Weekly Newsletter 019/2017

Weekly Newsletter 019/2017



Kenya Law

Weekly Newsletter


Section 29(2) of the Elections Act, which required the persons who nominated an independent presidential candidate not to be members of any political party, was declared unconstitutional
Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another
Constitutional Petition No 234 of 2017
High Court at Nairobi
Constitutional & Human Rights Division
G V Odunga, J
May 26, 2017
Reported by Beryl A Ikamari
Download the Decision

Constitutional Law -fundamental rights and freedoms-political rights-right to vie for elective office as an independent presidential candidate-the effect of having restrictive requirements placed on the right to vie for elective office-requirements that the registered voters who nominated an independent presidential candidate would not belong to any political party and that a list of their names would be provided only in Excel electronic format-whether under those circumstances the right to vie for elective office as an independent candidate was violated-Constitution of Kenya 2010, article 24 & 38; Elections Act, No 24 of 2011, section 29(2); Election General Regulations, 2012, regulation 18

Constitutional Law-interpretation of constitutional provisions-presumption of constitutionality of the provisions of a statute-the inapplicability of the presumption of constitutionality to a statutory provision which purported to limit a constitutional right in the Bill of Rights-the requirement under article 29(2) of the Elections Act that the registered voters who nominated an independent presidential candidate would not belong to any political party-whether section 29(2) of the Elections Act was an unjustified limitation on the political rights enshrined in article 24 & 38 of the Constitution-Constitution of Kenya 2010, articles 10, 38, 259(a) & 259(c); Elections Act, No 24 of 2011, section 29(2).

Brief facts:
The Petitioner, an independent presidential aspirant in the August 8, 2017 elections, claimed that his rights to vie as an independent candidate had been curtailed. The Office of the Registrar of Political Parties cleared the Petitioner as an independent presidential candidate and approved his symbol. According to the Office of the Registrar of Political Parties, the Petitioner had fulfilled the requirement for the collection of signatures from 24 counties, which was above 48, 000 supporters as required by law and what was left for him to do was a presentation thereof to the Commission (IEBC).
Through a social media notice, the Commission, on May 17, 2017 stated that it would receive the required signatures in an Excel format and the signatures had to be from registered voters who were not affiliated to any political party. The Petitioner complained that the requirement that the signatures had to be in Excel format was not a condition at the time the IEBC issued forms to him. The Petitioner also contended that the IEBC did not maintain a list of voters who were not members of any political party. Generally, the Petitioner stated that the social media notice created requirements that entailed conditions and obstacles that infringed on his right to contest.
According to the Petitioner, section 29(2) of the Elections Act which provided for the requirement that the registered voters who supported an independent candidate ought not to belong to a political party was unconstitutional and it was inconsistent with article 137(1)(d) of the Constitution. Article 137(1)(d) of the Constitution only required that the supporters of such an independent candidate ought to be registered voters. The Petitioner explained that section 29 of the Elections Act amounted to an unjustified limitation on his right to vie as an independent candidate as provided for in article 38 of the Constitution. The Petitioner also stated that the requirement that signatures were to be obtained only from registered voters who did not belong to a political party was discriminatory as it only applied to independent presidential aspirants.
The Petitioner elaborated that the requirement for submission of a supporters list in Excel format was not introduced in a timely manner and no reasons were given for its introduction. Therefore, the Excel format requirement, according to the Petitioner was a violation of his rights to fair administrative action as recognized in article 47 of the Constitution. The Petitioner said that the requirement exposed him to the need to collect signatures afresh in the required format and in many counties access to electricity and electronics that would allow for the fulfillment of that requirement was difficult.


Issues:
  1. Whether section 29 of the Elections Act, had the effect of limiting the independent presidential candidates’ right to vie for political office, unjustifiably, by providing that the registered voters who nominated them by appending signatures ought not to be members of any political party.
  2. Whether it was legally justifiable to require independent presidential candidates to submit a list of their supporters to the IEBC only in an Excel format.

Relevant provisions of the law
Constitution of Kenya 2010, article 259;

259. (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

Constitution of Kenya 2010, article 38;
38. (1) Every citizen is free to make political choices, which includes the right—

(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.

(3) Every adult citizen has the right, without unreasonable restrictions—

(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Constitution of Kenya 2010, article 24;
24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

Constitution of Kenya 2010, article 131(1)(e);
(2) The President shall—

...
(e) ensure the protection of human rights and fundamental freedoms and the rule of law.

Constitution of Kenya 2010, article 27(4);
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Elections Act, No 24 of 2011, section 29;
29. Power to nominate
(1) The persons who nominate a presidential candidate shall be members of the candidate’s political party.
(2) The persons who nominate an independent presidential candidate shall not be members of any political party.

Held:

  1. The presumption of constitutionality of statutes was to the effect that unless the contrary was proved a statute was presumed to be constitutional. Where legislation violated a provision of the Constitution which was not in the Bill of Rights, the Petitioner was obliged to establish that the legislation violated a provision of the Constitution.
  2. Under the provisions of article 24 of the Constitution, there was no presumption of constitutionality with respect to legislation which limited fundamental rights. The legislation, which limited such rights, would have to meet the criteria set in article 24.
  3. The Constitution of Kenya 2010 was a transformative Constitution as opposed to a structural Constitution and it was value oriented. Its application and interpretation was not mechanical but it was guided by the spirit and the soul of the Constitution itself as ingrained in the national values and principles of governance espoused in the preamble and article 10 of the Constitution. Under article 259(a) and 259(c) of the Constitution, the Court was expected to interpret the Constitution in a manner that promoted its values, purposes and principles and permitted the development of the law.
  4. The norms and values identified in article 10 of the Constitution were bare minimums or just examples. Article 10 read, “The national values and principles of governance include…” The use of the term include meant that there were other values and principles which advanced the spirit of the Constitution but were not specifically listed in article 10 and the list in article 10 was not exclusive but inclusive. The national values and principles were capable of growing as society developed in order to reflect the true state of society at any given point in time.
  5. The Constitution of Kenya 2010 was a product of a long struggle for democracy. It was meant to correct the historical deficiencies that placed the people at the mercy of the executive by usurping the people’s sovereignty and giving the executive unchecked power over all other institutions of governance.
  6. History showed that Kenyans wanted to secure their political rights and to avoid a de facto single party system by guaranteeing those who did not subscribe to monolithic policies and systems a right to participate in the county's affairs without being locked out, by being independent candidates. Therefore, deliberately setting out to strangle the rights of independent candidates to freely exercise political rights by introducing legal provisions meant to smother the said candidates would be inimical to the spirit of the Constitution.
  7. There was a historical context to the right to contest for elective posts as independent candidates. At one point Kenya was a single party dictatorship and Kenyans agitated for multiparty democracy. Democracy connoted the right to belong to political parties and also the right not to do so without one losing his or her rights to contest for an elective post.
  8. The right to contest for political positions as an independent candidate was one of the rights recognized under article 38 of the Constitution. That right could only be limited as provided for in article 24 of the Constitution.
  9. The requirement of the Constitution with respect to supporters of independent candidates was that such supporters had to be registered voters. The constitutional provisions were not concerned with the issue as to whether such supporters belonged to or did not belong to political parties. The issue of membership to political parties or lack of it was a new provision introduced under section 29 of the Elections Act. Section 29 of the Elections Act entailed a limitation of the rights enshrined under the Constitution. The burden to justify the limitation therefore rested on the State. The state had to demonstrate that the requirements of article 24 of the Constitution as concerned the limitation were fulfilled.
  10. An applicable condition was that a provision which was enacted or amended on or after the effective date, and which had the effect of limiting a right in the Bill of Rights, was not valid unless the legislation expressed the intention to limit that right or fundamental freedom, and the nature and extent of the limitation. Section 29 of the Elections Act did not express an intention to limit a right and it did not indicate the extent and nature of the limitation.
  11. Experience relating to party primaries indicated that party membership lists were of doubtful authenticity and at worst grossly unreliable. Given that state of affairs, it was irrational to provide that independent candidates could only be supported by persons who did not belong to political parties. To expect independent candidates to do that would amount to sending them on a wild goose chase.
  12. The fact that someone belonged to a particular political party did not bind that person to vote for that political party's candidate. It was possible for members of a party not to subscribe to the choice of candidates offered by their political party and they would be free to vote for other candidates of their choice. Preventing persons from fronting candidates other than those chosen by their political parties would amount to unreasonably limiting their rights under article 38 of the Constitution and more so when the Constitution itself did not contemplate such a limitation.
  13. Section 29 of the Elections Act attempted to limit the fundamental freedom of association especially in the political sphere. The said section 29 could not be said to implement the Constitution. It introduced conditions such as nomination by members of the candidate’s political party or in case of an independent candidate by non-members of any political party, which the Constitution did not provide for.
  14. To subject a presidential candidate to support only from members of his or her political party would be inimical to the principles of national unity and inclusiveness recognized under article 10 of the Constitution. It would mean that a person seeking office under article 131(1)(e) of the Constitution, who was supposed to be a symbol of national unity, was pigeonholed and cocooned within his or her corner of supporters.
  15. The requirement that a presidential candidate had to be nominated by not fewer than two thousand voters from a majority of the counties was an attempt to give the presidency a national outlook which was an antithesis to the restriction of the presidential nominee to only those who prescribe to his or her policies and political convictions. The effect of section 29 of the Elections Act would be to render the freedom of association in article 38 a dead letter of the law if all Kenyans were to belong to political parties or if the only Kenyans who did not belong to political parties were less than the prescribed number. In that event presidential independent candidates would be locked out from the presidential contest. Section 29 of the Elections Act, therefore, failed to meet the threshold set in article 24 of the Constitution.
  16. Section 29 of the Elections Act provided for a different criterion for nominations of independent presidential candidates as compared to independent candidates for other elective posts. No intelligible differentia which distinguished persons vying for other posts from those vying for presidential posts had been shown. There was no rational relationship of the provision to the object sought to be achieved by the law. Therefore, the stated section 29 was a violation of the right to equality and freedom from discrimination recognized in article 27 of the Constitution.
  17. Regulation 18 of the Election General Regulations, 2012 stated that the independent presidential candidates would, at least five days to the day fixed for nomination, deliver to the Commission a list bearing the names, respective signatures, identity card or passport numbers and voters’ numbers of at least two thousand voters registered in each of a majority of the counties, in standard A4 sheets of paper and in an electronic form. The required electronic form would include a Word document and it did not necessarily relate to an Excel document. The insistence on an Excel format could not be justified under the stated regulation 18.
  18. There were factors to be taken into account when placing limitations on constitutional rights under article 24 of the Constitution. Those factors included the nature of the right or the fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation and the relationship between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.
  19. There was no justification for requiring candidates to transmit the list in Excel. Under the given circumstances, that requirement was irrational, unwarranted and had no basis in law. Also, it clearly amounted to a limitation on the exercise by independent candidates of their political rights. Such a limitation could only be effective if it were done under the provisions of article 24 of the Constitution and not through social media.
Petition allowed.
Kenya Law
Case Updates Issue 019/2017
Case Summaries

STATUTES

Amendments introduced via the Statute Law (Miscellaneous Amendments) legislation have to be minor and non-controversial.

Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others
Petition No 45 of 2016
High Court at Nairobi
Milimani Law Courts
Constitutional and Human Rights Division
G V Odunga, J
June 6, 2017
Reported by Beryl A Ikamari

Download the Decision

Statutes-procedure of legislation-amendment of statutes-Statute Law (Miscellaneous Amendments) legislation-the requirement that Statute Law (Miscellaneous Amendments) legislation was to be used to correct anomalies, inconsistencies, out-dated terminology or errors which were minor, non-controversial amendments to a number of statutes at once, in one bill- whether amendments which required the Communications Authority of Kenya to consult the Cabinet Secretary and the Competition Authority of Kenya before exercising part of its mandate could be made via Statute Law (Miscellaneous Amendments) legislation- Constitution of Kenya 2010, article 34(5).

Constitutional Law-enforcement of fundamental rights and freedoms-particulars to be provided in a constitutional petition-the need to set out with a reasonable degree of precision that which the Petitioner complained of, the provisions said to be infringed and the manner in which they were alleged to be infringed-Constitution of Kenya 2010, article 22(3)(b).

Jurisdiction-Jurisdiction of the High Court-hierarchy of Courts-whether the High Court had jurisdiction to interpret a Court of Appeal decision

Brief facts
The Communications Authority of Kenya (hereinafter referred to as the Authority) had its Board of Directors disbanded and appeals pending before the Court of Appeal, in relation to that disbanded Board, were withdrawn by the Cabinet Secretary, Information, Communication and Technology. The Board that was removed from office included the 1st - 6th and 12th Interested Parties. Initially, the High Court nullified the appointments to the Board of the 1st - 6th and 12th Interested Parties. However, they lodged an appeal at the Court of Appeal where orders were issued for their reinstatement pending the hearing of the Appeal.
On May 4, 2016, Gazette Notice No. 3152 backdated to April 29, 2016 appointed the 8th to 14th Interested Parties as the new members of the Board of Directors. It was claimed that the 1st to 6th Interested Parties were hounded out of office due to a controversy surrounding an allegedly illegal waiver of Kshs 2.7 billion in frequency licence fees owed to the Authority by Airtel Networks Kenya Limited.
The Petitioner complained that there was no due authorization for the withdrawal of the pending appeal. Additionally, the Court of Appeal orders which required the reinstatement of the 1st to 6th and 12th Interested Parties to office had not been vacated or set aside and were still in force. The removal of the Board from office went against those Court orders which according to the Petitioner were still in force despite the purported withdrawal of the appeal. It was claimed that the withdrawal was done without due authorization being given to the legal counsel by the 1st to 6th and 12th Interested Parties and that the Notice of Withdrawal, aside from withdrawing the appeal, purported to withdraw an application which had been heard and determined and orders had already been issued.
The Petitioner also complained about the amendments introduced by the Statute Law (Miscellaneous Amendments) Act, 2015 to the Kenya Information and Communications Act. The stated purpose of the Statute Law (Miscellaneous Amendments) Act, 2015 was to introduce minor amendment but the Petitioner said that it introduced amendments that took power away from the Authority in a manner that contravened the Constitution. Particularly, the Petitioner said that the amendments were contrary to articles 34(5)(a) and 93(2) of the Constitution.
The Petitioner stated that the amendments affected the independence of the Authority. He said that Statute Law (Miscellaneous Amendments) entailed an editorial tool used to correct anomalies, inconsistencies, out-dated terminology or errors which were minor, non-controversial amendments to a number of statutes at once, in one bill, instead of making such amendments incrementally, when a particular statute was amended, in the context of a separate legislative initiative. The Petitioner argued that the amendments were controversial and substantive and were introduced without public participation.
The Petitioner explained that the amendments undermined the independence of the Authority, contrary to articles 34(5)(a) and 93(2) of the Constitution, in two ways, namely;

  1. Amendments to sections 2, 84W(4), and 84W(5) took away the Communications Authority of Kenya's autonomous power to declare dominance in the sector, and subjected it to the Competition Authority of Kenya.
  2. Amendments to sections 5B(5), 27D, 40(1), 46(1)(b), 46(3), 83C(2), 83V, and 85A(3)) forced the Communications Authority of Kenya to consult the Cabinet Secretary, Information, Communication and Technology, before taking any action.

The Petitioner stated that in granting the waiver of the US$27 million (Kshs. 2.7 billion) to Airtel Networks Kenya Limited, the Director General of the Authority violated article 210 of the Constitution. Article 210 of the Constitution provided that no tax or licensing fee could be imposed, waived or varied except as provided by legislation. The Petitioner said that Airtel Networks Kenya Limited ought to pay the outstanding and long overdue frequency licensing fees.
The 1st, 5th and 6th Respondents asserted that the petition failed to meet the threshold of a constitutional petition. They said that it merely sought reinstatement of some of the Interested Parties to the Board of the Authority. According to those Respondents, the petition, as amended, did not provide particulars of the alleged infringements of the Constitution and the manner of the infringements or the jurisdictional basis of the Court. The issue of misjoinder was also raised. The 1st, 5th and 6th Respondents stated that the petition sought several unrelated reliefs, based and supported by totally equally different sets of facts.
The 1st, 5th and 6th Respondents also stated that the intended appeal at the Court of Appeal had been withdrawn by effluxion of time. While the Notice of Appeal was filed on June 5, 2015, the substantive appeal which under rule 82 of the Court of Appeal Rules was to be filed within 60 days of the filing of the Notice of Appeal, had not been filed. Therefore, the Respondents argued that the appeal was withdrawn and the stay of execution orders (the reinstatement orders) had been discharged.
The 1st, 5th and 6th Respondents stated that the word ‘consultation’ in the Statute Law Miscellaneous Amendment Act 2015 did not strip the authority of its independence and merely connoted the seeking of an opinion from the Cabinet Secretary or the Competition Authority, in different contexts. They also said that it was premature to question the waiver as it was an on-going issue and the power of licensing was discretionary and could not be the subject of orders of mandamus.
The 8th to 14th Interested Parties stated that they were legally appointed to the Authority's Board as Board members after due process of the law. They said that no evidence had been tendered to show that they were in office illegally. They stated that the petition was general, imprecise, unclear and uncertain with respect to allegations made against them and ought to be struck out for being incurably defective. The 8th to 14th Interested Parties, citing various reasons including those cited by the 1st, 5th and 6th Respondents, stated that the petition was incapable of proper adjudication as it sought divergent reliefs which required a consideration of multiple judicial principles.
The 4th Respondent, Airtel Networks Kenya Limited, stated that the reliefs sought conflicted with its rights as recognized in the Constitution and statute. It stated that it was not part of the recruitment process that led to the selection of the new Board. Airtel also stated that the Authority had power to issue licences and regulate persons in the telecommunication and postal business. In the exercise of these functions, Airtel stated that the Authority had discretion and acted independently.
Airtel said that in the reliefs sought, there was an assumption that it owed the Authority certain sums of money and that the assumption was not factual. It stated that the Court could not assume the role of the Authority with respect to licensing matters and that judicial review orders could not be issued to direct a public body on how to discharge a duty. 

Issues:
  1. Whether the pleadings lacked precision as they failed to state the nature of infringements of constitutional provisions that were complained of, the specific provisions that were infringed and the manner in which they were infringed.
  2. Whether the High Court had jurisdiction to determine the status of a matter filed at the Court of Appeal.
  3. Whether the amendments, which required the Communications Authority of Kenya to consult the Cabinet Secretary and the Competition Authority of Kenya before exercising part of its mandate, introduced to the Kenya Information and Communications Act by the Statute Law (Miscellaneous Amendments) Act 2015, were minor or non-controversial.
  4. Whether major amendments could be made through the Statute Law (Miscellaneous Amendments) legislation.
  5. Read More...

Held:

  1. It was prudent for an applicant to set out with a reasonable degree of precision that which he complained of, the provisions said to be infringed and the manner in which they were alleged to be infringed. However, an omission to do so would not mean that the petition would be dismissed. Article 22(3)(b) of the Constitution stated that it was possible to commence proceedings on the basis of informal documentation.
  2. Under article 165, the High Court was a Constitutional Court. Where the Court could glean from the pleadings the substance of what was complained of, the Court could not shirk its constitutional duty of granting relief to deserving persons and it would not sacrifice constitutional principles and the dictates of the rule of law at the altar of procedural issues.
  3. There was need for pleadings to be as precise as possible and that requirement of precision was applicable to civil proceedings including constitutional petitions. The system of pleadings defined and delimited with clarity and precision the real matters in controversy between the parties upon which they could prepare and present their respective cases.
  4. Where pleadings could be salvaged by way of further and better particulars or amendment, that option ought to be resorted to first. The Respondents and Interested Parties were not unable to adequately answer the allegations made by the Petitioner.
  5. In determining the issue regarding the status of a Court of Appeal matter, the Court would be forced to make determinations in respect of the status of the said appellate process and proceedings. However, the High Court had no jurisdiction to determine such an issue. The High Court had no competence to interpret the decision of the Court of Appeal. That matter ought to be dealt with by the Court of Appeal. The Court's inability to determine that issue meant that the Court was unable to assess whether the appointment of the Interested Parties to the Board of the Authority was lawful.
  6. Constitutional issues could arise in ordinary civil cases but litigating civil issues by way of a constitutional petition amounted to an abuse of the process of the Court. Where a matter was capable of being dealt with as a normal civil suit, it ought to be dealt with as such unless it was shown that there was a constitutional moment.
  7. There was an issue touching on a waiver of licensing fees owed by Airtel but it was not clear whether in fact there was a waiver. A determination on the legality of such a purported waiver was not possible.
  8. The procedure of legislation by way of Statute Law (Miscellaneous Amendment) legislation ought to avail only in cases of minor non-controversial amendments. Such legislation would be need not to be controversial, involve the spending of public funds, prejudicially affect the rights of persons or create new offences or subject a new class of persons to an existing offence. To determine the propriety of the use of the Statute Law (Miscellaneous Amendment) legislation to introduce the amendments in question, it was necessary to examine the impact and import of the amendments.
  9. The Communications Authority of Kenya was the independent body contemplated in article 34(5) of the Constitution. Before the introduction of the amendments, the Authority did not need to consult the Cabinet Secretary or the Competition Authority in order to undertake its functions. The amendments now obliged it to consult both the Cabinet Secretary and the Competition Authority before exercising part of its mandate.
  10. The mere fact that there was need for consultations did not make the opinions obtained from the consultation binding. There was a difference between informing the Cabinet Secretary of certain policies and consulting the Cabinet Secretary before undertaking a constitutional mandate. However, the amendment had an impact on the letter or spirit of article 34(5) of the Constitution and it could not be termed as minor, non-controversial and generally house-keeping amendments.

Petition partly allowed. (All amendments made on December 15, 2015 to the Kenya Information and Communications Act by the Statute Law (Miscellaneous Amendments) Act 2015 were quashed. No other reliefs sought were granted.)

CONSTITUTIONAL LAW
Section 29(2) of the Elections Act, which required the persons who nominated an independent presidential candidate not to be members of any political party, was declared unconstitutional

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another
Constitutional Petition No 234 of 2017
High Court at Nairobi
Constitutional & Human Rights Division
G V Odunga, J
May 26, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-political rights-right to vie for elective office as an independent presidential candidate-the effect of having restrictive requirements placed on the right to vie for elective office-requirements that the registered voters who nominated an independent presidential candidate would not belong to any political party and that a list of their names would be provided only in Excel electronic format-whether under those circumstances the right to vie for elective office as an independent candidate was violated-Constitution of Kenya 2010, article 24 & 38; Elections Act, No 24 of 2011, section 29(2); Election General Regulations, 2012, regulation 18

Constitutional Law-interpretation of constitutional provisions-presumption of constitutionality of the provisions of a statute-the inapplicability of the presumption of constitutionality to a statutory provision which purported to limit a constitutional right in the Bill of Rights-the requirement under article 29(2) of the Elections Act that the registered voters who nominated an independent presidential candidate would not belong to any political party-whether section 29(2) of the Elections Act was an unjustified limitation on the political rights enshrined in article 24 & 38 of the Constitution-Constitution of Kenya 2010, articles 10, 38, 259(a) & 259(c); Elections Act, No 24 of 2011, section 29(2).

Brief facts:
The Petitioner, an independent presidential aspirant in the August 8, 2017 elections, claimed that his rights to vie as an independent candidate had been curtailed. The Office of the Registrar of Political Parties cleared the Petitioner as an independent presidential candidate and approved his symbol. According to the Office of the Registrar of Political Parties, the Petitioner had fulfilled the requirement for the collection of signatures from 24 counties, which was above 48, 000 supporters as required by law and what was left for him to do was a presentation thereof to the Commission (IEBC).
Through a social media notice, the Commission, on May 17, 2017 stated that it would receive the required signatures in an Excel format and the signatures had to be from registered voters who were not affiliated to any political party. The Petitioner complained that the requirement that the signatures had to be in Excel format was not a condition at the time the IEBC issued forms to him. The Petitioner also contended that the IEBC did not maintain a list of voters who were not members of any political party. Generally, the Petitioner stated that the social media notice created requirements that entailed conditions and obstacles that infringed on his right to contest.
According to the Petitioner, section 29(2) of the Elections Act which provided for the requirement that the registered voters who supported an independent candidate ought not to belong to a political party was unconstitutional and it was inconsistent with article 137(1)(d) of the Constitution. Article 137(1)(d) of the Constitution only required that the supporters of such an independent candidate ought to be registered voters. The Petitioner explained that section 29 of the Elections Act amounted to an unjustified limitation on his right to vie as an independent candidate as provided for in article 38 of the Constitution. The Petitioner also stated that the requirement that signatures were to be obtained only from registered voters who did not belong to a political party was discriminatory as it only applied to independent presidential aspirants.
The Petitioner elaborated that the requirement for submission of a supporters list in Excel format was not introduced in a timely manner and no reasons were given for its introduction. Therefore, the Excel format requirement, according to the Petitioner was a violation of his rights to fair administrative action as recognized in article 47 of the Constitution. The Petitioner said that the requirement exposed him to the need to collect signatures afresh in the required format and in many counties access to electricity and electronics that would allow for the fulfilment of that requirement was difficult.

Issues:

  1. Whether section 29 of the Elections Act, had the effect of limiting the independent presidential candidates’ right to vie for political office, unjustifiably, by providing that the registered voters who nominated them by appending signatures ought not to be members of any political party.
  2. Whether it was legally justifiable to require independent presidential candidates to submit a list of their supporters to the IEBC only in an Excel format.Read More...

Relevant provisions of the law
Constitution of Kenya 2010, article 259;
259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.
Constitution of Kenya 2010, article 38;
38. (1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
Constitution of Kenya 2010, article 24;
24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
Constitution of Kenya 2010, article 131(1)(e);
(2) The President shall—
...
(e) ensure the protection of human rights and fundamental freedoms and the rule of law.
Constitution of Kenya, 2010, article 27(4);
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Elections Act, No 24 of 2011, section 29;
29. Power to nominate
(1) The persons who nominate a presidential candidate shall be members of the candidate’s political party.
(2) The persons who nominate an independent presidential candidate shall not be members of any political party.

Held:

  1. The presumption of constitutionality of statutes was to the effect that unless the contrary was proved a statute was presumed to be constitutional. Where legislation violated a provision of the Constitution which was not in the Bill of Rights, the Petitioner was obliged to establish that the legislation violated a provision of the Constitution.
  2. Under the provisions of article 24 of the Constitution, there was no presumption of constitutionality with respect to legislation which limited fundamental rights. The legislation, which limited such rights, would have to meet the criteria set in article 24.
  3. The Constitution of Kenya 2010 was a transformative Constitution as opposed to a structural Constitution and it was value oriented. Its application and interpretation was not mechanical but it was guided by the spirit and the soul of the Constitution itself as ingrained in the national values and principles of governance espoused in the preamble and article 10 of the Constitution. Under article 259(a) and 259(c) of the Constitution, the Court was expected to interpret the Constitution in a manner that promoted its values, purposes and principles and permitted the development of the law.
  4. The norms and values identified in article 10 of the Constitution were bare minimums or just examples. Article 10 read, “The national values and principles of governance include…” The use of the term include meant that there were other values and principles which advanced the spirit of the Constitution but were not specifically listed in article 10 and the list in article 10 was not exclusive but inclusive. The national values and principles were capable of growing as society developed in order to reflect the true state of society at any given point in time.
  5. The Constitution of Kenya 2010 was a product of a long struggle for democracy. It was meant to correct the historical deficiencies that placed the people at the mercy of the executive by usurping the people’s sovereignty and giving the executive unchecked power over all other institutions of governance.
  6. History showed that Kenyans wanted to secure their political rights and to avoid a de facto single party system by guaranteeing those who did not subscribe to monolithic policies and systems a right to participate in the county's affairs without being locked out, by being independent candidates. Therefore, deliberately setting out to strangle the rights of independent candidates to freely exercise political rights by introducing legal provisions meant to smother the said candidates would be inimical to the spirit of the Constitution.
  7. There was a historical context to the right to contest for elective posts as independent candidates. At one point Kenya was a single party dictatorship and Kenyans agitated for multiparty democracy. Democracy connoted the right to belong to political parties and also the right not to do so without one losing his or her rights to contest for an elective post.
  8. The right to contest for political positions as an independent candidate was one of the rights recognized under article 38 of the Constitution. That right could only be limited as provided for in article 24 of the Constitution.
  9. The requirement of the Constitution with respect to supporters of independent candidates was that such supporters had to be registered voters. The constitutional provisions were not concerned with the issue as to whether such supporters belonged to or did not belong to political parties. The issue of membership to political parties or lack of it was a new provision introduced under section 29 of the Elections Act. Section 29 of the Elections Act entailed a limitation of the rights enshrined under the Constitution. The burden to justify the limitation therefore rested on the State. The state had to demonstrate that the requirements of article 24 of the Constitution as concerned the limitation were fulfilled.
  10. An applicable condition was that a provision which was enacted or amended on or after the effective date, and which had the effect of limiting a right in the Bill of Rights, was not valid unless the legislation expressed the intention to limit that right or fundamental freedom, and the nature and extent of the limitation. Section 29 of the Elections Act did not express an intention to limit a right and it did not indicate the extent and nature of the limitation.
  11. Experience relating to party primaries indicated that party membership lists were of doubtful authenticity and at worst grossly unreliable. Given that state of affairs, it was irrational to provide that independent candidates could only be supported by persons who did not belong to political parties. To expect independent candidates to do that would amount to sending them on a wild goose chase.
  12. The fact that someone belonged to a particular political party did not bind that person to vote for that political party's candidate. It was possible for members of a party not to subscribe to the choice of candidates offered by their political party and they would be free to vote for other candidates of their choice. Preventing persons from fronting candidates other than those chosen by their political parties would amount to unreasonably limiting their rights under article 38 of the Constitution and more so when the Constitution itself did not contemplate such a limitation.
  13. Section 29 of the Elections Act attempted to limit the fundamental freedom of association especially in the political sphere. The said section 29 could not be said to implement the Constitution. It introduced conditions such as nomination by members of the candidate’s political party or in case of an independent candidate by non-members of any political party, which the Constitution did not provide for.
  14. To subject a presidential candidate to support only from members of his or her political party would be inimical to the principles of national unity and inclusiveness recognized under article 10 of the Constitution. It would mean that a person seeking office under article 131(1)(e) of the Constitution, who was supposed to be a symbol of national unity, was pigeonholed and cocooned within his or her corner of supporters.
  15. The requirement that a presidential candidate had to be nominated by not fewer than two thousand voters from a majority of the counties was an attempt to give the presidency a national outlook which was an antithesis to the restriction of the presidential nominee to only those who prescribe to his or her policies and political convictions. The effect of section 29 of the Elections Act would be to render the freedom of association in article 38 a dead letter of the law if all Kenyans were to belong to political parties or if the only Kenyans who did not belong to political parties were less than the prescribed number. In that event presidential independent candidates would be locked out from the presidential contest. Section 29 of the Elections Act, therefore, failed to meet the threshold set in article 24 of the Constitution.
  16. Section 29 of the Elections Act provided for a different criterion for nominations of independent presidential candidates as compared to independent candidates for other elective posts. No intelligible differentia which distinguished persons vying for other posts from those vying for presidential posts had been shown. There was no rational relationship of the provision to the object sought to be achieved by the law. Therefore, the stated section 29 was a violation of the right to equality and freedom from discrimination recognized in article 27 of the Constitution.
  17. Regulation 18 of the Election General Regulations, 2012 stated that the independent presidential candidates would, at least five days to the day fixed for nomination, deliver to the Commission a list bearing the names, respective signatures, identity card or passport numbers and voters’ numbers of at least two thousand voters registered in each of a majority of the counties, in standard A4 sheets of paper and in an electronic form. The required electronic form would include a Word document and it did not necessarily relate to an Excel document. The insistence on an Excel format could not be justified under the stated regulation 18.
  18. There were factors to be taken into account when placing limitations on constitutional rights under article 24 of the Constitution. Those factors included the nature of the right or the fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation and the relationship between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.
  19. There was no justification for requiring candidates to transmit the list in Excel. Under the given circumstances, that requirement was irrational, unwarranted and had no basis in law. Also, it clearly amounted to a limitation on the exercise by independent candidates of their political rights. Such a limitation could only be effective if it were done under the provisions of article 24 of the Constitution and not through social media.

Petition allowed.

ADVOCATES

Revocation of the appointment of the Chairman of the Betting Control and Licensing Board found unlawful on grounds of procedural unfairness.

Okiya Omtatah v President of Kenya & 5 others
Petition No 95 of 2016
Employment and Labour Relations Court at Nairobi
Mathew Nderi Nduma, J
May 19, 2017
Reported by Beryl A Ikamari

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Constitutional Law-the Presidency-presidential immunity-whether the President of Kenya could be a party to a constitutional petition-Constitution of Kenya 2010, article 143.
Constitutional Law-fundamental rights and freedoms-right to fair administrative action-revocation of an appointment to public office without giving reasons or notice-whether the right to fair administration was violated under those circumstances -Constitution of Kenya 2010, article 47.
Statutes-Betting Control and Licensing Act-mandate to appoint the chairman of the Betting Control and Licensing Board-whether the President of Kenya or the Cabinet Secretary of Interior had the mandate to appoint the chairman of Betting Control and Licensing Board- Betting Lotteries and Gaming Act (Cap 131), section 3(1)(a).

Brief facts:

The petition sought to challenge the appointment of the 2nd Interested Party as the chairperson of the Betting Control and Licensing Board. It was contended that the Respondents did not have the mandate to effect the appointment. It was elaborated that under section 3 (1) (a) of the Betting Lotteries and Gaming Act, the chairman of the Board would be appointed by the relevant minister by notice in the Kenya Gazette.
Initially, the 3rd Interested Party was appointed as the chairman of the Board by the President. Admitting that the appointment was not within the President's mandate, the Cabinet Secretary of Interior sought to regularize the situation by revoking the appointment and appointing the 2nd Interested Party in place of the 3rd Interested Party as chairman of the Board. Therefore, Gazette Notice No. 5356 of July 12, 2016 was issued by the Cabinet Secretary of Interior to revoke Gazette Notice No. 4633 of June 23, 2016 and to make a new appointment to the Board.

Issues:
  1. Whether the President of Kenya could be joined as a party to the proceedings.
  2. Whether the revocation of the 3rd Interested Party's appointment as chairman of the Betting Control and Licensing Board, before the expiry of the prescribed 3 year term, was unlawful.
  3. Read More...

Relevant provisions of law
Betting Lotteries and Gaming Act (Cap 131), section 3(1)(a);
3. Establishment of Board
(1) There is hereby established a board, to be known as the Betting Control and Licensing Board, which shall consist of—
(a) a chairman, not being a public officer, to be appointed by the Minister by notice in the Gazette;
Constitution of Kenya 2010, article 47;
47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Constitution of Kenya 2010, article 143;
143. (1) Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.
(2) Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.

Held:

  1. The necessity of joining the President of Kenya (the 1st Respondent) as a party to the suit was negated by the revocation of Gazette Notice no. 4633 of June 23, 2016, which revoked the appointment of the 3rd Interested Party as the chairman of the Betting Control and Licensing Board and replaced him with the 2nd Interested Party.
  2. The 3rd Interested Party was not given notice of his removal from office; he was not given notice to show cause why his appointment should not be revoked or reasons for the purported removal. He was not given an opportunity to explain in writing why his unexpired term should not end and his appointment revoked.
  3. The revocation of the appointment and the replacement of the chairman with another person was done without following due process and without giving reasons. Due process of the law was recognized under article 47 of the Constitution which provided that every person had the right to administrative action which was expeditious, efficient, lawful, reasonable and procedurally fair. Before removing and replacing the former chairman, the Cabinet Secretary of Interior was bound to provide good reasons and communicate them to that chairman.

Petition allowed.

Orders: -

  1. A declaration to the effect that the 2nd Respondent’s purported removal of the 3rd Interested Party and the appointment of 2nd Interested Party to replace the 3rd Interested Party as the chairman of the Betting and Licencing Control Board was unlawful, null and void, was issued.
  2. The Gazette Notice No. 5331 of July 12, 2016 was a nullity in law.
  3. The 3rd Interested Party was to serve his full three (3) year term as the Chairman of the Betting Control and Licensing Board unless otherwise lawfully removed from office.

Costs were to follow the outcome of the petition

FAMILY LAW

Kenya Film and Classification Board’s legal mandate extends to regulating or in any manner controlling television content, including Advertisements.

Alcoholic Beverages Association of Kenya v Kenya Film and Classification Board
High Court of Kenya
Constitutional & Human Rights Division
Petition No 10 of 2017
JM Mativo J
May 12, 2017
Reported by Phoebe Ida Ayaya

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Constitutional Law –fundamental rights and freedoms- violations of rights– bill of rights-equality and freedom from discrimination –fair administrative action – whether there was an alleged violation of Chapter 4, articles 27 and 47 of the Constitution of Kenya, 2010 and section 3 of the Fair Administrations Act- Constitution of Kenya articles 27, 47 and Chapter 4; Fair Administrations Act section 3

Statutes-interpretation of statutes- principles of statutory interpretation -claim seeking to establish whether the advertisements in question being audiovisual in nature fell within the definitions and meaning of film and making film under section 2 of the Act and also within the scope prescribed at the preamble to the Act - Constitution of Kenya, 2010 articles 159(2),259; Interpretation and General Provisions Act, section 3; Films and Stage Plays Act sections 2, 15 ; Kenya Information and Communication Act section 46 (1).

Statutes – interpretation of statutes – interpretation of section 15 of the Film and Stage Plays Act vis a vis articles 27 & 47 of the Constitution - where section 15 of the Film &  Stage Plays Act defined the functions and mandate of the board – whether the provision was unreasonable and unjustifiable under the Constitution - where there was a possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the decision-maker would be prone to bias- whether the Kenya Film and Classification Board’s legal mandate extended to regulating or in any manner controlling television alcohol advertisements made by members of the Petitioner promoting alcoholic beverages –- Constitution of Kenya, 2010 articles 27, 47 ; Film and Stage Plays Act section 15

Jurisdiction-High Court - jurisdiction of the High Court- High Court’s jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of whether or not any law was inconsistent with the Constitution –Constitution of Kenya, 2010, article 165 (3) (d) (i) & (ii)

Brief facts:

The Petitioner was an association of alcoholic beverages manufacturers in Kenya registered under the Societies Act advocating for the rights of alcoholic beverages manufacturers. Aggrieved by two letters dated January 3, 2017 and January 9, 2017 from the Board, the Petitioner averred that officials of its members comprising of East African Breweries Ltd, Kenya Breweries Ltd, Africa Spirits Limited and other alcohol beverage manufacturers and traders faced imminent prosecution and other unspecified action. The letters complained of accused some members of the Petitioner of airing advertisements on TV during the watershed period contrary to the Act, the Kenya Information and Communication Act and the Programming Code for Free to Air Radio and Television Services in Kenya (hereinafter referred to as the Code). The complaint was that the Board demanded that their members stop the advertisements in question and submit advertisements to the Board for examination and classification in excess of its statutory mandate under sections 15 of the Act and 46 (1) of the Kenya Information and Communication Act. It was averred that the said actions infringed the Petitioners’ rights under articles 27 and 47 of the Constitution and section 4 (3) of the Fair Administration Act.
 The Petitioners case was that it was the responsibility of media houses as per sections 46 (I) (i) and 46 (H) of the Kenya Information and Communication Act in conformity with a determination made by the Communications Authority of Kenya to ensure that they broadcast content suitable for watershed hours and that section 3.2.1 of the Code provided that only programs or movies classified or rated by the Board as general exhibition, parental guidance or 16 shall be aired during the watershed period and that the mandate of the  Board  was limited only to the classification and imposition of age restriction on viewership on any film that was exhibited in Kenya and to give consumer advise on information relating to the protection of women and children against sexual exploitation or degradation in films or on the internet, hence the Board lacked the jurisdiction to regulate advertisements aired during watershed period.
The petition called for the determination of the statutory mandate of Kenya Film and Classification Board as stipulated under section 15 of the Films and Stage Plays Act (hereinafter referred to as the Act) and the meaning of the words "film" and "film making" as defined in section 2 of the Act. The core dispute was whether Kenya Film and Classification Board (hereinafter referred to as the Board) legal mandate extended to regulating or in any manner controlling television alcohol advertisements made by members of the petitioner promoting alcoholic beverages.

Issues:
  1. What were the guiding principles on statutory interpretation?
  2. Whether the advertisements in question being audiovisual in nature fell within the definitions and meaning of film and making film under section 2 of the Act and also within the scope prescribed at the preamble to the Act.
  3. Whether the Kenya Film and Classification Board’s legal mandate extended to regulating or in any manner controlling television alcohol advertisements made by members of the Petitioner promoting alcoholic beverages.
  4. Whether there was a possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the decision-maker would be prone to bias.
  5. Whether there was an alleged violation of Chapter 4, articles 27 and 47 of the Constitution of Kenya, 2010.
  6. Read More...

Relevant Provisions of the law
Films and Stage Plays Act
The functions of the Board are clearly stipulated under section 15 of the act which provides as follows: -
15.  Functions of the Board
 (1) The functions of the Board shall be to—
 (a) regulate the creation, broadcasting, possession, distribution and exhibition of films by—
 (i) examining every film and every poster submitted under this Act for purposes of classification;
 (ii) imposing age restriction on viewership;
 (iii) giving consumer advice, having due regard to the protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet;
Section 2 of the Act defines film as follows: -
 “film” means a cinematographic film, recorded video cassette film, recorded video discs, any recorded audiovisual medium, and includes any commentary (wherever spoken and whether the person speaking appears in the film or not), and any music or other sound effect, associated with the film, and any part of a film;

Held:

  1. Article 165 (3) (d) (i) & (ii) of the Constitution provided that the High Court had power to hear any question respecting the interpretation of the Constitution including the determination of whether or not any law was inconsistent with or in contravention of the Constitution and also the question 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. More importantly, judicial function included the power to determine and apply the law, and that necessarily included the power to determine the legality of purported statutes or decisions exercised pursuant to statutory powers.
  2. Statutory interpretation is the process by which courts interpret and apply legislation. The Court interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons such as: -
    1. Words are imperfect symbols to communicate intent. They can be ambiguous and change in meaning over time.
    2. Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
    3. Uncertainties may be added to the statute in the course of enactment, such as the need to compromise or catering for certain groups.
  3. A court must try to determine how a statute should be enforced but in constructing a statute, the Court cannot make sweeping changes in the operation of the law so that judicial power can be exercised carefully.
  4. There are numerous rules of interpreting a statute, the most important rule is the rule dealing with the statutes plain language. The starting point of interpreting a statute is the language itself. In the absence of any expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.
  5. The duty of the Court was neither 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 cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court cannot go to its aid to correct or make up the deficiency. Courts decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but cannot legislate itself.
  6. Interpretation depended on the text and the context. They were the bases of interpretation. One may well say if the text is the texture, context is what gives the color. Neither can be ignored as both are important. That interpretation is best which makes the textual interpretation match the contextual.
  7. Statutory construction should be a narrow pursuit, not a broader one. Canons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. Courts were to presume that a legislature said in a statute what it meant and meant in a statute what it said there. When the words of a statute were unambiguous, then, the first canon was also the last judicial inquiry was complete.
  8. A word in a statutory provision is 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) has much relevance in understanding the import of words in a statutory provision.
  9. One 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. The other key point for the Court to consider while interpreting the law was to change and adapt the law to new and unforeseen conditions. Law must change because social institutions change.
  10. In applying generalized legal doctrine, such as statutes, to the facts of specific cases uncertainties and unforeseen problems arise. As conditions change with the passage of time, some established legal solutions become outmoded. The Courts should resolve these uncertainties and assist in adapting the law to new conditions.
  11. While interpreting the law, the Court should bear in mind that they should make laws when necessary to make the ends of justice. Legal systems world over cannot grow as has been the case without a great amount of judicial law making in all fields. However, to the extent that judges make laws, they should do so with wisdom and understanding.
  12. There are two key assumptions relied by courts to explain and justify statutory interpretation. One is the assumption that meaning in legislative texts is "plain" -- that is, clear and certain, not susceptible of doubt. This assumption is the necessary basis for the plain meaning rule. The other assumption is that legislatures have intentions when they enact legislation and the intentions are knowable by courts when called on to interpret legislation.
  13. The touchstone of interpretation was the intention of the legislature. The legislature may reveal its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute should serve as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, one must read the text closely, keeping in mind that the initial understanding of the text may not be the only plausible interpretation of the statute or even the correct one. Courts generally assume that the words of a statute mean what an “ordinary” or “reasonable” person would understand them to mean.
  14. The principles which apply to the construction of statutes include: -
    1. presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result;
    2.  the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result;
    3. presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result
    4. the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly
    5. the principle that the law should serve public interest –meaning that the Court should strive to avoid adopting a construction which is in any way averse to public interest, economic, social and political or otherwise.
  15. The Court as an independent arbiter of the Constitution had fidelity to the Constitution and had to be guided by the letter and spirit of the Constitution. In interpreting a statute, the Court should give life to the intention of the lawmaker instead of stifling it.
  16. A statutory body was bound to adhere to the mandate stipulated in the statute creating it and its actions was to conform to the statutory and constitutional prescriptions. The preamble to the Films and Stage Plays Act stated that an Act of Parliament to provide for controlling the making and exhibition of cinematograph films, for the licensing of stage plays, theatres and cinemas; and for purposes incidental thereto and connected therewith.
  17. The term “audio-visual” simply meant that an item had both a sound (audio) and sight (visual) component.  The audio, the visual, or both could be either live or pre-recorded.  They could be enhanced by the use of technologies to make them easier for a large audience to hear or see, or they could simply be presented “as is” to a small group. The Major Law Lexicon defined Audio-visual as "production with both sound and images which may or may not be moving.
  18. Audiovisual commercial communication referred to the promotion of goods and services in the audiovisual world, particularly television advertising and shopping, sponsorship and product placement. Audiovisual commercial communication is a term that describes various forms of promotion of goods and services.  Broadly, the term covered television advertising, sponsorship, teleshopping and product placement. The advertisements in question being audiovisual in nature fell within the definitions and meaning of film and making film under section 2 of the Act and also within the scope prescribed at the preamble to the Act.
  19. The Kenya Film Classification Board was a state corporation that operated under the Government of Kenya whose mandate was to "regulate the creation, broadcasting, possession, distribution and exhibition of films by rating them. The Board was founded in 1963 with the commencement of the laws outlined in the Films and Stage Plays Act of 1962 section 11 and had since involved itself in the rating and classification of films and television programs. More recently, it had caused controversy by banning several films, such as the American box office success The Wolf of Wall Street, the Kenyan film Stories of Our Lives and the 2015 film Fifty Shades of Grey based on the novel of the same name. The Board has also regulated television content, including advertisements.
  20. The Kenya Film Classification Board was established by the Films and Stage Plays act of 1962 which came into force in 1963, mainly to regulate the creation, broadcasting, possession, distribution and exhibition of films by examining them for content, imposing age restrictions and giving consumer advice about various films. The Act gave the Board the power to approve or refuse to approve films and posters. The Act also stated that approval was not to be granted to films that, in the Board's opinion, "prejudice the maintenance of public order or offend decency, undesirable in the public interest. In addition, the Kenya Information and Communications Amendment Act of 2013 gave the Board the mandate to monitor television stations in order to ensure content meant for adult audiences was not aired during watershed period 5am – 10pm.
  21. The Board primarily classified and rated films by examining them and giving them a 'certificate of approval' along with its rating of 0 to 4. The scale indicated the 'impact' of the film: "low", "mild", "moderate" or "strong". That then corresponded to the general rating of the film: GE (general exhibition), PG (parental guidance recommended), 16 (not suitable for persons under the age of 16) and 18 (not suitable for persons under the age of 18). After the certificate of approval was issued, the classification officer recorded the name of the film, its country of origin, rating and the date of rating and published the information in the board’s classification catalogue. The Board's other activities included licensing film distributors in the country by granting film regulatory licenses to the distributors, and checking for violation of the terms of the license, including license expiry, sale of unrated movies, sale/showing of restricted movies and misuse of classification labels.
  22. The intention of the legislature was very clear and discernible from the plain meaning of the words. The Board was mandated to regulate the creation, broadcasting, possession, distribution and exhibition of films by inter alia imposing age restriction on viewership. It was also mandated to protect women and children against sexual exploitation or degradation in cinematograph films and on the internet.
  23. Advertisements of alcoholic drinks must comply with specific restrictions and guidelines so as to conform to the law. Audiovisual commercial communications must not cause physical or moral harm to minors, must not directly exploit minors’ inexperience or credulity, must not encourage minors to pressurize parents to make a purchase, must not be aimed at minors or encourage alcohol consumption.
  24. It was necessary to effectively enforce the safeguards bearing in mind that children of tender age may not have developed adequate “cognitive defenses” to implicitly process and appreciate commercial messages. Article 53 (2) of the Constitution provided that a child’s best interests were of paramount importance in every matter concerning the child, and in that respect, it was in the interests of the children and the society at large to enforce regulations governing advertising of alcoholic beverages.
  25. On the alleged violation of article 27 of the Constitution, there was no evidence that regulations in question had been enforced in a manner that was discriminatory against the Petitioner or any of its members.
  26. Article 47 of the Constitution codified every person's right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Further, there was a right to be given reasons for any person who had been or was likely to be adversely affected by administrative action. The issue that inevitably followed that was whether or not the letters complained of amounted to breach of the rules of natural justice. No decision or action had been arrived at by the time the Petitioner filed the proceedings.
  27. The Petitioner moved to court "too early' to stop the process and as at the time of filing the petition, there was nothing to show that the steps hitherto taken by the Board were contrary to the statutory mandate of the Board nor had the Petitioner proved infringement of any fundamental rights or threat to the infringement to warrant the Courts intervention.
  28. The Board’s functions were authorized by the relevant statute. The Petitioner had not proved any basis for reasonable apprehension of bias to convince the Court that the decision contemplated of any would be tainted with bias. Reasonable apprehension of bias was a legal standard for disqualifying decision-makers for bias. Bias of the decision-maker can be real or merely perceived. The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. The test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.
  29. A reasonable apprehension of bias may be raised where an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide the issue unfairly. There was no material in the case to demonstrate that had the Board proceeded, its decision would have been tainted by bias.
  30. The letters complained of were clear. The Petitioner responded to the letters and rushed to court before any decision was made. The petition was filed prematurely. There was nothing to show that the letters in question in any manner violated article 47 or violated any provisions of the law or threatened the Petitioner’s rights.
  31. Commercial advertising and marketing practices were generally considered to fall to some extent under provisions protecting freedom of expression, such as article 33 of the Constitution of Kenya 2010, article 19 of the Universal Declaration of Human Rights and article 19 (2) of the International Covenant on Civil and Political Rights, which states that the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. In General Comment number 34, the Human Rights Committee of the U.N. stressed that the right to freedom of expression may also include commercial advertising.
  32.  The regulation of commercial advertising and marketing practices was to follow the principles enunciated in national, international and regional instruments regarding possible limitations to freedom of expression. In accordance with article 24 of the Constitution and article 19 (3) of the International Covenant on Civil and Political Rights, restrictions shall only be such as are provided for by law and are necessary for respect of the rights or reputations of others. No evidence had been tendered to demonstrate that the provisions of the law discussed above or the regulations in question did not meet the constitutional muster prescribed under article 24 of the Constitution permitting restriction of rights.
  33. Article 19 (3) of the International Covenant on Civil and Political Rights also provided that restrictions were necessary for protecting national security, public order, public health or morals. The Human Rights Committee, in General Comment number 22, stressed that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.
  34. It had not been shown that the restrictions in question were not the least restrictive nor had it been shown that it was not proportionate to achieving the purported aim. Commercial advertising and marketing could be granted less protection than other forms of speech.
  35. In considering the regulation of commercial advertisements, the Court was inclined to consider whether the regulation in question was aimed at advancing public interest. There was significant interest in protecting the health, safety, welfare, moral values of children bearing in mind the responsibility of the state to ensure that commercial advertisements, activities and operations did not have an adverse impact on children’s rights, specifically marketing to children products with a potential long-term impact on their health and morals such as alcohol.
  36. The Court was inclined to uphold rules and standards aimed at protecting minors, human dignity and inculcating moral values in children. Transmission of audiovisual media advertisements should ensure respect for cultural, age difference, linguistic diversity, moral values and religious convictions.
  37. The Petitioner did not prove its case to the required standard. The language in the provisions was clear.  The mandate of the Board was also clearly spelt out in the Act. There was nothing to show that the Board acted outside its statutory mandate.

Petition dismissed with costs to the 1st Respondent.

JUDICIAL REVIEW

There is no general limitation period for claims for the enforcement of fundamental rights and freedoms

Jamlik Muchangi Miano v Attorney General
Constitutional Petition No 300 of 2015
High Court at Nairobi
John M Mativo, J
February 13, 2017
Reported by Beryl A Ikamari

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Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-limitation of time and delays in filing claims-transitional justice and the promulgation of the 2010 Constitution-whether there was a limitation period with respect to filing claims for the enforcement of fundamental rights and freedoms-transitional justice as a consideration relating to delays in filing such claims.

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-freedom from torture, cruel, inhuman and degrading treatment-standard of proof required to prove violations to the right to freedom from torture, cruel, inhuman and degrading treatment-whether a medical report was necessary to prove such a claim.

Brief facts:
The Petitioner sought relief with respect to alleged instances of arbitrary arrest, cruel and degrading treatment, torture and violence which he suffered while in police custody. He explained that he had been arrested in 1985 while preaching at Kiaragana PCEA Church and he was questioned about being a member of unlawful organizations such as Mwakenya, February 12 Movement and other Anti-Government movements. He also stated that he was arrested after the release of copies of Jitengemee Magazine in 1982 and also the release of Watchman magazine. The magazines had titles such as "Moi: God's name in vain" and "Devils whip on Kenyans."
The Respondent stated that the cause of action took place more than 30 years before the filing of the petition and that such a delay was highly prejudicial to the Respondent. The Respondent also said that the Constitution did not operate retrogressively and the Petitioner could not rely on rights enshrined in the repealed Constitution. Additionally, the Respondent stated that the Petitioner had not provided evidence including medical reports to support the alleged injuries.

Issues:
  1. Whether there was a limitation period within which a claim alleging violations of fundamental rights and freedoms had to be instituted.
  2. Whether the petitioner provided sufficient evidence to support the allegations of arbitrary arrest, cruel and degrading treatment, torture and violence.
  3. The nature of reliefs that the petitioner was entitled to, if any.
  4. Read More...

Held:

  1. In many cases Courts have held that there was no limitation period with respect to constitutional petitions alleging violations of fundamental rights. Additionally, there have been findings by the Courts to the effect that it was necessary to consider whether the delay in filing such a petition was unreasonable and prejudicial to the Respondent's defence. Additionally, Courts have found that the State could not shut its eyes on past failings nor ignore the dictates of transitional justice.
  2. A Court would be reluctant to shut out a litigant on account of limitation of time unless there were obvious reasons for doing so. In considering the issue of delay in filing petitions, the Court would take judicial notice of the immense difficulties, prevailing at specific periods, which made it difficult for aggrieved persons to file cases against the Government. The promulgation of the 2010 Constitution opened the doors of justice and made it possible for aggrieved persons to institute cases. In addressing delays the Court had to consider the realities of transitional justice and focus on delays after the 2010 Constitution.
  3. The respondent cross-examined the petitioner but did not call witnesses. Where a party failed to call evidence in support of his case, there would be a failure to substantiate the pleadings which would remain as mere statements of fact. The failure to adduce evidence also meant that the petitioner's evidence was unchallenged.
  4. The Respondent cited absence of occurrence book records from the various stations the petitioner was held. However, the Respondent was required to avail such records to dispute the alleged arrest and confinement. The charge sheet relied upon by the Petitioner did disclose  a police case number, the date the Petitioner was arraigned before Court, Court case file number and above all O.B. No. 54 of 13/8/92 confirming indeed the Petitioner was arrested and arraigned in Court.
  5. Section 74 of the Repealed Constitution guaranteed the right to protection from inhuman treatment while sections 78, 79 and 80 guaranteed the rights to freedom of conscience, expression, assembly and association.  The term "harassment" in its connotative expanse included torment and vexation. The term "torture" also engulfed the concept of torment. The word "torture" in its denotative concept included mental and psychological harassment. In the instant case the subject was not personal injuries but torture, harassment and mental and physiological effects of such actions to the victim in addition to the physical assault.
  6. The lawful exercise of rights of freedom of expression would not expose a citizen to violations of his other fundamental rights. The right not to be subjected to inhuman treatment included the right to be treated with human dignity and all that goes along with it. Inhuman treatment had many facets. It covered acts inflicted with an intention to cause physical suffering or severe mental pain. It would also include treatment which caused humiliation and compelled a person to act against his will or conscience. There was no doubt that any treatment which would cause humiliation and mental trauma corroded the concept of human dignity.
  7. The law required the police to be scrupulously fair to an alleged offender and to ensure fair investigation and fair trial and also to ensure that the citizen’s constitutional and fundamental rights were not violated. Under the circumstances, the petitioner was subjected to inhuman and degrading treatment by the police.
  8. The grant of compensation under article 23 of the Constitution, in claims for the enforcement of fundamental rights and freedoms, was a public law way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which had failed in its public duty to protect the fundamental rights of the citizen. However, the quantum of compensation depended on the facts and circumstances of each case. The award would have to be fair and reasonable. Fairness would be gauged by earlier decisions but the award would not be arbitrary or unconventional.
  9. Assessing compensation for an injury that was neither physical nor financial presented special problems for the judicial process which aimed to produce results objectively justified by evidence, reason and precedent. Subjective feelings  of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their  intensity were incapable of objective proof or of  measurement in monetary terms.
  10. The petitioner proved to the required standard that his rights were violated. An award of Ksh. 5,000,000/= would be reasonable in the circumstances considering the numerous arrests, period of confinement, the degrading and inhuman treatment suffered by the petitioner and the possible mental and psychological effect it could have had on him and the possible financial and social disruption occasioned to him.

Petition allowed.

DEVOLUTION LAW

Mombasa County Services actions to take over the ancillary activities, powers, duties, and obligations of the Kenya Ferry Services were inconsistent with the Ferries Act and the Constitution of Kenya, 2010.

Kenya Ferry Services Limited v Mombasa County Services & 2 others
High Court of Kenya at Mombasa
Constitutional Petition no 9 of 2016
MJA Emukule, MBS J
November 28, 2016
Reported by Phoebe Ida Ayaya

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Devolution law-national and county governments- cooperation between national and county governments – separation of services between the national and county governments- devolution of services-income generating services- ferry services- whether the ferry services operated by the Petitioner along the Likoni Channel to Lunga Lunga Mombasa–Lamu-trunk Road had been devolved to the County of Mombasa- Constitution of Kenya, 2010 articles 186, 189, 260

Constitutional law-fundamental rights & freedoms- breach of fundamental rights & freedoms—right to property-right to own and enjoy property- whether the takeover of the operations and functions of the Petitioner exercised in the suit properties was unconstitutional- whether the Respondent breached the Petitioner’s rights to property contrary to article 40 of the Constitution of Kenya 2010- Constitution of Kenya, 2010 article 40; Paragraph 5 of the Gazette Notice No. 152 of 2013

Civil Practice & Procedure –pleadings- defective pleadings- effect of defective pleadings- claim that the Petition herein was fatally defective, ex facie, incompetent, bad in law for lack of authority as there was no resolution to institute the Petition by the board of the company -  Civil Procedure RulesOrder 2 Rule 15

Brief facts:

The main issue raised by both the Petitioner and the Respondent was the division of the functions of the national and county governments under the Fourth Schedule to the Constitution of Kenya, 2010 and in particular Part II which conferred upon the County Governments the function of county transport, including under paragraph 5(e), the function of operating ferries and harbors, excluding, the regulation of international and national shipping and matters related thereto.  The second issue raised concerned the concomitant question of division of assets between the national and county governments.
Whereas the Petitioner contended that as an agency of the national government, it was responsible for ferry services, and matters related thereto, the Respondent’s reply was that ferries and harbors was a function of the county government.  It did not concern itself with the regulation of international and national shipping and matters related thereto.
The Respondent’s claimed that being a County Government created under article 6(1) of the Constitution of Kenya, 2010 (the Constitution), it was vested with power under the Fourth Schedule to the Constitution, and in particular sub-paragraph 5(e) of the Constitution, to manage transport and parking within the County of Mombasa, including the management of bus termini and collection of necessary fees and further, to license, collect revenue and other charges from businesses and other commercial enterprises and to issue permits at a fee for advertisement in all forms including bill boards, banners, display screens or advertisement branded on the vehicles to be created and displayed. The Respondent also claimed that the Petition herein was fatally defective and ex facie incompetent, bad in law on the ground that the Petition was filed without the Petitioner’s authority and that there was no resolution by the Petitioner’s Board approving the institution of the Petition.  On the contract between the Petitioner and the Interested Parties, (M/S My Space Properties Limited and Nova Media Limited) the Respondent contended that these were invalid because they were not executed under seal. It was also the Respondent’s contention that the Petitioner was operating a bus/matatu termini, hawkers’ stalls and outdoor advertising illegally because the said functions were devolved. On the loss of revenue, the Respondent claimed that it never demanded the handover of its properties or facilities but were concerned that the Petitioner’s actions had led to inefficiencies in the management of the ferries.  In other words, the Respondent said that it took over the said function from the Petitioner to enable the Petitioner concentrate on ferry operations, and also suggested that it could give assistance to the Petitioner to discharge its duties.
The Respondent contended that it took over the functions of the Petitioner on February 8, 2016 in a bid to restore order and increase efficiency in and around Likoni Ferry, and that it did so peacefully and without any altercation, because it was the responsibility of the Respondent to regulate and manage road transport, including Likoni channel. The Respondent also denied the subventions by the national government to the Petitioner as pleaded in paragraph 7 to the Petition, and other sources of revenue as pleaded in paragraphs 7, 8 and 9 of the Supporting Affidavit. The Respondent also denied the application or relevance of the letter dated February 24, 2016 by the Transitional Authority to the resolution of the dispute raised by the Petition herein. For all those reasons the Respondent urged the Court to dismiss the Petition herein with costs to the Respondent.

Issues:
  1. Whether the Petition herein was fatally defective, ex facie, incompetent, bad in law for lack of authority as there was no resolution to institute the Petition by the board of the company.
  2. Whether the ferry service operated by the Petitioner along the Likoni Channel to Lunga Lunga Mombasa–Lamu-trunk Road had been devolved to the County of Mombasa.
  3. Whether the takeover of the operations and functions of the Petitioner exercised in the suit property was unconstitutional.
  4. Whether the Respondent breached the Petitioner’s rights to property contrary to article 40 of the Constitution of Kenya, 2010.
  5. Read More...

Relevant Provisions of the law
Constitution of Kenya, 2010
Article 189 which is part of Chapter Eleven of the Constitution and is titled Part 5 – Relationships between Governments, (Cooperation between national and county governments) provides –
 “189(1)   Government at either level shall—
 (a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;
 (b)  assist, support and consult and, as appropriate, implement the legislation of the other level of government; and
 (c) liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.
 (2) Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities;
 (3)  In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.”

Article 186 provides as follows –
 “186(1)    Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule.
 (2) A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.
 (3) A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.
 (4)  For greater certainty, Parliament may legislate for the Republic on any matter.”

Article 260 - the expression “property” includes any vested or contingent right to or interest in or arising from –
 (a)  land, or permanent features on, or improvements to, land;
 (b) goods or personal property;
 (c)  intellectual property; or
 (d)  money choses in action or negotiable instruments.

Paragraph 5 of the Gazette Notice No. 152 of 2013
 5.    County transport including
 (a) – (c)
 (d)   ferries and harbours including development, maintenance and operation of ferries and harbours operating in inland lakes and waters.

Held:

  1. The Petitioner was a body corporate both under the Companies Act, (Cap 486, Laws of Kenya, now repealed), and a parastatal under section 2 of the State Corporations Act, being a company incorporated under the Companies Act which was wholly owned and controlled by the Government.
  2. The legal attributes of a body corporate which is also a state corporation as so defined, is that it has perpetual succession, and in its corporate name be capable of suing and being sued.  That there was no initial resolution to institute the Petition or that there was no such resolution was a matter of internal regulation of the Company or in the instant case the Petitioner. 
  3. The absence of such a resolution may be a defence to the Petitioner against a claim by a third party.  It was no defence by the Respondent to the Petitioner’s case.  In the absence of fraud or anything untoward, the contention was a technicality which was abhorred by article 159(d) of the Constitution that enjoined the Court to deliver substantial justice, and not be subjected to technicalities of procedure.  The Petition was therefore neither defective, nor ex facie incompetent, nor bad in law.
  4. The transfer of functions to County Governments was however subject to the provisions of the Transition to Devolved Government Act, enacted pursuant to articles 186(4) and 189(4) of the Constitution.  Sections 23 and 24 of the Transition to Devolved Government provided the criteria and procedure for transfer of functions to County Governments.
  5.  Pursuant to section 15 of the Sixth Schedule to the Constitution as read together with sections 23 and 24 of the Transition to Devolved Government Act, 2012, and further to Legal Notice Number 16 of 2016, the Transition Authority approved the transfer of the functions specified in the Schedule to Legal Notice Number 152 of 2013, to the County Government of Mombasa. 
  6. Paragraph 5(d) of theof the Gazette Notice No. 152 of 2013 had to be read and understood as whole, the function transferred to the Respondent was not merely to operate ferries and habours, but to operate and maintain ferries and harbours in inland lakes and waters.
  7. The Transition Authority knew the existence of the Likoni Channel Ferry which was and is being operated by the Petitioner.  The allocation of the function did not clearly include the operation of Likoni Channel Ferry.  There was therefore no mistake in the Legal Notice transferring the ferry function in respect of lakes and inland waters but did not refer to the Indian Ocean, for example.
  8.  The “grab” by the Respondent of the facilities and operations of the Petitioner in support of its core function of operating the deep Likoni Ferry Channel was not only contrary to all the provisions of Transition to Devolved Government Act, 2012, but its outright contrary to article 40 of the Constitution of Kenya, 2010.  Article 40 of the Constitution guaranteed the right of a person to own property of any kind whether alone or in association with others in any part of Kenya.  The expression “person” includes both “juridical” and “natural” person.  The Petitioner is a juridical person wholly owned by the national government and its assets and associated facilities and operations are assets, facilities and operations of the national government.
  9. Once a person developed resources from which it derived income to supplement or otherwise its core functions, a defendant or respondent could not be heard to argue that it had not deprived that person of the use or income derived from such property.  It was with respect, a puerile argument to say, no one had taken the Petitioner’s property since after all the Petitioner was still the registered owner of the suit properties while in fact the Defendant/Respondent had deprived the Petitioner of the use and fruits of its investment.
  10.  It was also sterile to argue that the facilities outside and either side of the channel were not developed in connection with and related to the ferry services offered by the Petitioner.
  11. It was not a polite expression to employ in matters of Judgment, but “gang-ho” tactics by the Respondents were contrary to the clear provisions of the Constitution such as article 189(2) where governments at the national and county government were bound to cooperate, and 189(3), any disputes between governments including national and county levels of government were required to settle any disputes between them by negotiations through alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.  It needed no reminder that under article 187(2) (b) constitutional responsibility for the performance of the function or exercise of the power remained with the government to which it was assigned by the Fourth Schedule.  Transport and communications, including in particular “marine navigation” was a matter assigned to the national government under paragraph 18(f) of the Fourth Schedule to the Constitution.
  12. The conclusion reached by the Chairman of the Transition Authority in his letter dated February 24, 2016 to the Respondents’ Governor was justified. The actions of the Respondent in taking over the Petitioner’s facilities which support its activities were against the letter and spirit of the Constitution of Kenya, 2010, and were therefore unconstitutional.

Petition allowed:
Orders

  1. A declaration that the Petitioner’s right to the protection of its property held by law and protected from arbitrary deprivation by the Respondent as well as its right to fair administrative action was breached by the Respondent;
  2. A declaration that the Respondent’s actions to take over the ancillary activities, powers, duties, and obligations of the Petitioner were inconsistent with the Ferries Act Chapter 410, the Companies Act (Cap. 486, now repealed), Legal Notice Number 152 of 2013, and therefore the Constitution of Kenya, 2010;
  3. A declaration that the Respondents proposed law called Mombasa Port Authority Bill and Mombasa Ports and Habours Bill 2014 was inconsistent with the provisions of articles 201 and 209(5) of the Constitution of Kenya, 2010, and was and would consequently be null and void in terms of article 2(4), thereof;
  4. An order directing the Respondent, its servants, agents or other persons to granting the personnel of the Petitioner to take over the operations of the Petitioner’s facilities ancillary to functions of the Petitioner as the Likoni Ferry Operator;
  5. An order that pending agreement between the national government and the Respondent, prohibiting the Respondent from interfering, taking over, collecting rent, or any other levies within the confines of the facilities erected and situated on Plot No. MS/1/1762 and MS/1/1763;
  6. Pending agreement between the national government and the Respondent, an order prohibiting the Respondent from taking parking areas, waiting bays, termini, rental space and buildings and advertising space currently or hereafter contracted by the Petitioner to third parties;
  7. An order that the Respondent shall account and refund to the Petitioner all the sums of money collected as rents, gate fees and rental space fees and advertising space from February 1, 2016 till the Judgment herein, and from the date of Judgment with interest (at the rate of Kshs. 1,500,000/= in (respect of business stalls, bus/matatu termini next to the mainland ramp), Kshs. 1,040,000/= per month (in respect of advertising and media space, and LED Screen Displayers, escalated to Kshs. 1,812,000/=;
  8. An order for compensation by way of damages at the average rate of Kshs. 2,580,000/= per month in respect of lost revenue from motor vehicles, tuk tuks, motor cycles, bicycles and handcarts using the Petitioner’s landing facilities, and termini;
  9. The Respondent shall also pay the Petitioner the costs occasioned by the unconstitutional and unlawful acts of the Respondent;

The Petitioner shall hand over to the Petitioner the complete operations of the Likoni channel Ferry together with all ancillary facilities within fourteen (14) days of the date of the Judgment.

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