Weekly Newsletter 004/2018

Weekly Newsletter 004/2018



Kenya Law

Weekly Newsletter


Section 7 and 10 (4) of the Work Injuries Benefits Act 2007, which provide for the extent of an employer’s liability for workplace injuries and diseases and also ministerial approval of insurers for such liabilities, are inconsistent with the repealed Constitution and the 2010 Constitution
Attorney General v Law Society of Kenya & another
Civil Appeal No 133 of 2011
Court of Appeal at Nairobi
P N Waki, Asike-Makhandia & W Ouko, JJ A
November 17, 2017
Reported by Beryl A Ikamari
Download the Decision
Constitutional Law-fundamental rights and freedoms-freedom of association and right to property-statutory stipulation that insurance cover for workplace injuries and diseases for which employers were liable would be obtained only from insurers who were approved by the relevant minister-whether such a stipulation was constitutional-Constitution of Kenya 2010, articles 36 & 40; Constitution of Kenya (repealed) sections 80 & 75(1); Work Injuries Benefits Act, No 13 of 2007, section 7(1). 
Constitutional Law-fundamental rights and freedoms-right to a fair hearing, right to property and right to fair administrative action-statutory provision on the extent of an employer's liability for workplace injuries, diseases and deaths, which failed to factor in the employee's contribution to the injury, disease or death-whether that statutory provision violated the right to a fair hearing, right to property and fair administrative action by reducing the nature of defences against liability which would otherwise be available to an employer-Constitution of Kenya 2010, articles 47; Constitution of Kenya (repealed) sections 77(1) & 75(1); Work Injuries Benefits Act, No 13 of 2007, section 7(1). 
Constitutional Law-alternative dispute settlement mechanisms-statutory provisions which exclude access to Courts in the first instance and provide for a dispute settlement mechanism-whether provisions under sections 16 & 23(1) of the Work Injuries Benefits Act which prohibited access to Courts in the first instance and provided for claims to be lodged with the Director of Occupational Safety and Health Services (the Director), were constitutional-Constitution of Kenya (repealed), sections 60, 77(9) & 77(10); Work Injuries Benefits Act, No 13 of 2007, sections 16 & 23(1). 
Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination-statutory provision which gave a right of appeal to an objector and not an affected person-whether such a provision was discriminatory- Constitution of Kenya (repealed), section 82(1); Work Injuries Benefits Act, No 13 of 2007, sections 52(1) & 52(3).
Statutes-interpretation of statutory provisions-transitional provisions-interpretation of the provisions of section 58(2) of the Work Injuries Benefits Act-the constitutionality of section 58(2) of the Work Injuries Benefits Act which provided that claims instituted before the commencement of the Act would be deemed to be claims lodged under the Act, was constitutional-whether it took away the right to legal process by converting pending suits into claims under an Act- Constitution of Kenya (repealed), section 75(1); Work Injuries Benefits Act, No 13 of 2007, section 58(2).
 
Brief facts:
At the High Court, the 1st Respondent challenged various provisions of the Work Injuries Benefits Act of 2007 and stated that they were unconstitutional. He stated that the following provisions of the Act were unconstitutional, namely;
  1. Section 7(1) required an employer to obtain insurance to cover for its liabilities with respect to its employees from an insurer approved by the Ministry of Labour and Human Resource Development. The 1st Respondent said that it was a violation of the right to property as it required an employer to commit additional funds for purposes of obtaining the insurance cover and that it deprived the employer of the liberty to pick an insurer of its choice as it was a requirement for the insurer to be approved by the relevant Ministry.
  2. Section 10(4) which provided for the employer's liability for injury suffered by an employee. The 1st Respondent stated that it provided for liability in a manner that failed to factor in defences which could arise where an incident which caused injury was attributable to the employee's actions or inaction. Therefore, the 1st Respondent stated that it violated the right to a fair trial by making defences unavailable and it authorized unfair acquisition of property where an injury was suffered.
  3. Section 16 which had the effect of preventing an employee from instituting a suit in relation to injuries arising from an accident or disease, was said to be unconstitutional. The 1st Respondent explained that it would affect pending suits and cause them to be adjourned generally and also cause decrees already issued to be incapable of execution.
  4. Section 23(1) gave the Director of Occupational Safety and Health Services (the Director) power to make decisions on any claim. The 1st Respondent argued that it was unconstitutional as it deprived Courts of judicial powers and conferred them on the Director.
  5. Section 52(1) and 52(3) provided for the handling of objections by the Director who was required to answer the objection by varying or upholding the decision and to give reasons for the decision which was objected to. Under the provision, the objector was entitled to appeal at the Industrial Court against the decision of the Director but the affected person had no corresponding right. The 1st Respondent said that the lack of a corresponding right of appeal amounted to discriminatory treatment.
  6. Section 58(2) of the Act stated that claims instituted before the commencement of the Act would be deemed to be claims lodged under the Act. The 1st Respondent said that the conversion of pending suits in Court into claims under the Act would have the effect of taking away property rights without due process.
The High Court's finding was that sections 4, 7(1), 10(4), 16, 23(1), 25(1), 25(3), 52(1), 52(2) and 58(2) of the Work Injury Benefits Act were unconstitutional. The Appellant lodged an appeal at the Court of Appeal to challenge the High Court's decision.
 
Issues:
  1. Whether section 7(1) of the Work Injuries Benefits Act 2007, which provided that insurers providing insurance cover for work-place injuries and disease liabilities for employers, would have to be approved by the relevant Minister, was a violation of freedom of association and the right to property.
  2. Whether section 10(4) of the Work Injuries Benefits Act which provided for the employer's liability for work-related injuries, diseases and deaths without considering the employee's fault or contribution, was a violation of the right to a fair hearing and the right to fair administrative action.
  3. Whether section 10(4) of the Work Injuries Benefits Act which provided for a dispute settlement mechanism that limited access to the Courts was unconstitutional.
  4. Whether sections 16 & 23(1) of the Work Injuries Benefits Act which prohibited access to Courts in the first instance and provided for claims to be lodged with the Director of Occupational Safety and Health Services (the Director), were constitutional.
  5. Whether sections 52(1) & 52(2) of the Work Injuries Benefits Act which provided for a right of appeal to an objector without providing for a corresponding right of appeal to the affected person, was discriminatory.
  6. Whether section 58(2) of the Work Injuries Benefits Act which provided that claims instituted before the commencement of the Act would be deemed to be claims lodged under the Act, was constitutional.
Held:
  1. To determine whether the declaration of unconstitutionality of various provisions of the Work Injury Benefits Act was justified, the Court would consider the following principles, namely;
  1. Section 30 of the Constitution (repealed) vested legislative power in Parliament which consisted of the President and National Assembly. Parliament was not subject to the control or direction of any person in the discharge of its functions. However, under section 123(8) of the Constitution (repealed), Parliament's independence did not mean that a Court of law could not exercise jurisdiction and determine whether Parliament had exercised its functions in accordance with the Constitution and the law.
  2. The appeal was about the interpretation of the repealed Constitution vis a vis the nine impugned sections of the Act to ascertain whether they were in conflict with that Constitution. It was also important to test those sections against the Constitution of Kenya 2010 which was promulgated after the issuance of the High Court's decision. The aim would be to ensure that the provisions did not offend the existing constitutional order.
  1. The cardinal rule in construing a statute or a provision of a statute is to interrogate the intention expressed in the statute itself by the drafters. The intention would be determined by reference to the precise words used in the statute, their factual context, and, their aim and purpose, while having regard to the fact that each case would have to be resolved by reference to its particular factors. In examining whether a particular statutory provision was unconstitutional, the Court would have regard not only to its purpose but also its effect.
  2. Section 3 of the Constitution (repealed) provided for the supremacy of the Constitution. It stated that any law which was inconsistent with the Constitution (repealed) would be void to the extent of the inconsistency.
  3. Section 7(1)(2) of the Act made it mandatory for an employer to take insurance with respect to any liability that the employer could incur as a result of work-related injuries and diseases suffered by employees. From an economic point, the provision was good and innovative. It cushioned the employer and provided a predictable cost for handling risks in case of liabilities which could lead to insolvency or bankruptcy. It also offered the employee easier access to medical care and compensation.
  4. In a free market economy, the Government could not dictate to employers the insurer from which to take insurance cover. There were regulatory measures, including the Insurance Regulatory Authority (IRA) which had the mandate of licensing, regulating, supervising and general administration of insurance companies’ affairs. The requirement that an insurer would have to be approved by the Minister was a limitation on freedom of association under section 80 of the Constitution (repealed) and article 36 of the Constitution of Kenya 2010.
  5. Section 10(4) of the Act imposed liability on the employer regardless of who was to blame for an injury, disease or death suffered in work-related circumstances. To that extent, the provision offended the principle of ex turpi causa non oritur actio, that no action may be founded on illegal or immoral conduct. Where an employee was injured through wilful misconduct or against the direction of the employer or in the course of committing a criminal act, the employer could not be held liable and would be free to raise the defence of illegality or contributory negligence.
  6. The High Court found that section 10(4) of the Act which provided for the extent of an employer's liability for workplace injuries or diseases, offended section 77 of the Constitution (repealed) but that finding was erroneous. Section 77 only dealt with the fair hearing of persons charged with a criminal offence. Nonetheless the statutory provisions would not pass muster under article 47 of the 2010 Constitution of Kenya, 2010 as it was arbitrary.
  7. Section 16 of the Act provided that no employee or his dependants could institute a Court action against an employer to claim damages related to a work-related accident or disease resulting in disablement or death of an employee. The recourse for such employees or dependants was to notify the Director of the loss suffered. The High Court found that the provision offended the employer's guaranteed rights to due process of law.
  8. There was a complaint that the right of appeal provided in section 52(2) of the Act to an objector, and not an affected person, was discriminatory. Generally, nothing in sections 16, 23 and 52(2) of the Act was contrary to the Constitution or discriminatory. Section 16 restricted claims for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of an employee to the procedure laid down under the Act. The Director, had enormous adjudication powers from the point when a report was filed, award of compensation was made up to a review of the decision.
  9. The Court's jurisdiction flows from either the Constitution or legislation or both. Courts would not, generally, have jurisdiction where statute provided for a mode of redress for a particular grievance. The jurisdiction donated to the Director to hear disputes was not unique. Section 23 which gave the Director jurisdiction to hear claims for injuries and diseases which were work-related was not unconstitutional.
  10. The Director's powers to hear claims were legitimate and they were also circumscribed and not arbitrary. For example the objective of the inquiry and investigation by the Director was to verify the report in order to decide upon any claim or liability. The Director retained power to review his decision in the event a party was thereby aggrieved. There was an appellate avenue to the Employment and Labour Relations Court.
  11. The High Court invalidated the provisions of section 25 of the Act without giving reasons as to why the provision was inconsistent with the Constitution. Section 25(3) of the Act provided that before an employee was paid compensation he had to undergo a medical examination by a practitioner designated by the Director or the employer with the approval of the Director and he had a right to have a medical practitioner of his choice present during the examination. The provision allowed for equality of arms by giving the employee the right to have a medical practitioner of his choice present during an examination. The section did not discriminate against any party and it was an error to hold that it was contrary to section 82 of the Constitution (repealed).
  12. Section 52 of the Act gave an objector a right to appeal without giving an affected party a corresponding right. There was no reason in an adversarial system for only one party to have a right of appeal. The provision appeared to be a drafting error and it was not inconsistent with the Constitution, it was capable of being remedied via a legislative amendment.
  13. Section 58(2) was to the effect that claims arising from a work-place accident or disease occurring before the commencement of the Act would be deemed to have been lodged under the Act.  The legislative practice was that when a new judicial forum was created to replace an existing system, all proceedings pending in the previous system would be finalized in the forum where they were commenced. Section 23 of the Interpretation and General Provisions Act was to the effect that where a written law was repealed, unless a contrary intent was expressed, the repeal would not affect the previous operation of the repealed law in relation to interests, rights or obligations provided for by that law.
Appeal partly allowed.
Orders:-
  1. The High Court's declaration to the effect that sections 4, 16, 21 (1), 23(1), 25 (1) (3), 52 (1) (2) and 58(2) of the Work Injuries Benefits Act 2007 were inconsistent with the Constitution (repealed), was set aside.
  2. Section 7 (in so far as it provided for the Minister’s approval or exemption) and 10 (4) of the Work Injuries Benefits Act 2007 were inconsistent with the Constitution (repealed) and the Constitution of Kenya 2010.
Kenya Law
Case Updates Issue 004/2018
Case Summaries

CONSTITUTION LAW The Role of County Governments with Respect to Assets, Liabilities and Staff of Defunct Local Authorities.

(Interim) County Secretary, County Government of Kakamega V Republic Ex parte Ali Adam & another
Civil Appeal No. 14 of 2015
Court of Appeal  at Kisumu
Musinga, Gatembu & Murgor, JJ.A
March 31, 2017.
Reported by Ribia John & Kakai Toili

Download the Decision

Constitutional Law – devolution – County Governments – County Governments vis a vis defunct local authorities - whether County Governments were the legal successors of the defunct local authorities – Constitution of Kenya, 2010, articles 174, 175, 176, 186, 6th Schedule, sections 15, 33; Transition to Devolved Government Act, 2012 sections 3, 4, 7, & 12; Intergovernmental Relations Act, 2012, section 12 (b); County Governments Act, 2012 sections 5, 134 (1) & (2)

Constitutional Law – devolution – County Governments – functions of County Governments – whether County Governments automatically assumed and subsumed the responsibility for the assets, liabilities and staff, (including court orders and decrees for or against the now defunct local authorities - Constitution of Kenya, 2010, articles 174, 175, 176, 186 & 6th Schedule, sections 15, & 33; Transition to Devolved Government Act, 2012 sections 3,4, 7, & 12; Intergovernmental Relations Act, 2012, section 12 (b); County Governments Act, 2012 sections 5, 134 (1) & (2)
Constitutional Law – interpretation of the Constitution – sixth schedule to the Constitution - section 33 - whether section 33 of the sixth schedule to the Constitution should have been construed to mean that County Governments were the legal successors of local authorities- Constitution of Kenya articles 174, 175, 176, 186,  sixth schedule
Constitutional Law – devolution – Transitional Authority – functions of Transitional Authority – auditing of local authorities – auditing of local authorities before transfer of assets or liabilities - whether it was mandatory for the Transition Authority to carry out an audit of a local authority before transfer of assets or liabilities - Constitution of Kenya sixth schedule; Transition to Devolved Governments Act, sections 7, 35 (1)
Civil Practice and Procedure – causes of action against defunct local authorities – taking over of suits against defunct local authorities by County Governments -whether legal rights or causes of action commenced in a court of law or tribunal against a local authority was the responsibility of the County Government - Constitution of Kenya, 2010, article 184; Urban Areas and Cities Act, sections 10, 12, 59
Words and phrases- definition- institution – definition of institution - an establishment, organization or association instituted for the promotion of some objects especially one of public or general utility - Oxford English Dictionary

Brief facts:
The Ex parte Respondents were appointed as casual firemen drivers of the Kakamega Municipal Council (the defunct council) on February 15, 2007. On October 22, 2010, their employment was terminated without notice.  Aggrieved by the defunct council’s actions, the Ex parte Respondents filed a suit in the Industrial Court claiming that their employment was unlawfully terminated when they sought to have it converted from casual to permanent following 3 years of employment. They further claimed terminal benefits for wrongful termination, accrued leave payment, under payment of their salaries and one month’s salary in lieu of notice.
 On August 22, 2012, the parties entered into a consent for payment of the sums claimed whereupon the suit was marked as settled.
 With the promulgation of the Constitution of Kenya 2010, all local authorities, including the defunct council were dissolved. The Ex parte Respondents then turned to the Appellant and demanded that it comply with the court order. When the Appellant’s response was not forthcoming, they filed a judicial review application in the High Court, seeking an order of mandamus to compel the Appellant to comply with the orders of the Industrial Court. The High Court granted the order upon reaching the conclusion that the Appellant was fully liable to pay the decretal sum, for reasons that the ongoing audit and verification process by the Transition Authority was inconsequential in the face of an existing court order and decree.
Aggrieved by the decision of the High Court, the Appellant filed the appeal

Issue:

  1. Whether County Governments were the legal successors of the defunct local authorities.
  2. Whether County Governments automatically assumed and subsumed the responsibility for the assets, liabilities and staff, (including court orders and decrees for or against) the defunct local authorities.
  3. Whether section 33 of the sixth schedule to the Constitution should have been construed to mean that County Governments were the legal successors  of local authorities
  4. Whether it was mandatory for the Transition Authority to carry out an audit of a local authority before transfer of assets or liabilities
  5. Whether legal rights or causes of action commenced in a court of law or tribunal against a local authority was the responsibility of the County Government.Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 174 - Objects of devolution.
The objects of the devolution of government are—

(a) to promote democratic and accountable exercise of power;
(b) to foster national unity by recognising diversity;
(c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;
(d) to recognise the right of communities to manage their own affairs and to further their development;
(f) to protect and promote the interests and rights of minorities and marginalised communities;
(g) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
(h) to ensure equitable sharing of national and local resources throughout Kenya;
(i) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and
(j) to enhance checks and balances and the separation of powers.

Article 175 - Principles of devolved government
County governments established under this Constitution shall reflect the following principles—

(a) county governments shall be based on democratic principles and the separation of powers;
(b) county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and
(c) no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.

Article 176 - County governments
(1) There shall be a county government for each county, consisting of a county assembly and a county executive.
(2) Every county government shall decentralise its functions and the provision of its services to the extent that it is efficient and practicable to do so.

Article 186 - Respective functions and powers of national and county governments
(1) Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule.
(2)
A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.
(3)
A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.
(4) For greater certainty, Parliament may legislate for the Republic on any matter.

Sixth Schedule - Transitional and Consequential Provisions
Section 15 - Provision for devolution of functions to be made by Act of Parliament
(1) Parliament shall, by legislation, make provision for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them under Article 185.
(2) The legislation referred to in subsection (1) shall—

(a) provide for the way in which the national government shall—

(i) facilitate the devolution of power;
(ii) assist county governments in building their capacity to govern effectively and provide the services for which they are responsible; and
(iii) support county governments;

(b) establish criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform;
(c)permit the asymmetrical devolution of powers to ensure that functions are devolved promptly to counties that have the capacity to perform them but that no county is given functions it cannot perform; and
(d) provide mechanisms that ensure that the Commission on the Implementation of the Constitution can perform its role in monitoring the implementation of the system of devolved government effectively

Section 33 - Succession of institutions, offices, assets and liabilities
An office or institution established under this Constitution is the legal successor of the corresponding office or institution, established under the former Constitution or by an Act of Parliament in force immediately before the effective date, whether known by the same or a new name.

Transition to Devolved Government Act, 2012
Section 3 - Object and purpose of the Act.
The object and purpose of this Act is to—
(a) provide a legal and institutional framework for a co-ordinated transition to the devolved system of government while ensuring continued delivery of services to citizens;
(b) provide, pursuant to section 15 of the Sixth Schedule to the Constitution, for the transfer of powers and functions to the national and county governments;
(c) provide mechanisms to ensure that the Commission for the Implementation of the Constitution performs its role in monitoring and overseeing the effective implementation of the devolved system of government effectively;
(d) provide for policy and operational mechanisms during the transition period for audit, verification and transfer to the national and county governments of—

(i) assets and liabilities;
(ii) human resources;
(iii) pensions and other staff benefits of employees of the government and local authorities; and
(iv) any other connected matters;

(e) provide for closure and transfer of public records; and
(f) provide for the mechanism for capacity building requirements of the national government and the county governments and make proposals for the gaps to be addressed.

Section 4 - Establishment of the Authority.
(1) There is established an authority to be known as the Transition Authority.
(2) The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—

(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and
(c) doing or performing all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may be lawfully done or performed by a body corporate.

Section 7 - Functions of the Authority
(1) The Authority shall facilitate and co-ordinate the transition to the devolved system of government as provided under section 15 of the Sixth Schedule to the Constitution.
(2) Despite the generality of subsection (1), the Authority shall—

(a) facilitate the analysis and the phased transfer of the functions provided under the Fourth Schedule to the Constitution to the national and county governments;
(b) determine the resource requirements for each of the functions;
(c)
develop a framework for the comprehensive and effective transfer of functions as provided for under section 15 of the Sixth Schedule to the Constitution;
(d) co-ordinate with the relevant State organ or public entity in order to—

    (i) facilitate the development of the budget for county governments during Phase One of the transition period;
    (ii) establish the status of ongoing reform processes, development programmes and projects and make recommendations on the management, reallocation or transfer to either level of government during the transition period; and
    (iii)ensure the successful transition to the devolved system of government;

(e) prepare and validate an inventory of all the existing assets and liabilities of government, other public entities and local authorities;
(f) make recommendations for the effective management of assets of the national and county governments;
(g) provide mechanisms for the transfer of assets which may include vetting the transfer of assets during the transitional period;
(h)
pursuant to section 15(2)(b) of the Sixth Schedule to the Constitution, develop the criteria as may be necessary to determine the transfer of functions from the national to county governments, including—

    (i) such criteria as may be necessary to guide the transfer of functions to county governments; and
    (ii) the criteria to determine the transfer of previously shared assets, liabilities and staff of the government and local authorities;

(i) carry out an audit of the existing human resource of the Government and local authorities;
(j)
assess the capacity needs of national and county governments;
(k)
recommend the necessary measures required to ensure that the national and county governments have adequate capacity during the transition period to enable them undertake their assigned functions;
(l)
co-ordinate and facilitate the provision of support and assistance to national and county governments in building their capacity to govern and provide services effectively;
(m)
advise on the effective and efficient rationalization and deployment of the human resource to either level of government;
(n)
submit monthly reports to the Commission for the Implementation of the Constitution and the Commission on Revenue Allocation on the progress in the implementation of the transition to the devolved system of government;
(o)
perform any other function as may be assigned by national legislation.

(3) The Authority shall, while undertaking its functions as specified under subsection (2), carry out the activities specified in respect of Phase One and Phase Two in the Fourth Schedule to this Act.

Intergovernmental Relations Act, 2012,
Section 12 - Functions of the Technical Committee.
 (b)take over the residual functions of the transition entity established under the law relating to transition to devolved government after dissolution of such entity;
County Governments Act, 2012
Section 5 – Functions of county governments.

(1) A county government shall be responsible for any function assigned to it under the Constitution or by an Act of Parliament.
(2) Without prejudice to the generality of subsection (1), a county government shall be responsible for—

(a) county legislation in accordance with Article 185 of the Constitution;
(b) exercising executive functions in accordance with Article 183 of the Constitution;
(c) functions provided for in Article 186 and assigned in the Fourth Schedule of the Constitution;
(d) any other function that may be transferred to county governments from the national government under Article 187 of the Constitution;
(e)
any functions agreed upon with other county governments under Article 189(2) of the Constitution; and
(f)
establishing and staffing its public service as contemplated under Article 235 of the Constitution.

(3) A county government may seek assistance from the Kenya Law Reform Commission in the development or reform of county legislation under subsection (2)(a).

Section 134 - Repeal of Cap. 265.

(1) The Local Government Act is repealed upon the final announcement of all  the results of the first elections held under the Constitution.
(2) All issues that may arise as a consequence of the repeal under subsection (1) shall be dealt with and discharged by the body responsible for matters relating to transition.

Urban Areas and Cities Act,
Section 10 – Eligibility for grant of town status.

(1) The county governor may, in consultation with the committee constituted under section 8(2), confer the status of a town on an area that meets the criteria set out in subsection (2).
(2) An area shall be eligible for the grant of the status of a town under this Act if it has—

(a) a population of at least two thousand residents according to the final gazetted results of the latest population census carried out by an institution authorized under any written law, preceding the grant;
(b) demonstrable economic, functional and financial viability;
(c) the existence of an integrated development plan in accordance with this Act;
(d)
the capacity to effectively and efficiently deliver essential services to its residents as provided in the First Schedule; and
(e)
sufficient space for expansion.

Section 12 – Management of cities and municipalities.

(1) The management of a city and municipality shall be vested in the county government and administered on its behalf by—

(a) a board constituted in accordance with section 13 or 14 of this Act;
(b) a manager appointed pursuant to section 28; and
(c) such other staff or officers as a the county public service may determine.

(2) The board of an area granted the status of a city or municipality under this Act shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—

(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
(c) borrowing money or making investments;
(d) entering into contracts; and
(e) doing or performing all other acts or things for the proper performance of its functions in accordance with this Act or any other written law which may lawfully be done or performed by a body corporate.

(3) The governance and management of a city county shall be in accordance with the law relating to county governments.

Section 59 - Pending actions and proceedings.
Any legal right accrued, cause of action commenced in any court of law or tribunal established under any written law in force, or any defence, appeal, or reference howsoever filed by or against any local authority shall continue to be sustained in the same manner in which they were prior to the commencement of this Act against a body established by law.

Held:
D.K Musinga, J:

  1. Section 15 of the Sixth Schedule to the Constitution was clear that the process of transition to devolved government was to be done in phases    and Parliament was required to enact legislation to provide for the phased transfer over a period of not more than three years from the date of the first election of county assemblies, from the National Government to county governments of the functions assigned to them under article 186 of the    Constitution.
  2. The preamble to the Transition to Devolved Government Act (the Act) stipulated that it was an Act of Parliament to provide a framework for the transition to devolved government pursuant to section 15 of the Sixth Schedule to the Constitution and for connected purposes.
  3. Section 4 of the Act established the Transition Authority whose functions were set out under   section 7 of the Act and included to prepare and validate an inventory of all existing assets and liabilities of government, other public entities and local authorities.  Under the Fourth Schedule to the Act, the Transition Authority was required, among other duties, to audit assets and liabilities of local authorities, to establish the assets, debts and liabilities of each local authority and provide a mechanism to secure assets and liabilities of local authorities during phase one of the transition period which was the period between the commencement of the Act and the date of the first election under the new Constitution, March 4, 2013.
  4. During phase two, the period between the date of the first elections and three years after the first elections under the Constitution, the Transition Authority was to complete any activity that might have been outstanding from phase one, among other duties.  It meant that if the Authority did not complete the task of auditing assets and liabilities of local authorities within the first phase of its operations, it could do so within the second phase.
  5. The decree of Kshs.3,000,000/= against the Municipal Council of Kakamega that was issued in August, 2012 formed part of the liabilities of that Local Authority and was subject to audit by the Transition Authority.  The trial Court erred in finding that the so called audit was a mere excuse.  The audit was a statutory requirement.
  6. The Local Government Act that was in force when the decree in issue was passed stood repealed immediately upon the final announcement of all the results of the first election held under the Constitution of Kenya, 2010. Section 134 (2) of the County Government Act provided that all issues that arose as a consequence of that repeal of the said Act were to be dealt with and discharged by the body responsible for matters relating to transition, that body was the Transition Authority.
  7. The Intergovernmental Relations Act, 2012 established the Intergovernmental Relations Technical Committee.  Under section 12 (b) of the said Act, the Technical Committee took over the residual functions of the Transition Authority after expiry of the term of the   Authority. It was the Committee that was required to finalise the audit and verification of assets and liabilities of the defunct local authorities.  It was not clear whether that had been done.
  8.  The trial Court was not right in taking the view that the County Government of Kakamega was duty bound to settle the decretal sum irrespective of whether the audit that was required to be undertaken by the Transition Authority had been done or not.
  9. The Respondent’s application for an order of mandamus to compel the Appellant to pay the decretal amount was instituted   on March 20, 2014, which was within phase two of the transition period as provided under the fourth schedule to the Transition to Devolved Government Act before the Authority had completed the audit exercise.
  10. Pursuant to section 15 of the sixth schedule to the Constitution, Parliament enacted an appropriate law that spelt out how assets and liabilities of defunct Local Authorities were to be dealt with and the statutory path, however long winded and convoluted it might have appeared, was always the safest route in reaching the desired destination.
  11. The Appellant never denied that it had the responsibility to settle the decree in favour of the Respondent, its contention was simply that the process that was to lead to its settlement had not yet been finalized.
  12. A.K Murgor, JA concurring:

  13. The question whether or not section 33 of the sixth schedule to the Constitution should have been construed to mean that County Governments were the legal successors of the defunct local authorities had to be discerned from the meaning and intent of the constitutional provisions in question.
  14. It was a fundamental principle of interpretation of the Constitution that it should be construed as a whole and not by interpreting or construing each provision in isolation.
  15. The term office as used within the miscellaneous matters of section 33 of the sixth schedule to the Constitution referred to the Office of Director of Public Prosecution or the Controller of Budget or any other office established after the promulgation of the Constitution but more particularly where a corresponding office existed prior to the establishment of the new offices.
  16. When the generic usage of the word “office” or “institution” was read within the context of “public office”, they were to be construed to mean an office or institution established within the National or County Government or the public service.
  17.  Since offices or institutions as defined by the Constitution were limited to those within the National or County Governments or the public service, it was not intended that County Governments were to be construed to be the offices or institutions contemplated by section 33 of the sixth schedule to the Constitution. To the contrary, County Governments were established under article 176 of the Constitution as a newly created tier of self-government, with a different structure and orientation from the defunct local authorities. Without any express provision to designate them as legal successors of the defunct local authorities, it could not be inferred that County Governments would be included within the definition of legal successors as provided by section 33.
  18.   The absence of an express provision on the succesorship of County Governments was perhaps deliberate on the part of the framers of the Constitution and was intended to take into account the situations where, not all defunct local authorities as previously existed, were directly assumed and subsumed by the County Governments within the geographical areas in which they existed. 
  19. A defunct local authority might have had more than one County Government as its successor, begging the question of, which of the affected County Governments would be considered the legitimate successor and to which of the County Governments would the assets, resources, and liabilities be ascribed.
  20.  It was not intended that County Governments would be the direct legal successors of the defunct local authorities.
  21. Article 184 of the Constitution made provision for the classification, governance and management of urban areas and cities, pursuant to which the Urban Areas and Cities Act was enacted. In accordance with sections 11 and 12 of that Act, though the governance and management of cities and municipalities vested in the respective County Governments, they were to be administered by boards based upon amongst other principles, recognition and respect for the constitutional status of the County Government.
  22.  Section 59 of the Urban Areas and Cities Act provided the manner in which legal rights or causes of action commenced in a court of law or tribunal against a local authority were to be dealt with. It made it clear that a legal right or cause of action by or against a local authority continued to subsist against a body established by law. What was contemplated as, the body established by law, was that body against which any legal rights or cause of action had already accrued by the time of enactment of the Urban Areas and Cities Act. It was then envisaged that such rights and causes of action would be dealt with, in accordance with the transition provisions.
  23. The body against which the Ex parte Respondents obtained a court order would have been the defunct council and which according to the Act would have continued to be sustained as such. In any event, if it was intended that the body established by law was the County Government, nothing would have been easier than for it to be specified by the Parliament, as, by the time of enactment of the Act, the County Governments had already come into existence.
  24. The enactment of the transitional provisions was to provide an institutional framework to coordinate a phased transition into a devolved system of government. At stake were various assets and liabilities belonging to the national and local authorities and the requirement was for a mechanism to be developed, that would ensure the equitable and systematic sharing of such assets and liabilities between the two levels of government.
  25.  The Transition Authority was established and empowered to superintend the transition process and to conduct a mandatory audit of assets and liabilities of government other public entities and local authorities. Thereafter, it was to prepare and validate an inventory of the pre -existing assets and liabilities. Once the audit and verification exercise was completed, it would develop a mechanism of transfer of the shared assets, liabilities and staff to the National or County Governments.
  26. So as to facilitate and coordinate the transition towards a devolved system of government prescribed by section 15 of the Sixth Schedule, section 7 (1) of the Transition to devolved Governments Act established the Transition Authority. Under section 7 (2) (e), the Transition Authority was mandated to prepare and validate an inventory of all the existing assets and liabilities of government, other public entities and local authorities. According to Section 7 (3), the process was to be carried out in two phases, where Phase One was defined as the period between commencement of the Act, and the date of the first election under the Constitution, and Phase Two was the period between the date of the first elections and three years after the first elections under the Constitution.
  27. The fourth schedule of the Act specifically stipulated that, during Phase One of the transition period the Transition Authority would inter alia audit assets and liabilities of local authorities, to establish the assets, debts and liabilities of each Local Authority, and to provide a mechanism that will secure assets and liabilities held by Local Authorities. Phase Two was for the completion of any activity that remained outstanding from Phase One.
  28. The trial Court erred in holding that the audit was an internal matter between the County Government in consultation with the National Government, that no audit was in progress and, that no time frame for completion of the audit was stipulated and that all pre-existing assets and liabilities of local authorities were naturally subsumed by the County Governments.
  29.  The transition to devolved governments was a deliberately and carefully crafted process mandated by the Constitution and subsequent legislation to facilitate a smooth and structured transfer of shared assets, liabilities and staff between the National and County Governments and in some cases, between the County Governments themselves. It was to be carried out within a pre-determined statutory period and strict adherence to its prerequisites was mandatory from all state organs, public offices, public entities or local authorities.
  30.  A court order and decree fell into the category of a civil debt or liability.
  31. When the mandatory processes to be carried out by the Transition Authority were taken into account, what was clear was that the audit was required to be completed prior to any transfer of the assets or liabilities. Section 35 (1) of the Transition to Devolved Governments Act specified that there was to be no transfer of any assets or liabilities by a state organ, public entity or local authority during the transition period. The only proviso was that if a state organ, public office, public entity or local authority required to transfer assets or liabilities in phase one or two, section 35 (2) (a) and (b) authorized such transfer with the approval of the Transition Authority, in consultation with the National Treasury, the Commission on Revenue Allocation, the Ministry of Local Government and the Ministry of Lands. The provisions made it clear that there was to be no unauthorised transfer by a state organ, public entity or local authority of any assets or liabilities during the transition period, which period had not yet lapsed.
  32. The Ex parte Respondents’ decretal sums were caught by the statutory prohibition, to the extent that the Appellant would have had no legal authority to pay out the sums ordered prior to expiry of the transition period.
  33.  County Governments were not legal successors of the defunct local authorities and under section 59 accrued rights and causes of action continued to subsist against the defunct local authorities.
  34. By the time the application was filed, the transition period was yet to expire, and there was nothing to show that the Transition Authority had concluded the audit and verification process or that the mechanism for transfer of the assets and liabilities had been developed and implemented. Since that mandate was specifically designated to the Transition Authority by the Constitution, during the period of transition the court had no role to play and the Ex parte Respondents had to therefore await the completion of the transitory processes and procedures.
  35.  In failing to apply the constitutional and legislative provisions relating to transition to devolved governments to the circumstances of the case, the trial Court misdirected itself in granting an order of mandamus to compel the Appellant to prematurely pay the decretal sums.

Appeal allowed              

  1. The Ruling and Order of Dulu, J. dated October 3, 2014, delivered on  October 27, 2014 by Mrima, J. set aside.
  2. Each party to bears its own costs.

Gatembu J dissenting:

  1. County governments were introduced into the fabric of the Kenyan Society and came into existence under the Constitution of Kenya, 2010. The functions and powers of the National Government and the County Governments, respectively were set out in the fourth schedule of the Constitution in terms of article 186(1).
  2. Local authorities did not cease to exist immediately upon promulgation of the Constitution on August 27, 2010. Section 18 of the sixth schedule to the Constitution on transitional and consequential provisions, provided that all local authorities established under the Local Government Act (Cap. 265) existing immediately before the effective date should continue to exist subject to any law that might be enacted. Such law was indeed enacted. The County Governments Act, whose object and purpose was to among other things, provide for matters necessary or convenient to give effect to chapter 11 of the Constitution pursuant to article 200 of the Constitution, give effect to the objects and principles of devolution as set out in articles 174 and 175 of the Constitution was enacted. Section 134(1) of that Act repealed the Local Government Act by providing that upon the final announcement of all the results of the first elections held under the Constitution, that Act stood repealed.
  3. The first elections under the Constitution were held on March 4, 2013 and upon the announcement of the results of that election, local authorities ceased to exist. Therefore, the Municipal Council of Kakamega, like other local authorities, continued to exist until that date.
  4. The Constitution and the County Governments Act did not have a provision, in express terms, to the effect that the County Government was the successor to local authorities. However, section 33 of the sixth schedule to the Constitution provided that an office or institution established under the Constitution was the legal successor of the corresponding office or institution, established under the former Constitution or by an Act of Parliament in force immediately before the effective date, whether known by the same name or a new name.
  5. Section 143(8) of the repealed Local Government Act looked beyond the life of a local authority and provided that all contracts lawfully entered by a local authority under that section would be valid and binding on the local authority and its successors.
  6. The answer to the question whether, under section 33 of the sixth schedule to the Constitution, an institution established under the Constitution was a successor to an institution that existed under the old constitutional order was dependent on the function discharged or performed by such institution.
  7. The respective functions and powers of the National Government and the County Governments were provided for under article 186(1) and set out in the fourth schedule to the Constitution.  Further provision was subsequently made, under section 5, of the County Government Act that a County Government would be responsible for any function assigned to it under the Constitution or by an Act of Parliament. The function of firefighting services and disaster management, in which category the Respondents would have belonged, was allocated and assigned under the Constitution, to the County Government under section 12 of part 2 of the fourth schedule.
  8. The County was the legal successor of the local authority. The legal rights and liabilities of the defunct local authorities were to accrue in favour of and be sustained against their successors.
  9. The task of providing a framework for the transition to devolved government was left to Parliament. Under section15(1) of the sixth schedule to the Constitution on transitional and consequential provisions, Parliament was required to legislate for phased transfer from the National Government to County Governments of the functions assigned to them under article 185 of the   Constitution. Parliament did that by enacting the Transition to Devolved Government Act, section 3 thereof provided for the object and purpose of that statute.
  10. A Transition Authority was established under section 4 of the Transition to Devolved Government Act. Its role was to facilitate and coordinate the transition. It was not the function of the Transition Authority to determine the liability of the County. In view of the contents of the letter dated June 20, 2013 addressed to the Respondents advocates from the Legal Officer, Office of the Governor,  County Government of Kakamega the trial Court was correct, when it stated that the matter of audit by the Transition Authority was a mere excuse which could not have affected a court order which had not been challenged and correctly   granted the order of Mandamus to compel payment.

Appeal would have been dismissed

ADVOCATE Correspondence is Capable of Giving Rise to an Agreement

Majanja Luseno & Company Advocates v Leo Investments Limited & another [2017] eKLR
Miscellaneous Civil Application 510 of 2015
High Court at Nairobi
F A Ochieng, J
January 24, 2017
Reported by Ribia John

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Advocate – correspondence between an advocate and a client - remuneration agreement - whether correspondence between an advocate and a client would be capable of constituting an agreement  
Advocate – legal fees – fees pegged on a conditionality – where the advocate was of the view that he was entitled for higher fees for successfully representing a client in an application– whether the fact that an advocate was successful in an application before a court of law would give to the advocate greater entitlement for fees – Advocates Act section 46(b)
Advocate – taxation – taxation of bill of costs – jurisdiction of taxing officer -whether a Taxing Officer had the jurisdiction to tax an Advocate/Client Bill of Costs, where there existed a remuneration agreement that bared the advocate from lodging any bill of costs for taxation – Advocates Act section 45(6)

Brief facts:
The Applicants had been clients of the Respondent (a Law Firm). The advocates had filed an Advocate/Client Bill of Costs in respect to the services which they had rendered to the clients. However, the clients held the view that the advocates ought not to be permitted to have the Bills of Costs taxed because from their correspondence with the advocates, there was already a remuneration agreement pursuant to which the advocates was to be paid his fees.

Issues:

  1. Whether the fact that an advocate was successful in an application before a court of law would give to the advocate greater entitlement for fees.
  2. Whether correspondence between an advocate and a client would be capable of constituting an agreement.
  3. Whether a Taxing Officer had the jurisdiction to tax an Advocate/Client Bill of Costs, where there existed a remuneration agreement that bared the advocate from lodging any bill of costs for taxation.Read More..

Relevant Provisions of the Law
Advocates Act
Section 45(6)
Agreements with respect to remuneration
(6)       Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

Section 46(b)
Invalid agreements
Nothing in this Act shall give validity to—
(b)  any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate;

Held:

  1. Section 45 (6) of the Advocates Act made it clear that where there was a Remuneration Agreement, the costs of the advocate were not be subject to taxation.
  2. When the clients had given instructions to the advocate, and when the advocate accepted the said instructions, both of them expected the advocate to do his best when handling the case. It was because of undertaking the responsibility of prosecuting the client’s case that the advocate became entitled to his fees. Whether or not the application was canvassed successfully, the advocate would have been entitled to his fees.
  3. If an advocate were to enter into an agreement pursuant to which he would only be entitled to charge a fee if the case he was handling succeeded, such an agreement would be invalid and unenforceable.  Section 46 (b) of the Advocates Act made that position crystal clear. The fact that the advocate handled the application for injunction successfully, would not, of itself, give to the advocate a greater entitlement to his legal fees.
  4. The advocate had acknowledged the existence of agreements, but that the said agreements did not incorporate one aspect of the services he rendered. If the letter before action was construed to be an agreement, that would mean that correspondence could constitute an agreement.
  5. Correspondence was capable of giving rise to agreements.  Provided that there was an offer, an acceptance and consideration which could be discerned from the correspondence; that would mean that there was an agreement.
  6. Pursuant to section 45 (1) of the Advocates Act, a Remuneration Agreement would be valid and binding on the parties, provided it was in writing and signed by the client or his duly authorised agent. By a letter dated September 6, 2012, Leo Investments Limited wrote to the advocate, making reference to the particulars of an agreement which was arrived at after a meeting between them and the advocate.  As the letter was signed by the client, and because it reflected an agreement on the issue of fees payable to the advocate, it was a Remuneration Agreement.
  7. Presumably, the significance of the letter before action was that it was the one which embodied the instructions from the client. The letter dated  January 26, 2013 may have been significant but it could not have been the letter before action. A letter dated January 26, 2013 could not have preceded a case that was filed in 2012.
  8. If the Remuneration Agreement was conditional upon the client giving to the advocate the task of preparing all the leases for the Parking Silos, there would have been nothing easier than for the advocate to have insisted on an appropriate clause.  He could have made it clear that if he was not given the task of preparing all the said leases, the agreement on fees would not be enforceable.
  9. The advocate could not blow hot and cold.  He could not be heard to say that the client failed to meet their part of the bargain, whilst the advocate had insisted that there was no Remuneration Agreement at all.
  10. There was a binding Remuneration Agreement between the parties, and that the advocate committed himself to not file any applications for the taxation of Advocate/Client costs.
  11. The Taxing Officer lacked jurisdiction to tax the Advocate/Client Bill of Costs, because pursuant to the Remuneration Agreement, the advocate was barred from lodging any bill of costs for taxation.

Application allowed, costs awarded to the Respondent.

FAMILY LAW Whether marital equality recognized under the Constitution meant that matrimonial property had to be divided equally on a 50:50 Basis

P.N.N V Z.W.N
Civil Appeal no 128 of 2014
Court of Appeal at Nairobi
Waki, Azangalala and Kiage, JJA
March 3, 2017
Reported by Robai Nasike Sivikhe

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Family Law- matrimonial property- division of matrimonial property- question between husband and wife as to the title to or possession of property- conferment of proprietary rights from one spouse to another where the marriage had not been dissolved- whether section 17 of the Married Women Properties Act applied only to dissolved marriages and not to subsisting marriages- Married Women’s Property Act, section 17
Statutes- enactment and repeal of statutes- retrospective application of statutes- where a case was instituted on the basis of statutes that were later repealed- whether the Land Act 2012, Land Registration Act 2012 and Matrimonial Property Act, 2013, could be applied retrospectively in deciding the instant case-Land Registration Act, section 106 (3) (a); Land Act, section 162 (1); Interpretation and General Provisions Act, section 23 (3)
Constitutional Law- interpretation and application of statutes-retrospective application of laws- application of the Constitution where the matter accrued before its promulgation- whether a court could be guided by the Constitution and international laws ratified by Kenya to inform its application of section 17 of the Married Women Properties Act-whether the principles espoused in the Constitution could be brought to bear in the interpretation and application of section 17 MWPA in a case that was filed before the promulgation of the Constitution- Constitution of Kenya, 2010, section 7 (1) of the 6th Schedule; Interpretation and General Provisions Act, section 2.
Constitutional law – fundamental rights and freedoms – right to equality – equality in marriage-equality in distribution of matrimonial property-whether the equality contemplated by article 45(3) of the Constitution of Kenya 2010 was an automatic 50:50 sharing of matrimonial property-whether marital equality recognized under the Constitution meant that matrimonial property had to be divided equally- Constitution of Kenya, 2010, article 45(3)
Family Law- matrimonial property- division of matrimonial property- recognition of indirect contribution during division of matrimonial property- relevance and applicability of Echaria V Echaria in distribution of matrimonial property in light of article 45 (3) of the Constitution- whether Echaria V Echaria was violative of the marital equality principle under article 45 (3) - whether the case of Echaria v. Echaria was no longer good law and had to be interred

Brief facts:
The matter was related to the perennial war between husband and wife over matrimonial property after the collapse of marriage where the applicable procedural law was section 17 of the Married Women’s Property Act, 1882.
The Appellant was challenging the decision of the High Court on grounds that the High Court had erred by finding and holding that his wife (Z) had made direct and indirect contribution towards the acquisition of any of the properties in question; shifting the burden of proof from Z to her husband (P); failing to hold and find that Z had not proved her case to the required standard; not  giving  due  weight  and  consideration  to   P’s documentary and affidavit evidence and explanation as to how he exclusively acquired each of the properties in question; not following or being guided by the Court of Appeal decision in Echaria vs. Echaria, especially where it was held that indirect contributions cannot be taken to account for the purpose of considering a spouse's contribution in matrimonial property disputes; holding that Z was entitled to 50% of the  properties registered in P’s name without first determining how much Z had contributed towards the acquisition of the properties, whether directly or indirectly; and by relying  on  the  provisions  of  article  45  (3)  of  the Constitution of Kenya, 2010 and other international conventions which were not relevant to the dispute between the parties.

Issues:

  1. Whether the Land Act 2012, Land Registration Act 2012 and Matrimonial Property Act, 2013, could be applied retrospectively in deciding the instant case.
  2. Whether section 17 of the Married Women Properties Act applied only to dissolved marriages and not to subsisting marriages.
  3. Whether the principles espoused in the Constitution could be brought to bear in the interpretation and application of section 17 MWPA in a case that was filed before the promulgation of the Constitution.
  4. Whether the trial had evaluated the evidential material on record before reaching its decision.
  5. Whether marital equality recognized under the Constitution meant that matrimonial property had to be divided equally.
  6. Whether the case of Echaria v. Echaria was no longer good law and had to be interred. Read More...

Held:
Per Waki, JA

  1. Being a first appeal, the Court was at liberty to delve into matters of fact as well as law and make its own conclusions in such matters. Ordinarily an appellate court would not differ lightly with the findings of fact by the trial judge if they were based on the Court’s observation and assessment of the credibility of witnesses, but no witnesses appeared before the court in the instant matter. Therefore, the instant Court had considerable latitude to make its own conclusions on the affidavit evidence on record.
  2. The Matrimonial Property Act 2013 was not applicable in the instant case since it was enacted after the High Court judgment of the case.
  3. The provisions of section 106 (3) (a) of the Land Registration Act and section 162 (1) of the Land Act were in consonance with section 23 (3) of the Interpretation and General Provisions Act which safeguarded all rights, obligations, liabilities and privileges where legislation was repealed. The properties in dispute in the instant matter were registered under the Registered Land Act, cap 300, Laws of Kenya (repealed). Therefore, that was the relevant and applicable law.
  4. On the basis of the judgment in Peter Ndungu Njenga vs Sophia Watiri Ndungu [2000] eKLR, it had been constantly held that section 17 of the Married Women’s Propert Act, 1882 did not apply to subsisting marriages. The finding by that court had been taken out of context. Significantly, the case before the High Court was not based on section 17 of MWPA but was a normal suit pleading an implied and resulting trust. It was trite law that the intention of the parties to create a trust had to be clearly determined before a trust was implied. But the High Court altered the nature of the suit and treated it as a claim under section 17. 
  5. Since the Court had the power, at the time when the marriage still subsisted, to direct an inquiry under the provisions of the Married Women’s Property Act’s section 17, such an inquiry had to proceed, notwithstanding the dissolution of the marriage by a decree absolute; but the Court on receiving the report of the registrar, could take into account the fact that there had been a dissolution of the marriage by a decree absolute. An inquiry could thus be made under section 17 of MWPA and declarations could be issued, the subsistence of the marriage notwithstanding. The purpose of the section was not to defeat rights but to provide machinery for ascertaining rights.
  6. One of the main purposes of the Married Women Properties Act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept separate. There was no suggestion that the status of marriage was to result in any common ownership or co-ownership of property. All that negated any idea that section 17 was designed for the purpose of enabling the court to pass property rights from one spouse to another. In a question as to title to property, the question for the court was whose was that? And not to whom should that be given?
  7. The marriage between P and Z had virtually come to an end but subsisted on paper. P had already moved in with another woman and transferred part of the disputed property to her. The parties had to come to terms with the reality that they were no longer going to share or enjoy joint ownership of whatever property they could have previously owned and therefore the wisdom in putting their house in order. Section 17 of the Married Women Properties Act, 1882, would apply in the instant case.
  8. The people of Kenya in promulgating the Constitution of Kenya, 2010 intended a fundamental transformation of society. A society imbued with values like respect for human rights and human dignity, equality, equity, respect for the rule of law; non-discrimination; a society that recognized and protected the family as the fundamental unit of society and honored entitlement of spouses to equal rights at, during and after marriage; a society that upheld the supremacy of the Constitution which incorporated the general rules of international law and Conventions ratified by Kenya as part of its law.
  9. Section 2 of the Interpretation and General Provisions Act exempted the Constitution from its application since it was not a written law for the purposes of the IGPA. In addition, section 7 (1) of the 6th  schedule of the Constitution provided that all law in force immediately before the effective date continued in force and was to be construed with the alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with the Constitution.
  10. Each case had to be examined on its own facts particularly where retrospectivity would affect accrued rights. Generally, however, the Constitution ought to be given a broad and purposive interpretation that enhanced the protection of fundamental rights and freedoms. The right to equality, for example, was inherent and indefeasible to all human beings. Therefore, it would matter not that the cause of action accrued before the current constitutional dispensation. The High Court could not be faulted for seeking guidance of the Constitution, 2010 and the Covenants which Kenya had ratified to inform its application of section 17, MWPA.
  11. There was no merit in the complaint by the Appellant that the trial court had not evaluated the evidential material on record. There was ample evidence on record to prove on a balance of probability that T farm was the first property bought by the couple in 1965 and it became the “incubator” so to speak, from where the couple’s subsequent purchases were nurtured. Whereas the loan for the purchase of the said property was procured in the name of P, the same was repaid from a combination of P’s and Z’s salaries and proceeds from the farm over a period of 10 years.
  12. The Appellant and the Respondent jointly held a bank account at Kenya Commercial Bank (KCB) in which the proceeds from the commercial activities of the farm were banked. Efforts by P to shake off that fact were effectively rebutted by an affidavit sworn in support of Z. That affidavit also confirmed that Z had more than a passing interest in the management and operations of T farm. The trouble taken by her to repay the loan confirmed her clear proprietary interest in the property.
  13. The proceeds from T farm were instrumental in the purchase of the Donholm property. There was admission from P that he was away from home most of the time leaving Z on the farm to take care of the children and the matrimonial house. P’s contention, without tangible proof, was that he had employed workers on the farm, but that had not taken away Z’s managerial role. Another affidavit confirmed Z’s industry and diligence when it came to running the farm. Z swore, and it was not controverted, that she requested for leave from her job in order to manage the farm effectively.
  14.  P had donated a power of attorney for Z to step into his shoes and do anything and everything that he could do in his own name as the registered proprietor of T farm. She also had the power to execute all such instruments and to do such acts, matters, and things as were necessary and/ or expedient to carry out those powers. P never challenged that document at any stage of the trial. There was sufficient basis to accept the evidence that Z exercised those powers for the benefit of P and the entire family by generating the wealth and proceeds that acquired subsequent properties.
  15.  It was evident from the record that whenever P lagged behind in mortgage repayments for the Donholm property, he would always resort to the joint account where proceeds from the farm were banked to settle the same. In all probability the property Kabatini [particulars withheld], which P contended was allocated to him in 1977 after buying shares from one P M N, was similarly purchased from funds substantially sourced from T farm, as contended by Z. But a compelling case was put forward by P that Kabatini [particulars withheld] was a joint purchase between him and M G who was not a party to these proceedings after they sold their jointly owned property in Nairobi.
  16. There was evidence that the two properties had since June 23, 2004 been held in the joint names of P and one M G. The High Court had found that the transfer to the joint names was of no consequence. While those findings were respected, especially the protection of the authority and dignity of the court which was seized of the matter of those properties but P had no qualms in transferring them, the pendency of the suit notwithstanding; there was still an equal if not overriding consideration- that of condemning a party without a hearing. It was a principle of natural justice which all courts had to jealously protect. The co-proprietor of the two plots was neither joined in the suit nor called to testify or make any presentation. Therefore, it would not be right to divest her of her interest in those properties without giving her a hearing.
  17.  The claim relating to the Kabatini properties was allowed and the High Court orders relating thereto set aside. The issues relating to the said properties could be unraveled in a separate litigation, if the parties chose.

Per Kiage, JA

  1. The Court took cognizance of the marital equality ethos captured in article 45 (3) of the Constitution, but was not persuaded that the provision commanded a 50:50 partitioning of matrimonial property upon the dissolution of a marriage. The text was plain enough; parties to a marriage were entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.
  2. All that the Constitution declared was that marriage was a partnership of equals. No spouse was superior to the other. All forms of gender superiority-whether taking the form of open or subtle chauvinism, misogyny, violence, exploitation or the like had no place. They restated essentially the equal dignity and right of men and women within the marriage compact. It was not a case of master and servant. One was not to ride rough shod over the rights of the other. One was not to be a mere appendage cowered into silence by the sheer might of the other flowing only from that other’s gender.
  3. The provision in article 45 (3) of the Constitution gave equal voice and was meant to actualize the voluntariness of marriage and to hold inviolate the liberty of the marital space. So in decision making; from what shall be had for dinner to how many children (if any) shall be borne, to where the family shall reside or invest-all the way to who shall have custody of children and who shall keep what in the unfortunate event of marital breakdown, the parties were equal in the eyes of the law.
  4. Does marital equality recognized in the Constitution mean that matrimonial property should be divided equally? The Court did not think so. All things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement could lead to a distribution of 50:50 or thereabouts. However, that was not to say that as a matter of doctrine or principle, equality of parties translated to equal proprietary entitlement.
  5. The reality remained that when the ship of marriage hit the rocks, floundered and sunk, the sad, awful business of division and distribution of matrimonial property had to be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It was not a matter of mathematics merely as in the splitting of an orange in two, for as biblical Solomon of old found, justice did not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts.
  6. It would be surreal to suppose that the Constitution somehow converted the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one did in that marriage. The Court could not think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment and all those principles that led spouses to work together to improve the family fortunes stood in peril of abandonment if it was said that the Constitution gave automatic half-share to a spouse whether or not he or she earned it. Getting married did not give a spouse a free to cash cheque bearing the words “50 per cent.”
  7. The Constitution did not say equal rights including half of the property. It was no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50:50basis. Rather, it set out in elaborate manner the principle that division of matrimonial property between spouses would be based on their respective contribution to acquisition.
  8. The new constitutional dispensation was no safe haven for those spouses who could not pull their weight. It could not be an avenue to early riches by men who would rather reap from rich women or women who saw in moneyed men an adieu to poverty. What the Matrimonial Property Act had done was recognize at section 2 that contribution towards acquisition of property took both monetary and non-monetary forms which essentially opened the field of contribution to both spouses without distinction on the basis of remunerative employment, especially so in an urban setting.
  9. Both from a practical stand-point and from the ruling statute law, (though it was not in force when the High Court Judge rendered the impugned judgment) neither the Constitution nor general law imposed, compelled or lionized the doctrine or 50:50 sharing or division of matrimonial property.
  10. The Court did not see that taken in context , the analytical approach taken by the five-Judge bench in deciding the instant case, together with their appreciation of the law on matrimonial property rights leading to the conclusion that division had to be based on actual quantifiable contribution was amiss.
  11. Contribution had to be proved and assessed. The central thrust of Echaria v. Echaria was not violative of the marital equality principle of article 45(3). Therefore, the instant Court eschewed any bold pronouncement that it was no longer good law and should be interred.  What had changed was the narrow conception of contribution espoused by Echaria V Echaria in that it went as far only as recognizing indirect contribution which had essentially to be viewed in money or monetary equivalent leaving out such unquantifiable as child care and companionship which fell under non-monetary contribution which was expressly recognized under the Matrimonial Property Act.
  12. It would be unrealistic to presume that marriage per se always engendered a blissful, convivial and idyllic existence of mutual support and synergistic exploits. The marital state may sometimes be a trap where creativity was by slow degrees chilled out of existence and parties could feel entombed in sterility. A spouse could be so uncooperative, so wasteful, so distant, so all-over that he or she hardly provided the warmth of companionship on the basis of which it could be said they made a non-monetary contribution to matrimonial property. In such instance it may well be that the one spouse achieved all they did and acquired not because, but rather in spite of their lazy, selfish, wasteful, wayward, drunken or draining mate.  In such circumstances, an assessment of the inauspicious party’s non-monetary contribution could well turn out to be in the negative, the account in debit. No fifty-fifty philosophy would grant such a party any right to property acquired without their contribution and notwithstanding their negation or diminution of the efforts towards its acquisition.
  13. Assessment could turn out 50:50 or as in the case of Njoroge V Njoroge 70:30 in favor of the man. There was no reason why the math could not be in favor of the wife if that was what the evidence turned up. In many cases in fact, percentages never featured as the Court only ascertained who between the spouses owned which property. It was always a process of determination, not redistribution of property. And each case had to ultimately depend on its own peculiar circumstances, arriving at appropriate percentages.

Appeal dismissed except for the claim relating to the Kabatini properties which was allowed and orders relating thereto set aside.

CONSTITUTIONAL LAW Regulation 6 of the Kenya school of law (Training Programmes) Regulations, 2015 providing for mandatory pre bar examination inconsistent with section 16 of the Kenya School of Law Act

Adrian Kamotho Njenga V Kenya School of Law
Petition No. 398 of 2017
High Court at Nairobi
E.C Mwita, J
November 6, 2017
Reported by Robai Nasike Sivikhe

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Constitutional Law- interpretation of statutes- principles of interpretation of statutes- where an amendment to the Kenya School of Law Act purported to make the pre bar examinations mandatory to every person applying for admission to the Kenya School of Law’s Advocates Training Programme- whether the amendment made pre bar examinations mandatory only to individuals who obtained LLB degrees from foreign universities, university colleges and institutions-whether pre bar examinations were mandatory and had to be undertaken by every person who was applying for admission into the Advocates Training Programme at Kenya School of Law- Constitution of Kenya, article 2 (4); Kenya School of Law Act, second schedule, paragraph 1 (a) & (b)
Statutes- interpretation of statutes- Kenya school of law (Training Programmes) Regulations, 2015, regulation 6- interpretation of provisions of regulations 6 with regard to administration of pre bar examinations- whether regulation 6 of the Kenya school of law (Training Programmes) Regulations, 2015 made pre bar examinations mandatory for every person applying for admission to the Kenya School of Law- Kenya school of law (Training Programmes) Regulations, 2015, regulation 6; Kenya School of Law Act, section 16 & paragraph 1 (a) of the second schedule.

Brief facts:
The Petitioner was a graduate of the University of Nairobi’s School of Law, having graduated with the degree of Bachelor of Laws (LLB).  By virtue of that qualification he wished to join Kenya school of law’s (KSL) Advocate Training programme (ATP) with a view to be coming an Advocate of the High Court of Kenya. According to the Petitioner, the Respondent had issued a notice in July 2017 informing prospective applicants that Pre-Bar Examination was mandatory for those wishing to join the Advocates Training Programme at the Kenya School of Law. The Petitioner contended that the notice was against the Law. The Petitioner took the position that having taken his studies in a university in Kenya he, like all those who took their LLB degrees in local universities and Universities Colleges were not required to by law to sit for Pre – Bar examinations as a pre- condition to joining ATP.
The petitioner stated that the notification purported to be anchored under  regulation 6 of the Kenya School of Law (Training Programme) regulations, 2015 (the regulations) was contrary to Section 16 of the Kenya School of Law Act,2012 (the Act) as read with Paragraph 1 (a) of the Second Schedule to the Act. As a result, the Petitioner Sought the following relief: a declaration that the notification of Pre Bar examination, 2017 issued by the Respondent was legally and constitutionally invalid; an order of certiorari to quash the decision and notification of Pre-Bar Examinations, 2017 by the Respondent; and a declaration that regulations 6 of the Kenya School of law (training Programme) Regulations promulgated by the respondent vide legal notice no 175 of 2015 was illegal and constitutionally invalid.

Issues:

  1. Whether pre bar examinations were mandatory and had to be undertaken by every person who was applying for admission into the Advocates Training Programme at Kenya School of Law.
  2. Whether regulation 6 of the Kenya school of law (Training Programmes) Regulations, 2015 made pre bar examinations mandatory for every person applying for admission to the Kenya School of Law.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 2 (4)
2. Supremacy of this Constitution
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

Kenya School of Law Act, No. 26 of 2012, Laws of Kenya
Section 16
16. Admission requirements
A person shall not qualify for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course.

Paragraph 1 & 2 of the Second Schedule
(1) A person shall be admitted to the School if—

(a) having passed the relevant examination of any recognized university in Kenya holds, or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university; or
(b) having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—

(i) attained a minimum entry requirement for admission to a university in Kenya; and
(ii) obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; or

2. has sat and passed the Pre-Bar examination set by the School.

Kenya School of Law (Training Programmes) Regulation, 2015
Regulation 6
6. Pre-Bar Examination and eligibility for the Advocates' Training Programme.
(1) A person who wishes to be admitted to the Advocates' Training Programme shall apply to the School to sit for the Pre-Bar examination in the prescribed form and shall pay the prescribed fees.
(2) An applicant under this regulation shall provide —

(a) a copy of the relevant academic certificate or academic award;
(b) copies of the relevant academic transcripts;
(c) a copy of the applicant's identity card or valid passport;
(d) two passport size photographs;
(e) the prescribed fee; and
(f) any other document that the School may require.

(3) The Pre-Bar examination shall examine the applicant in —

(a) Legal Systems and Methods;
(b) the General Principles of Constitutional Law;
(c) the Law of Tort;
(d) the Law of Contract; and
(e) Criminal Law.

(5) The pass mark in the Pre-Bar Examination shall be fifty per cent.
(6) The results of the Pre-Bar examination of an applicant shall not be re-marked:
Provided if the applicant fails to pass the, the applicant may sit for the examination when it is next offered by the School.
(7) An applicant who passes the Pre-Bar examination shall be eligible to be admitted to the Advocates' Training Programme.

Held:

  1. The Constitution in article 2(4) required courts to declare any statute or statutory provision that was inconsistent with it unconstitutional to the extent of that inconsistency. The Court had to, as much as possible, read the impugned statute or statutory provision in a way that gave its fundamental value. The Court had to also examine the object and purpose of the Act and to read statutory provisions as far as was possible, to be in conformity with the Constitution. Where the constitutionality of a statute or statutory provisions was in issue, the Court was obliged to determine whether through application of all legitimate interpretive aids, the impugned statute or statutory provision was capable of being read in a manner that rendered it constitutionally compliant.
  2. In interpreting statutes, it was also a requirement that the Court looked at both the text and context in order to ascertain the true legislative intent. The Court had to as much as possible bear in mind the golden rule principle when interpreting statutes. The purpose of a statute played a pivotal role in determining the context, scope and the intended effect of the legislation. While applying contextual or purposive reading of a statute, it was important that the Court remained faithful to the actual wording of the statute. Courts were confronted with legislation that included words that were incapable of sustaining an interpretation that would render it constitutionally compliant, should they declare such legislation constitutionally invalid. There was also the need to give a statute a wholistic reading in order to ascertain the true legislative intent.
  3. A contextual reading of paragraph 1 (a) of the Second Schedule prior to the 2014 amendment showed that Pre Bar examination was optional for both applicants who obtained LLB degrees from local as well as foreign universities. That was clear from paragraph (2) of the Second Schedule. A prospective Applicant had to have either qualifications in paragraph 1(a), 1(b) or (2).  However, the 2014 amendment removed paragraph(2) and instead, introduced clause 1(b) (iii) thus making pre Bar examination compulsory for Applicants whose qualifications fell under paragraph 1(b) of the Second Schedule; that is, those who obtained LLB degrees from foreign universities, university colleges and institutions.
  4. Paragraph 1(b) referred to those who obtained LLB degrees from foreign universities, and they are the ones who had to sit and pass pre Bar examination before joining ATP. Only persons with qualifications from foreign universities were required to sit and pass Pre Bar examination. The interpretation that all applicants had to sit and pass pre Bar examination could not be deduced from the second schedule.
  5. The words introduced through the amendment of paragraph 1 (a) immediately after the words “university or” were “any university, University College or any other institution prescribed by the council”. That amendment had not changed the import and or purport of paragraph 1(a) in so far as qualifications for joining ATP in that category were concerned. The inclusion of words “any university, university colleges or other institution prescribed by the Council”, could not be interpreted to mean anything more than that those were local universities, university colleges or institutions recognized by council of legal education which was responsible for setting and maintaining standards in the legal profession. 
  6. Paragraph 1(a) had not prescribed any university entry requirements for the simple reason that entry requirements for LLB programmes in local universities were known and no one could be admitted to undertake that degree without meeting the basic KCSE grades required for that course. Furthermore, paragraph 1(a) contained the disjunctive word “or” at the end of the paragraph just before the beginning of paragraph 1(b). That meant that qualifications under paragraph 1(a) were distinct from those under paragraph 1(b). The two sub-paragraphs applied to two different and distinct categories of Applicants.
  7. Prior to the 2014 amendment, the Second Schedule contained paragraph 2 which made pre Bar examination optional.  The removal of paragraph 2 and, in place thereof, the introduction of clause (iii) in paragraph 1(b), with the conjunctive word “and” at the end of paragraph 1(b) (ii) and just before the beginning of clause 1(b) (iii), meant that pre Bar examination was mandatory for category 1(b) applicants as opposed to those in paragraph 1(a). Any other interpretation of paragraph 1(a) that would make pre Bar examination compulsory for applicants falling under paragraph 1(a) would result into an absurdity because the word “or” could not, by stretch any of imagination, be read to mean “and”.
  8. A plain reading of paragraph 1(a) and 1(b) was clear that those were two distinct qualification requirements and the legislature must have intended them to be so.
  9. Although it was true that pre Bar examination was about standards, it could not be the reason for assigning unintended interpretation to that paragraph. Standards in local universities were well known given the local universities’ entry requirements. Subjecting applicants from foreign universities to Pre Bar examination was intended to ensure that those standards were maintained and only applicants with foreign qualifications and who met local standards were admitted to ATP. Therefore, administering pre Bar examination was one way of maintaining standards and could not be seen as discrimination. Even if it was discrimination, it was necessary for purposes of maintaining standard. It was a reasonable and justifiable limitation under Article 24(1) of the Constitution.
  10. If the legislature intended that all applicants sit for pre Bar examination, all it needed to do was retain paragraph 2, remove the disjunctive word “or” and in place thereof insert the word “and” to read “and has sat and passed the pre Bar examination set by the school”, instead of introducing clause (iii) in paragraph 1(b) providing for pre Bar examination. In the absence of a clear provision in paragraph 1(a), that paragraph could not be read otherwise than that applicants in that category did not have to sit and pass pre Bar examination for them to be admitted to ATP.
  11. Counsel referred to the decision in Kevin Mwiti & others v Kenya School of law and others to argue that the Court had held that Pre Bar examination was mandatory. The instant Court was not persuaded by that submission. The learned Judge must have meant that pre Bar examination was mandatory for those applicants in paragraph 1(b) following the 2014 amendments but not otherwise because such an interpretation was not discernible from paragraph 1(a).
  12. The Bill that was tabled in the National Assembly stated that its object was to provide for the establishment, powers and functions of the Kenya School of law, providing the legal framework within which the school would operate and discharge its mandate. Part III (sections 16-17) stated that they were to provide for admission requirements, the application and admission process.  That was exactly what paragraph 1(a) and (b) of the Second Schedule stood for.  In the absence of any other provision, applicants under paragraph 1(a), those who obtained LLB degrees from universities in Kenya, having attained required grades to pursue LLB degree locally, did not have to sit and pass pre-Bar examination as a pre-condition to their joining ATP at the Respondent school.
  13. Pre Bar examination was not mandatory for all applicants. Only those in paragraph 1(b) were required to sit and pass pre bar examination before admission. In that regard, therefore, the July 2017 notification could only be taken to have been intended for those applicants and not every applicant. In so far as regulation 6 of the Kenya school of law (Training Programmes) Regulations, 2015 was used as the basis for the notification for pre Bar examination, and given that the language of the regulation was to the effect that all applicants had to sit and pass that examination in order to qualify for admission to ATP, the same contravened section 16 of the Act as read with paragraph 1(a) of the Second Schedule.
  14. Regulation 6 also offended section 24(2) of the Statutory Instruments Act which stated that a statutory instrument could not be inconsistent with the provisions of the enabling legislation or any Act, and the statutory instrument would be void to the extent of the inconsistent. Looking at regulation 6 viz a viz section 16 as read with paragraph 1(a) of the second schedule, it was obvious that the regulation was void to the extent of that inconsistency.
  15. Public bodies like the Respondent, had an obligation to observe national values and principles of governance under article 10 of the Constitution, and in particular, values and principles in article 10(1) (b) which bound all state organs, state officers, public officers and all persons whenever any of them enacted, applied or interpreted any law. The Respondent was not only bound to interpret section 16 of the Act as read with paragraph 1 of the Second Schedule purposively to achieve the legislative intent, but also to enact regulations that were compatible with section 16 of the Act as read with  the Second Schedule in so far as admission to ATP was concerned.
  16. The Respondent could not purport to apply a law that did not exist or interpret the existing law in a manner that resulted into an absurdity and or oppression to the public. The Respondent was applying a non-existent legal provision. The instant petition would have been completely unnecessary had the Respondent performed its functions in accordance with clear provisions of the law.
  17. The Respondent’s mandate was to apply the law enacted by the legislature and ensure that its own standards in “Advocacy Training” were maintained. And if for any reason it feels academic standards in other institutions were suspect,   raise the issue with the relevant institutions and authorities. It should never purport to enforce a non-existent law causing unnecessary panic, anxiety, fear and despondency amongst prospective applicants, and when challenged, vigorously support indefensible acts using public resources.
  18. Taking into account the importance of the impugned regulation to the administration of pre Bar examination to those who had to sit that examination, and in order to avoid causing unnecessary disruption to the examination due on November 10, 2017 , it would be appropriate to give the Respondent’s Board time to take necessary steps to make the impugned regulation compatible with the parent Act and the Second Schedule to the Act given that some applicants had to sit and pass pre Bar examination for purposes of admission to ATP.

Petition Allowed.
Orders:

  1. Declaration issued that the notification of Pre Bar examination, 2017 issued by the respondent to the extent of including applicants falling under paragraph 1(a) of the Second Schedule to wit; applicants who studied LLB degrees in universities in Kenya having attained the required KCSE grades, was  invalid null and void.
  2. Declaration that applicants under paragraph 1(a) of the Second Schedule that is; those who studied LLB degrees in universities in Kenya, having attained the required KCSE grades, would not sit for the pre Bar examination scheduled for November 10, 2017 or any such future  examination. The Respondent was to forth with refund any examination fees paid by those applicants.
  3. Declaration issued that regulation 6 of the Kenya School of law (Training Programme) Regulations 2015 promulgated by the respondent vide legal notice no 175 of 2015 to the extent of referring to applicants falling under paragraph 1(a) of the Second Schedule to wit; applicants who studied LLB degrees in universities in Kenya having attained the required KCSE grades, contravened section 16 as read with paragraph 1(a) of the Second Schedule, section 24(2) of the Statutory Instruments Act and is therefore  void and invalid to extent of its inconsistency.
  4. However the declaration of invalidity would remain suspended for a period of twelve months from the date of the judgment within which time the respondent’s Board would take necessary steps to make regulation 6 of the Kenya School of Law (Training Programmes) Regulations, 2015 compatible with section 16 of the Kenya School of Law Act, 2012 as read with paragraph 1(a) of the Second Schedule. In default the declaration of invalidity would take effect.

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