Weekly Newsletter 010/2018

Weekly Newsletter 010/2018



Kenya Law

Weekly Newsletter


How a vacancy in the Office of Deputy Governor would be filled.
In re Speaker, County Assembly of Embu
Reference No 1 of 2015
Supreme Court at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu & I Lenaola, SCJJ
March 9, 2018
Reported by Beryl A Ikamari
Download the Decision
 
Jurisdiction-jurisdiction of the Supreme Court-advisory opinion jurisdiction of the Supreme Court-threshold to be met for the exercise of advisory opinion jurisdiction by the Supreme Court-where an advisory opinion was sought concerning the assumption to office by a Deputy Governor after the occurrence of a vacancy in the Office of the Governor, with respect to the oath to be administered, the new vacancy that would arise in the Office of the Deputy Governor and the timelines applicable to the filling of the vacancy and assumption of office-Constitution of Kenya 2010 article 163(6) and 182(2).
Constitutional Law-interpretation of the provisions of the Constitution-County Government-Office of Governor-vacancy in the Office of Governor-assumption of the Office of Governor by the Deputy Governor where there was a vacancy in the Office of the Governor-timelines applicable to that assumption of office and the nature of the oath that was to be administered in order to assume office as Governor-Constitution of Kenya 2010, articles 259, 149, 182 & 74; County Government Act, No 17 of 2012, section 30(1).
Constitutional Law-interpretation of the provisions of the Constitution-County Government-Office of Deputy Governor-vacancy in the Office of Deputy Governor-manner of dealing with a vacancy in the Office of the Deputy Governor-analogy between the Office of Deputy President and the Office of Deputy Governor-whether the Office of the Deputy Governor would remain vacant until the next general election where a vacancy arose after the Deputy Governor assumed office as a County Governor-Constitution of Kenya 2010, articles 259, 149, 182, 179(1), 179(4), 179(5), 180(5) & 180(6); County Government Act, No 17 of 2012, section 32.
 
Brief facts :
On January 28, 2014, the Embu County Assembly approved an impeachment motion against the Embu Governor and forwarded the resolution to the Senate for approval. The Governor successfully challenged the impeachment proceedings and obtained a judgment from the High Court which was affirmed at the Court of Appeal. The judgment did not bar the County Assembly or Senate from conducting future impeachment proceedings provided that those proceedings were conducted in accordance with the law.
In April 2014, fresh impeachment proceedings were commenced against the Governor. On May 13, 2014, the Speaker of the Senate published Gazette Notice No. 3222 of 2014, which contained the Senate's decision to impeach the Governor. The impeached Governor went to the High Court to challenge the constitutionality of his impeachment.
The Applicant, the Speaker of the County Assembly of Embu, sought advice on the assumption of Office of Governor by the Deputy Governor after the impeachment of the Governor, how the oath for assumption of office would be administered, the filling of the vacancy in the Office of the Deputy Governor after the Deputy Governor assumed the Office of Governor and the timelines applicable to the assumption of the Office of Governor after the impeachment of the Governor. After unsuccessfully seeking advice from the Independent Electoral and Boundaries Commission and the Attorney General, the Applicant filed a reference seeking the Supreme Court's advisory opinion.
 
Issues:
  1. Whether the Office of Deputy Governor would remain vacant upon assumption of Office of Governor by the Deputy Governor in situations where the Office of Governor had become vacant.
  2. In what manner would a vacancy in the Office of the Deputy Governor be filled?
  3. Which oath would be administered where a Deputy Governor was assuming the Office of Governor after a vacancy arose in the Office of Governor?
  4. What timelines were applicable to the filling of vacancies in the Office of Governor and Deputy Governor, where the Deputy Governor was required to assume office as Governor?
  5. When would the Supreme Court exercise its advisory opinion jurisdiction?
 
Held:
  1. The reference met the constitutional threshold for the exercise of the Supreme Court's advisory opinion jurisdiction under article 163(6) of the Constitution. It was a matter concerning County Government, the Applicant, being the Speaker of Embu County, was a state organ under article 178 of the Constitution, the issues raised were not subject to proceedings in a lower Court and the Applicant sought an opinion from the Attorney General unsuccessfully. The reference raised issues of great public importance, considering that the country had held a recent general election.
  2. Article 182(2) of the Constitution provided for the terms applicable to filling a vacancy in the Office of the County Governor. The provision contemplated certain scenarios where a vacancy in the Office of the Governor could occur, namely;
    1. Where the Office of the Governor fell vacant, the DeputyGovernor would assume that office;
    2. Where there was a vacancy in both theOffice of County Governor and that of Deputy Governor, the Speaker of the County Assembly would assume office as Governor for a period of 60 days, within which an election to that office would be held; and,
    3. Where there was a vacancy in the Office of Governor and the Deputy Governor was unable to hold office in an acting capacity, the Speaker of the County Assembly would assume office and act as Governor for a period of 60 days within which an election to the Office of Governor would be held.
  3. Article 182(2) of the Constitution created a pecking order. It provided that where a vacancy in the Office of Governor occurred, the first to take over was the Deputy Governor and in his absence, the Speaker of the County Assembly would take up the position for a limited period of 60 days, pending the conduct of an election.
  4. The Constitution was silent on how to fill the position of Deputy Governor in the event of the occurrence of a vacancy. There was a lacuna in law with respect to filling such a vacancy.
  5. The Supreme Court had the mandate to interpret the Constitution, under article 259 of the Constitution, in a manner that promoted the Constitution's purposes, values and principles, advanced the rule of law, permitted the development of the law and contributed to good governance.
  6. The relevant question in the given context was whether the Constitution contemplated that the Office of Deputy Governor would remain vacant upon the assumption of Office of Governor by the Deputy Governor. The provisions of article 180(5) & 180(6) of the Constitution were to the effect that upon the election of the Governor, the IEBC would declare that the elected Governor's nominee for the post of Deputy Governor as the Deputy Governor. The Office of Deputy Governor depended on the election of the Governor and there was no independent election for a Deputy Governor. Therefore, the Constitution did not contemplate the filling of a vacancy in the Office of a Deputy Governor through a direct election to that office.
  7. Under the provisions of article 179(1), 179(4) and 179(5) of the Constitution, as read together with section 32 of the County Government Act, the Deputy County Governor would serve as the Deputy Chief Executive of the County, a member of the County Executive Committee, and would act as the County Governor, in the absence of the Governor. Those roles were crucial to the operations of a County Government. It was inconceivable that, constitutionally, they could remain fallow until the next cycle of a general election. Therefore the Office of Deputy County Governor ought not to remain vacant until the next general election upon the assumption of the Office of Governor by the Deputy Governor.
  8. An analogy between the Office of the Deputy Governor and the Office of Deputy President could be drawn. The Deputy President would be a nominee of a successful presidential candidate as provided for under article 148 of the Constitution. Article 149 of the Constitution provided for the mode of filling a vacancy in the position of Deputy President. Within 14 days after the occurrence of the vacancy, the President would nominate a person to fill the vacancy, and the National Assembly would vote on the nomination within sixty days after receiving it.
  9. Article 259 of the Constitution provided that every provision of the Constitution had to be construed according to the doctrine that the law was always speaking. The principle would require a reading of article 182 of the Constitution alongside article 149 of the Constitution. Where there was a vacancy in the Office of Deputy County Governor, within 14 days the Governor would nominate a person to fill such a vacancy and the County Assembly would vote on the nomination within 60 days after receiving it. Where there was a vacancy in both the offices of County Governor and Deputy County Governor at the same time, the Office of the Deputy County Governor would remain vacant until the election of a new Governor. The new Governor would nominate a person to fill the vacancy within fourteen days after assuming office. The County Assembly would vote on the nomination within sixty days after receiving it. That position would be applicable in situations where the Office of Deputy Governor became vacant as contemplated by the Constitution; death, resignation or impeachment.
  10. The provisions of article 74 of the Constitution and section 30 of the County Government Act, were applicable to a Deputy County Governor who assumed the Office of Governor under article 182(2) of the Constitution. The new Governor would take and subscribe to the oath or affirmation set out in the Schedule to the County Government Act before assuming office.
Kenya Law
Case Updates Issue 010/2018
Case Summaries

LAND LAW Failure to Obtain the Consent of the Land Control Board Within The Stipulated Time Merely Rendered a Controlled Dealing Voidable as Opposed to Being Void.

Isaac Ngatia Kihagi v Paul Kaiga Githui [2017] eKLR
ELCA 56 of 2014
Environment and Land Court at Nyeri
L. N. Waithaka, J
December 19, 2017
Reported by Ribia John

Download the Decision

Land Law – controlled dealings - Land Control Board (LCB) – consent from the LCB – effect of not obtaining a consent from the LCB within the stipulated statutory time lines - whether the import of failure to obtain the consent of the Land Control Board within the stipulated time as required under section 6(1) of the Land Control Act was to render the controlled dealing void – Land Control Act section 6(1).
Jurisdiction – jurisdiction of the Magistrate’s Court – jurisdiction of the Magistrate Court over matters touching on land – jurisdiction to interpret sale agreements - where the claimant had entered into a void sale agreement - whether the Magistrates Courts had the jurisdiction to evict a Plaintiff; who inter alia approached the Court for the completion of a sale agreement so as to validate his occupation of the land; where it found that the sale agreement was void.

Brief facts:
The Appellant had entered into a sale agreement in which the Respondent was to sell to him a portion of the Respondent’s parcel of land. The agreement provided that the buyer would take possession of the portion sold immediately after paying the deposit, which the buyer subsequently paid.
It was the Appellant’s case that despite having met his obligations under the sale agreement and being ready and willing to fulfil other obligations under the agreement, the Respondent failed, refused and neglected to divide the suit property. For those reasons the Appellant filed the instant suit at the Subordinate Court seeking orders of specific performance to enforce the agreement or to order reimbursement of the monies paid due to the agreement.
The Subordinate Court heard the matter and held that the transaction was void; as a result the Plaintiff was evicted from the suit land. However the Subordinate Court held that the Plaintiff was entitled to a refund of the deposit. Aggrieved by the decision the Appellant filed the instant appeal in which he claimed that the Court had no jurisdiction to entertain a claim of eviction and that the Subordinate Court erred by shifting the burden of proof.

Issue:

  1. Whether the import of failure to obtain the consent of the Land Control Board within the stipulated time as required under section 6(1) of the Land Control Act was to render the controlled dealing void.
  2. Whether the Magistrates Courts had the jurisdiction to evict a Plaintiff; who inter alia approached the Court for the completion of a sale agreement so as to validate his occupation of the land; where it found that the sale agreement was void. Read More...

Relevant Provisions of the Law
Land Control Act
Section 6(1)
6 Transactions affecting agricultural land
1) Each of the following transactions that is to say—

(a)the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;
(b)the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;
(c)the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area,
is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

Section 8(1)
8Application for consent
1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto:
Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

Section 9(2)(a)
9 Granting or refusal of consent
2) Where an application for the consent of a land control board has been refused, then the agreement for a controlled transaction shall become void—

(a) on the expiry of the time limited for appeal under section 11; or

Held:

  1. The duty of the first Appellate Court is to evaluate afresh the evidence adduced before the Subordinate Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
  2. The order for eviction was incidental to the issue raised in the suit. That being the case, the Subordinate Court had the power to order for eviction of the Appellant once it found his occupation of the suit property was unlawful. The cases cited in support of the Appellant’s contention that the Court had no jurisdiction to grant an order for eviction were distinguishable from the circumstances obtaining in the instant case in that the claim herein was not merely for eviction of the Appellant but for determination of the rights of the parties to the suit property. Once the Court found that the Appellant’s right to the suit property was limited to refund of the consideration that passed between the parties, in line with the Court’s overriding objective under section 1A of the Civil Procedure Rules, the Court was justified in entering judgment for the Respondent as dictated by the circumstances of the case.
  3. It beat logic for the Appellant who had moved the Court either for an order of specific performance or refund of the consideration he had paid in respect of the sale agreement to argue that he would still be entitled to occupy the suit property even after having received a refund of his consideration. If the Court were to do such a thing, it would be tantamount to telling the Appellant that he could eat his cake and still have it; an impossibility.
  4. Whilst the Court had reservations as to whether failure to obtain the Consent of the Land Control Board (LCB) within the time stipulated in law for doing so, owing to existence of many Court of Appeal decisions to the effect that failure to obtain consent within the time stipulated in section 6(1) of the Land Control Act and that either party in a controlled transaction could apply for the consent of the LCB, the Trial Court did not misconstrue the provisions of the Land Control Act and the rules made thereunder but it instead made a proper interpretation of the law.
  5. Although both the High Court and the Court of Appeal had in many decisions held that the import of failure to obtain the consent required under section 6(1) of the Land Control Act was to render the controlled dealing void, the instant Court was of the view, which view owing to the binding nature of decisions of the Court of Appeal had to bow to the decisions of the Court of Appeal, was that the failure of obtain the consent of the LCB within the stipulated time merely rendered a controlled dealing voidable as opposed to being void. A reading of the provisions of the said section 6(1) with the provisions of sections 8 and 9 of the Act made it improbable that it was the failure to obtain the consent of the LCB within 6 months of entering into the controlled dealing which made the dealing void.
  6. Section 6(1) did not provide that the otherwise voided controlled dealing would become void by dint of the provisions of that section but by dint of the provisions of the Act.
  7. Whereas section 8(1) of the Land Control Act required that the application for the consent be made in the prescribed form to the relevant land control board within 6 months of the making of the agreement for the controlled transaction by a party thereto, the proviso under that subsection of the law provided an avenue for breathing life into an otherwise dead transaction; that was not possible.
  8. Since section 8(1) of the Land Control Act recognised that it was possible to breathe life to the otherwise voided transaction, the only reasonable construction that could flow from section 8 of the law giving the High Court power to revive the otherwise voided transaction was that the transaction did not become void but voidable at the lapse of the time provided in section 6(1) of the Land Control Act.
  9. Section 9 appeared to amplify the above interpretation of the law by inter alia providing that where an application for consent of a LCB had been refused, then the agreement for a controlled transaction shall become void on the expiry of the time limited for appeal.
  10. The foregoing notwithstanding, the Court having determined that the position held by the Court of Appeal on the matter was binding on the instant matter, the Court’s interpretation of those provisions of the law was just but food for thought in prospective considerations of the import and purport of section 6 of the Land Control Act as read with section 8 and 9 of the Act by the Courts, especially the Court of Appeal.
  11. An appellate court would not differ with the Subordinate Court on a question of fact unless such finding was based on no evidence or on a misapprehension of the evidence or the Court was shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court was not bound to accept the Subordinate Court’s finding of fact if it appeared either that the Court had clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness was inconsistent with the evidence in the case generally.
  12. The finding of the Subordinate Court was not based on any evidence or misapprehension of the evidence presented before it to warrant interference by the instant Court. A review of the pleadings filed in the instant Court showed that the Respondent had on the onset denied having received the said amount of money and put the Appellant to strict proof of the allegation that he had paid the said amount and that the payment was acknowledged by the Defendant before his advocate. The evidence adduced before the Subordinate Court showed that despite having been given an opportunity to prove that the Defendant indeed received the said amount, the Plaintiff failed to do so by failing to call the advocate who allegedly endorsed the document through which the Respondent allegedly acknowledged having received the said amount, he was unable to name any person who witnessed payment of the money or any instalment in respect thereof. He also gave contradictory evidence concerning payment of that amount of money.
  13. It was expected that the Appellant would at least produce some document(s) concerning its alleged payment of the Kshs. 200,000/- to the Respondent and even name or avail some people who witnessed the payment of the money. The Subordinate Court was justified in holding that failure by the Plaintiff to call the advocate in whose presence the acknowledgement note relied on by the Appellant was signed by the Respondent left the Court with the evidence of the Appellant and the Respondent. The Subordinate Court was also justified in holding that the burden of proving that the Respondent received the Kshs. 200,000/= lay with the Appellant, which burden he failed to satisfy to the satisfaction of the Court.
  14. The burden to proof that the document was forged would only have shifted to the Respondent if and only if the Appellant had discharged the burden of proving that the Respondent indeed placed his signature on the document. Since neither the Appellant nor the Respondent adduced evidence capable of proving the issue raised concerning that acknowledgement note, the matter was left unproven.
  15. The Appellant’s case did not turn on the existence or non-existence of the encumbrance but on the question as to whether parties to the suit fulfilled their respective obligation under the agreement they had entered into.

Appeal dismissed, costs to the Respondent.

CIVIL PRACTICE AND PROCEDURE Statutory Allowance to Prove Locus Standi in a Derivative Action where One had not Adduced Evidence to Prove Locus Standi at the Onset of the Suit.

Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga v Eliud Timothy Mwamunga & Sagalla Ranchers Limited [2017] eKLR
Civil Suit 1 of 2017
High Court at Voi
J. Kamau, J
October 17, 2017
Reported by Ribia John

Download the Decision

Civil Practice and Procedure – preliminary objection – nature of preliminary objection – disputes that may be determined via a preliminary objection - whether a question as to who was a genuine director of a company could be determined via a preliminary objection.
Company Law – derivative action – locus standi to institute a derivative action – evidence to prove locus standi in a derivatve action - whether a derivative action in which an applicant that had not adduced evidence to prove locus standi could be dismissed in limine where section 239 of the Companies Act permitted a court to adjourn the proceedings to enable such an applicant to adduce evidence – Companies Act section 239.

Brief facts:
Following a derivative action filed by the Plaintiffs, the Defendant filed a Preliminary Objection seeking to have the suit dismissed in limine on grounds that the Plaintiff’s did not have the locus standi to file a derivative action as the Plaintiffs were not bona fide shareholders or persons whom shares of the company had been transferred or transmitted to them.

Issues:

  1. Whether a question as to who was a genuine director of a company could be determined via a preliminary objection
  2. Whether a derivative action in which an applicant that had not adduced evidence to prove locus standi could be dismissed in limine where section 239 of the Companies Act permitted a court to adjourn the proceedings to enable such an applicant to adduce evidence. Read More..

Relevant Provisions of the Law
Companies Act
Section 239
Application for permission to continue derivative claim
(
1) In order to continue a derivative claim brought under this Part by a member, the member has to apply to the Court for permission to continue it.
(2) If satisfied that the application and the evidence adduced by the Applicant in support of it do not disclose a case for giving permission, the Court—

(a) shall dismiss the application; and
(b) may make any consequential order it considers appropriate.

(3) If the application is not dismissed under subsection (2), the Court—

(a) may give directions as to the evidence to be provided by the company; and
(b) may adjourn the proceedings to enable the evidence to be obtained.

(4) On hearing the application, the Court may—

(a) give permission to continue the claim on such terms as it considers appropriate;
(b) refuse permission and dismiss the claim; or
(c) adjourn the proceedings on the application and give such directions as it considers appropriate.

Held:

  1. A court ought not to examine and pore over documents before hearing and determining the substantive matter with a view to striking out the proceedings in limine. Article 50 of the Constitution of Kenya, 2010 (Constitution) provided that every person had a right to access a court of law for the determination of a dispute. Notably, article 159(2)(d) of the Constitution also mandated courts to administer justice without undue regard to procedural technicalities.
  2. The issue of the locus standi of the Plaintiffs went to the root of the matter, poring over and examining of their documents could not be avoided as the Court had to be satisfied that they had jurisdiction to institute the proceedings. No busy bodies ought to be permitted to occupy the Court’s time if indeed they were not closely related to a matter. Judicious time is precious and must be guarded jealously.
  3. The Plaintiffs did not initially file any documents to demonstrate how they became directors of the Affected Party. The Plaintiffs were not re-elected on as they were members of the Affected Party. The Plaintiffs could not have been elected as members to the Board of Directors if they were not members of the Affected Party.
  4. The question of who was or was not a genuine director was beyond the scope of the instant preliminary objection as evidence ought to be tendered to establish whether or not elections had been held as required by the law and in accordance with the Articles of Association of the Affected Party and who indeed were the directors.
  5. Section 238 of the Companies Act referred to members instituting derivative actions against majority shareholders. Such members did not need be directors in a company. It was sufficient that they instituted the derivative action in their capacity as members of the company. The Defendant did not adduce any evidence to demonstrate that he was not a majority shareholder and that the proceedings could not be instituted against him in his personal capacity or that the Plaintiffs were not members of the Affected Party. They merely asserted that the Plaintiffs were not directors in the Affected Party.
  6. In the absence of evidence to demonstrate how the Plaintiffs really acquired the locus standi to institute the instant proceedings, section 239 of the Companies Act provided that at the time of considering whether or not to grant an applicant leave to continue with a derivative action, a court had the discretion of adjourning the proceedings to give such an applicant time to adduce evidence to demonstrate that he or she had a cause of derivative action.
  7. Dismissing a suit in limine by would be ill-advised bearing the life line given to an applicant to adduce more evidence at the time of hearing the application for leave to continue with a derivative suit.
  8. The effect of upholding a preliminary objection was to summarily dispose of an entire case without giving a party its day in court. Such summary dismissal or striking out of a case was a draconian issue that had to be exercised with caution and as a last resort.
  9. Disputes between the Plaintiffs, the Defendants and other parties relating to the affairs of the Affected Party and who or who was not a director of the Affected Party had inundated different courts in Voi and Mombasa. The multiple filing of suits and seeking to strike out matters on technicalities was to stop so as to get to the root of the dispute between the parties in the instant case. Dismissing the instant action in limine would have denied the instant Court the opportunity of hearing and determining the real issues that were in dispute or in controversy over the parties.
  10. Upholding the said Preliminary Objection when section 239(3) of the Companies Act permitted a court to adjourn the proceedings to enable an applicant to adduce evidence would be denying the Plaintiffs an opportunity to ventilate their case. The Plaintiffs’ action had not reached the threshold of being dismissed on the grounds the Defendant relied upon.
  11. Upholding the said preliminary objection would be draconian as there appeared to be substantive issues that had emerged that needed to be heard and determined at the time of the hearing of the said notice of motion application.
  12. The question of whether they had a cause of action against the Defendant and if they could sustain the same against him ought to be considered during the hearing of their notice of motion application when the instant Court would consider whether or not leave should be granted for them to continue with the derivative action against him.

Preliminary objection dismissed, costs were to be in the cause.

CRIMINAL PROCEDURE Pleas of Guilty Entered via Abbreviations are Equivocal

Julieta Luvasia & another v Republic [2017] eKLR
Criminal Appeal 36 of 2017
High Court at Kakamega
J Njagi, J
July 20, 2017
Reported by Ribia John

Download the Decision

Criminal Procedure – re-trial – circumstances in which a court will consider a re-trial – where a trial was vitiated by the Subordinate Court’s failure to properly enter a plea - where a trial was vitiated by the Subordinate Court’s failure to convict the Accused persons – Whether a re-trial was to automatically follow where a conviction was vitiated by a mistake of the Subordinate Court for which the prosecution was not to blame
Criminal Procedure – plea – procedure of taking pleas - plea of guilty – where a Subordinate Court used an abbreviation to enter a plea of guilty – whether a plea of guilty that was recorded in initials by the Subordinate Court was unequivocal - whether an Appellate Court could decipher an abbreviation to enter a plea of guilty on behalf of the Subordinate Court – Criminal Procedure Code section 207.
Criminal Procedure – conviction – where an accused person was sentenced by a Magistrate’s Court without being convicted of an offence - whether a sentence that was entered without a conviction was valid.

Brief facts:
The Appellants had appealed against the sentence imposed by the Subordinate Court. At the Subordinate Court they faced two counts; the first being a charge of cutting and removing forest produce without authority contrary to section 52(1)(a) as read with sections 52(2) and 55(1)(c) of the Forest Act and the second being a charge of introducing logging equipment into a State forest without authority contrary to section 52(1) as read with section 52(2) of the Forest Act.
The Appellants had pleaded guilty to the charges and thereafter the lower Court entered “PGE” in the Court file. The Appellants were sentenced without being convicted. Subsequently the Appellants filed the instant Appeal on grounds that the Subordinate Court erred in law and fact by convicting the Appellants on a plea of guilty that was equivocal and in sentencing the Appellants without conviction.

Issues:

  1. Whether a plea of guilty that was recorded via an abbreviation by a Subordinate Court was unequivocal.
  2. Whether an Appellate Court could decipher an abbreviation to enter a plea of guilty on behalf of the Subordinate Court.
  3. Whether a sentence that was entered without a conviction was valid.
  4. Considerations applicable for an order of re-trial to issue.
  5. Whether a re-trial was to automatically follow where a conviction was vitiated by a mistake of the Subordinate Court for which the prosecution was not to blame Read More...

Relevant Provisions of the Law
Criminal Procedure Code
Section 207
207 Accused to be called upon to plead
(1)The substance of the charge shall be stated to the Accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.
(2)If the Accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the Court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:

Provided that after conviction and before passing sentence or making any order the Court may permit or require the complainant to outline to the Court the facts upon which the charge is founded.

(3)If the Accused person does not admit the truth of the charge, the Court shall proceed to hear the case as hereinafter provided.
(4) If the Accused person refuses to plead, the Court shall order a plea of “not guilty” to be entered for him.
(5)If the Accused pleads—

(a) that he has been previously convicted or acquitted on the same facts of the same offence; or
(b) that he has obtained the President’s pardon for his offence,
the Court shall first try whether the plea is true or not, and if the Court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the Accused shall be required to plead to the charge

Held:

  1. The procedure of taking pleas in subordinate courts was provided for under section 207 of the Criminal Procedure Code. The procedure was that:
    1. the charge and the particulars should be read out to the Accused person so far as possible in his own language, but if that was not possible then in a language which he can speak and understand;
    2. the Subordinate Court should then explain to the Accused person all the essential ingredients of the offence charged;
    3. if the Accused then admits all the essential elements, the Subordinate Court should record what the Accused has said, as nearly as possible in his own words, and then formally enter plea of guilty;
    4. the Subordinate Court should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the Accused an opportunity to dispute or explain the facts or to add any relevant facts;
    5. if the Accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the Accused does not deny to alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. That the statement of facts and the Accused’s reply must be recorded.
  2. The Subordinate Court’s record indicated that the proceedings in that case were conducted in Kiswahili language. The Appellants replied to the charges and to the particulars of the charges in Kiswahili. They mitigated to the Court in the same language. The proceedings were conducted in a language that the Appellants understood well.
  3. The Subordinate Court’s record indicated that the charges were read out to the Appellants and each of them replied that the charges were true. Facts were read out to the Appellants who replied that the charges were true. The plea, up to that stage was properly taken.
  4. However instead of the trial Court entering a “plea of guilty”, it entered “PGE”. It was not known what the abbreviation meant but the Appellate Court guessed that they meant “plea of guilty entered.” However, a plea could not be based on assumptions. A guilty plea should not be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal. It was even more so when the Accused faced a serious charge capable of attracting a custodian sentence.
  5. The effect was that the Subordinate Court failed to enter a plea of guilty as required by section 207 of the Criminal Procedure Code. That was a misdirection on the part of the Subordinate Court.
  6. In addition to the Subordinate Court failing to enter a plea of guilty, the Court did not enter a conviction. The Appellants were in that case sentenced for offences of which they had not been convicted of. That was a further misdirection on the part of the Subordinate Court.
  7. The Appellants did not submit to the Appellate Court as to how the charges were defective. There was no defect in the charges. The Appeal would not have succeeded on that ground.
  8. The Subordinate Court in the instant case failed to enter a plea of guilty and a conviction as required by section 207 of the Criminal Procedure Code. The prosecution was right in conceding to the appeal.
  9. A re-trial would only be ordered where the interests of justice required it and if it was unlikely to cause injustice to the Appellant. Generally whether a re-trial should be entered or not depended on the circumstances of the case. It would only be made where the interests of justice required it and if it was unlikely to cause injustice to the Appellant. Other factions included illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the Appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.
  10. Even where a conviction was vitiated by a mistake of the trial Court for which the prosecution was not to blame, it did not necessarily follow that a re-trial was to be ordered, each case depended on its particular facts and circumstances and an order for re-trial was only to be made where the interest of justice required.
  11. The Appellants appeared in the Subordinate Court for plea on February 22, 2017 when they were sent to prison to serve sentences for offences for which they had not been convicted of. They had served slightly over a month before they were released on bond pending appeal. A re-trial would not serve justice in the instant case.

Appeal allowed.
Orders:

  1. The plea taken by the lower Court on the February 22, 2017 and the subsequent sentence imposed therein were quashed.
  2. Appellants set at liberty.
ELECTORAL LAWS The Scope of the Duty of the Independent and Electoral Boundaries Commission to Publish and Open the Register of Voters for Public Inspection

Republic V. Independent Electoral and Boundaries Commission ex parte Gladwell Otieno & Another
Judicial Review Miscellaneous Application No. 447 of 2017
High Court at Nairobi
G V Odunga, J
August 3, 2017
Reported by Robai Nasike Sivikhe

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Electoral Laws- inspection of register of voters- publication of the register of voters upon inspection- where the Independent Electoral and Boundaries Commission was required to cause the Register of Voters to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars- what was the proper mode of opening the register of voters for inspection-whether section 6 (1) & (2) of the Elections Act which required the IEBC to open the register for inspection imposed on IEBC an obligation to publish the register- whether engagement of a professional reputable firm to conduct an audit of the register of voters could substitute the right of voters to inspect the register of voters- Elections Act, No 24 of 2011, section 6 (1) & (2) and section 8A; Elections (Register of Voters) Regulation, 2012, regulation 27
Electoral Laws- inspection of the register of voters- distinction between inspection of register of voters and verification of biometric data- whether the requirement to open the register for inspection under section 6 (1) & (2) was separate and distinct from the provisions of section 6A which required IEBC to open the register of voters for verification of biometric data- Elections Act, No. 24 of 2011, section 6 (1) & (2) and section 6A
Judicial Officers- recusal of judicial officers- grounds for recusal of a judicial officer- where a judge had presided over a matter whose substance was similar to a previous matter- whether the mere fact that a judge had presided over a matter whose substance was similar to a previous matter had automatically disqualified them from sitting in any subsequent matter of similar nature.
Constitutional Law- right to privacy- the privacy of persons who were not party to the proceedings regarding inspection of register of voters- whether opening of the register of voters affected the right to privacy of persons who were not parties to the proceedings

Brief facts:
The Applicant instituted the suit and sought orders of court to compel the Independent Electoral and Boundaries Commission (the Respondent) to publish and open up for public inspection the register of voters as clustered per polling station and to take into account submissions by concerned persons and revise the register accordingly within a reasonable time before the general elections scheduled for August 8, 2017; to compel the Respondent to publicize and gazette the final register of voters per polling station within such time as reasonable before the general elections scheduled for August 8, 2017; and for the Court to prohibit the Respondent and its officers from deploying a voter register for use in the general election before the same was subjected to a public inspection as required under the law.
According to the Applicant, the Elections Act at section 6(2) as amended by the Election Laws (Amendment) Act No. 1 of 2017 provided that the Respondent shall within sixty days of the notice of a general election, open the Register of Voters for inspection for a period of at least thirty days or such period as the Commission may consider necessary. Further, section 6A(3) of the Elections Act provides that upon the expiry of the period for verification the Respondent shall publish the register of voters online and in such other manner as may be prescribed by the Regulations. The Applicant further averred that the Elections (Registration of Voters) Regulations, 2012 at Regulation 27 required the Respondent to publish and open up the register of voters as provided for by the Elections Act. On the other hand, the Elections (Registration of Voters) Regulations, 2012 set out the manner in which the Respondent was required to publish the register by placing a notice in the Kenya Gazette and in at least two newspapers of national circulation inviting the public to carry out an inspection of the register of voters.
It was the ex parte Applicant’s case that the Respondent had without any basis refused and or failed to publish and open up the voter register for public inspection as required by the provisions of the Elections Act and the Elections (Registration of Voters) Regulations.

Issues:

  1. Whether the mere fact that a judge had presided over a matter whose substance was similar to a previous matter had automatically disqualified them from sitting in any subsequent matter of similar nature
  2. Whether section 6 (1) & (2) of the Elections Act which required the IEBC to open the register for inspection imposed on IEBC an obligation to publish the register.
  3. Whether the requirement to open the register for inspection under section 6 (1) & (2) was separate and distinct from the provisions of section 6A which required IEBC to open the register of voters for verification of biometric data.
  4. What was the proper mode of opening the register of voters for inspection?
  5. Whether the opening of the register of voters was limited only to occasions where new registers were opened.
  6. Whether engagement of a professional reputable firm to conduct an audit of the register of voters could substitute the right of voters to inspect the register of voters.
  7. Whether opening of the register of voters affected the right to privacy of persons who were not parties to the proceedings
  8. Whether the IEBC could be compelled to rectify incorrect particulars upon discovery.
  9. Whether IEBC could be prohibited from deploying the registers of voters to the various polling stations
  10. What were the appropriate remedies that could be issued putting into consideration the rights of the Petitioners viz-a-viz the rights of other Kenyans?Read More...

Relevant Provisions of the Law
Elections Act, No. 24 of 2011, Laws of Kenya
Section 6 (1) & (2)
6. Inspection of register of voters
(1) The Commission shall cause the Register of Voters to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars therein, except for such period of time as the Commission may consider appropriate.
(2) The Commission shall, within ninety days from the date of the notice for a general election, open the Register of Voters for inspection for a period of at least thirty days or such period as the Commission may consider necessary.

Section 6A
6A. Verification of biometric data
(1)The Commission shall, not later than sixty days before the date of a general election, open the Register of Voters for verification of biometric data by members of the public at their respective polling stations for a period of thirty days.
(2)The Commission shall, upon the expiry of the period for verification under subsection (1), revise the Register of Voters to take into account any changes in particulars arising out of the verification process.
(3)The Commission shall, upon expiry of the period for verification specified under subsection (1) publish—

(a)a notice in the Gazette to the effect that the revision under subsection (2) has been completed; and
(b)the Register of Voters online and in such other manner as may be prescribed by regulations

Section 8A
8A. Audit of the register of votes
(1) The Commission may, at least six months before a general election, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of—

(a) verifying the accuracy of the Register;
(b) recommending mechanisms of enhancing the accuracy of the Register; and
(c) updating the register.

(2) The Kenya Citizens and Foreign Nationals Management Service established under section 3 of the Kenya Citizens and Foreign Nationals Management Service Act, No. 3 of 2011 shall make available to the Commission the information held by it in the national population register for the purpose of the conduct of an audit under subsection (1).
(3) For purposes of the first general election after the commencement of this section, the Commission shall, within thirty days of the commencement of section, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of —

(a) verifying the accuracy of the Register;
(b) recommending mechanisms of enhancing the accuracy of the Register; and
(c) updating the register.

(4) The firm engaged under subsection (3) shall conduct the audit and report to the Commission within a period of thirty days from the date of engagement.
(5) The Commission shall, within fourteen days of receipt of the report under subsection (4), submit the report to the National Assembly and the Senate.
(6) The Commission shall implement the recommendations of the audit report within a period of thirty days of receipt of the report and submit its report to the National Assembly and the Senate.

Elections (Register of Voters) Regulation, 2012
Regulation 27
27. Inspection of register
The Commission shall make available the Register of Voters for inspection to the public at all polling stations, by way of public web portal or any other medium the Commission may approve.

Held:

  1. It was not the law and hopefully should never be that the mere fact that a judge had presided over a matter whose substance was similar to a previous matter had automatically disqualified him or her from sitting in any subsequent matter of similar nature. For example, we have the Employment and Labour Relations Court as well as the Environment and Land Court, specialised Courts dealing with employment and labour matters on one hand and land and environmental matters on the other. Quite often matters which were substantially similar duplicated themselves before those Courts and if the judges were to recuse themselves every time a similar matter came up, sooner or later those courts would run out of judges to hear matters.
  2. A Judge who was consistent in upholding the rule of law should not shy from doing so simply because there was a perception that he was likely to rule in a certain manner. Where a party was aggrieved by his or her way of deciding matters, the only option available to them was to appeal.
  3. For an election to meet the threshold of fairness, it had to be by secret ballot, free from violence, intimidation, improper influence or corruption, conducted by an independent body, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. All those words were pregnant with meanings and referred to the quality and standard that any free and fair election had to meet. Anything less than that could not be said to meet the prescribed threshold.
  4. Election was a process. Therefore, every stage of the electoral process had to meet the threshold of a free and fair elections right from the registration of voters, the verification of voter details, the inspection of the register the cleaning of the register, the actual voting process and the counting and tallying of results.
  5. Section 6(1) and 6(2) of the Elections Act, required the Respondent to cause the register to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars ‘therein’. Accordingly there was no obligation under that provision for the publication of the register. What the Respondent was bound to do was simply to ensure that the register was open for inspection. However, it was clear that the purpose of the inspection was to enable members of the public to rectify the particulars ‘therein’. The word ‘therein had to refer to the register and not the particulars of the voter. Accordingly the public was entitled to inspect the register and take the steps to rectify any particulars which could not be correct in the register.
  6. The provisions of section 6 (1) & (2) of the Elections Act were separate and distinct from section 6A of the same Act which required the Respondent to open the Register of Voters for verification of biometric data by members of the public at their respective polling stations. By employment of the phrase ‘their respective’ the provision referred to the voters. Accordingly section 6A referred to the verification of a particular voter’s biometric data as opposed to the register. Parliament must have intended that the two sections apply to different circumstances and could not be interpreted to apply to the same set of circumstances as the interested party contended.
  7. The manner in which the register was to be opened for inspection was, pursuant to regulation 27 of the Elections (Registration of Voters) Regulations, 2012 by way of public web portal or any other medium the Commission approved. The manner of availing the register was at the discretion of the Respondent. Therefore the Court could not interfere with that discretion unless it was proved that the mode of opening the register rendered it impossible or impracticable for the public to inspect the same. The Respondent had deposed that in compliance it had established a public web portal and availed an additional medium, vide short code messaging to 70000 availed to the public. Since the regulation permitted the establishment of a web portal, regulation 27 had envisaged inter alia online inspection or any other mode approved by the Respondent.
  8. The Gazette Notice No. 4413 dated May 10, 2017 was issued pursuant to section 6A as opposed to section 6(1) of the Elections Act. To confirm that the Notice was inviting the voters to verify their individual particulars, the instructions on how to make a claim were very specific that the Notice was meant for verification of particulars as opposed to inspection of the register. Whereas the Respondent complied with section 6A (1) of the Elections Act, that Notice was not the one contemplated under section 6(1) of the Act.
  9. The Respondent was subjecting section 6(1) of the Elections Act to regulation 33 of the Regulations. However section 6(1) of the Elections Act obliged the Respondent to cause the Register of Voters to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars therein. The section had not subjected the phrase ‘at all times’ to only where new registers were opened under Part VII of the Regulations. Therefore, the phrase ‘at all times’ had to be given its literal meaning and that being the position, regulation 33 could not be applied to limit the scope of section 6(1) of the parent Act.
  10. It had been contended that pursuant to section 8A the audit and subsequent verification of the register was through the representatives of the people in the Senate and the National Assembly. Section 8A had given the discretion to the Respondent as to whether it should engage a professional reputable firm to conduct an audit of the Register of Voters. That provision could not be used as a substitute for the right of the voters to inspect the Register themselves since the Respondent may or may not have decided to engage the services of such a firm.
  11. On the aspect of privacy of persons who were not parties to the proceedings; it was not every information supplied by or taken from a voter that could be revealed. Only the information necessary to enable the voter make an informed decision as to the correctness of the particulars in the register was necessary.
  12. It was contended that pursuant to section 5(1) the revision of the voters register had to take place within 60 days before the elections so that even if the Court was to find that the Applicant was entitled to the orders sought the same could not be granted. That section clearly dealt with revision of the voters register as opposed to rectification of particulars which was what was contemplated under section 6(1).
  13. There was no evidence that prior to the institution of the proceedings the Respondent complied with section 6(1) of the Elections Act as read with regulation 27 of the Elections (Voters Registration) Regulations, 2012. Whereas the law had given the Respondent the discretion to determine the time when the register could be closed, which was the exception to the general rule, that exception had not applied where the register had not been opened at all. There was no evidence that prior to those proceedings it was ever opened.
  14. It was not for the judiciary to micro-manage the electoral body. The only concern was that the electoral body had to comply with the letter and spirit of the Constitution, the relevant legislation and the regulations. Article 81 required the electoral body to ensure that the elections were free and fair in the sense that they were by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner. To ensure that was attained Parliament in its wisdom had enacted laws and approved regulations in that regard. Those legislation and the regulations had to be followed in order to attain the constitutional dictates.
  15. There was no duty cast on the Respondent to publish the register as opposed to opening it up for public inspection. Further there was no requirement that the same be clustered as per polling station. The provisions relied upon similarly had not expressly placed a duty on the Respondent to take into account submissions by concerned persons and revise the register accordingly.
  16. The question whether the Respondent could upon discovery of incorrect particulars rectify the same was beyond the scope of the instant judgment because the Court could not give a blanket decision that the incorrect particulars be corrected before the same were identified. In any case, the request for correction had to be considered in the first place by the Respondent hence the instant Court could not compel the Respondent to take a specific action but only for it to consider whatever requests could be made to it.
  17. Section 6(1) had not placed on the Respondent the duty to publicize and gazette the final register of voters per polling station. The Court could not compel it to undertake what the law had not expressly conferred upon it.
  18. There was a duty placed on the Respondent to deploy the registers to the various polling stations. To prohibit it from doing so would amount to restraining it from carrying out its statutory duties. The mere fact that the registers were so deployed had prevented the Respondent from rectifying any incorrect particulars therein was not satisfactory. Apart from that it was deposed that the registers were in fact deployed so that there was nothing to be restrained.
  19. The Court was empowered to fashion appropriate remedies. However, in so doing, the Court ought not to interfere with the merits of the Respondent’s decision or its discretion. The Instant Court had to fashion appropriate remedies in a manner that did not interfere with the elections which were due for August 8, 2017. The Court could not infringe upon the rights of Kenyans to regular elections. Whatever orders the Court fashioned, they had to be geared towards the realization of the aspiration of Kenyans for a free, fair and regular elections. Whatever orders commended themselves ought to be those that would enable the overriding right of Kenyans to have the elections due in a week conducted. Therefore the Court had to balance the rights of the Petitioner vis-a-vis the rights of the other Kenyans and protect both.
  20. An order to prohibit the Respondent and its officers from deploying a voter register for use in the general election could not be issued. Issuance of such orders would have interfered with the preparations for the general election which were due in a few days’ time. The orders of mandamus in the manner in which they were sought were also declined. However, the Instant Court had a duty to make the legal position clear with respect to section 6 of the Elections Act as read with regulation 27 not only for the purposes of the forthcoming general elections but for the future as well.

Petition partly allowed.
Orders

  1. A declaration that the Respondent was pursuant to section 6(1) and (2) of the Elections Act as read with regulation 27 of the Elections (Voters Registration) Regulations statutorily bound to cause the Register of Voters to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars therein, except for such period of time as the Commission may consider appropriate. Further the Respondent was bound to, within ninety days from the date of the notice for a general election, open the Register of Voters for inspection for a period of at least thirty days or such period as the Commission may consider necessary. The said register was to be availed for inspection to the public at all polling stations, by way of public web portal or any other medium the Commission may approve.
  2. The Respondent were to within 48 hours publish in the media a confirmation that the register of voters was open for inspection and the manner of and the period for such inspection by the public.
ELECTORAL LAWS A Sitting Member of the County Assembly was Eligible for Nomination by their Political Parties to Contest and be elected as a Member of Parliament during a General Election

Stephen Wachira Karani & Another V. Attorney General & 4 Others
Petition No. 321 of 2017 consolidated with Petition No. 331 of 2017
High Court at Nairobi
J. M. Mativo, J
November 15, 2017
Reported by Robai Nasike Sivikhe

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Electoral Laws- qualification and disqualification as a member of parliament- participation in elections as a member of parliament upon nomination- where a sitting member of the county assembly intended to vie for the position of Member of Parliament- whether sitting Members of the County Assembly were eligible for nomination by their political parties to contest and be elected as Members of Parliament during a general election- whether a sitting Member of County Assembly was eligible to contest and be elected as a member of parliament during a by-election- Constitution of Kenya, 2010, article 99 (2) (d); Elections Act, No. 24 of 2011, section 43 (5) & (6)
Constitutional Law- interpretation of the Constitution- interpretation of article 99 (2) (d) of the Constitution- where article 99 (2) (d) provided that a person was disqualified from being elected as a member parliament if the person was a member of a county assembly- whether article 99 (2) (d) barred sitting Members of the County Assembly from nomination by their political parties to contest and be elected as Members of Parliament during a general election- Constitution of Kenya, 2010, article 99 (2) (d); Elections Act, No. 24 of 2011, section 43 (5) & (6)
Electoral Laws- representation of the people- election of members of the county assembly and members of parliament- term of office for members of the county assembly and members of parliament- whether the term of the County Assemblies expired on the same date as the term of Parliament- Constitution of Kenya, 2010, articles 102 (1) & 177 (4)

Brief facts:
The judgment disposed two consolidated petitions, those were, petition no. 321 of 2017 and 331 of 2017.
The main question before the Court was whether article 99 (2) (d) of the Constitution disqualified a Member of a County Assembly or a Speaker of a County Assembly from being nominated as a candidate to contest as a Member of Parliament; and whether if elected, such election would be a violation of that provision.
The point of departure for the two Petitions was that whereas petition 321 of 2017 invited the court to find and hold that a serving Member of a County Assembly (including a Speaker of a County Assembly) was ineligible to be nominated and to contest for a Parliamentary seat by dint of the said provision, petition 331 of 2017 invited the Court to find and hold that the law had not barred a sitting member of a County Assembly from being elected as a Member of Parliament.

Issues:

  1. Whether sitting Members of the County Assembly were eligible for nomination by their political parties to contest and be elected as Members of Parliament during a general election.
  2. Whether a sitting Member of County Assembly was eligible to contest and be elected as a member of parliament during a by-election.
  3. Whether the term of the County Assemblies expired on the same date as the term of Parliament.Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 99 (2) (d)
99. Qualifications and disqualifications for election as Member of Parliament
(2) A person is disqualified from being elected a member of Parliament if the person—

(d) is a member of a county assembly;

Article 102 (1)
102. Term of Parliament
(1) The term of each House of Parliament expires on the date of the next general election.

Article 177 (4)
177. Membership of county assembly
(4) A county assembly is elected for a term of five years.

Elections Act, No. 24 of 2011, Laws of Kenya
Section 43 (5) & (6)
43. Participation in elections by public officers
(5) A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.
(5A) A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy.
(6) This section shall not apply to—

(a) the President;
(b) deleted by Act No. 36 of 2016, s. 16(b);
(c) the Deputy President;
(d) a member of Parliament;
(e) a county governor;
(f) a deputy county governor;
(g) a member of a county assembly.

Held:

  1. It is a cardinal rule in constitutional interpretation that provisions of a constitution concerned with the same subject should, as much as possible, be construed as complementing, and not contradicting one another. The Constitution must be read as an integrated and cohesive whole. It is an elementary rule of constitutional construction that no one provision of the constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.
  2. Under article 177(4) of the Constitution a member of a county assembly was elected for a term of five years. In article 102 (1) of the Constitution the term of each House of Parliament expired on the date of the next general election. The above provisions left no doubt that the term of the County Assemblies and Parliament expired on the same day-on the date of the next general elections. In Kenya, the general election for both the County Assemblies and Parliament were held on the same day.
  3. A reading of article 99 showed that it dealt with qualifications and disqualifications for election of Members of Parliament. It did not mention nominations or qualifications for nominations by political parties. Regulation of nomination processes and qualifications for nominations were dealt with by the relevant statutes.
  4. Section 43 (5) of the Elections Act provided that a public officer who intended to contest an election under that Act had to resign from public office at least six months before the date of election. Sub-section (5A) provided that in the event of a by-election, he had to resign within seven days of the declaration of a vacancy. However, section 43 (6) of the Elections Act provided in clear terms that section 43 did not apply to the President, the Deputy President, a Member of Parliament, a County Governor, a Deputy County Governor and a Member of a County Assembly. Therefore, a Member of a County Assembly was exempted from the provisions of section 43 (5) of the Elections Act.
  5. A purposive and liberal construction of the provisions of the law revealed that the law prohibited a situation whereby a Member of a County Assembly would upon being elected as a Member of Parliament end up holding the two offices concurrently. The construction could not apply in the event of a by-election for a Member of Parliament in the event a Member of County Assembly desired to contest. That was because the term of the County Assembly would still be running. In the event of a by-election, to be eligible, a Member of a County Assembly would be required to resign as the law demanded.
  6. The law only prohibited a person occupying the office of a Member of
    Parliament concurrently with the office of a Member of the County Assembly. The law was clear on when the term of County Assemblies ends. Thus, at the time the person was elected at the general election, he could not be said to be occupying two offices concurrently. The law had not prohibited a Member of County Assembly from being nominated to vie for a Parliamentary seat by a political party. Nomination to contest as a Member of Parliament was not an election within the meaning of article 99 of the Constitution.
  7. A purposive reading of article 92 of the Constitution demonstrated that it was aimed at promoting the legitimate state interest of ensuring a Member of a County Assembly did not hold a Parliamentary office concurrently. The spirit, purpose, architecture and scheme of the Constitution aimed at ensuring accountability and transparency in public affairs and good governance.
  8. Effective governance required that those responsible for policy-making, implementation and public expenditure were held to account for their actions and performance, and parliamentary scrutiny was a central mechanism for ensuring that that occurred. Parliament exercised an oversight role over County Assemblies, hence the reason why it would not be tenable for a Member of the County Assembly or a state officer to be elected in both offices concurrently. That was the mischief which the law prohibited, a Member of a County Assembly sitting concurrently as a Member of Parliament.
  9. A contextual interpretation also required an examination of the history of Kenya and appreciation of the mischief that the Constitution of Kenya, 2010 addressed in those provisions. Under the Constitution of Kenya (repealed) the President had powers to dissolve Parliament. Hence, to pave way for the general elections Parliament had to be dissolved. Similarly, the Minister responsible for Local Government had powers to dissolve the local authorities, and they would be dissolved to pave way for general elections. Such dissolution meant there would be a vacuum and any business however urgent had to wait the convening of the next Parliament or local authority.
  10. The drafters of the Constitution of Kenya, 2010 entrenched the term of Parliament and local authorities in the Constitution to eliminate a vacuum and to ensure that the people’s sovereignty and will was exercised if the need arose prior to the general elections. A reading of article 194 thereof on vacation of office of a Member of County Assembly showed that among the grounds listed, nomination to contest a Parliamentary seat was not included. Equally, Members of Parliament, Governors or even the President and Deputy offering themselves for re-election were not required to resign in order to be eligible to contest. The law also protected the term of Parliament and the County Assemblies to ensure that there was no vacuum.
  11. An argument that a Member of a County Assembly was required to vacate office on any other ground other than those stipulated in article 194 of the Constitution would raise constitutional questions on the people's right to representation. The law had not prohibited a Member of a County Assembly from being nominated to contest for a Parliamentary seat in a general election. The term of office ended on the date of the general election. However, if the election in question was a by-election which would ordinarily take place before the term of the County Assembly expired, then, such a Member would obviously be required to resign.
  12. The term of County Assemblies terminated on the date of the elections or in the case of the Speaker who was the secretary of the County Service Board, upon losing his seat or upon a new person being elected to the office of the Speaker. The law as it stood had not contemplated that or even permitted a person to occupy the office of a Member of County Assembly concurrently with the office of Member of the National Assembly.
  13. The provisions of the Elections Act which gave effect to article 99 of the Constitution had not limited the rights under article 38, and if they had, then the limitation was reasonably justifiable in a modern democratic society in that the provision aimed at achieving a legitimate aim of avoiding a Member of a County Assembly sitting as Member of Parliament at the same time which would compromise the oversight role of Parliament.
  14. There was nothing unconstitutional in the Jubilee Party Nomination Rules. The challenged nomination was within the dictates of the law. Nomination by a political party to contest as a Member of Parliament was not an election for the purposes of article 99 (2) of the Constitution, but only one of the qualifications for election as a Member of Parliament under article 99 (1) (c) thereof.

Petition 321 of 2017 was dismissed whereas petition 331 of 2017 was allowed.

  1. Declaration issued that the term of Members of the County Assembly including County assembly speakers expired on the date of the date of the next general election.
  2. Declaration issued that a Member of a County Assembly was not disqualified from being nominated to contest in a general election as a Member of the Parliament by virtue of article 99 (2) (d) of the Constitution.
  3. Declaration issued that the law only prohibited the election of a Member of Parliament if such election would result in such a person holding the office of County Assembly and Member of Parliament Concurrently.

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