Weekly Newsletter 009/2018

Weekly Newsletter 009/2018



Kenya Law

Weekly Newsletter


The Consumer Rights of Consumers of Soft Drinks Include the Right to Nutritional Information and Storage Directions
Mark Ndumia Ndung'u v Nairobi Bottlers Ltd & another
Petition 325 of 2015
High Court at Nairobi
Constitutional and Human Rights Division
J L Onguto, J
January 30, 2018
Reported by Beryl A Ikamari
Download the Decision
Constitutional Law-institution of a suit in the form of a constitutional petition-locus standi (right to sue)-extent of locus standi in a constitutional petition-whether a petitioner who was unable to consume a soft drink for medical reasons could institute a suit to enforce consumer rights by claiming that the failure to provide nutritional information, storage directions and contact details of the manufacturer, where the soft drink was packaged in glass bottles, was a breach of consumer rights-Constitution of Kenya 2010, article 22.
Constitutional Law-constitutional petition-form and content of a constitutional petition-particulars to be pleaded in a constitutional petition-the requirement that a Petitioner ought to set out with a reasonable degree of precision that which he complained of, the provisions said to have been infringed, and the manner in which they were alleged to be infringed-how the Court would assess whether that degree of precision was achieved in the drafting of a constitutional petition.
Civil Practice and Procedure-institution of a suit in the form of a constitutional petition-availability of alternative remedies-the requirement that alternative remedies would have to be efficacious-where alternative remedies were in existence but their effectiveness was in question-whether under those circumstances the constitutional petition would be dismissed.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-consumer rights-the right to information necessary for consumers to gain full benefit from goods and services-whether consumers of soft drinks had a right to nutritional information, storage directions and customer service mobile number and email address-Constitution of Kenya 2010, article 46; Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards) Regulations, 1978 , regulation 4; Standards Act (Cap 496), section 9.
Statutes-interpretation of statutory provisions-meaning of a supplier for purposes of consumer protection-the nature of entities were within the definition of a supplier under the Consumer Protection Act-whether an entity with the sole mandate of promoting and marketing products was a supplier-Consumer Protection Act, No 46 of 2012, section 2.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to equality and freedom from discrimination-nature of conduct that would constitute discrimination-provision of beneficial information only to a certain class of consumers-where nutritional information, storage directions and contact details were availed to consumers of a soft drink packaged in plastic bottles and not to consumers of the same soft drink packaged in a glass bottles-whether such conduct amounted to discrimination-Constitution of Kenya 2010, article 27.

Brief facts:
The Respondents manufactured soft drinks under the brand names Coca Cola, Krest, Fanta, Sprite and Stoney and packaged them in glass bottles as well as plastic bottles. The Petitioner preferred consuming Coca Cola found in glass bottles but he stopped consuming the drink upon being diagnosed with ulcers by a doctor. The doctor advised him to stop consuming products with acidic content. That advice sparked his curiosity relating to the ingredients and nutritional value of foods and drinks which he consumed.
The Petitioner discovered that the Respondents' soft drinks, in plastic bottles, unlike those in glass bottles, had the nutritional content listed as well as the Respondents' contact details for its customers and storage information. He said that the omission of such information in the glass bottles violated consumer rights as provided for in article 46 of the Constitution. The Petitioner said that the nutritional information would enable customers to know of the benefits of consuming the drink and the contact details would help them give feedback including complaints that would enable them to derive optimum benefit from the products. He added that knowing information on storage would help the consumers retain the drink's freshness and other qualities.
The Petitioner added that due to the price difference in the soft drinks packaged in glass bottles as opposed to those packaged in plastic bottles, low income earners would opt for the glass bottles. The information gap would therefore be discriminatory against the consumers of the glass bottle soft drink. The Petitioner therefore sought mandatory and declaratory reliefs.
In response, the 1st Respondent explained that the Coca Cola crown glass bottle caps bore the physical and postal address of the manufacturer, brand of trade name, as well as optional ingredients such as carbonated water, sugar, colour, caramel, acidulant, phosphoric acid, flavouring and caffeine. The 1st Respondent also explained that the price difference in the soft drinks packaged in glass bottles as compared to those in plastic bottles was based on the fact that glass bottles were re-usable.
The 2nd Respondent asserted that the Petitioner had no cause of action against it. It stated that its mandate was the promotion and marketing of the 1st Respondent's products. It also stated that it had complied with the food labelling and specification requirements under the Food, Drugs and Chemical Substances Act and the Standards Act. Further, it stated that the Petitioner wrongly assumed that there was a legal obligation on a manufacturer, packer or distributor of soft drinks to display the nutritional information, email address and storage directions on the food label. The 2nd Respondent also stated that the petition did not set out the Petitioner's claim to a reasonable degree of precision. It additionally said that the Petitioner had not exhausted the available alternative remedies.

 
Issues:
  1. Whether a person who was unable to consume a soft drink for medical reasons had the locus standi to institute a suit to enforce an alleged breach of consumer rights in relation to the soft drink.
  2. Whether the petition was drafted with a reasonable degree of precision so as to enable the Court and the Respondents to know of the Petitioner's case with respect to what was complained of, the constitutional provisions that had been violated and the manner in which they were violated.
  3. What was the effect of claims of availability of alternative remedies to the admissibility of the constitutional petition?
  4. Whether consumers of soft drinks had a right to nutritional information, storage directions and customer service mobile number and email address.
  5. What were the considerations that the Court would factor in when interpreting a statute?
  6. Whether an entity with the mandate of marketing and promoting certain beverages was within the definition of a supplier under the Consumer Protection Act.
  7. Whether provision of beneficial information only to a certain portion of consumers of a given product was a form of discrimination.
Held:
  1. As a person who did not consume the soft drinks in question, the Petitioner's locus standi to institute the proceedings was in question. Article 22 of the Constitution provided for the locus standi or legal standing to institute proceedings for the enforcement of the Bill of Rights. The right to institute proceedings would be held by individuals including those who were acting in public interest of as members of, or in the interest of, a group or class of persons.
  2. It was apparent that there was no limit as to the manner and nature of persons that could approach the Court under article 22. A generous approach to the issue of standing had to be adopted for purposes of enforcing fundamental rights and freedoms. The Petitioner brought the petition as a law abiding citizen, public spirited individual and a strong believer in the rule of law and constitutionalism (public interest); on his own behalf (personal interest) and on behalf of the consumers of the glass bottled beverages produced by the Respondents (class interest).
  3. The Petitioner did not have to show that he was affected by the alleged violation in order to have standing to sue under article 22 of the Constitution. Nothing prevented a non-consumer of a product with a well-established right to sue under article 22 of the Constitution, from alleging that any consumer right or fundamental freedom in article 46 of the Constitution had been denied, violated or infringed or threatened.
  4. A reading of the petition and affidavits disclosed a claim by the Petitioners which was easily discernible. The articles of the Constitution which had been violated were identified and they related to consumer rights. The petition was drafted to a reasonable degree of precision and it was such that the Respondents could understand the issues in controversy.
  5. It is trite law that where there is an efficacious or alternative remedy a dispute should be resolved in accordance with the alternative procedure. The alternative remedy would have to be accessible, affordable, timely and effective.
  6. If the availability of a remedy was not evident, it would not be invoked to the detriment of a Petitioner. The party that sought to rely on the availability of alternative remedies in order to make a petition inadmissible, bore the burden of showing that the alternative remedies were in existence and that they had not been exhausted.
  7. The alternative remedies, whose existence was claimed included prosecutions by the Director of Public Prosecutions , withdrawal of a license under the Standards Act and section 90 of the Consumer Protection Act, did not provide an effective remedy to the questions raised in the petition.
  8. The Court had to determine the question as to whether, under article 46 of the Constitution, consumers had a right to nutritional information, storage directions and customer service mobile number and email address. Under article 20(3)(a), the Court was bound to develop the law, including the Food, Drugs and Chemical Substances Act and the Standards Act to the extent that it did not give effect to consumer rights. The Court had to adopt an interpretation which favoured the enforcement of consumer rights. Article 259(1)(c) of the Constitution also provided for the obligation of the Court to develop the law through constitutional interpretation.
  9. The theory of a holistic interpretation of the Constitution mainstreamed by the Supreme Court required an interpretive approach that took into account, alongside a consideration of the text and other provisions in question, non-legal phenomenon such as Kenya's historical, economic, social, cultural and political context. In determining the Petition, the Court had to take judicial notice of the prevalence of non-communicable and nutrition-related diseases including malnourishment and obesity.
  10. Section 3(1) of the Consumer Protection Act, 2012 stipulated that the Act had to be read in a manner that gave effect to the purposes set out in subsection 4 of the Act including the improvement of consumer awareness and information and encouragement of responsible and informed consumer choice and behaviour. It was of assistance in interpreting consumer rights.
  11. A close reading of article 46(1) of the Constitution disclosed at least three different obligations imposed on public and private manufacturers, promoters or marketers of any consumer product or service. First, there was an obligation to provide goods and services of reasonable quality. Secondly, there was an obligation to avail to the consumer, any information necessary for the consumer to gain full benefit from any goods or services. Thirdly, a manufacturer, promoter or marketer had an obligation to ensure the protection of consumers’ health, safety, and economic interests.
  12. Section 87 of the Consumer Protection Act outlined the obligation of suppliers to disclose information. Where disclosure was required under the Consumer Protection Act, the disclosure had to be clear, comprehensible and in accordance with the standards set under the Standards Act and delivered in a form that would be understood by the consumer. The provision did not demand any specific kind of information but merely related to the quality, clarity and utility of such information.
  13. Regulation 4 of the Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards) Regulations, 1978 required food labels to state the brand of trade name, common name of the food, correct declaration of the net contents in weight, volume or number as well as the name and address of the manufacturer, packer or distributor of the food. The Respondents' products complied with that regulation.
  14. The Respondents also complied with the Kenya Standard KS EAS 29:200 (Carbonated (Beverages) Soft Drinks – Specification, 2000) prescribed under section 9 of the Standards Act. The specification required labels to contain the date of manufacture as well as the best before date. Under the provision, the labels were also required to contain the brand of trade name, common name of the food, correct declaration of the net contents in weight, volume or number and as well as the name and address of the manufacturer, packer or distributor of the food.
  15. The information that the Petitioner sought in furtherance of consumer rights was information necessary for consumers to gain the full benefit from the Respondents' drinks under article 46(1)(b) of the Constitution and that information included nutritional information, storage directions and customer service mobile number and email address. What the Petitioner sought went beyond the labelling requirements of the Food, Drugs and Chemical Substances Act and the Standards Act.
  16. Nutritional information contained in food labels, guaranteed consumer rights provided for in article 46 of the Constitution in three ways. It assured them of products of reasonable quality, it provided information necessary for them to gain full benefit from goods and services and finally, it ensured the protection of consumers’ health, safety, and economic interests.
  17. Providing information to consumers, on ingredients, nutrition claims and declaration of potential allergens as well as nutrition or health claims, food warnings and labels inform consumption by enabling consumers to make informed decisions. Under article 46 of the Constitution, nutritional information provided on labels ought to be truthful and not misleading to consumers. Food ought not to be described or presented in a manner that was false, misleading or deceptive. Therefore, the Respondents had an obligation to provide nutritional information on their beverages to enable consumers to gain full benefit from the beverages.
  18. Information on safe storage, preparation and handling of food products was of critical importance to consumers and had to be provided by the suppliers on the food label. It would assure consumers of food products of reasonable quality, protect their health and safety, and safeguard their economic interests. The Respondents had an obligation to supply consumers with the storage directions.
  19. There would be no specific legal obligation to provide an email or phone address to consumers. The Food, Drugs and Chemical Substances Act, as well as the Standards Act, merely required the name and address of the manufacturer of beverages. The Respondents’ glass bottles and crown bottle caps were in compliance as they contained the Respondents’ address.
  20. The Respondents supplied their mobile phone number on their beverage's plastic bottles and omitted it from the glass bottles. It would be discriminatory to supply customer service mobile numbers and email addresses to a class of consumers while denying the same to a different class of consumers of the same product. Where a supplier opted to avail its customer service mobile number and email address to consumers of a product, it had to do so uniformly to all consumers of that product without distinction.
  21. The 2nd Respondent had the mandate of marketing and promoting the beverages in question. It was within the definition of a supplier under the Consumer Protection Act which provided that a supplier meant a person who was in the business of selling, leasing or trading in goods or services or was otherwise in the business of supplying goods or services, and included an agent of the supplier and a person who held himself out to be a supplier or an agent of the supplier. Therefore, the 2nd Respondent was a supplier within the terms of section 2 of the Act and it bore the obligations provided for in article 46 of the Constitution.
  22. The Petitioner's attempt to ground his case in article 35 of the Constitution lacked merit. There was no evidence that he sought and was denied the information he wanted prior to filing the action. With respect to the right to access information, it is trite that coercive orders of the Court should only be used to enforce the Constitution where a request has been made to the person holding the information and such request has been declined.
  23. Article 27 of the Constitution entitled all persons to equal benefit and protection of the law as well as freedom from discrimination. A practice, policy or law would be discriminatory either as a result of its motive or arising from its effect on the identified class or category. The former would constitute direct discrimination and the latter indirect discrimination
  24. The Respondent's plastic soda bottles contained nutritional, customer contact and storage information which was missing from the glass bottles of equivalent quantity and brand. The effect of that was that whereas consumers of the beverages in the plastic bottles could readily know and tell the nutritional content of the beverages they were consuming, consumers of the beverages in the glass bottles were denied that benefit. Therefore in so far as the Respondents conferred the privilege of adequate nutritional information and consumer contact addresses to consumers of the plastic bottled beverages while denying the same privilege to the consumers of glass bottled beverage without reasonable distinction, the same was discriminatory, unconstitutional and unlawful.
  25. The Petitioner did not lay a basis for an award of damages. Given that the petition was filed in public interest, it would be odd for the Petitioner to claim damages for himself from the untoward conduct of the Respondents.
Petition partly allowed.
Kenya Law
Case Updates Issue 009/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE The Standard of Care Required to Prove Medical Negligence

John Gachanja Mundia v Francis Muriira & Another [2017] eKLR
Civil Appeal No. 26 Of 2015
High Court at Meru
A. Mabeya,J
December 7, 2017.
Reported by Kakai Toili

Download the Decision

Civil practice and procedure – leave to file suit out of time – challenging a decision to grant leave to file a suit out of time - when could one challenge a decision granting leave to a party to file a suit out of time- Limitation of Actions Act, section 27& 28
Tort Law – negligence – medical negligence – proof of medical negligence -standard of care - what was the standard of care required to prove medical negligence?

Brief facts:
The Deceased was admitted to the 2nd Respondent’s facility for delivery of her 4th child. She had had three previous normal deliveries. The Appellant was called to attend to her. When virginal assisted delivery failed, the Appellant decided that caesarian section be undertaken. The child was successfully extracted. However, the Deceased developed complications from which she died.
The 1st Respondent sought leave at the Trial Court to file suit out of time. The Trial Court granted him leave and subsequently filed a suit against both the Appellant and the 2nd Respondent for damages arising out of the death of his wife due to the Appellant’s and 2nd Respondent’s negligence. The Trial Court found the Appellant and the 2nd Respondent liable and entered judgment against them, jointly and severally, for Kshs. 1,524,113/=. Aggrieved by the decision the Appellant filed the instant Appeal on grounds that the Trial Court erred in holding that the 1st Respondent had satisfied the provisions of sections 27 and 28 of the Limitation of Actions Act, that the Trial Court erred in holding that the 1st Respondent had proved his case to the required standard, that the Trial Court erred in failing to give reasons for the award of KShs. 1,472,000/- as loss of dependency and finally and that the Trial Court erred in finding that the testimony of PW1 was unchallenged.

Issue:

  1. When could one challenge a decision granting leave to a party to file a suit out of time?
  2. What was the standard of care required to prove medical negligence? Read More...

Relevant Provisions of the law:
Limitation of Actions Act
Section 27 - Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.

(1) Section 4(2) does not afford a defence to an action founded on tort where—

(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and
(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.

(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—

(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and
(b)in either case, was a date not earlier than one year before the date on which the action was brought.

(3) This section does not exclude or otherwise affect—

(a)any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or
(b)the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

Section 28 - Application for leave of court under section 27.

(1) An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.
(2) Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—

(a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and
(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.

(3) Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence would in the absence of any evidence to the contrary, be sufficient—

(a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and
(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action, and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27 of this Act) to afford a defence under section 4(2) of this Act.

(4) In this section, “relevant action” in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.
(5) In this section and in section 27 of this Act “court”, in relation to an action, means the court in which the action has been or is intended to be brought.

Held:

  1. Being a first appeal, the Court was enjoined to revisit the evidence that was before the Trial Court afresh, analyze it, evaluate it and arrive at its own independent findings and conclusions, but always bearing in mind that the Trial Court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that
  2. The 1st Respondent was granted leave to file suit out of time which the Appellant challenged at the trial. Once leave was granted under section 28 of the Limitation on of Actions Act (the Act) it could only be challenged at the trial.
  3. It was mandatory that the provisions of section 27 (2) of the Act were established for the leave that was granted exparte to stand once it was challenged. Section 27 (1) (d) of the Act was clear that for time limitation to be suspended one of the conditions to be fulfilled was the material facts relating to the cause of action was not within the knowledge of the Applicant, the 1st Respondent did not demonstrate that.
  4. A Defendant could only challenge the leave at the trial by way of cross-examination on the circumstances of late filing of the case. It was only after successfully mounting such a challenge that the incidence of proof shifts back to the Plaintiff to defend the leave obtained exparte. That happened in the instant case but the 1st Respondent failed to discharge that burden.
  5. A case of medical negligence was not an ordinary case of negligence. The test to be applied was not that of an ordinary reasonable man known in law but that of an ordinary skilled doctor or consultant in that field. A patient who approached a doctor expected medical treatment with all the knowledge and skill that the doctor possessed to bring relief or solve the medical problem. A doctor therefore owed certain duties of care whose breach gave rise to tortious liability.
  6. The standard of care had to reflect clinical practice which stood up to analysis and was not unreasonable. It was for the Court after considering the expert evidence to determine whether the standard of care afforded the deceased put her at risk.
  7. If a professional man professed an art, he had to reasonably be skilled in it. He had to be careful but the standard of care, which the law required was not insurance against accidental slips. The professional had to bring to his task a reasonable degree of skill and knowledge and had to exercise a reasonable degree of care.
  8. In medical negligence cases, a court should be careful not to construe everything that went wrong in the cause of medical treatment as amounting to negligence. Courts had to insist on due care for the patient at every point but did not have to condemn as negligence that which was only a misadventure. To the extent of not confusing negligence with misadventure, clear proof of negligence was necessary in cases involving medical men, but it could not be accepted that the burden of proving such negligence was higher than in ordinary cases. The burden was to prove that the damage was caused by negligence and was not a question of misadventure and that burden must be discharged on a preponderance of evidence.
  9. Evidence of a witness was usually challenged when doubt was cast on the truthfulness, probability or otherwise of his evidence. That was usually done through making suggestions to a witness about other possibilities other than his own version or conclusions. When such possibilities were elicited from a witness, it was then said that his evidence was shaken or challenged. That was not the case in the instant case, when the Appellant took the stand, he tried to explain as to what in his view could have been the cause of death, amniotic fluid embolism. That was neither suggested nor put to PW1 for his opinion or to shake his firm findings as to the cause of death.
  10. If the 2nd Respondent’s facility lacked blood, the Deceased should have been transferred to another facility that would have had blood for the Deceased to be returned to theatre. That was a possibility that was never considered, probably, the internal bleeding would have been arrested and probably avert death. The 1st Respondent would have advised for the Deceased to be transferred to another facility had he been informed of the serious condition of the Deceased by the Appellant and the 2nd Respondent.
  11. By holding onto the Deceased until her final demise, the Appellant and 2nd Respondent failed in their duty of care to the deceased. The Appellant and the 2nd Respondent were negligent. The Trial Court could not be faulted for finding the two jointly and severally liable.
  12. The law had to be applied with the socio-political and economic context within which those it affected operated in mind. One could not be said to have contributed absolutely nothing yet she had a family to take care of just because there was no documentary proof of her income. The figure of Kshs.8,000/- per month was a reasonable figure. The multiplicand of 23 years was also reasonable.

Appeal partly allowed

  1. 1st Respondent failed to discharge the burden of proof on obtaining leave ex parte at the Trial Court
  2. Each party to bear its own costs.
ELECTORAL LAWS The Deputy Governor was a Necessary Party in an Election Petition that Sought the Nullification of the Election of the Governor

Mwamlole Tchappu Mbwana v Independent Electoral & Boundaries Commission & 4 others
Election Petition No. 5 of 2017
High Court at Mombasa
M. Thande, J
November 16, 2017
Reported by Robai Nasike Sivikhe

Download the Decision

Electoral Laws- election petitions- joinder of parties in election petitions- joinder of a deputy governor in an election petition that sought the nullification of the governor- whether the deputy governor was a necessary party in an election petition that sought the nullification of the governor- whether non-joinder of the deputy governor rendered the petition incompetent and incurably defective- Constitution of Kenya, 2010, articles 180 & 182
Electoral Laws- election petitions- pleadings- proper form of pleadings with regard to election petitions- where the Petitioner had failed to include the date of declaration of the results and the results themselves in the pleadings- whether failure to include the date of declaration of the results and the results themselves in the pleadings rendered the petition incurably defective- Constitution of Kenya 2010, article 87 (2); Elections (General) Regulations, 2012, regulation 87 (2) (b); Elections Petitions Rules, rules 4 (2), 8 (1) (d) & 12 (2) (d)
Jurisdiction- jurisdiction of the High court- jurisdiction of the court to determine a petition in which the date of declaration of the results and the results themselves had not been pleaded- whether the issue of jurisdiction had been raised within the appropriate proceedings and motion

Brief facts:
The Petitioner filed the election petition challenging the election of Hon. Salim Mvurya Mgala, the 5th Respondent, as the Governor of Kwale County. In light of the petition, the 5th Respondent raised a preliminary objection to be determined by the Court. The first ground raised in the preliminary objection was that the failure to enjoin the Deputy Governor within twenty eight (28) days of declaration/publication of results rendered the whole Petition incompetent and a violation of the Deputy Governor’s rights to fair hearing under article 50 of the Constitution. The second ground was that the petition and supporting affidavit had not stated the date of declaration of the results of the election thus rendering the petition incompetent.

Issues:

  1. Whether the Court had jurisdiction to determine a petition in which the date of declaration of the results and the results themselves had not been pleaded.
  2. Whether the issue of jurisdiction had been raised within the appropriate proceedings and motion.
  3. Whether the deputy governor was a necessary party in an election petition that sought the nullification of the governor.
  4. Whether failure to enjoin the deputy governor and failure to include the date of declaration of the results and the results themselves in the pleadings rendered the petition incurably defective.
  5. Whether a Deputy Governor was elected or a mere nominee. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 87 (2)
87. Electoral disputes
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

Article 180
180. Election of county governor and deputy county governor
(1) The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.
(2) To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.
(3) If only one candidate for county governor is nominated, that candidate shall be declared elected.
(4) If two or more candidates are nominated, an election shall be held in the county and the candidate who receives the greatest number of votes shall be declared elected.
(5) Each candidate for election as county governor shall nominate a person who is qualified for nomination for election as county governor as a candidate for deputy governor.
(6) The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor but shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor.
(7) A person shall not hold office—

(a) as a county governor for more than two terms; or
(b) as a deputy county governor for more than two terms.

(8) For the purposes of clause (7), a person who has assumed the office of county governor shall be deemed to have served a full term, subject only to Article 182 (3)(b).

Article 182
182. Vacancy in the office of county governor
(1) The office of the county governor shall become vacant if the holder of the office—

(a) dies;
(b) resigns, in writing, addressed to the speaker of the county assembly;
(c) ceases to be eligible to be elected county governor under Article 180(2);
(d) is convicted of an offence punishable by imprisonment for at least twelve months; or
(e) is removed from office under this Constitution.

(2) If a vacancy occurs in the office of county governor, the deputy county governor shall assume office as county governor for the remainder of the term of the county governor.
(3) If a person assumes office as county governor under clause (2), the person shall be deemed for the purposes of Article 180(7)—

(a) to have served a full term as county governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 180(1); or
(b) not to have served a term of office as county governor, in any other case.

(4) If a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor.
(5) If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor.
(6) A person who assumes the office of county governor under this Article shall, unless otherwise removed from office under this Constitution, hold office until the newly elected county governor assumes office following the next election held under Article 180(1).

Elections Act, No. 24 of 2011
Section 2
“Election results” means the declared outcome of the casting of votes by voters at an election;

Elections (General) Regulations, 2012
Regulation 87 (2) (b)
87. Returns of persons elected
(2) The county returning officer shall upon receipt the results from the constituency returning officers as contemplated under regulation (1)—
(b) complete Forms 37C, 38C and 39C set out in the Schedule in which the county 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 for each constituency;
(v) aggregate number of votes cast in the respective electoral area; and
(vi) aggregate number of rejected votes; and

Elections Petitions Rules
Rule 4 (2)
4. Objective of these Rules
(2) An election court shall, in the exercise of its powers under the Constitution and the Act, or in the interpretation of any of the provisions in these Rules, seek to give effect to the objective specified in sub-rule (1).

Rule 8 (1)
8. Contents and form of a petition
(1) An election petition shall state—

(d) the date of the declaration of the results of the election;

Rule 12 (2) (d)
12. Affidavits generally
(2) An affidavit in support of a petition under sub-rule (1) shall state—

(d) the date of the declaration of the results of the election;

Held:

  1. An objection to the jurisdiction of the High Court could not be subject to judicial discretion and no fact needed to be ascertained. It was a pure point of law which upon being argued as a preliminary objection could very well dispose of the petition. That would realize the overriding objective of the Elections Petitions Rules. The High Court was not persuaded by the Petitioner’s submission that the issues within the case ought to have been raised by way of motion.
  2. There were no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that was done, the court had to hear and dispose of that issue without further ado. An issue of jurisdiction had been raised and the High Court was obligated to hear and dispose the issue.
  3. The requirement to state the date of declaration of the election result in both the petition and supporting affidavit was couched in mandatory terms. The petition had not stated the date when the result of the election was declared. The supporting affidavit did not also contain the said date. The Petitioner had in fact conceded that there had been non-compliance with the requirement of the law in that regard.
  4. The statements in paragraphs 4.16 and 6.25 were not the declared election results as envisaged in section 2 of the Elections Act and regulation 87(2) (b) of the Elections (General) Regulations, 2012. The onus upon the Petitioner under rule 8(1) (c) of the Election Petition Rules to state the results of the election could only be discharged if he set out the results as declared by the 2nd Respondent. The annexure marked “MTM4” could not come to the aid of the Petitioner. That was because the annexure was not expressly referred to in the affidavit of the Petitioner and could not be deemed to be part of the Petition.
  5. Rules of procedure in electoral disputes were not mere technical or procedural requirements. They went to the root and substance of the matters prescribed upon. Therefore, they could not be treated as optional. Every provision in the Election Petition Rules was important and was intended to achieve a required result.
  6. The provision requiring the date of declaration of the result of the election was intended for a specific purpose. It was the date that the period of 28 days within which the petition was to be filed began to run. Therefore stating the said date was critical as it would determine whether or not the petition was filed within time. Without stating the date of declaration of the result of the election it became difficult, nay impossible to determine whether the Petition was filed within time or not and by extension whether the Court had jurisdiction to entertain the Petition or not.
  7. The Election Petitions Rules were clear as to what an election petition should contain. If any of the matters listed in the Rules was omitted then the petition would be incurably defective. The Rules had to be read as having a mandatory import otherwise they would be rendered otiose. The Court had to interpret the Rules strictly and give effect to the overriding objective in rule 5 which was to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions. Parties who sought justice in an election Court were under an obligation from drafting and filing pleadings to prosecuting and defending petitions to assist the Court to achieve that objective. Where a petitioner overlooked procedural imperatives the Court could not hesitate to declare the petition incompetent.
  8. The Rules Committee expended much time and effort to come up with the Elections Petitions Rules which ensured that a petition was as complete as possible, clearly setting out in detail the case for the Respondents to respond to with a view to achieving the just, expeditious, proportionate and affordable resolution of electoral disputes. Under Rule 4(2) the Court was enjoined in exercise of its powers under the Constitution and the Elections Act and in the interpretation of any of the provisions in those Rules, to seek to give effect to the overriding objective.
  9. Parties were bound by their own pleadings. A court could not frame an issue not stated in the pleadings. In line with that well established principle of law, the Instant Court could not frame any issue in respect of the date of declaration of results of the election and indeed in respect of the results of the election.
  10. By proceeding with a petition in which the date of declaration of the results and the results had not been pleaded, the Instant Court ran the risk of abandoning its role as an independent and impartial arbiter and would descend into the arena of conflict. The petition was incompetent for not having stated the date of declaration of the election. Though the failure to state the results was not one of the issues raised in the preliminary objection, the Court could not shut its eye to the omission.
  11. From the provisions of article 180 of the Constitution, the Governor was directly elected by the registered voters in the county. As regards the Deputy Governor, article 180(5) required each candidate for election as governor to nominate a person qualified for nomination for election as County Governor as a candidate for Deputy Governor. Article 180(6) provided that no separate election could be conducted for the Deputy Governor. The provision also stated that the candidate nominated by the person who was elected County Governor would be declared to have been elected as the Deputy Governor. The clear reading of the wording of that provision was that once a Governor was elected than the person he nominated would also be declared to have been elected as the Deputy Governor. The Instant Court was not persuaded by the argument that the Deputy Governor was merely nominated and not elected.
  12. The Deputy Governor was elected, but even if he was a mere nominee as submitted by the Petitioner, the only legally recognised process of removal was through an election petition. Any contest to an election, whatever its manifestation, was to be by way of election petition. The constitutional process of removal from office applied to all electoral positions including that of the Deputy Governor. The Deputy Governor came into office through the law and could only be removed through a process set out in the law.
  13. It was inconceivable that the petition challenging the election of the Governor had nothing to do with the election of the Deputy Governor. If the Deputy Governor were to be condemned unheard in the Petition, it would offend all notions of justice. It would be dishonest and unfair to hear the petition as no notice had been given to the Deputy Governor that she was being proceeded against. That was a failure of natural justice. When the Deputy Governor was declared duly elected, took oath of office and assumed office, certain rights accrued to her. Those rights could not be taken away from her without giving her an opportunity to defend those rights.
  14. The steadfastness of Courts in upholding the principles of natural justice and in particular hearing a person who was likely to be adversely affected by a decision before the decision was made in ordinary litigation could not be disaffirmed. The same steadfastness had to also be applied in electoral disputes. To proceed to hear the Petition without notice to, or the participation of the Deputy Governor, was to go against the principles of natural justice. Any decision the Court could make in violation of those principles however right the decision could be, such decision had to be declared to be no decision.
  15. If the Instant Court allowed the petition and nullified the election of the Governor, what would be the fate of the Deputy Governor? Upon election of the 5th Respondent, the Deputy Governor was also declared to have been elected as deputy governor in line with article 180(6). The Deputy Governor was issued with her own Form 37D being the certificate declaring her as duly elected. Through what legal process, instrument or order would the Form 37D issued to the Deputy Governor be vacated, set aside or quashed if she was not a party to the petition?
  16. What would happen if upon nullification of the election of the Governor, the Deputy Governor declined to vacate office on the ground that she was not aware of the proceedings or of any order against her? What if she insisted on assuming the position of County Governor of Kwale County under article 182(2) of the Constitution? She would be within her legal right to so insist.
  17. There was no law that required the deputy governor to vacate office upon nullification of a governor’s election. Nor was there any law that barred the deputy governor from assuming office of the governor upon a vacancy in that office arising by means of a nullification of the election of the governor.
  18. The conclusion that the deputy governor would be collateral damage and had to also leave office was not anchored in law. There had to be specific legal provisions to provide that the deputy governor whether enjoined in a successful petition against the governor or not would also leave office. As the law stood, the deputy governor could not be legally expected to vacate office on the basis of an order made in proceedings of which she had no notice, in which she was not a party and on the basis of an order not directed at her.
  19. The people of Kenya in promulgating the Constitution were emphatic in article 180(6) that the candidate nominated by the person who was elected county governor would be declared to have been elected as the deputy governor. However, the people of Kenya had not stated emphatically or otherwise that upon removal of the county governor by way of nullification of the election the deputy governor would by that removal also be removed. If that had been the intention of the people of Kenya, they would have specifically made such provision in the Constitution or in legislation through their elected representatives. The deputy governor was a necessary party in an election petition that sought the nullification of the election of the governor. Non-joinder of the Deputy Governor rendered the petition incompetent and incurably defective.
  20. The law envisaged a situation where an election petition could contain errors and had made provision for amendment. However the window to remedy the defects in the petition by way of amendment closed 28 days after declaration of the election results which was the time specified for filing the petition. That rendered the petition incurably defective. The Court had no jurisdiction to entertain an incurably defective petition and without jurisdiction there would be no basis for a continuation of proceedings pending other evidence.
  21. The Preliminary Objection was upheld. Failure to comply with the mandatory requirements of Rules 8(1) (c) and (d) and 12(2) (c) and (d) of the Elections Petitions Rules and further, failure to enjoin the Deputy Governor rendered the Petition incurably defective. The petition was struck out with costs being awarded to the Respondents.
  22. It was evident that there were gaps in the provisions relating to the deputy governor in the Constitution, and even in the County Governments Act. Perhaps it was time that Parliament considered amending the County Governments Act to plug the gaps identified. Other provisions that Parliament could wish to consider relate to the removal of a deputy governor from office and appointment of another deputy governor upon assumption by the deputy governor of the office of the governor.

Preliminary objection upheld.
Petition struck out.

ELECTORAL LAW A Deputy Governor is not a necessary party to an election petition which challenged the conduct of a gubernatorial election.

Japthet Muroko & another v Independent Electoral and Boundaries Commission & 2 others
Election Petition No 23 of 2017
High Court at Nairobi
A Mbogholi Msaga, J
December 7, 2017
Reported by Beryl A Ikamari

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Electoral Law-election petition-form and content of an election petition-effect of allegations of failure to give the particulars of one Petitioner with respect to his description and advocate's name and address, failure to state the date in which the election was conducted, failure to state the results of an election and failure to state the date when the declaration of the result of an election was done-Constitution of Kenya 2010, article 159(2); Elections Act (Parliamentary and County Elections) Petitions Rules, 2017, rules 5 & 8.
Electoral Laws-election petition-parties to an election petition-where an election petition sought to challenge a gubernatorial election-whether the Deputy Governor was a necessary party to such an election petition-Constitution of Kenya 2010, articles 180(1), 180(6) & 182; Elections Act, No 24 of 2011, section 2.

Brief facts:
The petition was filed to challenge the election of the 3rd Respondent as the Governor of Nairobi City County, following the general elections held on August 8, 2017. The Respondents filed an application seeking to have the petition struck out on grounds that it did not comply with mandatory provisions of the law. Additionally, the 1st and 2nd Respondents filed a Notice of Preliminary Objection asking the Court to strike out the petition on the sole ground that the Deputy Governor was not joined as a Respondent to the proceedings, within 28 days of the declaration of results.
The Application was premised on grounds that the petition did not comply with rule 8(1) (a), (c), (d) and (f) of the Elections Act (Parliamentary and County Elections) Petitions Rules, 2017. It was explained that the petition failed to indicate the results being challenged, the manner in which they were declared and the date on which they were declared. It also failed to provide the name and address of the 2nd Petitioner or his advocate. The Application also faulted the petition for seeking a prayer which could not be granted by the Court. The petition sought the nullification of results contained in the entire Gazette Notice No 118 of August 18, 2017 and yet the Court's jurisdiction was limited to the issue of the election of the Governor of Nairobi City County. They also alleged a failure by the Petitioner to cite the constitutional provisions which were allegedly violated in the impugned elections. The Respondents said that the stated defects had been replicated in the affidavits.

Issues:

  1. What was the effect of an alleged failure to comply with legal requirements as to the form and content of an election petition?
  2. When would a Deputy Governor assume office as a Governor?
  3. Whether a Deputy Governor a necessary party to an election petition which entailed a challenge to a gubernatorial election.
  4. Whether the post of Deputy Governor was an elective post.
  5. Read More...

Held:

  1. Rule 8 of the Elections Act (Parliamentary and County Elections) Petitions Rules, 2017 provided for the contents of an election petition. An election petition was required to state;
    1. the name and address of the Petitioner;
    2. the date when the election in dispute was conducted;
    3. the results of the election, if any, and however declared;
    4. the date of the declaration of the results of the election;
    5. the grounds on which the petition was being presented; and
    6. the name and address of the advocate, if any, for the Petitioner which had to be the address for service.
  2. The petition indicated the date when the elections were held, August 8, 2017, in paragraphs 3, 6, 7, 36, 39 & 65, well as in the 1st Petitioner's supporting affidavit.
  3. The petition indicated the date of the declaration of results as August 12, 2017 in paragraphs 6 & 8. The question as to whether results were declared on that date was a matter of evidence.
  4. The Court record showed that there were two supporting affidavits sworn by the 1st Petitioner and both were stamped and filed on September 8, 2017. The content of the affidavits was the same except that one was signed and contained an additional 48th paragraph indicating that the 2nd Petitioner authorized the 1st Petitioner to swear the affidavit. The other affidavit had 47 paragraphs and was unsigned. The Petitioner's counsel stated that the correct affidavit was signed and served in Court and to parties. The Court placed reliance on that fact and found that there was a proper affidavit of the 1st Petitioner in support of the petition.
  5. The question as to whether the petition failed to show how cited provisions of the Constitution were violated, was a matter to be determined upon consideration of the evidence that the Petitioners would offer in support of the averments made in the petition.
  6. Consistently, the 2nd Petitioner's details did not appear in all the pleadings. His name, address and advocate's particulars were not provided. In its content, the petition made reference to one Petitioner. Therefore, the petition violated rule 8(1)(e) of the Elections Act (Parliamentary and County Elections) Petitions Rules, 2017. However, that violation was not consequential to the substance of the petition.
  7. It was important that the 2nd Petitioner was an identifiable party in the title citation. The 2nd Petitioner swore an affidavit dated and signed in September 8, 2017, authorizing the 1st Petitioner to swear the supporting affidavit on his behalf. That was done in compliance with rule 12(1)(b) of the Elections Act (Parliamentary and County Elections) Petitions Rules, 2017.
  8. The 1st Petitioner made reference to exhibits marked as "JM" in his supporting affidavit. The exhibits did not come after the supporting affidavit; they were attached after other affidavits in the bundle. That would not dent the substance or competency of the deposition but pointed to the untidiness in the organization of pleadings.
  9. Rule 5 of Elections Act (Parliamentary and County Elections) Petitions Rules, 2017 gave the Court discretion to determine the question on the effect of non-compliance with the rules in accordance with article 159(2) of the Constitution of Kenya 2010.
  10. There were two views on whether a Deputy Governor ought to be joined as a party to an election petition. On one hand some Courts have held that the Deputy Governor ought to be joined and failure to do so would render the petition defective. The Courts stated that the position of Deputy Governor was elective and that the election of the Governor and his Deputy was on one ticket. Under that view, it was stated that a successful election petition would require the removal of both the Governor and his Deputy from office and that a Deputy Governor would assume office in the case of a vacancy in the office of the Governor. It was therefore necessary for a successful petition to relate to both the Governor and his Deputy who would be afforded a right to be heard on their removal from office.
  11. The other view was that a Deputy Governor was not a necessary party to an election petition which challenged a gubernatorial election. Under the view, the Deputy Governor was not directly elected by the electorate in a County. He could only assume office if there was a vacancy in the office of the Governor within the terms of article 182 of the Constitution. Where the validity of the Governor’s election was successfully challenged, under that view, both the Governor and his deputy would leave office.
  12. Unlike a Governor, the Deputy Governor was not directly elected. Under article 180(1) of the Constitution, a Governor was directly elected by registered voters of a County. A Governor, unlike the Deputy Governor, had to be nominated by a political party through party primaries or present himself as an independent candidate. The Governor would then have to be cleared by the IEBC to be eligible to stand in an election.
  13. The Deputy Governor's entry point was nomination by a person who was a candidate for the seat of Governor. Under article 180(6) of the Constitution of Kenya 2010, the IEBC was directed not to carry out separate elections for the position of Governor and Deputy Governor. The IEBC was required to declare the candidate nominated by the person elected as County Governor to have been elected as the Deputy Governor.
  14. Section 2 of the Elections Act defined an election as a presidential, parliamentary or County election and it included a by-election while it defined a County election as one relating to the election of a County Governor or a member of a County Assembly. A Deputy Governor was not included in the definition.
  15. Article 182(1)(e) of the Constitution of Kenya 2010 related to the assumption of office of Governor by the Deputy Governor in cases of a vacancy in the office of the Governor. However, the consequences of a successful election petition were not within the circumstances contemplated for assumption of office under article 182 of the Constitution. The nullification of an election would mean that the Governor and his Deputy no longer had the legal mandate to hold their respective positions and the Deputy Governor could not assume office.
  16. No allegation which required an answer had been made against the Deputy Governor. It was noteworthy that in the cases where such an issue was raised, the Deputy Governors made no attempt to join the proceedings. Failure to join the Deputy Governor as a party to the proceedings was not a violation of the right to a fair trial.
  17. The Deputy Governor was not a mandatory party to an election petition challenging a gubernatorial election. Failure to join a Deputy Governor to an election petition would not invalidate the petition.

Preliminary Objection by the 1st and 2nd Respondents dismissed & application by the 3rd Respondent dismissed.

PUBLIC FINANCE Amendments made to Nyeri County budget estimates for the financial year 2016/2017 by the County Assembly of Nyeri are unconstitutional.

Paul Mwangi Ngiria & 19 others v Governor, Nyeri County & 3 others
Petition No 13 of 2016
High Court at Nyeri
T Matheka, J
September 6, 2017
Reported by Beryl A Ikamari

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Public Finance-County Government budgetary process-extent of the role of the County Assembly in considering budget estimates-whether the County Assembly could make amendments to budget estimates which were not within the County Assembly's recommendations for the County Fiscal Strategy Paper (CFSP)-whether the amendments made by the Nyeri County Assembly to budget estimates for the financial year 2016/2017, which did not relate to its recommendations with respect to the CFSP, were within the requirements of the law-Public Finance Management Act, No 18 of 2012, sections 133(1), 131(3) & 131(6); Public Finance Management (County Government) Regulations 2015, regulations 25(1) (f) and 37(1).
Constitutional Law-separation of powers-role of the County Executive and the role of the County Assembly-assumption of a role reserved in law to a County Executive Committee member for finance by the County Assembly-effect of the publication of budget estimates by a County Assembly where the law provided for publication of such estimates to be done by the County Executive Committee member for finance-Public Finance Management Act, No 18 of 2012, section 131(6).
Constitutional Law-principles of good governance-public participation-notice of a public participation forum-notification requirements in relation to a change in venue of a public participation forum-whether a 1 day notice of a change in venue of such a forum would satisfy the requirements of facilitating public participation-Constitution of Kenya 2010, article 10; Nyeri County Public Participation Act, 2015, section 17(2).

Brief facts:
The Petitioners sought to prevent an appropriation bill relating to Nyeri County's budget estimates for the year 2016/2017 from being enacted. They stated that the proposed law went against the doctrine of the rule of law, the doctrine of public participation and the doctrine of separation of powers. They elaborated that the bill failed to adhere to the provisions of the Constitution of Kenya 2010, the Public Finance Management Act, the Public Finance Management (County Governments) Regulations (2015), the County Governments Act and the Nyeri County Public Participation Act 2015. The Petitioners said that the bill would have detrimental effects on the people of Nyeri County and it would greatly affect service delivery at the County.
The Petitioners said that the budget process for Nyeri County for the financial year 2016/2017 was initiated in accordance with section 125 of the Public Finance Management Act. Part of the requirements of section 125 of the Public Finance Management Act was public participation. Between January 12, 2016 and January 15, 2016, in each of the wards in Nyeri County, public participation forums were held and members of the public participated in them. A list of ward priorities was prepared for implementation in the budgetary process and it was used to draft the County Fiscal Strategy Paper (CFSP) 2016. The County Government of Nyeri drafted the CFSP 2016 which was approved by the Nyeri County Assembly with recommendations that the proposed ceilings in the CFSP be adopted without amendments. The County Assembly passed a resolution to adopt the CFSP without amendments.
The Nyeri County Government then drafted the County Government of Nyeri budget estimates for the financial year 2016/2017 and submitted them to the Nyeri County Assembly in April 2016. The County Assembly's Sectoral Committee and the Budget and Appropriation Committee discussed it with a view to giving recommendations. The Budget and Appropriation Committee called for a public participation forum on June 17, 2016 at Wambugu Farmers Training Centre but a day before the meeting, the venue was changed to YMCA Hall in Nyeri Town. The Petitioners alleged that the result of the change of the venue was that it limited public participation and violated legal provisions on public participation.
After having the public participation forum, the Nyeri County Assembly's Budget and Appropriations Committee, made numerous changes to the budget estimates and some changes allegedly went contrary to the law. The County Assembly increased and reduced numerous expenditures in the budget beyond the statutory limit of 1 % of the Vote's ceiling as provided for in regulation 37(1) of the Public Finance Management (County Governments) Regulations. Additionally, the County Assembly's budgetary allocation was increased to 9.5% of the total revenue for the County contrary to regulation 25(1)(f) of the Public Finance Management (County Governments) regulations which provided that approved expenditures for a County Assembly would not exceed 7% of the total revenues of the County Government or twice the personal emoluments of that County Assembly, whichever was lower. It was also alleged that the Committee usurped the function of the County Executive by identifying and selecting projects that would be implemented without those projects having been selected by members of the public.

Issues:

  1. Whether in making amendments to the budget estimates for the financial year 2016/2017, the County Assembly of Nyeri, went beyond its powers and violated the doctrines of public participation, rule of law and separation of powers.
  2. What were the legal requirements as to notice in relation to a change in venue of a public participation forum in Nyeri County?
  3. What nature of remedies were appropriate?Read More...

Held:

  1. In considering budget estimates, the County Assembly was not a mere rubberstamp. Under section 133(1) of the Public Finance Management Act, the County Assembly was empowered to consider the budget estimates with a view to approving them, with or without amendments. Under section 131(3) of the Public Finance Management Act, the County Assembly could make amendments to budget estimates only if they were in accordance with resolutions adopted regarding the County Fiscal Strategy Paper (CFSP) and if an increase in expenditure in a proposed appropriation was balanced by a reduction in expenditure in another proposed appropriation and any proposed reduction in expenditure was used to reduce the deficit.
  2. Amendments to the budget estimates by the County Assembly would have to be for the purpose of aligning estimates with their recommendations for the CFSP. Those amendments were not a leeway which allowed the County Assembly to re-open the budgeting process.
  3. The County Assembly went beyond the requirements of section 131 of the Public Finance Management Act in amending the budget estimates. The grounds given for the amendments was public opinion offered in the public participation forum of June 17, 2016 and the report of the Controller of Budget on Budget Estimates for the FY 2016/2017 as "unproductive expenditure." Those grounds did not comprise what was envisaged in section 131 of the Public Finance Management Act.
  4. When the County Assembly took the role of publishing budget estimates, it violated section 131(6) of the Public Finance Management Act which placed that role on the County Executive Committee member for finance. Therefore, the County Assembly violated the doctrine of separation of powers.
  5. The Respondent made adjustments to the budget in excess of powers given to it by the law. To that extent, there was a violation of the doctrine of the rule of law. In making the amendments, there was a failure to comply with regulations 25(1) (f) and 37(1) of the Public Finance Management (County Government) Regulations 2015. Under regulation 37(1), for example, where a County Assembly approved changes in the annual estimates of budgets under section 131 of the Public Finance Management Act, any increase or reduction in expenditure of a Vote would not exceed 1% of the Vote's ceiling. A report dated June 30, 2016 showed that numerous Votes were reduced or increased beyond that threshold.
  6. Section 17(2) of the Nyeri County Public Participation Act provided for a seven-day mandatory notice with respect to a proposed public participation forum. The County Assembly of Nyeri issued a notice dated June 10, 2016 for a public participation forum to be held on June 17, 2016 at Wambugu Agricultural Training Centre. However, on June 16, 2016, it issued another notice changing the venue to YMCA Hall in Nyeri Town.
  7. Public participation involves engagement with the citizens who have been accorded the effective opportunity and sufficient information to enable them express their concerns, their fears and to make demands if need be. Under the Public Finance Management Act, there were various stages at which public views were to be sought and considered.
  8. With respect to approving the budget estimates, the Nyeri County Assembly called for one public participation forum at Nyeri Town. The notice for the new venue of the meeting did not comply with legal requirements. It was one meeting and there was no evidence of such meetings in other wards and what was sought in the meeting was referred to as the public opinion of the public participation forum. Public participation was not a mere formality of calling a meeting to hear from people. There had to be proper engagement with materials, proper information, proper notices and concrete feedback which could not just entail an amorphous "public opinion." The participation of the public had to be clear and reasonable.
  9. What happened on June 17, 2016 at YMCA Hall in Nyeri Town did not amount to public participation of the people of Nyeri County. There was one forum, whose attendance was unknown and whose feedback was only reported as “public opinion.” The County Assembly of Nyeri, contravened the doctrine of public participation.
  10. At the time of the judgment, the period relating to the 2016/2017 financial year had passed and a new County Assembly was in place. There was also a new Governor and County Government for Nyeri County. Hence some prayers were spent.
  11. It was clear that the County Assembly ought to be reminded of its place and role in the budgetary process, so that in future it would adhere to the constitutional values and principles of governance and align its actions to the guiding principles set out in all the legislation on management of public finances.

Petition allowed.

CRIMINAL PROCEDURE The Basis of Active Participation of Victims in Criminal Proceedings through Cross Examination of Witnesses

Leonard Maina Mwangi V. Director of Public Prosecutions and 2 Others
Criminal Case No. 57 of 2016
High Court at Nairobi
Lesiit, J
May 24, 2017
Reported by Robai Nasike Sivikhe

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Criminal Procedure- participants in criminal proceedings- participation of victims in criminal proceedings- who could be defined as a victim in criminal proceedings- whether a victim had the right to actively participate in criminal proceedings- what were the factors that courts would consider before allowing a victim to participate in criminal proceedings- what was the scope and extent of participation of victims during criminal proceedings- Constitution of Kenya, 2010, articles 25 (c), 27 (1), 50 (1), 50 (2) &50 (9); Victim Protection Act, No 17 of 2014, sections 2, 4 (2) (b), 9 (1), 9 (2), 10 , & 13; Sexual Offences Act, No. 3 of 2006, section 33 and Rome Statute of the International Criminal Court, 1998, article 68 (3)
Evidence Law- examination of witnesses- cross-examination- cross examination of witnesses by advocates watching brief for the victims- whether a victim’s participation in criminal proceedings entailed cross-examination of witnesses- to what extent would the cross examination of witnesses by victims be undertaken
Constitutional Law- fundamental rights and freedoms- right to fair trial- active participation of victims in criminal proceedings- whether participation of victims in criminal proceedings compromised an accused person’s right to fair trial.

Brief facts:
An application seeking to limit the role of victims during the criminal proceedings was instituted by the 4th accused person. The Applicant sought orders that would bar the advocate watching brief for and on behalf of victims from cross-examining any witnesses in the proceedings and the expunging of the cross-examination by advocates watching brief for and on behalf of the victims and or any evidence introduced on record pursuant to such cross-examination. The application was premised on the grounds that the Applicant was apprehensive that cross-examination of witnesses by the advocate watching brief for the victims was prejudicial to the accused and was not backed by any provision of the law and violated the principles of fair hearing. It was contented that in criminal proceedings advocates watching brief had no locus standi to cross-examine witnesses or at all, and that such cross-examination violated the mandate of the Director of Public Prosecution under article 157(4).

Issues:

  1. Who could be defined as a victim in criminal proceedings?
  2. Whether a victim had the right to actively participate in criminal proceedings.
  3. What were the factors that courts would consider before allowing a victim to participate in criminal proceedings?
  4. What was the scope and extent of participation of victims during criminal proceedings?
  5. What circumstances would lead the Court to consider the victim’s views and concerns.
  6. Whether a victim’s participation in criminal proceedings entailed cross-examination of witnesses.
  7. Whether participation of victims in criminal proceedings compromised an accused person’s right to fair trial. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 25 (c)
25. Fundamental Rights and freedoms that may not be limited
Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

(c) the right to a fair trial;

Article 27 (1)
27. Equality and freedom from discrimination
(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.

Article 50 (1)
50. Fair hearing
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Article 50 (9)
50. Fair hearing
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.

Victim Protection Act, No 17 of 2014
Section 2
2. Interpretation
(1) In this Act, unless the context otherwise requires—
"victim" means any natural person who suffers injury, loss or damage as a consequence of an offence;

Section 4 (2) (b)
4. General Principles
(2) Subject to subsection (1), a court administrative authority or person performing functions under this Act shall ensure that—

(b) every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken;

Section 9 (1) & (2)
9. Rights during the trial process
(1) A victim has a right to —

(a) be present at their trial either in person or through a representative of their choice;
(b) have the trial begin and conclude without unreasonable delay;
(c) give their views in any plea bargaining;
(d) have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;
(f) have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and
(g) be informed of the charge which the offender is facing in sufficient details.

(2) Where the personal interests of a victim have been affected, the Court shall—
(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b) ensure that the victim's views and concerns are presented in a manner which is not—

(i) prejudicial to the rights of the accused; or
(ii)inconsistent with a fair and impartial trial.

Section 10
10. Right to protection
A victim has a right to—

(a) be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;
(b) have their safety and that of their family considered in determining the conditions of bail and release of the offender; and
(c) have their property protected.

Section 13
13. Victim as a complainant
Where a victim is a complainant in a criminal case, the victim shall, either in person or through an advocate be entitled to-

(a) subject to the provisions of the Evidence Act, (Cap. 80), adduce evidence that has been left out;
(b) give oral evidence or written submission.

Sexual Offences Act, No 3 of 2006
Section 13
33. Evidence of surrounding circumstances and impact of sexual offence
Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove—
(a) whether a sexual offence is likely to have been committed—

(i) towards or in connection with the person concerned;
(ii) under coercive circumstances referred to in section 43; and

(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.

Rome Statute of the International Criminal Court, 1998
Article 68 (3)
Article 68 Protection of the victims and witnesses and their participation in the proceedings

3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

Held:

  1. In Kenya, the place and role of a victim in criminal proceedings has been evolving. Initially, victims were silent observers in court, and were only visible as witnesses and where represented by an advocate through watching brief. In watching brief, counsel lacked the right of audience and could only channel concerns through the prosecution, except in inquests or enquiries where the victims counsel was allowed to cross-examine witnesses. That position has since changed. Developments in the law increased recognition of victims of crime in the trial process. That position was heralded by the Sexual Offences Act which formally recognised the victim in its definition of a complainant.
  2. The Sexual Offences Act under section 33 created an opportunity for consideration of statements of victims in determining the commission of an offence and for the determination of an appropriate sentence. Victim impact statements were eventually provided for in the Sexual Offences Regulations. Later amendments to the Criminal Procedure Code through Act No. 5 of 2003 introduced victims in the criminal trial process. The Code was more elaborate in providing for an expanded definition of a victim, as well as the place of Victim Impact Statements in the trial process, most notably to inform the court before granting bail and also before passing of sentence. That progression made its way in the law before the promulgation of the Constitution.
  3. The progression in the recognition of victims in the trial process did not end with the amendment of the Criminal Procedure Code. A firm position was realized in the recognition of victims in the criminal trial process after the promulgation of the Constitution, 2010. It received constitutional underpinning under article 50(9) which required Parliament to enact legislation providing for the protection, rights and welfare of victims of offences. It was further given statutory underpinning under the enactment of the Victim Protection Act in 2014. The enactment of the Victim Protection Act was deliberately to give effect to article 50(9) of the Constitution. The Victim Protection Act codified the rights of victims in the justice system beyond the trial process.
  4. It was not in dispute that a victim had the right to participate in criminal proceedings. Section 4 of the Victim Protection Act set out the general principles that would guide the Court in dealing with a question of the rights and welfare of a victim. Section 4(2)(b) in that regard enjoined the Court to ensure that every victim was, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her was taken.
  5. Section 9(1) of the Victim Protection Act elaborated on the rights of a victim during the trial process. However, that provision had not expressly elaborated on the right to actively participate in the sense of presenting or challenging evidence in court. That right was recognised in section 9(2) which also limited the participation to instances where the personal interests of a victim had been affected. The participation could not prejudice the rights of an accused to a fair trial, and could not be inconsistent with a fair and impartial trial.
  6. Further opportunity for participation of a victim was recognised under section 13 of the Victim Protection Act. The participation was limited to an instance where a victim was a complainant. The victim in the instant case was allowed to adduce evidence that had been left out, and to make submissions. Adducing evidence was also subject to the Evidence Act.
  7. The main contention was that victims should not be allowed to participate to the extent of cross-examination of witnesses. Under section 10(1) of the Victim Protection Act, the court could consider the victims views and concerns in the proceedings where the personal interests of a victim were affected. Section 2 of the Victim Protection Act defined a victim as any natural person who suffered injury, loss or damage as a consequence of an offence.
  8. An assessment of whether the personal interests of a victim was affected had to be viewed in the context of who a victim was. The victims in the instant case were the deceased one who was an advocate, his client and a taxi driver. Those were the subject matter of the proceedings. The victims were not limited to the three but included those who suffered loss and naturally included the wives and children of the deceased persons, their parents and others affected directly by those deaths like the Law Society of Kenya, Taxi Operators and Boda Boda Riders who were the colleagues of the three deceased persons in the instant case.
  9. Apart from accused rights and public interest issues, there were other categories of rights which the court was mandated not to lose sight of. Those were the rights of the victims of the offence or crime. The Victim Protection Act gave a broad definition of who were victims. They included the families of the ones against whom the offence was committed. It also included those directly or indirectly affected by the offence. The category of persons before the High Court presented as victims qualified and met the threshold of a victim as defined under section 2 of the Victim Protection Act.
  10. The victims thus qualified to participate in the criminal trial of the accused in the scope recognised by the law, and also the Victim Protection Act by having their views and concerns considered by the Court. It was well within the law in the instant case for the victims to participate in terms of adducing evidence as contemplated under section 9 and 13, but only to the extent that such participation had not compromised the accused persons’ right to fair trial and the fair trial. Adducing of evidence had to be within the rules of evidence as set out in the Evidence Act.
  11. There was no other purpose for supplying the victim with statements comprising the evidence the defense and the prosecution intended to rely on, allowing them to be present at the trial and to be represented by counsel and have their views presented to court just as a formality. The purpose was to have prior information about the case before it commenced, and the reason for that was to aid them to knowledgeably prepare for the trial. Gone were the days they sat pensively in court, helpless and voiceless. The latest developments in the law and the promulgation of the Constitution 2010 increased the space for victims to participate actively at the trial and to be fully informed about the case. The victim had to determine what nature their participation in a case would take. Where they decided to play an active role, then it was for the court, in its discretion to determine the scope and level of participation.
  12. The participation of victims in criminal trial proceedings as recognised in Kenyan laws was in accord with international developments that had embraced the place of victims in the trial process. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power recognised the right of victims to access justice and fair treatment. The Rome Statute also recognised victims’ participation under article 68(3). The Rome Statute allowed victims and their legal representatives to participate in proceedings at the International Criminal Court (the ICC) by calling and questioning witnesses, subject of course to applying to do so through the court.
  13. Victims of crime had a right to participate in criminal proceedings. The Victim Protection Act allowed for presentation and recognition of victim's views and concerns to be presented and considered at stages of the proceedings as determined to be appropriate by the court. Furthermore, a victim was allowed to adduce evidence which had been left out. That participation had to be realized within the confines of fair trial guarantees, and subject to the Evidence Act.
  14. The Victim Protection Act, under section 9(1) placed the victim in a unique position in that he had the right to access evidence; both the defense of the accused and the evidence of the prosecution. That placed the victim in an exclusive position in law, since that right had not extended to the prosecution. The rationale behind that provision was two-fold:
    1. It sought to actualize the right of a victim to participate in the proceedings, since there could not be participation without access to the relevant information. The victim in that sense was being viewed as a person distinct from the prosecution.
    2. Participation when actualized in the form the court found appropriate had to be realized within the limits of the evidence before the court in the form of the evidence intended to be relied on by the prosecution and the defense.
  15. The trial Court had to exercise its discretion and determine the level of participation by the victims or their representatives subject to safeguarding the rights of the accused to ensure that the exercise of rights by the victim was not prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial.
  16. Under article 27, the victim was equal before the law and had a right to equal treatment and equal protection before the law. Article 50 (1) provided for the right to have any dispute that could be resolved by the application of the law decided in a fair and public hearing before a court. The Victim Protection Act had several operative words regarding the victims, including ‘to be present at trial…to be represented by counsel…should be heard…had reasonable access to evidence relied upon…raise concerns …’ and others.
  17. All those rights were precursors to active participation by victim, subject to courts direction in court’s discretion, depending with the nature of the case. In the instant case, the Court was assisted by all counsels to the parties in the case, at the Pre-trial Conference. The terms were on record. The question of participation of the victims was raised and addressed during the Pre-trial Conference where parties agreed that victims would be allowed to ask questions to witnesses whenever they found it necessary. That was of course subject to Court’s direction and intervention where necessary, which power the Court exercised throughout the trial both in regard to examination of witnesses by the prosecution and the defense.
  18. The participation of the victim could not be a parallel prosecution. The victim could not appear to be in competition with the Prosecution. He could also not appear to be conducting a parallel prosecution to that of the prosecution. The victim could be allowed to participate at any stage of the proceedings, subject to the limits set in law. The court could set the parameters of that participation in line with the Victim Protection Act, the Constitution and any other relevant law including allowing cross examination of witnesses.
  19. In regard to cross examination, the High Court had to put a rider. The need for having a focused prosecution as opposed to a parallel or competitive one had to be guarded jealously. It was important that whatever cross-examination that took place had to be within what was contained in the evidence provided by the defense and prosecution as the one they intended to rely on. The accused persons could not be taken by surprise or ambushed. A failure to observe that rule would be highly prejudicial to the accused person and could compromise fair trial.
  20. Adducing evidence through cross examination could not be viewed outside the evidence before the Court. Participation by a victim was premised on already existing evidence. The other prerequisite was that such evidence was subject to the dictates of the Evidence Act as to relevance and admissibility, the rights of an accused to a fair trial and requirements of a fair and impartial trial. Therefore, even where the victim had been allowed to cross-examine witnesses thereby adducing evidence, it was not an open cheque, it had to be within the limits set out, and even then there could be no compromise to the standards required of a fair trial.
  21. Participation by victims had not of itself compromised the fair trial guaranteed. It was how such participation was conducted that had to be measured to guard against jeopardizing the rights of an accused, and it was the duty of the court to so ensure. The law recognised and supported victims’ participation so long it did not tip over the right of an accused to fair trial. Furthermore, by participating in the proceedings, a victim’s counsel had not taken over the role of the prosecutor.
  22. The criminal justice system in Kenya placed the right to a fair trial on a high pedestal. An accused person was presumed to be innocent until proved guilty. The accused person was entitled to a fair trial and the court played a pivotal role in that regard to ensure it was actualized. The court played a balanced role in the trial of an accused person; that of a custodian of the law and a guardian of the constitutional safeguards. The trial had to manifestly conform to the requirements of article 50 of the Constitution. In furthering that protection, the court had to take into account the interests of the accused, the victim and the public in whose name criminal proceedings were instituted.
  23. The cross-examination of witnesses by the advocates for the victims neither compromised the accused persons’ right to a fair trial, nor hindered the prosecution’s ability to conduct a focused prosecution of the matter. The cross- examination of witnesses by the counsels for the victims was the best avenue that a victim could use to bring out the evidence that had been left out by the prosecution in the examination in chief, and which evidence was within the statement of the witness supplied to the defense and the victim.
  24. The victims’ right to participation in the trial process subsisted throughout the court process, and was not passive but active within the set limits set. The participation of the victims was a non-derogable right under article 25 of the Constitution.
  25. Under the Victim Protection Act all the court had to satisfy itself was that the person presenting themselves as victim had to as a prerequisite prove their personal interest in the proceedings to the court before they could be allowed to communicate to the court, or to participate at the trial. Other safeguards included whether the victim had sought permission from the court to be a participant in the proceeding; and whether in ensuring the rights of the victims were protected, was it in a manner that was prejudicial to the accused.
  26. The court had to remain vigilant throughout the trial. It had to satisfy itself:
    1. That the victim in their line of cross-examination were not infringing on the rights of the accused.
    2. That the victims’ participation had not infringed on the right to fair trial.
    3. That the accused were not ambushed or embarrassed by new evidence being introduced by the victims, which had not been supplied to them.
  27. Having settled the rules of engagement at the Pre-Trial Conference stage, there was no need for the victims to always seek permission from the court before they cross-examined witnesses. The Court retained the right to intervene and stop or give directions on the nature of cross-examination where necessary. In order to save time and ensure that the accused were not forced to seek leave to further cross-examine a witness after cross-examination by the counsel for the victims, it was best to have the advocates for the victims to go first and cross-examine the prosecution witness immediately after examination –in-chief by the prosecution as a result of new evidence.
  28. On the issue of the expunging of the record touching on the victims participation already recorded in the Court proceedings, the Applicant had not shown what prejudice the accused had suffered as a result of that participation, or how their rights under article 50 had been affected or violated, or that the participation of the victims was inconsistent with a fair and impartial hearing.

Application dismissed.

  1. Victims should continue to participate in the proceedings through their appointed counsel as agreed at the pre-trial conference.
  2. In regard to the order of examination of prosecution witnesses, counsel for the victims should if necessary examine the prosecution witnesses immediately following examination in-chief by the prosecution and before the defense.
  3. The advocates for the victims would go first and cross-examine the prosecution witnesses immediately after examination–in-chief by the prosecution.

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