Weekly Newsletter 007/2018

Weekly Newsletter 007/2018



Kenya Law

Weekly Newsletter


Sharia law which excluded women, children and non-Muslims from inheriting their fathers’ and husband’s estates was not a violation of the Constitution
In re Estate of CCBH (Deceased) [2018] eKLR
Succession 436 of 2004
High Court At Mombasa
Thande Mugure, J
February 15, 2018
Reported by Felix Okiri
Download the Decision
 Constitutional LawRights and fundamental freedoms – right to property - whether a person’s religion and marital status was ground for disinheritance in Sharia Law – whether the Applicants’ right to property was violated by being denied their father’s share of the estate of the deceased - what were the rights of non-muslims who had hereditary proprietary rights in the estate of a deceased Muslim - whether Sharia Law which excluded women, children and non-muslims from inheriting their fathers’ and husband’s estates was a violation of article 27 of the Constitution – Constitution Of Kenya, article 27
Constitutional Law - fundamental rights and freedoms – rights of children – best interests of children - whether the best interests of children was a primary consideration in distribution of estate of a deceased as required by the Constitution, Convention on the Rights of the Child (CRC) and the Children Act - whether Sharia Law which excluded children from inheriting their fathers’ estates was a violation of the best interests of children - Constitution of Kenya, article 53; African Charter on the Rights and Welfare of the Child (ACRWC), article 3; Convention on the Rights of the Child (CRC), article 2; Protocol To The African Charter On Human and Peoples' Rights On The Rights Of Women In Africa (The Maputo Protocol), article 1(j); Children Act, 2001, section 4(2)
Constitutional Law construction of the Constitution - Interpretation of the Constitution - whether the validity of the Constitution was subject to any challenge- whether certain articles of the constitution could be unconstitutional – whether the validity of the Constitution was subject to any challenge
Family Law - inheritance- who is entitled to inherit under Islamic Sharia - whether the failure to legalize a marriage was a disqualification from inheriting under the tenets of Islamic Sharia - whether the Court could presume a marriage between the Applicants’ parents and thereby confer legitimacy upon the Applicants
Children Law - whether Kenya was bound to respect, protect and enforce the rights of children without discrimination of any kind- whether the birth and rights of a child had to be viewed independently of the relationship between the parents – whether by the fact that, the Applicants were children of the deceased, entitled them to inherit their father’s share in the estate of the deceased
 
Brief Facts:
 CBH, the deceased, was survived by 2 widows and 18 children. A grant of letters of administration was issued to the sons and widow of the deceased. The grant was later confirmed and the estate was to be distributed in accordance with Islamic Sharia as the deceased and his family were Muslims.
 Succession Cause No. 82 of 2012 was instituted in the Kadhi’s Court for purposes of determining the shares of the heirs of the deceased. On December 18, 2012, one of the sons (S) died. Upon his death, he was survived by his children (the Applicants) and their mother who was not a Muslim. In a ruling of October 2, 2014, the Kadhi’s Court made a determination that the share in the estate of the deceased (S, son of CBH) was 9.21%.
 The Kadhi’s Court found that the Applicants were not entitled to inherit the 9.21% under Islamic law as their mother was not legally married to the deceased. As a result the Applicants were ‘illegitimate children’ as they were born out of wedlock. The Kadhi’s Court decided that the Applicants were at liberty to apply to the High Court for determination of the issue.

 Issues:
  1. Whether a person’s religion and marital status was ground for disinheritance in Sharia Law.
  2. Whether Sharia Law which excluded women, children and non-Muslims from inheriting their fathers’ and husband’s estates was discriminatory and a violation of the best interests of children and right to property.
  3. Whether the Court could presume a marriage between the Applicants’ parents and thereby confer legitimacy upon the Applicants.
  4. What were the rights of non-muslims who had hereditary proprietary rights in the estate of a deceased Muslim?
  5. Whether the failure to legalize a marriage was a disqualification from inheriting under the tenets of Islamic Sharia.
  6. Whether the validity of the Constitution was subject to any challenge.
 Relevant provisions of law
 Law of Succession Act, Cap 160, LoK
 Section 2(3)
 “Subject to sub section (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law.”
 
 Constitution of Kenya, 2010
  Article 2
 (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government
 (2) …
 (3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

 
  Article 27
 “(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law…
 (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”

 Convention on the Rights of the Child (CRC)
  Article 2
  “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”
 
 African Charter on the Rights and Welfare of the Child (ACRWC)
  Article 3
  “Every child should be allowed to enjoy the rights and freedoms in this Charter, regardless of his or her race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”
 
 Protocol To The African Charter On Human and Peoples' Rights On The Rights Of Women In Africa (The Maputo Protocol)
  Article 1(j)
  "Violence against women" means all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war”

 Held:
  1. The Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child (ACRWC), and The Protocol To The African Charter On Human and Peoples' Rights On The Rights Of Women In Africa (The Maputo Protocol) were part of Kenya’s law by dint of article 2(6) of the Constitution of Kenya, 2010 and Kenya was bound thereby. The rights of the child were also protected by the Constitution. Article 53 provided that in all matters concerning a child, that child’s best interests were of paramount importance. That was reiterated in section 4(2) of the Children Act 2001. Article 27 of the Constitution embodied the principle of equality and non-discrimination and provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. The State was not to discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.
  2. Article 259 of the Constitution required the Court to interpret the Constitution in a manner that promoted the Constitution’s purposes, values and principles and in a manner that advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights. The rights and fundamental freedoms in the Constitution were wide and touched on numerous aspects of human life. However, those rights were not absolute and certain limitations had been imposed thereon by article 24 of the Constitution. In particular the provisions on equality were limited in relation to persons who professed the Muslim religion. Article 24 (4) provided that the provisions of Chapter four on equality had to be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who professed the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
  3. Islamic Sharia had to be applied to Muslims in matters relating to personal status, marriage, divorce and inheritance notwithstanding the equality provisions in the Bill of Rights in the Constitution. Islamic Sharia was derived directly from the Quran. Any application of the law relating to a Muslim’s personal status, marriage, divorce and inheritance outside Islamic Sharia could have been interpreted as an affront to a Muslim’s freedom of religion which was guaranteed by the Constitution.
  4. Section 2(3) of the law of Succession Act provided that the applicable law in relation to a deceased Muslim was Muslim law. Under Islamic Law, no non-Muslim was permitted to inherit the estate of a Muslim. A person could not inherit a share of the estate of her deceased father, a Muslim, by reason of her being a non-Muslim.
  5. An illegitimate child could not inherit the estate of his or her father but was permitted to inherit from his or her mother. The reason for that was that the Law of parentage which included paternity and maternity was the result of the institution of marriage. A Mohammedan marriage was a contract, which conferred the status of husband and wife on the parties and of legitimacy on the children. Parentage gave rise to the concepts of legitimacy and illegitimacy. Illegitimacy was totally unaccepted and sexual-relations outside marriage were condemned as illicit and the woman, who involved in it, was punishable for Zina (fornication).
  6. Islam did not tolerate illicit sexual-relations outside marriage. Any child born out of an illicit and condemned relationship was considered illegitimate and did not qualify for inheritance of his or her father’s estate. Indeed Islamic scholars were unanimous that whoever had an illegal intercourse with a lady, free or slave, the child was illegitimate and was not entitled to inherit or be inherited. Even where children born out of wedlock depended on their father while he was alive, such dependency did not qualify them to inherit from their father.
  7. Fault was on the deceased and S. That was because, they being Muslims, were well aware that the Applicants were not recognised as heirs of either the deceased or S under Islamic Sharia. To forestall the sorry situation the Applicants were in, the deceased and S ought to have made provision for them by way of will. Islam recognised the testamentary freedom of Muslims. A Muslim could dispose of his estate by will to non-heirs but up to a third thereof. The limit on a Muslim’s testamentary freedom, up to one-third of one’s estate, was seen in Islam as a means to ensuring balance between a Muslim’s freedoms in that regard and responsibility to his or her heirs. Deriving sanction from a Prophetic tradition, it reflected indications in the noble scripture that a Muslim could not dispose of his property by will as to leave his heirs destitute
  8. Presumption of marriage as a concept was unknown in Islamic Sharia. Any cohabitation outside marriage was considered as condemned as illicit and the woman involved in it, was punishable for Zina (fornication).
  9. Referring to any child as illegitimate appeared to be outrageous. However, as long as the estate belonged to a deceased Muslim and as long as article 24(4) remained in the Kenyan Constitution and further as long as section 2(3) remained in the Law of Succession Act, the Court’s hands were tied. In any other circumstances, the Court would not require elaborate persuasion to find in favour of the Applicants.
  10. Article 2 of the Constitution declared the supremacy of the Constitution over all other laws of Kenya including international treaties and conventions that formed part of Kenyan law. The validity of the Constitution was not subject to any challenge whatsoever. On the basis of the provision of article 2 and article 24(4) of the Constitution, the exclusion of the Applicants from inheriting S’s share of the estate of the deceased was not inconsistent with the provisions of the Constitution. To find in favour of the Applicants would be to challenge articles 2(3) and 24(4) of the Constitution.
 Application dismissed; no order as to costs.
Kenya Law
Case Updates Issue 007/2018
Case Summaries

ELECTION LAWS Establishment of a Complimentary System for Voter Identification and Transmission of Election Results under Section 44A of the Elections Act

National Super Alliance (NASA) Kenya V Independent Electoral and Boundaries Commission
Petition No. 328 of 2017
High Court of Kenya at Nairobi
Kimondo, Mabeya and Ong’udi JJ
July 21, 2017
Reported by Sheila Reson and Robai Nasike Sivikhe

Download the Decision

Election Laws- conduct of elections- identification of voters and transmission of election results- establishment of complementary mechanisms for identification of voters and transmission of election results- what constitutes the components of the complementary mechanism for identification of voters and transmission of election results that was to be established under section 44A of the Act- whether the Respondents had established a complementary mechanism for identification of voters and transmission of election results- Elections Act, No. 24 of 2011, Laws of Kenya, sections 44 & 44A
Statutes- Election Laws (Ammendment) Act, No 1 of 2017- enactment and amendment of statutes- regulations made as a consequence of amending a section of a statute- time within which regulations ought to be enacted- whether section 44A had set a specific time within which regulations 69 and 83 of the Elections (General) Regulations, 2012 ought to be enacted- whether Regulations 69 and 83 of the Elections (General) Regulations, 2012 should have been made within 60 days of section 44A coming into force- Elections Act, No. 24 of 2011, Laws of Kenya, sections 44 & 44A
Statutes- Elections (General) Regulations, 2012- enactment and operationalization of regulations under statutes- power of the Independent Electoral and Boundaries Commission to make regulations for the better carrying out of the purposes and provisions of the Elections Act- whether the Respondent had set up regulations operationalizing section 44A of the Act with respect to establishment of complementary mechanisms for identification of voters and transmission of election results- Elections Act, No. 24 of 2011, sections 44A & 109(1); Elections (General) Regulations, regulations 69 (e), 82 & 83
Election Laws- Timelines for conduct of Elections- postponement of elections by the Independent Electoral and Boundaries Commission- what circumstances could lead to the postponement of the date of a general election- whether the date of the general election could be postponed- Elections Act, No 24 of 2011, section 55B
Election Laws- Use of Technology- reliability of technology in elections- use of technology in identification of voters and transmission of results- whether the identification of voters and transmission of results for the election to be held on August 8, 2017 could be exclusively electronic
Constitutional Law- Locus Standi- Capacity to institute a constitutional petition- capacity to institute a constitutional petition for enforcement of the bill of rights- whether a constitutional petition for enforcement of the bill of rights could only be lodged by a human person- whether the Petitioner, who was described as a conglomeration of political parties, had the capacity to lodge a constitutional petition for enforcement of the bill of rights- Constitution of Kenya, 2010, article 260
Constitutional Law- Fundamental Rights and Freedoms- enforcement of fundamental rights and freedoms- framing of issues in constitutional petitions- principles governing the precision with which a constitutional petition ought to be pleaded- whether the Petitioner had specifically set out the provisions of the Constitution that were allegedly violated, provided the particulars of the alleged violations and how those rights were violated- whether the Petitioner had satisfied the rule that required reasonable precision in framing issues in constitutional petitions
Constitutional Law- public participation- public participation with regard to making of regulations- whether regulations 69 and 83 of the Elections (General) Regulations as enacted were constitutional and met the requirement for public participation- Evidence Act, sections 60 & 85
Words and phrases- definitions- definition of the word complementary- In the Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011, the word Complementary means forming a complement or addition…, combining in such a way as to form a complete whole or enhance each other while complement means a thing that contributes extra features to something else so as to enhance or improve it…
Words and phrases- definitions- definition of the word Notwithstanding-Stroud’s Judicial Dictionary of Words and Phrases 6th Edition, London, Sweet and Maxwell 2000 at page 1732 defined it as follows: NOTWITHSTANDING: “Anything in this Act to the contrary notwithstanding” is equivalent to saying that the Act shall not be an impediment to the measure…- Blacks Law Dictionary, 9th edition, Bryan and Garner, 2009 defined the word notwithstanding to mean despite, inspite of…

Brief facts:
The petition revolved around the use of technology in the general elections. Section 44 A of the Elections Act 2011 (as amended from time to time-the Act) required the Independent Electoral and Boundaries Commission (Respondent) to put in place a complementary mechanism for identification of voters and for transmission of election results. The mechanism was supposed to be simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complied with the provisions of article 38 of the Constitution.
 The Petitioner contended that the Respondent was mandated to make regulations, with the approval of Parliament, at least 60 days before the general election. The Petitioner’s case was that the Respondent had failed to consult with relevant stakeholders or to make the matter public. It further contended that since there were less than 40 days to the elections, a declaration ought to issue that the identification of voters and transmission of results for the election to be held on August 8, 2017 be exclusively electronic.
The Petitioner prayed for three key reliefs; firstly, for a declaration that the Respondent should have developed the complementary mechanism within 60 days before the 2017 general elections; secondly, for a declaration that the Respondent had failed to do so within the prescribed period as envisaged by section 44A of the Act; and thirdly, for a declaration that the identification of voters and transmission of results for the election to be held on August 8, 2017 be exclusively electronic.

Issue:

  1. Whether the Petitioner, who was described as a conglomeration of political parties, had the capacity to lodge a constitutional petition for enforcement of the bill of rights.
  2. Whether the Petitioner had satisfied the rule that required reasonable precision in framing issues in constitutional petitions.
  3. What constituted the components of the complementary mechanism for identification of voters and transmission of election results that was to be established under section 44A of the Act.
  4. Whether the Respondents had established the complementary mechanism for identification of voters and transmission of election results.
  5. Whether amendments to Regulations 69 on and 83 of the Elections (General) Regulations, 2012 on voting procedures and tallying and announcement of results respectively, should have been made within 60 days of section 44A coming into force.
  6. Whether the Respondent had set up regulations operationalizing section 44A of the Act with respect to establishment of complementary mechanisms for identification of voters and transmission of election results.
  7. Whether regulations 69 and 83 of the Elections (General) Regulations as enacted were constitutional and met the requirement for public participation.
  8. What circumstances could lead to the postponement of the date of a general election.
  9. Whether the date of the general election could be postponed.
  10. Whether the identification of voters and transmission of results for the election to be held on August 8, 2017 could be exclusively electronic. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 260
260. Interpretation
In this Constitution, unless the context requires otherwise—
“person” includes a company, association or other body of persons whether incorporated or unincorporated;

Elections Act, No. 24 of 2011, Laws of Kenya
Section 44
44. Use of technology
(1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
(2) The Commission shall, for purposes of subsection(1), develop a policy on the progressive use of technology in the electoral process.
(3) The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
(4) The Commission shall, in an open and transparent manner —

(a) procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections; and
(b) test, verify and deploy such technology at least sixty days before a general election.

(5) The Commission shall, in consultation with the relevant agencies, institutions and stakeholders, make regulations for the better carrying into effect the provisions of this section.

Section 44A
4A.Complementary mechanism for identification of voters
Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.

Section 55B
55B.Postponement of elections by the Commission
(1) The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where —

(a) there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;
(b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies,
(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.

(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.
(3) Notwithstanding the provisions of this section, the Commission may, if satisfied that the result of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.

Section 109 (1)
109. Regulations
(1) The Commission may make regulations generally for the better carrying out of the purposes and provisions of this Act, and in particular, but without prejudice to the generality of the foregoing, may make regulations to—
(a) prescribe the manner in which registers of voters shall be compiled and the manner in which they shall be revised;
(b) prescribe the procedure for registration and issuance of voters cards and provide for the progressive registration of Kenyan citizens living abroad prisoner;
(c) to provide for the regulation of the process by which parties nominate candidates for elections;
(d) to provide for the manner of nomination, allocation and re-allocation of special seats and mechanisms for resolving disputes arising out of such nomination, allocation and re-allocation;
(e) prescribe the procedure for making and determining claims to be registered and objections to registration;
(f) authorise any registration officer to consider or determine any application, claim, objection or appeal, to summon any person to appear before them and give evidence on oath, and to administer an oath for that purpose and to order the production of any document relevant to any issue which the officer is required to consider and determine;
(g) provide for the division of constituencies into units for the purpose of the registration of voters;
(h) prescribe the conditions under which elections may be held in accordance with the provisions of the Constitution, this Act or any other written law relating to elections;
(i) prescribe the amount of the deposit to be paid by or on behalf of candidates at all elections and the circumstances in which the deposit may be forfeited;
(j) provide for the appointment of officers to preside at polling stations;
(k) prescribe the facilities to be provided at polling stations and the persons who may be admitted to polling stations;
(l) prescribe the place and manner in which votes may be cast and the construction and scaling of ballot boxes and provide for the issue of ballot papers to voters;
(m) provide for the manner in which, and the person by whom any question as to the identity of any person claiming the right to vote shall be determined;
(n) provide for the manner in which a voter who is not able to read or write may vote or be assisted in voting;
(o) provide for the manner in which a voter with special needs including a person with a disability may vote or be assisted in voting;
(p) prescribe the procedure to be followed in the counting of votes and the circumstances in which votes may be rejected by a returning officer as being invalid;
(q) prescribe conditions for the use of private motor vehicles, vessels or buildings at elections;
(r) prescribe the facilities to be provided during the electoral process and in particular, for voting by electronic machines and the persons entitled so to vote and the circumstances in which persons may so vote;
(s) provide for the allocation by the Commission, in a just and equitable manner of the use of state owned radio and television broadcasting services during any election period;
(t) prescribe the procedure to be adopted by the public in making representations for the alteration of electoral area boundaries;
(u) prescribe the forms which may be used under this Act and the fees in respect of anything to be done under this Act;
(v) prescribe the procedure for advance voting for special categories including patients admitted in hospital, pastoralists, armed forces, elections officers and other citizens of Kenya providing essential services;
(w) prescribe the procedure for voting for citizens residing outside Kenya;
(x) provide for complaints resolution mechanisms and for the manner of settlement of electoral disputes;
(y) provide for the conduct of election observers, the media, monitors and evaluators and organisations carrying out civic and voter education;
(z) provide with reasonable grounds for the postponement of elections;

(aa) provide for mechanisms for carrying out effective voter education;
(bb) provide for the mode of declaration of the result of an election;
(cc) prescribe the manner of enforcing the Electoral Code of Conduct; or
(dd) provide for the conduct of campaigns during a referendum or an election;
(ee) provide for the financing of campaigns during a referendum or an election;
(ff) prescribe anything which is required to be prescribed or is necessary or desirable for the better giving effect to this Act.

Elections (General) Regulations, 2012
Regulation 69 (1) (e)
69. Voting procedure
(1) Before issuing a ballot paper to a voter, an election official shall—
(e) in case the electronic voter identification device fails to identify a voter the presiding officer shall—

(i) invite the agents and candidates in the station to witness that the voter cannot be identified using the device;
(ii) complete verification Form 32A in the presence of agents and candidates;
(iii) identify the voter using the printed Register of voters; and
(iv) once identified proceed to issue the voter with the ballot paper to vote;

Regulation 82
82. Provisional results to be transmitted electronically
(1) The presiding officer shall, before ferrying the actual results of the election to the returning officer at the tallying venue, submit to the returning officer the results in electronic form, in such manner as the Commission may direct.
(2)The results submitted under sub-regulation (1) shall be provisional and subject to confirmation after the procedure described in regulation 76.

Regulation 83
83. Tallying and announcement of election results
(1) Immediately after the results of the poll from all polling stations in a constituency have been received by the returning officer, the returning officer shall, in the presence of candidates or agents and observers, if present—

(a) tally the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;
(b) disregard the results of the count of a polling station where the total valid votes exceeds the number of registered voters in that polling station;
(c) disregard the results of the count of a polling station where the total votes exceeds the total number of voters who turned out to vote in that polling station;
(d) collate and publicly announce to the persons present the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly;
(e) complete the relevant Form 35B and 36B for the respective elective position set out in the Schedule in which the returning officer shall declare, as the case may be, the—
(i) name of the respective electoral area;
(ii) total number of registered voters;
(iii) votes cast for each candidate or referendum side in each polling station;
(iv) number of rejected votes in each polling station;
(v) aggregate number of votes cast in the respective electoral area; and
(vi) aggregate number of rejected votes;
(f) sign and date the relevant forms and publicly declare the results for the position of—
(i) member of County Assembly;
(ii) member of National Assembly; and
(g) issue certificates to persons elected in the county assembly and National Assembly elections in Forms 36C and 35C respectively set out in the Schedule;
(h) deliver to the county returning officer the collated results for the election of the county Governor, Senator and county women representative to the National Assembly; and
(i) deliver to the Chairperson of the Commission the collated results for the election of the president to the national tallying centre.

(2) The Chairperson of the Commission shall tally and verify the results received at the national tallying centre

.Evidence Act, Cap 80, Laws of Kenya
Section 60
60. Facts of which court shall take judicial notice
(1) The courts shall take judicial notice of the following facts—

(a) all written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;
(b) the general course of proceedings and privileges of Parliament, but not the transactions in their journals;
(c) Articles of War for the Kenya Military Forces;
(d) deleted by L.N. 22/1965;
(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is authorized by any written law to use;
(f) the accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;
(g) the existence, title and national flag of every State and Sovereign recognized by the Government;
(h) natural and artificial divisions of time, and geographical divisions of the world, and public holidays;
(i) the extent of the territories comprised in the Commonwealth;
(j) the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;
(k) the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it;
(l) the rule of the road on land or at sea or in the air;
(m) the ordinary course of nature;
(n) the meaning of English words;
(o) all matters of general or local notoriety;
(p) all other matters of which it is directed by any written law to take judicial notice.

(2) In all cases within subsection (1) of this section, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.
(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it considers necessary to enable it to do so.

Section 85
85. Gazette, etc., to be prima facie evidence
The production of a copy of any written law, or of a copy of the Gazette containing any written law or any notice purporting to be made in pursuance of a written law, where such law or notice (as the case may be) purports to be printed by the Government Printer, shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of such written law or notice.

Held:

  1. The IEBC had a constitutional duty under article 86 of the Constitution to ensure that at every election; whatever voting method was used, the system was simple, accurate, verifiable, secure, accountable and transparent; the votes cast were counted, tabulated and the results announced promptly by the presiding officer at each polling station; the results from the polling stations were openly and accurately collated and promptly announced by the returning officer; and, appropriate structures and mechanisms to eliminate electoral malpractice were put in place, including the safekeeping of election materials.
  2. The process of accounting and verification in an election was closely intertwined with the concept of transparency and accountability. That promoted free and fair elections.  Therefore, any electoral regulations had to ensure that only registered voters who presented themselves at a polling station participated in the poll; and, that each vote was accounted for.
  3. The Petitioner had described itself in the petition as a coalition of several political parties in Kenya with a substantial voter support base. A conglomeration of political parties answered to the description of an incorporated body of persons under article 260. Counsel for the 2nd interested party admitted that the Petitioner had elsewhere been held to be a legal person. Since that was the case, the Petitioner had legal standing to institute the proceedings.
  4. The heading of the petition cited articles 10, 19, 20, 21, 22, 23, 162(2)(b), 258 and 259 of the Constitution. In addition, it stated that it was a matter for enforcement of the fundamental rights enshrined under Articles 2(1), 2(4), 2(5), 2(6), 10, 36, 38, 81, 82(2), 86, 88 and 232 of the Constitution. However, in the body of the petition, the Petitioner had not pleaded with exactitude the particular rights or freedoms that had been breached or were likely to be violated by the Respondent.
  5. The petition had fallen far short of the test set in the Anarita Karimi Njeru case with regard to precise pleading of the rights violated. The petitioner had not pleaded that any of the fundamental rights had been breached or was about to be violated. The Court had to gather from the supporting affidavit and two supplementary affidavits of the Chief Executive Officer of the Petitioner to establish what the Petitioner’s complaint was. Accordingly, the petition dated June 29, 2017 had not satisfied the criteria of a constitutional petition for enforcement of fundamental rights and freedoms.
  6. The Petitioner’s complaint was that although articles 81 and 86 of the Constitution required the Respondent to establish an electoral system that was simple, accurate, verifiable and transparent; and, that although section 44A of the Elections Act provided for a complementary mechanism for identification of voters and transmission of election results, the Respondent had failed to establish the same less than 30 days to the next general election. Since counsel for all the parties ably addressed the Court on the matter, there would be no prejudice suffered and the Court would proceed to make a determination on the matter.
  7. Under sections 39 and 44 of the Act, the use of technology in the Kenyan electoral system was entrenched. Registration of voters, their identification at the point of voting and the transmission of election results was purely electronic. However, the actual voting, tallying and collating of votes were wholly manual. Unlike in the 2013 general elections, when the use of technology was left to the discretion of the Respondent, section 44 of the Act, which was introduced by the amendments made in 2016 and 2017 respectively, established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
  8. Section 44(2) of the Act required the Respondent to procure and put in place the technology necessary for the conduct of a general election at least 120 days before the elections and to test, verify and deploy such technology at least 60 days before the general election. That was to be undertaken in a consultative manner and through Regulations that had to be approved by Parliament within 30 days of that section coming into force. The Respondent had complied with the requirement by dint of the Elections (General) Regulations 2012, as subsequently amended, and culminating with the latest amendments contained in Legal Notice No. 72 of April 21, 2017. Accordingly, the legal regime obtaining in Kenya, currently in the electoral system required an integrated electronic system that enabled biometric voter registration; electronic voter identification; and, electronic transmission of results.
  9. A plain interpretation of section 44A showed that the legislature intended the establishment of a mechanism that was complementary to the one set out in section 44 of the Act. The system under section 44 was an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results. It placed emphasis on the use of technology.
  10. From the plain and literal meaning of the word complementary, section 44A of the Act had presupposed a mechanism that would complement, add, enhance or improve the mechanism already set out in section 44 of the Act. Therefore, the complementary mechanism in section 44A need not be similar, same, akin or parallel to the one set out in section 44 of the Act. All that was required for that mechanism was that it should add to or improve the electronic mechanism in section 44 of the Act. But at the same time, be simple, accurate, verifiable, secure, accountable and transparent. It should allow the citizens to fully exercise their political rights under Article 38 of the Constitution. The complementary mechanism would only set in when the integrated electronic system had failed.
  11. There was no ambiguity in the language used in section 44A to resort to the Hansard of Parliament in order to decipher the true intention of the legislature in the instant case. The language and meaning in that section was plain and clear.  What was required of the Respondent was to put in place a mechanism that would complement the one set out in section 44 of the Act.  The particulars of the mechanism, whether electronic, manual, or any other mode was not expressly provided in section 44A. If that were the intention of Parliament, nothing would have been easier than to specify so.
  12. One other thing that buttressed the High Court’s position that the mechanism contemplated in section 44A of the Act was independent of the one set out in section 44 of the Act, was the use of the words ‘Notwithstanding the provisions of section 39 and section 44, …’. The use of the term ‘notwithstanding’ made the mechanism in section 44A independent of what is contained in sections 39 and 44.
  13. The use of the term notwithstanding in section 44A meant that inspite of what the provisions of section 39 and 44 stipulated as to the mechanism in the Kenyan electoral system, the Respondent was to put in place a mechanism to complement sections 39 and 44 of the Act. All that was required was that the said mechanism be simple, accurate, verifiable, secure, accountable and transparent; and, one which would not disenfranchise the citizens.
  14. The complementary mechanism to be established under section 44A of the Act had to be separate but which was meant to improve or augment the mechanism already set out in section 44. That mechanism had to be simple, accurate, verifiable, secure, accountable and transparent. It also had to comply with article 38 of the Constitution. It had to ensure that every citizen’s right to register as a voter, vote at an election or vie for political office was safeguarded.
  15. The net effect of Regulations 69 and 83 was to introduce a manual mechanism of identifying a voter; and, transmitting the election results. The Court of Appeal in the Maina Kiai case was emphatic that the results for the presidential election declared at the constituency tallying center were final and only subject to an election petition. In that regard, the delivery of the forms by the returning officer to the chairman of IEBC under Regulation 83(1) (i) would be but to physically deliver what would have already been declared with finality at the constituency level. Therefore, the mischievous act by the Respondent of repealing Regulation 83 (3) was meaningless and futile.
  16. The Respondent had put in place a complementary mechanism for identification of voters and transmission of election results as required by section 44A of the Act. It had to be remembered that the Constitution had not specified the type of mechanism, whether electronic or manual, that had to be put in place. That duty was well within the province of the legislature which had spoken through sections 39, 44 and 44A of the Act and the Regulations thereunder.
  17. There was the contention by the Petitioner that the Regulations should have been made within 60 days of the section coming into force. Firstly, section 44A was an independent provision. It was not part of section 44 of the Act. If it was the intention of Parliament for section 44A to be part of section 44 of the Act, nothing would have been easier than to have done so. It could have enacted that section as section 44(9). Secondly, nowhere in section 44A was there any reference to timelines as to when the Regulations, if any, under that section were to be enacted.
  18. Section 109 of the Act empowered the Respondent to make Regulations for the better carrying out of the purposes and provisions of the Act.  Pursuant to those provisions the Respondent enacted the Elections (General) Regulations 2012. Those Regulations were amended a number of times the latest being by Legal Notice No. 72 of April 21, 2017. It was the Petitioner’s case that the Respondent had not enacted any Regulations in respect of a complementary mechanism as provided for under section 44A of the Act. However the Petitioner had not cited before the High Court any provisions of the law that had compelled the Respondent to enact any Regulations to operationalize section 44A.
  19. Section 109 (1) of the Act was permissive as far as the making of Regulations was concerned; and, could not be used to advance the Petitioner’s case.  That was unlike section 44 which specifically provided in mandatory terms for the enactment of Regulations within set time frames. The Regulations made to operationalize section 44 and in particular Regulations 69(e), 82 and 83 provided an alternative mechanism for the operationalization of section 44A.
  20. Section 44(6) and section 109(3) of the Act made it mandatory for Regulations made under section 44(5) to be submitted to Parliament for approval.  The Regulations were supposed to be gazetted under section 109(4) of the Act.  All those procedures were adhered to. The Regulations resulting therefrom were not challenged. Therefore, there was a general presumption that the Regulations as enacted were constitutional and had met the requirement for public participation. Regulations 69 and 83 of the Elections (General) Regulations 2012 had the full force of law as they were approved by the Parliament which represented Kenyans.
  21. The High Court did not agree with the Petitioner’s contention that in the absence of a credible complementary mechanism, the general elections had to be postponed as provided in section 55B of the Elections Act. Judicial notice that Parliament had been dissolved was taken. In addition, section 55B applied where an election date had been appointed but there was likelihood of a serious breach of peace; a natural disaster; or occurrence of an electoral malpractice of such nature and gravity as to make it impossible to proceed with the election. Most importantly, the date for the general elections provided by articles 101 and 136 of the Constitution was cast in stone.
  22. Every citizen had a right under articles 38(3), 81, 83(3) to be registered as a voter, to vote and to have every vote counted.  The electronic system failed during the 2013 general election. Technology could be susceptible to hackers, software bugs, badly trained frost workers or power outages which could intentionally or accidentally erase or alter voting data captured by the machines leading to failure. If the exclusive electronic system failed, the entire election would be thrown into jeopardy and imperil the Kenyan democracy. Therefore, it would not be feasible to declare that the elections to be held on August 8, 2017 be exclusively electronic.

Petition dismissed.

CONSTITUTIONAL LAW The Independent Electoral and Boundaries Commission (IEBC) is mandated to enforce compliance of the two-third gender principle by political parties when presenting their nomination lists for elective seats

Katiba Institute .vs. Independent Electoral and Boundaries Commission
Constitutional Petition No. 19 of 2017
High Court at Nairobi
E.C. Mwita, J
April 20, 2017
Reported by Chelimo Eunice

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Constitutional Law-interpretation of article 88(4)(d) of the Constitution empowering the Independent Electoral and Boundaries Commission (IEBC) to regulate the nomination process by political parties-whether the power donated to IEBC by article 88(4)(d) extended to enforcing the provisions of articles 27(8) and 81(b) of the Constitution within political parties- whether articles 10 and 27 of the Constitution donated power to the Respondent to enforce the provisions of articles 27(8) and 81(b) of the Constitution within political parties- Constitution of Kenya, 2010, articles 10, 27, 81(b), and 88(4)(d).
Constitutional Law-rights and fundamental freedoms- political rights- right to vote-right to vote vis-a-vis right to any elective public body-whether by enforcing the provisions of articles 27(8) and 81(b) of the Constitution, IEBC would be offending the provisions of articles 38 and 81 (a) and (d) of the Constitution-Constitution of Kenya, 2010, articles 27(8), 38 and 81(b).
Constitutional Law- principles of the electoral system-two-third gender principle- legislation on the two-third gender principle- failure and consequences of failure by Parliament to enact paramount legislations-whether absence of legislation on the two-third gender principle meant that the two-third gender principle could not be implemented-whether lack of sanctions to force compliance by political parties meant that IEBC would not enforce the two-third gender principle - Constitution of Kenya, 2010, articles 10,19,20,27,28,38,56, 81,88 and 91(1).
Constitutional Law- rights and fundamental freedoms-right to equality and freedom from discrimination - equal protection and benefit of the law -enforcement of right to equality and freedom from discrimination of men and women in Parliament- promotion of representation of women and marginalised groups-the need for the desired legislation to give effect to the two thirds gender principle- Constitution of Kenya, 2010, articles 27 and 81.
Constitutional Law-political parties-whether political parties were bound by the Constitution-whether political parties were bound to comply with the two-third gender principle during their nominations for candidates for both National Assembly and Senate elective seats -Constitution of Kenya, 2010, articles 2, 91 and 260; Political Party’s Act, sections 10, 23, 24 and 26.
Words and phrases-definition- promotion- definition of promotion-activity that supports or encourage- the Concise Oxford English Dictionary, 12th edn.
Words and phrases – definition –encourage –definition of encourage- give support, confidence, or hope to; or stimulate the development of- the Concise Oxford English Dictionary, 12th edn

.Brief facts:
The petitioner filed a petition against the Respondent, seeking various reliefs, on various grounds, including; that women in Kenya had been disadvantaged, and only given limited opportunities in political participation as Members of Parliament; that despite creation of 47 elective positions exclusively for women as Members of Parliament, only 19% of the members of National Assembly were women, while the Senate had only 27%, that still fall short of the minimum of 33% for elective posts in both houses, which was a contravention of the Constitution.
It was stated that, whereas no obligations were imposed on political parties to comply with the two-third gender principle in the 2013 general election, the same thing was destined to happen in the election of August 8, 2017, because the Respondent did not seem to have put in place mechanisms that required political parties to comply with the two-third gender requirement, while conducting nominations and preparing party lists for the elective positions for both the National Assembly and the Senate in the coming election in accordance with article 27(8) of the Constitution.
The Respondent opposed the petition. It argued it had no power to enforce provisions of articles 27(8) and 81(b) of the Constitution, that the petition offended provisions of articles 38 and 81 (a), (d) of the Constitution, that the power donated to the Respondent by article 88 (4), (d) did not extend to enforcing the provisions of articles 27(8) and 81(b) of the Constitution, and that articles 10 and 27 of the Constitution did not donate such power to the Respondent to enforce those provisions. It was further stated that there was no law in place stipulating the manner of realization of rights under article 27(8) and 81(b) of the Constitution, and that it would be against the rule of law and public policy for the Respondent to be compelled to enforce provisions of article 27(8) and 81(b) of the Constitution.

Issues:

  1. Whether political parties were bound to comply with the two-third gender principle during their nominations for candidates for both National Assembly and Senate elective seats.
  2. Whether IEBC was mandated to enforce the requirement that political parties comply with the two-third gender principle when presenting their nomination lists for both the National Assembly and Senate elective seats.
  3. Whether articles 10, 19, 20, 27, 28, 56 and 91(1) of the Constitution obligated IEBC to reject nomination list of a political party for its candidates for the elective posts that did not comply with two-third gender principle.
  4. Whether an order should issue requiring IEBC to accept and process the nomination for inclusion as candidates to the elective positions for the Members of Parliament for the 2017 general elections from only those nominations list of political parties that meet the two-third gender requirements. Read More..

Held:

  1. When dealing with rights claims under the Constitution, courts are called upon to interpret the Constitution so as to give effect to its purposes, values and principles.The various provisions of the Constitution that govern the gender principle have to be read together in a manner that gave full effect to the purpose of the Constitution.
  2. Article 27 of the Constitution introduced the two-third gender principle. Sub-article 8 stated that one gender should not occupy more than two-third of the members of any elective or appointive positions and the state was obligated to take legislative and other measures to ensure compliance with this principle.
  3. The Constitution bound all persons, including political parties. They were bound by article 91(1) to promote human rights, fundamental freedoms, gender equality and equity. Political parties played a key role in determining who was elected to Parliament through nomination of candidates at party primaries. Those nominated proceed to contest for various Constituency and Senate seats in the general elections, and the winners end up in Parliament. Political parties were a vehicle to legislative bodies and eventually into leadership positions.
  4. Article 27 of the Constitution was intended to address gender inequality between women and men in leadership positions. In the Final Draft Report of the Constitution of Kenya Review Commission (CKRC), one of the recommendations was that political parties be required to place one third of the candidates to be women on the single constituency party list and 50% on the proportional representation list for the National Assembly. The consensus was that eventually, at least one third of members of Parliament and Cabinet be women. That was deemed as an appropriate measure for addressing systematic historical marginalization of women in representation and leadership position. Political parties would therefore be required to ensure that there was gender balance within them.
  5. Political parties were a means of attaining gender balance for women representation. They were the real gate keepers to elected office because they played an important role in the composition of Parliament. But parties differ in encouraging or discouraging women’s access to Parliament. Political parties could increase the proportion of nominated candidates by creating formal rules that prescribe a certain proportion of women among the party’s candidates.
  6. Political parties played an important role in narrowing the gender under representation gap by taking deliberate steps within their internal nomination processes, which could help achieve the two-third gender representation.
  7. Article 91(1) of the Constitution required political parties, in mandatory terms, to respect the rights of all persons to participate in political process including minorities and marginalised groups, respect and promote human right and fundamental freedoms and gender equality, equity and promote the objects and principles of the Constitution and the rule of law. To that extent, political parties had a Constitutional obligation to abolish all forms of discrimination within them, and embrace gender equality, equity and promote inclusiveness. Otherwise, they risked perpetuating tacit discrimination.
  8. Before registration, a political party was required to demonstrate that it had a national outlook, gender balance and diversity in its composition, including minorities and marginalised groups. Once fully registered, a political party acquired a corporate status under section 10 of the Political Parties Act. It then became a person as defined under article 260 of the Constitution. Political parties were thus required to uphold democratic principles and ensure that they encouraged gender equality and equity within them, which was a constitutional requirement in an open and democratic institution.
  9. Political parties were funded by the people of Kenya. Section 23 of the Political Parties Act established Political Parties Fund which according to section 24 of the Political Parties Act, received not less than 0.3% of national revenue. Section 26 of the Political Parties Act provided that one of the main purposes of the money allocated to a registered political party was for promoting the representation of women, persons with disabilities, youth, ethnic and other minorities and marginalised communities in Parliament and in the County Assemblies.
  10. From the definition of the words promotion and encourage, promoting representation of women and marginalised groups in Parliament would mean taking real steps to support and encourage more women to join Parliament by putting in place favourable plans and strategies to make the representation a reality.  It could not have been one of the key purposes of the fund, if the intention was not to ensure that political parties took proactive steps or measures to increase the number of women and the marginalised in Parliament. That would also mean, people of Kenya could not fund political parties that practice discrimination against women and marginalised groups. Political Parties Act was enacted after the promulgation of the Constitution and the legislature was alive to the provisions of the Constitution, not least, article 27 (8).
  11. Article 2(1) of the Constitution bound all persons and state organs, and political parties were not exempt. By virtue of article 3 (1) of the Constitution which stated that every person had an obligation to respect, uphold and defend the Constitution, political parties were included. Moreover, article 4 (2) stated that Kenya was a multi-party democratic state, founded on national values and principles of good governance contained in article 10. Political parties were at the heart of the multi-party democratic state and were enjoined by article 91(1) of the Constitution to observe those national values and principles of good governance. Political parties were bound by article 10 (2) (b) of the Constitution to promote, human dignity, equity, social justice, inclusiveness, human rights, non-discrimination and protection of the marginalized.
  12. One of the Constitutional objects and principles under article 27 in general and 27 (8) in particular, was to eliminate all forms of discrimination against the female gender in the electoral system which had for long occasioned historical injustice to women.
  13. Political parties were required to mainstream gender equality and equity so that they eliminate gender discrimination.  They could not promote women representation in Parliament if they did not move to actualize gender balance, and in particular, the two-third gender principle in elective positions, and formulate as well as implement policies that were geared towards women’s socio-economic and political development thereby, combating all forms of discrimination against the female gender.
  14. The two-third gender principle could not be left to legislative process alone, if it had to be effectively and meaningfully realized. That was why the Constitution used the words other measuresin article 27 (8) to connote that the principle would be attained through other means even in the absence of legislation. Political parties had to take pro-active steps to realize that constitutional objective.
  15. The question of two-third gender principle was about logistics and formula which political parties were capable of designing and implementing within their internal organization. They had an obligation to promote objects of the Constitution and promote gender parity even during nominations. Any other interpretation, would not be in accord with article 259 of the Constitution as it would depart from the purposes, objects and spirit of the Constitution.  Political parties were bound by the provisions of articles 10, 19, 20, 27, 28, 56, 81 (b) and 91 (1) of the Constitution to the extent that any action they take including nomination processes for the 290 elective posts for National Assembly and 47 elective positions for Senate, had to comply with the two-third gender principle.
  16. As per the Supreme Court Advisory Opinion in The Matter of the Principle of Gender Representation in the National Assembly and the Senate, Parliament was to enact the necessary legislation on the two-third gender principle by August 27, 2015. The contemplated legislation had not been enacted. However, the holding by the Supreme Court and failure to enact that legislation, was not the focus of the instant petition. The question was whether the Respondent, by virtue of provisions of the Constitution, was obligated to ensure that political parties comply with the two-thirds gender principle during party nomination exercises for the 290 constituency and 47 Senate elective positions.
  17. Article 249 of the Constitution provided that the objects of Commissions and Independent Offices were to protect the sovereignty of the people, secure the observance by all state organs of democratic values and principles and promote Constitutionalism.  Political parties by virtue of being funded by the public are public bodies and are bound by Constitutional values and principles. Article 88 (4)(d) of the Constitution provided that the Respondent was responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, any other elections as prescribed by an Act of Parliament and in particular for the regulation of the process by which parties nominate candidates for elections.
  18. The Respondent was given constitutional mandate to regulate political parties’ nominations to ensure that they comply with the Constitution and the law. Being subject to the Constitution, political parties were bound to ensure that they put in place measures that were in line with gender mainstreaming as a means of achieving gender equality and equity. That was why they were required to abide by the Constitution. The Respondent, while regulating nominations by political parties was obliged to ensure that they comply with the two-third gender principle. Political party nominations being the gateway to the National Assembly and Senate representation could not ignore the two-third gender requirement, and the Respondent could not, for that matter, plead inability to regulate compliance by those parties.
  19. It was not entirely correct, that only legislation would achieve the two-thirds gender principle. Article 27 (8) was clear that the state should take legislative and other measures to implement the two-third principle. In the absence of legislation, other measures including pro-active strategies and policies as well as nomination rules would be taken to achieve the gender principle and remove tacit discrimination against the women of Kenya.
  20. Failure to implement the two-third gender principle should not be blamed on the absence of legislation. Had the framers of the Constitution intended that only legislation would achieve that principle, there would have been no need to include the words other measures.  That was deliberate to ensure that even in the absence of legislation, progress towards achieving the two-third gender principle would still be made. Other measures such as guidelines that require political parties to comply with the gender principle during nominations would still help bridge the gender imbalance and redress discrimination against women in the political sphere.
  21. The two- third gender principle should not be downgraded to a contest between men and women. It was not. It was about human dignity, equality, equity, social justice, human rights and fundamental freedoms, essential values in an open and democratic society. It was a right under Bill of Rights, and the Bill of Rights applied to all laws and bound all state organs and all persons, political parties included. They were not exempt from observing the Bill of Rights, and article 27 (8) in particular, as a way meant to secure equal rights for women, and address past gender discrimination. The Respondent had Constitutional mandate while approving Party Nomination Rules and regulating nominations by these parties, to demand that Political Parties put in place measures to embrace the two-third gender principle.
  22. Under article 2 (6) of the Constitution, International Treaties and Conventions were part of Kenyan laws. Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) required state parties to take measures to ensure full development and advancement for purposes of guaranteeing women the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men.  Those were some of the stop gap measures meant to reverse the negative effects of systematic discrimination against women, and that was what articles 27 and 28 stood for.
  23. The Constitution had given the Respondent mandate to manage and regulate nomination process of political parties and had to demand that they comply. The Respondent had mandate to enforce the provisions of articles 10, 19, 27, 81 (b) and 91 of the Constitution, and require political parties to comply with the two third gender principle.
  24. The Respondent was empowered by article 88 (4) (d) to regulate nominations by Political Parties. It was also responsible for approving nomination rules by political parties. Political parties were required by the Constitution and Political Parties Act, to ensure that they embrace human dignity, inclusiveness, gender equality and equity, human rights and fundamental freedoms. Political parties were also funded to promote women and marginalised groups representation in Parliament.
  25. The Respondent was required by the Constitution to ensure that there was compliance with the Constitution and the law. That was a Constitutional mandate, and any assertion that there were no sanctions to force compliance by political parties was not correct. Political parties were also supposed to put in place measures that ensure compliance with national values and principles of good governance. The two-third gender principle, as an aspect of human rights and fundamental freedoms, bound all state organs and all persons. The Respondent could not fail to enforce rights under article 27(8)) within political parties given that it was the spirit of the Constitution.
  26. The Respondent, as a State organ mandated by the Constitution to regulate political parties’ nominations had to take deliberate steps to demand that political parties comply with the two-third gender principle.
  27. The Respondent could reject a list for non-compliance and demand that political parties comply.  The Respondent had to be at the fore front to ensure that political parties take pro-active measures that encompass the two-third gender principle and proceed to ensure that it was followed during nomination processes for the elective seats. The two-third gender principle was a constitutional requirement and all institutions had to embrace it and abide by constitutional dictates.
  28. Given that the Respondent appreciated the necessity of integrating the two-third gender principle within political parties, it had to continue to leading the way, and where possible, take steps, including standardized guidelines or rules for party nominations, that take into account the two-third gender principle. It was for political parties to decide how they should incorporate the two-third gender principle.
  29. The Respondent had a constitutional mandate in the absence of legislation, and in case of reluctance by political parties, to put in place administrative arrangements and ensure that political parties comply with the two-third gender principle. The Respondent was fully aware of its constitutional obligations, but was reluctant to undertake the mandate to the fullest extent and demand, that political parties put in place measures to comply with two third gender principle.  
  30. The Respondent had an obligation to obey the constitutional command, as a regulator of political party elections and nominations processes, to reject any nomination lists that failed to comply with the two-third gender principle. That was so, because, political parties were required to integrate the two-third gender principles within their internal organization. They were bound to promote representation of women and marginalised groups in Parliament, and could not do so without embracing the two-third gender principle. They were not simply doing a favour to women and marginalised groups, they had a Constitutional and legal obligation to fulfil that desire. They were funded for that purpose and had to be accountable in that regard. The Respondent had to demand that accountability from them, on behalf of the people of Kenya, failure to which, it should reject non-compliant nomination lists.  That was the spirit of the Constitution and the law.
  31. Whereas, political parties as institutions had to comply with constitutional obligation, the order sought that the Respondent be compelled to comply require compliance by political parties for purposes of the August 8, 2017 general elections, if granted, would have caused more confusion than solve the problem. As it was, political parties were conducting party nominations for candidates for both the 290 constituency and 47 Senate elective positions. The Respondent had published timelines for completion of nomination processes in a special issue of Kenya Gazette of March 17, 2017, and the exercise was to be concluded by April 26, 2017.  Those who will have received party nomination certificates, would present them to the Respondent, and thereafter, stand for election for their respective seats to be held on August 8, 2017.
  32. It was inconceivable that political parties could readily comply with the two-third gender principle at that moment. Court orders have to serve a purpose, least of which, should be to cause confusion and uncertainty.   The Constitution fixed the election date which could not be changed.  That was different from the 1969 Constitution where election dates were a secret.  The spirit of the Constitution was that Kenya had to have elections on the due date. Between the date of the decision and the election date was a preparatory period, and the Court had to avoid disrupting that constitutional calendar. It was difficult for political parties to re-work their nomination programmes so that they comply with the two-third gender principle, were they to be ordered to do so. It had to be appreciated that political parties were to put in place mechanisms for their compliance.  The order did not commend itself for granting at that time. 

Petition partly allowed.
Orders:

  1. Declaration that political parties were bound by the provisions of articles 10, 19, 20, 27, 28, 56, 81(b) and 91(1) of the Constitution and hence any action undertaken by them, including nomination process for candidates for members of Parliament, had to comply with the requirements of those provisions.
  2. Declaration that the power conferred to the Respondent in article 88 (4) (d) of the Constitution of regulation of the process by which parties nominate candidates for elections obligated the Respondent to ensure that nominations carried out by political parties met the requirements of the Constitution, especially articles 10, 19, 20, 27, 28, 56 and 91(1).
  3. Declaration that articles 10, 19, 20, 27, 28, 56 and 91(1) of the Constitution obligated the Respondent to reject any nomination list of a political party for its candidates for the 290 Constituency based elective positions for members of National Assembly and 47 County based positions for the member of the Senate that did not comply with two-third gender principle.
  4. An order issued directing political parties to take measures to formulate rules and regulations for purposes of actualizing the two-third gender principle during nominations for the 290 constituency based elective positions for members of National Assembly and 47-County based elective positions for the members of Senate within SIX months from the date of the judgment. In default, the Respondent was to devise an administrative mechanism to ensure that the two-third gender principle was realized among political parties during nomination exercises for parliamentary elections. For avoidance of doubt, and in order to avoid disruption, the order did not apply to the general elections due on August 8, 2017.
  5. There was no order for costs.   
JURSDICTION Conflicts between County Governments and the National Government May Be Referred to Alternative Dispute Resolution under the Intergovernmental Relations Act even if they Raise Constitutional Questions.

County Government of Migori & 4 others v Privatization Commission of Kenya & another [2017] eKLR
Petition 187 of 2016
High Court at Nairobi
E C Mwita, J
November 10, 2017
Reported by Ribia John

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Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to determine matters respecting the interpretation of the Constitution – where a statute directed that disputes between a County Government and the National Government to be resolved via alternative dispute resolution – jurisdiction of the High Court to delegate a matter that raised constitutional questions to alternative dispute resolution - whether the High Court could delegate a dispute between the County and National Government that raised matters that required the interpretation of the Constitution to the alternative dispute resolution mechanisms under the Intergovernmental Relations Act – Constitution of Kenya, 2010 article 165(3)(d); Intergovernmental Relations Act sections 31, 33 and 35.
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to determine matters respecting the interpretation of the Constitution – whether the High Court could decline to determine matters that raised constitutional questions when there were statutory provisions that established dispute resolutions mechanisms over the dispute in question – Constitution of Kenya, 2010 article 165(3)(d); Intergovernmental Relations Act sections 31, 33 and 35
Constitutional Law – supremacy of the Constitution – supremacy of the Constitution over statute – where the Constitution granted jurisdiction to the High Court that was ousted by statute - whether sections 31, 33 and 35 of the Intergovernmental Relations Act that referred disputes between the National and County Government to alternative dispute resolution could oust the jurisdiction of the High Court to determine matters that required the interpretation of the Constitution – Constitution of Kenya, 2010 article 165(3)(d); Intergovernmental Relations Act sections 31, 33 and 35
Constitutional Law – constitutional principles – principle of constitutional avoidance – where a statute directed that disputes between a County Government and the National Government to be resolved via alternative dispute resolution – where the Constitution provided that the High Court had the jurisdiction to determine matters that raised constitutional questions – whether the doctrine of constitutional avoidance applied where matters that required the interpretation of the Constitution were delegated to alternative dispute resolution by Statute as opposed to being determined by the High Court as required by the Constitution.

Brief facts:
The instant consolidated petition challenged the decision for the privatization of five sugar milling companies made public via Gazette Notice No. 8739 of 2009 (issued to the Privatization Act) and in subsequent public advertisement through which the national Government invited expression of interest in the purchase of its shares in five sugar milling companies. The Petitioners prayed for the nullification of the gazette notice on the ground that under the constitutional devolution of functions, agriculture including crop and animal husbandry was the function of the County Government and the National Government in the purported privatization of government shares in the companies, through the privatization programme approved by the Cabinet in October 2010 was unconstitutional and unlawful. In addition it was contended that the privatization programme was undertaken without public participation in contravention of the Constitution and terms or conditions of the National Assembly’s approval of the said privatization programme.
The 2nd Respondent raised a notice of preliminary objection in which it contended that the Petitioner had not complied with the mandatory Alternative Dispute Resolution Mechanisms required by the provisions of article 189(3) and (4) of the Constitution of Kenya, 2010 (Constitution) and sections 31(b), 33(1) and (2) of the Intergovernmental Relations Act 2012. As such the 2nd Respondent contended that the consolidated petition was premature and prayed for it to be struck out with costs to the Respondents.

Issues:

  1. Whether the High Court could delegate a dispute between the County and National Government that raised matters that required the interpretation of the Constitution to the alternative dispute resolution mechanisms provided for under the Intergovernmental Relations Act.
  2. Whether sections 31, 33 and 35 of the Intergovernmental Relations Act that referred disputes between the National and County Government to alternative dispute resolution could oust the jurisdiction of the High Court to determine matters that required the interpretation of the Constitution.
  3. Whether the High Court could decline to determine a matter that raised constitutional questions when there were statutory provisions that established dispute resolution mechanisms over the dispute in question.
  4. Whether the doctrine of constitutional avoidance applied where matters that required the interpretation of the Constitution were delegated to alternative dispute resolution by Statute as opposed to a resolution by the High Court as required by the Constitution. Read More...

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 189(1)
Cooperation between national and County Governments
(1) Government at either level shall—

(a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of County Government, within the county level;
(b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and
(c) liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.

Intergovernmental Relations Act
Section 31
Measures for dispute resolution
The national and County Governments shall take all reasonable measures to—

(a) resolve disputes amicably; and
(b) apply and exhaust the mechanisms for alternative dispute resolution provided under this Act or any other legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution.

Section 33
Formal declaration of a dispute
(1) Before formally declaring the existence of a dispute, parties to a dispute shall, in good faith, make every reasonable effort and take all necessary steps to amicably resolve the matter by initiating direct negotiations with each other or through an intermediary.
(2) Where the negotiations under subsection (1) fail, a party to the dispute may formally declare a dispute by referring the matter to the Summit, the Council or any other intergovernmental structure established under this Act, as may be appropriate.

Section 35
Judicial proceedings
Where all efforts of resolving a dispute under this Act fail, a party to the dispute may submit the matter for arbitration or institute judicial proceedings.

Held:

  1. The Constitution of Kenya directed the procedure of alternative dispute resolution to be given effect by national legislation.  The Constitution decreed a system of respectful cooperation between the county and national governments under article189 (1) of the Constitution.
  2. Article 189(2) of the Constitution required cooperation between different governments at the county level through joint committees and authorities for the performance of the functions and exercise of powers of the counties.  Under article 189(3), the Constitution provided that in cases of disputes between the governments be settled through procedures of alternative dispute resolution by negotiation, mediation and arbitration among others as provided under national legislation.  Such legislation was the Intergovernmental Relations Act.
  3. The Court only allowed opportunity for alternative dispute resolution mechanisms to be called into action in accordance with the restful cooperation principle of article 189 of the Constitution whose clear textual provisions stipulated under sub-articles (3) and (4) that , the governments were to make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.
  4. Part IV of the Intergovernmental Relations Act had a whole Part dedicated to alternative dispute resolution mechanisms of disputes between national and County Governments and between County Governments. Section 31 of the Act incompliance with article 189(4) of the Constitution provided for alternative dispute resolution. Section 33 provided for the formal steps towards declaration of a dispute for reference to the structures of the Intergovernmental Relations Act.
  5. Section 35 of the Intergovernmental Relations Act as read with the Constitution intentionally established a consultative and amicable process in preference to court procedures resort to which was only as last measure, if the alternative dispute resolution mechanism failed.
  6. It was only anticipated that the national and County Governments would only resort to contentious court proceedings, pursuant to article 189 (4) of the Constitution if the alternative dispute resolution mechanisms, including negotiation, mediation and arbitration failed.
  7. The alternative dispute resolution efforts ended at only a second meeting at which it was agreed that the matter was to be referred to the appropriate intergovernmental Relations Committee and that a multi-agency committee comprising of relevant stakeholders was to be set up to facilitate necessary consultations on the issues before the Court and other issues that could arise during the transactions implementation period. Following the 2nd meeting of which took place on February 5, 2016, the Court proceedings then in place were withdrawn only for the Petitioners to back to court in April and May 2016 before any further attempts at amicable settlement in accordance with article 189 of the Constitution and the Intergovernmental Relations Act. The mechanism for alternative dispute resolution of any disputes between the national and County Governments as ordained by the Constitution had not been exhausted, the instant proceedings were premature.
  8. Once a court held that it had no jurisdiction on a matter it was to decline to deal with the dispute on its merits. Once it determined it had no jurisdiction, the Court would down its tools.
  9. Where a dispute was properly before the Court, the principle of constitutional avoidance bore upon the consolidated petitions and judicial review proceedings. The jurisdiction of the High Court as the Constitutional Court was not ousted by such stance, nor was the Court abdicating it role as the interpreter of the Constitution under article 165(3) (d) of the Constitution.  The Court only considered that there was adequate and appropriate remedy elsewhere.
  10. The setting of the instant dispute provided a classic example where the principle of constitutional avoidance at the instant stage with regard to determination by constitutional interpretation of any aspect of the dispute had to be employed. Firstly because the Constitution decreed resolution of the disputes of the nature before the instant Court by alternative dispute resolution mechanism; secondly, because the nature of the dispute involving, apart from construction of constitutional provisions of functions and powers of national and County Governments, technical questions of most effective functioning of governmental policy, resources and responsibilities in agricultural production, value addition, national and international trade, and public investment, which were better considered and resolved by respective technical organs of the State; and thirdly, because in the event of failure of settlement through the alternative dispute resolution mechanism, the matter could end up in court.
  11. There was no suggestion that the structures of alternative dispute resolution under the Intergovernmental Relations Act, 2012 could not remedy the situation manifested in the dispute about whose function between the national and County Government was the business of milling of sugar, that was whether it was an public investment function for the national government or a crop husbandry function reserved for the County Governments.  Whether it were considered that the sugar milling was a public investment or an agricultural function, the organs of the Intergovernmental Relations Act were still capable of amicable settlement of the dispute in accordance with the Act and article 189 of the Constitution by suitable transfer of functions as mandated under section 8 (f) of the Act.  Only in the event of failure of reasonable efforts at settlement would it resort to judicial proceedings.
  12. Although, there appeared to be substantial questions presented to the High Court for interpretation of the Constitution as to the nature and extents of the County Government’s agricultural function and the correlated agricultural policy function of National Government’s and the latter’s substantive public investment function with respect to the sugar milling factories which were the subject of the privatization programme challenged in the suits before the Court, the Constitution prescribed for harmonious resolution of any disputes that could arise between the governments.  For that reason, a course of avoidance by the Court was a constitutional imperative, at least until the alternative dispute resolution methods had reasonably been employed without success. Such reasonable efforts towards resolution of the dispute had not been exhausted or failed.
  13. The Court could not therefore be asked to resolve the dispute anyhow where such a matter was before the Court.  That would be usurping the prior jurisdiction of the organs of Intergovernmental Relations Act, through which the governments was to make every reasonable effort to settle the dispute.  To determine the dispute by constitutional interpretation of the Constitutional Court was unconstitutionally to deprive the governments at the two levels their constitutional mandate to resolve the matter by means of respectful co-operation method of the Constitution, and thereby defeat one of the very objects of devolution under dictates of article 6 (2) and 189 (2) the Constitution.
  14. If no resolution was forthcoming, the governments would be at liberty pursuant to section 35 of Intergovernmental Relations Act, 2012 to approach the High Court for constitutional interpretation under article 165(3) (d) of the Constitution or approach the Supreme Court for resolution by advisory opinion under article 163 (4) of the Constitution.
  15. The eventuality contemplated by section 35 of the Intergovernmental Relations Act 2012 had not crystallized because all efforts of resolving the dispute had not been exhausted and failed.  Such efforts were only at the initial stages when the Petitioners came to court.

Preliminary objection allowed, petition dismissed no order as to costs.

JURSDICTION Determining the Constitutionality of Statutory Provisions is the Strict Reserve of the High Court.

Council of County Governors v Lake Basin Development Authority & 6 others [2017] eKLR
Petition 280 of 2017
High Court at Nairobi
J M Mativo, J
November 27, 2017
Reported by Ribia John

Download the Decision

Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to determine matters respecting the constitutionality of statutory provisions – where a statute directed that disputes between a County Government and the National Government to be resolved via alternative dispute resolution – where the jurisdiction of the High Court to delegate a matter that questioned the constitutionality of stator provisions to alternative dispute resolution - whether the alternative dispute resolution mechanism established under the Intergovernmental Relations Act was competent to resolve a question relating to the determination of constitutionality of Provisions of a statute – Constitution of Kenya, 2010 article 165(3)(d )(i); Intergovernmental Relations Act sections 31, 33 and 35.
Constitutional Law – supremacy of the constitution – supremacy of the constitution over statute – where the Constitution granted jurisdiction to the High Court that was allegedly ousted by statute - whether sections 31, 33 and 35 of the Intergovernmental Relations Act that referred disputes between the National and County Government to alternative dispute resolution could oust the jurisdiction of the High Court to determine matters that questioned the constitutionality of provisions of a statute the – Constitution of Kenya, 2010 article 165(3)(d); Intergovernmental Relations Act sections 31, 33 and 35
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to determine matters respecting the constitutionality of statutory provisions – whether the High Court could delegate its jurisdiction to determine the constitutionality of statutory provisions to another person or body - whether the High Court could decline jurisdiction to determine the constitutionality of statutory provisions when there were statutory provisions that established dispute resolutions mechanisms over the dispute in question - what test should the High Court apply when invited to decline jurisdiction over a matter – Constitution of Kenya, 2010 article 165(3)(d); Intergovernmental Relations Act sections 31, 33 and 35.
Precedent – the binding or persuasive nature of judicial decisions -applicability of precedent - factors the Court should consider when adopting judicial precedents
Constitutional Law – constitutional petitions - locus standi to institute constitutional petitions – locus standi of representative bodies created via statute to institute constitutional petitions - locus standi of the Council of Governors - whether the Council of Governors was a juristic person capable of suing and being sued – Constitution of Kenya, 2010 article 22, 258(1) and 260

Brief facts:
The Council of County Governors instituted the instant petition against the Respondents seeking a declaration that integrated planning, coordination and implementation of projects and programmes was a function of the County level under the 4th Schedule to the Constitution. The Respondent however filed a preliminary objection objecting to the Court’s jurisdiction to determine the matter.
The Respondents objected the petition on grounds that the instant petition was premature because the Petitioner had not exhausted the dispute resolution mechanisms under the Constitution and section 33 of the Intergovernmental Relations Act. Consequently, the Respondent sought to have the petition struck out.

Issues:

  1. What classifications could be used to determine whether a case raised a constitutional matter?
  2. Whether the alternative dispute resolution mechanism established under the Intergovernmental Relations Act was competent to resolve a question relating to the determination of constitutionality of Provisions of a statute.
  3. Whether sections 31, 33 and 35 of the Intergovernmental Relations Act that referred disputes between the National and County Government to alternative dispute resolution could oust the jurisdiction of the High Court to determine the constitutionality of statutory provisions.
  4. Whether the High Court could delegate its jurisdiction to determine the constitutionality of statutory provisions to another person or body.
  5. Whether the High Court could decline jurisdiction to determine the constitutionality of statutory provisions when there were statutory provisions that established alternative dispute resolution mechanisms over the dispute in question
  6. What test should the High Court apply when invited to decline jurisdiction over a matter.
  7. Factors the Court should consider when adopting judicial precedents.
  8. Whether the Council of Governors was a juristic person capable of suing and being sued. Read More...

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 189(1)
Cooperation between national and County Governments
(1) Government at either level shall—

(a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of County Government, within the county level;
(b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and
(c) liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.

.Intergovernmental Relations Act
Section 31
Measures for dispute resolution
The national and County Governments shall take all reasonable measures to—

(a) resolve disputes amicably; and
(b) apply and exhaust the mechanisms for alternative dispute resolution provided under this Act or any other legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution.

Section 33
Formal declaration of a dispute
(1) Before formally declaring the existence of a dispute, parties to a dispute shall, in good faith, make every reasonable effort and take all necessary steps to amicably resolve the matter by initiating direct negotiations with each other or through an intermediary.
(2) Where the negotiations under subsection (1) fail, a party to the dispute may formally declare a dispute by referring the matter to the Summit, the Council or any other intergovernmental structure established under this Act, as may be appropriate.

Section 35
Judicial proceedings
Where all efforts of resolving a dispute under this Act fail, a party to the dispute may submit the matter for arbitration or institute judicial proceedings.

Held:

  1. A court is bound to entertain proceedings that fall within its jurisdiction. A court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case.
  2. When determining whether an argument raised a constitutional issue, the court was not strictly concerned with whether the argument would be successful. The question was whether the argument forced the Court to consider constitutional rights or values.
  3. The Constitution provided no definition of constitutional matter. What was a constitutional matter had to be gleaned from a reading of the Constitution itself. Examples of constitutional issues include the constitutionality of provisions within an Act of Parliament, the interpretation of legislation and the application of legislation.
  4. At the heart of the cases within each type or classification was an analysis of the same thing: the constitutionally entrenched fundamental rights, values, principles and purposes. Therefore the classifications were not discreet and there were inevitably overlaps, but the classifications were nonetheless useful theoretical tools to organise an analysis of the nature of constitutional matters that arose from the cases before the Court.
  5. The impugned provisions vested powers and functions to statutory bodies established under the various statutes which functions were said to be devolved functions under the Constitution. Determining such a question would no doubt require the interpretation of the Constitution, its principles, purposes and values. It was a constitutional issue so far at it touched on the constitutionality of the challenged provisions.
  6. Article 165(6) of the Constitution granted the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority that exercised a judicial or quasi-judicial function.
  7. The reasoning behind the ouster clauses could easily be construed to be the need to promote good relations between the levels of government; that alternative dispute resolution mechanisms were to be sought between the national government and the County Governments and in the case of counties; among themselves. Article 6 of the Constitution required the two levels of government to conduct their mutual relations on the basis of consultation and co-operation.
  8. Section 31 of the Inter-Governmental Relations Act provided for the measures to be undertaken in dispute resolution between   National and County Governments. Section 35 thereof referred disputes from the National and County Government to arbitration should the efforts of resolving the dispute fail. Judicial proceedings were therefore considered as a last resort. Kenyan Courts had on numerous occasions held that whenever an Act of Parliament provided for a clear procedure or mechanism of redress, the same ought to be strictly followed.
  9. Alternative dispute resolution processes were complementary to the judicial process and by virtue of article 159(2)(c) of the Constitution, the Court was obligated to promote those modes of alternative dispute resolution. A Court was entitled to either stay the proceedings until such a time as the alternative remedy had been pursued or bring an end to the proceedings before the Court or leave the parties to purse the alternative remedy. The place of alternative dispute resolution was respected by the Courts and the instant Court was no exception.
  10. A court, including the instant Court, would rarely decide an intergovernmental dispute unless the organs of State involved in the dispute had made every reasonable effort to resolve it. When exercising discretion, the instant Court had to bear in mind that the Constitution contemplated that organs of state had to make every reasonable effort to resolve intergovernmental disputes before having recourse to the Courts.
  11. The right of access to court was foundational to the stability of an orderly society. It ensured the peaceful, regulated and institutionalised mechanisms to resolve disputes. Construed in the context of the rule of law, access to court was of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable. That was the test the Court had to bear in mind when invited to decline jurisdiction.
  12. The mandate of determining the constitutionality of provisions of a statute was vested in the High Court. The need for an effective remedy in a case could justify the instant Court to take the exceptional course of entertaining a dispute where the Court was satisfied that the laid down statutory mechanism may not provide an effective remedy to the aggrieved party or if it was clear the dispute disclosed by the facts substantially or wholly lay outside the scope of the laid down statutory mechanism.
  13. What was of the greatest importance was that it was to be clearly established that a significant injustice had probably occurred or would occur or there was a clear violation of the Constitution and that there was no alternative effective remedy within the statutory established mechanism.
  14. The mechanism used as a shield to challenge the instant Court's jurisdiction could not grant an effective remedy if the instant dispute were to be subjected to the said mechanism. The Constitution was very clear on where the jurisdiction to determine constitutionality of statutes lay; it was vested in the High court. No other body or person in Kenya had the jurisdiction to determine constitutionality of provisions of a statute.
  15. It was important to bear in mind the Constitutional command in article 259 of the Constitution which obligated the High Court to interpret the Constitution 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 and permitted the development of the law and contributed to good governance. Declining jurisdiction in the instant case will be a restrictive interpretation of the Constitution which would go against the great command in article 259 thereof.
  16. When the constitutionality of legislation was in issue, the Court was under a duty to exercise its jurisdiction under article 165 of the Constitution and examine the objects and purport of the Act and to read the provisions of the legislation, so far as was possible, in conformity with the Constitution. The Court could not delegate that sacrosanct constitutional mandate to another person or body. Declining jurisdiction in such a case would amount to declining to exercise its constitutional mandate. It would be treason to the Constitution. The Court had to remain faithful to its constitutional mandate and uphold the Constitution always and not to stifle it.
  17. The instant Court had powers to entertain the instant case and determine the constitutionality or otherwise of the challenged provisions. An effective remedy for the issues raised in the instant petition if proved was not available through the mechanism under section 35 of the Intergovernmental Relation Act (alternative dispute resolution). Put bluntly, the laid down mechanism could not address constitutional issues such as those alleged in the instant petition.
  18. The Constitution was concerned that the entire legal system, including alternative dispute resolution mechanisms had to accord with the broader values of the Constitution by determining only disputes which fell within the scope of their mandate. Determining constitutional questions such as constitutionality or otherwise of provisions of a statute fell outside the scope of their mandate and would amount to usurping the powers of the High Court under article 165 of the Constitution.
  19. In a constitutional democracy, where the substantive enjoyment of rights and dispute resolution had a high premium, it was important that any existing statutory remedy be an effective one. A remedy will be effective if it was objectively implemented, taking into account the relevant principles and values of administrative justice present in the Constitution and Kenyan law.
  20.  The deepest norms of the Constitution should determine whether the dispute involved explicit constitutional adjudication, or whether it could safely be left to the statutory provisions.  Determining constitutionality of a provision in a statute was a constitutional mandate of the High Court which was empowered under the Constitution to scrutinize the provisions and decide whether they accorded with the demands of the Constitution. Thus, the instant dispute was properly before the instant Court.
  21. Mindful of the imperative to read legislation in conformity with the Constitution, but only to do so when that reading would not unduly strain the legislation, the said provisions did not oust the jurisdiction of the High Court to determine the issues raised in the instant Petition. Put differently, the provisions of article 165 of the Constitution had to prevail over the statutory provisions in question.
  22. The ratio of any decision had to be understood in the background of the facts of that case. A case was only an authority for what it actually decided, and not what logically followed from it. A little difference in facts or additional facts could make a lot of difference in the precedential value of a decision.
  23. Each case depended on its own facts and a close similarity between one case and another was not enough because even a single significant detail could alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case fell, the broad resemblance to another case was not at all decisive. Precedent should be followed only so far as it marked the path of justice, but one must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. The Court’s plea was to keep the path of justice clear of obstructions which could impede it.
  24. The Council of Governors was without doubt established by statute. Its functions were outlined under section 20 of the Intergovernmental Relations Act. By its very name the Council was composed of governors who derived their mandate from the public. Apart from representing the interests of the individual County Governments and counties they governed, they held an even higher responsibility as a Council that of representing their counties’ /County Governments’ interests. Matters devolution could not be divorced from public interest. The Counties were composed of the public.  To hold that the Council of Governors was not a body corporate/juristic person would amount to a restrictive interpretation of the Constitution and an affront to article 259 of Constitution.
  25. The Intergovernmental Relations Act had to be read in conformity with the Constitution. The provisions of article 22 of the Constitution had lifted the veil on the hitherto locus standi doctrine that for a long time blocked many a people from accessing justice. Under article 22, every person had the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened. Further under article 258(1) of the Constitution, every person had the right to institute court proceedings, claiming that the Constitution had been contravened, or was threatened with contravention. In both cases, a person could institute proceedings in their own interest, they could institute in the interest of a group or class of persons. Article 260 of the Constitution sealed it all by defining the term ‘Person’ to include a company, association or other body of persons whether incorporated or unincorporated.
  26. The Council of Governors fits well under article 258(1) of the Constitution and all enabling articles of the Constitution in that; they had instituted proceedings claiming contravention or threatened violation of the Constitution; they represented individual, county and national interest; the petition lodged and the issues raised therein raised constitutional matters of public interest. Consequently, the Petitioner had capacity and indeed the right to file the instant petition before the instant Court.
  27. Article 159(2) (d) of the Constitution enjoined the Courts to exercise judicial authority, and to administer justice without undue regard to procedural technicalities. Any party was allowed to amend its pleadings at any stage of the proceedings with the leave of Court, as provided under rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural rules, 2013. That ground did not lock the doors of the instant Court for the Petitioner nor did it qualify to be a ground for a preliminary objection on a point of law.
  28. The Constitution required a purposive approach to statutory interpretation. Rule 3 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provided for the scope of the Rules and their overriding objective which was to facilitate access to courts under article 48 of the Constitution. Rule 3 commanded the High Court to interpret the rules in accordance with article 259 (1) of the Constitution with a view to advancing and realising the rights and freedoms enshrined in the Bill of Rights and values and principles of the Constitution.

Preliminary objection dismissed no order as to costs.

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