Weekly Newsletter 002/2018

Weekly Newsletter 002/2018



Kenya Law

Weekly Newsletter


Circumstances under which an Employer Could Send an Employee on Compulsory Leave
Thomson Kerongo & 2 others v James Omariba Nyaoga & 3 others
Petition No. 32 of 2017
Employment and Labour Relations Court at Kisumu
Maureen Onyango J
November 24, 2017
Reported by Robai Sivikhe and Kakai Toili
Download the Decision
 
Employment Law disciplinary actions by employers – compulsory leave - circumstances under which an employer could send an employee on compulsory leave - what were the circumstances under which an employer could send an employee on compulsory leave
Constitutional Law leadership and integrity – breach of leadership and integrity code – where a state officer committed breach of the Leadership and Integrity Code - what were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee – Constitution of Kenya, 2010 Chapter Six and article 236; Leadership and Integrity Act sections 42, 43, 52 and 62
Jurisdiction Employment and Labour Relations Court – disciplinary actions by employers – jurisdiction of the Employment and Labour Relations Court over disciplinary actions by employers - what were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee
Word and Phrases – definition - Prima facie – definition of a prima facie case - establishment of a legally required rebuttable presumption, or a party’s production of enough evidence to allow the fact trier to infer the fact at issue and rule in the party’s favour - Black’s Law Dictionary 9th Edition
 
Brief Facts:
The 1st and 2nd Petitioners were members of the 3rd Petitioner, an organisation registered under section 10 of the Non-Governmental Organisation Coordination Act. The 1st Petitioner was the Chairman of the 3rd Petitioner. The petition was filed against James Omariba Nyaoga, the 1st  Respondent who was the Clerk of the County Assembly, Kisii County and the Ethics and Anti-Corruption Commission, the 2nd Respondent, a constitutional commission established under article 79 of the Constitution of Kenya 2010 as read with section 3(1) of the Anti-Corruption and Economic Crimes Act, 2003 and the Ethics and Ant-Corruption Commission Act, 2011, with the mandate to investigate corruption and related matters either on its own motion or upon receipt of a complaint.
The 1st Respondent was deployed as an interim clerk of the Kisii County Assembly by the Transition Authority on secondment by letter dated February 25, 2013. He was appointed as a substantive Clerk of the County Assembly on April 24, 2013 by the County Assembly Service Board (the Board) subject to approval by the County Assembly, which approval was given on April 29, 2013 by unanimous vote.
 The former Speaker of the County Assembly of Kisii sent the 1st Respondent on compulsory leave together with the Director of Finance, an action that they unsuccessfully challenged in court through Kisumu ELRC Petition No. 12 and 18 of 2015 but which was resolved when the two of them were cleared and their suspension lifted by the Board which reinstated them.
 On July 5, 2017 the former Speaker authored a letter and handed it to the 1st Respondent on July 17, 2017 sending him on compulsory leave. His compulsory leave was deliberated upon by the Board at its meeting held on the same day whereupon a decision was made to reinstate the 1st Respondent.
The Petitioner moved to the instant Court on the grounds that the 1st Respondent was in office unconstitutionally as he was sent on compulsory leave and the compulsory leave had not been lifted, that the 1st Respondent was not fit to hold public office as he was under investigation for misappropriation of public funds among other grounds
 
Issues:
  1. What were the circumstances under which an employer could send an employee on compulsory leave?
  2. What was the procedure to be followed when a state officer had committed a breach of the Leadership and Integrity Code?
  3. What were the circumstances in which a court could interfere with a disciplinary action by an employer against an employee?
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 236 - Protection of public officers.
A public officer shall not be—

(a) victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or
(b) dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.
 

Leadership and Integrity Act
Section 42 - Lodging of complaints and investigations.

(1) A person who alleges that a State officer has committed a breach of the Code, may lodge a complaint with the relevant public entity and the public entity shall register and inquire into the complaint.
(2) A public entity may authorize any of its officers to inquire into a complaint on its behalf and determine whether a State officer has contravened the Code.
( 3) An investigation may be made at the instance of a public entity.
(4) A State officer being investigated under this section shall be informed by the investigating authority, of the complaint made against that State officer and shall be given a reasonable opportunity to make a representation relating to the issue, before the investigation is concluded.
(5) A person who has lodged a complaint against a State officer shall be entitled to be informed of any action taken or to be taken in respect of the complaint andshall be afforded a hearing.
(6) Where an investigation under this section is initiated while the State officer is in office, it may be continued even after the person under investigation has ceased to be a State officer.
(7) Subject to the Constitution and any regulations for the enforcement of the Code made under this Act, a State officer may be suspended from office pending the investigation and determination of allegations made against that State officer where such suspension is considered necessary.
(8) The Commission shall prescribe disciplinary mechanisms and procedures to be followed in the event of contravention of the Code, and those mechanisms and procedures shall comply with Article 47 of the Constitution or any other applicable written law for the time being in force.
(9)The public entity or an authorized officer may take disciplinary action against a State officer serving in the public entity.
(10) Notwithstanding subsection (2) and (3), the Commission may inquire into and investigate an alleged breach of the Code either upon receipt of a complaint or on its own motion.
 

Section 43 - Referral for possible civil or criminal proceedings.

(1) If upon investigation under this Part, the public entity is of the opinion that civil or criminal proceedings ought to be preferred against the respective State officer, the public entity shall refer the matter to—

(a) the Commission or the Attorney-General, with respect to civil matters;
(b)the Director of Public Prosecutions, with respect to criminal matters; or
(c) any other appropriate authority.

(2) Referral of a matter under subsection (1) shall not preclude the person, the State organ or public entity referring the matter from undertaking further investigations or action into the matter.
(3) If a matter is referred to the Commission under subsection (1)(a) and in the opinion of the Commission, criminal proceedings ought to be preferred against the respective State officer, the matter shall be referred to the Director of Public Prosecutions.
(4) In addition to the prosecution of a State officer, the Commission may take any other action that it considers necessary.
(5) The prosecution of any State officer is not a bar to other steps that the Commission may consider necessary.
 

Section 52 - Application of Chapter Six of the Constitution and this Act to public officers generally.

(1) Pursuant to Article 80(c) of the Constitution, the provisions of Chapter Six of the Constitution and Part II of this Act except section 18 shall apply to all public officers as if they were State officers.
(2) For the purposes of subsection (1), the relevant public entity recognized or established pursuant to section 3 of the Public Officer Ethics Act, 2003 (No. 4 of 2003) shall enforce the provisions of this Act as if they were provided for under the Public Officer Ethics Act, 2003 (No. 4 of 2003).
 

Anti-Corruption and Economic Crimes Act, 2003
Section 62 - Suspension, if charged with corruption or economic crime.

(1) A public officer or state officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case: Provided that the case shall be determined within twenty-four months.
(2) A suspended public officer who is on half pay shall continue to receive the full amount of any allowances.
(3) The public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted.
(4) This section does not derogate from any power or requirement under any law under which the public officer may be suspended without pay or dismissed.
(5) The following shall apply with respect to a charge in proceedings instituted otherwise than by or under the direction of the Attorney-General—

(a) this section does not apply to the charge unless permission is given by the court or the Attorney-General to prosecute or the proceedings are taken over by the Attorney-General; and
(b) if permission is given or the proceedings are taken over, the date of the charge shall be deemed, for the purposes of this section, to be the date when the permission is given or the proceedings are taken over.

(6) This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.
(7) This section does not apply with respect to a charge laid before this Act came into operation.
 

Held:
  1. An authorised officer acting under lawful authority could take interlocutory action against an officer working under his supervision before substantive action was taken at a formal meeting to deliberate on the matter. That was because convening meetings of disciplinary bodies could take time and circumstances could arise when immediate action was necessary to address certain situations.
  2. There was no law prohibiting an employer from sending an employee on compulsory leave where the circumstances warranted it and provided it was an interim measure. Compulsory leave had the effect of only removing an employee from the workplace temporarily without interfering with his terms of service. An action was only illegal if it was prohibited by law. Not all lawful matters were prescribed by law. On the contrary it was only that which was prohibited by law that was illegal or unlawful.
  3. The Speaker, as Chairman of the County Assembly Service Board, had authority to send the 1st Respondent on compulsory leave pending the convening of a formal meeting of the Board to deliberate on appropriate action to be taken against him.
  4. The County Assembly Service Board undertook its business through formally constituted meetings. In the instant case two members of the County Assembly Service Board met and nullified the letter of the Chairman sending the 1st Respondent on compulsory leave on the very day that the letter was written. Unlike the Chairman who was in office permanently, the other members could only act in a formally convened meeting called by either the Chairman or the Secretary. Since no minutes had been presented to the Court to prove that there was a properly convened meeting at which the Chairman’s letter to the 1st Respondent was discussed and a resolution passed by the Board, the nullification of the letter of the Chairman was unlawful because there was no lawful authorised or regular meeting to discuss the issue.
  5. The County Assembly Service Act, 2017 was assented to by the President on July 6, 2017 and came into force on July 27, 2017. The Act was not in force on July 5, 2017 when the 1st Respondent was sent on compulsory leave and could not have been breached.
  6. The 1st Respondent had not expressly denied the specific allegations of questionable integrity and malfeasance against him. He cited the sour relationship between him and the former speaker of the County Assembly as the reason for the letters sending him on compulsory leave and the instant petition. He left almost all the allegations against him unchallenged with the result that the court was left with the impression that there had to be some validity in the allegations against him and valid reason for the Petitioners to invoke the jurisdiction of the Court. The Petitioners have established a prima facie case.
  7. Under section 42 of the Leadership and Integrity Act a person who alleged that a state officer had committed a breach of the Leadership and Integrity Code was required to lodge a complaint with the relevant public entity. Such public entity was the 2nd Respondent who was required to inquire into the complaint and determine whether the state officer had contravened the Code of Leadership and Integrity. Section 43 provided that where the investigations disclosed that civil or criminal proceedings ought to have been preferred against the state officer, the public entity had to refer the matter to the Attorney General with respect to civil matters and to the Director of Public Prosecutions with respect to criminal matters or to any other appropriate authority.
  8. Section 52 of the Leadership and Integrity Act extended the provisions of Chapter Six of the Constitution and the Act to public officers, like the 1st Respondent. The primary Act under which the 2nd Respondent ought to have investigated public servants was the Anti-Corruption and Economic Crimes Act, 2003. Under section 64 of the Act there was provision for disqualification of a person convicted of an offence under the Act from holding public office. Section 62 of the Act provided for disciplinary action against such an officer.
  9. The only valid authority which could remove a public officer from office was the employer of such an officer, after taking them through due process as provided in article 236 of the Constitution.
  10. The 1st Respondent’s case could be addressed by the County Assembly Service Board as the employer or the County Assembly which had oversight authority over all matters in the County including the County Assembly Service Board. That was the procedure that had been codified in the County Assembly Service Act, 2017.
  11. The Court could not act directly and remove the 1st Respondent from office as that would contravene the 1st Respondent’s constitutional rights to due process as provided under article 236. Due process was an internal disciplinary process to be exercised by an employer. The Court was not expected to enter into the boardrooms of the employers to micro manage their affairs.
  12. The Employment Act did not intend that courts take away managerial prerogatives from employers. To give the interim order would have had the effect of stifling the management prerogative in staff administration. It would have meant the employer did not have any more say in the contract of employment it had authored. That would be contrary to the intention of the Employment Act.
  13. The court could only interfere where there was breach of the process only with a view to setting the process right. In the instant case the Petitioners had not alleged that the relevant bodies being the County Assembly Service Board and the County Assembly had been moved and had failed to take action. Neither had it been shown that the Petitioners filed a complaint with the 2nd Respondent which it had failed to act on.
  14. The courts could order the 2nd Respondent, the County Assembly Service Board and the County Assembly, all of whom had the obligation to supervise and investigate the 1st Respondent to perform their role of investigation. However, the Petitioners had not prayed for those orders. They had not enjoined the employer of the 1st Respondent who had failed to take disciplinary action against him and although the 2nd Respondent had been joined, no prayers were sought against it.
Petition dismissed, each party to bear its costs
Kenya Law
Case Updates Issue 002/2018
Case Summaries

STATUTES Validity of Licences Issued to Millers in Accordance with Laws that had been repealed by the Crops Act, 2013

West Kenya Sugar Company Limited V. Agricultural Fisheries and Foods Authority & 11 Others
Constitutional Petition No. 26 of 2014
High Court at Kakamega
R. N. Sitati, E. N. Maina & A. C. Mrima, J
June 21, 2017
Reported by Robai Nasike Sivikhe

Download the Decision

Statutes- interpretation and application of statutes- transitional and savings provisions of statutes- where the Crops Act provided that all permits, licenses and statutory instruments issued or issuable under the repealed laws had been repealed- the validity of licenses that were issued under an act that had been repealed- the effect of section 42 (2) (b) of the Crops Act in relation to an application for a license to the Kenya Sugar Board- whether the Petitioner and 7th Respondent had a valid manufacturing license in light of the provisions of the Crops Act- the Crops Act, no 16 of 2013, sections 20 & 42 (2) (b).
Constitutional Law- fundamental rights and freedoms- protection of the right to property- exclusive zoning- whether millers were entitled to exclusive zones within which to carry out their operations- whether the Petitioner was entitled to the Kabras sugar growing zone within Kakamega County to the exclusion of other millers- Constitution of Kenya, 2010, article 40
Constitutional Law- fundamental rights and freedoms- equality and freedom from discrimination- issuance of licenses to millers- where some millers were still in operation despite not having been issued with a license- whether the Petitioner had been discriminated against by virtue of the fact that the 7th Respondent had been allowed to operate without a license- Constitution of Kenya, 2010, article 27
Constitutional Law- fundamental rights and freedoms- the right to fair administrative action and a fair hearing- whether the Petitioner’s right to fair administrative action and a fair hearing had been contravened- Constitution of Kenya, 2010, articles 47 & 50

Brief facts:
The Petitioner’s case was two-fold. First, the Petitioner was contending that it was exclusively entitled to the Kabras sugar growing zone within Kakamega County since it had all along taken the farmers as its business partners and had developed their sugar cane under contract. It contended further that the close proximity (a distance of 16kms between its factory and that of the 7th Respondent) had split its zone into two and reduced the availability of the raw cane thereby compromising its operations. According to the Petitioner, its right under Article 40 of the Constitution was infringed.
 Secondly, the Petitioner averred that it was discriminated against by the Respondents since whereas it had complied with the law and obtained all the necessary licenses, the 7th Respondent had instead been allowed to operate without any license and in flagrant contravention of the Constitution and the Crops Act to the total detriment of the Petitioner. The Petitioner contended that under Article 27 of the Constitution it had a right to equal protection of the law and freedom against discrimination and that the 7th Respondent ought to be subjected to the law of the land as well.
Flowing from the above, the Petitioner further contended that its rights under Articles 47 and 50 of the Constitution continued to be contravened. It was the Petitioner’s case that the 1st Respondent, being a state entity, had unreasonably and in contempt of court failed to implement the decision of the Court of Appeal and had in exercise of its quasi-judicial powers failed to be impartial and had taken upon itself to champion the cause of the 7th Respondent by unlawfully issuing it with a renewal license despite the fact that the 7th Respondent had never been granted an initial manufacturing licence. The Petitioner further averred that as a result of the actions of the 1st Respondent, its rights to fair administrative action and fair hearing remained contravened. 

Issue:

  1. Whether the Petitioner’s license was repealed by the provisions of section 42 (2) (b) of the Crops Act.
  2. Whether the wording of the section 42 (2) (b) clause on repeal of permits, licences and all statutory instruments was a drafting error in view of the section 43 clause on savings and transitional provisions with respect rules and orders .
  3. What was the effect of section 42 (2) (b) of the Crops Act on the application by the 7th Respondent to the Kenya Sugar Board for a license.
  4. Whether the 1st Respondent had issued licences in compliance with the provisions of section 20 of the Crops Act that gives guidelines on issuance of licences.
  5. Whether the Petitioner and 7th Respondent had a valid manufacturing license in light of the provisions of the Crops Act.
  6. Whether millers were entitled to exclusive zones within which to carry out their operations.
  7. Whether the Petitioner had been discriminated against by virtue of the fact that the 7th Respondent had been allowed to operate without a license.
  8. Whether the Petitioner’s right to fair administrative action and a fair hearing had been contravened. Read More...

Relevant Provisions of the Law
Crops Act, No 16 of 2013
Section 20
20. Issue of licences
(1) A licensing authority shall issue licenses to applicants subject to such lawful conditions as the authority may determine.
(2) Every licence shall specify the premises upon which the business specified in the licence may be carried on.
(3) Licenses issued under this Act shall remain in force until the thirtieth of June next following the date of issue, unless earlier cancelled.
(4) There shall be payable for the issue of licenses under this Act such fees as the licensing authority, after consultation with the Cabinet Secretary or county executive as the case may be, prescribe.
(5) The total fees charged under subsection (4) shall depend on the turnover of the dealer and shall not overburden small scale dealers and the cumulative total of all levies and fees payable shall in any event not exceed ten per cent of the gate value of the agricultural or aquatic product.
(6) The licensing authority shall, at least thirty days before granting a licence under this Act, give notice of the proposed grant in the Gazette and in such other manner as the authority may determine.
(7) The notice referred to in subsection (6) shall—
(a) specify the name or other particulars of the person or class of persons to whom the licence is to be granted;
(b) state the purpose for the proposed licence and indicate the date such licence is proposed to be issued to the successful applicant; and
(c) invite objections to the proposed grant of licence and direct that such objections be lodged with the Authority within fourteen days next following the date of the notice.
(8) The licensing authority may after considering the objections, if any, made under this section, grant the licence applied for, subject to such terms and conditions as may be specified therein.
(9) The issuance of a licence to an applicant under this Act shall not be withheld without reasonable cause.
(10) A licence issued under this Act shall not be transferable.

Section 42
42. Repeal and saving
(1) The written laws specified in the Second Schedule are repealed.
(2) Notwithstanding the provisions of subsection (1)—
(a) anything done under the provisions of the repealed law shall, unless the Authority otherwise directs, be deemed to have been done under this Act;
(b) permits, licenses and all statutory instruments issued or issuable under the repealed Acts shall, unless the Authority otherwise directs, be deemed to have been repealed;
(c) revocation of a license, permit or registration under this Act shall not indemnify the licensee from any liabilities to which the person may have become liable under the repealed law;
(d) fees, levies and all other charges imposed under the repealed laws shall cease to be chargeable upon the expiration of a period of six months from the date of commencement of this Act;
(e) subsidiary legislation issued under the repealed law shall continue to apply up to the thirtieth June, 2013.

Section 43
43. Saving and transitional provisions with respect to rules, orders etc.
(1) Any rule, order, regulation, notification or other administrative act made or issued before the commencement of this Act under any repealed law, if it could have been made or issued under a corresponding provision of this Act, continue in force and shall have effect as if it had been so made or issued.
(2) The transitional provisions set out in the Third Schedule shall apply upon commencement of this Act.

Held:

  1. A reading of Section 42(2) (b) of the Crops Act revealed that all permits, licences and statutory instruments issued or issuable under the repealed laws were repealed unless the 1st Respondent expressly directed otherwise. The Respondent was on record admitting that it had not directed otherwise. The second schedule to the Crops Act listed all the repealed Acts which included the Crop Production and Livestock Act (under which the manufacturing licence of the Petitioner was issued) and the Sugar Act among many others. In essence, any licences issued whether to the Petitioner or the 7th Respondent under any of the repealed Acts stood repealed as at August 1, 2014 when the Crops Act had come into operation.
  2. The Petitioner’s contention that its initial manufacturing license was saved by the conduct of the 1st Respondent could not be agreed on.  That was because, the language of section 42(2) (b) of the Crops Act was clear and unambiguous. In addition, the 1st Respondent being a public body was required under article 47 of the Constitution and section 4 of the Fair Administrative Act, to communicate in writing. The instant Court could not agree with the submission that the inaction on the part of the 1st Respondent saved any of the licenses.
  3. Section 42 (2) (b) and section 43 of the Crops Act were distinct and dealt with different issues altogether. There was no ambiguity or vagueness in the wording of the two sections that would warrant the Court to make a finding. That was because section 42(2)(b) dealt with permits, licenses and statutory instruments whereas section 43 dealt with rules, orders, regulations, notifications or any other administrative acts. Issuance of permits, licenses and statutory instruments was a statutory act and could not be an administrative act as contemplated under section 43 of the Crops Act.
  4. The Court of Appeal had ordered the Kenya Sugar Board to hear and determine the application for a license by the 7th Respondent within a reasonable time. By the time the Court of Appeal had made that order, the legal regime had changed by the repeal of the Sugar Act, 2001 and the enactment of the Crops Act. Therefore, the application by the 7th Respondent was for an issuable license under the Sugar Act. Consequently, the resultant license adverted to by the 3rd Respondent (the 1st Respondent’s Interim Director) in his Replying Affidavit was caught up by the provisions of section 42(2)(b) of the Crops Act since that application, like all others, was not saved by any directions of the 1st Respondent.
  5. Whereas the 1st Respondent alleged to have issued the necessary licenses under the Crops Act, there was no evidence that section 20 of the Crops Act was complied with. For instance, under section 20(6) the licensing authority was required to give notice of the proposed grant in the Gazette and under section 20(7) (c) invite objections to the proposed grant of license. In the absence of such compliance, the licenses were a nullity. The Petitioner and the 7th Respondent were on the same footing; neither of them had a valid manufacturing license under the Crops Act.
  6. On the issue of the Petitioner being entitled to an exclusive zone, the Crops Act had not made any such provision. Article 40 of the Constitution protected the right of any person to acquire and own property of any description in any part of the country. The farmers planted, maintained and developed the cane in their respective parcels of lands either individually and/or collectively.The law protected the right of those farmers to own that cane absolutely and such farmers reserved their rights to dispose of their cane as they desired. The farmers were however at liberty to enter into contracts with any miller or millers towards the development of the cane and in such cases the farmers’ right to the cane was subject to the contract(s) as the case would be. The law as it stood had not provided for exclusive zones for any millers. The Competition Act and the Crops Act seemed to frown upon the practice.
  7. The 7th Respondent had demonstrated that the Petitioner, among other millers, had milling plants within closer proximity than the 16 kilometers the Petitioner was complaining about in the instant Petition, but in those other instances the Petitioner had no single complaint. The Petitioner had not denied that position. Therefore, the Petitioner had taken the contrary position in the instant petition with full knowledge that it was a beneficiary of the very position it was articulating against. The Petitioner was approbating and reprobating on the issue of exclusive zones. Considering the conduct of the Petitioner and in view of the multiplicity of suits on the same issue, the Petitioner was abusing the court process.
  8. Neither the Petitioner nor the 7th Respondent had a valid license. As a result, the contention that the Petitioner’s right under article 27 of the Constitution was contravened could not stand. The consequence of the above finding would be to order the closure of both the Petitioner’s and the 7th Respondent’s milling plants pending compliance with the Crops Act. However, that avenue could be not be taken for two reasons:
    1. First, was the issue of public interest; considering the level of investment involved in putting up and running a milling plant and the closure of the mills would adversely affect the farmers, millers, the County Government of Kakamega, and the general public among other sector players. The economy of the region and the country as a whole would also be adversely affected given that agriculture remained the economic backbone of Kenya.
    2. Second, whereas Section 19 of the Crops Act created offences relating to dealing with scheduled crops without licenses, it had not provided for closure of milling plants as a penalty.
  9. The contention regarding the alleged contravention of articles 47 and 50 of the Constitution was premature since the Petitioner’s right to raise an objection was yet to crystalize. That was because the 1st Respondent was yet to consider applications under Section 20 of the Crops Act. In any event, the process of considering the application for a manufacturing license for the 7th Respondent as ordered by the Court of Appeal was caught up by Section 42(2) (b) of the Crops Act.
  10. The present matter brought out some of the intrigues and challenges in the sugar sector. The sector had been undergoing changes since colonial times characterized by the repeal and the enactment of various laws culminating in the enactment of the present Crops Act. In every single instance, the laws endeavored to initiate changes towards attaining the highest standards in accelerating the growth and development in the sector so as to enhance productivity and improve the livelihoods of the people.
  11. A closer look at the Crops Act revealed that various institutions were created with specific mandates. Unless and until those institutions discharged those statutory responsibilities, the challenges in the sector some of which were part of the present Petition were not about to come to an end. The sugar sector regulator which consisted of the 1st and 2nd Respondents as well as any other sector player including the 5th and 6th Respondents had to take action towards compliance with the Crops Act.

Petition partly allowed.
Orders

  1. Declaration issued that the Renewal Licence No. AFFA-SD/MLIC-0001/2015 issued to the 7th Respondent by the 1st Respondent vide a letter dated July 3, 2015 was illegal, null and void. For the avoidance of doubt, the manufacturing licence issued to the Petitioner under the repealed sugar act was likewise null and void.
  2. Declaration issued that the 1st and 2nd Respondents had no power to renew a licence to an Applicant who did not have a Manufacturing Licence duly issued under Section 20 of the Crops Act, 2013.
  3. The 1st and 2nd Respondents ordered to comply with the Crops Act, 2013 within a period of 12 months from the date of the judgment.
IMMIGRATION LAW The Rationality of Extension of Circumstances under which a Person could be Considered a Prohibited immigrant and Inadmissible Person

Republic V. Director of Immigration Services ex- parte Planet Motor Company Limited and Another
Miscellaneous Application (JR) No. 393 of 2016
High Court at Nairobi
R. E. Aburili J
December 16, 2016

Download the Decision

Immigration Law- immigration control- prohibited immigrants and inadmissible persons-circumstances under which a person could be considered a prohibited immigrant and inadmissible persons- whether section 33 (1) of the Kenya Citizenship and Immigration Act gave room for extension of circumstances under which a person could be considered a prohibited immigrant and inadmissible person- Kenya Citizenship and Immigration Act, No 12 of 2011, section 33 (1)
Constitutional Law- Fundamental Rights and Freedoms- the right to fair administrative action and a fair hearing- where the Immigration Department makes a decision to watch list a person- whether the decision to watch list the 2nd Ex parte Applicant was in accordance with the provisions on the right to fair administrative action and the right to a fair hearing- Constitution of Kenya, 2010, articles 47 & 50 (1)

Brief facts:
The 1st Ex parte Applicant was a limited liability company incorporated in Kenya whereas the 2nd Ex parte Applicant was its managing director. The 2nd Ex Parte Applicant held a ‘class – G’ work/resident permit that authorised him to enter, remain and work in Kenya. It was alleged by the Ex Parte Applicants that while on a visit to the Department of Immigration Services at Nyayo House, Nairobi to follow up on an application by the 1stEx Parte Applicant for a permit on behalf of one of its directors, the Ex Parte Applicants were verbally informed by the Respondent that the 2ndEx Parte Applicant had been placed on the immigration watch-list for operating two separate files under his name at the Department of Immigration Services. As a result of the decision by the Respondent to watch list the directors of the 1st Ex parte Applicant, it was claimed that all the directors of the 1st Ex parte Applicant had been unlawfully and unfairly restrained from travelling in and out of the country without being heard. Consequently, the Ex parte Applicants filed a judicial review application and sought judicial review orders of certiorari mandamus, and prohibition. The Ex parte Applicants further sought orders of declaration and compensation.

Issues:

  1. Whether the decision to watch list the 2nd Ex parte Applicant was in accordance with the provisions on the right to fair administrative action and the right to a fair hearing.
  2. Whether section 33 (1) of the Kenya Citizenship and Immigration Act gave room for extension of circumstances under which a person could be considered a prohibited immigrant and inadmissible person.
  3. Whether the Respondent’s decision to watch-list the 2nd Ex-parte Applicant was ultra vires, illegal, irrational and contrary to the principles of natural justice. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 47
47. Fair administrative action
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.

Article 50 (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.

Kenya Citizenship and Immigration Act
Section 33 (1)
33. Prohibited Immigrants and inadmissible persons
(1) For purposes of this Act, a prohibited immigrant is a person who is not a citizen of Kenya and who is—
(a) not having received a pardon—
(i) has been convicted in Kenya or any country of an offence created under a statute for which a sentence of imprisonment is for a minimum term of three years;
(ii) has been acquitted by a court of any offence and who at the time of acquittal has no valid immigration status;
(iii) has committed or is suspected of having committed an offence provided for under international treaties and conventions ratified by Kenya;
(b) a person engaged in human trafficking, human smuggling, sexual exploitation and sex crimes;
(c) a person who procures or attempts engage in trafficking or smuggling into and out of Kenya any person for the purpose of engaging in sexual offenses;
(d) a person who is reasonably suspected to be engaged in or facilitates the trafficking of narcotics, prohibited, controlled or banned substances;
(e) a person who there is reasonable cause to believe that he is engaged in or facilitates trafficking in persons;
(f) a person whose presence in or entry into Kenya is unlawful under any written law;
(g) a person in respect of whom there is in force an order made or deemed to be made under section 43 directing that such person must be removed from and remain out of Kenya;
(h) a person in respect of whom there is reasonable cause to believe that he or she is engaged in, facilitates any activity detrimental to the security of Kenya or any other state;
(i) a person in respect of whom there is reasonable cause to believe that he or she is engaged in, facilitates or is sympathetic to acts of terrorism or terrorist activities directed against Kenya or detrimental to the security of Kenya or any other state;
(j) a person involved in or is reasonably suspected to be engaged in money laundering;
(k) a person convicted of war crimes or crimes against humanity, genocide, murder, torture, kidnapping or in respect of whom there are reasonable grounds for believing they have financed or facilitated any such acts;
(l) a person engaged in or suspected to be engaged in illicit arms trade;
(m) a person engaged in or suspected to be engaged in illegal human body organs trade;
(n) a person involved or reasonably suspected to be involved in crimes related to patents, copyrights, intellectual property rights, cyber-crimes and related crimes;
(o) a person involved in or reasonably suspected to be involved in piracy or has been convicted of piracy and served his sentence;
(p) a person who is or has been at any time a member of group or adherent or advocate of an association or organization advocating the practice of racial, ethnic, regional hatred or social violence or any form of violation of fundamental rights;
(q) a person whose conduct offends public morality;
(r) a person who knowingly or for profit aids, encourages or procures other persons who are not citizens to enter into Kenya illegally;
(s) a person who is seeking to enter Kenya illegally;
(t) a person who is a fugitive from justice;
(u) a person whose refugee status in Kenya has been revoked under the Refugee Act, 2006 (No. 13 of 2006); and
(v) any other person who is declared a prohibited immigrant by the order of Cabinet Secretary subject to the approval of parliament or who was, immediately before the commencement of this Act, a prohibited immigrant within the meaning of the Immigration Act (now repealed);
(w) a person who has been repatriated and or removed from Kenya under any lawful order.

Held:

  1. The role of a court exercising powers of judicial review is limited to the process involved in arriving at a decision, and does not require the court to enter into an inquiry on the merits of a decision. A judicial review of administrative, judicial and quasi-judicial action and decisions of inferior bodies and tribunals by the High Court in exercise of its supervisory jurisdiction flowing from article 165(6) of the Constitution is not in the nature of an appeal. It concerns itself with process and is not a merit review of the decision of those other bodies. And it does not confer on the High Court a power to arrogate to itself the decision-making power reserved elsewhere.
  2. Where a public officer had been granted statutory powers, the exercise of such power was subject to the supervisory jurisdiction of the Court. It was the duty of the Court to ensure the exercise of such powers was legal, rational and compliant with the principles of natural justice.
  3. Article 47 of the Constitution of Kenya guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. The procedure for fair administrative action was elaborated in section 4(3) and (4) of the Fair Administrative Action Act. There was absolutely no evidence to show that the Applicants were heard or given an opportunity to be heard before the decision to watch list the 2nd Applicant by the immigration department. Accordingly, the provisions of article 47 of the Constitution on the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action; and article 50(1) of the Constitution on the right to a fair hearing was violated. In addition, the Fair Administrative Action Act was violated.
  4. Section 33 (1) and (2) of the Kenya Citizens and Immigration Act created two categories of persons who were not wanted in Kenya. Section 33 (1) referred to prohibited immigrants whereas section 33 (2) referred to persons who were not supposed to enter Kenya in the first place. The provision relevant to the instant case was section 33 (1). Section 33 (1) employed the phrase ‘a prohibited immigrant is’ rather than ‘a prohibited immigrant includes’. Where the legislature had used the word ‘is’, there was no room for extension of the circumstances enumerated under section 33 (1).
  5. A person could only be declared a prohibited immigrant on the grounds found in section 33(1).  Those grounds could not be enlarged at the whim of the Cabinet Secretary in charge of immigration affairs, and that the class of persons who could be declared prohibited immigrants was closed.  That closure was emphasized by section 33 (1) (v) where Parliament gave the Cabinet Secretary the power to declare a person a prohibited immigrant for any other reason subject to approval by Parliament. Therefore, it was not open to the Respondent to go out of section 33(1) and declare a person a prohibited immigrant.  Doing so was ultra vires the clear provisions of the Act and called for the Court's intervention.
  6. It was imperative that the decisions of those empowered by law to do certain things had to be within the law granting such powers.  The Respondent could only declare any person a prohibited immigrant if the person fell under the classes created by section 33(1).  The words “operating two separate files under his name at the Department of Immigration" had not appeared in section 33(1) (a)-(v). Therefore, the Respondent could not declare the 2nd Applicant as placed on the immigration watch list or declare him prohibited immigrant on that ground.
  7. The Respondent had no power to order the watch listing of the 2nd Ex-parte Applicant and not even removal from Kenya under section 43 (1) of Kenya Citizenship and Immigration Act, 2011.  The Respondent’s decision which was verbally communicated to the Applicants was not based on the powers granted to him by section 33(1).  He could only do that which the statute allowed him to do.
  8. Assuming that the reason given by the Respondent for the watch listing of the Applicant was indeed a valid reason, was the Respondent’s exercise of power reasonable, or did he act within the rules of natural justice? That was not the case. The Applicants were never given any hearing and/or an explanation or reasons for the decision to watch list the 2nd Applicant with the immigration. In addition, it was the Respondent who was the sole custodian of all the immigration files and who opened such files and handled them, and not the Applicants. Hence, there was no way the Applicants could have been aware of the existence of two files concerning the same person.
  9. No evidence was adduced as to what national interest the Applicant had threatened or was likely to threaten.  A judge was among the very few people who were entitled to know the reasons behind the deportation of a foreign national. The State had to exhibit the evidence in support of the decision to deport a foreign national. Although there was no deportation, the conduct of the Respondent spoke volumes. Although watch listing was not in the statute books, the conduct of the Respondent was likely to trigger a deportation order without due process being followed.
  10. A foreign national had rights and was entitled to equal protection of the law.  He was a human being and was not to be denied any of the inherent human rights or those rights that the Kenyan Constitution guaranteed, even if limited to some extent. He was entitled to know the specific reasons for his deportation or for refusal to renew his resident permit or to be watch-listed.  That was why Parliament through section 33(1) of the Act listed all the reasons that could form the basis for the deportation of an immigrant.
  11. The reason for the watch listing of the Applicant was hidden in a blanket statement called “operating two separate files under his name at the Department of Immigration.” With due respect to the Respondent, the act of operating multiple files for one individual were undertaken by the Respondent. The Ex parte Applicants had not been shown to have opened any files or to be in charge of any immigration desk. The Immigration Department had acted unreasonably since no reasonable person could make such an illogical allegation except to expose their ineptitude to the whole world.
  12. The law is that in the ordinary way and particularly in cases, which affect life, liberty or property, a Minister should give reasons and if he gives none the Court may infer that he had no good reasons.  Similarly where the reason given by the Minister is not one of the reasons upon which the Minister is legally entitled to act, the Court is entitled to intervene since the action by the Minister would then be based on irrelevant matter. That should have been the case in an environment where public servants exercised their powers within the law.  The State had to be supported in its fight against external threats.  That support could only be forthcoming where it placed all its cards on the table.  The Applicants had submitted that the Respondents acted in bad faith.  That allegation was supported by the evidence they had placed before the Court.
  13. The Respondent’s decision was illegal, irrational and contrary to the principles of natural justice. The Applicants who had extensively invested in the country and created employment for the local folks were entitled to a hearing.   The 2nd Ex-parte Applicant had a valid permit and if his permit was revoked before the time limit expired he ought then to be given an opportunity of making representations; for he would have a legitimate expectation of being allowed to stay for the permitted time.
  14. In the Kenya Citizens and Immigration Act, the fact of making an application for renewal of a resident permit presupposed that the application would be considered on its merits and a decision made one way or the other.  If the decision was grossly unfair or perverse and if the decision was not equitable, or if there was no decision, then the same could be challenged either by way of judicial review or by way of a petition.
  15. Courts of law were under a duty to do justice and to protect the sovereignty of the nation of Kenya and its inhabitants. If there was evidence of the Applicants being involved in any of the acts set out in section 33(1) of (2) of the relevant Act, the Court would have been happy to direct that the Respondent, nonetheless, followed the legal procedures for deporting such persons. High handedness was abhorred by the law.
  16. Kenyan laws were certain. Therefore, the Court could not have allowed anybody or authority to create its own regime of “watch listing” persons which terminology was nonexistent in Kenyan laws and thereby causing the persons to be anxious about nothing, while waiting for anything to happen to them. That was subjecting persons to torture and degrading punishment. The 2nd Applicant was entitled to the freedom of movement and security of the person. He could not exercise those rights which were universal and inherent if the Respondent labeled him “watch listed” without giving reasons for such “watch listing” and /or without taking appropriate steps to have the 2nd Applicant know his fate. 
  17. The conduct of the Respondent was unacceptable in law. It was illegal and amounted to abuse of process. It had to be prohibited. The Respondent had to also be compelled to remove from the 2nd Applicant’s file the label or tag of being “watch listed,” as there was no such a thing as being watch listed. If there was reason to investigate the 2nd Applicant’s conduct or dealings, he should have been subjected to due process as by law established. Nothing short of that.
  18.  As the decision by the Respondent to watch list the 2nd Applicant was illegal, it was open to being brought into the Court for purposes of being quashed. The Fair Administrative Action Act created an additional judicial review remedy in the form of a declaration, where there was violation of rights. The Ex parte Applicants’ constitutional rights to fair hearing, fair administrative action, freedom and security of the person of the 2nd Ex parte Applicant ; and the 2nd Ex parte Applicant’s right to freedom of movement and secure protection of the law was violated by the Respondents’ actions and or inactions. A declaration was therefore available to the Ex parte Applicants.

Application allowed.
Orders made as follows:

  1. Certiorari  issued quashing the Respondent’s decision made on July 5, 2016 and communicated to the Ex parte Applicants verbally, placing the 2nd Ex parte Applicant Maratab Bashir on the immigration watch list;
  2. Mandamus  issued compelling the Respondent to remove the 2nd Ex parte Applicant Maratab Bashir from the immigration watch list;
  3. Prohibition issued  prohibiting the Respondent acting either in person or through servants, agents, police officers, employees or anyone else claiming to derive such authority from the Respondent, from arbitrarily arresting, detaining, harassing and or deporting the 2nd Ex parte Applicant Maratab Bashir or in any manner whatsoever curtailing/impeding  the 2nd Ex parte Applicant’s liberty/freedom of movement with regard to the matters herein;
  4. The Respondent was ordered to consider all the 1st and 2nd Ex parte Applicant’s applications for the resident/work permit and for the 2nd Applicant Maratab Bashir’s dependant’s pass, on their merits once lodged and that due process be followed in arriving at any decision affecting the Ex parte Applicants.
LAND LAW Consultation and Inclusion of Residents in Assessment and Approval of a Project that was likely to affect the Physical Plan of a Residential Area

John Kabukuro Kibicho and Another v. County Government of Nakuru and 2 Others
Petition No. 13 of 2016
Environment and Land Court at Nakuru
S. Munyao
October 13, 2016
Reported by Robai Nasike SivikheDownload the Decision

Land Law- physical planning- process of planning approval/change of user- furnishing occupiers of adjacent property with an application for approval where a project was not conforming to the conditions attached to the title deed- whether the process of planning approval was lawfully adhered to and the Petitioners right to be heard upheld- Physical Planning Act, sections 41 (3) & 52
Environmental Law- environmental impact assessment process- public participation during an environmental impact assessment- whether the environmental impact assessment exercise had involved public participation- whether the Environmental Impact Assessment was conducted in accordance with the statutory provisions on public participation- Environmental (Impact Assessment and Audit) Regulations, 2013, Regulation 17
Jurisdiction- Jurisdiction of Courts with the status of a high court- jurisdiction of the environment and land court viz-a-viz the Liaison Committee- whether the Petitioner’s grievances which substantively involved planning permissions that allowed change of user ought to have been channelled to the Liaison Committee- Whether the Petitioner’s grievances ought to have been determined by the Liaison Committee instead of the Environment and Land Court- Constitution of Kenya, 2010, article 162 (2) (b); Environment and Land Court Act, section 13 (2)
Locus Standi- capacity to institute a suit- the capacity to institute a suit by members of a society- whether the Petitioners had capacity to institute the suit on behalf of the society- whether it was necessary for one to demonstrate that they stood to be directly affected by a matter they consider to be a threat to a clean and healthy environment- whether other people, apart from the petitioners, could institute the suit- Constitution of Kenya, 2010, article 70 ; Environmental Management and Co-ordination Act, section 3 subsections (3) & (4)
Constitutional Law- fundamental rights and freedom- the right to fair administrative action- whether the objections by the Petitioners had been debated upon and considered- whether the Petitioners’ right to fair administrative action was breached considering the manner in which their objection was handled.
Constitutional Law- leadership and integrity- responsibilities of leadership- application of the national principles and values by public officers when making decisions- whether the manner in which the objection by the Petitioners was handled by the relevant authorities passed the test of article 10 of the Constitution- whether the authorities had executed their tasks as required under article 73 of the Constitution- Constitution of Kenya, 2010, articles 10 & 73
Constitutional Law- fundamental rights and freedoms- the right to a clean and healthy environment- whether the project in question had the potential to cause harm to the Petitioners’ right to a clean environment.

Brief facts:
The Petitioners had instituted proceedings on their own behalf and on behalf of the Milimani Resident (Nakuru) Welfare Association, which was a society registered under the Societies Act. Its members were said to be registered owners, tenants, and licensees of various properties situated in Milimani Estate within the Municipality of Nakuru in Nakuru County. The petition was prompted by the decision by the County Government of Nakuru and the National and Environmental Management Authority to issue a planning and an EIA licence respectively, to the 2nd  Respondent to commence a multiple storey development (flats) within the Milimani residential area of Nakuru. The site where the project was situated was within a land parcel which had initially been planned to accommodate a single dwelling unit and which had a single residential house. That land was owned by the 2nd Respondent.
On October 27, 2014, the 2nd Respondent had made an application for change of user to the 1st Respondent so as to change the user of the said land from a single residential dwelling unit to multiple storey residential units. The plan was to develop 32 flats accommodated in four storeys. On receipt of the application, the 1st Respondent proceeded to place an advertisement of the application for change of user in the Standard Newspaper of April 16, 2015. That advertisement called for any objections to be made within 14 days.
 The Petitioners averred that that was the first time they got to know of that development. They were unhappy with the proposed development, on the contention that the Milimani residential area had always been a low density residential area. They also argued that the sewer system in place could not sufficiently contain the intended increase in residences and that there would be further nuisance from noise and pollution. On April 17, 2015, the Petitioners wrote to the 1st Respondent making a formal objection to the proposed change of user. In the letter they hoped that the proposed change of user would be rejected and sought that communication on the same be copied to them. A further objection was also made on June 15, 2015 by one David Karanja, the owner of the land parcel that abuts the suit property.
 The Petitioners claimed that despite their objections, the project was approved by the 1st and 3rd Respondents. They averred that the decision was made in gross violation of several of their constitutional rights.

Issues:

  1. Whether the Petitioner’s grievances ought to have been determined by the Liaison Committee instead of the Environment and Land Court.
  2. Whether the Petitioners, as members of a society, had capacity to institute the petition on behalf of the society.
  3. Whether the Environmental Impact Assessment was conducted in accordance with the statutory provisions on public participation.
  4. Whether the process of planning approval was lawfully adhered to and the Petitioners right to be heard upheld.
  5. Whether the Petitioners’ right to fair administrative action was breached.
  6. Whether the manner in which the objection by the Petitioners was handled by the relevant authorities passed the test of article 10 of the Constitution
  7. Whether the proposed building project in question had the potential to cause harm to the Petitioners’ right to a clean environment.
  8. Which principles are considered by Court when interpreting the Constitution?
  9. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 70
70. Enforcement of environmental rights
(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate—

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.Article 73
73. Responsibilities of leadership
(1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—

(i)        is consistent with the purposes and objects of this Constitution;
(ii)       demonstrates respect for the people;
(iii)      brings honour to the nation and dignity to the office; and
(iv)     promotes public confidence in the integrity of the office; and

(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by—

(i)        honesty in the execution of public duties; and
(ii)       the declaration of any personal interest that may conflict with public duties;

(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.Article 162 (2) (b)
162.    System of courts
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
 (b) the environment and the use and occupation of, and title to, land.

Environment and Land Court Act, No. 19 of 2011
Section 13 (2)
13. Jurisdiction of the Court
 (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.

Environmental Management and Co-ordination Act, No. 8 of 1999
Section 3 subsections (3) & (4)
3. Entitlement to a clean and healthy environment
(3) If a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress and the Environment and Land Court may make such orders, issue such writs or give such directions as it may deem appropriate to—
(a) prevent, stop or discontinue any act or omission deleterious to the environment;
(b) compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment;
(c) require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act;
(d) compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and
(e) provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing.
(4) A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action—
(a) is not frivolous or vexatious; or
(b) is not an abuse of the court process.

Physical Planning Act, No. 6 of 1996
Section 41 (3)
41. Subdivision of land
(3) Where in the opinion of a local authority an application in respect of development, change of user or subdivision has important impact on contiguous land or does not conform to any conditions registered against the title deed of property, the local authority shall, at the expense of the applicant, publish the notice of the application in the Gazette or in such other manner as it deems expedient, and shall serve copies of the application on every owner or occupier of the property adjacent to the land to which the application relates and to such other persons as the local authority may deem fit.

Section 52
52. Publication of notice in newspapers
Every notice published in the Gazette under any of the provisions of this Act, except the notices published under sections 49 and 50, shall be simultaneously published in at least two local dailies, one in English and one in Kiswahili and be displayed at the offices of the Chiefs.

Environmental (Impact Assessment and Audit) Regulations, 2013,
Regulation 17
17. Public participation
(1) During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.
(2) In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall—(a) publicize the project and its anticipated effects and benefits by—

(i) posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project;
(ii) publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and
(iii) making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks;

(b)hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments;
(c) ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and
(d) ensure, in consultation with the Authority that a suitably qualified co-ordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority.

Held:

  1. The substantive issue in the suit concerned a planning permission that allowed a change of user of the suit property. A person faced with a planning decision, had a right to appeal that decision to the Liaison Committees. However, it could not be contented that the Petitioners ought to have channelled their grievance to the Liaison Committees. They had absolutely no opportunity to do so. In as much as the 1st Respondent deposed that the Petitioners were informed of the decision allowing the change of user, there was no proof of such. There were no letters or any form of communication from the 1st Respondent to the Petitioners, informing them that their objection against the change of user was rejected. If there was such communication, then the issue of the Petitioners not channelling their grievance through the Liaison Committees would probably have had some weight.
  2. The Respondents could not be allowed to use their own failure to communicate their decision, to shut out the Petitioners from accessing the Environment and Land Court, yet their failure to communicate effectively barred the Petitioners from appealing their decision to the Liaison Committees within the stipulated time. Having not been notified of the decision, the Petitioners could clearly not have accessed the Liaison Committees within the statutory period. The Petitioners had no avenue of presenting their grievance to the Liaison Committees and the Respondents could not be allowed to use their own omissions to slam shut the door of justice in the face of the Petitioners. The Petitioners had a right to access the Environment and Land Court.
  3. The dispute was before the Environment and Land Court which was the court established on the strength of article 162 (2) (b) of the Constitution, with a mandate to hear disputes concerning land and the environment. The jurisdiction was elaborated in the Environment and Land Court Act, 2011 which at section 13 set out the jurisdiction of the Environment Land Court. The dispute in question was related to land use planning, or land administration and management, or was otherwise a dispute relating to environment and land. Hence the Environment and Land Court had jurisdiction to try the subject matter of the suit.
  4. From the petition, it was discernible that the petition had been brought by John Kabukuru Kibicho and Michael G. Karigo suing on their behalf and on behalf of Milimani Resident (Nakuru) Welfare Association which was a society. The two individuals were chairman and treasurer of the society. There could be no question that the two individuals were capable of presenting a petition as they were persons in law. The contention raised by the Respondents on the capacity of the society could not be seen. Societies had no legal personality of their own and ordinarily sued through their officials. That was exactly the scenario in the instant case and there was no problem with that.
  5. The Certificate of Registration issued by the Deputy Registrar of Societies showed that the Milimani Resident (Nakuru) Welfare Association was a society registered on September 3, 2010. The 2nd Respondent’s allegations that the Registrar had refused to give particulars of the Association on the basis that the Petitioner had not filed Annual Returns since 2011 had not been proven since there was no such communication from the Registrar annexed to the affidavit of the 2nd  Respondent. It was not in doubt that one of the Petitioners was a registered society and it had sued through its officials who had legal capacity. The Petitioners were properly before the Court.
  6. The Petitioners were residents of Milimani estate where the development was taking place and the society was comprised of some persons who had an interest in land situated in that estate. They had locus standi to present the petition as they were the persons who felt most affected by the development. But it would not even matter if they were not personally affected by the development. The petition could as well have been filed by a person who was not even a resident of Milimani estate or even a resident of Nakuru County. That was because in the current laws of Kenya, it was not necessary for one to demonstrate that he stood to be directly affected by a project, or any other matter, which such person considered to be a threat to a clean and healthy environment. That was brought out by articles 70 (3) of the Constitution and sections 3 (4) of EMCA.
  7. It was not necessary for one to demonstrate any personal loss or injury, before such person could be allowed to present a suit for the enforcement of environmental rights. So long as an individual was of opinion that a certain project or certain action or inaction, or certain acts or omissions, threatened or had potential to harm the environment, such person was free to approach the courts for redress. The Petitioners had locus standi to present the instant petition.
  8. The EIA report created an impression that it was a casually done report and not one done with keenness and finesse. That was because, first, the site in issue was never a ranch as described in the report. The site had a single dwelling house that was the original user of the property. Secondly, the questionnaires issued by the expert had no date, did not bear names of the persons interviewed and had not indicated the occupations of those persons or their years of settlement in that area. There were blank spaces where those details were supposed to be noted and it was not known who was interviewed and when they were interviewed. There was no hint that the neighbours, who lived next to the project, or around the project, were ever consulted or what their opinions were. That lend credence to the assertion by the Petitioners that they were not consulted and their views were not taken into account by the person who prepared the EIA report. That was not the way in which an EIA report was to be conducted. It was a requirement that the persons around the project would be consulted and their views taken into account.
  9. There was no indication that Regulation 17 of the Environmental (Impact and Assessment Audit) Regulation, 2013 was complied with at all. It had not been suggested by the Respondents, especially the 2nd  Respondent who was the proponent of the project, that there were any posters in strategic public places in the vicinity of the project, affixed so as to alert the public of the upcoming project during the EIA exercise. Neither was there any public advertisement in the newspaper inviting comments. Most importantly, there was no intimation of any meeting held with the surrounding community or the recording of any oral or written comments by any person who was within the vicinity of the project.
  10. The EIA report was done clandestinely and was shrouded in secrecy. The three undated and anonymous questionnaires annexed to the EIA report could not be considered as being compliant to Regulation 17 of the Environmental (Impact and Assessment Audit) Regulation. The project was a major project that was out of character with its existing environment and it was absolutely necessary for the surrounding public to be well informed of the project during the EIA exercise and for their comments to be sought and considered in the report. There was a violation of Regulation 17 of the Environmental (Impact and Assessment Audit) Regulation in the manner in which the EIA report was done.
  11. According to the provisions of section 41 (3) of the Physical Planning Act, if the project had not conformed to the conditions attached to the title deed, then it was necessary that the application for approval, be served on every owner or occupier of adjacent property. A change of user was applied for because the intended use of the land was not in conformity with the conditions attached to the holding of the title. It was therefore among the applications that needed to be served on owners or occupiers of adjacent property. A further notice also needed to be placed in the Gazette, and that being the case, and following the provisions of section 52 of the Physical Planning Act, a further notice needed to be done in two local dailies, one in English and the other in Kiswahili, and another notice also had to be served on the Chief. That was what the law required.
  12. Even if the matter was based on the subjective opinion of the local authority, it could not be argued that a reasonable person addressing his mind to the issues would have any other opinion, other than that there was potential for contiguous land to be affected. There had to be effect on adjoining land because the use of the land would be different from the manner in which the neighbors were permitted to use their land. The privacy of the neighboring land would be severely curtailed, and it did not seem that any measures had been placed, such as planting of trees between the two compounds, if at all it was possible, to minimize that visual impact. The abutting land was clearly going to be affected.
  13. There was only one advertisement in an English newspaper, but there needed to be two advertisements. The other advertisement needed to be placed in a Kiswahili newspaper. In addition, there was no notice to the Chief. Hence there was a breach of sections 41 (3) and 52 of the Physical Planning Act.
  14. There was absolutely no consideration of the Petitioners’ objection. The 1st Respondent virtually threw before the Court some so called minutes, which were unsigned and unauthenticated, in an attempt to demonstrate that the objection of the Petitioners was considered. The minutes placed before the Court could not be considered authentic minutes of the 1st Respondent for they were unsigned and uncertified. Even if they were to be taken as proper minutes, it could not be seen anywhere that the objection was debated and a decision reached as to why the objection was not valid. The nature of the objection also required that there be communication made to the Petitioners so that they could consider whether to appeal the decision, for there was a right of appeal built within the Physical Planning Act. It was not permissible that such objection could be dealt with and be dismissed so casually. It was almost as if it was an irritation meant to be ignored.
  15. There was no indication that the strategic structure plan of 1999 had been deliberated upon and approved in any forum, or that the same was the actual plan for Nakuru County. No Gazette Notice of the approved plan for Nakuru town was shown to the Court By the 1st Respondent. That document could not be considered as being the document that set out the plan for Nakuru County. There was a serious breach of the right of the Petitioners to be heard when the 1st Respondent dealt with the question of change of user.
  16. There was a breach of the right to fair administrative action in the manner in which the objection of the Petitioners was casually brushed away. The authorities had failed in the execution of their tasks as required of under article 73 of the Constitution. There was no evidence that the objection was debated or even given thought. The nature of the project that was at hand required that there be public participation. There was none in the instant case. Public participation was one of the key tenets that underpinned the Kenyan national values and principles of governance as outlined in article 10 (2) of the Constitution.
  17. While interpreting the Constitution, Courts had to consider the national values and principles of governance in article 10 (2) of the Constitution. Those principles include participation of the people as well as good governance, integrity, transparency and accountability. Those values were supposed to be in the DNA of public officers and were to be applied when making decisions in the course of their duties. The cavalier and indifferent manner in which the Petitioners' objection to the project was handled could not be said to pass the test of article 10 of the Constitution.
  18. Participation of the people was the key in safeguarding the environment. It was imperative that those in administration be keen when faced with objections to projects, where the objectors held the view that the project could compromise the environment. The Court could not permit authorities to deal so nonchalantly with such objections. Such objections had to be taken seriously and needed to be considered. Public participation especially when it was related to EIAs was extremely critical and could not be treated as a formality or inconvenience. It was at the very core of any EIA exercise.
  19. Where a procedure for the protection of the environment was provided by law and was not followed, then an assumption ought to be drawn that the project was one that violated the right to a clean and healthy environment, or at the very least, was one that had potential to harm the environment. The Petitioners had demonstrated breaches of procedures both in EMCA and in the Physical Planning Act. The Petitioners demonstrated that the project was one that at the very least had potential to cause harm to their right to a clean and healthy environment.
  20. Even if the individuals who supported the project outnumbered those who were against the project, or vice versa, that did not mean that the project could proceed or not proceed, based solely on that reason. It was not a contest to be won if a majority rooted for the project or a majority had not rooted for the project. Every project had to be independently assessed on its merits following the law and procedures that had been outlined. There could be no short cut.
  21. Personal opinion was not the sole component upon which projects were to be approved. Even the Court’s opinion, on whether or not the project could proceed, was not relevant. What was important was whether the law was followed before allowing the project to proceed. The law was not followed, and because of that, the Petitioners, however few they could be, and however unpopular in the neighborhood they could have been, demonstrated that their right to a clean and healthy environment was in danger.
  22. The EIA licence and the licence for change of user had not been properly issued. There was breach of the provisions of EMCA, and the Physical Planning Act. Having not been issued in accordance with the law, those licences could not remain in place. Hence the licenses were cancelled.
  23. The development on the site had commenced. If the 2nd Respondent was still keen on proceeding with the development, he had to apply afresh for the licenses that the Court cancelled, within 3 months from the date of the judgment. The 1st and 3rd Respondents should hear all objections and all views of concerned residents and comply fully with the provisions of EMCA, the Physical Planning Act, the current plan of the area, and then make a proper, legitimate and reasonable decision, properly communicated, on whether or not the project could continue. If the 2nd Respondent would not proceed as instructed, within the time frame specified, then the 2nd Respondent had to restore the environment to the manner that it was before the project commenced.
  24. All the Respondents were at fault in one way or another. The 1st Respondent was wrong in not following the provisions of the Physical Planning Act and in not considering the views of the Petitioners before allowing the change of user. The 3rd Respondent was wrong in issuing an EIA license before being convinced that there was full compliance with the provisions of EMCA. The ultimate responsibility of ensuring that the project was in conformity with the law rested upon the 2nd Respondent. Therefore, the Respondents had to shoulder costs jointly and/or severally.

Petition Allowed.

CONSTITUTIONAL LAW The Independence of the Office of the Director of Public Prosecutions viz-a-viz Advisories given to the Director of Public Prosecutions by a Senior Counsel who was not a Prosecutor

Bitange Ndemo V. Director of Public Prosecutions and 4 Others
Miscellaneous Civil Application No. 192 of 2016
High Court at Nairobi
R.E Aburili, J
October 5, 2016
Reported by Robai Nasike SivikheDownload the Decision

Constitutional Law- autonomy and independence of institutions- Office of the Director of Public Prosecution – prosecution of a person by the ODPP by relying on an advisory report of a Senior Counsel who was not a prosecutor - whether the Court could interfere with the exercise of the constitutional and statutory mandate of the Director of Public Prosecutions- whether the Director of Public Prosecutions had acted in accordance with the statutory mandate to act independently when reviewing the decision to charge the Applicant- whether the decision to charge the Applicant was proper and in accordance with the law.
Constitutional Law- autonomy and independence of institutions- Office of the Director of Public Prosecution – prosecution of a person by the ODPP by relying on an advisory report of a Senior Counsel who was not a prosecutor- whether an advisory report by a Senior Counsel regarding the prosecution of a person could be considered as evidence.

Brief facts:
On January 29, 2013 the officers  of Ethics  and Anti - Corruption Commission (EACC) recommended to the Director  of Public  Prosecutions that the Ex parte  Applicant,  George  Madanji and other individuals be charged  with various  offences and  indeed  forwarded  a draft  charge sheet  to the Director  of  Public Prosecutions. Later, on August 5, 2013, the officers of the EACC wrote to the Director of Public Prosecutions confirming that after further investigations and review of the evidence available, the proposed charges against Mr Bitange Ndemo and George Madanji were no longer   sustainable, and recommended that the Applicant and Madanji be charged together with members of the ministerial tender committee. The Director of Public Prosecution on September 2, 2013  after taking  into account  exhaustive  investigations  conducted  by the EACC officers  and the  latter’s  recommendation, ordered   the inquiry file   to be closed  since the Applicant’s prosecution was not warranted. The Applicant claimed that on September 5, 2014, the Director of   Public Prosecutions in a discriminatory and selective manner, unlawfully, maliciously and without any basis whatsoever recommended the Applicant to be prosecuted in the same investigations file.
 According to the Ex parte Applicant, although   the criminal  case   was instituted  against him in  2014, it  had not been heard and determined  and that  during the  course of  the pending   trial, the  Ex parte  Applicant accessed  documents and correspondence which confirmed that his continued   prosecution was malicious, was instituted  for purposes other than  the furtherance  of the justice  system,  and was a clear  abuse of court process. Further, the Ex parte Applicant claimed that the people recommended  for prosecution were shielded from prosecution in an attempt to embarrass, humiliate  and coerce  the Applicant  while   others  were treated  as prosecution  witnesses  in an attempt   to deny  the Applicant  a defence.
 According to the Applicant, his continued prosecution on no foundational evidence was ill founded and a violation of his fundamental rights and freedoms as enshrined in the Constitution.

Issues:

  1. Whether the Court could interfere with the exercise of the constitutional and statutory mandate of the Director of Public Prosecutions
  2. Whether the Director of Public Prosecutions had acted in accordance with the statutory mandate to act independently when reviewing the decision to charge the Applicant.
  3. Whether an advisory report by a Senior Counsel regarding the prosecution of a person could be considered as evidence.
  4. Whether the decision to charge the Applicant was proper and in accordance with the law.Read More...

Held:

  1. The criminal justice system, and  therefore, criminal trials, are a matter of  public interest  and are conducted  in the public  interest, to ensure  that the  rule of law, one of the pillars  of  good governance   is promoted and protected.  It was for that reason that the makers of  the Constitution of Kenya,  2010  deemed  it fit to enshrine  therein several  state  institutions such as the  office of  the  Inspector General of Police and the Director of  Public  Prosecutions, to  be the custodians of the criminal justice  system  in ensuring  that the rule of law was protected  and promoted. Those two state agencies/independent offices functioned in the broader society and not in isolation. 
  2. The Courts  exist to administer  justice  in their exercise  of judicial authority  which  is donated  by the people of Kenya, to administer  justice  to all  irrespective  of status;  to ensure expeditious  justice; to  administer  justice without undue regard to  procedural  technicalities and to  ensure that  the purpose and principles  of the Constitution  are protected  and promoted.
  3. All state organs, offices and persons were subject to the authority of the Constitution.  The Director of Public Prosecutions exercised power donated by article157 of the Constitution and the Office of Director of Public Prosecution Act. In the exercise of the powers conferred by the Constitution, the Director of Public Prosecutions would have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The Director of  Public  Prosecutions was also empowered to work without  being under  the direction of or control of any person or authority and to apply all principles  and values  of the Constitution and to be  subject  only to the Constitution.
  4. A court ought  not to usurp  the constitutional  mandate  of the Director of Public Prosecutions  to investigate  and undertake  prosecutions  in the exercise  of the discretion conferred  upon that  office.  The mere  fact that   the ongoing  criminal  prosecution   was bound to  collapse  was no ground for halting  those proceedings  by way of Judicial Review proceedings, since Judicial Review  proceedings  were not concerned with determination of the merits  but with the decision  making  process.
  5. That an  applicant  had a good defense  in the criminal  process was  a ground that ought not to be relied  upon  by a court in order to halt  the criminal process  being  undertaken  bona fides since that defense  was open  to the applicant  in those  proceedings. However, if the applicant demonstrated  that the criminal  proceedings   that the Director of Public Prosecutions  or the police  have commenced  or intend to  commence against  him constitute  an  abuse  of the legal process, the court  will not  hesitate  to put a halt  to such proceeding(s)  or declare the  proceedings as being  in breach of  the law.
  6. Criminal proceedings  were to be  impartially  conducted  in the interest   of the general  public  and when  a prosecution was not  impartial  or when it was  being used   as a  machinery to cause  an injustice, or to shield the real perpetrators of crime,  the court  would not  hesitate  to find that that was an abuse of the court process, oppressive  or vexatious.  That was because, in criminal law a person was put in jeopardy and his personal liberty was involved.  If the object of the prosecution was to over awe the accused suspect by brandishing at him the sword of punishment there under, such an object was unworthy to say the least and could not be countenanced by any court.
  7. The  prosecution should never  be seen to be actuated  by the desire to punish the applicant or to oppress him into  acceding  to their demands  by brandishing  the sword  of punishment  under the  criminal law, than  a genuine desire  to punish  on behalf  of the public  a crime committed. And if it was demonstrated that the predominant purpose of the prosecution was to further that ulterior motive, then the High court would intervene.
  8. The High Court  in its exercise  of Judicial  Review jurisdiction must only  exercise  such power of reviewing  decisions  taken  by the Director of Public Prosecutions to prosecute  very sparingly  and with circumspection.  It was never the intention of the makers of the Constitution that the courts superintend every move that the Director of Public Prosecutions makes. The supervision and  superintending should only  occur where   there is evidence of patent  abuse and  where the  criminal justice  system is likely  to be brought  into disrepute  because of the heavy misconduct  of the parties  or institutions  involved  in the criminal justice  system.
  9. The issues  raised by the  Applicant  raised  real questions and the declaratory  relief sought  was directed to the  determination of  legal controversies  whose answer  was capable  of producing   some real  consequences  for the parties. Issues of  abuse of the criminal justice  system and contravention of the  Applicant’s  constitutional  rights to  freedom  and security  of the person and also the right  to  secure protection of the law and to be free from any discrimination whether directly or indirectly were real  questions that were  not abstracts or hypothetical. Equally, issues of selective prosecution and gross abuse of court process and claims of oppression and malice were not hypothetical abstract questions.
  10. The new  evidence   was never  brought to the knowledge of the Applicant  and that was the  reason  why the Applicant had humbly  submitted to the jurisdiction of the Chief Magistrate’s Court to answer  to those charges  believing that  the said charges  were based  on  the earlier  allegations  which the  Applicant  had responded  to and  recorded  statements  denying  his involvement  in the alleged crimes. The Director of Public Prosecutions  had kept as  a secret  the new evidence  which  Counsel for  the Respondents  maintained, was sufficient  to nail the Applicant  to a conviction by the court. That decision by the Director of Public Prosecutions had violated the Applicant’s right to a fair hearing and that violation was amenable   to a declaration.
  11. The court could not interfere with the constitutional and statutory mandate of the Director of Public Prosecutions. The decision to institute criminal proceedings by the Director of Public Prosecutions was discretionary and was not subject to the direction or controls of any authority. The Office of Director of Public Prosecution was an independent  office and  the court would  therefore  in an  ideal  situation  be reluctant  to prohibit   that office  from  exercising  its statutory and constitutional powers except  in the clearest  of cases.
  12. The Director of Public Prosecutions had not  acted independently  in that he accepted  to be directed   by a Senior Counsel  who was   not even  an investigating officer  in the matter, in deciding  who to  charge and who not to  charge  and with  which offences, even when the investigations that would determine the actual charges were apparently still being undertaken by the Director of Criminal Investigations.
  13. Although, it was found that   there  was  incriminating   evidence against  some suspects in the advisory given by a Senior Counsel, his  reasoning for excluding those other suspects  from prosecution was not only irrational but  without  foundation. The advisory by the Senior Counsel was couched in a manner that suggested monkey business and guided by extraneous matters. The decision by the Senior Counsel, (which decision was adopted by the Director of Public Prosecutions without any question) to charge the Applicant to the exclusion of self-incriminated suspects was arrived at in an arbitrary, skewed, discriminatory and selective manner. That was not acceptable and amounted to abuse of legal process and abuse of power to prosecute.
  14. Where it was crystal clear that the prosecution’s strategy  adopted was meant   to selectively  secure  a conviction  against the  Ex parte Applicant  by ensuring that  certain  individuals  from whom the Ex parte Applicant  derived  his decision making  power were  unjustifiably  shielded  from, such  prosecution would not  pass  either  the Constitution or statutory  tests. It was even worse where from the circumstances of the case, the same persons being shielded could have   been potential witnesses for the Ex parte Applicant. The Respondents tried to render a potential witness for the Ex parte Applicant incompetent by enticing him to be a prosecution witness.  That strategy constituted an unfair trial under article 50 of the Constitution.
  15. The Director of Public Prosecutions could not be said to have been guided by the requirement to promote constitutionalism as mandated under the Constitution and the Office of Director of Public Prosecutions Act.  To the contrary, the Director of Public Prosecutions would be breaching the Constitution which inter alia barred discrimination in article 27.
  16. Whereas the court was  alive to the fact of  the Director Public Prosecutions having the discretion on  who to charge and who not to charge,  that discretion  and exercise  of power had to be judicious and in so doing, had to take  into consideration the law  and circumstances  of each case. The Director of Public Prosecution had failed to act in accordance with the statutory requirements to act independently in reviewing the decision to charge the Applicant after closing the inquiry file. He relied on the opinion of the Senior Counsel without questioning the reason behind exclusion of other suspects who had given self-incriminating statements and even exculpated the Ex parte Applicant from wrongdoing.
  17. If the proceedings obviously lacked any proper foundation in the sense that there was no evidence capable of sustaining a committal, they would obviously be vexatious and oppressive.  In such a case, the proceedings  themselves  would be an abuse of the process of the local court and  will lack  any such  foundation, the Court would be justified in interfering  to halt  the proceedings  in limine  in order to prevent  the defendant  from being subjected to unfair  vexation and oppression.  For a man  to be  harassed  and put to the  expense of  perhaps  a long trial  and then  given an absolute  discharge was hardly from any point  of view an  effective  substitute  for the  exercise by the courts  of its inherent  power to prevent  abuse   of the process.
  18. The instant case was one of those cases where the prosecution of the Ex parte Applicant was nothing but a setback to the criminal justice system. It was a mockery, scorn and ridicule of justice for the public who had an interest in the outcome of criminal prosecutions which were initiated in the name of the Republic. There was  absolutely  no foundation upon  which the  Respondents  were mounting  a prosecution against the  Applicant   since the  Applicant could not  be charged  with theft or conspiracy to steal when  the person who was said to  be  holding the  key to  the success of the prosecution and who was his co-conspirator,  and  who received   the whole purchase price which was alleged to have been stolen from poor landowners of Malili Ranch Limited denied making any payments to the Applicant.
  19. The advisory of Senior Counsel in itself was not evidence, for a prosecutor could not be a witness in the case that he was mounting a prosecution.  The Instant Court  was  not faulting  the sufficiency or veracity of the available   evidence  to mount a prosecution, but the selective, biased, discriminatory, irrational, opinionated  and oppressive manner  in which  the Senior Counsel made  the decision that the Applicant  be charged with offences  for which the ‘star’ witness  had clearly  exonerated  the Applicant from blame  yet that  star witness  who was also  said to  be a suspect  who had  incriminated  himself  was   being used as a  prosecution  witness to  secure  a  conviction   against the Applicant; and the DPP who was in charge of prosecution had not assessed or questioned that opinion before dragging and arraigning the Applicant to court.
  20. One who shielded a suspected criminal was himself culpable for aiding and abetting crime.  The decision to charge the Applicant  with a criminal  offence(s)  when on the face of it the key (star) prosecution witness  exonerated him  from blame  was in itself  an abuse of  discretion and an exercise of  discretion for  an improper  purpose meant to achieve nothing but playing to the public gallery.  The Director of Public Prosecutions  was also  in breach  of  the  duty to act   fairly; he had failed to  exercise  statutory  discretion  reasonably; had  acted in a manner to frustrate  the purpose of the  Constitution and the Act donating the  power; he had  impeded his discretion; had  failed to  exercise  discretion and had acted   irrationally  and unreasonably.
  21. The instant Court  was not  concerned  about the  sufficiency  of evidence  but whether  the  decision to charge  the Applicant  and in  a selective, discriminatory  and arbitrary manner  could be  left to  stand. Such a prosecution could not be allowed to continue for it was only intended to pull the wool over the public eyes that action was being taken against corrupt people when in essence there was nothing being done.
  22. The  prosecution of the Applicant  was a manipulation and misuse  of the court  processes  and was intended  to  deliberately  deprive the Applicant  of protection of the  law  or  to take  unfair  advantage  of the Applicant’s  humble  submission  to the jurisdiction  of the criminal court. The failure to avail to the Applicant  new  evidence that formed the subject of  fresh charges  in court  was not only prejudicial to him in the  preparation and conduct  of his defense  but clearly  violated his constitutionally  guaranteed  rights  to fair hearing  and fair trial  as espoused  in Articles  50(1) and 51  of the Constitution.
  23. If a criminal prosecution is seen as amounting to an abuse of the process of the court, the court will interfere and stop it.  This power to prevent such prosecutions is of great constitutional importance. It has never been doubted.  It is jealously preserved.  It is readily used, and if there are circumstances of abuse of the process of the court, the court will unhesitatingly step in to stop it.
  24. The Respondents had dared the Applicant to file a suit for malicious prosecution if he thought that the prosecution was acting with malice. That challenge by the prosecution was an indication of high handedness and evidence of the Applicant’s prosecution being a pasty wash and a public stunt that fortified in the face of the public interest and public good.  Kenyan  tax payers  were never interested  in malicious  prosecutions  which were  orchestrated  and  planned  by the  prosecution which was also ready, able and  willing to  pay damages  for malicious   prosecution.
  25. The public good and public interest for which criminal prosecutions were initiated would be lost.  It  was an  abuse of  court process  to  knowingly, maliciously  and oppressively prosecute  an  individual  and with  the intention of  vilifying  or  disparaging him and  parading  him in the public gallery  as the most wanted economic criminal in such  an honestly dishonest manner.  That was an abuse of the legal process which any court of law that was ordained to be a temple of justice had to intervene to stop in order to promote and protect the inherent integrity of the Ex parte Applicant.
  26. The process of the Court had to be used properly, honestly and in good faith, and could not be abused.  The court could not allow  its function as a court of law  to be misused  and could summarily  prevent  its machinery  from being  used as  a means  of vexation or  oppression  in the process    of litigation. It was the duty of the court to stop such abuse of the justice system. Under article 157(1) of the Constitution, the Director of Public Prosecutions was under an obligation to prevent and avoid abuse of legal process while exercising his powers.
  27. The Applicant successfully  persuaded the   Court  that there was clear  abuse of  legal and court process, and not  that the charges  were incompetent, which latter position  would be for the trial Court to  determine  under Section 89(5) of the  Criminal  Procedure Code  which empowered  the trial magistrate to refuse to admit  a complaint  or formal  charge  that  in his/her  opinion had not  disclosed  an offence. There was no challenge to the sufficiency of evidence. It was trite that the criminal  justice  system was being  manipulated  with  a view to denying   the Applicant  the right  to a fair  trial  and to be accorded   equal  protection of the law and to the  liberty  and security of the person.
  28. The Applicant was not seeking some form of illegal unconstitutional immunity from prosecution.  The Constitution of Kenya 2010 lifted the persons’ rights   over and   above the powers that be on state agencies.  The power vested in the Director of Public Prosecutions and other state machinery was the power and authority that emanated from the people and that power, as espoused in article 73 of the Constitution was to serve the people and not to rule them. The bearers of that power had to exercise it in an   accountable and transparent   manner and in the manner that would bring dignity and integrity and build confidence in the offices that be.
  29. Where it was clear that the decision to prosecute the Applicant   was unreasonable and irrational, the Court was called upon   to intervene. A prudent and cautious prosecutor had to be able to demonstrate that he had a reasonable and probable cause for mounting a criminal prosecution. Otherwise the prosecution would be malicious and actionable. The decision to review the decision that closed the inquiry   file could not be justified.  It was discriminatory, selective and therefore unconstitutional and unlawful.
  30. The power conferred on the Director of Public Prosecutuion was not absolute power. Absolute power was open to abuse and that was why the Constitution found it fit to provide checks. The impugned decision was shrouded in mystery and secrecy. The applicant was never confronted with the new evidence to respond to it. Hence, the Ex parte   Applicant had established sufficiently that he was entitled to the declarations and prohibition orders sought.

Petition Allowed.
Orders of Prohibition issued prohibiting the continuance of the Chief Magistrate’s Court (ACC) at Milimani vide criminal case No. 19 of 2015 in the manner intended against the Petitioner/Applicant Dr. Bitange Ndemo. 

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