Weekly Newsletter 011/2018

Weekly Newsletter 011/2018



Kenya Law

Weekly Newsletter


Failure to Comply With Legal Requirements on the Form and Content of an Election Petition Would Not Necessarily Lead to the Striking Out of The Petition.
Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others
Election Petition Appeal No 1 of 2017
Court of Appeal at Nairobi
M Warsame, D K Musinga & W Ouko, JJA
March 2, 2018
Reported by Beryl A Ikamari
Download the Decision
 
Electoral Law-election petition-form and content of an election petition-particulars which would have to be pleaded in an election petition-particulars disclosing the result of the election and the date of the declaration of the result of the election-effect of failure to plead such particulars-whether such an election petition would be struck out-Constitution of Kenya 2010, articles 159(2)(d) & 87; Elections Act, No 24 of 2011, section 83; Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 8(1)(c), 8(1)(d), 4 & 5.
Electoral Law-election petition-interlocutory applications-time of hearing and determining interlocutory applications in election petitions-requirement that interlocutory applications capable of being made before the commencement of the hearing of an election petition, be heard and determined at the pre-trial conference-effect of filing an interlocutory application after the pre-trial conference-Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 15(1)(c) & 15(2).
Civil Practice and Procedure-award of costs-discretion of the Court to award costs-setting aside of an award of costs by an appellate court-considerations of an appellate court when deciding whether to set aside a lower court's award of costs-whether the Court of Appeal would set aside an award of costs capped at Kshs. 10 million in an election petition that was concluded without a full trial.
 
Brief facts:
The Appellant participated in the gubernatorial elections of Kirinyaga County held on August 8, 2017. The 3rd Respondent emerged as the winner while the Appellant came second. She challenged the result of the election at the High Court while stating that there were various malpractices and irregularities in the conduct of the elections.
At the High Court, the 3rd and 4th Respondents made an application for the striking out of the petition. The application was premised on grounds that there was a failure to comply with rules 8(1)(c) and 8(1)(d) of the  Elections (Parliamentary and County Elections) Petitions Rules, 2017. Those rules were about the form and content of an election petition and they required a Petitioner to state the results of the election and the date of the declaration of the results of the election. The High Court found that what those rules required was substantive as they touched on the Court's jurisdiction and the timelines within which the petition could be heard and that the petition was incurably defective. The petition was struck out and the Respondents were awarded Kshs. 10 million as costs. The Appellant appealed to the Court of Appeal against the High Court's decision.
The Appellant stated that the High Court had erred in elevating issues of procedural technicalities above the requirements of article 159 of the Constitution and that the High Court ought to have taken judicial notice of the election results which were published in the Kenya Gazette.
 
Issues:
  1. In drafting an election petition, what was the effect of the failure to state the result of an election and the date of the declaration of the results, as required under rules 8(1)(c) & 8(1)(d) of the  Elections (Parliamentary and County Elections) Petitions Rules, 2017?
  2. Whether failure to comply with rules 8(1)(c) & 8(1)(d) of the  Elections (Parliamentary and County Elections) Petitions Rules, 2017, on the form and content of an election petition, would lead to the striking out of the election petition.
  3. When would the Court of Appeal interfere with a lower court's discretion to award costs?
  4. Whether an application for the striking out of an election petition could be filed after the pre-trial conference.
Held:
  1. Rules of procedure would be applied to advance substantive justice, enforce rights in a manner not injurious to society, by enlarging the remedy, where it was necessary, in order to do justice, to prevent delay, reduce expenses and inconveniences. Procedural issues were within the discretion of the Court and were dependent on the Court's opinion. An appellate court would be reluctant to interfere with the exercise of discretion by a lower court.
  2. There were several conflicting decisions on the interpretation of rule 8(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. That rule provided for the form and content of an election petition as one that required;
    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 presented; and
    6. The name and address of the advocate, if any, for the Petitioner which shall be the address for service.
  3. Rule 8(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 was couched in mandatory terms. Contrary to the provisions of rules 8(1)(c) & 8(1)(d) of the  Elections (Parliamentary and County Elections) Petitions Rules, 2017, the Petition did not disclose the results of the election and the date of the declaration of results. The question that would arise was whether the omission in failing to give those particulars was a technicality and whether the petition could be salvaged in spite of the omission.
  4. There was conflicting jurisprudence on the issue of the effect of non-compliance with rule 8(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. One school of thought considered the rule to be mandatory but would not strike out a non-conforming petition and on the basis of article 159(2)(d) of the Constitution, the petition would be salvaged. The second school of thought also considered the rule mandatory and non-compliance with the rule was considered a violation that went to the root of the petition and affected its substance. Under the second school of thought the non-compliance with the rule was an incurable violation of article 87 of the Constitution which detrimentally affected the timelines within which an election petition had to be heard and determined.
  5. Parties to an election petition and their advocates had a duty to assist the Court to further the overriding objective. Under Rule 4 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, the objective of the rules was to ensure the just, expeditious, proportionate and affordable resolution of an election petition. The achievement of the objectives had to be balanced. For example, it ought not to appear as though an election court was simply concerned about expeditious disposal of the election petition by quickly striking it out, without carefully considering whether the decision to strike out the petition was actually just to all the parties concerned, whether it was proportionate and whether the same could be avoided.
  6. Section 83 of the Elections Act provided that an election shall not be declared void because of non-compliance with a written law relating to the election if it was apparent that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election. Therefore, the question to be answered was whether failure to state the results and date of declaration of the election results affected the result of the election.
  7. Rule 5 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, provided that a failure to comply with the rules shall be determined at the Court's discretion in accordance with the provisions of article 159(2)(d) of the Constitution. Article 159(2)(d) of the Constitution provided that courts would dispense justice without undue regard to technicalities.
  8. While the Petitioner did not provide information on the results of the election and the date of the declaration of the results, the Respondents provided it. The information required under rule 8(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 was clearly before the Court and the Respondents were aware of it.
  9. The record indicated that the results and the date of the declaration of the results were available to the High Court. The High Court ignored the information merely because it did not come from the Petitioner. What was required under rule 8(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 was availed and the High Court ought to have sustained the petition.
  10. The petition was filed on September 5, 2017 and the date of declaration of the results was August 10, 2017. The Petition was filed within 25 days of the declaration of the results.
  11. Failure to comply with the provisions of the stated rule 8(1) per se would not render a petition invalid. The words of article 159(2)(d) of the Constitution were unambiguous and they meant that unless the results of the election and date of declaration were not ascertainable from the materials filed by the parties, the rule was satisfied. Nothing in the language of the statute suggested that the documents in the file courtesy of any other party other than the Petitioner, were to be ignored as a basis of giving life to rule 8(1) (c) and (d) of the  Elections (Parliamentary and County Elections) Petitions Rules, 2017.
  12. In spite of the omission by the Appellant, there was ample ground for the High Court to salvage the petition. Rule 4 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided for the overriding objective of the rules as the just, expeditious, proportionate and affordable resolution of elections petitions and under rule 5 of the same rules the Court had discretion to determine questions on the effect of failure to comply with the rules. Article 159 (2) (d) of the Constitution was also applicable and it required the Court to do substantive justice without having undue regard to procedural technicalities.
  13. The Appellant's omission in pleading the required particulars, did not affect the jurisdiction of the Court. There was no contest on the date of the declaration of the results, which was information provided by the Respondents, but there was a dispute relating to how the gubernatorial seat was won. The Appellant's omission did not undermine the High Court's jurisdiction.
  14. The petition raised serious issues. The Petitioner alleged that the election was not credible, free or fair and the results obtained by the candidates were not verifiable and that there was massive cheating, intimidation, voter bribery, e.t.c. The issues required determination on merit.
  15. While exercising discretion, the Court had to ensure that justice was achieved. The question was whether it was reasonable, fair, legal and regular to strike out the petition when the required particulars were before court, when there was no dispute as to the results obtained by the parties, the date of declaration, the validity of the petition and as to whether it was filed within 28 days from the date of declaration of the results.
  16. The High Court did not exercise its discretion in accordance with the law. Its discretion was exercised in an erroneous view of the law or an obvious mistake of facts. The Court failed to appreciate that the Appellant's omission was cured by the Respondents and it was therefore a non-issue. It was not an issue that could not be remedied under article 159 of the Constitution.
  17. The Appellant was deprived of the right to have the suit determined in a full trial without a just cause. Without due consideration, the petition could not be termed as frivolous, without substance, groundless or fanciful, hopeless or offensive or be said to be one that was intended to embarrass a fair trial or stated immaterial matters or raised irrelevant issues which were likely to prejudice the Respondents. That was not the case as no determination on such questions was made at the High Court.
  18. There was an issue as to whether the application for the striking out of the petition ought to have been filed after the pre-trial conference. When the application was made, the issues for determination had not been settled by the Court. Rule 12(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, gave an election court power to hear and determine any interlocutory application even after the conclusion of the pre-trial conference.
  19. The High Court's ruling did not disclose the use of inappropriate language or the import of extraneous issues. Unnecessarily strong language was used to show the Court's appreciation of the law but that did not mean that the Court was biased.
  20. The award of costs by a court was discretionary. An appellate court would only interfere with such an award if it was shown that there was a misdirection in some matter and that as a result the Lower Court arrived at a wrong decision or misapprehended the law or failed to take into account some relevant matter.
  21. The High Court did not state what the basis of the award of costs was. The prevailing trend in capping of costs at inordinately high amounts showed a regression back to an era where costs in election petitions were very high. Capping of costs was intended to curb the practice of awarding large sums in costs. High costs were an impediment to the right of access to justice. The amount of Kshs. 10 million, even where it was to be shared among all the Respondents, was excessive.
  22. An election court had power to determine whether a party would be awarded costs or not and in doing so the court was to be guided by the principles of fairness, justice and access to justice. Costs were meant to compensate a successful litigant. It was not a punishment or a deterrent measure to scare away litigants from the doors of justice.
  23. The award of Kshs. 10 million as costs was made without providing a basis. It amounted to a miscarriage of justice as the matter did not proceed to hearing. Given that the decision to strike out the petition was an error, the order on costs would not stand.
Appeal allowed. (Retrial ordered and costs were awarded to the Appellant and capped at Kshs. 2 million.)
Kenya Law
Case Updates Issue 011/2018
Case Summaries

CONSTITUTIONAL LAW Trade Licenses Imposed by a County Government for Operating the Premises of Selling Goods and Services are not the Same as License Fees Under an Act Regulating a Professional Body.

Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR
Constitutional Petition 97 of 2016
High Court at Nairobi
J.M Mativo, J
September 21, 2017
Reported by Ribia John

Download the Decision

Constitutional Law – levels of government – County Government – functions of County Governments – function of County Governments to impose tax – trade license – trade licence vis-à-vis licence fees owed to a professional body - whether trade licenses imposed by a County Government for operating the premises of selling goods was the same as license fees under an Act regulating a professional body – Constitution of Kenya, 2010 articles 209(3) and (4).
Tax Law – double taxation – where there a County Government imposes a trade licence to professionals who have to pay a licence fee to their professional body - whether payment of trade license to the County Governments and professional license fees to a professional body amounted to double taxation.
Constitutional Law – constitutional petition – drafting of petitions – guiding factors in the drafting of petitions – function of petitions - whether a court could decide a petition in which the alleged constitutional violations had not been specifically pleaded with clarity and specificity and the provisions of the Constitution alleged to have been violated had not been pleaded with clarity.
Civil Practice and Procedure – pleadings – drafting of pleadings - guiding factors in the drafting of pleadings – function of pleadings in civil proceedings.
Precedent – the binding or persuasive nature of judicial decisions -applicability of precedent - factors the Court should consider when adopting judicial precedents
Words and Phrases definition of the word trade – the business of buying and selling or bartering goods or services - Black’s Law Dictionary Ninth Edition.
Words and Phrases definition of the word commerce - the exchange of goods and services - Black’s Law Dictionary Ninth Edition.

Brief facts:
The Petitioner filed the instant petition seeking a declaration that the County Finance Acts were unconstitutional to the extent that they required the Petitioners who were regulated by the Pharmacy and Poisons Act to pay trade licenses. They also sought a declaration that the Pharmacy and Poisons Act was superior to the County Government Finance Acts as provided by articles 191(2), 209(2) and the sixth schedule to the Constitution.

Issue:

  1. Factors the Court should consider when adopting judicial precedents.
  2. Whether trade licenses imposed by a County Government for operating the premises of selling goods and services was the same as license fees under an Act regulating a professional body.
  3. Whether pharmacy may be classified as a trade.
  4. Whether payment of trade license to the County Governments and professional license fees to a professional body amounted to double taxation.
  5. Whether a court could decide a petition in which the alleged constitutional violations had not been specifically pleaded with clarity and specificity and the provisions of the Constitution alleged to have been violated had not been pleaded with clarity.
  6. Guiding factors in the drafting of pleadings.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 191(2)
192
Suspension of a county government
(2) A county government shall not be suspended under clause (1)(b) unless an independent commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified and the Senate has authorised the suspension.

Articles 209(2), (3) and (4)
209
Power to impose taxes and charges
(2)An Act of Parliament may authorise the national government to impose any other tax or duty, except a tax specified in clause (3)(a) or (b).
(3)A county may impose—

(a)property rates;
(b)entertainment taxes; and
(c)any other tax that it is authorised to impose by an Act of Parliament.

(4) The national and county governments may impose charges for the services they provide.

Held:

  1. All laws must meet the mandatory constitutional muster. It followed, that the provisions of the Pharmacy and Poisons Act had to be construed to conform to the provisions of the Constitution of Kenya, 2010 which was the supreme law of the land. Part 2 of the fourth schedule to the Constitution vested the function of trade development and regulation including trade licenses (excluding regulation of profession) on County Governments. Further, the legislative mandate of the County Assemblies pursuant to article 185 of the Constitution had not been doubted.
  2. A judicial precedent is only an authority for what it decided. Every judgment had to be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which could be found there were not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions were to be found. A case was only an authority for what it actually decided.
  3. The ratio of any decision had to be understood in the background of the facts of that case. A case was only an authority for what it actually decided, and not what logically followed from it. A little difference in facts or additional facts could make a lot of difference in the precedential value of a decision.
  4. Each case depended on its own facts and a close similarity between one case and another was not enough because even a single significant detail could alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case fell, the broad resemblance to another case was not at all decisive. Precedent should be followed only so far as it marked the path of justice, but the Court had to cut the dead wood and trim off the side branches else the Court would find itself lost in thickets and branches. The Court’s plea was to keep the path of justice clear of obstructions which could impede it.
  5. The decision rendered in Kenya Pharmaceutical Association v City Council of Nairobi & 2 other [2015] eKLR (J.R. No. 135 of 2007), which was determined prior to the promulgation of the Constitution of Kenya, 2010 under the provisions of the repealed Local Government Act was not good law under the 2010 constitutional dispensation. Kenya Pharmaceutical Association v City Council of Nairobi & 2 other [2015] eKLR (J.R. No. 135 of 2007) had no relevancy or precedential value to the instant case. First, it was premised on a law that had since been repealed. Secondly, the provisions of the Constitution on the functions of County Governments were clear. The Constitutional mandate of County Governments to regulate trade had not been disputed. The legal mandate of County Governments to legislate had not been questioned.
  6. Article 209(3)(c) of the Constitution provided that a County Government could impose any other tax that it is authorized to impose by an act of Parliament. Article 209(4) provided that the National and County Governments could impose charges for services they provided. Article 260 defined legislation to include a law made by an assembly of a county government, or under authority conferred by such law.
  7. Pharmacists are healthcare professionals with specialised education and training who perform various roles to ensure optimal health outcomes for their patients through the quality use of medicines. Pharmacists may also be Business proprietors, owning the pharmacy in which they practice.
  8. The Black's Law Dictionary defined trade as the business of buying and selling or bartering goods or services; commerce. It defined commerce as the exchange of goods and services. However, the presence of qualified pharmacists in drug dispensing was an essential requirement to provide patient counselling, rational use of drugs, drug safety and pharmacy services to patients for better health care.
  9. Trade license for operating the premises of selling drugs was not the same as license fees and that could not amount to regulation. The provisions of the Constitution were clear. The regulation of trade excluded professions. Regulation meant the state of being controlled or governed. The preamble to the Pharmacy and Poisons Act provided that it was an Act of Parliament to make better provision for the control of the profession of pharmacy and the trade in drugs and poisons. The Act controlled the profession of pharmacy and trade in drugs so that unqualified persons could not engage in the profession and trade of selling drugs.
  10. To regulate meant to control by law or rules. That merely meant that the Petitioners had to have a certificate from the professional body that they were qualified for the year in question to be issued with a licence to carry out the prescribed activities for the period or year in question. The payment of a fee for the grant of an Annual Practicing Certificate by the Petitioners was not a bar to any other legitimate charges that could be imposed by a County Government. In other words what a County Government was prohibited from doing was the issue of a Regulatory Licence. The trade licensing fee was paid for trading in the County.
  11. Double tax is the taxing of the same income twice. Payment of trade license to the Respondents and professional license fees to the professional body did not amount to double taxation.
  12. The Constitutionality of the County Acts had not been questioned. Instead, the Petitioners stated that there was a conflict between the Finance Act and the Pharmacy and Poisons Act. No particular provisions were cited in support of the said argument. Further the County legislations dealt with trade licenses while the Act dealt with license fees under the act. Those two were different and there was no conflict.
  13. Each County Assembly passed its Finance Act. The Petitioners did not specify which specific provisions they claimed to be unconstitutional or contradicting the Pharmacy and Poisons Act. The Petition made a blanket condemnation of all the Finance Acts in the 47 Counties and left it to the Court to guess which sections were under attack. The assumption was that all were identical and contained similar provisions.
  14. The Petition lacked specificity. It ought to specify the specific Acts for each county which it attacked and give details of the specific provisions. Allegations of constitutional violations had to be specifically pleaded with clarity and specificity and the provisions of the Constitution alleged to have been violated had to be pleaded with clarity.
  15. The Petition contained generalised allegations. There were 47 Counties each of which had passed County legislations regulating finance and in particular Trade. It would have been more prudent for the petition to contain particulars of the alleged provisions in each County’s legislation, to specify the impugned provisions, the violations subjected upon the petitioners members and even give details of such violations and the loss or damage if any suffered as a result of the violations. That way, the Respondents would each have been confronted with a specific claim to respond to. The instant petition lacked clarity and the reliefs sought were totally unclear.
  16. A poorly drawn pleading which did not tell a coherent story in a well ordered structure, would fail to achieve the central purpose of the exercise, namely communication of the essence of case which was sought to be advanced. Crafting a good pleading called for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which were necessary to formulate complete causes of action and the judgment and courage to shed what was unnecessary. Although a primary function of a pleading was to tell the defending party what claim it had to meet, an equally important function was to inform the Court or tribunal of fact precisely what issues were before it for determination.
  17. The function of a pleading in civil proceedings was to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court could conduct a fair trial. The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action; a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.
  18. Functions of County Governments included trade development and regulation (excluding regulation of professions). Pharmacy is a profession but to the extent that it also involved selling of pharmaceutical products, it is a trade as opposed to professions such as law and architecture which rendered services only. By being asked to pay Trade licenses for their business premises, the County Governments could not in any manner be said to be regulating or controlling the profession.

Petition dismissed with no order as to costs.

LABOUR LAW The Procedure to be Followed in Retiring Judicial Officers in the Public Interest

Sheikh Abubakar Bwanakai Abdallah v Judicial Service Commission & another [2017] eKLR
Cause Number 365 of 2013
Industrial Court at Mombasa
James Rika.J
December 15, 2017
Reported by Kakai Toili

Download the Decision

Labour Law – employment – termination of employment – retirement – retirement in the public interest – retirement of judicial officers in the public interest - what were the circumstances where a judicial officer could be retired in the public interest - Public Officer Ethics Act 2003; Employment Act 2007, section 6; Judicial Service Code of Conduct and Ethics; Judicial Service Commission Regulations, regulation 28; 1993 United Nations Declaration on Elimination of Violence against Women
Labour Law – employment – termination of employment – retirement – retirement in the public interest – retirement of judicial officers in the public interest- what was the procedure to be followed in retiring judicial officers in the public interest-Employment Act, 2007; Public Officer Ethics Act 2003; Judicial Service Commission Regulations, regulation 28
Labour Law – employment – disciplinary actions of an employer – suspension – administrative suspension - whether administrative suspension of a judicial officer amounted to disciplinary punishment- Employment Act, 2007;Judicial Service Commission Regulations
Labour Law – employment – suspension – rights of an employee on suspension – salary - whether a judicial officer on suspension was entitled to earn salary- Employment Act, 2007; Judicial Service Commission Regulations
Labour Law -employment – suspension – rights of an employee on suspension – alimentary allowance - whether a judicial officer on suspension was entitled to alimentary allowance - Judicial Service Commission Regulations

Brief facts:
The Claimant was employed by the Respondent as Kadhi and worked from January 1995 to June 22, 2012 when he was retired in the public interest. He was alleged to have been involved in sexual harassment, corruption and lacked good public relations while in Kisumu. It was also alleged that there were demonstrations against him. He was investigated by the Chief Kadhi who prepared a report.
The Claimant was called upon by the 1st Respondent to show cause why he should not face disciplinary action for unprofessional conduct not befitting a Judicial Officer. The Claimant replied denying the allegations. The 1st Respondent then interdicted him and a year later he was dismissed for gross misconduct. The Claimant appealed against the decision internally and the dismissal decision was rescinded by the 1st Respondent.
The Claimant was suspended and his suspension was lifted after 7 years, he was subsequently relieved of his Kadhiship through retirement in the public interest on June 22, 2012. Aggrieved by the decision the Claimant filed the instant Claim seeking among others a declaration that his retirement was wrongful and unfair.

Issues:

  1. What were the circumstances where a judicial officer could be retired in the public interest?
  2. What was the procedure to be followed in retiring judicial officers in the public interest?
  3. Whether administrative suspension of a judicial officer amounted to disciplinary punishment.
  4. Whether a judicial officer on suspension was entitled to earn salary.
  5. Whether a judicial officer on suspension was entitled to alimentary allowance.Read More..

Relevant Provisions of the Law:
Employment Act, 2007
Section 6 - Sexual harassment.
(1) An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker—

(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express—

(i) promise of preferential treatment in employment;
(ii) threat of detrimental treatment in employment; or
(iii) threat about the present or future employment status of the employee;

(b) uses language whether written or spoken of a sexual nature;
(c) uses visual material of a sexual nature; or
(d) shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

(2) An employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment.
(3) The policy statement required under subsection (2) may contain any term the employer considers appropriate for the purposes of this section and shall contain—

(a) the definition of sexual harassment as specified in subsection (1);
(b) a statement—

(i) that every employee is entitled to employment that is free of sexual harassment;
(ii) that the employer shall take steps to ensure that no employee is subjected to sexual harassment;
(iii) that the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment;
(iv) explaining how complaints of sexual harassment may be brought to the attention of the employer; and
(v) that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.

(4) An employer shall bring to the attention of each person under the employer’s direction the policy statement required under subsection (2).

Judicial Service Commission Regulations (Legal Notice163 of 1966)
Regulation 27 – Retirement on Grounds of Public Interest
(1) If the Chief Justice, after having considered every report in his possession made with regard to an officer, is of the opinion that it is desirable in the public interest that the service of such officer should be terminated on grounds which cannot suitably be dealt with under any other provision of these Regulations, he shall notify the officer, in writing, specifying the complaints by reason of which his retirement is contemplated together with the substance of any report or part thereof that is detrimental to the officer.
(2) If, after giving the officer an opportunity of showing cause why he should not be retired in the public interest, the Chief Justice is satisfied that the officer should be required to retire in the public interest, he shall lay before the Commission a report of the case, the officer’s reply and his own recommendation, and the Commission shall decide whether the officer should be required to retire in the public interest.
(3) When an officer is retired in the public interest, the Pensions Branch of the Treasury shall be furnished with full details of the case by the Chief Justice.

Held:

  1. Whenever a decision was taken in the public interest, it was understood as being informed by the concern for the welfare or well-being of the general public
  2. Public interest hardly had one side. There were multifarious interests within public interest. The voices of the Provincial Commissioners, the Provincial Police Officer (PPO), State Counsel, Imam and Senior Deputy Secretary, the Public Service Commission of Kenya, among others, were expressions of public interest. They were never considered by the 1st Respondent.
  3. The Senior Deputy Secretary to the Public Service Commission of Kenya would be expected to have some idea what public interest entailed. There were Muslim Leaders, men and women, whose idea of what was in the best of interest of their community in Kisumu, was different from that of the Muslim Sisters. The alternative voices were not considered before the Claimant was forced into retirement.
  4. Retirement in the public interest was of times taken as a code for judicial or executive discretion, in terminating officers’ service. It was a discretion which was susceptible to abuse. Unconstrained, it allowed public bodies to terminate public officers’ service without justification. It made termination of employment without assigning of valid reasons possible. It was a mode of termination broadly invoked, when it was deemed that an officer’s service could not suitably be terminated under other modes of termination.
  5. Punishments which could be inflicted on an officer as a result of disciplinary proceedings included dismissal, stoppage of increment, withholding of increment, deferment of increment, severe reprimand and reprimand, and recovery of costs for any loss or breakage. Nothing in the Judicial Service Commission Regulations (the Regulations), limited an authorized officer, from requiring an officer to retire in the public interest.
  6. Retirement in the public interest had to always be on objective and demonstrable grounds. The Claimant was issued a letter of retirement in the public interest, without assigning any reasons at all.
  7. Where there were opposing public interests, the finder of facts had to make a full and comprehensive analysis of the competing interests. A full and comprehensive analysis of competing public interests carried out by the 1st Respondent could not be discerned based on the material placed before it.
  8. The complaints against the Claimant were grave and could not be trivialized. Their gravity however, required that they be investigated and tested through a proper disciplinary process. They ought to have been weighed against what the other public officers and Muslim leaders said about the Claimant.
  9. Insults, remarks, insinuations, inappropriate comments, condescending or paternalistic attitude which undermined the dignity of women, amounted to sexual violence. Allegations of sexual harassment should not have been trivialized and not accepted at face value.
  10. No person should be allowed to use his position in the society, to sexually harass women. That applies even in cases of Muslim men. Section 6 of the Employment Act 2007 and 1993 UN Declaration on Elimination of Violence against Women, applied to the broad spectrum of the Kenyan Society.
  11. The Claimant was a Muslim man entitled to marry an optimal 4 wives however, he should not have gone about looking for the remaining 3 wives through activities that would have amounted to sexual harassment.
  12. The 1st Respondent as a trier or finder of facts needed to delve deeper into the allegations that faced the Claimant and balance the material availed by the parties, before retiring the Claimant.
  13. The 1st Respondent merely replicated the accusations made against the Claimant in the report made by the Chief Kadhi. The protestation by the Claimant that there were differences between the Claimant and the Chief Kadhi was ignored.
  14. Most of the allegations against the Claimant were criminal in nature or bordering on crime. He was alleged to take bribes yet there was no action taken to prosecute him. There was no suggestion of complaint made to the Police.
  15. The Law Enforcement Agencies, as shown in the letters from the PPO and the State Counsel gave the Claimant what read better than a Certificate of Good Conduct. The 1st Respondent did not seem to have considered that the Claimant had been appointed by the Chief Justice in the past, to exercise magisterial functions.
  16. All termination of employment decisions had to be justified based on valid reasons. An Authorized Officer under the Regulations, had to approach the issue of retirement in the public interest with an open mind and act in a quasi-judicial manner. The action taken against a public officer did not fall out of the category of any other kind of dismissal. The termination of the Claimant’s service was not based on valid reasons. It was not substantively justified.
  17. The Public Officer Ethics Act 2003 required relevant Service Commissions under the Service Commissions Act, Cap 185 the Laws of Kenya, to establish a specific Code of Conduct and Ethics for Officers. The 1st Respondent formulated a Judicial Service Code of Conduct and Ethics (the Code) published in Kenya Gazette as Legal Notice No. 50 of 2003. Where an officer had committed a breach of the Code, appropriate action had to be taken in accordance with the provisions of Public Officer Ethics Act, Judicial Service Commission Regulations or the Constitution as the case was.
  18. The Claimant’s service was terminated under Regulation 28 of the Judicial Service Commission Regulations, in the public interest. The Regulations required the Chief Justice to consider every report in his possession with regard to an officer. All Service Regulations incorporated provisions of relevant legislations which were applicable on matters of employment and all human resources management issues. The Regulations had to be read together with relevant Acts of Parliament, in particular the Employment Act 2007.
  19. It was not clear from the Court record which report was availed to the Chief Justice or even whether any report was availed to the Chief Justice. Key material documents which favoured the Claimant’s position were not taken into consideration in making the decision against him.
  20. The 1st Respondent disregarded Claimant’s right to information under the Constitution by failing to disclose the minutes. Regulation 28 of the Regulations required the Chief Justice to notify the officer in writing, specifying the complaints by reason of which retirement is contemplated, together with the substance of any report or part thereof that was detrimental to the officer.
  21. The proceedings at the High Court could not have been the reason for delay in concluding 7 years down the line, a disciplinary process which started in the year 2004. The lack of a reply from the Claimant when asked to show cause why he should not be disciplined, after he was suspended, could not have prevented the 1st Respondent from concluding the case within reasonable time.
  22. The Claimant was never given a personal hearing where his accusers could confront him eyeball to eyeball. The same notice was relied upon by the 1st Respondent in asking the Claimant to show cause after dismissal was rescinded and Claimant placed under suspension. The 1st Respondent should have relied on the reply given by the Claimant in the first place and move the process forward.
  23. There was no order issued from the High Court staying the disciplinary proceedings. Delay in completing the process could only be attributed to the 1st Respondent and was detrimental to the Claimant.
  24. The Chief Justice was required after giving the Officer an opportunity to show cause why he should not be retired in the public interest, to lay before the 1st Respondent a report of the case, the Officer’s reply, and the Chief Justice’s own recommendation. The 1st Respondent decided whether the Officer had to be required to retire in the public interest.
  25. The letter retiring the Claimant dated July 5, 2012 did not indicate, whether the Chief Justice placed any report on the case before the 1st Respondent. Nothing was said about the recommendation of the Chief Justice. It was just the decision which was made known to the Claimant.
  26. An officer would not have known if the 1st Respondent complied with the Regulations without access to the proceedings which led to retirement in the public interest.
  27. Regulations relating to suspension of Judicial Officers were onerous and a fertile seed-bed, for unfair labour practices. Administrative suspension was not a disciplinary sanction. The Officer merely stepped aside to allow his employer to carry out investigations and disciplinary process against him without the possibility of the Officer interfering with the process. Suspension in the context was not a disciplinary punishment. It should not have been applied as if it was a punishment.
  28. Suspension Regulation was onerous in the extreme as it allowed for an officer to go on suspension without pay. The Officer remained an Employee, with mutuality of obligations. The contract of employment remained. A regulation which allowed an employee to go without any form of a salary while still under contract was in breach of fair labour practices.
  29. The terms of suspension which ran for about 7 years were oppressive. The letter by the Chief Magistrate, Kisumu addressed to the Registrar of the High Court dated September 10, 2010 stated that the Claimant had reported to the Chief Magistrate every Friday until 2008. It was to be expected that without any income the Claimant could fail in meeting his terms of suspension as he resided in Mombasa was not able to pay rent in Kisumu without a salary.
  30. The Chief Justice under the Regulations was permitted to grant alimentary allowance to an officer on suspension. The Claimant did not receive any alimentary allowance. The term alimentary was similar to the term alimony. The terms generally described periodical payments sufficient for the bare support of the recipient.
  31. Without a salary and alimentary allowance, the Claimant was left without bare support. He would not have had the ability to honour the terms of his suspension or fairly defend himself before the 1st Respondent. Although payment of alimentary allowance to an officer on suspension was at the discretion of the Chief Justice, such discretion did not appear to have been judiciously exercised in the circumstances. The Claimant was not taken through a fair disciplinary process.
  32. An unfair termination decision made in the year 2012 would have correctly been remedied under the Employment Act 2007 notwithstanding that the disciplinary process was initiated in 2005.
  33. The remedy of reinstatement was appropriate whenever there were multiple violations in the process of termination. The retirement of the Claimant in the public interest was not based on valid reasons and was not carried out fairly.
  34. The Claimant had not discharged the role of Kadhi for about 13 years. The Employment Act 2007 did not allow the Court to reinstate employees whose contracts were unfairly terminated after the lapse of 3 years from the date of termination.
  35. Alimentary allowance was under the Regulations given at the discretion of the Chief Justice. The amount was determined by the Chief Justice. It was not something that the Court could enforce.
  36. The Claimant had a contract of employment which was only brought to an end in the year 2012. He was still an Employee of the 1st Respondent. The Claimant remained under contract and in the 1st Respondent’s payroll. The Claimant should not have been denied his salary for the period between June 2005 and June 2012. Had a proper disciplinary process been put in place, suspension would have in all likelihood been lifted and the Claimant restored to service with full salary for the period under suspension.
  37. The salary payable to a Kadhi was not static from 2005 up to 2012. The Claimant did not work up to 2012. A fair rate in granting him arrears of salary should have been the rate applicable when he left work.
  38. The Claimant did not demonstrate that he merited a compensatory award beyond the statutory ceiling the equivalent of 12 months’ gross salary. Remedies in claims for wrongful or unfair termination were not meant to cripple employers or enrich employees unjustly. The remedies were aimed at redressing economic injury sustained by the employee proportionately.
  39. The Claimant’s letter of appointment entitled him retirement benefits in accordance with the provisions of pension legislation of the Public Service of Kenya. The Judicial Service Commission Regulations stated that where an officer was retired in the public interest, the Pensions Branch of the Treasury had to be furnished with the full details of the case by the Chief Justice.
  40. The principle of fair dealing between Employers and Employees, called for delicate balancing of interests.

Claim partly allowed

  1. Retirement of the Claimant in the public interest declared wrongful and unfair.
  2. The 1st Respondent to pay to the Claimant: arrears of salary at Kshs. 1,388,100 and the equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 198,300- total Kshs. 1,586,400.
  3. The 1st Respondent to facilitate the Claimant in payment of pension.
  4. Interest granted on the arrears of salary at 14% per annum from June 2005, till payment made in full.
  5. Costs to the Claimant to be paid by the 1st Respondent.
CRIMINAL PROCEDURE The Duty of a Court to Inform an Accused Person Represented by an Advocate of the Options Available to him on Defence

Joseph Mwangi Njoroge v Republic [2017] eKLR
Criminal Appeal Number 314 of 2012
High Court at Nairobi
G.W.Ngenye-Macharia, J
November 8, 2017.
Reported by Kakai Toili

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Criminal Procedure – criminal trial process – defence – options available to an Accused person – duty of the Court to inform an Accused person the options available to him – where an Accused person was represented by an advocate - whether it was mandatory for a court to inform an Accused person represented by an advocate, of the options available to him in defence – Criminal Procedure Code, sections 211 & 311
Constitutional Law – fundamental rights and freedoms – right to fair hearing – submissions – written submissions – failure to give an Accused person an opportunity to file written submissions - whether failure to give an Accused person an opportunity to file written submissions amounts to violation of the right to fair hearing.
Criminal Procedure – submissions – written submissions – filing of written submissions – whether it was mandatory for an Accused person to file written submissions – Constitution of Kenya, 2010, article 159; Criminal Procedure Code, sections 311
Criminal Procedure – retrial – factors to consider before ordering a retrial - what were the factors to be considered before ordering a retrial.
Statutes – interpretation of statutes – interpretation of section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 – whether section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 provided for a mandatory sentence - Narcotic Drugs and Psychotropic Substances Control Act, 1994, section 4(a).

Brief facts:

The Appellant was charged with trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Act, 1994(the Act). The particulars of the offence were that on February 29, 2012 at around 7.00 a.m, at Ngara within Nairobi area, trafficked by conveying narcotic drugs namely cannabis to wit 50 stones with a street value of Kshs. 15,000/- in contravention of the Act.
The Appellant was found guilty and sentenced to pay a fine of Kshs. 1,000,000/- or in default serve 5 years imprisonment and in addition serve a life imprisonment. He was dissatisfied with both the conviction and sentence as a result of which he filed the appeal on the grounds that; the charge sheet was defective, that the provisions of article 50(2)(c) and (k) of the Constitution were contravened, that he was not granted an opportunity to present his defence, that the prosecution did not prove its case beyond a reasonable doubt and that section 213 of the Criminal Procedure Code was not complied with.

Issues:

  1. Whether it was mandatory for a court to inform an Accused person represented by an advocate, of the options available to him in defence.
  2. Whether failure to give an Accused person an opportunity to file written submissions amounted to violation of the right to fair hearing.
  3. Whether it was mandatory for an Accused person to file written submissions.
  4. What were the factors to be considered before ordering a retrial.
  5. Whether section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 provided for a mandatory sentence.Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 159 – Judicial authority.
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(a)justice shall be done to all, irrespective of status;
(b)justice shall not be delayed;
(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d)justice shall be administered without undue regard to procedural technicalities; and
(e)the purpose and principles of this Constitution shall be protected and promoted.

(3) Traditional dispute resolution mechanisms shall not be used in a way that—

(a)contravenes the Bill of Rights;
(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c)is inconsistent with this Constitution or any written law.

Criminal Procedure Code
Section 211 – Defence
(1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).
(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.

Section 213 - Order of speeches
The prosecutor or his advocate and the accused and his advocate shall be entitled to address the court in the same manner and order as in a trial under this Code before the High Court.

Section 310 - Prosecutor’s reply
If the accused person, or any one of several accused persons, adduces any evidence, the advocate for the prosecution shall, subject to the provisions of section 161, be entitled to reply.

Section 311- Where accused adduces no evidence.
If the accused person says that he does not intend to give or adduce evidence and the court considers that there is evidence that he committed the offence, the advocate for the prosecution shall then sum up the case against the accused person, and the court shall then call on the accused person personally or by his advocate to address the court on his own behalf.

Narcotic Drugs and Psychotropic Substances Control Act, 1994
Section 4 - Penalty for trafficking in narcotic drugs, etc.
Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

(a) in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or

Held:

  1. It was a settled practice under the Constitution of Kenya, 2010 dispensation that filing of written submissions had become the norm. Under article 159 courts could not dwell on technicalities but focused on doing substantive justice, written submissions served the purpose of expedience. Therefore, submissions could be oral or written, it all amounted to addressing the Court as provided by sections 213 and 310 of the Criminal Procedure Code. Submissions simply put meant an evaluation of the evidence of each party and analysis of the law.
  2. The Appellant failed to exercise the leave granted to him to file written submissions, that was occasioned by the failure of his advocate to file the written submissions. The Trial court ought to have given the Appellant an opportunity to file the submissions himself if he so wished since his counsel had failed him.
  3. The Appellant’s right to a fair trial was not violated, the right to file written submissions in a criminal case was only spelt out under section 311 of the Criminal Procedure Code which allowed the prosecution to sum up the case where the Appellant chose to exercise his right to remain silent with the same right being conversely applied to the defence. In instant case, the Appellant gave an unsworn statement of defence in which case the right to submit did not accord to him.
  4. Submissions by themselves were neither law nor evidence. They were only intended to sum up a case for a party. They did not constitute a new avenue to adduce evidence in a case but are rather meant as a guide to the Trial Court when evaluating the evidence before it. They did not form an integral part of the hearing and therefore they could not be said to be part and parcel of the trial.
  5. The Trial Court did not inform the Appellant of the options available to him as set out in section 311 of the Criminal Procedure Code. That duty was bestowed on the Court personally and it could not be dispensed with simply because the Appellant had an advocate on record. It sufficed for the Trial Court to merely indicate that section 211 had been complied with, that would have constituted an indicator that he understood the implications of giving a particular form of defence. That was not done and even if the Appellant was represented, it was important that it was understood that he had understood the import of adducing the unsworn defence he gave. The failure to comply with the provision meant that the entire trial was vitiated. That necessitated the Court to order a retrial.
  6. Several factors had to be considered before a retrial was ordered amongst them being;
    1. Whether the retrial was likely to result in a conviction.
    2. Whether the retrial would aid the prosecution to close gaps in its case.
    3. Whether any prejudice would be occasioned to the Accused.
    4. Whether the interests of justice would be served.
  7. The Appellant had been in custody for over five years. The sentence imposed against the Appellant was harsh and excessive as section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 did not provide for a mandatory sentence. Taking into account the nature and the quantity of the drug, the Appellant had served sufficient sentence.

Conviction quashed, sentence set aside and Appellant to be set free unless otherwise lawfully held.

CRIMINAL PROCEDURE Factors to Consider in Mitigation where an Accused Person was Charged with the Offence of Murder

Republic v John Nganga Gacheru & another [2018] eKLR
High Court at Kiambu
Criminal Case No. 31 of 2016
Joel Ngugi, J
January 16, 2018.
Reported by Kakai Toili

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Criminal Procedure– sentencing - sentencing for capital offences – where one was charged with the offence of murder – mitigation – factors to consider in mitigation - what were the factors to consider in mitigation where an Accused Person was charged with the offence of murder

Brief facts:
The Accused Persons were charged with murder contrary to section 203 as read together with section 204 of the Penal Code. The Court convicted them of the offence. At the time of conviction, a conviction for murder attracted a mandatory death sentence in Kenya. That changed on December 14, 2017 when the Supreme Court of Kenya, in Francis Kiarioko Muruatetu & another v Republic (Sup. Ct. Pet. No. 15 of 2015) decided that the mandatory death penalty imposed under section 204 of the Penal Code was unconstitutional. The Supreme Court permitted a Court that had convicted an Accused Person of murder to conduct a sentence hearing to determine the appropriate sentence. As a result the Court scheduled a sentence hearing for the Accused Persons.

Issue:

  1. What were the factors to consider in mitigation where an Accused Person was charged with the offence of murder?Read More...

Held:

  1. Death sentence was to be reserved for the highest level murder offence. The homicide in the instant case did not rise to that level. The murder in the instant case was not orchestrated. The element of statutory premeditation was satisfied however it was not the same as substantial, orchestrated or intricate planning for the offence. There was no evidence that the homicide was committed in a particularly heinous, cruel or depraved manner therefore the death penalty was not merited.
  2. The Court considered that both Accused Persons actively and positively were not remorseful and refused to acknowledge the crime committed or address the Court on it.
  3. There were a number of mitigating factors:
    1. The Accused Persons were under the influence of either alcohol or some other drugs. That was not offered as a defence and it would not have risen to the level of diminishing their criminal culpability, it was a relevant factor to consider in sentencing since it lowered the degree of blame.
    2. Both Accused Persons were first offenders.
    3. The homicide did not occur during the commission of another crime or during the immediate flight from the commission of a crime. Instead, it occurred in the midst of a seemingly spectacular and perhaps drunken orgy of violence occasioned by what the Accused Persons believed was a wrong committed on them.
  4. A custodial sentence of fifteen (15) years was an appropriate sentence for the homicide. In coming up with that global figure, the Court considered that the Accused Persons had been in custody since December 10, 2015.

Accused Persons sentenced to 15 years imprisonment.

CIVIL PRACTICE AND PROCEDURE A Petition Which is Based on a Political Question is not Justiciable.

Simion Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others
Petition No 4 of 2014
Environment and Land Court at Eldoret
A Ombwayo, J
February 9, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure-justiciability-nature of issues that would be non-justiciable-political questions-circumstances under which a suit would be considered to raise political questions and not legal questions-whether the Court could determine a claim wherein there was a decision to compensate illegal forest dwellers.
Constitutional Law-interpretation of constitutional provisions-locus standi-institution of a petition in the interest of a group or class of persons-whether the members of the group or class of persons for whom the petition was instituted would be required to sign forms to authorize their representation-Constitution of Kenya 2010, article 22(2).
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to equality and freedom from discrimination-denial of a benefit granted to persons in the same position as the Petitioners-where the benefit was granted on the basis of an illegal act-whether denial of compensation granted to persons who had occupied forest land illegally, where the Petitioner alleged to have occupied the same forest, was discriminatory-Constitution of Kenya 2010, article 27.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to property-where Petitioners were evicted after having occupied forest land illegally and were denied compensation which was offered to other former illegal forest occupants-whether the Petitioners could enforce the right to property under those circumstances-Constitution of Kenya 2010, article 40.

Brief facts:
The Petitioners filed the petition as members of or in the interest of a group of at least 364 persons known as the Kasukut clan. They said that they were genuine Embobut forest evictees and internally displaced persons (IDPs) who were omitted from the Respondents' harmonized registers of Embobut Forest evictees. They said that there were various errors in the registers and the registers contained an inflated number of affected persons and misleading information and corrupt and malicious acts affected the registers. The registers provided a basis for compensation of the IDPs and forest evictees.
The Petitioners said that their exclusion from the register was discriminatory and a violation of the Petitioners' rights under articles 19, 27, 40, 47, 48 and 50(1) of the Constitution.
The Respondents stated that the Petitioners were not genuine squatters who lived in Embobut Forest and they had no cause of action against the Respondents. They said that the identification of genuine squatters who were Embobut forest evictees was done by a Task Force and there was verification of the details gathered.

Issues:

  1. When would a matter be considered non-justiciable on grounds that it raised political questions?
  2. Whether a group or class of persons, in whose interest a petition was instituted for the enforcement of fundamental rights and freedoms, would be required to sign forms to authorize their representation in the petition.
  3. Whether the denial of a benefit which was granted to persons in the same position as the Petitioners, where the benefit was granted on the basis of having been evicted after illegally occupying a public forest, amounted to discrimination.
  4. Whether the right to property could be enforced by forest evictees who occupied a public forest illegally. Read More..

Held:

  1. Justiciability refers to the types of matters that the Courts can adjudicate. For a matter to be justiciable, the Court must not be offering an advisory opinion, the Petitioners must have standing and the issues must be ripe for determination. The Court needed to consider whether the dispute at hand was based on a political question or a legal question.
  2. The harmonization of the register of Embobut forest evictees was a political question and not a legal question. Dwelling in the forest was illegal and the question as to the genuineness of an illegal forest dweller was non-justiciable.
  3. Article 22(1) of the Constitution gave persons the right to institute Court proceedings for the enforcement of fundamental rights and freedoms. Under article 22(2) of the Constitution such Court proceedings could be instituted by a person acting in his or her own interest or by a person acting on behalf of another person who could not act in their own name, a person acting as a member of, or in the interest of a group or class of persons, a person acting in the public interest or an association acting in the interest of one or more of its members.
  4. Article 260 of the Constitution defined a person to include a company, association or other body of persons whether incorporated or unincorporated.
  5. Considering the provisions of the Constitution, the spirit of the Constitution, its purposes, values and principles and the advancement of the rule of law and human rights and fundamental freedoms, the development of the law and good governance, there was no requirement for members of the Kasukut clan to sign forms with respect to their representation in the petition.
  6. Article 27 of the Constitution provided for equality and freedom from discrimination. It presupposed that there was equality of every person before the law and equal treatment and equal protection and equal benefit of law, including the full and equal enjoyment of all rights and fundamental freedoms.
  7. The Petitioners did not demonstrate that they were part of the persons who occupied the Embobut forest illegally. The benefit sought by the Petitioners was not a legal benefit because they were occupying the forest illegally and no person ought to benefit from an illegality.
  8. Article 40 of the Constitution provided for the protection of the right to property. It was not applicable to the circumstances of the case as the Petitioners were not claiming to be land owners but were claiming to be genuine evictees of the Embobut forest. The Petitioners did not demonstrate that their property rights as envisaged by article 40 of the Constitution were violated.
  9. The profiling of evictees of Embobut forest was not a dispute that was being resolved by application of the law but by a political solution. It could not be said to be a constitutional issue which included an issue of fair administrative action and the right to be heard.
  10. Orders of certiorari could be granted where a body of persons or a statutory body acted beyond its jurisdiction or fell into procedural improprieties or acted irrationally. On the question of procedural impropriety, the Petitioners had not demonstrated that the Respondent failed to give them an opportunity to be heard and that the rules of natural justice were not complied with. The Court was shown that there was public participation in the preparation of the register. There was no basis for quashing the register.
  11. An order for compensation was incapable of being issued. The Petitioners occupied the forest illegally in contravention of the Forest Act. The illegality meant that there could be no compensation.

Petition dismissed.

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