Weekly Newsletter 005/2018

Weekly Newsletter 005/2018



Kenya Law

Weekly Newsletter


Extent to Which Courts can Interfere with Parliamentary Processes which are in Actual Progress
Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017]eKLR
Petition 32 of 2014
Supreme Court of Kenya
M Ibrahim, J B Ojwang, S Wanjala, N S Ndung’u & I Lenaola, SCJJ
December 15, 2017
Reported by Ribia John
Download the Decision
Constitutional Law separation of powers – where legislative processes and outcomes are challenged in Court - principles applicable to the doctrine of separation of powers in Kenya’s constitutional democracy - whether Courts could interfere with Parliamentary processes which were in actual progress
Jurisdiction jurisdiction of the Supreme Court – appellate jurisdiction of the Supreme Court – appeals as of right in cases involving the interpretation or application of the Constitution - whether the Supreme Court had the jurisdiction under article 163(4)(a) of the Constitution to determine an appeal that challenged the issuance of conservatory orders that estopped the removal of a County Governor by a County Assembly and the Senate by the High Court and the Court of Appeal – Constitution of Kenya, 2010 article 163(4)(a)
Constitutional Law - County Government - removal of a County Governor from office - impeachment of a County Governor via a decision of a County Assembly and the Senate - where impeachment proceedings had been estopped by the High Court – where the impeachment proceedings were carried out in contempt of the orders of the High Court - whether courts had the jurisdiction to adjudicate over the constitutional function of impeachment that was vested in a County Assembly - what was the tenability orders from Courts of law that directly abrogated the discharge of constitutional legislative processes - whether conservatory orders that were issued to effect the reinstatement of a County Governor who had been removed from office, pending the hearing of a petition which questioned the removal of the Governor from office could be sustained - Constitution of Kenya 2010 articles 165(3)(d); County Government Act section 33.
Constitutional Law – constitutional timelines – nature of constitutional timelines - where there existed standing orders that guided the functioning of the legislature and ensured the execution of constitutional timelines - whether constitutional timelines were mandatory or could be altered by the Courts - whether timelines set by standing orders that guided the constitutional functioning of the legislature were of the same nature as constitutional timelines – County Government Act section 33(3); County Assembly of Embu Standing Orders, standing order 61
 
Brief Facts:
The Embu County Assembly and the Senate impeached the 1st Respondent who had been elected as the County Governor for Embu County. The High Court had issued conservatory orders dated January 23, 2014 and February 3, 2014, to prevent the impeachment of the Governor but the impeachment, which caused the 1st Respondent’s removal from office, was still done.
The 1st Respondent challenged the impeachment and made an application before the High Court that sought interim orders for his reinstatement into office and an order of contempt of Court against the Appellants for allowing an impeachment motion to be discussed and passed. The 1st Respondent was successful in his application; the Court held that all proceedings conducted in disobedience of the Court orders were null of void and found the Appellants guilty of contempt. Aggrieved by the decision, the Appellants filed an Appeal at Court of Appeal that challenged the findings of the High Court; however the Court of Appeal affirmed the findings of the High Court.
Aggrieved by the decision of the Court of Appeal, the Appellants filed the instant appeal on grounds that the orders of the High Court and the Court of Appeal in the instant matter offended articles 159, 174 and 175 of the Constitution which touched on the doctrine of separation of powers. They contended that where the High Court had power under article 165 of the Constitution to exercise supervisory jurisdiction over the actions of State organs, that power did not extend to interfering with the ongoing processes before such State organs. They also contended that the Appellate Court was in error in holding that the Appellants had failed to apply the Assembly Standing Orders to curtail debate for the law expressly vested the power to determine the import and the application of standing orders in the Speaker, and that the Speaker exercised that in line with the doctrine of separation of powers.

Issues
  1. What were the principles applicable to the doctrine of separation of powers in Kenya’s constitutional democracy?
  2. Whether Courts could interfere with Parliamentary processes which were in actual progress
  3. Whether the Supreme Court had the jurisdiction under article 163(4)(a) of the Constitution to determine an appeal that challenged the issuance of conservatory orders that estopped the removal of a County Governor by a County Assembly and the Senate by the High Court and the Court of Appeal
  4. Whether conservatory orders that were issued to effect the reinstatement of a County Governor who had been removed from office, pending the hearing of a petition which questioned the removal of the Governor from office could be sustained.
  5. What was the tenability orders from Courts of law that directly abrogated the discharge of constitutional legislative processes
  6. Whether courts had the jurisdiction to adjudicate over the constitutional function of impeachment that was vested in a County Assembly.
  7. Whether constitutional timelines were mandatory or could be altered by the Courts.
  8. Whether timelines set by standing orders that guided the constitutional functioning of the legislature were of the same nature as constitutional timelines.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 165(3)(d)
(3) Subject to clause (5), the High Court shall have—
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of County Governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191

 
Article 163(4)(a)
(4) Appeals shall lie from the Court of Appeal to the Supreme Court—
(a) as of right in any case involving the interpretation or application of this Constitution;

County Governments Act
Removal of a governor

(1) A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under Article 181 of the Constitution.
(2) If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly—
(a) the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days; and
(b) the governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.
(3) Within seven days after receiving notice of a resolution from the speaker of the county assembly—
(a) the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and
(b) the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.
(4) A special committee appointed under subsection (3)(b) shall—
(a) investigate the matter; and
(b) report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.
(5) The governor shall have the right to appear and be represented before the special committee during its investigations.
(6) If the special committee reports that the particulars of any allegation against the governor—
(a) have not been substantiated, further proceedings shall not be taken under this section in respect of that allegation; or
(b) have been substantiated, the Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.
(7) If a majority of all the members of the Senate vote to uphold any impeachment charge, the governor shall cease to hold office.
(8) If a vote in the Senate fails to result in the removal of the governor, the Speaker of the Senate shall notify the speaker of the concerned county assembly accordingly and the motion by the assembly for the removal of the governor on the same charges may only be re-introduced to the Senate on the expiry of three months from the date of such vote.
(9) The procedure for the removal of the President on grounds of incapacity under Article 144 of the Constitution shall apply, with necessary modifications, to the removal of a governor.
(10) A vacancy in the office of the governor or deputy governor arising under this section shall be filled in the manner provided for by Article 182 of the Constitution.


Held:
  1. An expansive scope to the concept of interpretation and application of the Constitution grasped different issues of law such as contempt orders. The law of contempt of Court could hardly be screened from the grasp of interpretation and application of the Constitution.
  2. The limits on judicial authority and the Constitution’s design of entrusting certain issues to other organs of Government were vital principles. The Constitution dispersed powers among various constitutional organs. Where it was alleged that any of those organs had failed to act in accordance with the Constitution, then the Courts were empowered by article 165 (3)(d)(ii) of the Constitution to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution.
  3. No arm of Government was above the law. Kenya’s democracy being a constitutional democracy, the Constitution was the guiding light for the operations of all State Organs. The Court’s mandate, where it applied, was for the purpose of averting any real danger of constitutional violation.
  4. As regards to separation of powers, the following principles applied to Kenya;
    1. each arm of Government had an obligation to recognize the independence of other arms of Government;
    2. each arm of Government was under duty to refrain from directing another Organ on how to exercise its mandate;
    3. the Courts of law were the proper judge of compliance with constitutional edict, for all public agencies; but that was attended with the duty of objectivity and specificity, in the exercise of judgment;
    4. for the due functioning of constitutional governance, the Courts was to be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;
    5. in the performance of the respective functions, every arm of Government was subject to the law.
  5. The effective Court strived to persuade, and not to pontificate.It spoke a moderate and restrained voice, engaging in a dialogue with, not a diatribe against, co-equal departments of government, state authorities, and even fellow Courts.
  6. The constitutional mandate to impeach a Governor was duly assigned to the County Assembly and the Senate. Article 181 of the Constitution defined the circumstances under which a county Governor may be removed from office; article 181(2) specifically provided that Parliament would enact legislation providing for the procedure of removal of a Governor. In line with article 181(2), Parliament enacted the County Governments Act which, at section 33, provided for the procedure for removal of a Governor. The detailed mode of discharge of County Assembly business was not defined in the section 33, but it was provided in the Standing Orders. Standing order 61 of the County Assembly of Embu Standing Orders provided for the mode of the removal of the Governor.
  7. A constitutional mandate, which embodied the remit of impeachment, vested in a County Assembly. From the facts of the instant case, it had not been represented that the Speaker or the Clerk of the County Assembly bypassed any of the procedural steps applicable to impeachment proceedings. It was a fact that a motion for impeachment of the Embu Governor was moved on January 16, 2014. Since then, in accordance with standing order 61, discussion upon the motion was to take place upon the expiry of seven days, the matter being disposed of within three days. The relevant Standing Orders were silent, on notification to the Governor of such a call for impeachment (though there were provisions for an impeached Governor to be heard in Senate). The said Standing Orders bore no provision on how the Governor was to participate in the process, or defend himself before the County Assembly.Such a procedural setting, however, was not challenged, even though a conservatory Order was issued stopping a County Assembly from performing its prescribed constitutional mandate.
  8. The Court’s word was the people’s solemn edict calling for obedience; but it was precisely the sanctity of that word that dictated utmost care, focus and assiduity, in the Court’s undertaking.
  9. While the Supreme Court’s bore its mind on the precious caution for sustaining judicial authority, the Supreme Court had to consider the uniqueness of the instant case, which was embodied in the express terms of a comprehensive, newly-formulated constitutional document: especially the fact that it bore express terms on the separation of powers.
  10. Interpretation of the Constitution called for a delicate balance in the respective mandates of the different arms of government. While such refinements in the reserved governmental mandates had not elicited focussed assessment at the High Court, ex-parte conservatory orders were made: the effect being to hamstring the due performance of the constitutional mandate of the County Assembly. Notwithstanding the conventional judicial perception of ultimacy in judicial orders, the question that remained was the tenability of such Orders that directly abrogated the discharge of commanded legislative-agency process.
  11. The integrity of Court Orders stood to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocated specific mandates and functions to designated agencies of the State.Such restraint, in the context of express mandate-allocation under the Constitution, was essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency was to encumber another to stall the constitutional motions of the other. The best practices signalled that the judicial organ had to practice the greatest care, in determining the merits of each case.
  12. Timelines of the Constitution were of mandatory character, even where Court process itself was the subject. Expressly prescribed constitutional time-frames were binding on the governance processes in place. Even though precedent on the mandatory nature of constitutional timelines were drawn only from the Constitution’s scheme of electoral justice, the precedents nonetheless bore a wider signal, regarding time, as it was to direct the various agencies of the State.
  13. A seven-day time-frame was provided for in standing order 61 of the County Assembly of Embu Standing Orders. Standing orders, all by themselves, by no means rested at the direct level of the Constitution, or indeed, the statute law. Even though standing orders guided the constitutional functioning of the legislature, it was necessary to consider their constitutionality or otherwise.
  14. However, the standing orders, the individual merits of which were not contested, could be said to be properly coalesced in the constitutional scheme of legislative functions, and thus, to constitute an organic framework for the legislative agency’s operations, on the basis of all available information.
  15. The effect was that, a methodical and conscientious inquiry would show the County Assembly to have been operating quite properly, within the constitutional scheme of devolution, and running its legislative processes within the ordinary safeguards of the separation of powers and consequently, quite legitimately outside the path of the ordinary motions of the judicial arm of State. On that basis, there would have been hardly any scope for the deployment of the Court’s conservatory Orders more particularly without first hearing the Petitioners.
  16. The exceptional circumstance of the instant case, with a complex scenario of justiciabilities from contrasted standpoints, would lend justification to the non-effectuation of contempt orders at the beginning; and consequently, as would be otherwise required, the reality of there not having been immediate compliance could be accommodated by the Supreme Court.
Appeal allowed.
Orders:
  1. Conservatory Orders issued on January 23, 2014 in Kerugoya Petition No. 3 of 2014 (formerly Embu Petition No. 1 of 2014), were annulled.
  2. The judgment and order of the Court of Appeal delivered on September 30, 2014 in Civil Appeal No. 24 of 2014 was set aside.
  3. Each party was to bear its own cost.
Kenya Law
Case Updates Issue 005/2018
Case Summaries

CONTRACT A Contract can be be Binding even if the Written and Signed Document States that it is a Draft.

Mamta Peeush Mahajan(suing on behalf estate of late Peeush Premal Mahajan) vs Yashwant Kumari Mahajan(sued by personally and as Executrix of estate and beneficiary of the Late Krishan Lalah Mahajah(2017) eKLR
Civil Case 571 of 2015
High Court of Kenya at Nairobi
J L Onguto, J
November 9, 2017
Reported by Ribia John and James Nginya

Download the Decision

Contract– construction and interpretation of contract- attestation of a contract – legal effect of attestation by signature on a contract - the legal effect of attestation of signature to a document or to an agreement - whether the lack of attestation of signature to an agreement for the sale of shares invalidates such an agreement.
Contract- construction and interpretation of contract - offer and acceptance – where an offer was not attested by signature - whether an offer in a draft contract could be accepted when it was not signed.
Contract-construction and interpretation of contract – draft contracts - whether a contract would be considered to be binding when the written and signed documents stated that it was a draft.
Contract - construction and interpretation of contract – terms used in the construction of a contract – the term, ‘revert to’ - what was the legal effect of the term, ‘revert to’, in contract negotiations.
Contract - construction and interpretation of contract – correspondence between parties to a contract regarding a contract - whether a Court could infer from correspondence between parties to conclude that there was a contract.

Brief facts:
In 1966 Krishna together with his four brothers (Mahajan brothers) founded East African Growers Limited (“EAG”) as a family business venture. The Mahajan brothers also founded Wilham (Kenya) Ltd (“Wilham”) in 1987, Shalimar Flowers Ltd (“Shalimar”) in 1991 and finally Maya Investments Ltd (“Maya”) in 1993. The Mahajan brothers held shares in the four companies. The Mahajan brothers are all now deceased. Over the years however, as was allowed by the respective four companies’ Memorandum and Articles of Association, the Mahajan brothers transferred shares to their off-springs. Other Mahajan family relations and spouses were also invited to the family business and into the shareholding structures.
The instant dispute involved two members of the wider Mahajan family. The Plaintiff was the executrix of the estate of her late husband Peeush Premlal Mahajan (the Deceased) who passed on in 2015. Both the Plaintiff and the Defendant like their late spouses before them, held shares in at least one of the four companies. The instant dispute however only concerned the shares of Krishna and those of the Defendant in the four companies. The Plaintiff alleged , at least two years prior to his demise, the Deceased agreed with the Defendant that the Defendant would sell to the Deceased the entire Defendant’s as well as Krishna’s shares in the four companies. Despite making the payment the Plaintiff alleged that the Defendant failed to avail the executed share transfer forms to the Deceased until the Deceased met his demise in July 2015. The Plaintiff filled the instant case to seek an order to compel the Defendant to perform the agreement and for that matter sign all the necessary transfer documents and take all necessary steps to ensure that the 251,665 ordinary shares in the four companies were transferred to the Plaintiff, as the executrix of the estate of the deceased.

Issue:

  1. The legal effect of attestation of signature to a document or to an agreement.
  2. Whether the lack of attestation of signature to an agreement for the sale of shares invalidates such an agreement.
  3. Under what circumstances was a transfer of shares complete under the Companies Act (repealed)?
  4. Whether an offer in a draft contract could be accepted when it was not signed.
  5. Whether a contract would be considered to be binding when the written and signed documents stated that it was a draft.
  6. What was the legal effect of the term, ‘revert to’, in contract negotiations?
  7. Whether a Court could infer from correspondence between parties to conclude that there was a contract.Read More...

Held:

  1. The law generally adopted an objective theory of contract formation. That meant that in practice law generally ignored the subjective expectations and the unexpressed reservations of the parties. Instead the governing criterion was the reasonable expectations of honest man that meant that the yardstick was the reasonable expectations of sensible businessmen
  2. The fact that the transaction was performed on both sides would often make it unrealistic to argue that there was no intention to enter into legal relations. It would often make it difficult to submit that the contract was void for vagueness or uncertainty. Specifically, the fact that the transaction was executed made it easier to imply a term resolving any uncertainty, or, alternatively, it could make it possible to treat a matter not finalised in negotiations as inessential
  3. Factors which vitiated contracts or defeated contractual liability constituted appropriate defenses to any claim for specific performance. They ought to have been pleaded with specific particularity. Where they were not even generally pleaded a party should not be allowed to lead evidence on the same or even raise such factors after closure of trial. The essence of pleadings being to enable each party to be aware of the case he or she faced and to prepare an answer to the same.
  4. Not all agreements need be in writing. An agreement would be deemed duly formed and binding where there consideration in present and accepted having been offered. An agreement need not be in any special form or in writing unless statute expressly provided for it.
  5. Where parties reached an agreement on all the terms of contract they regarded (or the law requires) as essential, a contract was deemed to have been formed. What was essential was the legal minimum to create a contract, being the intention to create legal obligations and consideration. Other terms were secondary as far as formation of a contract was concerned. The reason was that the law did not require commercially sound terms or sensible terms. Parties could agree to any terms and the Court would, once it was shown that the parties agreed and valid consideration exists, always hold the parties to their bargain. The court would not seek to re-write the contract for the parties
  6. One of the core functions of a signature is to indicate that the parties whose signatures were applied to the document had read, understood and agreed to the terms of the agreement. A signature was one of the factors which proved and established both offer and acceptance but not necessarily validity of a contract.
  7. In the instant case, both parties signed the agreement. It was an agreement for the sale of shares. There was no requirement in law that such agreement be in any prescribed form. There was no mandatory requirement under any of the memorandum and articles of association that any sale of shares in any of the four companies be in writing.
  8. The only requirement in law under the Companies Act (repealed) but which was the statute in force at the time of the transaction) was that the instrument of transfer of shares be in a prescribed form. Likewise section 54 of the Companies Act (repealed) also required the Company and parties dealing or trading their shares to file a formal return to the Registrar of Companies in a prescribed form (Form 221) providing particulars of the shares allotted for any cash consideration. Under the Companies Act (repealed),section77 the transfer of shares was complete only when a formal and proper transfer instrument was lodged with the registrar of companies. That was notwithstanding any particular clauses in the Memorandum and Articles of Association
  9. The Memorandum and Articles of Association of each of the four companies also expected the party selling the shares to notify the individual company of the sale. There was no requirement for an agreement in writing. Effectively, the Plaintiff and the Defendant could even have agreed orally and executed only the transfer of share(s) form. They opted to have their agreement in writing and signed a written document.
  10. The agreement executed by both Plaintiff and the Defendant was also not executed in the presence of any attesting witness(es). Again, there was no requirement in law or under the Memorandum and Articles of Association that an agreement for sale of shares be executed in the presence of an attesting witness. Want of attestation would therefore not void such an agreement.
  11. The mere lack of attestation of signature to an agreement for the sale of shares did not void or invalidate such an agreement. Generally, attestation was necessary in some but not all agreements. It was not a pre-condition to the existence of contractual obligations or relations. It operated as an assertion that one signed an agreement and was not necessary (unless the statute dictated otherwise) where the execution or signing was not denied.
  12. An offer in a draft contract may be accepted even when not signed. It was all a matter of fact and the signing of a draft document only added to show fact of acceptance and establishment of legal obligations
  13. The mere fact that the parties signed a draft agreement and actually accepted that it was a draft agreement of itself did not mean an agreement existed. Neither did it also mean that an agreement did not exist. What mattered and what was crucial were the events succeeding such signatures; especially the conduct of the parties.
  14. The correspondence between the Plaintiff and the Defendant provided an acknowledgment and a confirmation that there was in place an agreement which needed to be completed.
  15. There were attempts to renegotiate the nature of the consideration which collapsed. The use of the phrase, ‘revert to’, was to clearly pass the message that the Plaintiff would stand by the earlier agreement and not abandon it altogether. The draft agreements exchanged during negotiations did not vary or amend any essential. They only attempted to split the agreement and reduce the completion periods. They never increased the shares to be sold or decreased the same. They neither reduced nor increased the consideration payable.
  16. It was clear from the correspondence that the Deceased always wanted to complete the agreement. It was also clear that the Defendant too wanted to pull through with the sale of shares. There was an inexplicable reluctance though on the Defendant’s part. There was an issue with the period of completion. The original agreement provided that the Deceased would pay the purchase price over a period of 5 years. The Deceased was willing to consider it. There was an issue with the nature of consideration. The Deceased was originally willing to consider all these until he seemingly got tired. The conduct of both parties pointed to one of completion rather than avoidance. It was only about the nuts and bolts being tightened and not the essentials of the agreement being vacated.
  17. The parties’ conduct appeared to reveal an intention to complete the transaction. The Plaintiff had showed that the draft agreement signed by the parties constituted a binding agreement between them.
  18. Once the Defendant’s signature was proved or admitted the Plaintiff had discharged his or her burden and the burden was then on the Defendant to prove fraud, misrepresentation, illegality, duress or whatever defence he or she might have had. The burden likewise shifted once it was shown that an agreement, oral or otherwise, existed.
  19. Duress meant the compulsion under which a person acted through fear of personal suffering, as from injury to the body from confinement, actual or threatened. Duress essentially occurred where a party to contract had coerced the other and exercised domination as to undermine the others independence of decision substantially. It was all about illegitimate or unlawful pressure. Where proven, the related contract was deemed voidable.
  20. Duress and its particulars were to be pleaded and the particulars proven at trial. That was not the case in the instant case. It marked a departure from the pleadings when one of the Defendant’s witnesses pursued that line in evidence. The Defendant, both in her evidence orally before the Court and in her witness statement, made no mention of duress or coercion by the Plaintiff. Instead, it was a witnesses’ hearsay testimony that brought up the issue. There was however no description of the alleged duress. The Defendant did not sign the agreement under any form of duress.
  21. The defense of non est factum (it is not my deed), which was not specifically pleaded, was open to the Defendant. The defence of non-est-factum was not one to be accepted lightly in the absence of clear proof. If it were to be so, commerce would suffer and uncertainty would reign. Parties to contracts would simply disown their signature by asserting that they did not understand that which they signed. It was thus critical that one had to show that which he intended to sign and that which he actually signed. The Defendant had not shown that which she intended to sign and mistakenly did not sign.
  22. The Defendant’s defence that she did not appreciate or understand the English language was dismissed as the Defendant would consistently be signing documents written in English and would then disown the same so shortly thereafter. She signed a Power of Attorney in favour of DW3 and DW4 then appeared to doubt it while acknowledging it. She also signed the witness statement and again disowned it.
  23. The judicial nature of the defence of duress which the Defendant sought to rely upon also dictated that a person subjected to duress or undue influence be fully aware of the terms of contract he was coerced to enter. It would beat logic consequently to deem the Defendant as not having known about the transaction with Plaintiff in 2012 and at the same time reflect that the Defendant was coerced into the contract. The defences of duress, undue influence and non-est-factum were all after- thoughts. They lacked the proper basis and had not been proven.
  24. To prove fraud one needed to show that a false representation had been made, knowingly, or without belief in its truth, or recklessly, careless, whether it be true or false. Fraud is an act of dishonesty which was set or intended to mislead and which a party acted upon.
  25. There wasn’t any act of dishonesty fetched on the Defendant by the Plaintiff and intended to mislead either the Defendant or the Court. The Plaintiff owned up that the date in agreement was inserted for purposes of the Stamp Duty Act (Cap 480) so as to be able to present the document in court as evidence. The Defendant’s complaint could actually be appropriately dealt with as it was not intended to claim that an agreement had been executed in 2015.The Plaintiff averred that the agreement was made in 2012. The date was inserted for purpose of stamping to enable the document be tendered in evidence as failure to pay duty on agreements or transactional documents generally render such documents inadmissible in any court proceedings for the enforcement of any contractual obligation. The Court itself would have ordered the document to be stamped and, more importantly, both parties agreed that the document was originally not dated. The process of paying stamp duty enjoined the presenter of the document to date the document.
  26. . The documents had the Defendant’s initials. The allegation that the Plaintiff omitted or obliterated the Defendant’s initials was not well founded. An accusation of fraud was a relatively serious issue and it was not necessary to plead fraud unless there was clear and sufficient material evidence to support it. That was lacking in the instant case. The Defendant had in the instant case not proven any of the vitiating factors.
  27. A court is not bound by an expert’s opinion. It was the Court that ultimately assessed the cogency of the expert’s evidence in the contextual and factual matrix of the case. The Court could reject it if it was not based on sound grounds. It was enough to simply say that an expert’s opinion evidence could only be challenged and rejected when another expert testified. It all depended on the circumstances of each case and the factual matrix.
  28. PW2’s evidence treated together with the documentary evidence available including the correspondence exchanged proved that the Plaintiff paid the Defendant the amount of Kshs. 18,000,000/= in partial satisfaction and performance of the obligations of the Deceased under the agreement between the parties for the sale of shares. That was conduct consistent with a person keen in pursuing a specific legal obligation and right. The acceptance of that sum which the Defendant freely admitted also established conduct in harmony or consistent with a person who had bound herself to a legal obligation.
  29. The payment and the acceptance both exhibited earnest conduct on the part of either party to perform an agreement. None of the parties in the course of their fairly protracted negotiations at any one time questioned the payment of Kshs. 18,000,000/=. Quite the contrary, the draft agreements exchanged in the course of such negotiations pointed to and acknowledged that amount as having been paid as earnest.
  30. There was an agreement for the sale of shares between the Deceased and the Defendant. The agreement was not vitiated by any factor, including the alleged fraud, duress and the doctrine of non-est-factum. There was partial performance of the agreement when an amount of Kshs. 18,000,000/= was paid to the Defendant which the Defendant accepted. Under the agreement, the Defendant was then to avail to the Plaintiff executed share transfer forms and the original share certificates. The Plaintiff said the Defendant never did so. The Defendant confirmed as much.
  31. The Defendant was to have delivered the completion documents upon the first payment which was made in 2012/2013. It was to be noted that in 2013 the parties engaged with a view to renegotiating some of the terms of the agreement. The negotiations were never about whether or not to complete the agreement but when and how. There was no default in 2012 or 2013.
  32. The negotiations collapsed on or about April 2015. Shortly, thereafter the Deceased passed on. Demand to complete was then made in October 2015. The Defendant did not heed the demand. There was then default.
  33. Even though the Defendant failed to deliver the completion documents, default on her part only occurred after the negotiations collapsed and there was demand. There was default in on the part of the Defendant in 2015.
  34. The Plaintiff proved her case on a balance of probabilities. There were three distinct possibilities in the instant case: one, there was no contract, two there was a contract indeed and, three, there was a contract but on other terms. On the totality of the evidence and the circumstances of the instant case, it would be unrealistic to conclude that the parties never intended to complete the shares transaction. The parties intended to be bound and wanted a contract in writing which they got and signed and exchanged. Their intention never ultimately took any other turn but to ultimately complete.
  35. The demise of the Deceased did not frustrate the agreement. The agreement provided that the purchaser’s or vendor’s interest would also vest in his or her personal representative /executor. The Plaintiff was admittedly the executrix of the Deceased’s estate. She would be entitled to enforce the agreement. There was a binding agreement for the sale of shares in the four companies. The correspondence revealed as much. The conduct of the parties also pointed to existence of a contract. The parties attempted to renegotiate the same but the negotiations fell through. No vitiating factor had been proven by the Defendant. Instead the Defendant had been shown to have breached the agreement.
  36. Specific performance is a discretionary remedy. The Court had a choice and was entitled to consider whether it would be fair to grant it in any particular circumstances. In the instant case, the subject matter of the agreement sought to be enforced were ordinary shares in private family companies. Shares constituted to any owner a unique asset of unique value depending on how the company was managed. Upon the transfer of shares the Defendant would exit the company and Plaintiff stays. It would not be tenable to order the Defendant to pay damages and still have both the Defendant and the Plaintiff run and manage the companies. It would mark the beginning of the end of the companies to the detriment of the other shareholders. The Defendants obligations under the agreement for the sale of shares were sufficiently clear. The Defendant was to deliver the transfer of share instruments and the original share certificates upon payment of the initial amount which was paid to her in 2012/2013. That was a case where specific performance would be appropriate.
  37. The Plaintiff had performed her obligations under the contract but only partially. There was still an amount of Kshs. 192,000,000/= outstanding. If roles were to be reversed, the Defendant would be entitled to enforce a claim for that amount in exchange of the completion documents. Under the agreement however such payment would only be enforceable in the year 2018. The sooner the contract was performed the better. The Plaintiff also testified that she was ready able and willing to complete the agreement and held her to her word.

Application allowed

  1. The Defendant ordered to deliver to the Plaintiff the original certificate for the 1 Ordinary share in Wilham Kenya Limited in the name of the estate of Krishna Lal Mahajan and a Transfer of Share instrument of the said shares duly executed by the Defendant to the Plaintiff.
  2. The Defendant ordered to deliver to the Plaintiff the original certificate for the 33,332 Ordinary shares in Maya Investments Limited in the name of the estate of Krishna Lal Mahajan and a Transfer of Share instrument of the said shares duly executed by the Defendant to the Plaintiff.
  3. The Defendant ordered to deliver to the Plaintiff the original certificate for the 125,000 Ordinary shares in East African Growers Limited in the name of the estate of Krishna Lal Mahajan and a Transfer of Share instrument of the said shares duly executed by the Defendant to the Plaintiff.
  4. The Defendant ordered to deliver to the Plaintiff the original certificate for the 93,332 ordinary shares in Shalimar Flowers Kenya Limited in the name of the Defendant and a Transfer of Share instrument of the said shares duly executed by the Defendant to the Plaintiff.
  5. The advocates for the Plaintiff ordered to hold the said Original Share Certificates and the Transfer of Share Instruments delivered under orders (i),(ii),(iii) and (iv) above on an undertaking as stake holders pending payment by the Plaintiff to the Defendant of the sum of Kshs 192,000,000/= and which sum had to be paid in any event prior to December 15, 2017.
  6. The Defendant was to pay the Plaintiff the costs of the instant suit which were to be taxed if not agreed.
JURISDICTION Legal Notice 300 of 1991 allowed for the conduct of extradition proceedings in relation to Rwanda without referring to an international treaty between Kenya and Rwanda.

Celestine Ntarwanda alias Edouard Nsengimana v Republic
Criminal Revision Number 46 of 2017
High Court at Nairobi
G W Ngenye-Macharia, J
October 10, 2017
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the High Court-justiciability-whether the applicability of a treaty to Kenya was a question capable of being heard and determined by the High Court-whether the High Court could determine whether an extradition agreement between Kenya and Rwanda entered into on September 30, 2009 was applicable to Kenya.
Criminal Law-extradition proceedings-extraditable offence-genocide-assessment as to whether an international warrant of arrest disclosed the existence of an extraditable offence-the application of the conduct and ingredient test-Extradition (Contiguous and Foreign Countries) Act, (Cap 76), section 2, part III & schedule, section 2(1).
International Law-treaties-the making of treaties-domestication-requirement that a Gazette Notice would be issued with respect to the domestic application and operationalization of a treaty-effect of failure to issue a Gazette Notice with respect to an extradition agreement between Kenya and Rwanda entered into on September 30, 2009-Extradition (Contiguous and Foreign Countries) Act, (Cap 76), section 3 & 11.

Brief facts:
The Applicant sought revision of Magistrates' Court orders allowing for the continuance of extradition proceedings and refugee status determination, after the Applicant raised a preliminary objection against the extradition proceedings. The main ground raised in the preliminary objection was that the extradition treaty signed between Kenya and Rwanda, dated September 30, 2009, did not have the force of law as it was not gazetted as required by sections 3 and 11 of the Extradition (Contiguous and Foreign Countries) Act.
The Applicant also stated that the prior treaty between the two countries which was concluded in the year 1991, was inapplicable as the offences spelt out in the warrant of arrest issued against the Applicant were not offences for which the Applicant could be extradited pursuant to Legal Notice No 306 of 1991. The 2009 treaty had the effect of expanding extraditable offences and they included the offences set out in the Applicant's warrant of arrest.

Issues:

  1. Whether an issue concerning the applicability of a treaty to Kenya was justiciable and within the High Court's jurisdiction.
  2. What were the legal requirements relating to extradition proceedings under Part III of the Extradition (Contiguous and Foreign Countries) Act, which concerned reciprocal backing of warrants of arrest?
  3. What was the effect of the failure to issue a Gazette Notice as concerned the treaty, relating to an extradition agreement between Kenya and Rwanda entered into on September 30, 2009?
  4. How would an assessment as to whether an extraditable offence was committed, under Part III of the Extradition (Contiguous and Foreign Countries) Act, which concerned the reciprocal backing of warrants of arrest, be conducted? Read More..

Held:

  1. In implementing foreign policy, it was within the prerogative of the Executive to sign treaties, and the exercise of that prerogative was not within the Court's jurisdiction. However, the matter at issue did not concern the exercise of treaty-making powers by the Executive but it concerned the applicability of a treaty to Kenya. The issue was therefore justiciable.
  2. The requirements of section 3 of the Extradition (Contiguous and Foreign Countries) Act were applicable to extradition proceedings conducted under part II of the Act. They would not apply to extradition proceedings brought under part III of the statute. The provisions of part III related to the backing of warrants of arrest by a country to which the part applied by endorsement and issuance of provisional warrants, pending the endorsement of the warrant and the return of the prisoner to the requesting nation. Both part II and part III of the Extradition (Contiguous and Foreign Countries) Act were applicable to Rwanda by dint of Legal Notices 306 and 300 of 1991.
  3. The application filed on September 9, 2016 sought the issuance of a warrant of arrest. It was made pending the hearing of an application for the reciprocal backing of a warrant of arrest and an order seeking the detention of the Applicant and pending the endorsement of warrants issued by Richard Muhumuza, the Prosecutor General of the Republic of Rwanda on April 21, 2015. In instituting the proceedings against the Applicant, the Respondent relied on sections 6, 11, 12, 13 and 14 of the Act and therefore reliance was placed on part III of the Extradition (Contiguous and Foreign Countries) Act.
  4. Section 11 of the Extradition (Contiguous and Foreign Countries) Act required the Minister to be satisfied that a reciprocal provision had been made or would be made under the law of any contiguous country, for the backing of warrants issued in Kenya and their execution in that country. Section 11 was operationalized between Kenya and Rwanda by Legal Notice No 300 of 1991 which stated that part III would apply to Rwanda.
  5. Part of the effect of the treaty which entailed an extradition agreement between Kenya and Rwanda entered into on September 30, 2009, was to bring an end to the treaty set out in Legal Notice No 306 of 1991, which was titled, Extradition Treaty between the Republic of Kenya and the Republic of Rwanda. It was also intended to bring an end to the applicability of Part II of the Extradition (Contiguous and Foreign Countries) Act to Rwanda as provided in Legal Notice 306 of 1991. Legal Notice 300 of 1991 was intended to have part III of the Act apply to Rwanda and it could not give effect to the 2009 treaty. The 2009 treaty was entered into pursuant to section 11 of the Extradition (Contiguous and Foreign Countries) Act.
  6. The 2009 treaty, as an instrument of international law was incapable of being relied upon in Kenya until it was domesticated. It ought to have been presented before the National Assembly as required under the provisions of section 11(2) of the Extradition (Contiguous and Foreign Countries) Act.
  7. In applying part III of the Extradition (Contiguous and Foreign Countries) Act to Rwanda, there was no binding treaty. Part III would be applicable to Rwanda pursuant to section 2 of the Act which defined an extradition crime as a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the schedule annexed. The offences were set out in section 2(1) of the schedule.
  8. To determine whether the warrant of arrest issued to the Applicant fell within extraditable offences under the schedule, the conduct or ingredients test was applicable. The particulars of the offence in the case of the Applicant included genocide and allegations that the Applicant interacted often with the interhamwe militia men. They entailed an offence recognized in the schedule under section 2(1), namely, general organized crime group offences. Therefore the Applicant would be extradited to Rwanda to face trial for offences set out in the warrant of arrest.
  9. If the extradition proceedings and the refugee status proceedings were to proceed simultaneously, there would be obvious prejudice. If a refugee status determination was made in favour of the Applicant, the consequence would be that the Applicant would not be extradited to Rwanda. It would be prudent for the refugee status application to be determined first and only when it failed would the extradition proceedings take place.

Application partly allowed. (Extradition proceedings were only allowed after refugee status proceedings resulted in a failure to grant refugee status.)

CONSTITUTIONAL LAW Constitutionality of Section 14 (2) of the Election Offences Act, 2016

Jack Mukhongo Munialo & 12 others v Attorney General & 2 others
Petition No.182 Of 2017
High Court at Nairobi
E C Mwita, J
October 13, 2017
Reported by Robai Sivikhe and Kakai Toili

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Constitutional Law – fundamental rights and freedoms – right to access of information – limitation of the right to access of information – grounds of limitation of the right to access of information - justifiableness and reasonableness - whether the prohibition of the National and County Governments under section 14 (2) of the Election Offences Act, 2016 to publish advertisements of their achievements during the election period was justifiable and reasonable - Constitution of Kenya, 2010 articles 24 (1) and (2), 10, 35, 81 and 201; Election Offences Act, 2016 section 14 (2)
Statutes – interpretation of statutes – Election Offences Act, 2016 – section 14 (2) – whether section 14 (2) of the Election Offences Act infringed on article 35 of the Constitution on the Right to access of information by prohibiting Governments from publishing advertisements of their achievements during the election period – Constitution of Kenya, 2010 articles 4(2), 10, 24, 35, 81 and 201; Election Offences Act, 2016 section 14 (2)

Brief facts:
The Petition challenged the constitutionality of section 14(2) of the Election Offences Act, 2016(the Act). Parliament enacted the Act to provide for a consolidated legal framework for election offences with a view of dealing with offences relating to general elections, other elections and referenda. The Act was to apply for the first time in the general elections that were held in August 2017. The Petitioners viewed the section as violating the Constitution as well as the Bill of Rights and contended that it was constitutionally invalid.
Section 14 (2) of the Act prohibited both levels of government from publishing and advertising achievements in both electronic and print media as well as through banners or hoardings during the election period. The Independent Electoral and Boundaries Commission through various Gazette Notices notified of election period for the President, Governors, Senators, Members of National Assembly, Women Representatives and County Assemblies to be from May 17, 2017 and to have determined after elections on August 8, 2017. Section 14(2) of the Act prohibited publication of any information of the government’s achievements during that period.
The Petitioners alleged that section 14 (2) infringed on the right to information as provided for under article 35 of the Constitution and violated the principles of transparency and accountability contained in article 10 of the Constitution.

Issues:

  1. Whether the prohibition of the National and County Governments under section 14 (2) of the Election Offences Act, 2016 to publish advertisements of their achievements during the election period was justifiable and reasonable.
  2. Whether section 14 (2) of the Election Offences Act infringed on article 35 of the Constitution on the right of access to information by prohibiting Governments from publishing advertisements of their achievements during the election period.Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 4 – Declaration of the Republic
(1) Kenya is a sovereign Republic.
(2) The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.

Article 10 - National values and principles of governance.
(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—

(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.

(2) The national values and principles of governance include—

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and
(d sustainable development.

Article 24- Limitation of rights or fundamental freedoms.
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses theintention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

Article 35 – Access to information
(1) Every citizen has the right of access to—

(a) information held by the State; and
(b ) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.

Article 81 – General Principles for the Electoral System
The electoral system shall comply with the following principles—
(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.

Article 201 - Principles of public finance.
The following principles shall guide all aspects of public finance in the Republic—
(a) there shall be openness and accountability, including public participation in financial matters;
(b) the public finance system shall promote an equitable society, and in particular—

(i) the burden of taxation shall be shared fairly;
(ii) revenue raised nationally shall be shared equitably among national and county governments; and
(iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;

(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;
(d) public money shall be used in a prudent and responsible way; and
(e) financial management shall be responsible, and fiscal reporting shall be clear.

Elections Offences Act, 2016
Section 14 – Use of Public Resources
(1) Except as authorised under this Act or any other written law, a candidate, referendum committee or other person shall not use public resources for the purpose of campaigning during an election or a referendum.
(2) No government shall publish any advertisements of achievements of the respective government either in the print media, electronic media, or by way of banners or hoardings in public places during the election period.
(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office.
(4)A person who is requested to supply information required under subsection (3) shall submit the information within a period of fourteen days from the date of the notice.
(5) The provisions of subsection (3) shall apply with necessary modifications, to an employee of a statutory corporation or of a company in which the Government owns a controlling interest.
(6) A person who fails to comply with the provisions of this section commits an offence and is liable on conviction to a fine not exceeding two million shillings or imprisonment for a term not exceeding six years or to both.
(7) A member of the Commission, any person designated by the Commission or any authorised agency shall have the power to impound or to order the impounding of any state resources that are unlawfully used in an election campaign.

Held:

  1. Article 259 of the Constitution provided that the Constitution be interpreted in a manner that promoted its purposes, values and principles; advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law and contributed to good governance. The Court had to pay special attention to the purposes, values and principles of the Constitution when called upon to interpret any of its articles.
  2. Where the constitutional validity of a statute or statutory provision was challenged on grounds that it violated the Constitution, it was imperative to ascertain the true nature and character of the statute or statutory provision concerned. The Court had to ascertain the subject matter of the statute, the area it was to operate, as well as determine the purpose and intent of the statute or statutory provision. To have done so, it was legitimate for the Court to take into account all factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature intended to cure and the true reason for the remedy.
  3. There is a general but rebuttable presumption of constitutionality of a statute or statutory provision. The burden of proving that a statute or statutory provision was unconstitutional was on the person alleging the constitutional invalidity. A court had to presume a statute or statutory provision to be constitutional unless the contrary was shown.
  4. The Court had to look at the statute alongside the provision or article of the Constitution alleged to be offended by the statute or statutory provision and determine whether the statute was in conformity with the Constitution. The Court while doing so had to consider the purpose and effect of the implementation of the statute or statutory provision. If the purpose did not infringe the right guaranteed by the Constitution, the Court had to go further and determine whether its implementation infringed the constitutional right.
  5. The Constitution had to be given a broad and liberal interpretation for it embodied the Nation’s values, principles as well as aspirations of its people. The Court had to appreciate throughout that the Constitution had principles and values embodied in it and that a constitution was a living piece of legislation. The Constitution was a living document.
  6. Section 14(1) of the Elections Offences Act, 2016 (the Act) generally prohibited use of public resources during campaigns for election. The import of the entire section 14 was to prohibit use of public resources during election period.
  7. The Constitution granted citizens the right to access information held by the state or by some other person but required for purposes of exercising or protecting a right and fundamental freedoms. Projects initiated or completed by the government were done openly and were known to citizens. It could not have been the intention of the framers of the Constitution that that be the basis of the information contemplated under article 35 of the Constitution.
  8. The Act covered a broad spectrum of offences relating to elections in general as a way of ensuring that Kenya held free, fair and credible elections which were in accord with the principles set out in article 81 of the Constitution.
  9. Whereas article 10 of the Constitution provided for national values and principles of governance, including transparency and accountability, and article 35 guaranteed citizens the right to information, those articles had to be read together and in harmony with articles 24(1),81 and 201 of the Constitution. Article 201 which contained principles of finance, required openness, transparency and accountability in public finance in order to promote an equitable society.
  10. Article 81(e) of the Constitution decreed that elections be by secret ballot, free from violence, intimidation, improper influence or corruption. The article further demanded that elections be conducted by an independent body, they be transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. Article 82(1) required Parliament to enact legislation to provide for issues relating to elections and related matters. In that regard Parliament enacted the Elections Act, 2011, Independent Electoral and Boundaries Act, 2011 and the Election Offences Act 2016. In that context, matters related to elections included election offences. A proper reading of section 14 of the Election Offences Act showed that the matters provided for in that section related to the principles contained in article 81(e) of the Constitution.
  11. The electoral system principles in article 81 of the Constitution included free and fair elections that were devoid of violence, intimidation, improper influence or corruption. That meant elections had to not only be transparent but also administered in an environment that was impartial, neutral, efficient, accurate and accountable. That constitutional decree could not be realized if election offences were not dealt with firmly and decisively. The impugned section 14(2) of the Act could not be interpreted against one or two articles of the Constitution in isolation of the rest of the articles which could lead to a distorted if not absurd interpretation. Too much attention should not have been paid to words alone used in a provision which could result into a distortion of the Legislature’s intention and purpose of enacting that particular statute.
  12. Articles 10, 24, 35, 81 and 201 of the Constitution had to be read harmoniously so that the spirit of the Constitution could preside over and permeate that interpretation. Articles 10, 35, 81 and 201 contained values and principles that supported each other and had to be read and interpreted together for they spoke to one people and one nation as an open, democratic and progressive society.
  13. The values and principles of accountability and transparency in article 10 did not relate to transparency and accountability in public finance alone. Those values had to be taken to mean and include transparency and accountability in the electoral process under article 81 of the Constitution. The principles of public finance in article 201 did not operate in isolation of the rest of the articles in the Constitution. Equally, the right to information in article 35 was not absolute and had to be read in tandem with all other articles of the Constitution. Article 81 emphasized on the principles of open, fair, free and democratic elections which was in line with article 4 (2) which declared Kenya a Multi-Party Democratic state founded on the national values and principles of governance in article 10. All those articles had to be interpreted so as to give due and harmonious effect to all the articles of the Constitution. Openness and accountability in governance, and finance had to be replicated in the electoral process.
  14. Enforcing the fragmented legislations presented a challenge and as a result Parliament consolidated and amalgamated offences in those legislations into one statute, the Election Offences Act 2016. The consolidation was intended to enhance administration and prosecution of election offences. It was on that basis that the Act provided for various offences relating to elections, ranging from voter registration to electronic devices. They prohibited public officers from campaigning using public resources. The mandate to prosecute election related offences was placed on the Director of Public Prosecution and time within which to prosecute those offences was clarified. The Act was intended to prohibit use of public resources by candidates during elections as a way of ensuring accountability on the part of those in charge of public resources.
  15. Where the language used in the statute or provision of a statute was unambiguous, the Court had to give the words in the statute their ordinary and natural meaning. Section 14(2) of the Act did not violate the Constitution. The language of the entire section 14 was clear that it sought to safeguard public resources from misuse by candidates or other persons during elections. The section prohibited persons both in the national and county governments from using public resources for political activities. Prohibiting national and county governments from advertising and publishing their respective achievements during election period would prevent use of public resources for partisan political activities.
  16. Article 35 of the Constitution was not absolute and could not operate in isolation. It had to be read harmoniously with other articles of the Constitution. Even with section 14(2) of the Act, any citizen who wanted information from the State could still have gotten it under that article as read with the Access to Information Act. The law required one to write to the state officer concerned and the state officer or organ had an obligation to supply the information in his or its possession. Article 35 did not require the government or its officers to publish such information for consumption by the general public. Article 35 was clear that information had to be given for purposes of exercising or protecting a right or fundamental freedom. The Access to information Act provided a clear process for seeking information and how that information could be processed.
  17. Article 24(1) of the Constitution was permissive on limitation of rights and fundamental freedoms. The limitation was permissible on two conditions; first that a right or fundamental freedom in the Bill of Rights could only be limited by a law and second, to the extent only that the limitation was reasonable and justifiable, in an open and democratic society. Even where the right or fundamental freedom had been limited by law, the yardstick for determining reasonableness and justifiability of the limitation was whether such limitation was acceptable in an open and democratic society.
  18. The Court in considering the limitation under article 24(1) of the Constitution, had to bear in mind that there was no superior right and take into consideration factors such as the nature of the right to be limited, the importance and purpose of the limitation, the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual does not prejudice the rights of others. That called for balancing of rights under the principle of proportionality because rights had equal value and maintained the equality of rights.
  19. The period of concern in the Petition was between March 17, 2017 to after the August 8, 2017 general elections results, and in the case of the Presidential election, up to October 26, 2017, The prohibition was for a short period of about five months, while the nature and extent of limitation was against advertising achievements by government in any forums during election period, and the importance of the limitation was to protect public resources from being used in advancing partisan political interests.
  20. The limitation was reasonable and justifiable in the circumstances and met the constitutionality test prescribed by article 24(1) of the Constitution. Allowing the government of the day continue advertising and publishing information on its achievements and projects during election period using public resources, would have been against the principles of public finance and would have given the government and the political party in power not only undue advantage and influence but also room to plunder public resources should it have sensed defeat in the election.
  21. The framers of the Constitution included the provision in article 81(e) requiring elections to be free and fair, free from violence, intimidation, improper influence or corruption. They were well aware of the history of elections in Kenya and wanted elections conducted by an independent body, transparently and administered in an impartial neutral, efficient, accurate and accountable manner. Those words were not mere adjectives or platitudes. They were loaded with heavy legal meaning that Kenya had to be a true democracy where elections were conducted in a democratic manner. Only then could Kenya be an open and democratic society comparable to other open and democratic societies in the world.
  22. A holistic reading of the Election offences Act showed that it covered offences across the spectrum and encompassed all areas that were likely to jeopardize a free, fair and accountable election desired by the Constitution. Without the Act and in particular the impugned section 14(2), achieving the principles of electoral system set out in article 81 of the Constitution would have been impossible. There was no constitutional invalidity in the impugned section.
  23. Governments were lead by fallible human beings. Laws were made to control and regulate human actions including those of government. No legitimate government could operate outside the law. The impugned section targeted government officials whose conduct was deemed to be conduct of the government. The government through its officers could and did commit offences which had to be checked and that was the import of section 14(2) of the Act.

Petition dismissed, no order as to costs.

STATUTES Rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules declared inconsistent with the provisions of sections 35A (5) and 35 I(b) of the Pharmacy and Poisons Act.

Republic vs Ministry of Health & 5 others exparte Pius Wanjala and 2 others
Miscellaneous Civil Application 159 of 2016
High Court at Nairobi
March 16, 2017
G V Odunga, J
Reported by James Nginya and John Ribia

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Statutes - interpretation of statutes- Pharmacy and Poisons Act, sections 35A(5), 35I(b) - Pharmacy and Poisons (Registration of Drugs) Rules, rule 10 – whether rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules that provided that which empowered the Board to inspect premises in which manufacturing of a drug was proposed to be conducted was inconsistent with the provisions of sections 35A(5) and 35I(b) of the Pharmacy and Poisons Act which empowered the Board to renew manufacturing licences.
Statutes - interpretation of statutes - Pharmacy and Poisons Act - Pharmacy and Poisons (Registration of Drugs) Rules – whether the Pharmacy and Poisons Board (the Board) and the National Quality Control Laboratory (the Laboratory) played similar roles in ensuring that the medicinal substances being manufactured were up to the standards prescribed
Statutes - interpretation of statutes - Pharmacy and Poisons Act - Pharmacy and Poisons (Registration of Drugs) Rules – interpretation of the roles which two parastatals played - between the National Quality Control Laboratory and the Pharmacy and Poisons Board; which body was empowered to enter premises for the manufacture of medical substances and sample any medical substances under production in such premises and to certify that the method of manufacture approved by the Board was being followed
Statutes – interpretation of statutes - application of a statute vis a vis application of subsidiary legislation – where there were conflicting positions between a statute and subsidiary legislation – Whether the provisions of subsidiary legislation could supersede the provisions of a statute
Statutes – power of Cabinet Secretaries to make regulations – power of the Cabinet Secretary of Health to make regulations – where the regulations made by a cabinet secretary conflicted with a statute - whether the decision of the Permanent Secretary of Health made vide circular Ref: MOH/ADM/1/2/17/VOL.1 of March 10, 2016 which stopped the National Quality Control Laboratory from performing the functions conferred by Section 35A (5) and 35I(b) of the Pharmacy and Poisons Act was unlawful.

Brief facts:
The Applicant, a qualified and registered pharmacists employed by the Public Service Commission and who was stationed at the 5th Respondent (National Quality Control Laboratory )as senior deputy director, moved to court by way of judicial review proceedings to challenge the 3rd Respondent’s (Principal Secretary of Health ) circular Ref: MOH/ADM/1/217/VOL.1 directing the director of the National Quality Control Laboratory to stop implementation its functions under sections 35A(5) and 35I(b) of the Pharmacy and Poisons Act, of Inspecting premises and issuing certificates of compliance to good manufacturing practices (GMP); by sampling any medicinal substance under production in any manufacturing premises to certify that the approved method of manufacture was being followed. The circular stated that rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules, empowered the Pharmacy and Poisons Board to inspect premises in which manufacturing of a drug was proposed to be conducted a job being undertaken by National Quality Control Laboratory

Issues:

  1. Whether the Pharmacy and Poisons Board (the Board) and the National Quality Control Laboratory (the Laboratory) played similar roles in ensuring that the medicinal substances being manufactured were up to the standards prescribed.
  2. Between the National Quality Control Laboratory and the Pharmacy and Poisons Board; which body was empowered to enter premises for the manufacture of medical substances and sample any medical substances under production in such premises and to certify that the method of manufacture approved by the Board was being followed?
  3. Whether the Pharmacy and Poisons (Registration of Drugs) Rules that empowered the Board to inspect premises in which manufacturing of a drug was proposed were ultra vires to the powers of the Cabinet Secretary of the Ministry of Health and the Pharmacy and Poisons Board.
  4. Whether rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules that provided which empowered the Board to inspect premises in which manufacturing of a drug was proposed to be conducted was inconsistent with the provisions of sections 35A(5) and 35I(b) of the Pharmacy and Poisons Act which empowered the Board to renew manufacturing licences.
  5. Whether the decision of the Permanent Secretary of Health made vide circular Ref: MOH/ADM/1/2/17/VOL.1 of March 10, 2016 which stopped the National Quality Control Laboratory from performing the functions conferred by Section 35A(5) and 35I(b) of the Pharmacy and Poisons Act was unlawful.Read More...

Relevant Provisions of the Law
Pharmacy and Poisons (Registration of Drugs) Rules
Rule 10
The Board may, before issuing a certificate of registration under these rules, cause the premises in which the manufacturing of the drug is proposed to be conducted to be inspected by inspectors appointed for that purpose, and the inspectors shall have powers to enter the premises and inspect the plant and the process of manufacture intended to be employed in the manufacturing of the drug and make a report to the Board.

Pharmacy and Poisons Act
Section 35A
Licence to manufacture medicinal substances
(1) No person shall manufacture any medicinal substance unless he has been granted a manufacturing licence by the Board.
(2) Each manufacturing licence shall expire on the 31st December of every year and the renewal thereof shall be subject to compliance with conditions prescribed by the Board.
(3) No person shall manufacture any medicinal substance for sale unless he has applied for and obtained a licence from the Board in respect of each substance intended to be manufactured.
(4) Any person who intends to manufacture a medicinal substance shall make an application in the prescribed form for the licensing of the premises; and the application shall be accompanied by the prescribed fee.
(5) The Director of the National Drug Quality Control Laboratory or any member of the Laboratory staff authorized by him shall have power to enter and sample any medicinal substance under production in any manufacturing premises and certify that the method of manufacture approved by the Board is being followed.

Section 35B
Compliance with good manufacturing practice
Every person who is granted a manufacturing licence under section 35A shall comply with the good manufacturing practices prescribed by the Board

Section35D
Establishment of the National Drug Quality Control Laboratory
(1) There shall be established a National Quality Laboratory which shall be
used as a facility for—
(a) the examination and testing of drugs and any material or substance from or with which and the manner in which drugs may be manufactured, processed or treated and ensuring the quality control of drugs and medicinal substances;
(b) performing chemical, biological, bio-chemical, physiological and pharmacological analysis and other pharmaceutical evaluation; and
(c) testing, at the request of the Board and on behalf of the Government, of locally manufactured and imported drugs or medicinal substances with a view to determining whether such drugs or medicinal substances comply with this Act or rules made thereunder

Held:

  1. Whereas the power to licence premises for the manufacture of medicinal substances rested with the Pharmacy and Poisons Board (the Board), the National Drug Quality Laboratory was empowered to enter such premises and sample any medicinal substances under production in such premises to certify that the method of manufacture approved by the Board was being followed.
  2. The mandate of the Board was to prescribe the methods of manufacture of medicinal substances while the mandate of the Laboratory was to ensure compliance with that methodology. The Board dealt with setting standards while the Laboratory ensured that the said standards were adhered to as set by the Pharmacy and Poisons Board.
  3. The Board and the Laboratory were two bodies who played complementary but distinct roles in ensuring that the medicinal substances being manufactured were up to the standards prescribed. The Board was mandated to prescribe good manufacturing practices and having done so, it fell upon the Laboratory to ensure that those good manufacturing practices prescribed by the Board were being adhered to in terms of the manufacturing licence for each substance. It was the mandate of the Laboratory to issue certificates as regards compliance with the manufacturing methods prescribed by the Board.
  4. Section 35D (1) of the Act detailed what the Laboratory was required to do in undertaking its obligations. The Laboratory’s mandate under section 35D(1)(c) was over and above its general mandate and therefore ought not to be construed to mean that the Laboratory only undertook its mandate as and when directed by the Board or the government.
  5. Subject to section 351, a certificate of compliance with the prescriptions of the Board was to be issued by the Laboratory after the inspection carried out pursuant to the Laboratory’s mandate under the Act. Upon such inspection, the Laboratory was under section 35I(c) empowered to advice the Board accordingly. The Laboratory was also entitled to obtain advice from the Board, that emphasized the complimentary nature of the relationship between the two entities.
  6. The mere fact that the National Quality Control Laboratory was for some reasons starved of the financial and human resource capacity to carry out the mandate of inspections and sampling of drugs did not justify the Principal Secretary rendering the Laboratory in-operational. It was for Parliament, if it did not deem the services of the Laboratory tenable to amend the law accordingly and not for the Principal Secretary to ignore a statutory mandate and bypass the entity entrusted by the Legislature to carry out the same.
  7. The Pharmacy and Poisons (Registration of Drugs) Rules enjoined the Board before issuing a certificate of registration under the Rules to cause the premises in which the manufacturing of the drug was proposed to be conducted to be inspected by inspectors appointed for that purpose, who had powers to enter the premises and inspect the plant and the process of manufacture intended to be employed in the manufacturing of the drug and make a report to the Board.
  8. Section 31(b) of the Interpretation and General Provisions Act, provided that, no subsidiary legislation would be inconsistent with the provisions of an Act. Similarly section 24 (2) of the Statutory Instruments Act provided that a statutory instrument would not be inconsistent with the provisions of the enabling legislation, or of any Act, and the statutory instrument would be void to the extent of the inconsistency.
  9. It did not matter whether the particular statutory Instrument or subsidiary legislation was made before or after the provision of the Act in issue was enacted. Once there was an inconsistency between the provision(s) of the Act and the subsidiary legislation or the instrument made pursuant to the Act, that instrument or subsidiary legislation had to give way
  10. Before the Court finds that a particular instrument or subsidiary legislation is inconsistent with the Act, it had to be satisfied that the two provisions could not stand together. What the Court was required to do is to construe the instrument with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Act. It was only when the instrument could not, despite such construction, conform to the Act that the Court would be entitled to nullify the instrument.
  11. Rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules did not specify who was to carry out the inspection but simply enjoined the Board to ensure that inspection was carried out by the relevant agencies. The relevant agency was the National Quality Control Laboratory. Rule 10 ought to be read in a manner that enjoined the Board to ensure that the inspection and certification of the relevant premises were inspected by the Laboratory before licences were issued or registrations effect. Rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules was thus not inconsistent with the provisions of sections 35A (5) and 35I(b) of the Pharmacy and Poisons Act.
  12. Section 11 of the Fair Administrative Action Act and article 23 of the Constitution provided that a Court could grant appropriate relief, including a declaration of rights. “Appropriate relief” meant an effective remedy. That must necessarily be so, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution could not be properly be upheld or enhanced. The Court was therefore empowered to fashion appropriate remedies. The law now empowered the Court in judicial review proceedings to make declaratory orders.
  13. Where an authority was empowered to make subsidiary legislation, that mandate had to strictly be in accordance with the provisions of the enacting statute. An authority had to only act pursuant to the enabling legal provision.
  14. Where a statute donated powers to an authority, the authority ought to ensure that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority.
  15. The Pharmacy and Poisons (Registration of Drugs) Rules did not disclose under which provision of the law they were made. That omission however did not necessarily render the rules unlawful if a basis therefor could be found within the parent Act. Section 44(1)(n) of the Pharmacy and Poisons Act empowered the Cabinet Secretary to make rules with respect to anything which was by the Act required or authorised to be prescribed. It had not been contended that the said rules were not required or necessary for the proper implementation of the Act. They would not be nullified on that basis alone.
  16. Court had power while exercising its judicial review jurisdiction declaring an instrument unlawful or even that the same was unconstitutional as long as the Court was so satisfied.
  17. To the extent therefore that the Principal Secretary issued the circular Ref: MOH/ADM/1/2/17/VOL.I of March 10, 2016, stopping the National Quality Control Laboratory from performing the functions conferred by section 35A(5) and 35I(b) of the Pharmacy and Poisons Act, the Principal Secretary acted illegally and in excess of his powers. By his actions, the Principal Secretary purported to render an Act of Parliament in-operational. Public officers had to carry out their duties for the benefit of the people of the Republic of Kenya. They had to remember that under article 129 of the Constitution executive authority derived from the people of Kenya and was to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. To operate outside the law amounted to perpetuation of a fundamental breach of the Constitution and to legalize impunity.. Those who accepted to serve in public offices had to be guided by the provisions of the Constitution and could not be permitted to breach the Constitution with remarkable arrogance or ignorance., that was an action taken with a view to undermine the legislative mandate. In the instant case, it was contended which contention was not seriously disputed that the Laboratory sought the opinion of the Attorney General on the matter and vide letter of November 7, 2014 the Attorney General requested the Principal Secretary to convene a meeting between the Laboratory and the Pharmacy and Poisons Board for him to deliver his legal advice but the Ministry of Health instead reprimanded the Director of the Laboratory for having requested the Attorney General’s legal opinion, and the Ministry never invited the Attorney General to render his legal opinion thereon.
  18. It was therefore highly advisable for public servants, the government and its institutions to seek the legal opinion of the Attorney General in areas where they were not sure of how to proceed with their proposed action and abide by the same in order to avoid rushing in decision which may well turn out to be reckless and unlawful hence subject the tax payer to unnecessary costs.
  19. The assertion that the Court could not quash the Pharmacy and Poisons (Registration of Drugs) Rules since rule 10 thereof of was made more than 6 months before the proceedings were instituted the Court was not correct. The 6 months’ limitation only applied to formal judgments, orders, decrees, convictions or other proceedings from an inferior court or tribunal but not any other decision by a tribunal or other body and did not apply to decisions that were nullities. Whereas speed was key to the exercise of discretion in granting Judicial Review relief, the 6 months’ period did not apply to the instant proceedings and thus the proceedings were not time barred.

Application allowed
Orders:

  1. Declaration issued that the Pharmacy and Poisons Board and the National Quality Control Laboratory played complementary but distinct roles in ensuring that the medicinal substances being manufactured were up to the standards prescribed.
  2. Declaration issued that whereas the power to licence premises for the manufacture of medicinal substances rested with the Pharmacy and Poisons Board, the National Quality Control Laboratory was the entity empowered to enter such premises and sample any medicinal substances under production in such premises and to certify that the method of manufacture approved by the Board was being followed. The Board dealt with setting standards while the Laboratory ensured that the said standards were adhered to as set by the Board and to advice the Board accordingly.
  3. Declaration issued that rule 10 of the Pharmacy and Poisons (Registration of Drugs) Rules were not inconsistent with the provisions of sections 35A (5) and 35 I(b) of the Pharmacy and Poisons Act.
  4. Declaration issued that to the extent that the Principal Secretary issued the circular Ref: MOH/ADM/1/2/17/VOL.I of March 10, 2016, stopping the National Quality Control Laboratory from performing the functions conferred by section 35A (5) and 35I(b) of the Pharmacy and Poisons Act, the Principal Secretary acted illegally, in excess of his powers and unlawful
  5. An order of prohibition issued prohibiting and restraining the 4th Respondent (Pharmacy and Poisons Board) from by usurping the functions of the National Quality Control Laboratory of inspecting premises and issuing certificates of compliance to good manufacturing practices (GMP); by sampling any medicinal substance under production in any manufacturing premises to certify that the approved method of manufacture was being followed, as provided for in sections 35 A (5) and 35 I (b) of the Pharmacy and Poisons Act,as well as those under section 35D of analytical testing of medicinal samples
  6. An order of mandamus issued to compel the 5th Respondent (National Quality Control Laboratory) to perform its functions as conferred in Sections 35 A (5) and 35 I (b) of the Pharmacy and Poisons Act of inspecting premises and issuing certificates of compliance to good manufacturing practices (GMP); by sampling any medicinal substance under production in any manufacturing premises to certify that the approved method of manufacture is being followed.
  7. Costs of proceedings awarded to the Applicant to be borne by the 1st, ,2nd and 3rd Respondents.

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The Kenya Law Team

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