Weekly Newsletter 001/2018

Weekly Newsletter 001/2018



Kenya Law

Weekly Newsletter


 
Circumstances under which a Body Corporate may be considered as a Citizen for the Purpose of Actualizing the Right to Access Information
Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR
Constitutional Petition 468 of 2017
High Court of Kenya at Nairobi
E  C Mwita, J
November 8, 2017
Reported by John Ribia and Njeri Mweha
Download the Decision
Constitutional law - fundamental rights and freedoms - right to access to information - right of access to information limited to citizens - whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act. – Constitution of Kenya 2010 article 35; Access to Information Act section 2.
Constitutional Law fundamental rights and freedoms - duty of public entities to provide information to citizens - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information - whether a public entity had a constitutional obligation under article 35(1)(a) and (b) of the Constitution of Kenya, 2010 to provide information to  citizens - Constitution of Kenya, 2010, article 35; Access to Information Act sections 2, 4, 5 and 8.
Constitutional Lawnational values and principles of governance – rule of law – participation of the people – human rights – good governance – transparency – accountability - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability – Constitution of Kenya, 2010 article 10.
Constitutional Law – leadership and integrity – obligations imposed on public entities and State officers – responsibilities of leadership – conduct of state officers - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act – Constituion of Kenya, 2010 articles 73(1) and 75(1);Leadership and Integrity Act section 3;  Public Officers Ethics Act sections 8, 9 and 10.
Brief facts
On diverse dates in 2017, the 1st Respondent published advertisements in the media, through billboards and in business messaging or tags named ’GoK Delivers’ and #Jubilee Delivers. The Petitioner in pursuit of its right to access information, wrote to the 1st Respondent seeking information on how many advertisements had been published through what media schedules and dates when it was done, copies of the documents advertised, total cost incurred and information on the relevant government accounting office(r) and the individual or government agency that met the cost. The information sought was to cover the period between May 25, 2017 to August 16, 2017.
The letter was delivered but no response was received from the Respondents.  That forced the Petitioner to file the instant petition to compel the Respondents to furnish it with the information.
 
Issues:
  1. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information.
  2. Whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act.
  3. Whether a public entity had a constitutional obligation under article 35(1) (a) and (b) of the Constitution of Kenya, 2010 to provide information to a citizen.
  4. Whether article 35 of the Constitution and section 5 of the Access to Information Act set out conditions for accessing information.
  5. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability provided under article 10 of the Constitution.
  6. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
  7. Whether the jurisdiction of the High Court to determine petitions that sought to challenge the violations of the right to access information was pegged on the condition that a report had to be made before the Commission on Administrative Justice.
Relevant Provisions of the Law
The Constitution of Kenya 2010
Article 35
Access to Information
(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

Article 165(3)
High Court
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
 
Access to Information Act
Section 2
Interpretation
"citizen" means any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.
"exempt information" means information that may be withheld by a public entity or private body in accordance with section 6;
“public entity” means—
(a) any public office, as defined in Article 260 of the Constitution; or
(b) any entity performing a function within a commission, office, agency or other body established under the Constitution
 
Section 4
Right to information
(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—
(a) the State; and
(b) another person and where that information is required for the exercise
or protection of any right or fundamental freedom.
(2) Subject to this Act, every citizen's right to access information is not affected
by—
(a) any reason the person gives for seeking access; or
(b) the public entity's belief as to what are the person's reasons for seeking access.
(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
 
Section 5
Disclosure of information by public entities
(1) Subject to section 6, a public entity shall—
(a) facilitate access to information held by such entity and which information may include—
(i) the particulars of its organization, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) salary scales of its officers by grade;
(v) the norms set by it for the discharge of its functions;
(vi) guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person;
(b) during the year commencing on first January next following the first publication of information under paragraph (a), and during each succeeding year, cause to be published statements updating the information contained in the previous statement or statements published under that paragraph;
(c) publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles;
(d) provide to any person the reasons for any decision taken by it in relation to that person;
(e) upon signing any contract, publish on its website or through other suitable media the following particulars in respect of the contract entered into—
(i) the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;
(ii) the contract sum;
(iii) the name of the service provider, contractor or individual to whom the contract has been granted; and
(iv) the periods within which the contract shall be completed.
(2) Information shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used.
(3) At a minimum, the material referred to in subsection (1) shall be made
available—
(a) for inspection by any person without charge;
(b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be
made; and
(c) on the internet, provided that the materials are held by the authority in electronic form.
(4) Subsection (1) (a) shall come into operation twelve months after the
commencement of this Act.
 
Section 8
Application for access
(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the
public officer or any other official to understand what information is being requested.
(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability,
the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.
(3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.
(4) A public entity may prescribe a form for making an application to access
information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.
 
Section 9
Processing of application
(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application
(2) Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.
(3) The information officer to whom a request is made under subsection (2)  may extend the period for response on a single occasion for a period of not more than fourteen days if—
(a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or
(b) consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time.
(4) As soon as the information access officer has made a decision as to whether
to provide access to information, he or she shall immediately communicate the
decision to the requester, indicating—
(a) whether or not the public entity or private body holds the information sought;
(b) whether the request for information is approved:
(c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and
(d) if the request is declined, a statement about how the requester may appeal to the Commission";
(5) A public officer referred to in subsection (1) may seek the assistance of any
other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance.
(6) Where the applicant does not receive a response to an application within
the period stated in subsection (1), the application shall be deemed to have been rejected.
 
Held:
  1. The right to access information was a right that the individual had to access information held by public authorities acting on behalf of the state.It was an important right for the proper and democratic conduct of government affairs, for this right enabled citizens to participate in that governance.
  2. Successful and effective public participation in governance largely depended on the citizen’s ability to access information held by public authorities. Where they did not know what was happening in their government and or if actions of those in government were hidden from them, they could not be able to take meaningful part in their country’s governance. In that context, the right to access information became a foundational human right upon which other rights had to flow. For citizens to protect their other rights, the right to access information became critical for any meaningful and effective participation in the democratic governance of their country.
  3. The importance of the right to access information was fully appreciated by the drafters of the Constitution of Kenya, 2010 and they dutifully included article 35 to make the right attainable as the foundation for an open, responsive, accountable and democratic government and its institutions. The Constitution granted citizens’ access to information as a constitutional right and only the same Constitution could limit that access.
  4. The Constitution was clear that information held by the State was accessible by citizens and that information was available on request. What that meant was that once a citizen placed a request to access information, the information was to be availed to the citizen without delay.
  5. Article 35 of the Constitution did not in any way place conditions for accessing information. On the other hand, section 5 of the Access to Information Act (the Act) further provided that a public entity should facilitate access to information held by it. Under section 8 of the Act, a citizen who wanted to access information had to do so in writing with sufficient details and particulars to enable the public officer to understand what information was being requested. The Act was also sufficiently clear that the information should be given without delay and at no fee, notwithstanding why the citizen wanted to access information. Section 9 of the Act stated that a decision on the request to access information should be made and communicated within 21 days. The communication should include whether the public entity had the information and whether it would provide it.
  6. The right to access information was inviolable because it was neither granted nor grantable by the State. It was a right granted by the Constitution and was protected by the same Constitution.
  7. State organs or public entities had a constitutional obligation to provide information to citizens as of right under the provisions of article 35(1)(a) of the Constitution. They could not escape the constitutional requirement.
  8. The right to access information was a basis for accountability, responsiveness and openness. To give effect to the values of accountability, responsiveness and openness, the public had to have access to information held by the state.
  9. The right to access information was also founded on International instruments. Article 19 of the Universal Declaration of Human Rights, article 19(2) of International Convention on Civil and Political Rights and article 9(1) of Africa Charter on Human and Peoples Rights also made the right to information imperative. These international instruments were ratified by Kenya and by virtue of article 2(5) of the Constitution, general rules of international law and any treaties or conventions ratified by Kenya formed part of the law of Kenya.
  10. The State had constitutional obligation, without qualification, to allow citizens access information and they could not be denied that right by the state.
  11. In the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others [2013] eKLR  the Court stated that the right to access information was only available to citizens and in arriving at that conclusion, the Court relied on the decision  of  Famy Care Limited v Public Procurement Administrative Review Board & another & 4 others [2012] eKLR. Both of the above decisions were made before the enactment of Access to Information Act, in 2016.  Section 2 of the Act defined a citizen as any individual who had Kenyan citizenship, and any private entity that was controlled by one or more Kenyan citizens. From the definition, a juristic person whose director(s) was a citizen was considered a citizen for purpose of exercising the right to access to information under article 35(1) (a) of the Constitution as read with section 4 of Access to information the Act.
  12. The Petitioner, by virtue of having Kenyan directors, though a juristic person, was a citizen for purposes of article 35(1)(a) as read with section 4 of  Access to information Act and was entitled to seek and have information as a citizen.
  13. It was up to the Respondents to show how the information sought affected state security and therefore, fell within section 6 of the Act. From the letter dated August 17, 2017, the information sought was about dates, nature of advertisements and copies thereof, the cost of advertisements and who met that cost.
  14. Dates when advertisements were done, nature and copies of advertisements, cost of advertisements and who met the cost of those advertisements could not be information that affected state security. Where a party alleged, like the Respondents had done, that information sought affected state security, it was the duty of that person to show to the satisfaction of the Court that indeed that was the case.  It was not enough for a party to merely allege without showing how, that disclosure of information would affect state security.
  15. There was greater responsibility given the nature of the Constitutional obligation the State, State officers or public bodies had for disclosure. The exercise of the right to information should not require individuals to demonstrate a specific interest in the information. Where a public authority sought to deny access to information, it was to bear the onus of justifying the refusal at each stage of the proceedings. The Access to Information Act was also absolutely clear that information should be disclosed free of charge, the reason for seeking information notwithstanding.
  16. In the instant case no clear legal provision notwithstanding, no access to information was given or reason given; either that the Respondents did not have the information or that they would not disclose the information and give justification for it. The Respondents’ contention that the information sought was limited by section 6(1) (a) and 6(2)(j) of the Access to Information Act could not be accepted. The Respondents did not demonstrate the rationale for that contention given the fact that article 35 had no limitation to the right to access information. They were also under duty to show that the purported limitation fell within the ambit of article 24(1) of the Constitution and that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the importance of the right in the citizens’ quest for public participation in the democratic governance of Kenya.
  17. There was no provision in the Access to Information Act that made a report to the Commission on Administrative Justice (CAJ) a condition precedent to triggering the jurisdiction of the High Court to deal with petitions filed that sought to challenge violations of the right to access information under article 35 of the Constitution. The High Court had unlimited jurisdiction under article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. The Respondents’ contention that the petition was premature was unsustainable.
  18. The Petitioner sought information in exercise of its constitutional right under article 35 of the Constitution.  Even though the law required the public entity to respond to the request within 21 days on whether or not it was in possession of the information and would or would not disclose, the Respondents ignored the law. The Respondents were under both a constitutional and legal obligation to allow the Petitioner to access information in their possession and held on behalf of the public. That was an inviolable constitutional right and that was clear from the language of article 35 of the Constitution. Any limitation had to meet the constitutional test and only then could one raise limitation as a ground for non-disclosure.
  19. Rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State. They attach to persons, all persons, by virtue of their being human and respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey.
  20. The Respondents were under obligation to obey the law and allow the Petitioner access information or where not possible give reasons for that. They failed in both instances thus violated the Petitioner’s rights under the Constitution and the law.
  21. The right to access information was not a fringe right to other rights in the Bill of Rights. It was integral to the democracy conceptualised by the Constitution of Kenya, 2010 in that it encouraged public participation, abhorred secrecy in governance and above all sought to ensure that public power delegated to leaders was not abused.
  22. The Respondents violated the Petitioner’s right of access to information .No effort was made to justify the violation.
 
 
Petition Allowed.
Orders:
  1. Declaration issued that the failure by the 1st and 2nd Respondents to provide information sought under article 35(1) of the Constitution and also to publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of the right to access information.
  2. Declaration issued that the failure by the 1st Respondent to provide information sought under article 35(1)(a) of the Constituion and also publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of article 10 of the Constitution specifically the values of the rule of law, participation of the people, human rights good governance transparency and accountability.
  3. Declaration issued that failure by the 2nd, 3rd and 4th Respondents to provide information sought under article 35(1) (a) and also to publish the information in accordance with article 35(3) thereof was a violation of the obligations imposed on the Respondents by chapter 6 of the Constitution, specifically articles 73(1) and 75(1) of the Constitution, section 3 of the leadership and integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
  4. Order of mandamus issued that compelled the 1st and 2nd Respondents to provide at the Respondents cost, information sought by the Petitioner in their letter to the Respondents dated August 17, 2017.
  5. Costs awarded to the Petitioner.
Kenya Law
Case Updates Issue 001/2018
Case Summaries

CONSTITUTIONAL LAW The regulation requiring candidates in the Advocates Training Programme to complete their studies within a maximum of five years is not unconstitutional.

Ronald Omondi Oimbo v Council of Legal Education
Petition No 347 of 2017
High Court at Nairobi
Constitutional & Human Rights Division
J M Mativo, J
October 31, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-constitutionality of legislative provisions-legal considerations governing determinations as to whether legislative provisions were constitutional-assessing whether a legislative provision went contrary to provisions in the Bill of Rights and whether it entailed a limitation on fundamental rights and freedoms provided for in the Bill of Rights-whether regulation 9 (5) of the Council of Legal Education (Kenya School of Law Regulations), 2009 which provided that candidates in the Advocates Training Programme had a maximum of five years to complete their studies, was constitutional-Constitution of Kenya 2010, article 2(4) & 259.

Brief facts:
The Petitioner was admitted for the Advocates Training Programme at the Kenya School of Law in the academic year 2010/2011. The applicable regulations stipulated that he was required to complete the programme within a maximum of five years. In the year of his admission, he sat for the Bar exams and passed six out of nine units. On his second attempt he passed one out of three units and on the last attempt he passed in none of the remaining two units.
The Petitioner explained that his failure in the last attempt, which was also his last chance under the regulations, was attributable to being unwell. He appealed to the Respondent to allow him to sit for exams in July 2017 but his appeal was rejected. The Petition challenged that refusal to allow him to sit for the exams while stating that it was a violation of his fundamental rights and freedoms.

Issue:

  1. Whether regulation 9 (5) of the Council of Legal Education (Kenya School of Law Regulations), 2009 which provided that a candidate in the Advocates Training Programme would be allowed a maximum of five years within which to complete studies was unconstitutional.
  2. Considerations that the Court would have in determining whether a legislative provision was unconstitutional.Read More...

Held:

  1. At the time the Petitioner sat for the examinations, on November 29, 2016 and December 5, 2016, he did not inform the school authorities that he was unwell. He did not utilize the option of applying to defer the exams on medical grounds.
  2. The letter which the Petitioner relied upon to show that he was unwell was dated February 14, 2017, which was weeks after the release of the examination results in January 2017. The document was a letter and not a medical report. Ordinarily,  a medical report would contain the history of the patient, examination, findings on examination or diagnosis, treatment given, follow up if any and prognosis.
  3. The timing of the letter given to show illness and its contents, including the Petitioner's failure to inform school authorities that he was unwell at the time of sitting for the exams, left doubts in the mind of the Court.
  4. The Respondent had the statutory mandate to regulate legal education and training in Kenya and to make regulations with respect to the requirements for admission of persons seeking to enrol in the legal education programme and to regulate the examinations. The Respondent's decision to disallow the Petitioner to sit for the bar examinations, was based on the law.
  5. Under article 2(4) of the Constitution, any law which was inconsistent with the Constitution would be void to the extent of the inconsistency and any act or omission in contravention of the Constitution would be invalid. Article 259 of the Constitution provided that the Constitution would be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law and human rights and fundamental freedoms in the Bill of Rights and permitted the development of the law and contributed to good governance. Accordingly, when the constitutionality of legislation or regulations was in issue, the Court was under a duty to examine the objects and purport of the Act and to read the provisions of the legislation, in so far as was possible, in conformity with the Constitution.
  6. When the constitutionality of legislation was challenged, the Court would first determine whether with the use of interpretative aids, the impugned legislation was capable of being read in a manner that was constitutionally compliant. A purposive approach to statutory interpretation was required by the Constitution. The Constitution introduced a mandatory requirement for legislation to be construed in a manner that promoted the spirit, purport and objects of the Bill of Rights.
  7. A contextual or purposive reading of a statute would have to remain faithful to the actual wording of the statute. When confronted with legislation which included wording which was incapable of being interpreted in a manner that would render it constitutionally compliant, Courts were required to declare the legislation unconstitutional and invalid.
  8. Regulation 9 (5) of the Council of Legal Education (Kenya School of Law Regulations), 2009 provided that in respect of the Advocates Training Programme a candidate would be allowed a maximum of five years within which to complete the course of study. The Respondent had a duty to ensure compliance with the law and regulations governing examinations. It would be wrong to whittle away that duty. A lenient approach would be an invitation for the Respondent to act outside its mandate and it would pose a danger of compromising the professional ability and competence of persons released to the public to practice law.
  9. Section 3 of the Legal Education Act stated that the objective of the Act was to promote legal education and maintenance of the highest possible standards in legal education and provide a system to guarantee the quality of legal education and legal education providers. Section 8(3) of the Act empowered the Respondent, in carrying out its functions, to inter alia make regulations in respect of requirements for the admission of persons seeking to enrol in legal education programmes. The functions of the Respondent included administering the bar examinations.
  10. The standards by which the Constitutional validity of statutes would be judged include;
    1. The rationality test.
    2. The reasonableness or proportionality test which is applicable where legislation limited a fundamental right in the Bill of Rights.
  11. The impugned regulations were reasonably related to a legitimate purpose which was to enable the Respondent to fulfil its statutory mandate. In determining reasonableness, the relevant factors include;
    1. whether there is a valid, rational connection between the regulation and a legitimate and public interest to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational;
    2. whether there are alternative means of exercising the asserted constitutional right that remain open to the affected person, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials' expertise.
  12. Courts ought to avoid any decision or interpretation of a statutory provision, rule or by-law which would bring about the result of rendering the system unworkable in practice or create a situation that would go against clear provisions of the law governing the subject in question.
  13. The regulations were designed to maintain and ensure high professional standards and competence. The impugned regulation was reasonable and valid and it was logically related to the legitimate public concerns of maintaining high professional standards.
  14. The regulation did not deny the Petitioner the opportunity to pursue his career. The regulations offered the Petitioner a chance to register for the programme afresh.
  15. The Petitioner failed to demonstrate that the impugned regulations were unconstitutional. The economic and social rights provided for in article 43 of the Constitution were not absolute. The Respondents acted in conformity with the law.
  16. The Court would be extremely reluctant to substitute its own views as to what was wise, prudent and proper in relation to academic matters in preference to those formatted by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and departments controlling them.
  17. Article 47 of the Constitution provided for the right to fair administrative action. The provision guaranteed every person's right to administrative action which was expeditious, efficient, lawful, reasonable and procedurally fair.
  18. Generally, there was no legitimate expectation which was contrary to statutory provisions. The Respondent's decision was based on the law. The Respondent could not be expected to act illegally or contrary to statute.

Petition dismissed with no orders as to costs.

CONSTITUTIONAL LAW The Doctrine of Separation of Powers Does Not Apply When Parliament Exercises its Judicial or Quasi-Judicial Function

Republic v Speaker of the National Assembly and 4 others Ex-Parte Edward R.O.Ouko [2017] eKLR
Miscellaneous Application 108 of 2017
High Court of Kenya at Nairobi
G. V Odunga J
September 22, 2017
Reported by Ribia John

Download the Decision

Constitutional Law – separation of powers – checks and balances – functions of the judiciary vis a vis powers of the legislature - parliamentary privilege - Where a claim to parliamentary privilege violated constitutional provisions - whether the doctrine of separation of powers applied when Parliament exercised its judicial or quasi-judicial function - Constitution of Kenya, 2010 article 165(6) and (7): Parliamentary Powers and Privileges Act section 11
Constitutional Law – fundamental rights and freedoms – fair administrative action– fair hearing - whether the Parliament Departmental Committee on Finance, Planning and Trade violated the Applicant’s rights to fair administrative action and to a fair hearing by not providing the Applicant the chance to cross examine the Claimants - whether the Applicant’s rights were violated by allowing the Petitioner to present the petition on behalf of an undisclosed client and by allowing the Petitioner to present unsworn testimony – Constitution of Kenya 2010, article 47 and 50
Jurisdiction – jurisdiction of the High Court - supervisory jurisdiction – supervisory jurisdiction over any body or authority exercising a judicial or quasi-judicial function - whether the High Court had jurisdiction to determine the constitutionality of proceedings of parliamentary committees - Constitution of Kenya, 2010 article 165(6) and (7): Parliamentary Powers and Privileges Act section 11
Statutes – interpretation of statutes – Fair Administrative Action Act section 3 – definition of a person – whether the word person as used under section 3 of the Fair Administrative Action Act included parliamentary departmental committees
Constitutional Law – interpretation of a constitutional provisions – Constitution of Kenya, 2010 article 260 – definition of a person - whether parliamentary departmental committees were persons as described under article 260 of the Constitution

Brief facts:
A Petitioner submitted a petition to the Parliament Departmental Committee on Finance, Planning and Trade for the ex parte Applicant’s (Auditory General) removal from office which petition was only accompanied by an affidavit deposed by him. The Petitioner had filed the Petition on behalf of an undisclosed client and was allowed to present unsworn evidence to the Committee. The Petitioner’s case was allegedly held without the Applicant being provided prior notice and a chance to cross examine the Petitioner.
The ex-parte Applicantmoved to the instant Court with an application that inter alia soughtto restrain the 1st and 3rd Respondents from debating or by any other way considering the Petition presented before it and to restrict the 1st Respondent form making or forwarding any recommendations to the 5th Respondent for the constitution of a tribunal to investigate and remove the ex-parte Applicant from office. The instant Application was based on the grounds that the National Assembly failed to observe the principles that governed a quasi-judicial process as provided for under the Constitution, the Fair Administrative Action Act 2015, the Petition to Parliament (Procedure) Act and the National Assembly Standing Orders.

Issues:

  1. Whether the High Court had jurisdiction to determine the constitutionality of parliamentary proceedings
  2. Whether the doctrine of separation of powers applied when Parliament exercised its judicial or quasi-judicial function.
  3. Whether parliamentary departmental committees, when performing quasi-judicial functions, performed administrative actions as described under section 2 of the Fair Administrative Action Action Act.
  4. Whether parliamentary departmental committees were persons as described under article 260 of the Constitution.
  5. Whether cross examination was restricted or not permissible in quasi-judicial proceedings of parliamentary departmental committees.
  6. Whether the Parliament Departmental Committee on Finance, Planning and Trade violated the Applicant’s rights to Fair Administrative Action and to a fair hearing by not providing the Applicant the chance to cross examine the Claimants.
  7. Whether the Parliament Departmental Committee on Finance, Planning and Trade violated the Applicant’s rights to fair administrative action and to a fair hearing by allowing the Petitioner to present the petition on behalf of an undisclosed client and by allowing the Petitioner to present an unsworn testimony.
  8. Whether the National Assembly was barred from conducting quasi-judicial proceedings in matters that had already been reported to the Ethics and Anti-Corruption Commission and to the Director of Public Prosecutions. Read More...

Held:

  1. In exercising its judicial review jurisdiction, the High Court did not exercise the powers conferred upon it under article 165(3)(a) of the Constitution of Kenya, 2010 (Constitution) that granted the Court unlimited original jurisdiction in criminal and civil matters; but rather, the Court exercised the powers conferred upon it under article 165(6) and (7) that granted the Court supervisory jurisdiction over any person, body or authority.
  2. Parliament was empowered to regulate its own procedures. However, subject to section 4(6) of the Fair Administrative Action Act, whatever procedure Parliament adopted had to be constitutional and lawful.
  3. The doctrine of separation of powers enabled the three traditional arms of government as well as independent commissions to function freely without any direction or control by any other person. Unlike countries which had adopted Parliamentary Supremacy systems such as the United Kingdom, Parliament in Kenya could not enjoy privilege, immunities and powers which were inconsistent with the fundamental rights guaranteed in the Constitution.
  4. Whereas Parliamentary privilege was recognised, it did not extend to violation of the Constitution. Parliament could not flout the Constitution and the law and then plead immunity. Where a claim to parliamentary privilege violated constitutional provisions, the Court’s jurisdiction would not be defeated by the claim to privilege. The concept of statutory finality did not detract from or abrogate the Court’s jurisdiction in so far as the complaints made were based on violation of constitutional mandates or non-compliance with rules of natural justice. Whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power had to be fully respected, the Courts could interfere with the work of Parliament in situations where Parliament acted in a manner that defied logic and violated the Constitution.
  5. Whereas it was not the duty of the Courts to micromanage Parliamentary proceedings, the Courts had the duty and obligation to ensure that Parliament conducted its proceedings in accordance with the Constitution and the law. Should the Court find that any action contravened the provisions of the Constitution, it was obliged to state so and set the same aside. Where a claim to parliamentary privilege violated constitutional provisions, the Court’s jurisdiction would not be defeated by the claim to privilege.
  6. The instant proceedings were commenced before the commencement date of the Parliamentary Powers and Privileges Act (the Act). The Act came into force in the pendency of the instant suit, and section 11 of the Act gave Parliamentary proceedings the immunity from being questioned by any court.  Statutes other than those which were merely declaratory or which related only to matters of procedure or evidence were prima facie prospective and retrospective effect is not to be given to them unless by express words or necessary implication. Whether or not legislation operated retrospectively depended on the intention of the enacting body as manifested by the legislation.
  7. In seeking to ascertain the intention behind the legislation, the Courts are guided by certain rules of construction. One of the rules is that if the legislation affects the substantive rights, it will not be construed to have retrospective operation unless a clear intention to that effect is manifested; whereas if it affects procedure only, prima facie it operates retrospectively unless there is a good reason to the contrary. A retroactive law is not unconstitutional unless it inter-alia impaired obligations under contracts, divested rights or was constitutionally forbidden.
  8. There was no stipulation in the Act that it was meant to operate retrospectively. Before its commencement, the ex parte Applicant had the right to challenge the quasi-judicial proceedings of the Committee. Section 11 of the Act did not apply to the instant proceedings.
  9. Order 230 of the National Assembly Standing Orders prescribed the procedure to be adopted in the challenged proceedings. In conducting its proceedings, Parliament was bound to adhere to the provisions of article 47 of the Constitution that provided for the right to Fair Administrative Action Act.
  10. Save for superior courts the Constitution empowered the instant Court to exercise supervisory jurisdiction over the subordinate Courts and over any person, body or authority that exercised a judicial or quasi-judicial function. The doctrine of separation of powers applied when Parliament was carrying out its legislative functions as opposed to judicial or quasi-judicial function.
  11. Upon the constitution of the tribunal, the Applicant stood to be immediately suspended to pave way for investigations. The proceedings leading to the constitution of the Tribunal by the President, a process that was merely formal, may have exposed the Applicant to a legal hazard or other substantial prejudice. It was not just a mere formality since as a result of the Report of the Parliament and the consequential formation of the Tribunal, certain privileges, rights and interests of the applicant stood automatically suspended. In conducting its proceedings, pursuant to article 251 of the Constitution, Parliament was undertaking an administrative action as described under section 2 of the Fair Administrative Action Act.
  12.  Even if Parliament was not exercising a quasi-judicial function pursuant to section 2(1) of the Fair Administrative Action Act, it was definitely undertaking an act that affected the legal rights or interests of the Applicant to whom such action related. It was undertaking an administrative action. It did not matter whether an action was described as quasi-judicial or administrative, a body entrusted by statute with discretion must act fairly. It had to give chance to be heard.
  13. That the members of the Departmental Committee on Finance, Planning and Trade were in fact administrators came out from the definition of an administrator in section 2 of the Fair Administrative Action Act which defined the term as a person who took administrative action or who made an administrative decision.
  14. The provisions of the Fair Administrative Action Act applied to the proceedings of the Departmental Committee on Finance, Planning and Trade subject to section 3 of the Fair Administrative Action Act which stated that the Act applied to any person. A person was described under article 260 of the Constitution as including a company association or other body of persons whether incorporated or unincorporated. Article 260 was clear that the word “includes” meant “includes, but is not limited to”. A person for the purposes of the Constitution was not restricted to the examples given in article 260 of the Constitution but the Court in interpreting the word cast its net wide. The term person included the Departmental Committee on Finance, Planning and Trade.
  15. The Fair Administrative Action Act, was an Act of Parliament enacted pursuant to the provisions of the Constitution. Laws made under Constitutional powers were superior and stood above those not made pursuant thereto and they were to be given more regard and force.
  16. The Applicant was not seeking to bar the Committee from proceeding, but was only seeking to have the Committee respect and protect his rights to fair trial and not condemn him unheard. The High Court had the mandate to interfere with the actions of the Respondents where they were contrary to the Constitution. The Respondents had to adhere to article 47 of the Constitution that dealt with the right to fair administrative action.
  17. Even without the benefit of the constitutional provisions entrenching the right to Fair Administrative Action as a fundamental human right, rights and Fundamental freedoms were not granted but inhered in human beings. Fundamental human rights are God-given as could be inferred from article 19(3) of the Constitution which provided that the State did not grant rights and fundamental freedoms to any person.
  18. The State does not grant rights and fundamental freedoms to any person. Human rights are generally universal and inalienable rights of human beings. A Constitution simply recognised the natural and original human rights of mankind which any and every human being should have in order to lead a dignified life till his or her natural death. Further, article 3(b) was clear that the rights and fundamental freedoms in the Constitution did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they were inconsistent with the Bill of Rights. The rights contained in the Constitution were not the only rights to be enjoyed by persons but were just examples of the same.
  19. Elementary justice and the law demanded that a person be given full information on the case against him and given reasonable opportunity to present a response. That right was not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. Even where no actual hearing was held in relation to the making of an administrative or quasi-judicial decision, an individual could be entitled to be informed that a decision which would have adverse consequences for him may be taken and to notification of the possible consequences of the decision.
  20. Article 232 of the Constitution enunciated the various values and principles of public service which included responsive, prompt, effective, impartial and equitable provision of services and transparency and provision to the public of timely, accurate information. The values and principles of public service acquired statutory underpinning vide section 4(3) of the Fair Administrative Action Act which provided the necessities that should be provided to a person whose rights or fundamental freedoms were likely to be affected by an administrative decision by the administrator.
  21. Where adverse evidence is given about a person, the person is to be afforded an opportunity to cross-examine the witnesses. In the instant case the Petitioner’s case against the Applicant was heard without the Applicant being given prior notice and a chance to cross examine him. Although the Petitioner had admitted that he was acting on behalf of an undisclosed client, he was allowed to give unsworn testimony.
  22. The provisions of the Petition to Parliament (Procedure) Act as well as Order 203 of the Standing Orders did not have a provision that expressly barred cross-examination in respect to matters that fell under article 151 of the Constitution. That did not imply that Parliament could not provide that cross-examination was restricted or not permissible in such proceedings but cross-examination being an ingredient of the right to fair hearing its limitation ought to comply with article 24 of the Constitution. However whatever procedure was adopted had to, as decreed in section 4(6) of the Fair Administrative Action Act, comply with the spirit of article 47 of the Constitution.
  23. Articles 47 and 50 of the Constitution provided a bulwark against invasions which impaired human rights to fairness and dignity or which affected people adversely in a comparably serious manner.
  24. The Applicant applied for more time which time was given. It was not for the High Court to dictate to the Parliamentary Committee the exact time that ought to be given as long as such time was reasonable. In the circumstances of the instant case, the time given to the Applicant after the adjournment of the proceedings was unreasonable.
  25. The Applicant averred that he was not told the precise nature of allegations that he was facing and the manner in which he had breached article 251 of the Constitution. That was not only a breach of article 10, 47 and 50 of the Constitution but also a contravention of Standing Order No. 230(i)(a) of the National Assembly Standing Orders. The said Order required that the petition indicate the grounds under article 251(1) of the Constitution which the member of the commission was in breach. That was in line with the requirement that information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be. It is an elementary justice and the law demands that a person be given full information on the case against him.
  26. In the instant case, the petition did not just refer to article 251(1) of the Constitution. It proceeded to state that the serious violation of the Constitution was the failure to submit reports to the President and to Parliament pursuant to article 254(1) of the Constitution. There were also allegations of wastage of public funds, contravention of Chapter Six of the Constitution, violation of the Public Procurement and Disposal Act, 2005, violation of the Public Audit Act, 2015 and violation of the Leadership and Integrity Act, 2012. All those grounds were particularised. It was not for the instant Court to determine if the charges were sufficient to prove the petition. To the contrary, the Petition contained grounds under article 251(1) of the Constitution.
  27. Investigations by the Ethics and Anti-Corruption Commission and the Office of the Director of Public Prosecutions vindicated the ex-parte Applicant of any wrong doing, yet they were the subject of investigations before the Committee. The Petitioner’s disclosure that the matter had been reported to the Ethics and Anti-Corruption Commission and the Director of Public Prosecutions did not estop the National Assembly from considering the petition against the Auditor General. The mandate of the National Assembly on the one hand and that of the Ethics and Anti-Corruption Commission and the Director of Public Prosecutions on the other hand were different even if they were to be based on the same facts since the National Assembly exercised oversight over State Officers and initiated the process of their removal for grounds that were largely based on Chapter Six of the Constitution which dealt with integrity and suitability for State Office. The Ethics and Anti-Corruption Commission and the Director of Public Prosecutions on the other hand dealt with matters of alleged commission or omission of acts of a criminal nature.
  28. The grounds for removal of a Commissioner or a holder of an independent office could not necessarily constitute an offence. The National Assembly was not barred from entertaining a petition merely because the facts relied upon were the subject of investigations by the Ethics and Anti-Corruption Commission or the Director of Public Prosecutions and that they did not find any grounds to prosecute the Commissioner or the holder of an independent office.
  29. Not only did the Petitioner give his evidence in the absence of the Applicant, but in the same evidence he disclosed that he was acting on behalf of an undisclosed client. A client who had been dissatisfied by the decision of the DPP and the EACC and was hence allowed to give unsworn testimony. Even if the procedure permitted the Respondents to take the petitioner’s evidence in the absence of the applicant, for a third party to purport to give evidence of another undisclosed person in the circumstances of the matter before the Parliamentary Committee was clearly inimical to fair administrative action and fair hearing.
  30. The role of Constitutional Commissions and Independent Offices appeared from a reading of the objectives of the said entities as enacted in article 249 (1) and (2) of the Constitution. The several independent Commissions and offices were intended to serve as ‘people’s watchdogs’ and, to perform that role effectively, they had to operate without improper influence, fear or favour. However, the Commissions or independent offices had to operate within the terms of the Constitution and the law. The independence clause did not accord them carte blanche to act or conduct themselves on whim. Their independence was by design configured to the execution of their mandate and performance of their functions as prescribed in the Constitution and the law.
  31. Proceedings that sought the removal of a member of a constitutional office were not to be taken lightly as they in effect sought to remove from office a person tasked with protecting the sovereignty of the people, securing the observance by all State organs of democratic values and principles and promoting constitutionalism. Unless such proceedings were taken seriously and the provisions of the Constitution and the law strictly adhered to, there was a danger that the independence of the holders of such offices would be greatly compromised hence eroding the letter and spirit of article 249(2) of the Constitution
  32.  It would be highly unfair to rely on information allegedly furnished by a third undisclosed party through an intermediary without permitting the person who stood to be adversely affected thereby an opportunity to interrogate the veracity of the alleged information by either the source of the information or the intermediary. To permit such proceedings to be conducted in such casual and nonchalant manner could only lead to erosion of the public trust in such offices. The holders of constitutional offices ought not to be placed in a position that before carrying out their constitutional mandate they have to keep looking behind their backs.
  33. Constitutional institutions in Kenya ought to be accorded their due respect and deference. To set out to unjustifiably malign such institutions and the holders of the offices therein could only be explained on the basis of impunity. To set out to saw the seeds of impunity amounted to breeding anarchy. A state of anarchy was antithesis to law and order and inimical to a democratic family of nations which Kenya claimed a belonging.
  34. Democracy is normally a messy and often times a very frustrating way of governance; dictatorships are more efficient.  Since the Kenyan nation had chosen the path of democracy rather than dictatorship, all State organs had to stick to the rule of law. Rule of law also allowed for predictability of actions by public bodies and the fact that law would be uniformly and objectively applied. Article 10 of the Constitution asserted that transparency and accountability were some of the hallmarks that defined the rules that bound a state organ.
  35. The Court had the responsibility to ensure that executive action was exercised. Parliament intended that the High Court was to have the responsibility for the maintenance of the rule of law. There could not be a gap in the application of the rule of law. The Court had to at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law.
  36. Article 159(2)(e) of the Constitution enjoined the Courts and tribunals to be guided by inter alia the principle that the purpose and principles of the Constitution were to be protected and promoted. In the preamble to the Constitution one of the purposes for which Kenyans adopted, enacted and gave the Constitution to themselves and to their future generations was to exercise their sovereignty.
  37. The High Court ought to be guided by inter alia the principle that the said constitutional Commissions and holders of independent offices had to operate in an environment devoid of subjection to direction or control by any person or authority. Article 249(2) of the Constitution expressly provided that the commissions and the holders of independent offices were subject only to the Constitution and the law and were independent and not subject to direction or control by any person or authority. The Courts and Tribunals were constitutionally bound to protect the said constitutional Commissioners and holders of independent offices from any unlawful intimidation and harassment by any person or authority.
  38. Section 4(4)(c) of the Fair Administrative Action Act obliged an administrator to accord the person against whom administrative action was taken an opportunity to cross-examine persons who gave adverse evidence against him. However, section 4(6) of the Act provided that where the administrator was empowered by any written law to follow a procedure which conformed to the principles set out in article 47 of the Constitution, the administrator could act in accordance with that different procedure. Cross-examination is a component of Fair Administrative Action. To that extent the previous decisions that held that in administrative action, cross-examination was inapplicable, could no longer be good law.
  39. The right to cross-examination could be limited or restricted as long as the limit or restriction complied with article 24 of the Constitution. In the instant proceedings, the Respondents had not justified their actions based on the same article and there was no material on the basis of which the Court could find that the said right was lawfully restricted in the proceedings before the 3rd Respondent’s Committee. The right to cross-examine a witness in the 2010 constitutional and legislative framework was as important as the right to be heard and the restriction on that right was an exception rather than the rule since the principles of the right to be heard and the right to cross-examine are geared towards the realisation of Fair Administrative Action, which was a fundamental right captured in Article 47 of the Constitution.
  40. A departure from a fundamental rule of natural justice and the right to Fair Administrative Action could be presumed to have been intended by the Legislature only in circumstances which warranted it and such circumstances could be shown to exist, when so required, the burden being upon those who affirmed their existence.
  41. It was a mandatory requirement that not only should the petition be furnished but that all the materials and evidence to be relied upon be furnished to the person adversely affected thereby. It was necessary that the evidence and information furnished to the Committee by the petitioner be availed to the Applicant.
  42. Proceedings conducted in such a manner amounted to a farce. Where a body such as a parliamentary committee stepped outside the boundaries of the Constitution and the law, the High Court had the constitutional mandate to bring it back to track and that was all that the courts could do. Judicial review orders would otherwise have no meaning in Kenyan law.
  43. Article 23 of the Constitution empowered the Court to grant appropriate relief including a declaration of rights. The Applicant was entitled to appropriate relief which meant an effective remedy. An appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution could not properly be upheld or enhanced. Section 11 of the Fair Administrative Action Act also empowered the Court to provide appropriate judicial review remedies. However, in granting remedies, the Court ought not to interfere with the merits of the Respondents’ decision.

Petition partly allowed.
Orders:

  1. Declaration that the Departmental Committee on Finance, Planning and Trade was bound to conduct its proceedings in strict compliance with and adherence to article 47 of the Constitution and the provisions of section 4 of the Fair Administrative Action Act.
  2. Declaration that the proceedings conducted by the said Departmental Committee on Finance, Planning and Trade against the ex-parte Applicant failed to meet the threshold of fair administrative action.
  3. The proceedings conducted by the Departmental Committee on Finance, Planning and Trade against the ex-parte Applicant were set aside pursuant to section 11(e) of the Fair Administrative Action Act.
  4. No order as to costs.
CONSTITUTIONAL LAW The circumstances under which the Court would stop criminal proceedings.

Nicholas Mwaniki Waweru & another v Attorney General & 5 others
Petition No 394 of 2016
High Court at Nairobi
Milimani Law Courts
Constitutional and Human Rights Division
John M Mativo, J
September 21, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-Office of the Director of Public Prosecutions-exercise of discretion on whether to prosecute by the Director of Public Prosecutions-circumstances under which the Court would stop a criminal prosecution-ulterior motive, prosecution for purposes of private interests and not public interest and lack of independence on the part of the Director of Public Prosecutions- Constitution of Kenya 2010, article 157(10); Office of the Director of Public Prosecutions Act, No 2 of 2013, section 6.
Jurisdiction-inherent jurisdiction of the High Court-jurisdiction to stop criminal proceedings-grounds on which the Court would stop criminal proceedings-abuse of the process of Court, unfairness or unfair trial and undermining the integrity of the criminal justice system-nature of evidence that would warrant the exercise of discretion by the Court to stop criminal proceedings.

Brief facts:
The 1st Petitioner undertook to subdivide properties belonging to Microstat Holdings Limited and Ann Gatwiri Gathuku into 40 (one eighth of an acre) plots and to sell them to purchasers. The proceeds of the sale were to be paid to the legal owners. Each plot was to be fitted with a greenhouse. Management agreements were to be entered into between the 1st Petitioner and the purchasers. The management agreements  related to the cultivation of crops, management and selling of farm produce by the 1st Petitioner on behalf of each greenhouse owner. Upon full payment of the purchase price, it was agreed that the purchasers would receive completion documents.
When purchasers who had fully paid up the purchase price failed to receive the completion documents, they started demanding a refund of the full purchase price within 14 days. To demand the refunds, the police were used. Charges were preferred against the Petitioners for conspiracy to commit a felony. The Petitioners said that the criminal case was being used to harass, intimidate and or torment the 3rd Petitioner and its directors/nominees to arm-twist them into selling the majority stake in the 3rd Petitioner to the Interested Parties.
In response the 1st Respondent said that the petition did not disclose violations of constitutional rights and the Director of Public Prosecutions had acted within his powers in preferring the charges.  The 2nd and 3rd Respondent said that the 2nd and 3rd Petitioners registered charges over the land and obtained loan facilities and they could not purport the sell the property. The secured loan frustrated the subdivision and processing of titles to the land to the purchasers. They said that the Petitioners did not explain the loan to them.
The 1st and 2nd Interested Parties were purchasers while the 3rd Interested Party was an advocate who represented the other Interested Parties in their attempts to seek a refund of the purchase price. They said that they entered into sale agreements over the property in question in August 2014 and in August 2016, they visited the property. They found that no farming was taking place and there were bushes on the land. A search on the property showed that no subdivision or transfer in their favour had been done.

Issue:

  1. Under what circumstances would the Court exercise discretion to stop a criminal prosecution. Read More...

Held:

  1. Whether the facts of the case disclosed reasonable suspicion resting on reasonable grounds on which a prosecution could be mounted, is a question to be viewed against established legal principles. The circumstances giving rise to the suspicion had to be such as would ordinarily cause a reasonable man to form the suspicion that there were reasonable grounds warranting a prosecution.
  2. The DPP’s discretion on whether to prosecute had to be exercised properly. The grounds on which the exercise of such discretion could be questioned were narrowly circumscribed. The exercise of discretion would be unlawful if the DPP knowingly invoked the power to arrest and prosecute for a purpose not contemplated by the law.
  3. The decision to prosecute had to be based on the intention to bring the arrested person to justice. Prosecution in order to frighten, harass, vex the suspect, or to punish the person or to force the person to abandon his rights or to assist his opponent in a civil dispute would be an outright abuse of the law.
  4. In exercising discretion, fundamental rights and freedoms were to be considered. It had to be borne in mind that the Bill of Rights is a cornerstone of democracy.
  5. Material evidence which indicates that there was a prosecutable case must be in existence before criminal proceedings were instituted. A prudent and cautious prosecutor had to show that he had a reasonable and probable cause for the prosecution otherwise the prosecution would be malicious. The Petitioners had not demonstrated that the criminal proceedings were instituted without a factual basis and that they were an abuse of court process.
  6. The decision on whether to prosecute was important. It could upset a person who was later found not guilty and the decision not to prosecute could stress and upset a victim of crime.
  7. In making his decision the DPP had to act independently and ought not to be prompted by any other person to institute proceedings. Reasonable suspicion in the eyes of reasonable persons of lack of independence, would amount to a violation of article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act.
  8. One of the considerations of the DPP in instituting Court proceedings was the advancement and protection of public interest as opposed to private interest. The Petitioners did not demonstrate that the prosecution was not being undertaken in public interest.
  9. Courts had an overriding duty to promote justice and prevent injustice. That duty gave the Court inherent power to stay an indictment or stop a prosecution, if the Court's opinion was that allowing the prosecution to continue would amount to an abuse of the process of Court or infringement of the Petitioners' fundamental rights.
  10. Abuse of process has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is otherwise a perfectly supportable case. The evidence adduced did not show that the prosecution was an abuse of Court process or unfair or wrong, baseless and an abuse of police powers or judicial process.
  11. The Court's inherent jurisdiction to stop a prosecution or prevent an abuse of process would be exercised only in exceptional circumstances. The doctrine focuses on preventing unfairness at trial wherein the accused is prejudiced in the presentation of his or her case, in clear breach of the right to a fair trial. The Court should consider whether there is anything in the trial which inhibits a fair trial and if there is, the Court ought to stop the prosecution. In the present case, there was nothing indicating that the criminal prosecution would not be fair.
  12. The High Court ought to stop a prosecution where it would be impossible to give the Accused a fair trial or where it would amount to a misuse/manipulation of process because that offended the Court's sense of justice and propriety. A prosecution would be stopped if there were exceptional circumstances that would result in prejudice being suffered by the Accused and which could not be remedied in other ways. In the circumstances of the case, no exceptional circumstances had been established in evidence.
  13. A criminal prosecution would be stopped if it was commenced without a proper factual foundation. The evidence tendered showed that there was a proper foundation for the prosecution. It was not disputed that the Petitioners received money from purchasers and no transfer was done and the property was not subdivided. The evidence did not show that the DPP did not act in accordance with article 157 (10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act.
  14. Many of the issues raised by the Petitioners could be dealt with at the criminal trial. The averments in the petition constituted a defence in the criminal trial.
  15. The High Court was entitled to quash a proceeding if it came to the conclusion that allowing the proceedings to continue would be an abuse of the Court or that the ends of justice required the proceedings to be stopped. The High Court's inherent powers were designed to achieve the public purpose of not allowing Court proceedings to degenerate into a weapon of harassment or prosecution. Personal score-settling or vilification would not be allowed.
  16. Stopping a prosecution is a discretionary remedy which depended on the circumstances of the case. The grounds for the grant of the remedy included abuse of process, unfairness to the Accused and proceedings whose continuance would undermine the integrity of the criminal justice system.
  17. The material placed before the Court did not show unfairness or that the right to a fair trial was being threatened. There was no evidence showing that the police acted maliciously. There was nothing to show that the prosecution was commenced without a proper or reasonable foundation.

Petition dismissed.

ELECTORAL LAW The decision to change the location of a place designated as a constituency tallying centre requires public participation.

Mohamud Ibrahim Alio & 2 others v Independent Electoral and Boundaries Commission
Petition No 362 of 2017
High Court at Nairobi
Constitutional and Human Rights Division
E C Mwita, J
July 31, 2017
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-constituency tallying centre-change in the location of a designated constituency tallying centre-public participation requirements in effecting such a change-effect of failure to ensure public participation in making a decision to change the location of a constituency tallying centre-Independent Electoral and Boundaries Commission Act, No 9 of 2011, section 26; Elections (General) Regulations, 2012, regulation 84.
Electoral Law-constituency tallying centre-legal requirements relating to the qualities of a place designated as a constituency tallying centre-the requirement that the centre would have to be large enough in size and that it would have to be a public place-whether a Government building could be designated as a constituency tallying centre-Elections (General) Regulations, 2012, regulation 84.

Brief facts:
The Petitioners challenged the decision of the Respondent to gazette the Mandera North Sub-County Commissioner's Office Block as the tallying centre for the Mandera North Constituency. They said that the office block was small and unsuitable for tallying which was to be done in an open, transparent and accountable manner. Initially, the tallying centre was Rhamu Arid Primary School. The Petitioner said that the move to have tallying done at the County Commissioner's Office Block was undertaken abruptly, without consultation or justification.

Issues:

  1. Whether a decision to change the location of a place designated as a constituency tallying centre was made after facilitating public participation.
  2. What were the legal requirements relating to the qualities of a place designated as a constituency tallying centre?Read More...

Held:

  1. Pursuant to regulation 84 of the Elections (General) Regulations, 2012, the Respondent was responsible for designating places to be used as tallying centres. Further, in section 26 of the IEBC Act, the Respondent was required to perform its functions independently while observing the principle of public participation and the requirement for consultation with stakeholders.
  2. The reason offered by the Respondent for the change in the location of the tallying centre was security concerns. However, no evidence was tendered to show that the previous tallying centre was more insecure than it was during the previous election. It was not shown that Rhamu Arid Zone Primary School was so insecure that it could not be used as a tallying centre.
  3. Regulation 84 of the Elections (General) Regulations, 2012, provided that a tallying centre ought to be a public place. Rhamu Arid Zone Primary School was a public place but the Sub-County Commissioner’s Office Block was a Government building and not a public place.
  4. A constituency tallying centre was the place where votes for the entire constituency would be tallied. All election results from polling stations across the constituency would be tallied at that centre. Election results for MCA’s, MPs, Woman Rep, Senator, Governor and President in that constituency would be tallied at the centre. That meant there would be many people assembling at the centre for purposes of tallying and witnessing tallying of the various election results.
  5. Depending on the number of candidates in an election there could be very many people at a tallying centre. The people who would be at tallying centres include agents, candidates or their agents, presiding officers and other election officials, police officers, accredited election observers and accredited media persons.
  6. The Respondent had a constitutional obligation to conduct free and fair elections which were to be free from violence, intimidation, improper influence or corruption. The elections were to be conducted in an independent, transparent, impartial, neutral, efficient, accurate and accountable manner.
  7. The constitutional requirement that results from polling stations were to be openly and accurately collated and promptly announced by the returning officer meant that those results ought to be collated and announced in the presence of candidates, their agents, party agents, observers, election officials and all those present to witness the exercise. That meant that collation and announcement of results had to be done in public. That was why there was a requirement that tallying centres had to be public places which were accessible to the public.
  8. The Respondent's decision to change the location of the tallying centre was tainted with procedural impropriety, illegality and unreasonableness. The Respondent did not consult the residents on that change. That went against the principle of public participation as enshrined in the Constitution and recognized in section 26 of the IEBC Act.
  9. It was unreasonable to designate an office block belonging to the Government as a tallying centre. That would give the impression that the Government was controlling the process when that was not necessarily the case. The making of a decision to change the location of a tallying centre called for public engagement in the decision making process because it was a decision which affected the right to witness tallying and announcement of election results.

Petition allowed.
Orders:-

  1. A declaration declaring the decision by the Respondent to change the Mandera North Constituency tallying centre from Rhamu Arid Zone Primary School to the Sub-County Commissioner's Office Block without proper consultation and public participation was illegal, unprocedural and unconstitutional, was issued.
  2. An order of certiorari removing into the Court for purposes of quashing the decision of the Respondent to publish in Gazette Notice No 6396 CXIX No 86 of June 30, 2017 the Sub-County Commissioner’s Office Block appearing as code 041 in the third column of the Third Schedule as the tallying centre for Mandera North Constituency for the August 8, 2017 general elections, was issued.
  3. An order of mandamus compelling the Respondent to gazette Rhamu Arid Zone Primary School as the recognised tallying centre for the Mandera North Constituency for the August 8, 2017 general elections was issued.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org