Weekly Newsletter 024/2017

Weekly Newsletter 024/2017



Kenya Law

Weekly Newsletter


Presidential Election Annulled for Failing to Conform with the Constitution and the Elections Act
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR
Election Petition 1 of 2017
Supreme Court of Kenya
D. Maraga, CJ, P. Mwilu, DCJ, J. B. Ojwang, N. Ndung’u and I. Lenaola, SCJJ
September 1, 2017
Reported by Ribia John
Download the Decision

Brief Facts:
On August 8, 2017, a general election was held in Kenya.  Following the election, the 1st Respondent declared the 3rd Respondent as the President Elect. Aggrieved by the pronouncement, the 1st and 2nd Petitioners filed the instant petition in which they sought for the Presidential election to be annulled for failure to comply with laid out Constitutional Principles and the provisions of the Elections Act. They based their petition on grounds that the Presidential Election was tainted by illegalities and irregularities and consequently it lacked integrity.
 
Issues:
  1. Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the provisions of the Elections Act.
  2. Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
  3. Whether the irregularities and illegalities, if any, affected the integrity of the 2017 Presidential Election
 
Relevant Provisions of the Law
Constitution of Kenya, 2010
Artilce10  
National values and principles of governance

(1)   The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—
(a)   applies or interprets this Constitution;
(b)   enacts, applies or interprets any law; or
(c)   makes or implements public policy decisions.
(2)   The national values and principles of governance include—
(a)   patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b)   human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c)   good governance, integrity, transparency and accountability; and
(d)   sustainable development.

 

Article 38
Political rights

(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.


Article 81
General principles for the electoral system

The electoral system shall comply with the following principles—
a) freedom of citizens to exercise their political rights under Article 38;
(b)   not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d)   universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—
(i)   by secret ballot;
(ii)   free from violence, intimidation, improper influence or corruption;
(iii)   conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.


Article 86
Voting

At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a)   whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b)   the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d)   appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.


Elections Act
Section 39(1C)
Determination and declaration of results

(1C)   For purposes of a presidential election the Commission shall —
(a)   electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;
(b)   tally and verify the results received at the national tallying centre; and
(c) publish the polling result forms on an online public portal maintained by the Commission.

Section 44
Use of technology

(1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
(2) The Commission shall, for purposes of subsection(1), develop a policy on the progressive use of technology in the electoral process.
(3) The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
(4) The Commission shall, in an open and transparent manner —
(a)   procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections; and
(b)   test, verify and deploy such technology at least sixty days before a general election.
(5) The Commission shall, for purposes of this section and in consultation with relevant agencies, institutions and stakeholders, including political parties, make regulations for the implementation of this section and in particular, regulations providing for —
(a)   the transparent acquisition and disposal of information and communication technology assets and systems;
(b)   testing and certification of the system;
(c)   mechanisms for the conduct of a system audit;
(d)   data storage and information security;
(e)   data retention and disposal;
(f) access to electoral system software source codes;
(g)   capacity building of staff of the Commission and relevant stakeholders on the use of technology in the electoral process;
(h) telecommunication network for voter validation and result transmission;
(i)   development, publication and implementation of a disaster recovery and operations continuity plan; and
(j)   the operations of the technical committee established under subsection (7).
(6) Notwithstanding the provisions of section 109(3) and (4), the Commission shall prepare and submit to Parliament, the regulations required made under subsection (4) within a period of thirty days from the date of commencement of this section.
(7) The technology used for the purpose of the first general elections upon the commencement of this section shall —
(a)   be restricted to the process of voter registration, identification of voters and results transmission; and
(b)   be procured at least one hundred and twenty days before the general election.

(8) For the purposes of giving effect to this section, the Commission shall establish a technical committee of the Commission consisting of such members and officers of the Commission and such other relevant agencies, institutions or stakeholders as the Commission may consider necessary to oversee the adoption of technology in the electoral process and implement the use of such technology.


Section 44A

44A. Complementary mechanism for identification of voters
Notwithstanding the provisions of section 39 and section 44, the Commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.

Section 83
83.   Non-compliance with the law

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

Held:
Majority: D.  Maraga CJ, P. Mwilu DCJ, S. Wanjala and I. Lenaola, SCJJ
Dissenting: J. Ojwang and S. Ndung’u, SCJJ

  1. The 1st Respondent failed, neglected or refused to conduct the Presidential Election in a manner that was consistent to articles 10, 38, 81 and 86 of the Constitution of Kenya, 2010 and in a manner that was consistent with sections 39(1C), 44, 44A and 83 of the Elections Act.
  2. The 1st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which would be given in the detailed and reasoned judgment of the Court. However, there was no misconduct on the part of the 3rd Respondent.
  3. The irregularities and illegalities conducted by the 1st Respondent affected the integrity of the election and thereby impugned the integrity of the entire Presidential Election.
Order by the majority of the Court (with J. B. Ojwang and S. Ndung’u, SCJJ, dissenting) Petition allowed
  1. Declaration issued that the Presidential Election held on August 8, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.
  2. Declaration issued that the 3rd Respondent was not validly declared as the President elect and that the declaration declaring him President was invalid, null and void.
  3. Order issued that directed the 1st Respondent was to organise and to conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the instant determination under article140(3) of the Constitution.
  4. Each party was to bear its own costs
Per J Ojwang, SCJ (Dissenting)
  1. Whereas the substance of the case was founded on illegality and irregularity rested on the voting results electronic transmission process, there was substantial information showing that, by law, the conduct of the election should have been mainly manual, and only partially electronic. Hardly any conclusive evidence had been adduced in that regard which demonstrated such a manifestation of irregularity as to justify the invalidation of the election results.
  2. As it regarded the invocation of the Constitution as a basis for annulling the electoral process, only general attributions had been made without adherence to the prescription that the task of interpreting the Constitution with finality rested with no one but the Courts.
  3. Much of the evidence which the majority opinion adopted was largely unascertained, apart from standing in contradiction to substantial, more credible evidence.
  4. In such a marginal state of merits in the case that challenged the conduct of elections on August 8, 2017, it was clear beyond peradventure, that there was not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on August 8, 2017.
  5. The procedural law for assuring the integrity of elections was abundantly set out in the Elections Act, 2011 and in the Electoral Code of Conduct; and the relevant provisions were conscientiously applied by the Independent Electoral and Boundaries Commission, which fully provided for the role of international and local observers, as well as agents, in the conduct of the Presidential Election.The resulting electoral process had all the vital features of merit, as all the observers publicly acknowledge.
  6. To disregard such outstanding features of merit in the elections on August 8, 2017, was to overlook the most basic democratic principles which safeguard the electors’ entitlement to choose their public office-holders.
  7. The instant petition was devoid of requisite supporting evidence, it did not rest upon the pillars of the Constitution, the ordinary law, or the pertinent elements inherent in the configuration of a democratic election.

    Petition would have been dismissed 

    Per N Ndung’u SCJ (dissenting)
  8. At the heart of democracy were the people, whose will constituted the strand of governance that Kenya had chosen. On August 8, 2017 millions of Kenyans from all walks of life yielded to the call of democracy and queued for many hours to fulfil their duty to Kenya by delegating their sovereign power to their democratically elected representatives. That was an exercise that was hailed by many regional and international observers as largely, free, fair, credible and peaceful. That duty stood sacred and was only to be upset if there was any compelling reason to do so. That reason had to affect the outcome of the election.
  9. The election was conducted in accordance with the Constitution and the law. The 1st and 2nd Respondents demonstrated that they had adhered to the directions given by the Court of Appeal in the case of Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] eKLR (the Maina Kiai case) where the Court of Appeal cautioned, that the results declared at the polling station were final. The polling station was at the heart of any election.It was what happened there that was to be assessed and that was why its outcome was final.
  10. In any election, the ordinary Kenyan voter would ask themselves the following questions:-
    1. Was there a problem with registration of voters?
    2. Were voters properly identified at the polling station?
    3. Were voters allowed to cast their ballots peacefully and within good time?
    4. Were the votes cast-counted, declared and verified at the polling station to the satisfaction of all parties?
  11. If the answer to all the instant questions was in the affirmative, then the election   had been conducted properly.
  12. The Petitioners did not present material evidence, to the standard required, to upset the results returned to the National Tallying Centre by the presiding officers in Forms 34A. Those results, counted and agreed upon by Agents at the polling station were not challenged.
  13. What was fiercely contested was the mode through which those results were transmitted from the polling station to the National Tallying Centre. That process yielded the results that were streamed onto the portal and which, were not sufficiently impugned during the trial. The decision of the voter at the primary locale of the election, the polling station, was unchallenged.
  14. How then could a process used to transmit those results for tallying upset the will of the electorate? It was not proved that the voter’s will during the conduct of elections, was so affected by any irregularities cited so as to place the instant Court or the country in doubt as to what the result of the election was. Challenges were to be expected during the conduct of any election, however, those challenges which occurred, (none of which occurred deliberately or in bad faith, and which fell particularly outside the remit of the voter and his/her will)ought not to supplant the voter’s exercise of their right of suffrage.
Petition would have been dismissed.
Kenya Law
Case Updates Issue 023/2016
Case Summaries

REFUGEE LAW

The Freedom of Movement and Residence of Non-citizens in Kenya

Attorney General v. Kituo Cha Sheria and 7 Others
Civil Appeal No. 108 of 2014
Court of Appeal at Nairobi
Waki, Azangalala & Kiage, JJ.A
February 17, 2017

Download the Decision

Refugee Law- residence in Kenya- rights of non-citizens to enter, remain and reside in Kenya- distinguishing the right of non-citizens to enter, remain and reside in Kenya from that of citizens- whether all refugees and asylum seekers had to reside in refugee camps- whether the express application of entry, remaining and residence rights to citizens meant that non-citizens could not enter, remain or reside anywhere in Kenya- whether the proposed implementation of the government directive threatened the rights of refugees- Constitution of Kenya 2010, article 39; Refugees Act, No. 13 of 2006, Laws of Kenya, section 17.
Constitutional Law- fundamental rights and freedoms- limitation of fundamental rights and freedoms- limitation of the freedom of movement and residence- whether the rights of non-citizens to enter, remain and reside in Kenya were subject to limitation under both international law and the Constitution- Constitution of Kenya, 2010, article 24; Refugees Act, No. 13 of 2006, sections 4 and 16
International Law- application of international law in Kenya- applicability of international refugee laws in Kenya- where a fundamental right and freedom is recognized and conferred by other laws is not included in the Constitution-whether the Constitution had extinguished and excluded other rights and fundamental freedoms not in the bill of rights, but were conferred and recognized by law- whether the principle of non-refoulment as a norm of customary international law was recognised in Kenya- Refugee Convention, 1951, articles 26 and 33 (1); International Covenant on Civil and Political Rights, articles 7 and 12; Constitution of Kenya, 2010, article 2 (5) and (6)

Constitutional Law- fundamental rights and freedom- right to human dignity and fair administrative action- whether the government had an obligation to consult stakeholders about a directive that directly and greatly affected their rights to human dignity and

Brief Facts:
The Government had issued a directive that required relocation of refugees living in urban areas to refugee camps.   The Respondents filed a suit at the High Court and sought various declarations against the Government’s decisions for violation of rights and the law and also prayed for various orders of certiorari to quash the decisions, prohibition to prevent the implementation of those decisions and of mandamusto compel the Government to take certain steps to safeguard the petitioners’ rights and freedoms. The High Court rendered a judgment in favour of the Respondents. Aggrieved, the Attorney General filed the instant appeal. The Appellant addressed itself with regard to the interpretation of articles 2 (5), 2 (6) and 39 (3) of the Constitution of Kenya, 2010. The Appellant criticized the trial court for importing the provisions of the 1951 United Nations Convention Relating to the Status of Refugees (the 1951 Convention) which recognized the right of a refugee to freely move and reside within the country of refuge without paying due deference to the Constitution, which at article 39(3), limited that right. The Appellant also argued that the right under article 39 (3) of the Constitution was reserved to citizens only and that by quashing the Governments’ decision to close the urban refugee centres in Nakuru, Nairobi, Mombasa and Eldoret, the trial court had erred by opening up the right to foreigners which, moreover, violated section 6 of the Refugees Act that required refugees to reside within gazetted refugee camps that were in Daadab and Kakuma. The Appellant contended that in so far as the orders to close the urban refugee centres were issued by the Directorate of Refugee Affairs in accordance with sections 6 and 7 of the Refugee Act, they were executive directives properly made and the trial court ought to have deferred to them in the spirit of separation of powers. The Appellant argued that to order that the centres remain open was to intrude upon a matter within the proper scope of the executive and therefore the trial court had acted outside jurisdiction.

Issues:

  1. Whether the express application of entry, remaining and residence rights to citizens meant that non-citizens could not enter, remain or reside anywhere in Kenya.
  2. Whether the Constitution had extinguished and excluded other rights and fundamental freedoms not in the bill of rights, but were conferred and recognized by law.
  3. Whether the rights of non-citizens to enter, remain and reside in Kenya were subject to limitation under both international law and the Constitution.
  4. Whether articles 2 (5) and 2 (6) of the Constitution on international law were instrumental in the applicability of international refugee law to Kenya.
  5. Whether the government had an obligation to consult stakeholders about a directive that directly and greatly affected their rights to human dignity and fair administrative action.
  6. Whether the proposed implementation of the government directive threatened the rights of refugees. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 2 (5) and (6)
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Article 28
28. Human dignity
Every person has inherent dignity and the right to have that dignity respected and protected.

Article 39
39. Freedom of movement and residence
(1) Every person has the right to freedom of movement.
(2) Every person has the right to leave Kenya.
(3) Every citizen has the right to enter, remain in and reside anywhere in Kenya.

Article 47
47. Fair administrative action
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b)  promote efficient administration.

Refugees Act, No 13 of 2006, Laws of Kenya
Section 4
4. Disqualification from grant of refugee status
A person shall not be a refugee for the purposes of this Act if such person—
(a)      has committed a crime against peace, a war crime, or a crime against humanity as defined in any international instrument to which Kenya is a party and which has been drawn up to make provision in respect of such crimes;
(b)      has committed a serious non-political crime outside Kenya prior to the person’s arrival and admission to Kenya as a refugee;
(c)      has committed a serious non-political crime inside Kenya after the persons arrival and admission into Kenya as a refugee;
(d)      has been guilty of acts contrary to the purposes and principles of the United Nations or the African Union; or
(e)      having more than one nationality, had not availed himself of the protection of one of the countries of which the person is a national and has no valid reason, based on well-founded fear of persecution.

Section 16
16. Rights and duties of refugees in Kenya
(1) Subject to this Act, every recognized refugee and every member of his family in Kenya—

(a) shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is party;
(b) shall be subject to all laws in force in Kenya.

(2) The Minister may, by notice in the Gazette, in consultation with the host community, designate places and areas in Kenya to be—

(a) transit centres for the purposes of temporarily accommodating persons who have applied for recognition as refugees or members of the refugees’ families while their applications for refugee status are being processed; or
(b) refugee camps.

(3) The designated areas provided for in subsection (2) shall be maintained and managed in an environmentally sound manner.
(4) Subject to this Act, every refugee and member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions as are imposed on persons who are not citizens of Kenya.

The Refugee Convention, 1951
Article 26
FREEDOM OF MOVEMENT
Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Article 33 (1)
ARTICLE 33. PROHIBITION OF EXPULSION OR RETURN ('REFOULEMENT)
1. No Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

International Covenant on Civil and Political Rights
Article 12
Article 12. 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

Held:

  1. On the face of the constitutional text, it was clear that freedom of movement was a right that belonged to every person without any distinction based on citizenship. Equally applicable to all was the right to leave Kenya, meaning that no person could be compelled to remain in the country. However, with regard to entry into Kenya and remaining in Kenya or residing in any part of it, there was a clear distinction between citizens and non-citizens. Citizens needed no permission to enter Kenya, nor could they be expelled from the country and indeed were at liberty to reside anywhere in Kenya. The question that arose was whether the express application of entry, remaining and residence rights to citizens meant that non-citizens could not enter, remain or reside anywhere in Kenya. Such a conclusion would on the face of it be absurd and was not borne out by the text itself.
  2. It could not be discerned from the provisions of section 17 of the Refugees Act a requirement, express or implied, that all refugees and asylum seekers had to reside in refugee camps. If that had been the intention of Parliament, nothing would have been easier than for it to say so in plain language. Section 17 of the Refugees Act made provision for a person to be in charge of such refugee camps as existed and listed his duties and functions. It was an administrative checklist at most, and definitely not a normative statement of where refugees should reside.
  3. Apart from the lack of express prohibition or exclusion of entry, remaining or residence anywhere in Kenya for refugees, the right of freedom of movement and residence was provided for within the Bill of Rights. As such, the interpretation of related provisions had to accord with the interpretative guidance provided by the Constitution itself.
  4. Article 259 (1) of the Constitution enjoined courts to interpret the Constitution in a broad and purposive as opposed to a narrow and mechanistic manner. The values and principles of the Constitution were set out in article 10 (2) of the Constitution. A court had to keep those values and principles in view when interpreting the Constitution and each provision falling for consideration had to be construed in a manner that gave full meaning to and aimed for the achievement of the principles. Human rights were an overarching theme in the interpretational guidelines with a view to their fullest realization.  Beyond the general peremptory guidance with regard to interpretation of the Constitution, the Bill of Rights itself had general provisions that shed further light on the central pride of place that it occupied in the Kenya judicial space.
  5. The Bill of Rights in Kenya’s Constitutional framework was not a minor peripheral or alien thing removed from the definition, essence and character of the nation. Rather, it was integral to the country’s democratic state and was the framework of all the policies touching on the populace. It was the foundation on which the nation state was built. There was a duty to recognize, enhance and protect the human rights and fundamental freedoms found in the Bill of Rights with a view to the preservation of the dignity of individuals and communities. The clear message flowing from the constitutional text was that rights had inherent value and utility and their recognition. Their protection and preservation was not an emanation of state largesse because they were not granted, nor were they grantable, by the State. They attached to all persons by virtue of their being human and respecting rights was not a favour done by the state or those in authority. They merely follow a constitutional command to obey.
  6. The enumeration of various rights and fundamental freedoms in the Bill of Rights was indicated to be a guide as to the content of rights. However, it was not meant to be exhaustive, and one could not be heard to say that unless a right was expressly provided then it had not existed and could not be claimed. So long as a right existed by recognition or was conferred by law, that right was equally valid and efficacious unless and to the extent only as it could be inconsistent with the Bill of Rights. If some right existed independent of the Bill of Rights but had the effect of undermining or compromising the constitutionally declared Bill of Rights, then the constitutional provision prevailed.
  7. Article 20 of the Constitution was couched in wide and all-pervasive terms, declaring the Bill of Rights to apply to all law and to bind all state organs and all persons. None was exempt from the dictates and commands of the Bill of Rights and it was not open for anyone to exclude them when dealing with all matters legal. It was the ubiquitous theme unspoken that inspired, colored and weighed all law and action for validity. It had been provided for in expansive terms declaring that its rights and fundamental freedoms were to be enjoyed by every person to the greatest extent possible. The theme was maximization and not minimization; expansion, not constriction; when it comes to enjoyment and, concomitantly facilitation and interpretation.
  8. All courts, were required to apply the provisions of the Bill of Rights in a bold and robust manner that spoke to the organic essence of them ever-speaking, ever-growing, invasive, throbbing, thrilling, thriving and disruptive to the end that no aspect of social, economic or political life was to be an enclave insulated from the bold sweep of the Bill of Rights. Thus courts were commanded to be creative and proactive so that the Bill of Rights could have the broadest sweep, the deepest reach and highest claims. Hence they were enjoined in their interpretative role to adopt a pro-rights realization and enforcement attitude and mind set calculated to the attainment as opposed to the curtailment of rights and fundamental freedoms. They had to aim at promoting through their interpretations of the Bill of Rights the ethos and credo, the values and principles that underlie and mark us out as an open and democratic society whose foundation and basis was human dignity, equality, equity and freedom.
  9. It was the duty of every judge, magistrate, member of a tribunal or other body invested with judicial functions to deliberately and unrelentingly pursue, encourage, entrench, protect, jealously guard, educate and propagate ‘Project Freedom’ and aim to advance openness, democracy, and ensure that liberty rings loud and true in every place and sphere of Kenyan’s socio-political life. The Constitution demands that everything the Bill of Rights stands for in its text, its purport, its spirit, philosophy and intendment as a charter of liberty must be given full effect in a bold and unflinching manner. Judges must speak the language of rights and fundamental freedoms and do so with neither apology nor embarrassment. To fail to do so or to do otherwise would be to violate the express precepts of the Constitution.
  10. The trial court had not erred in its interpretation of article 39 of the Constitution. The trial court properly directed itself first, on the distinction in Article 39 between citizens and non-citizens with regard to the right of entry and residence and second, on the Constitution’s own declaration that the rights enumerated in the Bill of Rights were not exhaustive, had not excluded and, less, still extinguished, such other rights, not inconsistent with the Constitution, that could be provided by law.
  11. Given that by dint of Article 2(6) of the Constitution treaties and conventions ratified by Kenya form part of the law of Kenya under the Constitution, the trial court could not be faulted for holding, that the 1951 Refugee Convention, recognized at article 26 the right of refugees to choose their place of residence and to freely move within the receiving state but subject to any regulations applicable to aliens generally in the same circumstances. That provision was domesticated in Section 168 of the Refugee Act and was also reflected in Article 12 of the International Covenant on Civil and Political Rights (ICCPR) which, in language that eliminated any distinction between citizens and non-citizens, captured freedom of movement. The trial court had properly relied on the U.N Human Rights Committee’s Comment No. 27 on that right under the Covenant and in particular on the restrictions that could properly and permissibly be imposed on it.
  12. The trial court could not be faulted for concluding that under Article 39 of the Constitution, freedom of movement related to everyone but the right to enter, remain and reside anywhere in Kenya was accorded and reserved only to citizens and that the State could impose reasonable conditions or restrictions on non-citizens. That conclusion accorded with the text of the Constitution, and was also consistent with a proper interpretation of the text and found support in the reasoning of the Human Rights Committee. The trial court had not misapprehended Article 39 of the Constitution.
  13. Articles 2 (5) and 2 (6) represented two distinct but interrelated regimes and sources of international law. Article 2 (5) provisions, also known as customary international law was arguably the foundation of the whole system of international law and was all there was to it at the dawn of the science of international law. It referred to those norms that were discernible from the practice of States out of an appreciation that they had the binding force of law as opinio juris and applied to all the States of the world. Article 2 (6) provisions related to particular international law which came about as a result of the exercise by States of their treaty-making power. The two taken together represented the unity of international law and the obligations they imported by virtue of constitutional pronouncement were fully binding over and above the force of international law as the provisions declared them to be part of the law of Kenya.
  14. The trial court found Article 2(5) to be implicated on account of the principle of non-re-foulement, which was the cornerstone of refugee protection and had gained the status of international customary law and was a peremptory norm of international law.That principle, which protected a refugee from being expelled or returned to the country or frontiers of the very territories where his life or liberty was likely to be at risk on account of the very issues that led him to flee, was the cornerstone of refugee protection.
  15. Article 33 (1) of the 1951 Refugee Convention made provisions on the principle of non-refoulement whereas section 18 of the Refugees Act domesticated that convention norm. Other international instruments, such as the regional African Union Convention Governing Specific Aspects of Refugee Problem in Africa also provided for the principle of non-refoulement under article 2(3) and regional treaties from far aspect reflect the same principle. For instance, article 22(8) of the American Human Rights Convention adopted in 1969; the Resolution on Asylum to Persons in Danger of Persecution Adopted by the Committee of the Council of Europe; and Article 111(3) of the Principles Concerning the Treatment of Refugees adopted by the Asian African Legal Consultative Committee during its Eighth Session in Bangkok, 1966. At the global level, the principle of non-refoulement was one of the basic principles under the 1951 Convention to which no State party was permitted to enter a reservation. Further, the U.N. Declaration on Territorial Asylum which was unanimously adopted by the General Assembly [Res 2312 (XXII)] in 1967 at article 3(1) provided for it.
  16. Given the widespread, even universal applicability, acceptance and practice of the principle of non-refoulement which States considered to be binding upon them as a matter of law, coupled with its further recognition and protection under international human rights law such as the ICCPR at article 7; the European Convention for the Protection of Human Rights and Fundamental Freedoms; and the 1984 U.N. Convention against Torture, there existed a firm basis for the argument and conclusion that the principle of non-refoulementwas a norm of customary international law.
  17. The trial court had not erred in its appreciation of the standing of the principle of non-refoulement. In concluding that the principle was so fundamental that it was considered a customary law norm, it was propounding what was quite self-evident from the materials available on the subject. Without the scrupulous enforcement and observance of the principle of non-refoulement, humanity would show itself to have learnt nothing from the tragedies of the past which have led to massive displacement of persons from territories where life, limb and liberty were in clear and present peril making the grant of asylum and refuge an imperative and compelling response. There was much merit in the argument made by the UNHCR and its Executive Committee that the principle of non-refoulement was progressively acquiring the character and status of jus cogens, a peremptory norm of international law. The trial court had not misinterpreted Article 2(5) and (6) on the applicability of international refugee law to Kenya.
  18. There was a threatened breach of the refugees’ freedom of movement and residence. Under both the Constitution and international refugee law, those rights were not absolute and were proper subjects of limitation but those said limitations were not at large and outside of the restraints of law. The rights could only be permissibly limited or restricted if provided by law, and were necessary for the protection of national security, public order, public health or morals or the rights and freedoms of others. The permissibility of limitations of rights and fundamental freedoms was expressly provided for under Article 24(1) of the Constitution.
  19. Under the Constitution, rights and fundamental freedoms, key, central and integral to our character as a State and a society, were not to be clawed back, limited or constricted willy-nilly on a whim. They were way too important for arbitrary interference and experimentation. Therefore, their limitation was to be countenanced only as exceptional and not as a matter of course or a normal manner of conducting government business.
  20. When any limitations had to occur, there was a command that they be limitations, not by men but by law only, and even then if reasonable and justifiable as measured against an open and democratic society which was founded on human dignity, equality and freedom. The Constitution drew clear lines and espoused the kind of society the people of Kenya chose for themselves. It was not a closed society where people do not matter and their dignity accounted for little. Rather, they mattered greatly and their essential dignity was their crown. Any limitation therefore had to be frowned upon in the first instance as a departure from the norm which called for justification.
  21. The justification had to come from the person defending the limitation and had to take a rational evidence-based path demonstrating to the court, tribunal or other body enquiring into the limitation of the right that the requirements of Article 24 were satisfied. The Constitution had set the bar deliberately high on any person who sought to justify a derogation, limitation or constriction of a fundamental right or freedom for the simple reason that such limitations ought not to be lightly regarded. Nor should the proffered justification be without proper interrogation and the furnishing of proof that the high constitutional threshold for limitation had been met. The rational path that was espoused in the assessment of justification of a limitation of a right or fundamental freedom with the free, open and democratic society in view was based on reasonableness and proportionality.
  22. In an attempt to justify the limitation, the state filed a replying affidavit where it was averred that the decision to roundup and encamp urban refugees was taken in the interest of promoting the welfare and protection of asylum seekers and refugees. It was clear from those averments that the Appellant knew that Article 24 of the Constitution was implicated by its promulgation and enforcement of the policy. It was equally clear that the State was speaking from both ends of the mouth: in one breath it spoke, without elaboration, of the policy of roundup and encampment being, strange as it may seem, “in the interest of promoting the welfare and protection of asylum seekers and refugees” and, in the next, characterized the same categories of people in the most unflattering and nefarious terms. That paradox may have been lost to the State but not to the instant court or to the trial court that first questioned the humanitarian, if paternalistic, credentials of the policy. The trial court was justified in finding that even had the welfare of the refugees been the true intent of the policy and directive, there certainly existed less restrictive means of achieving the same policy ends other than the uprooting, rounding up and sending target groups to refugee camps.
  23. No evidence was tendered to show that the said grenade attacks, worrisome and threatening to public security as they were, bore the imprimatur of refugee or asylum seekers. Therefore, it was wholly speculative and an exercise in official hysteria for the Government to have resorted to so sweeping and rights-negating a policy that tagged all refugees and asylum seekers ‘dangerous criminals’ without any nexus having been established between them and the criminal activities provoking the policy. International refugee law had not extended the protection of non-refoulement to refugees against who there were reasonable grounds for regarding as a danger to the security of the receiving country. A person convicted on a particularly serious crime posed such a danger. A similar exception was reflected in sections 4 and 16 of the Refugee Act.
  24. The provision of security for its citizens was one of the foremost functions and bases of government and the courts respected the fact that security was an executive function. However, that had not meant that the national security mantra could be unleashed and deployed to insulate governmental action from scrutiny given the centrality of the Bill of Rights. In a democracy founded on a written Constitution that espoused freedom, liberty, an accountable government and a system of checks and balances, there were no dark corners and crevices that the search- light of legality and constitutionality could not reach. The Constitution itself spoke to that in unmistakable language in article 238(2) of the Constitution. Rights and fundamental freedoms could not be suspended or abrogated by the Government in the name of national security and escape interrogation by the courts if moved.
  25. The rights and fundamental freedoms in the Bill of Rights were not granted by the State and/or any of its organs could not purport to make any law or policy that deliberately or otherwise took away any of them or limited their enjoyment except as permitted by the Constitution. They were not low-value optional extras to be easily trumped or shunted aside at the altar of interests perceived to be of greater moment. Therefore, the state had not satisfied the limitation criteria under article 24 of the constitution.
  26. The trial court concluded that the Directive could not stand by reason of its violating various rights and fundamental freedoms of the refugees and asylum seekers and for violating international refugee law.  The directive was an assault on the principle of non-refoulement, which the State itself tacitly acknowledged. It was not open for the State to go against that peremptory norm of international law and its having done so was sufficient to justify the quashing of the directive.
  27. Equally justifying the quashing was the patent violation of the right to dignity and to fair administrative action under Article 28 and 47 respectively of the Constitution. In arriving at the policy in question, the relevant departments of Government had not engaged in any discernible and meaningful consultation with the stakeholders; the persons who were to be directly and greatly affected by the decision arrived at. It was a classic case of paternalistic unilateralism on the part of Government which, out of the blue, made a decision ostensibly for the good and benefit of urban refugees. It was a decision made in a knee-jerk response to grenade attacks not rationally connected to refugees as such, and definitely not the six petitioners who constituted the 2nd respondent. It was a high-handed decision quite oblivious to and uncaring about the ensuing hardships that the target group of persons would be exposed to. The directive fell way short of the unequivocal requirements of Article 47; (1) and (2) of the Constitution and had to be struck down.
  28. The trial court was right to reject the contentions by the State that it owed the stakeholders no obligation of consultation. The State was clearly wrong to suppose that it was open to it to take any action it pleased, even when it affected the Bill of Rights, guarantees of individuals and groups, without involving and consulting them. There was no fault in the trial court’s reasoning.
  29. The Government Directive that some 18,000 persons be rounded up and transported to Thika Municipal Stadium as a holding ground before encampment was ominous in intent and demeaning in effect. Those targeted persons were, unless the contrary was proved, innocent and their only crime appeared to be that they had fled for their lives and freedom and sought refuge in Kenya. That they should have been targets of rounding up by security agencies and thereafter be herded into a stadium awaiting processing, encampment and then repatriation to their countries of origin struck at the very heart of their dignity and worth, their self -respect and their essential humanity. The policy and the manner of its planned implementation was a violation of the right to human dignity as provided under Article 28 which ought to be respected and protected as of right. It was not a violation or threatened violation that the courts could countenance.
  30. The importance of dignity in human rights jurisprudence could not be gainsaid. Human dignity informed constitutional adjudication and interpretation at a range of levels. It was a value that informed the interpretation of many, possibly all, other rights. The Court had already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel inhuman and degrading way, and the right to life. Human dignity was also a constitutional value that was of central significance in the limitation analysis. The trial court was perfectly entitled to employ the dignity discourse and analysis in deciding on the propriety of the impugned directive.
  31. The proposed implementation of the Government Directive was that it was a threat to the rights of refugees. First, the policy was unreasonable and contrary to Article 47(1). Second, it violated the freedom of movement of refugees. Third, it exposed refugees to a level of vulnerability that was inconsistent with the States duty to take care of persons in vulnerable circumstances. Fourth, the right to dignity of refugees was violated. Fifth, the implementation of the Government Directive threatened to violate the fundamental principle of non-refoulement. The trial court had not erred when it issued orders quashing the directive.

Appeal dismissed.

INTELLECTUAL PROPERTY LAW Vicarious Liability of an Employer for Acts of an Employee

B W K v E K and Another
Civil Case No. 443 of 2003
High Court of Kenya at Nairobi
G. V Odunga, J
April 4, 2017
Reported by Robai Nasike Sivikhe

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Employment Law- Employer-employee relationship- vicarious liability of an employer for the acts of an employee- instances where the employer can be held to be vicariously liable for the actions of an employee- whether the employer was vicariously liable with regards to claims of sexual harassment where the alleged actions occurred outside the premises of the 2nd Defendant and beyond working hours.

Evidence Law- Sexual harassment- burden of proof in claims of sexual harassment- what was the standard of proof that had to be met in a claim of sexual harassment- whether the Plaintiff had proven the claim of sexual harassment against the 1st defendant and the liability of the 2nd Defendant to the required standard.

Brief facts:
The Plaintiff and the 1st Defendant were employees of the 2nd Defendant. The Plaintiff filed a claim alleging that the 1st Defendant had repeatedly assaulted, battered, sexually assaulted and oppressed her despite informing the 1st Defendant that his conduct was unwelcome. The Plaintiff’s case against the 2nd Defendant was that the 2nd Defendant was liable for the acts of the 1st Defendant since they had occurred in the course of the 1st Defendant’s employment and/or in his capacity as the Plaintiff’s manager. In his submissions, the 1st Defendant stated that the suit was filed by the Plaintiff for improper purposes, that was, to seek to re-address her dismissal from employment. According to the 1st Defendant, the Plaintiff’s case had not been proven and ought to be dismissed. The 2nd Defendant submitted that it was not in a position of authority over the Plaintiff and the 1st Defendant at all times and hence was not liable as alleged. The 2nd Defendant stated that the Plaintiff had failed to: lead evidence of battery or sexual harassment of her person by the 1st Defendant, to demonstrate instances of assault and to demonstrate how the 2nd Defendant was liable for acts complained of. The Court was urged to dismiss the prayers sought.

Issues:

  1. Whether the Plaintiff had proven the claim of sexual harassment against the 1st defendant and the liability of the 2nd Defendant to the required standard.
  2. Whether the employer was vicariously liable with regards to claims of sexual harassment where the alleged actions occurred outside the premises of the 2nd Defendant and beyond working hours. Read More...

Held:

  1. The cardinal principle in civil law is that he who avers must prove if the court is to exercise its judicial mind in his favour. In civil cases this is called burden of proof and with respect to the standard of proof, that is the threshold that the plaintiff must meet if a favourable judgement is to be returned, the law is that certain deductions may arise from the evidence.
  2. It could be probable that the plaintiff was injured by actions of the defendant; it could equally be probable that there was in fact no action on the part of the defendant that could have caused injury to the plaintiff. Where the first case was not proved based on legally admissible evidence, without the advantage of divine omniscience, the Court could not know which of the probabilities coincided with the truth and it could not have decided the matter by adopting one or the other probability without supporting evidence. It could only decide the case on a balance of probability if there was evidence to enable it say that it was more probable than not that the defendant was wholly or partly responsible.
  3. It could not be doubted that sexual harassment was a serious charge. Sexual harassment demeaned one’s dignity and violated Article 27 of the Constitution; it had the effect of reducing one to the status of a chattel. It was not just a tort against the person but it impacted upon the very person of the victim. It therefore ought not to be treated lightly. Where found to have been committed Courts had to take serious view of the matter and the reparations ought to reflect the gravity with which the Court treated such unwelcome advances. However, caution had to be exercised so as not to escalate the standard of proof to a pedestal that was too high.
  4. It was clear from the evidence that the Plaintiff reported her case a couple of months after the main incident. That delay was despite the fact that the plaintiff was aware that disciplinary action could be taken for physical assault. The Plaintiff in fact conceded that the rules, albeit not being very well conversant with them, had provision for disciplinary action for immorality and that the actions of the 1st  Defendant amounted to immorality.  Although the plaintiff could have sought the assistance of the union, she never even reported the incident to the union.  From the record, there was no evidence that she mentioned any of the numerous harassments to any one person apart from S A, who was regrettably not called to support her case. In her evidence, the plaintiff conceded that she neither approached the personnel department of the Hotel on the incident nor sought psychological treatment or police intervention.
  5. It was obvious that the incident occurred outside the 2nd Defendant’s premises. The rule of law is that a master is not responsible for the wrongful act done by his servant unless it is done in the course of employment and it is deemed to be done if it is either a wrongful act authorised by the master; or a wrongful and unauthorised mode of doing some act authorised by the master.
  6. Apart from the accusation of failing to provide an enabling work environment for the performance of the plaintiff’s duties including the exclusion of a situation whereby the plaintiff would be assaulted, battered, harassed, intimidated or discriminated against, there was no allegation that the 2nd defendant did something or failed to do something that led to the said sexual harassment by the 1st Defendant. The mere fact that the 1st Defendant was an employee of the 2nd Defendant had not made the 2nd Defendant responsible for the actions of the 1st Defendant if the same had taken place outside the 2nd Defendant’s premises in circumstances where the 2nd Defendant had absolute control over.
  7.  The alleged incident took place in the plaintiff’s own premises. The plaintiff admitted that the working environment with the 2nd Defendant was good and that the working environment with the other employees was equally good and no other employee assaulted her. In addition, there was evidence that the sexual harassment policy was placed on the notice boards and in the rules which were availed to the staff.
  8. There were several loose ends in the Plaintiff’s evidence. The Plaintiff failed to take steps which she was ordinarily expected to take. She had not lodged her complaint until months after the incident and after a complaint against her had been lodged. She had not called any person to corroborate her testimony or even the fact that she had narrated the incidents the subject of these proceedings. The Plaintiff has failed to prove her case to the required standards.

Application dismissed.

CONSTITUTIONAL LAW The imposition of construction levy is not unconstitutional.

Law Society of Kenya v Cabinet Secretary, Ministry of Lands, Housing and Urban Development & 3 others
Petition No 618 of 2014
High Court at Nairobi
Constitutional and Human Rights Division

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Constitutional Law-interpretation of constitutional provisions-the nature of legislation required for purposes of imposition of tax-Constitution of Kenya 2010, article 186(3) & 210; National Construction Authority Act, No 41 of 2011, section 31; National Construction Authority Regulations, 2014, regulation 25.

Constitutional Law-public finance-public participation in aspects of public finance-whether there was public participation in the enactment of provisions for the imposition of construction levy- Constitution of Kenya 2010, article 201; National Construction Authority Act, No 41 of 2011, section 31; National Construction Authority Regulations, 2014, regulation 25; Statutory Instruments Act, No 23 of 2013, section 5(1).

Constitutional Law-fundamental rights and freedoms-right to housing-whether the imposition of a construction levy amounted to a violation of the right to housing- Constitution of Kenya 2010, article 43(1)(b); National Construction Authority Act, No 41 of 2011, section 31; National Construction Authority Regulations, 2014, regulation 25.

Brief facts:
The Law Society of Kenya (LSK) was engaged in the construction of an Arbitration Centre along Mombasa Road in Nairobi at an estimated cost of Kshs. 1.2 billion. Regulation 25 of the National Construction Authority Regulations, 2014 required the LSK to pay a construction levy of 0.5% of the value of the construction works. Therefore, the LSK was required to pay 6 million Kenya shillings. The LSK said that the levy was astronomical and it would have to recover the sum from its members and that would result in severe and adverse consequences on its finances.
The LSK sought to challenge section 31 of the National Construction Authority Act as read with regulation 25 of the National Construction Authority Regulations, 2014. The constitutionality of those provisions was questioned on grounds that it amounted to a tax provision which was enacted in a manner not contemplated under article 210 of the Constitution, it adversely affected and infringed on the right to housing and it was made without public participation.

Issues:

  1. Whether the imposition of the construction levy, under section 31 of the National Construction Authority Act and regulation 25 of the National Construction Authority Regulations, 2014, was contrary to the requirements of article 210 of the Constitution, which required that taxes were to be imposed as provided for by legislation.
  2. Whether the imposition of the construction levy violated the provisions of article 201 of the Constitution and section 5(1) of the Statutory Instruments Act on public participation.
  3. Whether the imposition of the construction levy infringed on the right to housing by increasing construction costs.
  4. Whether the Petitioner was entitled to any of the remedies it sought. Read More...

Relevant provisions of the law
Constitution of Kenya 2010, article 43(1)(b), 186(3), 201 & 210(1);
Article 43(1)(b);
(b) to accessible and adequate housing, and to reasonable standards of sanitation;

Article 186(3);
(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.

Article 201;
201. The following principles shall guide all aspects of public finance in the Republic—
(a) there shall be openness and accountability, including public participation in financial matters;
...

Article 210(1);
210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

National Construction Authority Act, No 41 of 2011, section 31;
 1. The Minister may, by notice in the gazette, impose a levy to be known as the construction levy on construction work carried out by persons registered under (the NCA).
 2. The levy shall be in an amount not exceeding an equivalent of 0.5% of the value of any contract whose value exceeds five million shillings.
 3. The minister may make regulations prescribing the manner of payment of the levy.

National Construction Authority Regulations, 2014, regulation 25;
25. Imposition of levy
There shall be payable to the Authority by the owner of any works a construction levy of 0.5 per cent of the value of the contract sum in respect of any construction works whose value exceeds five million shillings.

Statutory Instruments Act, No 23 of 2013, section 5(1)
5. (1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—

(a) have a direct, or a substantial indirect eftect on business; or
(b) restrict competition;
the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.

 

Held:

  1. The Petitioner was an aggrieved party which was required to pay construction levy and it could individually seek recourse in Court, notwithstanding the question as to whether it was acting in public interest. The regulations in question were operative 6 months before the filing of the petition. The petition was filed within a reasonable time from the enactment of the regulations. There were no limits to constitutional litigation save that, for practical reasons, a challenge to a statute was to be made soon after its enactment.
  2. Article 210 of the Constitution provided that no tax or licensing fee could be imposed, waived or varied except as provided by legislation. The construction levy was a form of taxation.
  3. It was the Petitioner contention that it was necessary to pass specific legislation, for example a statute known as the Construction Levy Act, to provide for the construction levy under the terms of article 210 of the Constitution. There were various pieces of legislation which allowed a Minister to levy tax under certain parameters. For example, section 78 of the Energy Act provided that the Minister could impose a levy of up to 5% on all electricity consumed in the country. Section 31 of the National Construction Authority Act had wording similar to section 78 of the Energy Act.
  4. The argument that section 31 of the National Construction Authority Act and regulation 25 of the National Construction Authority Regulations, 2014, were not the specific legislation contemplated under article 210 of the Constitution was unsustainable. Section 31 of the National Construction Authority Act and regulation 25 of the National Construction Authority Regulations, 2014 were consistent with article 210 of the Constitution.
  5. Construction was not within the exclusive mandate of the County Government under the Fourth Schedule and it could be undertaken by the National Government under article 186(3) of the Constitution. The mandate of the National Government included accreditation, regulation and promotion of quality assurance and technical capacity assistance in the construction industry at large while the County Government was involved in housing to the extent of planning and development within a County.
  6. Each level of Government was entitled to charge for services rendered. During the budgetary allocation process by Parliament, the National Construction Authority as part of the National Government was expected to raise finances through avenues such as the construction levy, which Parliament factored in while deciding on the budgetary allocation to the Authority.
  7. Article 201 of the Constitution provided that the principles which would guide all aspects of public finance included openness and accountability, including public participation in financial matters. Public participation was therefore required in the formulation of section 31 of the National Construction Authority Act and regulation 25 of the National Construction Authority Regulations, 2014.
  8. The nomination by the LSK of one of its Council members to the National Construction Authority's Board amounted to participation by the LSK in the National Construction Authority's affairs and those affairs included the formulation of the impugned provisions. Hon. Judith Sijeny was the LSK's nominee and she participated in the making of the regulations during her tenure.
  9. There were indications that invitations dated October 31, 2012 were sent to several organizations, including the Petitioner, to a stakeholders' workshop. The conference was publicized in the daily newspapers of November 7, 2012 and Hon. Sijeny and one other person from the LSK signed the attendance list for the conference on November 7, 2012. 
  10. Subsequently, National Contractors Conferences were held in 9 regions in Kenya. The conferences were also publicised in the daily newspapers. The expectation was that when the conference was publicised, the Petitioner would have the opportunity to challenge the intended amendments but it did not do so.
  11. Section 5(1) of the Statutory Instruments Act obliged a regulation-making authority to make appropriate consultations with persons who were likely to be affected by the proposed instrument and to ensure that such persons had an adequate opportunity to comment on its proposed content. There was evidence tendered to show that the National Assembly and the Senate was involved in the making of the regulations.
  12. Generally, it did not matter how public participation was effected. It was necessary for the public to be accorded some reasonable level of participation and in the given circumstances there was a sufficient level of participation. The requirements of article 201 of the Constitution were therefore fulfilled.
  13. Article 43(1)(b) of the Constitution provided that every person had the right to accessible and adequate housing, and to reasonable standards of sanitation. To show that the right to housing had been infringed in the sense that the construction levy negatively affected housing, it was necessary to tender evidence of such an effect. It was prudent to consider a finding that made a scientific correlation between the impact of the construction levy and housing.
  14. The imposition of a tax by statute did in itself not amount to a violation of the right to housing. Neither the Petitioner nor the Interested Party demonstrated how their respective rights to housing were violated.
  15. Having failed to show that the levying of the construction levy was unconstitutional, the Petitioner was not entitled to any of the remedies sought.

Petition dismissed.

JUDICIAL REVIEW The enforcement of the repealed Legal Notice No. 100 of 2011, whose effect was to increase Air Navigation Services charges (ANS), as concerned the period before its repeal is unreasonable.

Five Forty Aviation Limited v Kenya Revenue Authority & 3 others
Civil Appeal No 134 of 2015
Court of Appeal at Nairobi
M K Koome, F Sichale & J Mohammed, JJ A
March 31, 2017
Reported by Beryl A Ikamari

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Judicial Review-grounds for seeking judicial review remedies-legitimate expectation and unreasonableness-whether an acknowledgement that a repealed Legal Notice was unsuitable to a certain industry would create a legitimate expectation that such a Legal Notice would not be enforced as far as the period between its enactment and repeal was concerned-whether it was reasonable for such a repealed Legal Notice to be enforced in relation to the period between its enactment and its repeal.

Brief facts:
The Minister in charge of Civil Aviation, published Legal Notice No. 100 of 2011 whose effect was to increase Air Navigation Services charges (ANS) as from November 1, 2011. Civil aviation stakeholders complained about the increased charges and regulatory fees. In response, several stakeholders meetings were held and a ministerial committee was constituted. The result was that the ANS charges as well as regulation fees were revised.
Thereafter, the Kenya Revenue Authority issued a demand notice to the Appellant seeking ANS charges amounting to 67 million Kenya shillings. The charges were based on Legal Notice No 100 of 2011. The sums for which demand was made related to the period between November 2011 and August 2012. The Appellant lodged judicial review proceedings seeking orders of certiorari and prohibition to quash the demand letters and the agency notice issued to various banks in relation to the demand for the total sum amounting to Ksh. 101, 455, 818/= .
The High Court dismissed the judicial review application and found that Legal Notice No 100 of 2011 was in effect until its revocation on November 1, 2012 via Legal Notice No. 110 of 2012, Civil Aviation (Regulatory fees and charges for Air Navigation Services) Regulations, 2012 published on October 5, 2012. The High Court generally found that the Kenya Revenue Authority had not overstepped its mandate in making the demands and seeking to recover the sums allegedly due.

Issues:

  1. Whether it was reasonable to demand payments (Air Navigation Services charges) on the basis of Legal Notice No 100 of 2011, given that the need for the revision and reform of the Legal Notice, as well as its unsuitability to the industry it applied was acknowledged.
  2. Whether acknowledgement, in the form of setting up revision and reform mechanisms, that a Legal Notice was unsuitable, created a legitimate expectation that the Legal Notice, which was repealed, would not be enforced, as concerned the period between its enactment and its repeal.
  3. Whether the charges applicable before the enactment of Legal Notice No 100 of 2011 would apply to the period when that Legal Notice was in effect due to the fact that it was found unsuitable and was repealed. Read More...

Held:

  1. It is trite law that in judicial review, the High Court is not concerned with the merits of the decision by a public or statutory body but rather undertakes a consideration of the procedures used to arrive at the decision in order to ensure that the decision took into account the rules of natural justice and due process.
  2. The 1st Respondent, the Kenya Revenue Authority, was a statutory body established for purposes of the assessment and collection of revenue, the administration and enforcement of the laws relating to revenue and connected purposes. What the Court needed to consider was whether the 1st Respondent did something which was outside statutory provisions, or was unreasonable, unfair and unjustified. The Court would also consider whether there was a waiver of rights or an unequivocal promise that gave the Appellant a legitimate expectation and the effect of the consultations and report that led to the revocation of the impugned Legal Notice.
  3. The key question was on whether the 1st Respondent acted reasonably and fairly by demanding on November 25, 2012, the payment of charges under the repealed Legal Notice. It was noteworthy that during the consultations, the impugned Legal Notice was not set aside. Additionally, Legal Notice No 109 and 110 of 2012, which revoked and revised the impugned Legal Notice could not operate retroactively.
  4. The Appellant contended that it did not challenge the repealed Legal Notice because of its involvement in the repeal committee whose outcome was the revocation of that Legal Notice. There was a gap or grey area left as concerned what the stakeholders in the industry were to expect after the review. The 2nd Respondent, Kenya Civil Aviation Authority, owed a duty of care to clarify to the industry stakeholders what to expect after the review and for that reason the 1st Respondent found that demands and notices for payment were unreasonable and unfair.
  5. The High Court failed to appreciate the context in which the Appellant was operating, including the Appellant's involvement in a reform committee set up by the 2nd Respondent. Due to that context, the 2nd Respondent had a duty to explain to the industry, and also the 1st Respondent, the problems related to Legal Notice No 100 of 2011, in the spirit of creating good order in the industry. Calling upon the Appellant to pay the charges brought genuine grievances and that was an unreasonable decision which was amenable to judicial review.
  6. In executing its mandate, the 1st Respondent had discretion to determine the levies or charges payable where it was satisfied that a person or entity had failed to pay taxes. That discretion would not be exercised capriciously or arbitrarily.
  7. There was an issue on whether a legitimate expectation arose from the Minister's acceptance of the stakeholders’ memorandum of remonstration against the charges in Legal Notice No 100 of 2011, the setting up of a committee comprising of the stakeholders and adopting recommendations leading to the repeal of Legal Notice No 100 of 2011 and the enactment of Legal Notice No 109 of 2012 and 110 of 2012. The Respondents admitted that there was a problem with Legal Notice No 100 of 2011 and worked at fixing that problem with industry stakeholders, including the Appellant. The 2nd Respondent could not simply let the Appellant suffer detriment by paying levies and charges which were found unsuitable for the aviation industry and repealed.
  8. Since the demand notice and agency notices were issued after the repeal of Legal Notice No. 100 of 2011, the Appellant was justified in expecting that the charges and fees would be levied according to the regulations prior to the Legal Notice No. 100 of 2011 or under the new regulations. In involving the Appellant in reforming the charges and adopting the reform recommendations, there was an acknowledgement from the Respondents, which gave the Appellant an expectation that it would not pay charges under the repealed Legal Notice.
  9. The Respondents did not consider aspects of unfairness in issuing the demand and agency notices against the Appellant. For that reason, the notices ought to have been quashed and the matter referred to the 1st Respondent to make fresh decisions while taking into account aspects of unfairness in applying Legal Notice No 100 of 2011.

Appeal allowed.

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