Weekly Newsletter 034/2017

Weekly Newsletter 034/2017



Kenya Law

Weekly Newsletter


Legality of Appointment of Constituency Returning Officers and their Deputies for the October 26,2017 Presidential Election
Republic v Independent Electoral and Boundaries Commission Ex Parte Khelef Khalifa & another [2017] eKLR
High Court of Kenya at Nairobi
Judicial Review Misc. Application 628 of 2017 (Formerly Mombasa JR 58 of 2017)
G.V. Odunga J
October 25, 2017
Reported by Ribia John
Download the Decision

Election Lawproprietary of an election process – considerations applicable in determining the proprietary of an election process - what considerations applied in determining the propriety of any electoral process – Constitution of Kenya 2010, article 81

Election Law – appointment of Constituency Returning Officers and Deputy Returning Officers (CROs and DCROs) – appointment of CROs and DCROs in a repeat Presidential Poll – where the previous presidential poll had been nullified by the Supreme Court - whether Regulation 3 of the Election (General) Regulations applied in repeat presidential polls - whether the IEBC, by appointing CROs and DCROs without presenting the list of proposed appointees to political parties and independent candidates at least 14 days prior to appointed, violated regulation 3 of the Election (General) Regulations – Election (General) Regulations, 2012 regulation 3.

Constitutional Law fundamental rights and freedoms – right to a free, fair and credible election – claim of illegally appointed returning officers – whether the IEBC by failing to follow the laid out statutory procedures in appointing CROs and DCROs violated the Applicant’s right to a free, fair and credible election - whether the IEBC acted in an unconstitutional manner by appointing CROs and DCROs for the October 26, 2017 Presidential Election without granting the Ex-Parte Applicants, political parties and independent candidates an opportunity to make representations on persons to be appointed - Constitution of Kenya, 2010 articles 29, 47, 50 and 81; Election (General) Regulations, 2012 regulation 3

Statutes interpretation of statutes – Election (General) Regulations, 2012 regulation 3 – effect of using the word shall in statutes - whether the word "shall", as used in statutory instruments was commanding enough to be regarded as mandatory rather than directory - whether the requirement under Regulation 3 of the Election (General) Regulations to present a list of proposed appointees to political parties and independent candidates was directory or mandatory.

Public interest applicability of the law where there was conflict between provisions of the Constitution and public interest - applicability of the law where there was conflict between regulation 3 of the Election (General) Regulations 2012 and public interest – where the violated statutory and constitutional provisions touched on the manner in which to conduct a Presidential Election which was due to be held in a matter of days - whether failure to comply with statutory obligations by a public body could be overridden or inoculated by public interest – Constitution of Kenya, 2010 articles 29, 47, 50 and 81; Election (General) Regulations, 2012 regulation 3.

Judicial Review nature of judicial review – application for judicial review – enabling law for an application for judicial review - whether there was a distinction between the remedy of judicial review as provided under article 23 of the Constitution, under the Law Reform Act, under the Fair Administrative Action Act and under order 53 of the Civil Procedure Rules – Constitution of Kenya, 2010, article 23; Civil Procedure Rules, order 53.

Brief Facts
The Ex-Parte Applicants filled the instant judicial review application in which they sought an order of certiorari for the purposes of quashing the decision of the IEBC to appoint Constituency Returning Officers (CROs) and Deputy Returning Officers (DROs) via Kenya Gazette Notice 9977 Vol. CXIX dated October 12, 2017. The Applicants contended that the Respondent had acted in an unconstitutional manner in that the Ex-Parte Applicants, members of political parties, political parties and independent candidates had not been accorded an opportunity to make representations on persons to be appointed CROs and DCROs for the purposes of the October 26, 2017 Presidential Election. As such, they contended that the appointment of the CROs and the DCROs was done in violation of articles 29, 47, 50 and 81 of the Constitution, Regulation 3 of the Elections (General) Regulations, 2012 and the Fair Administrative Action Act. In their view, the persons purported to be appointed through the impugned Notice could not purport to conduct constituency elections in the constituencies, their purported appointment having been done in an illegal manner that was contrary to express provisions of the law.
The Respondents contended that Regulation 3 of the Regulations was complied with during the August 8, 2017 General Elections (in which the Presidential Election was nullified by the Supreme Court), and that it was no longer necessary to comply with Regulation 3 in a fresh presidential election conducted pursuant to the decision of the Supreme Court. The Respondents also contended that since there were only few days left to the October 26, 2017 Presidential Elections, if the order of certiorari was granted, it would be in vain and in efficacious. The Respondent also contended that the ODM candidate had intimated an intention not to participate in the said elections hence had no business questioning the process in question. It was also contended that since Chama Cha Uzalendo was not fronting any candidate in the said election, it had no business being informed about the list.

Both the Applicants and the Respondent claimed that public interest favoured them. The Respondents contended that the Application be dismissed as an order of certiorari cancelling the appointment of CROs and DCROs would cause chaos whereas the Applicants contended that it was in the public interest for the Court to cancel the illegal appointment of CROs and DCROs.


Issues
  1. Whether there was a distinction between the remedy of judicial review as provided under article 23 of the Constitution, under the Law Reform Act, under the Fair Administrative Action Act and under order 53 of the Civil Procedure Rules.
  2. What considerations applied in determining the propriety of any electoral process?
  3. Whether the requirement under Regulation 3 of the Election (General) Regulations to present a list of proposed appointees to political parties and independent candidates was directory or mandatory.
  4. Whether Regulation 3 of the Election (General) Regulations applied in fresh presidential election where the regulations had been complied with in a presidential election that was nullified by the Supreme Court.
  5. Whether the IEBC, by appointing CROs and DCROs without presenting the list of proposed appointees to political parties and independent candidates at least 14 days prior to appointment, violated regulation 3 of the Election (General) Regulations 2012.
  6. Whether the IEBC acted in an unconstitutional manner by appointing CROs and DCROs for the October 26, 2017 Presidential Election without granting the Ex-Parte Applicants, political parties and independent candidates an opportunity to make representations on persons to be appointed.
  7. Whether failure to comply with statutory obligations by a public body could be overridden or inoculated by public interest.
  8. Considerations applicable when there is a conflict between public interest and legislative provisions.
  9. Whether the word "shall", as used in statutory instruments was commanding enough to be regarded as mandatory rather than directory

Relevant Provisions of the Law
Constitution of Kenya 2010,
Article 29
29. Freedom and security of the person

Every person has the right to freedom and security of the person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.

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.

Article 50
50. Fair Hearing

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—

(i) an offence in Kenya; or
(ii) a crime under international law;

(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.
(4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

(5) An accused person—

(a) charged with an offence, other than an offence that the Court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—

(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b) new and compelling evidence has become available.

(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the Court.
(8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.


Article 81
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.

Election General Regulations, 2012
Regulation 3
3. Constituency returning officers and other staff

(1) The Commission shall appoint a constituency returning officer for each constituency and may appoint such number of deputy constituency returning officer for each constituency as it may consider necessary.
(2) Prior to appointment under paragraph (1), the Commission shall provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.
(3) The constituency returning officer shall be responsible for—

(a) conducting elections at the constituency level;
(b) receiving nomination papers in respect of candidates nominated for the post of National Assembly and Ward representative;
(c) tallying, announcing and declaring, in the prescribed form, the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;
(d) collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county woman representative to the National Assembly;
(e) submitting, in Form 34B, the collated results for the election of the President to the national tallying center and the collated results for the election of the county Governor in Form 37B, Senator in Form 38B and county woman representative to the National Assembly in Form 39B, to the respective county returning officer; and
(f) such other functions as may be assigned by the Commission.

(4) Every appointment under this regulation shall be done transparently and competitively and thereafter published in the Gazette and in such other manner as the Commission may deem necessary in order to widely publicize the appointment.
(5) A deputy constituency returning officer shall, subject to the general direction and control of the returning officer to whom he or she is a deputy, have all the power, and may perform all the duties, of the returning officer under these Regulations.
(6)The Commission shall appoint such other staff as it may deem necessary for the purpose of conducting elections

Held:

  1. The remedy of judicial review is not merely a common law development or creature, nor is it just a statutory relief, it is a constitutional remedy. That meant that the demarcations between what were formerly considered purely judicial review reliefs and constitutional ones had become blurred. .
  2. A violation of the principles of the Constitution itself was a ground for granting judicial review relief in judicial review applications without necessarily filing a constitutional petition. Under article 23 of the Constitution of Kenya, 2010 (Constitution), that demarcation had been blurred and in granting remedies in judicial review applications constitutional principles played a crucial part.
  3. Judicial review remedies had a constitutional basis in Kenya by virtue of articles 10, 25, 27, 47 and 50 of the Constitution. Since the Constitution was incremental in its language, what the 2010 constitutional dispensation required was that both the grounds and remedies in judicial review applications be developed and the grounds for granting relief under the Constitution and the common law be fused, intertwined and developed so as to meet the changing needs of our society.
  4. The Constitutional principles decreed under article 10 of the Constitution informed the manner in which judicial review jurisdiction was to be exercised. To attempt to distinguish judicial review under article 23 of the Constitution from the same jurisdiction under the Law Reform Act, the Fair Administrative Action Act and order 53 of the Civil Procedure Rules was a distinction without a difference.
  5. The Constitution enjoined the High Court in article 20(3)(a) to develop the law to the extent that it did not give effect to a right or fundamental freedom. Therefore the provisions of Law Reform Act, the Fair Administrative Action Act and order 53 of the Civil Procedure Rules must be developed where a strict interpretation thereof did not give effect to a right or fundamental freedom.
  6. While the rule is that the Court in presiding over judicial review proceedings does not proceed therein as if it was hearing an appeal, the development of judicial review grounds by consideration of such factors as proportionality and unreasonableness had introduced some element of subjectivity and merit consideration in judicial review proceedings, at least to a limited extent. It was not mere unreasonableness which would justify the interference with the decision of an inferior tribunal. Unreasonableness is a subjective test and therefore to base a decision merely on unreasonableness placed the Court at the risk of determination of a matter on merits rather than on the process.
  7. To justify interference the decision in question had to be so grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would have arrived at such a decision. Such a decision had to be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it.
  8. Whereas the Court was entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness was met, it was only when the decision was so grossly unreasonable that it may be found to have met the test of irrationality for the purposes of Wednesbury unreasonableness. The Courts would only interfere with the decision of a public authority if it was outside the band of reasonableness.
  9. Article 81 of the Constitution was the first port of call in determining the propriety of any electoral process. Article 81 prescribed the minimum threshold, the starting point had to necessarily be the said article and legislation and rules or regulations made pursuant thereto could only add to and not subtract from that minimum threshold. That was because the power to enact legislation given to Parliament under article 81(2) of the Constitution did not include the power to restrict or guide the Court or Tribunals on how to interpret article 81 of the Constitution.
  10. Article 165(3)(d) of the Constitution gave the High Court the jurisdiction to determine whether any law or any action said to be done under the authority of the Constitution was in contravention of the Constitution. Unless via amendment, the powers granted to the High Court under article 165(3)(d) could not be abridged bycraft or by innovation.
  11. A determination as to the propriety or otherwise of any electoral process had to, before considering the requirements in any legislation, rules and regulations, meet the Constitutional threshold of free and fair; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner. Any other stipulation whether in an enactment or in other instruments could only be secondary to Constitutional dictates.
  12. When any of the State Organs or State Officers stepped outside their mandate, the High Court would not hesitate to intervene. The High Court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution, had the duty and obligation to intervene in actions of other State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.
  13. A Court of law tasked with the determination as to whether a particular electoral process met the legal standards could not by any legal instrument be restricted in the manner in which the Constitutional dictates was to be interpreted. It was the Court hearing an election petition to decide whether the irregularities or illegalities complained of were sufficient to nullify the elections. That was in line the provisions of article 259 that provided the manner in which the Constitution was to be interpreted.
  14. Since the right of every citizen to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors was entrenched in article 38(2) of the Constitution which fell under the chapter on the Bill of Rights; article 20(3) obliged the Court in applying a provision of the Bill of Rights (including the right to free, fair and regular elections) to develop the law to the extent that it did not give effect to a right or fundamental freedom and adopt the interpretation that most favoured the enforcement of a right or fundamental freedom. In so doing the Court was under a Constitutional obligation pursuant to article 20(4) of the Constitution to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom on one hand and the spirit, purport and objects of the Bill of Rights on the other.
  15. The values and principles enunciated in article 81 of the Constitution could not be treated as lofty aspirations. Kenyans were very clear in their intentions when they entrenched article 81 in the Constitution. Kenyans were singularly desirous of cleaning up Kenyan politics, governance and electoral structures by insisting on certain minimum values and principles to be met in constitutional, legal and policy framework and therefore intended that article 81 be enforced in the spirit in which they included it in the Constitution. The people of Kenya did not intend that those provisions be merely suggestions, superfluous or ornamental; they did not intend to include those provisions as lofty aspirations but intended that they would have substantive bite and that they would be enforced and implemented. They desired those values and principles be put into practice.
  16. General elections were a process as opposed to a one off event. All the processes leading to the elections were subject of scrutiny and could well be grounds for nullification of elections. Therefore to avoid such an eventuality, the preparations leading to the elections had to meet the minimum standards articulated in both the Constitution and the law.
  17. Regulation 89 of the Elections (General) Regulations, 2012 (Regulations) provided that the Regulations would, with the necessary modifications and adaptations, apply to a fresh election under part XIV (Part XIV provided for, ‘Presidential Fresh Election’). Regulation 3 similarly had to apply to a fresh presidential election such as the October 26, 2017 Presidential Election and the list of persons proposed for appointment as Constituency Returning Officers and their Deputies was required to be provided to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.
  18. Regulation 3 was meant to achieve the principles of transparency, impartiality, neutrality and accountability which were entrenched in article 81 of the Constitution. The electoral body had to comply with the letter and spirit of the Constitution, the relevant legislation and the regulations. Article 81 required the electoral body to ensure that the elections were free and fair in the sense that they were by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner. To ensure that was attained Parliament in its wisdom had enacted laws and approved regulations in that regard. Those legislation and the regulations had to be followed in order to attain the Constitutional dictates.
  19. If the Legislature intended that Regulation 3 ought not to apply to fresh elections, nothing would have been easier than for it to have expressly stated so. The mere fact that Regulation 3 had been complied with during the general election did not necessarily mean that the Constituency Returning Officers (CROs) and the Deputy Returning Officers (DCROs) were thereby permanently eligible for those positions since in between events might have happened that rendered the said officers’ status as CRO and DCROs no longer tenable.
  20. No evidence was provided to prove the Respondent’s contention that the CROs and DCROs were permanent employees of the IEBC. Even if the CROs and DCROs were permanent employees of the Respondent, not all permanent employees of the Respondent qualified or were eligible to act as CROs or DCROs.
  21. The requirement under Regulation 3 was not just directory but was mandatory for the purposes of ensuring that the elections were free and fair. The word "shall" in those provisions appeared to be commanding enough to be regarded as mandatory rather than directory. The words were clear, positive and unambiguous and dictated that literal interpretation be given to them. To hold otherwise would be for the instant Court to perpetuate the mischief intended by the legislators to be prevented.
  22. Where Regulation 3 was not complied with such appointments ought, all things being equal, to be set aside. The Court’s mandate was to ensure that the elections were conducted in accordance with the Constitution and the law, and would not allow itself to be a rubberstamp for a process that was clearly flawed and whose result was unlikely to meet the Constitutional and legal threshold.
  23. The High Court had the power and the mandate pursuant to article 165(3)(5) of the Constitution to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. The instant Court did not have to wait until after the infringement had occurred in order to intervene where it was clear to it that such violation was in fact threatened. So where it was brought to the attention of the Court that certain electoral processes were being undertaken which were not in accordance with the Constitution and the law, the Court had to give appropriate directions and ought not to wait until the country went into flames before undertaking its mandate. Unless Kenyans were assured that their will in the ballot box would be upheld, they were likely to be disillusioned with the electoral process.
  24. As far back as September 21, 2017, the Respondent was aware that the fresh elections would be conducted on October 26, 2017. Instead of proceeding to submit the list of the proposed CROs and the DCROs to the political parties, the Respondent waited until October 9, 2017 to prepare the Gazette Notice which was eventually published on October 12, 2017. The Respondent’s conduct in that regard could only be termed as being mischievous. The Respondent could not be permitted to rely on its own mischief as a ground for not complying with its legal obligations.
  25. Whereas the Respondent contended that it was not under an obligation to comply with Regulation 3 in light of the earlier gazettement and the consent order, it had failed to explain on what basis it was re-gazetting CROs and the DCROs if the fresh election was, as it were, a continuation of the general elections. The Respondent could not approbate and reprobate in the same breadth. The Respondent had to have appreciated that there was a need to gazette the CROs and the DCROs afresh.
  26. Regulation 3 was clear that the Commission would provide the list of persons proposed for appointment to political parties and independent candidates. It did not state that the list was to be provided only to the political parties participating in the elections.
  27. Where the words in a Statute in their plain and ordinary meaning were unambiguous, the Courts work in interpretation was done and the Court had no further role in the interpretation of a statute. In the instant case the law was clear that political parties and independent candidates were to be provided with the list of the proposed appointees. The Respondent could not adopt an interpretation that suited its default in complying with the law which was meant to attain the Constitutional values and principles.
  28. The mere fact that a person was appointed as a CRO for a particular Constituency did not necessarily qualify him or her to be suitable as a CRO for another Constituency. It may well be that the person could operate in that capacity very well but could not be able to do so in another Constituency. That could only be determined when the list was provided to the political parties for the purposes of representations as required by the law. The least that the Respondent would have done would have been to provide the names of the proposed transferees to the political parties and independent candidates fourteen days prior to the proposed appointments.
  29. It was mandatory for the Respondent to comply with Regulation 3 of the Elections (General) Regulations. The Respondent did not fully comply therewith.
  30. The impugned Gazette Notice was published on Friday, October 13, 2017. The following two days fell on a weekend and on the next working day the Applicants filed their application. There was absolutely no delay on the part of the Applicants.
  31. A proper constitutional understanding; especially of articles 1 and 159 of the Constitution, as well as the interpretive theory in Article 259; obliged the Court in cases such as the instant case to balance the public interest and the private interest in determining whether to grant orders and in fashioning appropriate remedies. However, balancing between the public interest and the rights of successful litigants before the Court was a fact-intensive inquiry. It had to be based on facts and permissible inferences of the likely consequences of granting the orders.
  32. It was not enough for a party to warn the Court that administrative chaos would ensue, that the heavens would shatter, and that the sky would fall down if the orders sought were granted. A party that sought to rely on the doctrine of public interest to inoculate its otherwise unlawful actions against Judicial Review orders bears a heavy burden to demonstrate that it will burden under the yoke of impossibility if the merited orders are granted. In balancing the competing aspects, the nature of the right which was breached and its importance in the Constitutional scheme of rights had to be considered.
  33. A party could not transgress the law with impunity and then tell the Court that public interest dictated the action should not be reversed. Such posture would be frowned upon by the Court. Contravention of the Constitution or a Statute could not be justified on the plea of public interest as public interest is best served by enforcing the Constitution and statute.
  34. The basic principle of legal policy that law is that should serve the public interest. The Court should strive to avoid adopting a construction which is in any way adverse to the public interest.
  35. Public interest is the general welfare of the public that warrants recognition and protection and it is something in which the public as a whole has a stake; especially an interest that justifies governmental regulation.
  36. Article 1(1) of the Constitution provided that all sovereign power belonged to the people of Kenya and would be exercised only in accordance with the Constitution while under article 1(3)(c) sovereign power under the Constitution was delegated inter alia to the Judiciary and independent tribunals. In appropriate circumstances, Courts of law and Independent Tribunals were properly entitled pursuant to article 1 of the Constitution to take into account public or national interest in determining disputes before them where there was a conflict between public interest and private interest by balancing the two and deciding where the scales of justice tilt. The Court or Tribunals ought to appreciate that in the Kenyan jurisdiction, the principle of proportionality was part of Kenyan jurisprudence and therefore it was not unreasonable or irrational to take the principle into account in arriving at a judicial determination.
  37. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it was the business of the Court, so far as possible, to secure that any transitional motions before the Court did not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should always opt for the lower rather than the higher risk of injustice.
  38. In evaluating the rightness or wrongness of an action, the Court should be primarily concerned with the consequences of the Court’s action and if the Court was comparing the ethical quality of two ways of acting, then the Court should choose the alternative which tended to produce the greatest happiness for the greatest number of people and produced the most goods.
  39. The decision whether or not to grant judicial review reliefs was an exercise of discretion which had to be exercised judicially. The Court had a wide discretion whether to grant relief at all and if so, what form of relief to grant. A consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which could be relevant included whether the grant of the remedy was unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who dealt with the body in question, would result from the order and whether the form of the order would require close supervision by the Court or be incapable of practical fulfillment.
  40. The Court had an ultimate discretion whether to set aside decisions and could decline to do so in the public interest, notwithstanding that it held and declared the decision to have been made unlawfully. Account of demands of good public administration could lead to a refusal of relief. Similarly, where public bodies were involved the Court could allow contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.
  41. In the instant case the Court had to balance the claims of public interest as presented by the Applicants and the Respondents. If the Court granted the prayers sought in the instant case it would mean that the CROs and the DCROs would not preside over the fresh Presidential elections proposed for October 26, 2017 as Regulation 3 required the Respondent to provide the list of the proposed CROs and the DCROs 14 days before gazettement; yet there was no prayer before the Court that sought an order for either cancellation or postponement of the said elections. For the said elections to proceed in the absence of the said officers would constitute a crisis of unimaginable magnitude. It would be a recipe for chaos.
  42. Where a party who was injured in the enjoyment of his fundamental rights would not be deprived of relief simply because there was no time to remedy the injury where the victim had no other way of getting redress. The answer to such a weighty matter as the violation of the Bill of Rights would not be to drive the applicant out of the seat of justice empty handed when the Court had the power to remedy the injury and when by so doing the Applicant was left with no alternative but to resort the rule of the jungle. In those circumstances the Court as the temples of justice would have failed to protect the Constitution and the rule of law.
  43. Where there was an avenue for redress available to the victim and the harm likely to be occasioned to the public by granting the reliefs sought instantly outweighed the benefits to be achieved by granting the same, then the Court in the exercise of its discretionary powers, notwithstanding the finding of transgressions could decline the orders sought in the meanwhile and deal with the matter at such later stage.
  44. Every stage of the electoral process was important and failure to adhere to it could, depending on the weight attached to it warrant the nullification of the election. That being the position, the failure by the Respondent to comply with Regulation 3 of the Regulations could well be raised as a ground in a subsequent petition. It would be upon the Court before which such an issue was raised to determine the weight to be attached to it.
Petition partly allowed; costs of the application were to be borne by the Respondent; the instant judgment was delivered despite October 25, 2017 being a public holiday pursuant to the authority of the Chief Justice Ref. CJ/90 dated October 24, 2017.
Kenya Law
Case Updates Issue 034/2017
Case Summaries

ELECTORAL LAW

Guiding Principles in determining an Application to be enjoined as Amicus Curiae (friend of the court) in a Presidential Election Petition
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Proposed Amicus Curiae) [2017] eKLR
Petition 1 of 2017
Supreme Court of Kenya at Nairobi
D Maraga, CJ, Mwilu, DCJ, M Ibrahim, J B Ojwang, S Wanjala, N Ndung’u and I Lenaola, SCJJ
August 27, 2017
Reported by Ribia John and Felix Okiri

Download the Decision

Electoral Law – joinder of parties - Presidential Election petition – application to be enjoined as amicus curiae - guiding principles applicable in determining an application to be enjoined as amicus curiae – where the Applicant was a presidential candidate in the Presidential Election - what were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition - whether being a presidential candidate in a Presidential Election was enough consideration for one to be enjoined as amicus curiae in a presidential election petition -  whether an application by an independent candidate to be enjoined as amicus curiae  could be allowed on grounds of objectivity of the applicant - whether a party who applied to be enjoined as amicus curiae had to demonstrate an identifiable stake

Brief facts:
The Applicant filed an application based upon Rule 22 of the Supreme Court (Presidential Election Petition) Rules, 2017 and the inherent power of the Court to be enjoined asan interested Respondent or in the alternative as amicus curiae or in such capacity as the Court could direct. The applicant relied on the grounds that: he was a relevant party as he was an independent candidate in the August 8, 2017 Presidential election; and that he was able to table material that brought objectivity to the process of adjudicating the issues raised in the instant petition because he was as an independent candidate that was not affiliated to any political party.
The Petitioner opposed the application on the ground that the Applicant had not demonstrated any identifiable stake or legal interest in the proceedings. He averred that the applicant wished to advance his own interest, in the matter and did not demonstrate that he would suffer any prejudice if the application had been denied. 

Issues:

  1. What were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition?
  2. Whether being a presidential candidate in a Presidential Election was enough consideration for one to be enjoined as amicus curiae in a presidential election petition.
  3. Whether an applicant could apply to be enjoined as an interested Respondent or in the alternative as amicus curiae or in such capacity as the Court could direct. Read More..

Relevant provisions of the law
Supreme Court Rules, 2012
 Rule 54(2)
The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest, or any other relevant factor.

Supreme Court (Presidential Election Petition) Rules, 2017.
Rule 4(2)
 “(1) a person may at any time in any proceedings before the Court apply for leave to be enjoined as an interested party.
 (2) An application under this rule shall include-
      (a) a description of the interested party;
(b)any prejudice that the interested party would suffer if the intervention was denied; and
(c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”

Held:

  1. The guidelines for one to be enjoined as amicus curiae are:
    1. An amicus brief should be limited to legal arguments.
    2.  The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
    3.  An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay.  The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
    4.  An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
    5.  The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General was not defeated solely by the subsistence of a State interest, in a matter of public interest.
    6.  Where, in adversarial proceedings, parties allege that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the Court, the Court would consider such an objection by allowing the respective parties to be heard on the issue.
    7.  An amicus curiae is not entitled to costs in litigation.  In instances where the Court requests the appearance of any person or expert as amicus, the legal expenses may be borne by the Judiciary.
    8. The Court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.
    9.  In appropriate cases and at its discretion, the Court may assign questions for amicus research and presentation.
    10. An amicus curiae shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.
  2. The Applicant did not meet the criteria set out in law and precedent as he was biased and was opposing the application which when put into context revealed that he was partisan. The intended amicus curia was not neutral and his application had to fail.
  3. However, on perusal of the record, the applicant met the conditions set out in law on joinder of interested parties to a suit. The Applicant was a candidate in the August General Elections, 2017 and this had shown a personal stake or interest in the matter.
  4. For one to be enjoined in proceedings as an interested party, they had to move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds had to be laid before the Court on the basis of the following elements:
    1. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
    2. The prejudice to be suffered by the intended interested party in case of non- joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
    3. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.
  5. The Applicant as a candidate in Presidential Election had a definitive stake in the outcome of the case.

Application allowed.
 Orders:

i. The applicant is admitted as an Interested Party.

Applicant written submissions to be filed by 8am on the 28th August 2017 and limited to 5 pages only, of Font 12, 1.5 spacing.

COSTITUTIONAL LAW Whether an exemption from verification relating to the verification of devices acquired for purposes of establishing an integrated electronic electoral system threatened the right to free and fair elections

Khelef Khalifa & 2 others v Independent Electoral and Boundaries Commission & another
Constitutional Petition No 168 of 2017
High Court at Nairobi
John M Matio, J
July 19, 2017
Reported by Beryl A Ikamari

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Constitutional Law-national values and principles of governance-public participation-public participation in the fulfilment of the IEBC's mandate to establish an integrated electronic electoral system-whether the engagement of a technical committee which worked in consultation with the relevant agencies and various stakeholders including representatives of political parties met the requirement for public participation-Constitution of Kenya 2010, articles 10; Public Procurement and Asset Disposal Act, No 3 of 2015, section 3; Elections Act (Cap 7), section 44..
Electoral Law-devices acquired in order to establish the integrated electronic electoral system-pre-export verification exemption-effect of a waiver from the relevant Cabinet Secretary, in the interests of meeting timelines, exempting the devices from verification under Legal Notice No. 78 of July 15, 2005-whether such an exemption threatened the right to free and fair elections-Constitution of Kenya 2010, article 38 & 81; Elections Act (Cap 7), section 44.
Statutes-Standards Act-testing of locally manufactured and imported commodities with a view of assessing whether they met standards-physical inspection and laboratory testing-whether the physical inspection and laboratory testing, at the Kenya Bureau of Standards, of devices was sufficient to assess whether electronic devices acquired for purposes of establishing an integrated electronic electoral system met standards and were fit for their purpose-Standards Act, (Cap 496) section 4(1)(i).

Brief facts:
The Elections Act established an integrated electronic electoral system which would enable biometric voter registration, electronic voter identification and electronic transmission of results. The 1st Respondent (the Independent Electoral and Boundaries Commission-IEBC) was mandated to ensure that the technology was simple, accurate, verifiable, secure, accountable and transparent.
Pursuant to its mandate, the IEBC imported electronic equipment. The imports had to comply with the provisions of the Standards Act and Legal Notice No 78 of July 15, 2005. Legal Notice No 78 of July 15, 2005, provided for verification of conformity to Kenya Standards or approved specifications in the country of origin by an inspection body authorized by the Bureau. The IEBC obtained a waiver exempting it from pre-export verification of conformity. The IEBC explained that the waiver was granted on the basis of the urgent timeline of the 2017 General Elections which were upcoming.
The Petitioners complained that failure to subject the goods to verification, to ensure that they met standards and were fit for their purpose, was a threat to their right to free and fair elections. They stated that the imported equipment could potentially be unsuitable for its purpose and could fail to facilitate free and fair elections.
The Petitioner stated that the IEBC had breached the provisions of sections 44(1), 44(2) & 44(4) of the Elections Act, the provisions of Legal Notice No. 78 of July 15, 2005 and the constitutional requirements for public participation and guarantees for free, fair, transparent and accountable elections.

Issues:

  1. Whether the IEBC's failure to subject devices acquired for purposes of establishing an integrated electronic electoral system to verification pursuant to an exemption issued under the provisions of Legal Notice No 78 of July 15, 2005 amounted to a threat to the right to free and fair elections.
  2. Whether in establishing an integrated electronic electoral system, the IEBC had met the requirement for public participation. Read More...

Held:

  1. In determining whether the decision or action of a statutory body was within the provision of a statute, the Court would be confronted with two questions. The first question was whether Parliament had made legislation touching on the issue in question. Where Parliament's intent was clear, the Court had to give effect to the unambiguous intent of Parliament. Secondly, where the statute was silent or ambiguous in relation to the issue in question, the question for the Court was whether the conduct in question was based on a permissible interpretation of the statute.
  2. In situations where the applicable statute was ambiguous, the Court would determine whether the extent of the ambiguity was sufficiently broad to invalidate the agency's interpretation or conduct. If the language of the statute did not support the agency's interpretation or conduct, that interpretation would be overturned. However, where the language of the statute supported the interpretation given to it by the agency (statutory body) the Court would uphold that interpretation, action or decision unless it was unreasonable. If the statutory interpretation, action or decision was unreasonable, the policy decision implicit in the statutory body's interpretation was arbitrary and capricious and it was appropriate for it to be struck down.
  3. A statutory provision could either be mandatory or directory. Although Courts had evolved rules for guidance, there was no general rule for ascertaining whether a particular provision was mandatory or directory. It was the Court's duty to assess the real intention of the legislature by carefully attending to the whole scope of the statute to be interpreted and in conducting that exercise, the Court would have to consider the subject matter, importance of the provision that had been disregarded and the relationship of the provision to the general object of the statute. After making that assessment, the Court would decide on whether the provision was mandatory or directory.
  4. An absolute or mandatory (also referred to as an imperative) enactment would have to be obeyed or fulfilled exactly but it was sufficient if a directory enactment was obeyed or fulfilled substantially. Courts would give effect to imperative enactments irrespective of the consequences.
  5. The use of the word shall in sections 44(1), 44(2) & 44(4) of the Elections Act, meant that the provision was commanding enough to be regarded as mandatory as opposed to directory. The words were clear, positive and unambiguous and dictated that a literal interpretation be given to them.
  6. Under the principle of legality, statutory bodies derived their authority or jurisdiction from a legal instrument establishing them and could only do what the law authorized them to do. The principle of legality required administrative authorities to not only refrain from breaking the law but to also comply with the Constitution and the Bill of Rights. Thus, the IEBC was required to conform to the provisions of the law and the Constitution which guaranteed free, fair, transparent and credible elections.
  7. Section 44(1) of the Elections Act as amended required the IEBC to establish an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results. The IEBC stated that such a system had been established and the Petitioners did dispute that fact.
  8. Section 44(2) of the Elections Act required the IEBC to develop a policy on the progressive use of technology in the electoral process. No evidence was tendered to suggest that the provisions of section 44(2) of the Elections Act had been violated.
  9. Section 44(4) of the Elections Act required the IEBC, in an open and transparent manner, to procure and put in place the technology necessary for the conduct of general election at least eight months before the election and to test, verify and deploy such technology at least sixty days before the general election. The provision was amended by the Election Laws (Amendment) Act which provided that the integrated system would be put in place four months to the general elections and that the system would be tested at least sixty days before the elections. The requirements of that provision had been addressed adequately by the IEBC. In paragraph 45 of his affidavit, Mr Chiloba, the IEBC CEO, stated that all electronic devices had undergone physical inspection and laboratory testing of the K.I.E.M.S. and K.E.B.S. and had been certified as devices which met proper standards. In the absence of evidence to the contrary, the Court's finding was that the IEBC had satisfied the requirements of section 44(4) of the Elections Act.
  10. Section 4(1)(i) of the Standards Act provided for testing at the request of the Minister, and on behalf of the Government, of locally manufactured and imported commodities with a view to determining whether the commodities complied with the provisions of the Act and any other law dealing with standards of quality or description. Additionally, Legal Notice No. 78 of July 15, 2005 provided for compliance with standards.
  11. Traditionally, Courts distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority.  Cases falling within the first category related to compliance with a condition which was mandatory and for which non-compliance would result in the invalidity of an act. Cases falling within the second category were directory and an act done in breach would not result in invalidity.
  12. A better test for assessing the validity of an act was to ask whether it was a purpose of the legislation for an act done in breach of the provision to be invalid. In determining the question of purpose, regard had to be had to the language of the relevant provision and the scope and object of the whole statute.
  13. Under rule 8 of the Legal Notice, the Minister had wide discretion. Rule 8 stated that the Minister, on the advice of the National Standards Council, could exempt any imports from the provisions of the order where the Minister was satisfied that it was in national interest to do so. Unless the Minister acted in excess of his powers or was influenced by extraneous considerations, his decision was not open to challenge.
  14. The provisions of Legal Notice No. 78 of July 15, 2005, were not breached. No evidence was tendered to show that there was a breach and statements from the IEBC on it were not rebutted.
  15. Under article 10 of the Constitution, public participation was one of the national values and principles of governance which bound all State organs, State officers, public officers and all persons whenever any of them applied or interpreted the Constitution, enacted, applied or interpreted any law or made or implemented public policy decisions. On the question of public participation the IEBC CEO stated that it had involved various stakeholders and professionals in implementing the provisions of section 44 of the Elections Act. That statement was not challenged by the Petitioners.
  16. To ensure public participation in the procurement process the IEBC set up a technical committee as provided for under section 44(8) to validate the K.I.E.M.S. specifications as prepared by the specification committee. The Technical Committee was composed of representatives of professional bodies as well as state and non-state agencies and various political parties and it worked in consultation with the relevant agencies and various stakeholders including representatives of political parties. Therefore, the IEBC demonstrated that there was some public participation which was sufficient to satisfy the requirement for public participation.

Petition dismissed.

CONSTITUTIONAL LAW The grant of a Court order compelling an Accused person to provide a blood sample is not a violation of the right against self-incrimination

Republic v Timothy Mwenda Gichuru & 2 others
Criminal Case No 4 of 2017
High Court at Meru
F Gikonyo, J
July 18, 2017
Reported by Beryl A Ikamari

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Constitutional Law-right to a fair trial-the right not to self-incriminate-compulsion of Accused persons charged with serious offences to provide a blood sample-whether the grant of a Court order compelling an Accused person charged with a serious crime to provide a blood sample for purposes of collecting evidence was a violation of the Accused person's right not to self-incriminate-Constitution of Kenya 2010, article 50(2)(1).
Criminal Law-sampling for DNA identification-compulsion of Accused persons charged with serious offences to provide a blood sample-legal considerations that the Court would factor in when determining an application to compel an Accused person to provide a blood sample-Constitution of Kenya 2010, article 50(2)(1); Penal Code (Cap 63), section 122A.

Brief facts:
The Prosecutor made an application for blood samples to be taken from the Accused persons for analysis by the Government Chemist. The Accused persons were charged with murder. It was alleged that they were involved in a robbery in which they attacked two administration officers on duty at Capital Sacco – Igoji Branch in South Imenti and they used a knife to stab one of the officers to her death. Members of the public responded to the attack by lynching one of the suspects and injuring the Accused persons. The Prosecutor said that several exhibits were collected from the scene of crime and some had blood stains.
The exhibits were taken to the Government Chemist for analysis and it became necessary for blood samples to be taken from the Accused persons for analysis in order to assist with the evidence. The Accused persons responded by saying that the taking of the blood samples would amount to giving self-incriminatory evidence and that they would suffer prejudice.

Issues:

  1. Whether the provision of a blood sample by an Accused person who was charged with a serious offence, pursuant to an order of the Court, would be a violation of the right not to self-incriminate.
  2. Under what circumstances would the Court make orders compelling an Accused person to provide a blood sample? Read More...

Held:

  1. Section 122A of the Penal Code made provision for the police to order a person charged with a serious offence, including murder, to undergo a DNA sampling procedure if there were reasonable grounds to believe that the procedure would potentially produce evidence tending to confirm or disprove that a suspect committed an alleged offence. However, there was a question as to whether provision of blood samples amounted to giving self-incriminatory evidence contrary to the provisions of article 50(2)(1) of the Constitution.
  2. The right against self-incrimination would protect an Accused person against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the Accused in the commission of the crime. A blood sample was not a compulsory oral examination or confession or declaration, it was real physical evidence which the Accused could be compelled to provide if there were reasonable grounds to believe that a DNA procedure would produce evidence tending to confirm or disprove that the suspect committed the alleged offence. It was not only Accused persons in sexual offence cases that could be ordered to provide blood samples, Accused persons in cases of serious crimes could also be ordered to provide blood samples.
  3. DNA was an investigative tool which would determine almost with certainty that a person committed or did not commit an offence. The evidence obtained in DNA testing was admissible in judicial proceedings whether civil or criminal or sui generis.
  4. The manner in which a blood sample for DNA testing was obtained was a matter relating to the Constitution and the law. Where a person did not give a blood sample voluntarily, an order of the Court would be required to compel the person to provide the blood sample. For such an order to issue, the prosecution had to show; -
    1. That there were reasonable grounds to suspect that the person committed a serious offence or had been charged with a serious offence;
    2. That a test or analysis of the blood sample would potentially confirm or disprove a supposition concerning the identity of the person who committed the crime; or
    3. That there were reasonable grounds to believe that the DNA sampling procedure would potentially produce evidence tending to confirm or disprove that the suspect committed the alleged offence.
  5. The Prosecution stated that it was difficult to obtain the blood sample earlier as there was a doctor's strike when the Accused persons were in police custody. The explanation as to why the blood samples were not taken earlier was satisfactory. The cost of taking such samples at private hospitals could be prohibitive and the security concerns relating to transporting the Accused persons to and from private hospitals or clinics presented potential challenges.
  6. There were reasonable grounds to believe that the DNA testing procedure would produce evidence tending to confirm or disprove that the suspect committed the alleged offence. The Prosecution said that the exhibits recovered from the scene of crime had blood samples on them and it was necessary for the Accused persons to provide blood for DNA sampling.
  7. The provision of the blood samples would not infringe on the right to a fair trial. It was appropriate for the Accused persons to be taken to Meru Level 5 Hospital and provide blood samples for purposes of DNA testing and analysis, limited to testing the blood on the exhibits identified by investigation officer.

Application allowed.

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