Weekly Newsletter 043/2017

Weekly Newsletter 043/2017



Kenya Law

Weekly Newsletter


Constitutionality of the Mandatory Nature of the Death Sentence provided under section 204 of the Penal Code
Francis Karioko Muruatetu & another V Republic
Petition No. 15 of 2015
Supreme Court of Kenya
Maraga CJ, Mwilu DCJ; Ojwang, Wanjala, Njoki AND Lenaola SCJJ
December 14, 2017
Reported by Robai Nasike Sivikhe
Download the Decision
 
Constitutional Law- fundamental rights and freedoms- right to a fair hearing- right to a fair hearing viz-a-viz the aspect of mitigation upon meting a death sentence - the necessity of mitigation where a death sentence has been imposed upon a person- whether a person facing the death sentence most deserved to be heard in mitigation because of the finality of the sentence- whether the mandatory nature of the death sentence denied a person the right to a fair trial with regard to mitigation- Constitution of Kenya, 2010, articles 25 (c), 48 and 50 (1); Penal Code, section 204
Constitutional Law- fundamental rights and freedoms- right to human dignity- right to human dignity viz-a-viz the aspect of mitigation upon meting a death sentence- where convicts were subjected to the same mandatory sentence without the Courts considering their mitigating circumstances, their diverse characters and circumstances of the crime- whether imposing a death sentence, which was final and irrevocable, without an individual having any chance to mitigate violated their right to dignity- Constitution of Kenya, 2010, article 28
Constitutional Law- fundamental rights and freedoms- right to a fair trial- the right to appeal to, or apply for review by, a higher court as prescribed by law, if convicted- review of sentences of persons convicted under section 204 of the Penal Code that provided for the death sentence- where appeals by persons convicted under section 204 of the Penal Code were limited to conviction only- whether the mandatory nature of the death sentence under section 204 of the Penal Code violated article 50 (2) (q) which provided for the right of a person to appeal to, or apply for review, by a higher Court if convicted- Constitution of Kenya, 2010, article 50 (2) (q)
Constitutional Law- fundamental rights and freedoms- the right to equality and freedom from discrimination- the right to equality and freedom from discrimination of convicts sentenced under section 204 of the Penal Code- whether convicts sentenced pursuant to section 204 were not accorded equal treatment to convicts who were sentenced under other sections of the Penal Code that did not mandate a death sentence-  whether refusing or denying a convict facing the death sentence the right to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair- Constitution of Kenya, 2010, article 27
Constitutional Law- interpretation and application of the constitution- validity and consistency of statutes in accordance with the Constitution- the constitutionality of the mandatory nature of the death sentence- whether the mandatory nature of the death penalty provided for under section 204 of the Penal Code was unconstitutional- Constitution of Kenya, 2010, articles 19 (3) (a), 20 (1) & (2), 25 (c), 27, 28, 48 and 50 (1) & (2) (q)
Criminal Procedure- sentencing- death sentence- the mandatory death sentence under section 204 of the Penal Code- provisions of the sentencing policy guidelines with regard to the mandatory death sentence- where section 204 of the Penal Code that provided for the mandatory death sentence for murder was found to be inconsistent with the Constitution and invalid to that extent- whether the sentencing policy guidelines regarding the mandatory death sentence was still applicable - what guidelines would apply with regard to mitigating factors in a re-hearing sentence for the conviction of a murder charge- Sentencing policy guidelines, Paragraphs 6.4, 6.5, 6.6, 6.7 & 6.8
Criminal Procedure- sentencing- death sentence- mitigation where a mandatory death sentence had been imposed- where murder convicts were subjected to the same (mandatory) sentence thereby treating them as an undifferentiated mass- consideration of the differential culpability of different murder convicts when considering whether or not to impose a death sentence
Constitutional Law- validity of laws- constitutionality of the indeterminate life sentence- whether the parties had sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional- whether the court could determine the issue regarding the constitutionality of the indeterminate life sentence where the parties had not canvassed the issue to the Court’s satisfaction- whether the indeterminate life sentence could be declared unconstitutional.
Constitutional Law- validity of laws- constitutionality of the provision of section 46 of the Prisons Act which excluded prisoners serving life sentences from being considered for remission- whether the Court could consider the issue of constitutionality of section 46 of the Prisons Act despite the fact that it had been raised by Amici Curiae and not to the disputes- whether the issue of the constitutionality of section 46 of the Prisons Act had been properly canvassed at the High Court and Court of Appeal- whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission- Prisons Act, section 46.
Jurisdiction- jurisdiction of the Supreme Court- jurisdiction of the Supreme Court to apply and interpret the Constitution- where the issues raised before the Supreme Court had not been canvassed at the High Court and Court of appeal- whether the issue of the constitutionality of section 46 of the Prisons Act had been properly canvassed at the High Court and Court of Appeal-whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission
Jurisdiction- jurisdiction of the Supreme Court- jurisdiction of the Supreme Court to apply and interpret the Constitution- where the issues raised before the Supreme Court had not been canvassed at the High Court and Court of appeal- whether the court could determine the issue regarding the constitutionality of the indeterminate life sentence where the parties had not canvassed the issue to the Court’s satisfaction- whether the indeterminate life sentence could be declared unconstitutional
Constitutional Law- separation of powers - enactment of laws- institutions that have the power to enact laws- provision of a legal framework for the rights and treatment of convicted persons- where there were no specific provisions for the sentence of life imprisonment, which was an indeterminate sentence- whether courts could define what constituted a life sentence or what number of years had to first be served by a prisoner on life sentence before they were considered on parole- whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment
Constitutional Law- fundamental rights and freedoms- enforcement of fundamental rights and freedom- where a law had been declared invalid or inconsistent with the Constitution- where the mandatory death sentence had been declared unconstitutional- whether any remedies would accrue to the Petitioners where the mandatory death sentence was declared unconstitutional.
 
Brief Facts
The appeal raised a fundamental legal issue that had engaged many global jurisdictions in seemingly unending controversy: whether or not the mandatory death penalty was unconstitutional.
The Petitioners and others had been arraigned before the High Court for the offence of murder. Upon their conviction, they were sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Aggrieved by that decision, they filed two separate appeals in the instant Court which had since been consolidated.
The gravamen of the Petitioners’ appeal was that the mandatory death sentence imposed upon them and the commutation of that sentence by an administrative fiat to life imprisonment was both unconstitutional and therefore null and void. In the circumstances, the Petitioners were entitled to damages the quantum of which the instant Court had to assess.
The Petitioners’ case was that the mandatory nature of the death penalty under section 204 of the Penal Code jettisoned the discretion of the trial forcing it to hand down a sentence pre-determined by the Legislature thus fouling the doctrine of separation of powers. They submitted that the sentencing process was part of the right to a fair trial enshrined in article 50(2) of the Constitution. They contended that the mandatory death penalty under section 204 of the Penal Code violated that right in that it denied the trial Judge discretion in sentencing. The Petitioners further contended that article 50 (2) (q) of the Constitution entitled any person who had undergone a criminal trial to appeal or seek a review from a higher Court. That included a second appeal. However, as section 261 of the Criminal Procedure Code limited second appeals to convictions only, if not set aside by the first appellate court, the mandatory nature of the death sentence would violate the convicts’ rights to a fair hearing under article 50 (2) (q) of the Constitution.
 
Issues:
  1. Whether the mandatory nature of the death sentence denied a person the right to a fair trial with regard to mitigation.
  2. Whether imposing a death sentence, which was final and irrevocable, without an individual having any chance to mitigate violated their right to dignity.
  3. Whether the mandatory nature of the death sentence under section 204 of the Penal Code violated article 50 (2) (q) which provided for the right of a person to appeal to, or apply for review, by a higher Court if convicted.
  4. Whether refusing or denying a convict facing the death sentence the right to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair.
  5. Whether the mandatory nature of the death sentence provided for under section 204 of the Penal Code was unconstitutional.
  6. Consideration of the differential culpability of different murder convicts when considering whether or not to impose a death sentence.
  7. Whether the sentencing policy guidelines regarding the mandatory death sentence was still applicable
  8. What guidelines would apply with regard to mitigating factors in a re-hearing sentence for the conviction of a murder charge?
  9. Whether the indeterminate life sentence could be declared unconstitutional.
  10. Whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission
  11. Whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment
  12. Whether any remedies would accrue to the Petitioners where the mandatory death sentence was declared unconstitutional.
 
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 19 (3) (a)
19. Rights and fundamental freedoms
(3) The rights and fundamental freedoms in the Bill of Rights—
(a) belong to each individual and are not granted by the State;

 
Article 20 (1) & (2)
20. Application of Bill of Rights
(1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

 
Article 25 (c)
25. Fundamental Rights and freedoms that may not be limited
(c) the right to a fair trial

Article 27
27. Equality and freedom from discrimination
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

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

Article 48
48. Access to justice
The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

Article 50 (1)
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.

Article 50 (2) (q)
50. Fair hearing
(2) Every accused person has the right to a fair trial, which includes the right—

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

Penal Code, Cap 63, Laws of Kenya
204. Punishment of murder
Any person convicted of murder shall be sentenced to death.
 
Held:
  1. Constitutional provisions such as articles 19 (3) (a), 20 (1) & (2), 28, 48 and 50 (1) & (2) and provisions of the International Covenant on Civil and Political Rights such as article 14 brought to the fore a number of principles. Those were
    1. Rights and fundamental freedoms belonged to each individual.
    2. The bill of rights applied to all law and bound all persons.
    3. All persons had inherent dignity which had to be respected and protected.
    4. The State had to ensure access to justice to all.
    5. Every person was entitled to a fair hearing
    6. The right to a fair trial was non-derogable. For section 204 of the Penal Code to stand, it had to be in accord with those provisions.
  2. The trial process did not stop at convicting the accused. There was no doubt that sentencing was a crucial component of a trial.  It was during sentencing that the court heard submissions that impacted on sentencing. That necessarily meant that the principle of fair trial had to be accorded to the sentencing stage too.
  3. Pursuant to sections 216 and 329 of the Criminal Procedure Code, mitigation was a part of the trial process. Therefore, from a reading of those sections, the Court ought to take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence.  Those provisions were couched in permissive terms. However, the Court of Appeal had consistently reiterated on the need for noting down mitigating factors. Not only because they could affect the sentence but also for futuristic endeavours such as when the appeal was placed before another body for clemency.
  4. What section 204 of the Penal Code was essentially saying to a convict was that he or she could not be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she was heard, it was only for the purposes of the record as at that time of mitigation because the Court had to impose the death sentence nonetheless, as illustrated by various Court of Appeal decisions.  The Supreme Court could not decipher the possible rationale for that provision. A person facing the death sentence most deserved to be heard in mitigation because of the finality of the sentence.
  5. Mitigation was an important congruent element of fair trial. The fact that mitigation was not expressly mentioned as a right in the Constitution did not deprive it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair trial of an accused pursuant to article 50(2) of the Constitution were not exhaustive.
  6.  The right to fair trial was not just a fundamental right. It was one of the inalienable rights enshrined in article 10 of the Universal Declaration of Human Rights, and in the same vein article 25(c) of the Constitution elevated it to a non-derogable right which could not be limited or taken away from a litigant. The right to fair trial was one of the cornerstones of a just and democratic society, without which the rule of law and public faith in the justice system would inevitably collapse.
  7. Section 204 of the Penal Code deprived the Court of the use of judicial discretion in a matter of life and death. Such law could only be regarded as harsh, unjust and unfair. The mandatory nature deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listened to mitigating circumstances but had, nonetheless, to impose a set sentence, the sentence imposed failed to conform to the tenets of fair trial that accrued to accused persons under article 25 of the Constitution which was an absolute right. With regard to murder convicts, mitigation was an important facet of fair trial.
  8. Article 28 of the Constitution provided that every person had inherent dignity and the right to have that dignity protected. It was for the Court to ensure that all persons enjoyed the right to dignity. Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violated their right to dignity.
  9. The dignity of the person was ignored if the death sentence, which was final and irrevocable, was imposed without the individual having any chance to mitigate. The Supreme Court could not shut its eyes to the distinct possibility of the differing culpability of different murderers. Such differential culpability could be addressed by allowing judicial discretion when considering whether or not to impose a death sentence.  A formal equal penalty for unequally wicked crimes and criminals was not in keeping with the tenets of fair trial.
  10. Whilst the Constitution recognized the death penalty as being lawful, it did not provide that when a conviction for murder was recorded, only the death sentence would be imposed. Mitigation had a place in the trial process with regard to convicted persons pursuant to section 204 of the Penal Code. It was during mitigation, after conviction and before sentencing, that the offender's version of events could be heavy with pathos necessitating the Court to consider an aspect that could have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation revealed an untold degree of brutality and callousness.
  11.  If a Court did not have discretion to take into account mitigating circumstances it was possible to overlook some personal history and the circumstances of the offender which could make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder could be committed with varying degrees of gravity and culpability failed to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender could result in the undesirable effect of 'over-punishing' the convict.
  12. A fair trial had many facets, and included mitigation and the right to appeal or apply for review by a higher Court as prescribed by law. Section 204 violated article 50 (2) (q) of the Constitution as convicts under it were denied the right to have their sentence reviewed by a higher Court – their appeal was in essence limited to conviction only. There was no opportunity for a reviewing higher court to consider whether the death sentence was an appropriate punishment in the circumstances of the particular offense or offender.  The right to justice was also fettered.
  13. The scope of access to justice as enshrined in article 48 was very wide.  Courts were enjoined to administer justice in accordance with the principles laid down under article 159 of the Constitution.  Thus, with regards to access to justice and fair hearing, the State through the courts, ensured that all persons were able to ventilate their disputes.  Access to justice included the right to a fair trial.  If a trial was unfair, one could not be said to have accessed justice.  In that respect, when a murder convict's sentence could not be reviewed by a higher court he was denied access to justice which could not be justified in light of article 48 of the Constitution.
  14.  Any law or procedure which when executed culminated in termination of life, ought to be just, fair and reasonable. As a result, due process was made possible by a procedure which allowed the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. The mandatory nature of that penalty ran counter to constitutional guarantees enshrining respect for the rule of law.
  15. Any court dealing with the offence of murder was allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise would render a trial, with the resulting sentence under section 204 of the Penal Code, unfair thereby conflicting with articles 25 (c), 28, 48 and 50 (1) and (2) (q) of the Constitution.
  16. Article 27 of the Constitution provided for equality and freedom from discrimination since every person was equal before the law and had the right to equal protection and equal benefit of the law. Convicts sentenced pursuant to section 204 were not accorded equal treatment to convicts who were sentenced under other sections of the Penal Code that did not mandate a death sentence. Refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was clearly unjustifiable discrimination and unfair. That was repugnant to the principle of equality before the law.  Accordingly, section 204 of the Penal Code violated article 27 of the Constitution.
  17.  Section 204 of the Penal Code was out of sync with the progressive Bill of Rights enshrined in our Constitution specifically; articles 25 (c), 27, 28, 48 and 50 (1) and (2)(q).  Therefore, that section could not stand, particularly, in light of articles 19 (3) (a) and 20 (1) & (2) of the Constitution. In light of those provisions, the timing of the constitutional challenge to section 204 of the Penal Code was propitious and would succeed.
  18. Article 26 (3) of the Constitution permitted the deprivation of life within the confines of the law. The Supreme Court was unconvinced that the wording of that article permitted the mandatory death sentence.  The pronouncement of a death sentence upon conviction was permissible only if there had been a fair trial, which was a non-derogable right.  A fair hearing as enshrined in article 50 (1) of the Constitution had to be read to mean a hearing of both sides. A murder convict whose mitigation circumstances could not be taken into account due to the mandatory nature of the death sentence could not be said to have been accorded a fair hearing.
  19. The mandatory nature of the death sentence provided for under section 204 of the Penal Code long predated any international agreements for the protection of human rights.  It was a colonial relic that had no place in Kenya today. Whereas it was the duty of Parliament to make laws, it was the duty of the Court to evaluate, without fear or favour, whether the laws passed by Parliament contravened the Constitution.
  20.  Human society was constantly evolving and therefore the law, which all civilized societies had to live under, had to evolve in tandem.  A law that was caught up in a time warp would soon find itself irrelevant and would be swept into the dustbins of history. Section 204 of the Penal Code was inconsistent with the Constitution and invalid to the extent that it provided for the mandatory death sentence for murder. For avoidance of doubt, that decision had not outlawed the death penalty, which was still applicable as a discretionary maximum punishment.
  21. In 2016, the Judiciary of Kenya published Sentencing Policy Guidelines which gave an analysis on the mandatory death penalty in paragraphs 6.4, 6.5, 6.6, 6.7 and 6.8. As a consequence of the instant decision, paragraphs 6.4-6.7 of the guidelines were no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors were applicable in a re-hearing sentence for the conviction of a murder charge:
    1. age of the offender;
    2. being a first offender;
    3. whether the offender pleaded guilty;
    4. character and record of the offender;
    5. commission of the offence in response to gender-based violence;
    6. remorsefulness of the offender;
    7. the possibility of reform and social re-adaptation of the offender;
    8. Any other factor that the Court considers relevant.
  22. The guidelines in no way replaced judicial discretion. They were advisory and not mandatory. They were geared to promoting consistency and transparency in sentencing hearings. They were also aimed at promoting public understanding of the sentencing process. That notwithstanding, paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines stated that where there were guideline judgments, that was, decisions from the superior courts on a sentencing principle, the subordinate courts were bound by it.  It was the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it was the duty of the prosecutor and defense counsel to inform the court of existing guideline judgments on an issue before it.
  23. The Petitioners had not sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional. A critical issue such as that, where legislation was to be examined was deserving of the reasoned and well-thought arguments of the Petitioners, the Director of Public Prosecution and other Interested Parties or Amicus Curiae and input of the High Court and the Court of Appeal.  That would allow the Supreme Court to benefit from the reasoning of those superior Courts and the parties would not be disadvantaged by the Supreme Court’s holding which would in effect make the instant Court a court of first and last instance. The submissions made had not canvassed the issue to the Court’s satisfaction. Consequently, a determination on it could not be made.
  24. Counsel for the Amici Curiae asked the Supreme Court to declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission. The Supreme Court had limited the role and function of amici curiae. Any interested party or amicus curiae that signaled that he or she intended to steer the Court towards a consideration of ‘new issues’ could not be allowed.  Further, such issues were matters relating to the interpretation of the Constitution, and they could not be canvassed in the Supreme Court for the first time, as though it was a Court of first instance. The Supreme Court recognized the hierarchy of the Courts in Kenya, and their competence to resolve those constitutional questions.
  25. The Supreme Court could not delve into the issue of the unconstitutionality of section 46 of the Prisons Act because none of the primary parties to the dispute had raised it.  That issue had also not been properly canvassed at the High Court and Court of Appeal. The Supreme Court could not assume jurisdiction and address issues that had not gone through the hierarchy of Courts.
  26. The life imprisonment sentence had not been defined under Kenyan law. It was assumed that the life sentence meant the number of years of the prisoner’s natural life, in that it ceased upon his or her death.
  27. The provisions on the rights of detained persons as enshrined under article 51 of the Constitution was considered in order to determine whether the Supreme Court can fix a definite number of years. It was clear from those provisions that it was the legislature, and not the Judiciary, that was tasked with providing a legal framework for the rights and treatment of convicted persons.
  28. Although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there were no specific provisions for the sentence of life imprisonment, because it was an indeterminate sentence.  Nevertheless, it was not for the court to define what constituted a life sentence or what number of years must first be served by a prisoner on life sentence before they were considered on parole.  That was a function within the realm of the legislature.
  29.  In Kenya and internationally, sentencing should not only be used for the purpose of retribution, it was also for the rehabilitation of the prisoner as well as for the protection of civilians who could be harmed by some prisoners.  A life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
  30.  It was recommended that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constituted a life sentence’; that could include a minimum number of years to be served before a prisoner was considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences.  That would be in tandem with the objectives of sentencing. Such proposed legislation would enable Kenya to comply with articles 2(6) of the Constitution which stated that any treaty or convention ratified by Kenya would form part of the law of Kenya.
  31. Comparative jurisprudence was persuasive and there was no need to deviate from the already established practice. The facts in the instant case were similar to what had been decided in other jurisdictions.  Remitting the matter back to the High Court for the appropriate sentence seemed to be the practice adopted where the mandatory death penalty had been declared unconstitutional. The appropriate remedy for the Petitioners in the instant case was to remit the matter to the High Court for sentencing.
  32.  It was prudent for the same Court that heard the instant matter to consider and evaluate mitigating submissions and evaluated the appropriate sentence befitting the offence committed by the Petitioners. The sentencing re-hearing that was allowed, applied only for the two Petitioners. In the meantime, existing or intending petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General was directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which was similar to that of the Petitioners in the instant case.
Orders
  1. The mandatory nature of the death sentence as provided for under section 204 of the Penal Code was declared unconstitutional.  For the avoidance of doubt, the order did not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
  2. The instant matter was remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with the instant judgment.
  3. The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of the instant judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the Petitioners. The Attorney General was granted twelve (12) months from the date of the Judgment to give a progress report to the Court on the same.
  4. The judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought constitute life imprisonment.
Kenya Law
Case Updates Issue 043/2017
Case Summaries

CIVIL PRACTICE AND PROCEDURE Presidential election petitions and other Supreme Court petitions cannot be heard and determined together.

Institute for Democratic Governance v Raila Amolo Odinga & 6 others
Presidential Petition No 3 of 2017
Supreme Court at Nairobi
D K Maraga, CJ & P, P M Mwilu, DCJ & V-P,  J B Ojwang, S C Wanjala, N S Njoki and I Lenaola, SCJJ
November 14, 2017
Reported by Beryl A Ikamari

Download the Decision

Civil Practice and Procedure-institution of suits-suits capable of being consolidated or heard and determined together-presidential election petitions and other Supreme Court petitions-whether presidential election petitions which were to be concluded within 14 days could be heard and determined together with other petitions for which similar time-lines were not applicable-Constitution of Kenya 2010, article 140 & 163(3).
Constitutional Law-presidential election petitions-differences between presidential election petitions and other petitions filed at the Supreme Court-the requirement that presidential election petitions filed at the Supreme Court were to be concluded within 14 days-whether a Supreme Court petition filed under article 163(3) of the Constitution could be heard and determined together with a presidential election petition filed at the Supreme Court under article 140 of the Constitution-Constitution of Kenya 2010, article 140 & 163(3).

Brief facts:
The petition did not entail a challenge to the election of the President elect but there were attempts to have it handled at the same time as other petitions which challenged the validity of the presidential elections held on October 26, 2017.  The Supreme Court was engaged in hearing two other petitions under article 140 which challenged the election of Hon. Uhuru Muigai Kenyatta and Hon. William Samoei Ruto as President and Deputy President elect respectively. Those petitions were brought under the provisions of article 140 of the Constitution and they constituted time bound litigation for which a determination was required within 14 days.
Jubilee Party applied to be joined as an Interested Party in the petition. Meanwhile, counsel for the Respondents raised a Preliminary Objection challenging the jurisdiction of the Supreme Court to hear the petition.

Issue:

  1. Whether a petition, brought under the provisions of article 163(3) of the Constitution, could be heard and determined together with other petitions which entailed a challenge the election of the President elect under article 140 of the Constitution. Read More...

Held:

  1. The instant petition did not challenge the election of the President elect. It was brought under article 163(3) of the Constitution. It was therefore not a time-bound litigation under the provisions of article 140 of the Constitution which would need to be determined within 14 days. It was therefore not a petition which could be heard together with Petitions Nos 2 and 4 which entailed a challenge to the election of the President elect. It ought to be taken out of the cause list of matters to be heard within the 14 days which would conclude in December 13, 2017.
  2. The Court had no time to rule on the application by Jubilee Party or the Respondent's Preliminary Objection. The ruling on the applications made was deferred to a date to be given on notice.

Ruling deferred to a date to be given on notice.

PRIVILEGES AND IMMUNITY The Privilege and Immunity of a person Conferred with Diplomatic Immunity by a Foreign Government but who holds Dual Citizenship, including the Citizenship of his Host Country

Ilyas Yusuf Warsame v. Republic
Miscellaneous Criminal Application No. 88 of 2016
High Court at Nairobi
L. Kimaru, J
March 8, 2017
Reported by Robai Nasike Sivikhe

Download the Decision

Privileges and immunity- diplomatic privilege and immunity- where a diplomatic status was conferred by a foreign government on a person who held dual citizenship- status of diplomatic immunity of a person who held dual citizenship, including the citizenship of his host country- whether a diplomatic status conferred by a foreign government on a person who held dual citizenship, including the citizenship of the host country, could invoke diplomatic immunity to shield him from both criminal and civil liability before courts of the host country- the Vienna Convention on Diplomatic Relations, 1961, articles 31 & 32
Criminal Procedure- bail and bond- application for bail pending trial- circumstances under which a court could decline to grant an Applicant bail pending trial- whether there were compelling reasons that could lead the Court to deny an applicant bail pending trial- whether the Applicant was entitled to bail pending trial- Constitution of Kenya, 2010, article 49 (1) (h)

Brief facts:
The Applicant had sought from the Court bail pending trial and an order declaring that the arrest of the Applicant, the search of his house, his detention in police custody, his charging and arraignment before the Chief Magistrate’s Court at Nairobi, Milimani Law Courts, in Criminal Case No.164 of 2014 (Republic –Vs- Hassan Abdi Mahamud & Others), his continued prosecution in that case and his continued detention in remand prison without bail were the violations of the absolute immunity of the Applicant from Kenyan jurisdiction and legal processes in contravention of Articles 29, 30 and 31 of the Vienna Convention on Diplomatic Relations having the force of law in Kenya as contained in the Privileges and Immunities Act (Chapter 179, Laws of Kenya) read with Articles 2(5) and (6) of the Constitution.
The Applicant contended that he was the Third Secretary of the Embassy of the Federal Republic of Somalia in Kenya. He had a diplomatic passport and had been issued with a diplomatic identity card by the Kenya Government recognizing him as such. The Applicant stated that pursuant to his diplomatic immunity that was recognized by the Vienna Convention on Diplomatic Relations, the Privileges and Immunities Act and the Constitution of Kenya, he had absolute immunity from being subjected to any criminal prosecution without the Federal Republic of Somalia expressly waiving that immunity. In breach of his diplomatic immunity, the Applicant averred that he had been charged, inter alia, for allegedly commissioning a terrorist act contrary to Section 4(1) of The Prevention of Terrorism Act 2012.  The Applicant contended that he could not be charged with any criminal offence in Kenya as long as he was a diplomatic agent in Kenya of the Federal Republic of Somalia. The Applicant averred that even if his diplomatic status was disputed, he was entitled to exercise his rights and fundamental freedom as provided by the Constitution. In that regard, the Applicant specifically stated that the decision by the trial court to deny him bail pending trial as guaranteed by the Constitution amounted to breach of his fundamental right to fair trial. The Applicant urged the court, if it was inclined not to uphold his diplomatic immunity, to at the very least, release him on bail pending trial.

Issues:

  1. Whether a diplomatic status conferred by a foreign government on a person who held dual citizenship, including the citizenship of the host country, could invoke diplomatic immunity to shield him from both criminal and civil liability before courts of the host country
  2. Whether the Applicant was entitled to bail pending trial.Read More...

Relevant Provisions of the Law
Vienna Convention on Diplomatic Relations, 1961
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

Constitution of Kenya, 2010
Article 49 (1) (h)
49. Rights of arrested persons
(1) An arrested person has the right—
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

Held:

  1. The instant Court was not being called upon to make a declaration in regard to the nationality of the Applicant. From the documents availed to the court, the Applicant could well have been a dual national of Kenya and Somalia. The instant Court could not render any decision regarding the authenticity or otherwise of the identity documents issued to the Applicant by the Republic of Somalia and the Republic of Kenya.
  2. The Kenya Government, through the Director of Public Prosecutions had challenged the validity of the Kenyan identity card and the passport issued to the Applicant. That issue was pending determination by the trial court. In the circumstances of the application, the Applicant appeared to have authentic identification documents issued by the Republic of Somalia and the Republic of Kenya. In that regard, the Applicant could well have been a diplomat employed by the Embassy of the Federal Republic of Somalia in Nairobi Kenya. He was also a Kenyan Citizen.
  3. If the Applicant had only the nationality of the Republic of Somalia, the Court could have, without any hesitation held that the Applicant had diplomatic status which conferred him immunity from both civil and criminal process as recognized under the Privileges and Immunities Act. However, the Applicant prima facie held dual citizenship as recognized in article 16 of the Constitution of Kenya.
  4. The issue for determination was whether a diplomatic status conferred by a foreign government on a person, who prima facie held dual citizenship, including the Kenyan citizenship, could invoke diplomatic immunity to shield him from both criminal and civil liability before Kenyan courts. The Applicant’s diplomatic status could only be invoked in a third country other than Somalia and Kenya. That was because, as a prima facie citizen of both countries, he could not use the diplomatic status conferred to him by one of the two countries to escape criminal or civil liability before the municipal courts of either country.
  5. The Applicant, being prima facie a Kenyan citizen, could not invoke diplomatic status conferred upon him by another country which had conferred him citizenship to claim immunity from both criminal and civil processes in Kenya. The Vienna Convention on Diplomatic Relations and the Privileges and Immunities Act had not contemplated that a Kenyan citizen having diplomatic status conferred by another country in Kenya could use such status to shield himself from criminal or civil liability.
  6. The Applicant’s application to the effect that he held diplomatic status conferred to him by the Federal Republic of Somalia and therefore had immunity from being subjected to a criminal charge before a Kenyan court lacked merit and was dismissed.
  7. As regards the Applicant’s application to be released on bail pending trial, the trial had substantially proceeded and was about to be concluded. The Applicant was facing a serious charge that could, if convicted, result in his incarceration for a long period of time. The trial Court could not be faulted for denying the Applicant bail pending trial. The nature of the charges brought against the Applicant constituted compelling reasons as contemplated under article 49(1) (h) of the Constitution of Kenya to deny him bail pending trial.

Application dismissed.

CONSTITUTIONAL LAW The term of office of the Members of County Assemblies(MCAs), unlike the term of office of holders of other elective offices is five years

Andrew Kiplimo Sang Muge & 2 Others .vs. Independence Electoral and Boundaries Commission & Another
Petition No. 576 of 2015
(as consolidated with Petition 118 of 2016 and Petition 148 of 2016)
High Court of Kenya at Nairobi
E.M. Muriithi, J
April 27, 2017
Reported by Chelimo Eunice

Download the Decision

Constitutional Law – elections-general elections– date for the general election-elections of Members of County Assemblies (MCAs)-tenure of MCAs- whether the tenure of MCAs was different from the tenure of the President, Governors, Senators and Members of Parliament- whether IEBC acted in accordance with the Constitution in appointing the August 8, 2017 as the date for the general election-whether IEBC had the mandate to alter the tenure of MCAs without a referendum-Constitution of Kenya, 2010, articles 88, 102(1), 165 (3) (d) (iii), 180(1), 194 (1) (f) and 255.
Constitutional Law-interpretation of the Constitution-interpretation of articles 177 (1) (a) and 177 (4) of the Constitution-whether there was a conflict between article 177 (1) (a) which provided that election of MCAs be held on the same date as the election of Members of Parliament on the 2nd Tuesday of August of every fifth year and article 177 (4) which provided for the term of the MCAs as a period of five years- Constitution of Kenya, 2010, articles177 (1) (a) and 194 (1) (f).
Constitutional Law-fundamental rights and freedoms-right to property-whether holding the elections for the position and office of the MCAs on August 8, 2017, would constitute deprivation of their property without compensation-whether the MCAs were entitled to damages for loss of income for their reduced term of service- Constitution of Kenya, 2010, articles 38(3)(c),177 (1) (a), and 177 (4).
Jurisdiction- jurisdiction of the High Court-jurisdiction of the High Court vis-à-vis jurisdiction of the Employment and Labour Court (ELRC) in the enforcement of the Bill of Rights touching on labour and employment matters-whether the High Court had jurisdiction to determine the issue of compensation in salary for MCAs for their reduced term of service -Constitution of Kenya, 2010, articles 22, 162(2)(a) and 165.
Jurisdiction-jurisdiction of the High Court-jurisdiction of the High Court on the question of the date for general election-whether the High Court had jurisdiction to deal with the question of the date for the general election- Constitution of Kenya, 2010, articles 88(4)(e), 165 and177 (1) (a); Elections Act, sections 19 (2), 74 and 77.

Brief facts:
The Petitioners challenged the general election date appointed by IEBC as August 8, 2017, with regard to the election of Members of the County Assemblies (MCAs), claiming that the tenure of the MCAs was fixed by article 177(4) of the Constitution as a term of five (5) years. It was contended that the effect of holding of the general elections on August 8, 2017 was unconstitutionally reducing the term by a period of 8 months. They pointed to the conflict of articles 177 (1) (a) and article 177 (4). It was contended that in accordance with article 255, the tenure of the MCAs could only be altered by an amendment to the Constitution through a referendum.

The IEBC responded that the petitions were premature as the notice of the holding of the election had not been gazetted in the Kenya Gazette; that the Court lacked jurisdiction to deal with a question of the date for the general election and that the election date of August 8, 2017 was in accordance with the provisions of article 177(1)(a) of the Constitution and that to uphold the petition would be discrimination to the offices of the President, Governor and MPs. According to the 2nd Respondent, the matters before the Court were res judicataby virtue of the decision in John Harun Mwau .v. Attorney general & Others [2012] eKLR.

Issues:

  1. Whether the High Court had jurisdiction to deal with the question of the date for the general election.
  2. Whether IEBC acted in accordance with the Constitution in appointing the August 8, 2017 as the date for the general election.
  3. Whether the questions as to the tenure of MCAs and date for second election under the 2010 Constitution were res judicata.
  4. What was the term of office of the MCAs and was it different from the term of office of holders of other elective offices.
  5. Whether there was a conflict between the provisions of articles 177 (1) (a) and 177 (4) of the Constitution.
  6. Whether holding the elections for the position and office of the MCAs on August 8, 2017, would constitute deprivation of their property without compensation.
  7. Whether the High Court had jurisdiction to determine the issue of compensation in salary for MCAs for their reduced term of service.
  8. Whether the MCAs were entitled to damages for loss of income for their reduced term of service.
  9. Whether the petitions were premature as the notice of the holding of the election had not been gazetted in the Kenya Gazette.
Read More...

Held:

  1. The interpretation of the question of whether the IEBC acted in accordance with the Constitution in appointing the August 8, 2017 as the date for the general election, felt within the jurisdictional competence of article 165 (3) (d) (iii) and thus the High Court had jurisdiction to entertain the matter.
  2. The question of compensation in salary for the MCAs reduced term of service by reason of the election being held on the date of 2nd Tuesday of August 2017 was not a matter for the Salaries and Remuneration Commission.
  3. The petition was not a question of determination of the amount of compensation to be paid for services rendered by the MCAs as state officers but rather a question whether for the reduced term of service of MCAs, the MCAs were entitled to damages for loss of income for the period by which their term was consequently reduced.
  4. In the John Harun Mwau’s case, the Court did not deal with the question as to the term of the MCAs under article 177 (4) of the Constitution. It did not consider or determine the effect of article 177(4) on the tenure of the MCAs. Accordingly, the decision therein could not operate res judicata to the instant proceedings.
  5. The dispute in the consolidated petitions was fresh and unrelated to the John Harun Mwau decision. The question of the date for second election under the Constitution of Kenya, 2010 was obiter dicta, the question before the Court then being only the date of the first general election under the Constitution of Kenya, 2010.
  6. The question of enforcement of rights and fundamental freedoms, even those touching on the employment and labour was within the jurisdictional competence of the High Court in its Bill of Rights Jurisdiction under article 22 of the Constitution. The High Court had concurrent and coordinate jurisdiction with the Employment and Labour Court (ELRC) in the enforcement of the Bill of Rights touching on labour and employment matters.
  7. Article 88 (4) of the Constitution provided for the jurisdiction of the IEBC, which included settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. The instant petitions were however not merely an electoral dispute arising from or touching on an election but a matter of interpretation of provisions of the Constitution dealing with the election date and tenure of office of the MCAs.
  8. Jurisdiction of the High Court in enforcement of the Bill of Rights or other provisions of the Constitution, respectively under articles 22 and 258 of the Constitution, was exercisable both for actual violations as well as threatened violation. For that reason, the Respondent’s objection that the petitions were premature for want of official public notification by gazettement in the Kenya Gazette was not well founded. Articles 22 and 258 gave locus to a person to petition for redress in a proper case where the Constitution had not only been violated or infringed but also where it was threatened with violation or infringement. The announcement of the date without gazette was sufficient to trigger the cause of action in threatened breach of the Constitution.
  9. There was no dispute that August 8, 2017 had been appointed by the IEBC as the date for the second General Election under the Constitution of Kenya, 2010 including the election of MCAs.
  10. In accordance with the decree of article 102 (1) of the Constitution, the term of each House of Parliament expires on the date of the next general election. That contrasted with the provisions of the former Constitution of Kenya (1969) where MPs had, under section 59 (4) thereof, a specific tenure of five years, subject to dissolution of Parliament by the President or upon a vote of no confidence as provided for in section 59 (2) and (3) of the 1969 Constitution.
  11. There had been a misconception that MPs under the Constitution of Kenya, 2010 had a definite period of five years, which accordingly delimited their tenure and reduction of which by earlier elections should, therefore, attract compensation for the loss of months of their tenure. While the repealed Constitution provided for MPs tenure as a fixed term of five years, the Constitution of Kenya, 2010 provided for a tenure for the MPs reckoned by reference to a date, being the 2nd Tuesday in August, in every fifth year, rather than to a fixed term. For that reason, the holding in John Harun Mwau’s decision that the term for the next President, MPs, Governors and MCAs would be shorter than five years as a consequence of the transitional provisions appeared to be erroneous. The President, MPs and Governors did not have a five year term under the Constitution of Kenya, 2010.
  12. There was no tenure for the MPs after the 2nd Tuesday in August, in every fifth year unless Parliament in times of war extends the life of Parliament for up to 12 months in accordance with article 102 (3) of the Constitution.
  13. For the MCAs, the position was muddied by the provisions of article 177 (4) of the Constitution, which provided for a fixed term of five years. There was need to resolve that apparent conflict in article 177(1) (a) and article 177 (4) of the Constitution. It was contended that the Offices of the MCAs did not become vacant until in accordance with article 194 (1) (f), which article provided that the office of a MCA became vacant at the end of the term of the assembly.
  14. One provision of the Constitution could not be unconstitutional as measured against another. Importantly, there was, a case for amendment of the Constitution to align the terms of all elective offices, but that did not mean that the provision defining the term of MCAs as five years was unconstitutionally discriminatory of the holders of other elective offices.
  15. The term of the office of the MCAs was plainly set out in unambiguous constitutional text of articles 177 (4) and 194 (f) of the Constitution so that a County Assembly was elected for a term of five years expiring at the end of the term of the assembly.
  16. In accordance with the Mischief Rule of interpretation of statute, the provisions of the Constitution for ascertainment of the election date were understandably geared towards certainty of the election date, lest it be used, as in the past, a secret weapon by the ruling political party against other parties to the election.
  17. All the constitutional provisions for elections under the Constitution of Kenya, 2010 appointed the 2nd Tuesday of August of the fifth year as the election date and decreed that all the elections for the various elective positions in the national and county levels had to be held on the very same date. The general election cycle for MPs was set out in article 101 of the Constitution, election of the President was provided for under article 136, whereas election of county governor was provided for under article 180. For County Assembly, the election cycle was aligned to that of the MPs by the provisions of article 177 (1) (a) of the Constitution. Any other interpretation would lead to constitutional chaos.
  18. The President, MPs and the Governors would be elected on one date while the County Assembly would have to await eight months for new MCAs to be elected, and the new governor, who would have a fresh mandate of the people, would serve under the accountability of old MCAs whose mandate traced back to the general elections of 2013. The Constitution would not support such an absurdity.
  19. Harmony and consistency in constitutional provisions had to dictate that the election date for all the elections of the general election under the Constitution be held as stipulated on the same day as a general election of MPs, being the 2nd Tuesday in August, in every fifth year.
  20. In interpreting the Constitution, the Constitution as a whole was to be interpreted in accordance with principles set out in article 259, which required a purposive interpretation.
  21. A Constitution, and in particular that part which protected and entrenched fundamental rights and freedoms to which all persons were entitled, was to be given a generous and purposive construction.
  22. It was not sought to have one constitutional provision declared unconstitutional as against another. The object of harmonization was to give effect to the both or more constitutional provisions in a manner that made constitutional sense in terms of the purposes of the Constitution. If the two provisions, the subject of the instant inquiry were put side by side, it would be clear that they could not both be given effect at the same time. Yet they relate to the same constitutional transaction of the General Election. Article 177 (1) (a) provided that the elections for the County Assembly be held at the same time with the elections for MPs on the 2nd Tuesday of August of every fifth year. Article 177 (4) required a period of five years between the term of one County Assembly and another.
  23. The Court should look for the interpretation that did least damage to the constitutional framework. If effect was given to the provision requiring five-year tenure of the County Assembly, it would mean that the elections of the MCAs would always be held separately and after the elections of the MPs, because the 2nd Tuesday of August would always come before the expiry of the five-year term. It would be impossible to give effect to article 177(4) and maintain the election on the same day as a general election of MPs, being the 2nd Tuesday in August, in every fifth year as required by article 177 (1) (a) of the Constitution.
  24. Whenever the elections are held, the period of five years would always end after the second Tuesday of August of the fifth year, that was on the day before the commencement of the same date five years later according to the provisions of reckoning time under Article 259 (5) of the Constitution.
  25. For a County Assembly elected on March 3, 2013, their term of office in accordance with Article 177(4) of the Constitution would end on March 3, 2018. The second Tuesday of August of the fifth year from 2013 would remain in all instances the 8th August 2017 well before the expiry of the five year period from whatever date in 2013. The fifth year prescribed by the Constitution would always begin at the end of the fourth year from the date of the previous election, and the month of August was the two months after the mid fifth year not at the end of it to allow it to coincide with the end of the five year term.
  26. Article 38 (3) (c) of the Constitution in relation to elections provided for a right to hold elective office. The right to hold office was a right to property in the widest sense of the property including the salary and emoluments earned by virtue of holding such office and an aggrieved party would be entitled to claim damages for loss of property, or in proper case an injunction to stop the deprivation of property. The term property in the Constitution should to be construed widely.
  27. In the instant case, however, the loss could be ascertained and remedied in an award of damages for loss of income for the uncompleted period of the tenure of office.
  28. While the petitioners were not entitled to any order affecting the constitutionally ordained election date of the 2nd Tuesday of August every fifth year, which felt in the instant case on August 8, 2017, the Petitioners were entitled to an order for the payment as damages for loss of income for the uncompleted term of office cut short by reason of the elections being held before the expiry of their constitutional term of five years under article 177 (4) of the Constitution.
  29. The Court had to make determinations that help the Constitution to keep its constitutional promises under the doctrine of the rule of law and constitutionalism or limited government. The two promises of the Constitution in that regard were: one, that the election date for elective positions in the national and local governments had to be held on same date on a date ascertainable by reference to the 2nd Tuesday of August every fifth year in accordance with articles 102, 136 and 177 (1) (a) of the Constitution; and two, the promise of the right to vote that once elected the successful candidate had to hold office for full tenure of the particular elective office, in accordance with article 38 (2) of the Constitution.
  30. The constitutional promises had to be reconciled by upholding the desired same-known-date election to defeat any machinations for the use of the election date as the incumbent’s or ruling party’s secret weapon, while at the same time redressing the consequential loss of tenure for the MCAs who were the only affected cadre of the elected officials in the general election.
  31. The loss suffered by the MCAs would be remedied by payment in money of their opportunity cost resulting from the holding of the general election in accordance with the Constitution before the expiry of their constitutional term of office.
  32. There was no need for joinder of the Salaries and Remuneration Commission as the amounts for the MCAs salary and other emoluments were known and ascertainable. What required to be determined was the exact amount of compensation payable having regard to the fact that some emoluments as disbursements and reimbursements would not become or remain payable in the case where the MCAs were not actively engaged in the daily running or operations of the affairs of their offices for the remainder of period of their tenure following the holding of the general elections of August 8, 2017. Such allowances had to be discounted from the payments made to the MCAs for the remainder of the period of their constitutional term.
  33. To reduce the burden on the tax payer in public interest as in the instant case where the payments could not have been budgeted for in advance, damages for loss of income being the monthly salary and applicable emoluments for the remainder eight-month period was to be paid not as lump-sum damages but as monthly dues in arrears in the same manner as it would have been paid in the course of the MCAs’ tenure had their term not been reduced by the general election.
  34. The Court was conscious that its findings could be unpopular with a section of Kenyans who had preconceived notions about the elections, that it reminded Kenyans that its undertaking was not to write or re-write the Constitution to suit popular opinion. That its responsibility was to interpret the Constitution in a manner that remained faithful to its letter and spirit and gave effect to its objectives.
  35. The duty to pay for the loss of income suffered by the MCAs had to be borne by the taxpayer. The public could understandably feel aggrieved that it was required to meet salaries and emoluments for MCAs for period for which they did not provide service as office holders. There was great public interest, however, in the observation of the article 10 principle of the rule of law, which had to mean that rights accrued under the Constitution and statute had to be upheld. The MCAs suffered a reduced opportunity to remain in office for the full term of their constitutional tenure consistently with their right to hold office under article 38 (2) of the Constitution and, for that reason, they were entitled to compensation for the lost income for the period.
  36. There was need for amendment of the Constitution to align the tenure of the MCAs with that of the MPs and other elective state officers of the National and County Governments in order not only to remove the liability to pay for the remainder of the MCAs term of office that would always remain unexpired when elections were held as they had to be on the 2nd Tuesday of August of every fifth year, but also to clarify the term of office of MCAs to coincide with those of other constitutional elective state officers . The Constitution could be amended to delete the provisions of article 177 (4) without affecting the provisions of article 177 (1) (a) which provided for election of MCAs together with that of the MPs on the 2nd Tuesday of August of every fifth year. Whether such amendment required the referral to a referendum under article 255 of the Constitution was not before the instant Court for determination.
  37. The instant decision could not affect the holding of the general elections scheduled for August 8, 2017, and the payment of salary and other applicable emoluments could be per month in arrears at the end of every month for the period of eight months by which the tenure of the office of the MCAs had been reduced.
  38. In accordance with order 21 rule 8 (4) of the Civil Procedure Rules, 2010 the parties were at liberty to move the Court for settlement of terms of the decree of the Court as to the payable emoluments consistent with circumstances of the case where the MCAs were not performing the daily operations of the Office.

The consolidated petitions partly allowed.
Orders;

  1. Declaration that there existed a conflict between article 177(4) and article 177(1) of the Constitution.
  2. Declaration that a County Government Assembly was elected for a term of five years.
  3. Declaration that the term of office of the existing Members of the County Assemblies in the Republic of Kenya, would end on the March 5, 2018, being five (5) years from the date of the general elections held on the March 4, 2013, in accordance with the provisions of article 177(4) of the Constitution.
  4. Declaration that holding the elections for the position and office of the Members of the County Assemblies in the Republic of Kenya, on August 8, 2017, would constitute deprivation of their property without compensation, being the accrued terms of service of the existing Members of the County Assemblies under article 40 of the Constitution of Kenya.
  5. Damages awarded for loss and injury arising from the premature end of term of office of the existing Members of County Assemblies in the Republic of Kenya, should the next general elections for the position and office of Members of the County Assemblies, be held on August 8, 2017, as declared by the IEBC.
  6. There were no order as to costs.
STATUTES The Insurance Regulatory Authority does not have the power to set prices of premiums for the Insurance Industry

The Commission on Administrative Justice .vs. The Insurance Regulatory Authority & Another
Petition No. 622 of 2014
High Court of Kenya at Nairobi
J.M. Mativo, J
March 20, 2017
Reported by Chelimo Eunice
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Statutes-interpretation of statutes- Insurance Act-interpretation of section 3A of the Insurance Act on statutory powers of the Insurance Regulatory Authority (IRA)- whether the statutory powers in the said section included the prescription of mandatory prices and underwriting price guidelines for the insurance industry- whether prescription of mandatory prices for the insurance industry by IRA was contrary to the existing legislation- Insurance Act, section 3A.

Judicial Review nature of judicial review –scope of judicial review-public vis-à-vis private power dichotomy in judicial review-recognition of the Constitution as the basis of judicial review-whether there was a distinction between the remedy of judicial review as provided under the Constitution and under common law judicial review as a relief to a claim of violation of a constitutional right- Constitution of Kenya, 2010, articles 23 and 47.

Jurisdiction-jurisdiction of the High Court – supervisory jurisdiction of the High Court – jurisdiction of the High Court to deal with the issue of violation of constitutional rights- supervisory jurisdiction of the High Court over any person, body or authority exercising a judicial or quasi-judicial function- Constitution of Kenya, 2010, articles 23 and 165.

Brief facts:
The Petitioner averred that the 1st Respondent, purporting to exercise its statutory powers, issued Circular No. IC 07/2009 dated 20/11/2009 giving varied and wide ranging directive setting prices of premiums which all commercial insurance companies in the insurance industry would charge the Kenya public in respect of all forms of Motor Vehicle Insurance Cover and services provided. It was averred, inter alia, that the guidelines offended articles 2, 3, 27, 43, 46 & 47 and schedule VI of the Constitution and that the Insurance Act and the Insurance Amendment Act did not give the 1st Respondent power to prescribe price guidelines and that the guidelines had never been gazetted to acquire any legal validity, hence they were unlawful, unconstitutional, null and void.
The 1st Respondent opposed the petition averring, among others, that the alleged violation of the Constitution was imprecise and that articles 27, 43, 46 and 47 alleged to have been contravened did not have a retrospective effect and that its statutory powers were wide enough to include to manage, curb, govern, administer or oversee the general operations of the insurance industry.

Issues:

  1. Whether High Court had supervisory jurisdiction over insurance business, which business was primarily a matter of private contract.
  2. Whether the 1st Respondent acted outside its statutory powers in issuing the Motor Insurance Underwriting Guidelines.
  3. Whether ungazetted guidelines could have the force of law.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Sixth Schedule, Part 2: Existing Obligations, Laws and Rights
Rule 7; Existing laws;

(1) All law in force immediately before the effective date continues in force and shall be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution.
(2)
If, with respect to any particular matter—

(a) a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and
(b)
a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer,

the provisions of this Constitution prevail to the extent of the conflict.

Insurance Act, Cap 487 Laws of Kenya;
Section 3A; Objects and functions of the Authority

(1) The objects and functions of the Authority shall be to;

(a) ensure the effective administration, supervision, regulation and control of insurance and reinsurance business in Kenya;
(b)
formulate and enforce standards for the conduct of insurance and reinsurance business in Kenya;
(c)
license all persons involved in or connected with insurance business, including insurance and reinsurance companies, insurance and reinsurance intermediaries, loss adjusters and assessors, risk surveyors and valuers;
(d)

(e) …
(f) advise the Government on the national policy to be followed in order to ensure adequate insurance protection and security for national assets and national properties;
(g) issue supervisory guidelines and prudential standards from time to time, for the better administration of the insurance business of persons licensed under this Act;
(h) conduct inquiries and share information with other regulatory authorities and to carry out any other related activities in furtherance of its supervisory role;
(h) undertake such other functions as may be conferred on it by this Act or by any other written law.

Held:

  1. Part 2 of the sixth schedule of the Constitution made it clear that all law had to conform to the constitutional edifice. The Respondents' action, the subject of the instant petition had to meet the constitutional threshold prescribed by the Constitution.
  2. Article 165(1) of the Constitution established the High Court and vested in it power to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened and the jurisdiction to hear any question respecting the interpretation of the Constitution. Article 23 further accorded the High Court jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
  3. Pursuant to article 165 (6) and (7), the High Court had supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function and while exercising the supervisory jurisdiction.
  4. Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acted in excess of their legal authority, they were subject to the controlling jurisdiction of the Court.
  5. Article 23 (3) of the Constitution provided that the Court could grant appropriate relief, including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right, compensation and an order of judicial review.
  6. Judicial review was available as relief to a claim of violation of the rights and freedoms guaranteed in the Constitution. The Constitution had expressly granted the High Court jurisdiction over any person, body or authority exercising a quasi-judicial function. The point of focus was whether the function was judicial or quasi-judicial and affected constitutional rights including the right to fair administrative action under article 47, or the right to natural justice under article 50.
  7. Any decision making process that did not adhere to the constitutional tests either on constitutional rights or on procedural fairness, could not stand court scrutiny. The power of any judicial review was founded in the Constitution as opposed to the principle of the possibility of judicial review of legislation. This was entrenched in articles 23(3)(d) and 165(3)(d)) of the Constitution. The Constitution had also entrenched the right of fair administrative action under article 47.
  8. Common law principles that previously provided the grounds for judicial review of public power had been subsumed under the Constitution and, insofar as they could continue to be relevant to judicial review, they gained their force from the Constitution. In judicial review of public power, the two were intertwined and did not constitute separate concepts. There were not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution which was the supreme law, and all law, including the common law, derived its force from the Constitution and was subject to constitutional control.
  9. The entrenchment of the power of judicial review, as a constitutional principle could of necessity expand the scope of the remedy. Parties, who were once denied judicial review on the basis of the public-private power dichotomy, could access judicial review if the person, body or authority against whom it was claimed exercised a quasi-judicial function or a function that was likely to affect his rights. An order of judicial review was one of the reliefs for violation of fundamentals rights and freedoms under article 23(3)(f). Court decisions needed to show strands of the recognition of the Constitution as the basis of judicial review.
  10. Judicial review was no longer a common law prerogative directed purely at public bodies to enforce the will of Parliament, but was a constitutional principle to safeguard the constitutional principles, values and purposes. The judicial review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power were regulated by the Constitution.
  11. A statutory body was bound to adhere to the mandate stipulated in the statute creating it and its actions had to conform to the constitutional prescriptions as provided in the Constitution.
  12. Insurance regulatory law was the body of statutory law, administrative regulations and jurisprudence that governed and regulated the insurance industry and those engaged in the business of insurance. Insurance regulatory law was primarily enforced through regulations, rules and directives by state insurance departments as authorized and directed by statutory law enacted by the legislature.
  13. Insurance was characterized as a business vested or affected with the public interest. The business of insurance, although primarily a matter of private contract, was nevertheless of such concern to the public as a whole that it was subject to governmental regulation to protect the public’s interests. Therefore, the fundamental purpose of insurance regulatory law was to protect the public as insurance consumers and policy holders.
  14. Pursuant to the Insurance Act, functions of the 1st Respondent were, among others, to ensure effective regulation, supervision, development of insurance in Kenya, to formulate and enforce standards. The regulation entailed ensuring that players comply with the provisions of the Insurance Act. Supervision meant the oversight function the 1st Respondent exercised over the operations of insurance companies.
  15. There was nothing to suggest that regulation and supervision entailed setting prices. There was no express or implied mandate in the statute to suggest that the 1st Respondent had powers to issue the impugned guidelines.
  16. Broadly, in order to succeed, the Applicant needed to show either: -
    1. The person or body was under a legal duty to act or make a decision in certain way and was unlawfully refusing or failing to do so; or
    2. A decision or action that had been taken was beyond the powers ('ultra vires') of the person or body responsible for it.
  17. Decision makers had to understand the law that regulated them. If they fail to follow the law properly, their decision, action or failure to act would be illegal. An action or decision could be illegal on the basis that the public body had no power to take that action or decision, or had acted beyond its powers. The 1st Respondent acted outside its powers as stipulated under the law.
  18. Courts had to intervene to quash a decision if it considered it to be demonstrably unreasonable as to constitute irrationality or perversity on the part of the decision maker.
  19. Judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and had grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure and became the most powerful enforcement of constitutionalism, one of the greatest promoters of the rule of law and one of the greatest and most powerful tools against abuse of power and arbitrariness. The role of the Court was to ensure that public bodies did not exercise their powers unlawfully.
  20. The 1st Respondent acted outside its statutory powers. It had not been disputed that the guidelines in question had never been gazetted, hence they could not have the force of law.

Petition allowed.
Orders:

  1. A declaration that Motor Insurance Underwriting Guidelines issued by the 1st Respondent under circular No. IC 07/2009 dated 20/11/2009 were illegal, unconstitutional and therefore null and void for all purposes.
  2. A declaration that the 1st Respondent had no legal, statutory and or constitutional mandate to issue Motor Underwriting Guidelines under circular No. IC 07/2009 dated 20/11/2009 or any other similar Guidelines.
  3. An order of certiorari issued to quash the Motor Insurance Underwriting Guidelines issued by the 1st Respondent under circular No. IC 07/2009 dated 20/11/2009.
  4. The 1st Respondent was to pay costs of the petition to the Petitioner.

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The Kenya Law Team

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