transparency which resulted in investment decisions being made with vested interests as opposed to interests of members or the economy as a whole.
  17. The Retirement Benefits Authority Act was therefore enacted to cure problems emanating from lack of regulation; to provide regulatory framework for the retirement benefits industry to streamline the industry and gain the required confidence from stakeholders and employees to enable them save more for retirement and contribute towards the national effort of raising the domestic saving rate.
  18. Parliament’s intention in enacting the legislation was well captured in the affidavit which gave the history behind the enactment in question. In interpretating the challenged provision, the clear history of the legislation and intention of the legislature could not be ignored.
  19. The Court set the test for determining whether an entity was a Government body or not as follows-
    1. (a) consider whether any share capital of   the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government;
    2. where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;
    3. it may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State
    4. whether the body has deep and pervasive State control,
    5. whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and
    6. if a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government.
    If after the consideration of the relevant factors it was found that the corporation was an instrumentality or agency of government, it would be an 'authority' and therefore, part of the definition of ‘State' within the meaning of the expression used in the Constitution.
  20. The interested party fit the bill as an agency of the State or public body as it performed functions of a public nature and enjoyed monopoly with regard to the services they provided.  The definition of a public body by section 3(1) of the Interpretation and General Provisions Act pointed out the public nature of the 1st and 2nd Respondents.
  21. The words 'other body' or “was performing, whether permanently or temporarily, functions of a public nature” ought to have been given their natural and literal interpretation, pension schemes performed duties of public nature. The preamble to the Retirement Benefits Authority Act read that "An Act of Parliament to establish a Retirement Benefits Authority for the regulation, supervision and promotion of retirement benefits schemes, the development of the retirement benefits sector and for connected purposes. The use of the word regulation suggested state control.
  22. Part IV of the Retirement Benefits Authority Act was entitled Regulation and Supervision Of Retirement Benefits Schemes. That clearly demonstrated an element of both regulation and supervision by the state.
  23. The language in the provisions was clear. The words regulation and management used were a clear testimony of state control.  Applying the cannons of statutory interpretation discussed above, the Retirement Benefits Schemes were public bodies and were controlled by the state as provided by the Retirement Benefits Authority Act. That being the definition accorded to a public body it was obvious that the interested party was such body.
  24. On the constitutionality of the provision, article 2(1) of the Constitution provided that the Constitution was the Supreme Law of the Republic and bound all persons. Article 260 defined person to include company, association or other body of persons whether incorporated or unincorporatedArticle 259 of the Constitution enjoined the Court to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributed to good governance.
  25. The Court was obliged under article 159 (2) (e) of the Constitution to protect and promote the purposes and principles of the Constitution. The Constitution should be given a purposive, liberal interpretation. The provisions of the Constitution had to be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other. The Constitution of Kenya gave prominence to national values and principles of governance. Article 10 (2) of the Constitution provided the national values and principles of governance which include integrity, transparency and accountability.
  26. Pursuant to article 10(2), Parliament enacted the Public Procurement an Asset Disposal Act to give effect to article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.
  27. The phrase "public entity" under article 227 should include statutory bodies, parastatals, bodies established by statute but managed and maintained privately such as universities and professional societies and any private bodies fulfilling key functions under state supervision, and the Court examined the need to give prominence to the principles, values and purposes of the Constitution, there was nothing unconstitutional in the challenged section.
Petition dismissed with costs to the Respondents
CIVIL PRACTICE AND PROCEDURE

The Status of an Islamic Marriage in which one of the Parties had Converted to Christianity

M S R v N A B [2017] eKLR
High Court of Kenya at Malindi
Divorce Cause 5 of 2016
S. J. Chitembwe J
February 21, 2017

Download the Decision

Civil Practice and Procedure – Jurisdiction – Jurisdiction of the High Court – Jurisdiction of the Kadhi’s Court – where the parties had entered into an Islamic Marriage – where one of the parties in the marriage converted to Christianity – where one of the parties of the marriage sought to dissolve the marriage in the High Court - which Court, between the High Court and the Kadhi’s Court, had the jurisdiction to dissolve an Islamic marriage in which one of the parties had converted to Christianity – whether the Kadhi’s Court had the jurisdiction to determine issues on matrimonial property where one of the parties of the marriage had converted to Christianity - Constitution of Kenya 2010, article 170(5) – Kadhis’ Court Act, section 5 – Marriage Act, section 3.

Family Law – Marriage – Islamic Marriage - where the parties had entered into an Islamic Marriage – where one of the parties in the marriage converted to Christianity – what was the status of an Islamic Marriage in which one of the parties had converted to Christianity

Brief facts:
The Petitioner and the Respondent had entered into an Islamic marriage. At the time they married, both parties professed Islamic faith. During the course of the marriage, the Petitioner converted from Islamic faith to Christianity. She then filed the instant divorce cause in the High Court in which she sought to dissolve the marriage. The Petition was based on grounds of cruelty and desertion.
The Respondent filed a preliminary objection in which he claimed that it was an abuse of Court process to have a marriage that was formalised under Islamic law to be dissolved in the High Court and not the Kadhi’s Court. He claimed that the circumstances of the instant petition restricted the jurisdiction of the High Court to an appellate court and not a court of first instance. 

Issues:
  1. What was the status of an Islamic Marriage in which one of the parties had converted to Christianity?
  2. Which Court, between the High Court and the Kadhi’s Court, had the jurisdiction to dissolve an Islamic marriage in which one of the parties had converted to Christianity?
  3. Whether the Kadhi’s Court had the jurisdiction to determine issues on matrimonial property where one of the parties of the marriage had converted to Christianity.
  4. Read More...

Relevant provisions of the Law
Constitution of Kenya, 2010
Article 170 (5)
Kadhis’ courts

(5)       The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Kadhis’ Court Act
Section 5 
Jurisdiction of Kadhis’ Courts

A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.

Marriage Act
 Section 3
Meaning of marriage

(1)       Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.
(2)       Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.
(3)       All marriages registered under this Act have the same legal status.
(4)       Subject to subsection (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law.

Held:

  1. The wording of section 5 of the Kadhi’s Court Act was to the effect that nothing in that section would limit the jurisdiction of the High Court or Subordinate Courts in any proceedings which came before it. The jurisdiction of the High Court was not limited by the provision of section 5 of the Kadhi’s Court Act. Article 170(5) of the Constitution limited the jurisdiction of the Kadhi’s Court to four issues, personal status, marriage, divorce and inheritance.
  2. Section 3 of the Marriage Act that provided that only persons who professed Islamic faith could be governed by Islamic Law in matters relating to matrimonial property did not expand the jurisdiction of the Kadhi’s Court as provided under Article 170 (5) of the Constitution.  Section 3 of the Matrimonial Property Act only gave discretion to a person who professed the Islamic faith to have issues relating to matrimonial property governed by Islamic Law. 
  3. In the instant petition no reference was made to the Kadhi’s Court under section 3. The effect was that a dispute involving the matrimonial property of someone who professes Islamic faith could be determined by any other court provided that the basis of the determination was Islamic Law.  Section 3 did not oust the jurisdiction of the Subordinate Court or High Court in determining matrimonial property disputes involving a Muslim.
  4. Parties to a marriage were deemed to be still married before the dissolution of a marriage. It was the act of dissolution of the marriage which brought the marriage to an end.
  5. Dissolution of a marriage is done through divorce proceedings. The Black’s Law Dictionary (9th edition) defined a “divorce” as the legal dissolution of marriage by a court.  Before the instant petition presented the marriage for dissolution, it was still being regarded as an Islamic marriage. The reverting of the petitioner to Christianity had not changed the status of the marriage. The parties were lawfully married under Islamic Law. Until the marriage was dissolved, the parties were deemed to be still married even if the marriage only existed on paper.
  6.  Since the petitioner converted to Islam and submitted herself to a marriage under the Islamic Law, the issue of the dissolution of the marriage was to be handled by the Kadhi’s Court. Issues relating to the dissolution of a marriage celebrated under Islamic Law were to be governed by Islamic Law as stated under section 71 of the Marriage Act.  The fact that the petitioner no longer professed Islamic faith did not change the situation.  The Respondent would have equally contended that he professed Islamic faith and that he did not wish to have his marriage dissolved under any other form of law other than the law it was solemnised.
  7. Divorce matters were civil in nature and the High Court had original jurisdiction to deal with civil disputes. Appeals emanating from the Kadhi’s Court, whether the appeals dealt with marriage, inheritance or divorce, were by law dealt with by the High Court.
  8. The circumstances of the instant divorce petition necessitated that the divorce be handled by the Kadhi’s Court. However, the Kadhi’s Court was only to deal with the issue of dissolution of marriage. Once the divorce was granted, the petitioner would have ceased to be governed by Islamic Law and section 3 of the Matrimonial property act would not apply. In the event of issues relating to property ownership arose; the Kadhi’s Court was to limit itself to issues relating to dissolution of marriage.
  9. The parties to the instant petition were engaged in litigation before the Environment and Land Court over issues of matrimonial property. That was the wrong forum; issues relating to matrimonial property were dealt with by the High Court. Not all matrimonial properties involved land.
  10. Though the High Court had the jurisdiction to determine the divorce petition, the dispute relating to the dissolution of marriage was first to be handled by the Kadhi’s Court. Doing so would not be subjecting the petitioner to Islamic Law. The petitioner’s marriage was yet to be dissolved and the same was contracted under the Islamic faith. The petitioner was to exit the marriage through the same door the petitioner entered into the marriage.
  11. The presumption was that the marriage was going to last forever.  The petitioner having expressed intentions to exit the marriage was to exit through the Kadhi’s Court so that the Kadhi could issue the divorce and sign the divorce certificate. 

Preliminary objection upheld. Divorce petition struck out.

CONSTITUTIONAL LAW

A tender award for the supply of election materials to the IEBC was set aside on the basis that there were violations of the Constitution in the making of the award.

Republic v Independent Electoral and Boundaries Commission & 3 others Ex Parte Coalition for Reform and Democracy
Misc Application No 637 of 2016
High Court at Nairobi
Judicial Review Division
G V Odunga, J
February 13, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-elections-minimum standards to be met in preparations for an election-allegations that a tender for the supply of election material was a tender for materials that failed to meet the required technological standards and was awarded without the necessary authorization from IEBC Commissioners-Constitution of Kenya 2010, articles 81 & 227.

Constitutional Law-independent commissions-Independent Electoral and Boundaries Commission (IEBC)-effect of a declaration of a vacancy in the office of Commissioners-whether the IEBC secretariat could award tenders while there were vacancies in the offices of the Chairperson and Commissioners-Independent Electoral and Boundaries Commission Act, 2011, section 5; Public Procurement and Disposal Act (Cap 412C) (repealed) section 63(2).

Constitutional Law-national values and principles of governance-public interest-existence of competing interests-timeliness in the conduct of elections and preparation for elections in a manner that meets the constitutional threshold for free and fair elections-whether public interest could override constitutional requirements.

Constitutional Law-right to access to justice-ouster cause-effect of an ouster clause that left an aggrieved party with no effective remedy-Constitution of Kenya 2010, article 48; Public Procurement and Disposal Act (Cap 412C)(repealed) sections 99 & 100.

Jurisdiction-jurisdiction of the High Court-whether the High Court had the jurisdiction to determine whether a tender award for the supply of election materials was made in a manner consistent with the requirements of the Constitution-Constitution of Kenya 2010, articles 81, 165(3)(d) & 227.

Judicial Review-grounds for granting judicial review remedies-illegality-violations of the Constitution-whether it was necessary to file a constitutional petition in order to seek judicial review reliefs on grounds that the Constitution was violated.

Judicial Review-availability of judicial review remedies-existence of an alternative remedy-effectiveness and adequacy of an alternative remedy-effect of an alternative remedy that was only available to certain parties but not the Ex parte Applicant in a judicial review application

Jurisdiction-jurisdiction of the High Court-ouster clauses-jurisdiction of the High Court in a situation where an ouster clause left an aggrieved party with no effective remedy-Public Procurement and Asset Disposal Act, No 33 of 2015, sections 167(1) & 174.

Jurisdiction-jurisdiction of the High Court -whether the High Court had the jurisdiction to determine whether a tender award for the supply of election material was made in a manner consistent with the requirements of the Constitution-Constitution of Kenya 2010, articles 81, 165(3)(d) & 227.

Statutes- Public Procurement and Disposal Act (Cap 412C) (repealed)-the mandate of the Public Procurement Administrative Review Board-whether the Public Procurement Administrative Review Board could determine questions touching on compliance with election laws-Public Procurement and Disposal Act (Cap 412C) (repealed) section 93.

Brief facts:
The Ex parte Applicant explained that it participated in the General Elections held on March 4, 2013. In that election the technology which was utilized included biometric identification of voters and the electronic transmission of election results but that technology failed. The Elections Act and Election Laws (Amendment) Act, 2016 were introduced to remedy the situation.
Further, the Ex parte Applicant explained that on August 17, 2016 the IEBC published an invitation to tender No. IEBC/01/2016 – 2017 for the supply and delivery of ballot papers for elections, election results declaration forms and poll registers on an as and when required basis for a period of two years (2016 – 2018). The Ex-parte Applicant's complaint was that the specifications in the tender for election materials were unreasonable as they did not take into account legal reforms and they were based on the repealed laws.
In particular, the Ex parte Applicant elaborated that in the tender documents, the specification for poll registers included an item code IEBC 131:2015 described as a “Principal Register of Voters” but such a register was not part of the Elections Act or the Amendment Act. The Ex parte Applicant explained that there was no evidence that the Principal Register of Voters was capable of being maintained on a public web portal in a format that could be inspected or verified for accuracy and could exhibit the biometric data of voters.
According to the Ex parte Applicant, tender item code IEBC 20:2015 entailed elections form 34, form 35, form 36 and form 38, which were not compatible with the intended integrated electronic system. The suggestions of the Ex parte Applicant on the issue included the use of bar coded ballot papers with security features that confined the use of specific ballot papers to specific polling stations and the use of bar coded electronic result transmission forms with security features that confined the use of specific forms to specific polling stations. It was therefore averred that it was unreasonable and irrational to order for the supply of poll registers, ballot papers and result transmission forms without securing or specifying the devices to be used for identification of voters and transmission of results.
The Ex parte Applicant also contended that the IEBC could not have awarded the tender to the 1st Interested Party as it was not duly constituted. It stated that there were vacancies in the offices of the Commissioners and such vacancies meant that the secretariat could not independently award the tender without the involvement of the Commissioners.


Issues:
  1. Whether it was necessary to file a constitutional petition in order to seek judicial review reliefs on grounds that the Constitution was violated.
  2. The nature of an alternative remedy that would affect the availability of judicial review as a remedy.
  3. Whether given the existence of the right to access to justice, the High Court had jurisdiction in a situation where an ouster clause left an aggrieved party with no effective remedy.
  4. Whether at the time of the award of the tender, the IEBC was properly constituted and could enter into such a tender agreement given that vacancies had been declared in the case of IEBC commissioners.
  5. Whether the tender award was done in compliance with the Constitution and applicable electoral laws.
  6. Whether the High Court had jurisdiction to determine whether a tender award for the supply of election materials was done in a manner consistent with the Constitution.
  7. Whether public interest in conducting elections in a timely manner would affect the need to ensure that preparations for elections met the required constitutional threshold.
  8. Read More...

Relevant provisions of the law
Constitution of Kenya 2010, article 81;
81. The electoral system shall comply with the following principles––

(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.

Constitution of Kenya 2010, article 227;
227. (1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Constitution of Kenya 2010, article 48;
48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

Constitution of Kenya 2010, article 165(3)(d);
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter
relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.

Public Procurement and Asset Disposal Act, No 33 of 2015, section 167(1);
167. Request for a review

(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.

Public Procurement and Asset Disposal Act, No 33 of 2015, section 174;
174. Right to review is additional right

The right to request a review under this Part is in addition to any other legal remedy a person may have.

Held:

  1. Article 47 of the Constitution recognized the right to fair administrative action as a constitutional right. Judicial review was not just a common law development nor a statutory relief, it was a constitutional remedy. The Constitution of Kenya 2010 blurred the demarcation between judicial review reliefs and constitutional law remedies. The Constitutional basis for judicial review remedies was provided for in articles 10, 25, 27, 47 and 50 of the Constitution.
  2. The Constitution was incremental in its language and it required both the grounds and remedies in judicial review applications to be developed. It also required the fusing, intertwining and development of the grounds for granting relief under the Constitution and common law. A violation of the principles of the Constitution was a ground for granting judicial review relief in judicial review applications without necessarily filing a constitutional petition. Under article 23 of the Constitution, constitutional principles played a crucial part in granting remedies in judicial review applications.
  3. The constitutional principles decreed in article 10 of the Constitution informed the manner in which judicial review jurisdiction would be exercised. A distinction between judicial review under article 23 of the Constitution and judicial review under the Law Reform Act, the Fair Administrative Act and Order 53 of the Civil Procedure Rules, was a distinction without a difference. Under article 20(3)(a) of the Constitution, the Court was required to develop the law to the extent that it did not give effect to a right or fundamental freedom. Therefore the provisions of Law Reform Act, the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules would have to be developed where a strict interpretation thereof did not give effect to a right or fundamental freedom.
  4. Judicial review entailed constitutional supervision of public authorities which involved a challenge to the legal validity of a decision. It did not allow the Court to examine evidence with a view to forming its own view about the substantial merits of the case.  A decision may be found to be perverse, irrational or grossly disproportionate to what was required. It was also possible for a decision to be found to be one made without taking into account relevant matters or one made by taking into account irrelevant matters. However, judicial review was distinct from an appeal and the Court would not be concerned with the merits of the case or forming its own views of the evidence. The Court in judicial review applications was concerned with whether procedure as required by statute or common law dictates was as a matter of fairness observed.
  5. To an extent, the existence of alternative remedies would affect the availability of judicial review remedies. Where a statute provided an alternative remedy to a party, the Court would exercise restraint and give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. However, where the alternative remedy was an inadequate means of redress, the Court would not exercise such restraint. The Court would consider whether the alternative remedy provided an efficacious and satisfactory answer to the litigant's grievance. Where it was necessary for a litigant to split its case into two or more causes before different Tribunals, in such a situation it would be fair to have the matter commence before a Tribunal that had jurisdiction to hear and determine all questions in controversy and to grant all reliefs sought. In that situation, the availability of alternative remedies would not be a sustainable objection to the High Court as the Tribunal that could grant all the necessary reliefs.
  6. Any provision purporting to limit the jurisdiction of the High Court had to derive its authority from the Constitution itself and must do so expressly and not by implication unless the implication was necessary for purposes of giving effect to the provisions of the Act. Ouster clauses were effective as long as they were not unconstitutional, were consistent with the main objectives of the Act and passed the test of reasonableness and proportionality. Where an ouster clause left an aggrieved party with no effective remedy at all, such an ouster clause would be struck down for being unreasonable.
  7. The State was enjoined to ensure access to justice for all persons under article 48 of the Constitution. Under article 20(3) and (4) of the Constitution, in applying any provision of article 47 of the Bill of Rights, the Court was enjoined to develop the law to the extent that it did not give effect to a right or fundamental freedom and to adopt the interpretation that favoured the enforcement of a right or fundamental freedom. In so doing the Court was constitutionally obliged to promote the spirit, purport and objects of the Bill of Rights. Among the tools of the interpretation of the Constitution, under article 259 of the Constitution, was the requirement that the Constitution was to be interpreted in a manner that advanced the rule of law and the human rights and fundamental freedoms in the Bill of Rights and permitted the development of the law.
  8. The IEBC and the Review Board were of the view that the Review Board lacked jurisdiction in matters that entailed applying and enforcing non- procurement laws such as the Election laws when in fact under the Elections Act, the Election Court was the High Court and appeals therefrom lay to the Court of Appeal. The issues raised in the instant suit were matters relating to Election laws over which the High Court ordinarily had jurisdiction.
  9. The Applicant indicated that it was not questioning the decision of the Review Board and therefore, it was rightly faulted for seeking reliefs and joining the Review Board as a party to the proceedings. The irregularity amounted to a misjoinder and it was not fatal to the proceedings.
  10. Under section 175 of the Public Procurement and Asset Disposal Act, a person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board’s decision, failure to which the decision of the Review Board shall be final and binding to both parties. However, the Ex parte Applicant was not an aggrieved person within the meaning of the provision as the Review Board did not make decisions touching on the issues brought before the High Court. Hence, the 14 day period applicable for purposes of seeking judicial review remedies, for such an aggrieved person, did not apply to the Ex parte Applicant.
  11. Pursuant to section 167(1) of the Public Procurement and Asset Disposal Act, 2015 administrative review was available only to the candidates or tenderers and the Ex parte Applicant was neither a candidate nor a tenderer in the subject procurement. Therefore, the Ex parte Applicant lacked locus to commence proceedings for review.
  12. A person aggrieved by the actions of a procuring entity would not be left without a remedy. Section 174 of the Public Procurement and Asset Disposal Act allowed such a person to seek alternative remedies under other provisions of law.
  13. At the time the contract, which effected a tender awarded to Al Ghurair Printing and Publishing Company Limited, the 1st Interested Party, was signed, the position of chairperson and members of the Commission (IEBC) had already been declared vacant and the process of recruiting the new chairperson and the commissioners was underway. Unless there was a transition clause allowing an office holder to be deemed to hold office until his or her replacement, once a vacancy was declared, the holder of the office was required to vacate the office. The office would be vacant and an empty office would not make decisions.
  14. The Election Laws (Amendment) Act at section 31 changed the composition of the Commission by amending section 5 of the Independent Electoral and Boundaries Commission Act, 2011. The number of members of the Commission was reduced from the previous nine members including the chairperson to seven members including the chairperson. It was questionable whether there was proper authorization for the contract signed with the 1st Interested Party with respect to the award of the tender.
  15. Section 63(2) of the Public Procurement and Disposal Act empowered the accounting officer to prepare and execute the contract relating to the tender award. It did not empower him to award the tender. Therefore the aforesaid provision could not be the basis of an award of a tender by the accounting officer where the Commission technically did not function.
  16. The award of the tender for the supply and delivery of ballot papers for elections, election result declaration forms and poll registers ought to have taken into account the new legislative framework that had been put into place to ensure the constitutional threshold was attained. Considering that by the time the formal contract was being entered into, the Amendment Act had already commenced on October 4, 2016, it was unreasonable for the IEBC to have proceeded with the contract in light of the new legal developments.
  17. Preparations leading to elections had to meet the minimum standards articulated in article 81 of the Constitution. Those standards were to the effect that an election system had to be free and fair, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. 
  18. Article 227 of the Constitution provided the minimum threshold when it comes to public procurement and asset disposal.  Therefore, any procurement, before considering the requirements in any legislation, rules and regulations, had to meet the constitutional threshold of fairness, equity, transparency, competitiveness and cost-effectiveness. Any other stipulation in an enactment or in the tender document could only be secondary to what the Constitution dictated.
  19. Article 3(1) of the Constitution placed an obligation on every person to respect, uphold and defend the Constitution and article 258 of the Constitution provided that every person had a right to institute Court proceedings claiming that the Constitution had been contravened. A person who felt that a procurement process did not meet the constitutional threshold provided for under article 227 of the Constitution, and had no other recourse in law, would find recourse in the High Court. The High Court, under article 165(3)(d) of the Constitution, had jurisdiction to hear any question on the interpretation of the Constitution and to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution.
  20. On the question of public interest, the IEBC asserted that there was need to hold the next General Elections by August 8, 2017 and that failure to do so would expose the country to serious injury and loss akin to the 2008 Post Election Violence. It was trite law that a contravention of the Constitution or a statute could not be justified on the plea of public interest as public interest was best served by enforcing the Constitution and statute. Under article 10 of the Constitution, the making and implementation of public policy decisions was to be undertaken in accordance with the national values and principles of governance which included the rule of law. Any alleged public policy or interest which was contrary to the rule of law would not be upheld.
  21. Public or national interest was a consideration that Courts had to take into account when determining disputes before them where there was a conflict between private interest and public interest by balancing the two and deciding on where the scales of justice tilted. Hence, the principle of proportionality was part of Kenyan jurisprudence. In making such a consideration, the Court would opt for the lower rather than the higher risk of injustice.
  22. In the instant suit, there were two competing public interests. The first was the necessity to comply with timelines while the second was the constitutional requirement for the election system to be free and fair; and administered in an impartial, neutral, efficient, accurate, verifiable, secure, accountable and transparent manner. It had not been contended that if the Court was to grant the orders sought herein it would be impossible to conduct the elections on August 8, 2017. To the contrary the Public Procurement and Asset Disposal Act, provided for circumstances under which restricted and direct tendering processes could be resorted to where applicable as long as the law was complied with.
  23. While it was within the IEBC's mandate to ensure that unnecessary obstacles did not prevent the conduct of General elections on August 8, 2017, it was the Court's mandate to ensure that the elections were conducted in accordance with the Constitution and the law. The Court would not allow itself to be a rubberstamp for a process that was clearly flawed and whose result was unlikely to meet the constitutional and legal threshold.
  24. The Special Conditions of Contract relating to the contract signed by the IEBC and the 1st Interested Party provided that the contract “cannot under any circumstances be terminated for convenience.” However, the termination of a procurement contract by the Court for failure to adhere to the Constitution was not a convenience situation. The democratic rights of Kenyans would not be sacrificed on the altar of the 1st Interested Party's financial interests. Similarly, the Court would not delve into the issue of the financial losses occasioned to the taxpayer.
  25. The principle of independence of Constitutional Commissions did not prohibit the Court from addressing questions on whether the Commission was functioning within its mandate and whether it had violated the Constitution. A commission's independence would remain valid and insurmountable where the commission was operating within its legislative and constitutional sphere.

Application allowed.

Orders: -

  1. An order of certiorari to quashed the decision of the 1st Respondent to award Tender Number IEBC/01/2016 – 2017 for the supply and delivery of ballot papers for elections, election result declaration forms and poll registers to Al Ghurair Print and Publishing Company Limited of Dubai.
  2. The 1st Respondent was at liberty to restart the tender process for the supply and delivery of ballot papers for elections, election result declaration forms and poll registers and the same was to be done in compliance with the Constitution, provisions of the Public Procurement and Asset Disposal Act and the relevant election laws.
  3. Having granted an order of certiorari, it was not necessary to grant the order of prohibition in the manner sought’
  4. The order sought against the 2nd Respondent was declined.
  5. Given that it was a case of public interest litigation, each party was to bear its own costs.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org