Weekly Newsletter 037/2017

Weekly Newsletter 037/2017



Kenya Law

Weekly Newsletter


The Omission to have the 10th Day of October Observed as a Public Holiday was an Illegality
Republic v Cabinet Secretary for Internal Security ex parte Gragory Oriaro Nyauchi & 4 others [2017] eKLR
Judicial Review 292 of 2017
High Court of Kenya at Nairobi
G.V Odunga J
November 6, 2017
Reported by Ribia John

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Constitutional Law supremacy of the Constitution – effect of promulgating the Constitution on statutes that were in effect before the promulgation - what effect did the promulgation of a Constitution have on legislation that was in existence prior to the promulgation
Constitutional Law national days – public holidays - what was the status of days that were listed as holidays under the Public Holidays Act but were not listed as public holidays under the Constitution - whether the holidays mentioned in schedule I of the Public Holidays Act remained as public holidays after the promulgation of the Constitution - Public Holidays Act schedule I – Constitution of Kenya, 2010 article 9
Statutes interpretation of statutes –Public Holidays Act section 3– powers allocated to the minister to declare a particular day to be a public holiday - whether the power allocated to the Minister of Internal Security under section 3 of the Public Holidays Act to declare a particular day to be a public holiday included the power to scrap holidays listed under schedule I of the Public Holidays Act
 
Brief Facts:
After the promulgation of the Constitution of Kenya 2010, the 10th day of October, or Moi Day had not been observed as a public holiday by the Government of Kenya and employers of the citizens of Kenya.
 The ex-parte Applicant claimed that that under the Public Holidays Act which had neither been repealed nor amended the 1st schedule of the Act, the 10th of October or Moi Day was a holiday. As such the ex-parte Applicant contended that Moi day was a public holiday and that the administrative decision to stop keeping it as a public holiday was a blatant illegality and was in contravention of the Public Holidays Act.

 
Issues:
  1. What effect did the promulgation of a Constitution have on legislation that was in existence prior to the promulgation?
  2. Whether the holidays mentioned in schedule I of the Public Holidays Act remained as public holidays after the promulgation of the Constitution.
  3. What was the status of days that were listed as holidays under the Public Holidays Act but were not listed as public holidays under the Constitution?
  4. Whether the power allocated to the Minister of Internal Security under section 3 of the Public Holidays Act to declare a particular day to be a public holiday included the power to scrap holidays listed under schedule I of the Public Holidays Act
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 9(3) and (4)
National symbols and National days
(3)  The national days are—
(a)  Madaraka Day, to be observed on 1st  June;
(b)  Mashujaa Day, to be observed on 20th October; and
(c)  Jamhuri Day, to be observed on 12th December.
(4)  A national day shall be a public holiday.

 
Public Holidays Act
Section 3
    (3)   Alteration or addition of public holiday
The Minister may at any time if he thinks fit, by notice in the Gazette, declare any day to be a public holiday either in addition to the days mentioned in the schedule or in substitution for any of those days and either throughout Kenya or in any district, area or part thereof, and thereupon any day so appointed shall be a public holiday in all respects as if it were a day mentioned in the schedule, in Kenya or the locality specified in the notice; and where, in any year, any day is so declared to be a public holiday in substitution for any of the days mentioned in the schedule such latter day shall in such year cease to be a public holiday in Kenya or the locality specified in the notice.
 
Held:
  1. The Constitution of Kenya only recognised three national days which were by that virtue also public holidays. However Parliament was empowered to enact legislation prescribing other public holidays which public holidays were to be observed as such.
  2. All legislation in existence prior to the date of promulgation of the Constitution were to remain in force save that they were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them in conformity with the Constitution. In interpreting the existing legislation, the Court had to consider whether such interpretation was in conformity with the Constitution. If it was, then the legislation survived as it was. If it was not, then it had to be considered as if it was in fact amended pursuant to the constitutional provisions.
  3. Since the Constitution had renamed Kenyatta Day and Independence Day as Mashujaa Day and Jamhuri Day respectively, those days were treated as renamed by the Constitution pursuant to section 7(1) of the sixth schedule to the Constitution.
  4. Apart from Moi Day, all the other days in schedule I of the Public Holidays Act had been faithfully observed as public holidays. That had to be so as long as the said schedule remained un-amended.Whereas the day was not a national day, it was clear that as far as the provisions of the Public Holidays Act was concerned; the day was still a holiday unless it was shown that its celebration ran counter to the provisions of section 7(1) of the sixth schedule to the Constitution. The celebration of Moi Day as a public holiday as opposed to a National Day was in tandem with the provisions of the Constitution of Kenya, 2010.
  5. The Minister of internal security was empowered by section 3 of the Public Holiday Act to declare a particular day to be a public holiday via gazette notice in addition to the other days mentioned in the said schedule or to substitute any of those days with other days. That power did not read to include the scrapping of any of the days under schedule I of the Act. The only power which could be exercised by the Minister in respect of Moi Day was to substitute the same but not to delete it altogether either expressly or by implication.
  6. Article 153(1) of the Constitution required that a decision by the Cabinet was to be in writing. That included decisions of individual Cabinet Secretaries. The Constitution had to be interpreted within the context and social and economic development keeping in mind the basic philosophy behind the particular provisions of the Constitution. Article 153(1) of the Constitution was steeped in historical context. The article was found necessary to be inserted expressly in the Constitution due to the past experience where serious decisions with serious ramifications would be made in rather carefree manner for example in political rallies and on meet the people political tours in what became commonly known as roadside declarations. When questions arose as to the import and impact of the declarations some of which were clearly vague and were left to the interpretation of the people who believed they were directed at, it was always impossible to know with certainty whether the utterances were in the exercise of freedom of speech or were to be interpreted as made in the exercise of Constitutional and statutory authority. The result was simply chaos.
  7. Directives which affected the exercise of constitutional powers were serious matters that ought to be given only after serious circumspection and after full appreciation of the likely consequences of their application. The requirement for writing afforded the authority concerned time to reflect on and if possible seek legal opinion on the likely effects of the decision thus avoiding situations where the actions were subjected to litigation or to ugly scenes in the implementation of the directive. That cooling or grace period also afforded the authority time to ensure that the directive was carried out in an orderly manner so as to achieve its purpose in accordance with the national values and principles of governance. The exercise of the powers conferred under Article 153(1) of the Constitution, the decision or action must not be based on emotions but had to be well thought of and had to be precise and exercised in accordance with and towards the promotion of the rule of the law and had to be targeted at the purpose for which they were meant to achieve.
  8. Where the language of an Act was clear and explicit the Court had to give effect to it irrespective of whatever the consequences; for in that case the words of the statute spoke the intention of the legislature. Where a statute donated powers to an authority, the authority ought to ensure that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority. The general principle remained however, that a public authority could not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others.
  9. Where the law exhaustively provided for the jurisdiction of an executive body or authority, the body or authority had to operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. Whereas, if Parliament gave great powers to them, the courts must allow them to it, the Courts must nevertheless be vigilant to see that the said bodies exercised those powers in accordance with the law.
  10. The administrative bodies and tribunals or boards had to act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, was subject to the review of the courts on certain grounds. The tribunals or boards had to act in good faith; extraneous considerations ought not to influence their actions; and they must not misdirect themselves in fact or law. Most importantly they had to operate within the law and exercise only those powers which were donated to them by the law or the legal instrument creating them.
  11. Whether or not a day was known as a public holiday dictated the computation of the legal time and affected the contents of an employment contract. The failure to observe the 10th day of October in each year as a public holiday was a violation of article 9(5) of the Constitution as read with section 7(1) of the sixth schedule to the Constitution as well as section 2(1) of the Public Holidays Act as read with the schedule thereof. The decision to cease celebrating that day as a public holiday, assuming there was such a decision in the first place, was devoid of any legal backing. It was a populist decision which was made in violation of the law.
  12. Since the Public Holidays Act still recognised the 10th day of October as a public holiday, there was no obligation placed on the 1st Respondent to undertake any action pursuant thereto. A person that sought an order of mandamus had to satisfy the Court that the action he sought to compel the Respondent to perform was a duty which the Respondent was under a duty whether at common law or by statute to perform. Where there was no such duty or it was not clear to the Court that such a duty existed the Court would be reluctant to grant such an order.
  13. A declaration or declaratory judgment is an order of the court which merely declares what the legal rights of the parties to the proceedings are and which has no coercive force. It does not require anyone to do anything. It is available both in private and public law save in judicial review jurisdiction at the moment. The rule gives general power to the court to give a declaratory judgment at the instance of a party interested in the subject matter regardless of whether or not the interested party had a cause of action in the subject matter. A declaratory judgment or order may be effectual and binding as any other order.
  14. A grant of declaratory orders in the instant case would not seriously embarrass and prejudice the security of the State. To the contrary it would have the effect of upholding the rights of the Applicant and his fellow workers.
  15. If Parliament was of the view that Moi Day ought not to continue being considered as a public holiday nothing would have been easier than for it than to amend schedule I to the Public Holidays Act accordingly. By not so doing and subjecting Kenyans to toil on a day the law expressly provided ought to be a public holiday, amounted to a violation of their rights unless the exceptions of section 5 of the Public Holidays Act applied.
  16. The 10th day of October had not been treated as a public holiday since the promulgation of the Constitution of Kenya, 2010. Whereas that did not sanitise a patently illegal action or inaction, the Court appreciated that there may be certain actions which might have been undertaken on the said date which, being a public holiday ought not to have been undertaken. Section 11 of the Fair Administrative Action Act, 2015 provided that in proceedings for judicial review under section 8(1), the court could grant any order that was just and equitable, including the orders specified thereunder. Therefore the Court’s power to give relief was not restricted to the remedies identified thereunder but was empowered to fashion appropriate remedies.
  17. One of the remedies available to the Court was to regulate the effective date of order of invalidity so that the order operated prospectively rather that retrospectively. Orders of the Court in the instant matter must only operate prospectively with the result that whatever actions taken on the 10th day of October in the previous years which ought not to have been undertaken were not to be considered unlawful by the mere fact of this decision.
Petition partly allowed.
Orders:
  1. Declaration that the omission to have the 10th day of October observed as a public holiday was an illegality and in contravention of section 2(1) as read with part 1 of the schedule to the Public Holidays Act.
  2. Declaration that unless and until Parliament amended schedule I of the said Act or the Minister substituted the same for another date, the 10th day of October in each year would continue being a public holiday. It was however not for the instant Court to prescribe the manner in which the same was to be celebrated.
Costs awarded to the Applicant to be borne by the 1st Respondent.   
Kenya Law
Case Updates Issue 037/2017
Case Summaries

CONSTITUTIONAL LAW The Nairobi County Government has the mandate to issue a ban on the operations of motorcycle taxi service operators within the Nairobi Central Business District.

City Riders Sacco & 11 others v County Government of Nairobi & 3 others
Petition No 521 of 2015
High Court at Nairobi
Constitutional and Human Rights Division
J L Onguto, J
October 31, 2016
Reported by Beryl A Ikamari

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Constitutional Law-devolution-functions of the National Government and the County Government-transport and communication and county transport-regulation of traffic, parking and public road transport within a county-whether  a County Government had the mandate to issue a ban on the operations of motorcycle taxi service operators in the Nairobi Central Business District-Constitution of Kenya 2010, article 186; Fourth Schedule to the Constitution of Kenya 2010, part one, section 18 & part two section 5.
Constitutional Law-devolution-conflict of laws between national legislation and county legislation-transport and communication-whether registration of a Society under the Cooperative Societies Act gave the Society the mandate to undertake its operations within a specific area-whether county laws which banned the operations of motorcycle taxi service operators within the Nairobi Central Business District was in conflict with the Cooperative Societies Act-Constitution of Kenya 2010, article 186; Fourth Schedule to the Constitution of Kenya 2010, part one, section 18 & part two section 5; Cooperative Societies Act (Cap 490), section 6.
Constitutional Law-enforcement of fundamental rights and freedoms-socioeconomic rights, the right to fair administrative action, the right to equality and freedom from discrimination-standard of proof required to establish that there had been violations of socioeconomic rights, the right to fair administrative action, the right to equality and freedom from discrimination- effect of a ban on the operations of motorcycle taxi service operators in the Nairobi Central Business District on the operators' socioeconomic rights, the right to fair administrative action, the right to equality and freedom from discrimination-Constitution of Kenya 2010, articles 27, 43 & 47.
Constitutional Law-enforcement of fundamental rights and freedoms-right to property-alleged arbitrary impounding of motorcycles, storage for unspecified periods and imposition of storage charges- standard of proof required to establish that motorcycles had been impounded, stored for unspecified periods and storage charges had been imposed-whether under the circumstances there had been a violation of the motorcycle operators' rights to property-Constitution of Kenya 2010, article 40.

Brief facts:
Through a Notice in the newspapers, the Nairobi City County Government informed all motorcycle (boda boda) taxi service operators that a ban had been imposed to prohibited them from ferrying passengers to and from the Nairobi Central Business District.
The Petitioners argued that the ban negatively affected their livelihoods and socioeconomic rights recognized under article 43 of the Constitution and that it also discriminated against two wheeled motor cycle owners as it was not applicable to other persons operating four or three-wheeled taxis. The Petitioners added that the notice was issued arbitrarily and was to take effect immediately and it was a violation of the right to fair administrative action provided for in article 47(2) of the Constitution. They said that the notice did not give reasons as to why motorcycles were to cease operations at the Central Business District in favour of taxis.
The Petitioners pointed out that transport and communication was a function given to both the National Government and the County Government under the Constitution. They said that with respect to transport and communication there was a conflict of laws between national legislation and county legislation and that national legislation, the Cooperative Societies Act, ought to supersede County legislation. The Petitioners stated that they were registered under the Cooperative Societies Act and were thereby given the mandate to operate in the Nairobi Central Business District.
The Petitioners also complained that the 1st, 2nd and 3rd Respondents violated their rights to property by arbitrarily impounding their motor cycles and storing them for unspecified periods and imposing storage charges.

Issues:

  1. Whether the County Government had the mandate to issue a notice banning the operations of motorcycle (boda boda) taxi service operators in the Nairobi Central Business District.
  2. Whether there was a conflict of laws between national legislation and county legislation as related to the transport and communication function.
  3. Whether the ban on the operations of motorcycle (boda boda) taxi service operators in the Nairobi Central Business District, was a violation of the motorcycle operators’ socio-economic rights, right to fair administrative action, right to equality and freedom from discrimination.
  4. Whether in impounding motorcycles, storing them for unspecified periods and imposing storage charges, the officials of the Nairobi City County Government violated the motor cycle operators’ rights to property.Read More...

Held:

  1. Article 186 of the Constitution, provided that the functions of the National Government and the County Government were set out in the Fourth Schedule to the Constitution. Section 18 of part one of the Fourth Schedule to the Constitution, provided that the functions of the National Government included transport and communication. Additionally, section 5 part two of the Fourth Schedule provided that the functions of County Governments included county transport including county roads, street lighting, traffic and parking, public road transport and ferries and harbours excluding the regulation of international and national shipping and matters related thereto.
  2. It was clear that County Governments had a constitutional mandate with regard to county transport, including the regulation of traffic, parking and public road transport. There was no doubt that the 1st Respondent had the mandate to regulate public transport matters within Nairobi City County. It was not disputed that the Petitioners were offering taxi services which were within the purview of public transport.
  3. The Petitioners' registration under the Cooperative Societies Act did not entitle them to operate within the Nairobi Central Business District. The Commissioner of Cooperative Societies had powers to register cooperative societies under the Act but the powers did not extend to allocating parking or areas within which a registered Society could undertake its activities. The registration by the Commissioner was not a licence to carry out business which was outside of the Regulations and laws enacted by the County Government.
  4. Section 6 of the Cooperative Societies Act did not grant the Commissioner of Cooperative Societies powers to allocate areas of business and more specifically, parking space or areas of operation for taxi businesses. There was no conflict between the functions of the County Government in regulating public transport within the county and the general authority of the Commissioner of Cooperatives had in regulating cooperative societies generally.
  5. Article 27 of the Constitution provided for equality and freedom from discrimination. Discrimination entailed differential treatment and treating equals unequally.
  6. It was absurd to expect three and four-wheeled taxis/vehicles to be equated with two-wheeled vehicles as alleged by the Petitioners. Discrimination entailed a failure to treat all persons equally where no reasonable distinction could be found between those favoured and those disfavoured. The ban on two-wheeled motor vehicles could therefore not be said to be discriminatory since, two wheeled vehicles could not be equated to three-wheeled or four-wheeled vehicles. The three were not in one category and there was a reasonable distinction.
  7. The Petitioners alleged that they had been discriminated against but they did not address the Court on the grounds upon which they were discriminated. They merely stated that they had been discriminated against compared to persons operating three or four-wheeled taxis. Article 27(4) of the Constitution provided for the grounds upon which a person could be discriminated and the Petitioners had not adduced evidence of any ground of discrimination.
  8. Article 40 provided for the right to property. It guaranteed the right to own property and precluded the State from enacting any law that permitted arbitrary deprivation of property.
  9. The Petitioner alleged that officials of the 1st and 2nd Respondents had been arbitrarily impounding their motorcycles and taking them to be stored for unspecified periods and imposing storage charges but they did not offer evidence in support of the allegations. The material placed before the Court did not disclose a violation of the right to property.
  10. It would have been prudent for the Petitioners to provide details in terms of who the officials/employees were, the amount of charges imposed, any receipts indicating the payment of such charges, the dates when the events complained of occurred and the specific persons particularly affected by such actions. The Petitioners' claim was too generalized to be of any benefit to the Petitioner or the Court in as far as proof of the allegations was concerned.
  11. Whereas the Petitioners claimed a violation of article 47 of the Constitution, they did not seek any order with respect to that alleged violation and therefore the Court did not have to address the allegation. Additionally, there were no specific attempts made to prove that allegation.

Petition dismissed.

CONSTITUTIONAL LAW The Importance of Population Census Results for Purposes of Equitable Sharing and Allocation of Revenue to County Governments

County Government of Mandera and 2 Others V. Commission on Revenue Allocation and 4 Others
Petition 514 of 2016
High Court of Kenya at Nairobi
J. M Mativo, J
February 27, 2017
Reported by Robai Nasike Sivikhe

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Constitutional Law- allocation of revenue- equitable sharing of national revenue to County Governments- consideration of population census results for purposes of revenue allocation- where the published 2009 Population and Housing Census results were disregarded and altered population results were used- whether the decision to use the altered population results for purposes of revenue allocation was made with due regard to the Constitution- Constitution of Kenya, 2010, articles 202, 203 (1) (d) (f) (g) (h) (j) & 216 (3) (a)
Civil Practice and Procedure- contempt of Court- compliance with orders of the Court- decision to circulate adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for purposes of revenue allocation- whether such a decision was done in total disregard of a Court decree- Constitution of Kenya, 2010, articles 10 (1), 10 (2) (a) and 159 (1)
Civil Practice and Procedure- res judicata- where there existed a decision in the High Court and Court of Appeal regarding the alteration of population results for the County Governments of Mandera, Wajir, and Garissa- whether the decisions by the Court of Appeal and High Court rendered the petition res judicata.

Brief facts:
On August 31, 2010, the Minister of State for Planning, National Development and Vision 2030 (the Minister) released the 2009 Kenya Population and Housing Census, which had been prepared and published by the 2nd Respondent. The Minister was quoted issuing a statement threatening to cancel the results of eight districts citing irregularities and indeed the Minister cancelled the Results for Lagdera, Mandera East, Mandera Central, Mandera West, Wajir East, Turkana North, Turkana South and Turkana Central Districts. The cancellation was successfully challenged in High Court Misc. Civil Application No. 309 of 2010 and the court granted orders of certiorari and prohibition quashing the decision and prohibiting its circulation to various government bodies. An appeal to the Court of Appeal against the said decision was partly successful. The Court of Appeal only set aside the prohibitions in so far as it prohibited the 2nd Respondent from releasing the adjusted results to the Independent Electoral and Boundaries Commission.
In the instant petition, the county governments of Mandera, Wajir and Garissa (the Petitioners) challenged the decision by Kenya National Bureau of Statistics (the 2nd Respondent) to circulate adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for the counties of Mandera, Garissa and Wajir for purposes of determination of the shareable revenue for the financial year 2017/2018. According to the Petitioners, such an action would constitute contempt of court and a violation of several articles  of the Constitution of Kenya, 2010 among them articles 10,73,27, 47 and 203(1)(d), (f), (g), (h), and (j), 216 (3) (a).

Issues:

  1. Whether the decision to use the altered population results for purposes of revenue allocation was made with due regard to the Constitution.
  2. Whether the decision to circulate adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for purposes of revenue allocation was done in total disregard of a Court decree
  3. Whether the existence of High Court and Court of Appeal decisions on alteration of population results with regard to the County Governments of Mandera, Wajir and Garissa rendered the suit res judicata.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010,
Articles 10 (1) & 10 (2) (a)
10. 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;

Article 202
202. Equitable sharing of national revenue
(1) Revenue raised nationally shall be shared equitably among the national and county governments.
(2) County governments may be given additional allocations from the national government’s share of the revenue, either conditionally or unconditionally.

Article 203 (1) (d) (f) (g) (h) & (j)
203. Equitable share and other financial laws
(1) The following criteria shall be taken into account in determining the equitable shares provided for under Article 202 and in all national legislation concerning county government enacted in terms of this Chapter—
 (d)the need to ensure that county governments are able to perform the functions allocated to them;
 (f)developmental and other needs of counties;
(g)economic disparities within and among counties and the need to remedy them;
(h)the need for affirmative action in respect of disadvantaged areas and groups;
 (j) the desirability of stable and predictable allocations of revenue

Article 216 (3) (a)
216. Functions of the Commission on Revenue Allocation
(3) In formulating recommendations, the Commission shall seek—
(a) to promote and give effect to the criteria set out in Article 203(1);

Held:

  1. The High Court had issued an order of certiorari quashing the Minister’s decision that cancelled the 2009 Population and Housing Census Results for Lagdera, Mandera East, Mandera Central, Mandera West, Wajir East, Turkana North, Turkana South and Turkana Central constituencies. The Court also issued an order of prohibition prohibiting the Minister and the 2nd Respondent from publishing, issuing or gazetting projected results for those constituencies and from circulating any other figures other than the published 2009 Population and Housing Census Results to any other organ of the government, constitutional commissions, offices or organizations. The Independent Electoral and Boundaries Commission was prohibited from acting on any other census data relating to the listed areas other than the published 2009 Population and Housing Census Results in the determination of boundaries review and/or delimitation of new boundaries.
  2. The Court of Appeal only set aside the prohibition in so far as it prohibited the 2nd Respondent from releasing the adjusted results to IEBC. The effect was that the appeal was partially successful but the other orders issued remained in force. The assertion that the issue before the court was res judicata was not correct. The correct position was that the judgement of the High court in so far as it was not set aside or varied by the court of appeal decision still remained in force.
  3. The Respondents were obliged to comply with the decision of the High Court since it had still remained in force. It was essential for the maintenance of the rule of law and order that the authority and the dignity of Courts were upheld at all times. The Court could not condone deliberate disobedience of its orders and could not shy away from its responsibility to deal firmly with proved contemnors. It was the plain and unqualified obligation of every person against, or in respect of whom, an order was made by a court of competent jurisdiction, to obey it unless and until that order was discharged. The uncompromising nature of that obligation was shown by the fact that it extended even to cases where the person affected by an order believed it to be irregular or void.
  4. Court orders had to be obeyed at all times in order to maintain the rule of law and good order. That meant that the authority and dignity of the courts had to be upheld at all times and that differentiated civilized societies from those applying the law of the jungle. It was the duty of the Court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with the approved contemnors. The Court could not, and ought not to be seen to make orders in vain; otherwise it would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.
  5. A Court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with. Parties must realize that once they are brought to court they are subject to the jurisdiction of the Court. Article 159(1) of the Constitution provided that judicial authority was derived from the people and vested in, and was to be exercised by, the courts and tribunals established by or under the Constitution. In exercising judicial authority the Courts and Tribunals were, inter alia, to be guided by the principle that the purpose and principles of the Constitution shall be protected and promoted.
  6.  Under Article 10(1) of the Constitution, the national values and principles of governance bind 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. Those national values and principles of governance as cited in article 10 (2) (a) included the rule of law.
  7. It had to be determined whether the 1st  Respondent’s decision to use the adjusted census results data for the population parameter to determine the shareable revenue for the financial year 2017/2018 to the county governments was arbitrary and irrational. The 2nd Respondent's act of recommending the use of projected census results, which were lower than the enumerated results for purposes of revenue allocation, was a flagrant breach of the Court orders issued. In addition, it lacked legal validity and violated the principle of the rule of law as provided for under Article 10 of the Constitution.
  8. Article 202 of the Constitution provided that revenue that was raised nationally could be shared equitably among the national and county governments. To the extent that the downgraded population results had led to or could translate to a reduced revenue allocation to the Petitioners would obviously disadvantage the Petitioners and it would be going against the provisions of article 202.
  9. One of the criteria for determining the equitable shares stated in article 203 was the need for affirmative action, economic disparities, and need to remedy them and developmental and other needs. The counties in question had for a long time been marginalized and the decision to downgrade the population census results in total breach of a Court order to the extent that revenue allocation allocated to them was reduced violated article 203 of the Constitution.
  10.  The spirit of the Constitution had to preside and permeate the process of judicial interpretation and judicial discretion. The spirit of the constitution had to ensure equitable distribution, a distribution that was fair to all the counties. The counties in question had a right to enjoy a prima facie, presumptive inviolability of the Constitutional provisions and a right to reasonable expectation of a fair allocation of revenue as guaranteed under the Constitution.
  11. Other than using the phrase "smoothing of figures" which was claimed to be an accepted way of rationalizing census figures, it had not been shown that it was necessary and justifiable to sacrifice the rights and interests of the Petitioners and whether the decision was proportionate and justifiable in the circumstances to warrant denial or deprivation of equitable distribution guaranteed under the Constitution.
  12. A key aspect of whether a limitation on a right could be justified was whether the limitation was proportionate to the objective being sought. Even if the objective was of sufficient importance and the measures in question were rationally connected to the objective, the limitation could still not be justified because of the severity of its impact on individuals or groups. When employing the language of proportionality the Court had to ask whether the end could be pursued by less drastic means, and it was particularly sensitive to decisions that imposed adverse consequences unrelated to their object, such as the infringement of basic common law rights.
  13. The decision complained of was totally unjustifiable, it was not proportionate, and offended the provisions of the Constitution. Precisely, it was in violation and contravention of the criteria for determining equitable shares as set out under article 203(1)(d), (f), (g), (h) and (j) of the Constitution. The 1st Respondent’s decision to use the adjusted census results data for the population parameter to determine the shareable revenue for the financial year 2017/2018 to the county governments contravened the provisions of article 216(3)(a) of the Constitution.
  14. The 2nd Respondent’s decision to circulate adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for the Counties of Garissa, Wajir and Mandera to the 1st Respondent or any other organ of the government, constitutional commissions, offices or organizations for purposes of determination of the shareable revenue for the financial year 2017/2018 for the three counties was done in total disregard of a court decree. It was made in bad faith since reliance on the altered results which had been upheld by the High Court would have led to reduced allocation of revenue to the Petitioners in total contravention of the provisions of the constitution.
  15. The petition had merits and the Petitioners had demonstrated to the required standard that the decision to use the altered results for purposes of revenue allocation was unjustifiable, unfair and a breach of the various provisions of the Constitution.

Petition Allowed.
Orders granted as follows:

  1. Declaration issued to the effect that the rights of the residents of Mandera, Wajir and Garissa Counties under article 27 to equal protection and equal benefit of the law under the Constitution have been infringed and threatened with violation by the Respondents.
  2. Declaration issued to the effect that the decision by the Respondents to use adjusted census figures for purposes of determination of the shareable revenue for the financial year 2017/2018 violated the rights of the residents of Mandera, Wajir and Garissa Counties to fair administrative action guaranteed under article 47 of the Constitution.
  3. Declaration issued to the effect that the 1st Respondent’s decision to use the adjusted census results data for the population parameter to determine the shareable revenue for the financial year 2017/2018 to the county governments with the effect of reducing the revenue shareable to the Petitioners was in violation and contravention of the criteria set out under article 203(1) (d), (f), (g), (h) and (j) of the Constitution.
  4. Declaration issued to the effect that the 1st Respondent’s decision to use the adjusted census results data for the population parameter to determine the shareable revenue for the financial year 2017/2018 to the county governments with the effect of reducing the revenue shareable to the Petitioners contravened the provisions of article 216(3) (a) of the Constitution and therefore null and void.
  5. An Order of Certiorari issued  to quash the decision of the 2nd Respondent to recommend and propose to the 1st Respondent the use of adjusted census results data for the population parameter of the revenue allocation formula to determine the shareable revenue for the year 2017/2018 for the counties of Garissa, Wajir and Mandera.
  6. An Order of Certiorari quashing the decision of the 1st Respondent to use adjusted census results data as recommended and proposed by the 2nd Respondent for the population parameter of the revenue allocation formula to determine the shareable revenue for the financial year 2017/2018 or any other financial year for the counties of Garissa, Wajir and Mandera issued.
  7. An Order of Prohibition, prohibiting the 1st Respondent from using the adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for the Counties of Garissa, Wajir and Mandera for the population parameter of the revenue allocation formula to determine the shareable revenue for the financial year 2017/2018 for the counties of Garissa, Wajir and Mandera issued.
  8. An Order of Prohibition prohibiting the 2nd Respondent from circulating adjusted, projected, altered figures or any other figures other than the published 2009 Population and Housing Census Results for the Counties of Garissa, Wajir and Mandera to the 1st Respondent, the National Assembly, the Senate, the National Treasury or any other organ of the Government, Constitutional Commissions, offices or organizations for purposes of determination of the shareable revenue for the financial year 2017/2018 for the three counties issued
CONSTITUTIONAL LAW The Constitutional and Legal Status of the Attorney General vis-a-vis the Cabinet Secretary

George Bala V. Attorney General
Petition No. 238 of 2016
High Court of Kenya at Nairobi
G. V Odunga, J
January 23, 2017
Reported by Robai Nasike Sivikhe

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Constitutional Law- national values and principles of governance- adherence to the national values and principles of governance by state organs, state officers, public officers and all persons when applying or interpreting the Constitution, enacting, applying or interpreting any law, or applying or implementing any public policy decision- whether the norms and values identified in article 10 of the Constitution were bare minimum or just examples- whether the national values and principles of governance enumerated in article 10 (2) of the Constitution were not exclusive but merely inclusive- Constitution of Kenya, 2010, article 10
Constitutional Law- the Executive- principles, structure and composition of the Executive- the constitutional and legal status of the Attorney General vis-q-vis the Cabinet Secretary- whether the Attorney General could be considered a Cabinet Secretary and could perform the role of a Cabinet Secretary- whether the Attorney General could be considered a Cabinet Secretary in charge of legal education since the administration of matters relating to the legal sector required legal expertise such as that which the Attorney General was expected to have-Constitution of Kenya, 2010 article 130 (1) & article 152; The Interpretation and General Provisions Act, Section 31; The Legal Education Act, section 4 (5)
Constitutional Law- separation of powers- powers of the President to direct and coordinate functions of ministries and government departments- whether the Court had the power to inquire into the constitutionality of the actions of other organs of government and state organs- whether the court could intervene in and quash the decision of the President to assign duties to a person who was not constitutionally mandated to do so- Constitution of Kenya 2010, article 132 (3) & article 165 (3)

Brief facts:
The Petitioner had brought the petition on his behalf and in the public interest. The Respondent was the Attorney General, a public and constitutional officer established by the Laws of Kenya with well-defined functions under the under Constitution. The Petitioner’s main contention revolved around the role of the Attorney General vis-a-vis that of a Cabinet Secretary; whether the Attorney General was a Cabinet Secretary; and whether the Attorney General could perform the role of a Cabinet Secretary.
According to the Petitioner, the offices of Attorney General and Cabinet Secretary were separate and distinct and the manner and procedure of appointment to those offices were different, separate and distinct. Further, the Constitution provided and envisaged that the functions of the offices of Attorney General and Cabinet Secretary were distinct, separate and different. To the Petitioner, the makers of the Kenyan Constitution could not have envisaged, on a true interpretation of the Constitution, that one person holds concurrent offices of Attorney General and Cabinet Secretary. It was the Petitioner’s position that the Respondent was not a Cabinet Secretary and therefore could not purport to perform the functions of a Cabinet Secretary.
The President had released and published an executive order No. 2/12013 on the strength of the powers vested in the President by article 152 of the Constitution. Through the executive order, the Respondent was assigned portfolio responsibilities and functions that, inter alia, relate to the Council of Legal Education as established by the Legal Education Act, No. 27 of 2012. According to the Petitioner, whereas the President was perfectly in order to assign duties and functions to the Respondent by virtue of article 156(4)(c) of the Constitution, the President was not allowed to assign the Respondent functions and duties that an Act of Parliament had bestowed on a Cabinet Secretary and that in assigning functions to the Respondent, the President had to be in clinical compliance with the Constitution and there was no room for the President to assign functions to the Respondent that offended the Constitution.

Issues:

  1. Whether the Attorney General could be considered a Cabinet Secretary and could perform the role of a Cabinet Secretary.
  2. Whether the Attorney General could be considered a Cabinet Secretary in charge of legal education since the administration of matters relating to the legal sector required legal expertise such as that which the Attorney General was expected to have.
  3. Whether the powers of the President to direct and coordinate functions of ministries and government departments could be exercised without any discretion.
  4. Whether the court could intervene in and quash the decision of the President to assign duties to a person who was not constitutionally mandated to do so.
  5. Whether the Court had the power to inquire into the constitutionality of the actions of other organs of government and state organs.
  6. Whether the petition raised a constitutional question that ought to be considered and determined by the court.
  7. Whether the national values and principles of governance enumerated in article 10 (2) of the Constitution were not exclusive but merely inclusive. Read More...

Held:

  1. The Petitioner questioned the constitutional and legal status of the Attorney General vis-a-vis the Cabinet Secretary as well as the powers of the President under the Constitution. Such an issue fell squarely within the realm of constitutional interpretation and it called for the invocation of the High Court’s powers under article 165(3) (d) of the Constitution. The Constitution of Kenya 2010 pervaded all aspects of life so much so that any action taken by a party could easily be transformed into a constitutional issue by simply citing some provision of the Constitution however remote.
  2. Parties who intend to commence legal proceedings by way of a constitutional petition ought to note that the making of an allegation of contravention of constitutional provisions per se, without particulars of the contravention and how the contravention was perpetrated could not justify the Court’s intervention by way of an inquiry where the particulars of contravention and how the contravention took place were plainly lacking in the pleadings.
  3. An inclination to demand an inquiry every time there was a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialise the constitutional jurisdiction and further erode the proper administration of justice by allowing what was plainly an abuse of the court process. Where the facts pleaded in a case, had not plainly disclosed any breach of fundamental rights or the Constitution there could not be any basis for an inquiry.
  4.  The Kenyan Constitution is a transformative constitution. That is necessarily so since article 10 provided that all state organs, state officers, public officers and all persons whenever they make or apply policy decisions are bound by the national values and principles of governance which include participation of the people, inclusiveness, integrity, transparency and accountability. Article 20(3) of the Constitution confirms that the Kenyan Constitution is a transformative constitution.
  5. The provisions of article 20 (3) and article 259 (1) meant that in the interpretation of the constitution, the Court had to do so in a manner that advanced the values and principles of the Constitution. Since Kenya was a constitutional democracy, the authorities handed down in systems that practiced parliamentary supremacy were not necessarily relevant to the Kenyan constitutional set up. Therefore in applying authorities emanating from such systems, care had to be taken to ensure that such decisions conformed to the Kenyan transformative constitutional framework.
  6. The Constitution was not just a structurally based but also a value-oriented Constitution. Its interpretation and application was not to be a mechanical one but had to be guided by the spirit and the soul of the Constitution itself as ingrained in the national values and principles of governance espoused in the preamble and, inter alia, article 10 of the Constitution.
  7. The Constitution of Kenya 2010 embodied the values of the Kenyan Society, as well as the aspirations, dreams and fears of the nation as espoused in article 10. It was not focused on presenting an organization of Government. Hence it was a value system that was not concerned only with defining human rights and duties of individuals and state organs, but went further to find values and goals in the Constitution and to transform them into reality.
  8. The Court was therefore required in the performance of its judicial function to espouse the value system in the Constitution and to avoid the structural minimalistic approach. The Constitution of Kenya, 2010, just like the post Nazi German Basic Law and the post-apartheid 1996 Constitution of South Africa, as a “transformative instrument” was the key instrument to bring about a better and more just society.
  9. The norms and values identified in article 10 of the Constitution were bare minimum or just examples. That was so because article 10(2) of the Constitution provided that “the national values and principles of governance include…”By employing the use of the term “include” the framers of the Constitution were alive to the fact that there were other values and principles which could advance the spirit of the Constitution; and hence all state organs, state officers, public officers and all persons could be enjoined to apply them. That meant that the national values and principles of governance in article 10 of the Constitution were not exclusive but merely inclusive.
  10. The Constitution set out to plant the seed of the national values and principles of national governance but left it open to all State organs, state officers, public officers and all persons when applying or interpreting the Constitution, enacting, applying or interpreting any law, or applying or implementing any public policy decision to water and nurture the seedling to ensure that the plant developed all its parts such as the stem, the leaves, the branches and the flowers. The national values and principles of governance had to grow as the society developed in order to reflect the true state of the society at any given point in time.
  11. The constitutional principles applied to judicial review just as they applied to constitutional petitions and references.  Therefore the Executive, being a State organ, had to adhere to the national values and principles of governance in making policy decisions. If it had not done so, it would have fallen foul of article 10 of the Constitution
  12. It was clear from the provisions of article 130 (1) and article 152 (1) that the Attorney General’s place in the executive was distinct and separate from those of the Cabinet Secretaries. If that was not the case, it would have meant that the President could only appoint a maximum of twenty-one Cabinet Secretaries together with the Attorney General.
  13. Under article 152(2) the President could nominate and with approval of the National Assembly, appoint Cabinet Secretaries. Those Cabinet Secretaries who were not to be Members of Parliament could only assume office by swearing or affirming faithfulness to the people and the Republic of Kenya and obedience to the Constitution, before the President and in accordance with the Third Schedule. They served at the mercy of the President but could be removed if the National Assembly supported the motion for the purpose by one-quarter of all the members of the Assembly, which motion would eventually be carried by a majority of the Members of the Assembly.
  14. Whereas the Attorney General was a member of the cabinet pursuant to Part 3 of the Constitution, apart from being mentioned as such member, Part 3 had nothing else to do with the Attorney General. It was Part 4 that substantially dealt with the office of the Attorney General and that part was entitled “Other Offices”. Whereas the procedure for appointment of the Attorney General was substantially the same as that of a Cabinet Secretary, the Constitution specifically provided for the qualifications that one had to meet in order to be appointed as the Attorney General. There were no such requirements for the position of Cabinet Secretaries.
  15. The role of the Attorney General was that of the principal legal adviser to the government and the national government’s legal representative in court or in any other legal proceedings to which the national government was a party, other than criminal proceedings. The Attorney General also performed any other functions conferred on the office by an act of parliament or by the President. Under article 153(2) Cabinet Secretaries were accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions. The Attorney General, on the other hand was required by article 156(6) to promote, protect and uphold the rule of law and defend the public interest. Apart from that, article 260 of the Constitution defined “State Office” as meaning the office of, inter alia, Cabinet Secretary and Attorney General.
  16. The Attorney General could not be termed as a Cabinet Secretary. To do so would have led to a cabinet whose composition may surpass the constitutional threshold. The Attorney General was not required by the Constitution to take a prescribed oath under the Constitution before assuming office. There was no express procedure for the removal of the Attorney General. He could not, for example, be removed on a motion passed by the National Assembly. He had to protect the public interests as opposed to merely being accountable to the President.
  17. What section 3 of the Interpretation of General Provisions Act (IGPA) meant was that when it came to the administration of laws relating to the legal sector the term “the Cabinet Secretary” included the Attorney General. That interpretation was subject to article 132(3) (c) which provided that the powers of the President to, through a publication in the Gazette, assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, was not to be inconsistent with any Act of Parliament. Where an Act of Parliament expressly conferred functions on a particular Cabinet Secretary, the President could not assign such functions to another Cabinet Secretary.
  18. Section 3 of the Interpretation and General Provisions Act was termed as a deeming provision. It only deemed the Attorney General as “the Cabinet Secretary” for the purposes of the administration of laws relating to the legal sector and only to the extent permitted by Acts of Parliament.
  19. The preamble to the Interpretation and General Provisions Act provided that it was an Act of Parliament to make provision in regard to the construction, application and interpretation of written law, to make certain general provisions with regard to such law and for other like purposes. Section 2 of the IGPA provided that the IGPA could not be applied for the construction or interpretation of the Constitution, which was not a written law for the purposes of the Act. The IGPA could not be invoked for the purposes of construction or interpretation of the Constitution. The Attorney General was not a Cabinet Secretary for the purposes of the Constitution. However, he could be assigned duties and functions by the President as long as the same was not inconsistent with the provisions of any Act of Parliament.
  20. Under section 4(5) of the Legal Education Act, the Council of Legal Education comprised of, inter alia, the Attorney General. However the appointments were to be made by the Cabinet Secretary who, for the time being responsible for matters relating to legal education, was not expressly mentioned as a member of the Council.  The spirit of the Act contemplated that the Cabinet Secretary would be a person other than the Attorney General since the resignation of members of the Council, and that included the Attorney General, was to be made to the Cabinet Secretary.
  21. To assign the Attorney General functions which in effect made him a member of the council which he himself appointed and to whom resignation of the ex officio members of the council was addressed was contrary to the spirit of the Legal Education Act.  Whereas one could argue that under section 6(6) of the said Act, it was not compulsory for the Attorney General to be personally a member of the Council; such decision depended on the good will of the holder of such office.
  22. There was some element of conflict of interest particularly where the Attorney General decided to personally participate as a member of the council. It was even more absurd when one considers that one of the members of the Council was the Principal Secretary of the Ministry for the time being responsible for legal education. In effect the Attorney General’s office would be represented by two officers in the Council and that was clearly not in accordance with the spirit of the Legal Education Act.
  23. The Legal Education Act contemplated that there would be a Cabinet Secretary for the time being responsible for matters relating to legal education other than the Attorney General. The argument that since the Administration of matters relating to the legal sector required legal expertise such as that which the Attorney General was ordinarily expected to have, the Attorney General had to necessarily be the Cabinet Secretary in charge of legal education was not sustainable. As the Constitution clearly appreciated in Article 156(4) (a), the Attorney General was the principal legal adviser to the Government.  There was therefore nothing that would have stopped the Attorney General from giving appropriate legal advice to whoever was appointed as the Cabinet Secretary for the time being responsible for legal education.
  24. Whereas article 132(3) of the Constitution conferred a prerogative upon the President of, inter alia, directing and coordinating functions of the Ministries and Government departments and including assigning responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, that power had to be exercised in accordance with the Constitution and the law. In determining whether or not the power was exercised in accordance with the Constitution, the Court had to do so in a manner that promoted its purposes, values and principles. The spirit of the Constitution had to be taken into account.
  25. Whether or not an issue was justiciable depended on the legal principles surrounding the particular act done as discernible from the legal instruments appurtenant to that action. When the law proceeded to impose on the executive legally prescribed duties and responsibilities, the performance of which depended upon the enhancing or handling of public interest, the political officers of the executive had to act consistent and according to the laws of the land. Since the performance of certain duties and responsibilities was dependent upon individual rights and responsibilities, there was a duty to act consistently with and according to the law. If a public officer failed to so act, and their failure harmed the interests of the public and rights of individual citizens, their actions and omissions were subject to judicial review.
  26. Whereas it was not within the Court’s mandate to direct the President to create a particular ministry and to assign it specific duties, where the President assigns duties to a person who was not constitutionally mandated to do so, the Court had to intervene to quash that decision. It was then left to the President to decide on the next course of action. To do so did not impinge upon the doctrine of separation of powers.
  27. Since the 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, it had the duty and was obliged to intervene in actions of other arms of Government and State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. Since the instant petition alleged a violation of the Constitution by the Respondents, the invitation to the Court to intervene was more than welcome and the Respondents could not obstruct it from doing so by placing road-blocks on its path by way of the doctrines of parliamentary privilege and separation of power. The two doctrines could not inhibit the Court's jurisdiction to address the Petitioner’s grievances so long as they stemmed out of alleged violations of the Constitution as that was one of the core mandates of the Court.
  28. The Court had the power to enquire into the constitutionality of the actions of the Executive notwithstanding the doctrine of separation of powers. The Constitution was the supreme law of Kenya and the Executive had to function within the limits prescribed by the Constitution. In cases where it had stepped beyond what the law and the Constitution permitted it to do, it could not seek refuge in illegality and hide under the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.
  29.  The doctrine of separation of powers had be read in the context of the Kenyan constitutional framework and where the adoption of the doctrine would clearly militate against the constitutional principles the doctrine had to bow to the dictates of the spirit and the letter of the Constitution.
  30. Even where the Attorney General properly performed his duties on the strength of the deeming effect, he could only properly do so upon swearing or affirming faithfulness to the people and the Republic of Kenya in accordance with the Third Schedule. In that event, he would be subjected to the process of removal from that position just like any other Cabinet Secretary.  It would be a violation of the Constitution for the President to appoint a person in the position of a Cabinet Secretary when that person in carrying out his or her mandate as such Cabinet Secretary had not sworn or affirmed faithfulness to the Constitution and when in the performance of such duties he or she was not subject to over sight by Parliament.

Petition Allowed.

  1. The effect of immediate invalidity of the appointment of the Respondent as a Cabinet Secretary could not uphold public interest. In the circumstances and pursuant to Article 23 of the Constitution, the instant decision was to only affect future actions of the Respondent and the declaration of unconstitutionality of the Cabinet Secretarial functions of the Respondent would be suspended for a period of three months to enable the executive take appropriate remedial action.
LABOUR LAW Participation of the Registrar of Trade Unions in the administration programmes and activities of a trade union, including its electoral processes

Kenya National Union of Nurses V. Registrar of Trade Unions and 8 Others
Appeal No. 6 of 2016 Consolidated with Petition No. 82 of 2016
Employment and Labour Relations Court at Nairobi
H. Wasilwa, J
December 19, 2016
Reported by Robai Nasike Sivikhe

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Labour Laws- trade unions- electoral processes within trade unions- the extent that the Registrar of trade unions can participate in the electoral process of a trade union- whether it was mandatory for the Registrar of Trade Unions to issue directions to trade unions with regard to their electoral processes- whether the reason for the refusal to register the Appellant’s elected officials by the Registrar of Trade Unions was sufficient-Constitution of Kenya, 2010, article 41; Labour Relations Act, section 34
Labour Laws- trade unions- management of trade unions- participation of a registrar of trade unions in the affairs of a Union- the extend that the registrar of trade union can interfere with the affairs of a trade union- whether the Registrar of Trade Unions could participate in the administration programmes and activities of a trade union, including its electoral processes- Constitution of Kenya, 2010, article 41; Labour Relations Act, section 34
Constitutional Law- locus standi- capacity to institute a petition- where the Petitioner was contesting the manner that the elections were conducted by the Appellants- where the Petitioner was claiming that the registration of the elected officials by the Respondent would infringe on the right of the Appellant’s members to vote- whether the Petitioner, despite his dismissal as a nurse, had the capacity to institute the petition

Brief facts:
The instant appeal was consolidated with Petition No. 82 of 2016.
The appeal revolved around a circular dated November 25, 2015, written by the Respondent circular to all registered Trade Unions, Employers Organizations and Federations reminding them to hold branch and national elections by March 30, 2016 and June 30, 2016.  In response to the circular the Appellant wrote to the Respondent and indicated that its directives had contravened articles 2 and 41 of the Constitution of Kenya, 2010 and section 34 of the Labour Relations Act. According to the Appellant, the Respondent invited them for a meeting to discuss issues raised in response to the circular which were allegedly hindering the Appellant from carrying out elections.  While the discussions were still on-going it was resolved by the Appellant’s National Executive Council to carry out branch and national elections. The Appellants contented that on January 5, 2016 it had issued a notice of elections and subsequently carried out elections for the various branches. According to the Appellants there were no elections for National Officers and 39 branches for the reason that they were unopposed. The Appellants submitted the names of the officials of the branches to the Registrar of Trade Unions for registration which the Respondent had to date failed to do. According to the Appellants, the Respondent had acted in violation of article 41 (2) of the Constitution and the Respondent’s circular had contravened article 2 (6) of the Constitution and section 34(3) of the Labour Relations Act as the circular had not considered the provisions of the various Registered Trade Unions. The Appellant further contented that by refusing to register the officials elected by the members and as submitted to her, the Registrar had contravened section 4(1) (2) of the Labour Relations Act.
In Petition 82 of 2016, the Petitioner stated that the notice of elections dated January 5, 2016 was unlawful since it was discriminatory in relation to section 34(2) of the Labour Relations Act 2007. The Petitioner claimed that the notice was unconstitutional since it introduced application fees and a non-designated account that was meant to defraud the members. The Petitioner contented that the failure to constitute an election board and submit the same was a contravention of the Union Constitution.  The Petitioner claimed that the Appellant had failed to communicate the venue for the national elections of the union which was in contravention of rules set out by the regulator. The Petitioner added that the Appellant submitted returns on February 26, 2016, before elections which were to be held on March 2, 2016, proving that no elections had taken place. It was contented that the Appellant’s actions prejudiced the rights of members of the Kenya National Union of Nurses to elect their leaders. According to the Petitioner, if the Respondent proceeded to register the purported officials, the members’ fundamental rights and freedom to vote would be infringed.

Issues:

  1. Whether the Registrar of Trade Unions could participate in the administration programmes and activities of a trade union, including its electoral processes.
  2. Whether it was mandatory for the Registrar of Trade Unions to issue directions to trade unions with regard to their electoral processes.
  3. Whether the reason for the refusal to register the Appellant’s elected officials by the Registrar of Trade Unions was sufficient.
  4. Whether the Petitioner, despite his dismissal as a nurse, had the capacity to institute the petition. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 41
41. Labour relations
(1) Every person has the right to fair labour practices.
(2) Every worker has the right—

(a) to fair remuneration;
(b) to reasonable working conditions;
(c) to form, join or participate in the activities and programmes of a trade union; and
(d) to go on strike.

(3) Every employer has the right—

(a) to form and join an employers organisation; and
(b) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Labour Relations Act, No. 14 of 2007, Laws of Kenya
Section 34
34. Election of officials
(1) The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.
(2) The constitution of a trade union, employers’ organisation or federation shall—

(a) not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and
(b) provide for the election, by secret ballot, of all officials of a trade union at least once every five years.

(3) Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election.
(4) Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court.
(5) The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.

Held:

  1. The Registrar of Trade Unions had, by insisting on who should supervise their elections and when and how to hold the said elections, contravened article 41 of the Constitution of Kenya 2010. Every Union had a right to determine its own administration programmes and activities and elections were such programmes and activities.
  2. The Registrar of Trade Unions had no right to insist on who oversaw the elections of the trade union. Section 34 of the Labour Relations Act was clear on how trade union elections were to be held. The only provision in law was that Trade Unions had to give a notice of the election of officials to the Registrar of Trade Unions within 14 days of completion of the election and had to issue direction or conduct of elections in accordance with the Unions’ respective Constitutions.
  3. It was good practice but not mandatory that the Registrar of Trade Unions issued directions to ensure that elections were conducted in accordance with the law and respective Constitutions. Therefore to expect a Trade Union to conduct elections in a particular way other than as per their Constitution and as per the members agreed norm was to interfere in the running of the affairs of the Union and was against ILO convention 98 on Freedom of Association and of the right to organize.
  4. The circular by the Registrar of Trade Unions was unconstitutional and null and void to the extent of waiting to micro manage the affairs of the Appellant and insisting on who should supervise the elections without consideration of the Unions Constitution and provisions of the law.
  5. The Notice of the elected officials was given to the Registrar of Trade Unions in form of Form ‘Q’ set out in the second schedule of the Labour Relations Act.  Once given, the Registrar of Trade Unions could after an inquiry and if satisfied register the proposed changes or corrections or refuse to register the changes in the register.  The Registrar of Trade Unions would only refuse to register the changes after an inquiry.
  6. According to the Appellant, the Registrar of Trade Unions refused to register the changes because the Appellant refused to comply with the contents of the circular. Since the circular contravened provisions of the law and article 41 of constitution and was therefore null and void to that extent; the Registrar of Trade Unions could not rely on that reason to refuse to register the elected officials of a union.
  7. It was not clear whether the Petitioner had locus or not because under the Constitution of the Appellants, membership of the Union was open to all employed nurses and those who pay their fees.  There was a provision for honorary membership.  Under Chapter XVIII of the Appellants Constitution, only union members were eligible to elect their officials after 5 years. There was however evidence that the Petitioner had been dismissed from service as a nurse.
  8. The Appellants were registered in 2013. The insistence by the Registrar of Trade Unions that they conduct election in 2016, before the expiry of the 5 years period, was premature.  It was for those reasons that the Notice of the election was stated to retain the servicing officials who had not served for 5 years. The way the Registrar of Trade Unions intended to have elections held would have aided even those not eligible to participate in the elections and denied the Appellant officials their right to hold their elected posts for 5 years as per their Constitution.
  9. The decision not to register the Union officials for posts held for less than 5 years was against the law and therefore null and void. The Petitioner had locus to file the Petition; however, the Petitioner ought to have sued the Union and not its Secretary General. The choice to enjoin the Secretary General in person was improper.
  10. The decision made not to register the Union Officials as submitted in form ‘Q’ by the Registrar of Trade Unions was unfair and unjustified. The Registrar of Trade Unions ought to proceed forthwith and register the said officials as submitted within 7 days.

Petition dismissed for lack of merit.

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