Weekly Newsletter 012/2018

Weekly Newsletter 012/2018



Kenya Law

Weekly Newsletter


Constitutionality of Sections 3(3) and 11(2) of the Auctioneers Act
Josephat Musila Mutual & 9 others v Attorney General & 3 others [2018] eKLR
Petition No 120 of 2017
High Court at Nairobi
E.C. Mwita, J
February 23, 2018
Reported by Kakai Toili
Download the Decision

Constitutional Law interpretation of the Constitution - what were the principles to be applied in the interpretation of the Constitution – Constitution of Kenya, 2010, article 259 (1)

Constitutional Law fundamental rights and freedoms – equality and freedom from discrimination – membership to the Auctioneers Board - exclusion of persons appointed to be judges - whether exclusion of persons appointed to be judges from being members of the Auctioneers Board amounted to discrimination and therefore unconstitutional – Constitution of Kenya, 2010, article 24 (1) & 27 (4); Auctioneers Act section 3 (3)

Constitutional Law fundamental rights and freedoms – equality and freedom from discrimination – retirement of auctioneers - whether the mandatory requirement for licensed auctioneers to retire at the age of 70 years amounted to discrimination and therefore unconstitutional - Constitution of Kenya, 2010, articles 4 (2), 10, 27 & 57; Auctioneers Act section 10, 11(2)

Constitutional Law - national values and principles of governance - public participation – public participation in amending statutes - what was the standard to be applied in determining whether Parliament had met its obligation of facilitating public participation - Constitution of Kenya, 2010, article 10 & 118

Statutes - Statute Law (Miscellaneous Amendments) Acts – purpose - making substantial amendments to a statute - whether Statute Law (Miscellaneous Amendments) Acts could be used to make substantial amendments to a statute – Auctioneers Act, section 3(3) & 11(2)


Brief Facts:

In 2016, the National Assembly through the Statute Law (Miscellaneous amendment) Act 2016, amended various statutes one of them being the Auctioneers Act (No. 5) of 1996 (the Act). Various provisions of the Act were amended including introduction of section 3(3) which prohibited persons appointed to be judges from being members of the Auctioneers Board and section 11(2) which made it mandatory for licensed auctioneers to retire at the age of 70 years. The Petitioner alleged that the amendments were discriminatory and therefore unconstitutional. It was also alleged that there was no public participation in the process leading to the amendment of the Act.


Issues:

  1. What were the principles to be applied in the interpretation of the Constitution?
  2. Whether section 3 (3) of the Auctioneers Act prohibiting persons appointed to be judges from being members of the Auctioneers Board amounted to discrimination and therefore unconstitutional.
  3. Whether section 11(2) of the Auctioneers Act on the mandatory requirement for licensed auctioneers to retire at the age of 70 years amounted to discrimination and therefore unconstitutional.
  4. What was the standard to be applied in determining whether Parliament had met its obligation of facilitating public participation.
  5. Whether Statute Law (Miscellaneous Amendments) Acts could be used to make substantial amendments to a statute.

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 4 - Declaration of the Republic

(2) The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.

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

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

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

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

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

(a) the nature of the right or fundamental freedom;

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

Article 27- Equality and freedom from discrimination

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.


Article 57 - Older members of society

The State shall take measures to ensure the rights of older persons—

(a) to fully participate in the affairs of society;
(b) to pursue their personal development;
(c) to live in dignity and respect and be free from abuse; and
(d) to receive reasonable care and assistance from their family and the State.

Article 118 - Public access and participation

(1) Parliament shall—

(a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and
(b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

(2) Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.


Article 259 - Construing this Constitution

(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

Auctioneers Act
Section 3 - Establishment and membership of the Board

(2) Where a member of the Board nominated under section 3(1)(a), (b), (c) or (d) is nominated to the position of High Court, Court of Appeal or Supreme Court of Kenya, the appointee shall cease to serve as a member of the Board immediately upon assumption of office or elevation.


Section 10 - Eligibility for licence

(1) Subject to subsection (2) of this section and to section 11, a person who satisfies the Board that he—

(a) is a Kenyan citizen;
(b) has obtained sufficient knowledge and experience for a continuous period of not less than three years under or from a reputable licensed auctioneering firm;
(c) has not been convicted in the ten years immediately preceding the application of an offence involving fraud, dishonesty or immorality and is otherwise of good character and reputation;
(d) is not disqualified under the provisions of this Act from obtaining or holding a licence, may, on application to the Board, be licensed to carry on the business of an auctioneer.

(2) Notwithstanding the provisions of subsection (1), a person who—

(a) is a judge or a magistrate or is employed in any capacity as an executive or subordinate officer of a court; or
(b) deleted by Act No. 2 of 2002, Sch.;
(c) is an advocate deemed under section 30A of the Advocates Act (Cap. 16) to be practising in his professional capacity or is employed in any capacity by such advocate; or
(d) is a public officer or an officer or employee of any local authority, statutory body or state corporation,
(e) shall not be eligible to be licensed under this Act.

(3) A person who is a Member of the National Assembly, Senate or County Assembly shall be entitled to hold a general licence enabling him to realise securities and carry out repossessions in such parts of the country as may be specified therein.
(4) A person who obtains or holds a licence contrary to any of the provisions of this section commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.


Section 11 - Issue of licence in special circumstances
(2) A licensed auctioneer shall retire at the age of seventy years.

Held:

  1. Article 259(1) of the Constitution provided for the manner in which the Constitution was to be interpreted. The entire Constitution had to be read as an integrated whole with no particular provision destroying the other but each sustaining the other. That was the rule of harmony, the rule of completeness and exhaustiveness and not one provision destroying another. The Constitution had to be given a holistic interpretation and read as one entity to give value to the aspiration of the people, constitutional provisions ought to have been interpreted broadly or liberally and give values and aspirations of the people.
  2. The Court had to look at both purpose and effect to ascertain the constitutional validity of a statute or statutory provision. A statute or provision of a statute challenged had to be laid against the constitutional provision said to have been violated to enable the Court determine whether that was the Case.
  3. A constitutional provision containing a fundamental human right was a permanent provision intended to cater for all times to come and therefore had to be given a dynamic, progressive, liberal and flexible interpretation keeping in view the ideals of the people, their socio economic and political, cultural values so as to extend the same to the possible maximum.
  4. It was not clear why a person required to have qualification for appointment as a judge had to relinquish his position in the Auctioneers Board (the Board) once appointed a judge. The Chief Magistrate and even members of the Law Society all qualified for appointment as judges and there was a possibility that all members of the Board under that bracket could easily be appointed as judges at the same time which would render the Board non-functional. It was not clear the mischief the Legislature intended to cure through the amendment.
  5. A law requiring a member of the Board in to leave his position because he or she had been appointed a judge on the face it appeared discriminatory based on status or class. However, it was not the Court’s duty to inquire into the policy or Parliament’s wisdom in enacting a particular legislation. The Court’s duty was to determine whether the law squared with the Constitution. There could be underlying reasons or justification but which the Respondent postulated. There could be reasons such as conflict of interest, busy schedule among others.
  6. There was no serious conflict between section 3 (3) of the Auctioneers Act (the Act) and article 27 (4) of the Constitution. Excluding judges from being members of the Board of Auctioneers could not be said to be unconstitutional for reasons of discrimination. The Chief magistrate, the member appointed by the Chief Justice and the member representing the Law Society were capable of discharging the duties the persons appointed judges would have performed.
  7. It was not every little violation that could be declared unconstitutional. Article 24(1) of the Constitution allowed limitation of rights so long as the limitation was by law and was reasonable and justifiable in an open and democratic society. The limitation introduced by section 3 (3) of the Act was by law and was reasonable and justifiable. It could have been that judges were busy, often transferred to places and they could face challenges in attending Board meetings. A statute carried with it a presumption of constitutionality, such presumption extended in relation to a law which had been enacted for imposing reasonable restrictions in the fundamental right.
  8. There was no constitutional invalidity with regard to section 3 (3) of the Act. The only problem was with section 3(3) (b) of the Act. One person who was to join the Board by virtue of position in government was the Permanent (cabinet) Secretary in the Office of the President for the time being responsible for matters relating to National Security or his representative. The section stated that even that person had to relinquish his position in the Board on being appointed to the position of judge. It was not clear if the National Assembly really realized the oversight.
  9. There was no serious conflict between section 3 (3) of the Act and the Constitution to render it unconstitutional. There was an element of discrimination but it was not a grave violation to warrant a declaration of invalidity. It was a reasonable limitation and was justifiable to avoid burdening judges with administrative matters of the Board. Moreover, decisions of the Board especially those of auctioneers’ discipline being quasi- judicial were appealable to the Court and thereafter to the Court of Appeal. It was only reasonable that judges be exempted from sitting on the Board.
  10. Section 10 of the Act provided for qualifications for one to be licensed as an auctioneer, he had to be a Kenyan citizen, experienced, of good moral character, not convicted of a criminal offence and not disqualified from holding a licence. Section 11(2) of the Act however provided that a licensed auctioneer had to retire at the age of 70 years.
  11. Article 27(1) of the Constitution guaranteed equality and freedom from discrimination. It provided that every person was equal before the law and had the right to equal protection and equal benefit of the law, equality included the full and equal enjoyment of all rights and fundamental freedoms. The import of article 27 (1) was that human rights and fundamental freedoms were guaranteed to all persons by virtue of being human and had to be enjoyed without limitation. Rights and fundamental freedoms were guaranteed by the constitutions and had to be enjoyed by all human beings in equal measure and to the fullest extent.
  12. Article 27(4) of the Constitution was clear that the state could not discriminate directly or indirectly against any person on any ground. The Constitution therefore prohibited all forms of discrimination and grounds of discrimination were not exhaustive. Discrimination was that act of subjecting a person to different treatment from the others on any of the grounds stated in article 27(1) of the Constitution. When a person was subjected to a different standard of treatment because of his age that was open discrimination.
  13. A person alleging a violation of article 27 of the Constitution had to establish that because of the distinction made between the Claimant and others the Claimant had been denied equal protection or benefit of the law. It did not necessarily mean that different treatment or inequality would per se amount to discrimination and a violation of the Constitution.
  14. Auctioneers were human beings, they carried out business just like any other person for purposes of earning a living. They were in private business as opposed to public engagement. Although they served clients, theirs was private business which they did as individuals. The fact that they had to retire on attaining the age of 70 years was not based on any sound legal logic. They had offices, staff and clientele to serve. They were in private business and not public. They earned what they made in their private business. There was no justification to require them to fold their businesses simply because they had attained the age of 70 years.
  15. Article 4(2) of the Constitution declared Kenya a multi-party democratic state founded on the national values and principles of governance referred to in article 10. Any government founded on national values and principles of governance such as the rule of law, human equality, social justice and non-discrimination could not legislate to discriminate against a section of its citizens on account of age and that they could not pursue private business engagement through which they earned a living simply because they had attained a certain age. That was an obvious violation of clear constitutional provisions and such legislation would be null.
  16. Article 57 of the Constitution behooved the Government to take measures to ensure the rights of older persons to fully participate in the affairs of society, pursue their personal development and to live in dignity and respect and be free from abuse. Auctioneers were citizens in private business working to earn a living. They engaged in personal development and wanted to live in dignity by earning a decent and reasonable income to enable them sustain their dignity. They required respect and not discrimination. They were not a bother to society and least of all the Government regulated their conduct while they were in business. Unless one had violated the law that governed the business of auctioneers, there could be no reason to prescribe age limit for persons engaged in private business such as auctioneers. Section 11(2) violated the auctioneers right under both articles 27(4) and 57 of the Constitution. A statute or statutory provisions that violated rights and fundamental freedoms was unconstitutional to the extent of the inconsistence.
  17. Public participation and stake holder engagement during legislative process was a constitutional requirement. Laws were enacted to serve the society and therefore members of the public had a right to participate and give their input prior to legislation. That was a constitutional requirement and could not be overlooked since it was one of the values and principles of the Constitution.
  18. Article 10 of the Constitution was clear that the national values and principles of governance bound all state organs, state officers, public officers and all persons wherever they applied or interpreted the Constitution, enacted, applied or interpreted any law or made or implemented public policy decisions. The national values and principles of governance under article 10 of participation of the people could not be undermined.
  19. In undertaking its legislative mandate, the National Assembly was required to follow the principles articulated in article 10(2) (b) of the Constitution on public participation. Article 118(1) (b) of the Constitution was mandatory that Parliament had to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
  20. Public participation was not an option when it came to legislative matters. The National Assembly was under a constitutional obligation to facilitate public participation. No evidence was produced to show that there had been public participation. There was evidence to show that the Committee of the Board of Auctioneers was still engaging with stake holders and was yet to finalize deliberations when it noticed that amendments had been done.
  21. Public participation was a fact and not by name. Anyone who alleged that there was public participation had the solemn duty to show through evidence that indeed there was such public participation. The National Assembly had a broad measure of discretion on how it would achieve the object of public participation and how it was to be affected would vary from case to case but it had to be clear that a reasonable level of participation was afforded to the public.
  22. The standard to be applied in determining whether Parliament had met its obligation of facilitating public participation was one of reasonableness. The reasonableness of Parliament’s conduct depended on the peculiar circumstances and facts at issue. When determining the question whether Parliament’s conduct was reasonable, some deference had to be paid to what Parliament considered appropriate in the circumstances as the power to determine how participation in the legislative process would be facilitated rested upon Parliament. The Court had to have regard to issues like time constraints and potential expense. It had to be alive to the importance of the legislation in question and its impact on the public. The amendments were made without public’s involvement in violation of article 118 as well as the values and principles of the Constitution.
  23. The amendments were made through Statute Law (Miscellaneous Amendments) Act, (No 11 of 2017). The preamble to the Act stated that it was an Act of Parliament to make minor amendments to statute law. Statute Law (Miscellaneous Amendments) Acts were omnibus legislations involving several statutes used to correct minor anomalies, inconsistencies and errors that had no significant effects or change to the meaning and import of the Statute.
  24. Omnibus amendments in the form of Statute Law Miscellaneous legislations both on policy and good governance, which was one of the values and principles of governance in article 10 of the Constitution, which values and principles formed the foundation of the State and Nation as decreed in article 4(2) of the Constitution, ought to have been confined only to minor non-controversial and generally house-keeping amendments..
  25. Statute Law (Miscellaneous Amendments) Act could not be used to make serious or substantial amendments to a statute or legislation as Parliament did in the instant case. The amendments effected through the Statute Law (Miscellaneous Amendments) Act were quite substantial and affected the composition of the Auctioneers Board at any one time circumstances necessitated change of status of a member or members of the Board as contemplated by section 3(3) of the Act. The introduction of section 11(2) in particular, affected rights and fundamental freedoms of citizens yet it was done as though it was a minor and inconsequential amendment and without engaging the public and more so those who would be affected by the new sub section.
  26. Sections 3(3) and 11(2) could only be introduced through a normal Bill and after being subjected to public participation. The National Assembly could not introduce substantive amendments that violated rights of individuals in the manner it was done to the Act. They were not correcting an error, inconsistency or anomaly. The amendments were critical and affected rights and fundamental freedoms of auctioneers who were not consulted as the class of persons to whom the amendment was directed. They needed to give their in -put before the amendment was effected.
  27. The amendments and more particularly section 11(2) of the Act limited the right of auctioneers in violation of article 24(1) of the Constitution. The amendment was not only unreasonable but also unjustifiable in an open and democratic society based on human dignity, equality and freedom.
  28. Both the Petition and Responses only targeted the amendments in the Act. It was not possible to fault the other statutes that were affected by the Statute Law (Miscellaneous Amendment) Act because they were not the focus of both Pleadings and Submission. The Court was not told to what extent if at all, amendments to those statutes violated the Constitution to enable it make a sound decision. The invitation was therefore declined.
  29. Section 11(2) of the Act violated the Petitioners’ rights and fundamental freedoms it was inconsistent with the Bill of Rights and was therefore unconstitutional. The amendments to the Act though substantive, were introduced through a Statute Law (Miscellaneous Amendments) Act and without the involvement and benefit of Public participation in violation of the values and principles in the Constitution.
Petition allowed
  1. A declaration issued that sections 3 (3) and 11 (2) of the Auctioneers Act (No. 5 of 1996) were inconsistent with and in contravention of the Constitution and were therefore unconstitutional.
  2. Costs to the Petitioners.
Kenya Law
Case Updates Issue 012/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE A Failure to Comply With a Statutory Provision is not Necessarily a Constitutional Issue.

Godfrey Paul Okutoyi (suing on his own behalf and on behalf of all past and present customers of banking institutions in Kenya) v Habil Olaka- the Executive Director (Secretary) of the Kenya Bankers Association being sued on behalf of Kenya Bankers Association & another
Petition No 457 of 2015
High Court at Nairobi
Constitutional and Human Rights Division
E C Mwita, J
January 25, 2018
Reported by Beryl A Ikamari

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Civil  Practice and Procedure-institution of suits-suits relating a breach of a statutory provision-whether redress for such suits ought to be sought be means of the procedure set by statute or an ordinary suit and not a constitutional petition-where a constitutional petition was filed in order to seek redress for an alleged violation of section 44 of the Banking Act.
Civil Practice and Procedure-constitutional petition-form and content of a constitutional petition-particulars to be pleaded in a constitutional petition-the requirement that a litigant ought to set out with a reasonable degree of precision that of which he complained of, the provisions said to be infringed, and the manner in which they were alleged to be infringed-effect of failure to set out the manner in which a constitutional provision had been infringed.

Brief facts:
Section 44 of the Banking Act was introduced in 1989 and it provided that no institution would increase its rate of banking or other charges except with the prior approval of the Minister. The Petitioner's case was that since the introduction of the provision in November 1989, the 1st Respondent's members (financial institutions and banks) had increase bank rates and other charges without seeking the Minister's approval. He said that the 2nd Respondent, the Central Bank of Kenya, had failed to enforce compliance with section 44 of the Act, pursuant to its mandate under the Central Bank Act.
The Petitioner said that fraudulent or illegal increase in bank rates and charges had allowed financial institutions to unjustly enrich themselves. He said that the institution's customers were deprived of their hard earned money and there were many cases of mortgaged properties being prematurely auctioned, impoverished businesses and businesses placed under receivership as a result.
Stating that the increase in bank rates and charges under such circumstances went contrary to the right to property and consumer right, the Petitioner sought various reliefs which included declarations and compensation.
The Respondents, stated that the matter was not a clear constitutional petition and that it did not disclose violations of fundamental rights and freedoms. They said that it related to contractual matters which could be enforced via civil suit by the bank's and financial institution's customers. It was also said that there was no cause of action against the 1st Respondent which was a trade union that did not have the customers whose rights were allegedly being enforced by the Petitioner. The Respondents also said that the suit was an abuse of Court process as there was a pending suit before the commercial division raising similar issues.

Issue:

  1. Whether an alleged violation of a statutory provision constituted a cause of action for which redress ought to be sought by means of an ordinary civil suit or the procedure provided for by the statute and not a constitutional petition.
  2. Whether the filing of a petition in relation a cause of action which was being pursued in a pending civil suit amounted to an abuse of the process of Court. Read More...

Held:

  1. Section 44 of the Banking Act was intended to prevent indiscriminate increase in charges in banks and financial institutions without notice being issued to customers and it made approval from the relevant Minister necessary for such increases. The relationship between a bank and a customer was a private contractual arrangement and a breach of its terms was a breach of a normal contract and the redress for such a breach entailed the use of normal civil Court processes. A violation of section 44 of the Banking Act would be a breach of a statutory provision which could readily be redressed through a normal civil suit subject to the usual standard of proof in civil matters.
  2. A constitutional petition would be initiated to challenge a breach of constitutional provisions or fundamental rights and freedoms. Such rights had to be expressly or impliedly recognized in the Bill of Rights. They had to be the sort of fundamental rights and freedoms that belonged to each individual by virtue of being human and were not granted or grantable by the State.
  3. The petition did not allege that there had been a violation of specific constitutional provisions or infringement or specific rights and fundamental freedoms and state the manner of such breach. It is an established principle of law that anyone who wishes the court to grant a relief, for violation of a right or fundamental freedom, must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it. What the petition entailed was a general pleading of an alleged breach of a statutory provision which was capable of redress via a normal civil suit.
  4. A suit pending before the commercial division of the High Court, HCC No 443 of 2003, raised the same issues raised in the petition. It concerned a complaint about the violation of section 44 of the Banking Act. It was not denied that the petition was filed to avoid the finding of the Court in the civil suit to the effect that the aggrieved customers ought to move the Court individually and via evidentiary proof establish their claims. The filing of multiple suits or applications in order to advance the same cause could clog the judicial system and it was an abuse of the process of Court. It would cause illegitimate cases to flood the system instead of genuine ones.
  5. Where a customer was aggrieved by the imposition of new charges in contravention of section 44 of the Banking Act, such a customer would have to file a suit and prove his case to the required standard of proof. What a bank of financial institution charged customers at the time when section 44 was in place was a matter of proof via evidence within the terms of sections 107 & 109 of the Evidence Act and not a violation of human rights and fundamental freedoms.
  6. There were two things that the Petitioner was required to prove but he did not prove them. First, the Petitioner did not prove that banks and financial institutions had increased their charges without the approval of the Minister as required under section 44 of the Banking Act. Secondly, the Petitioner did not prove that any particular customer was aggrieved by such an increase in charges.
  7. There was no basis for instituting the petition during the pendency of a civil suit in the commercial division of the High Court which raised the same issues raised in the petition. The filing of a constitutional petition during the pendency of other proceedings before the same Court while raising the same issues, was an abuse of Court process.
  8. The suit pending at the High Court's commercial division was a representative suit. Those aggrieved were allowed to join the suit and those who did not join the suit were deemed not to be aggrieved. If the pending suit as well as the petition was allowed, the Petitioners would be enriching themselves unjustly.
  9. There was an alleged failure by the 2nd Respondent, the Central Bank of Kenya, to enforce section 44 of the Banking Act. The failure would be a failure to enforce a statutory provision and not a constitutional provision. That alleged failure did not amount to an unconstitutional act or conduct that violated the Constitution or rights and fundamental freedoms of bank customers.
  10. Rights conferred by statute were not fundamental rights recognized in the Bill of Rights. A breach of such rights ought to be redressed in the manner allowed by the statute or in an ordinary suit. Not every failure to comply with a statutory provision would amount to a breach that would give rise to a constitutional petition.

Petition dismissed.

CIVIL PRACTICE AND PROCEDURE Sending an Employee on Compulsory Leave is not an Administrative Action to Which the Right to Fair Administrative Action is Applicable.

Humphrey Makokha Nyongesa & another v Communications Authority of Kenya & 2 others
Judicial Review No 4 of 2018
(Formerly Nairobi High Court JR No 17 of 2018)
Employment and Labour Relations Court at Nairobi
Maureen Onyango, J
February 5, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure-actions based on violations of the Constitution-locus standi-locus standi in a claim for the enforcement of fundamental rights freedoms and a claim for redress with respect to contravention of a constitutional provision-whether persons who were not party to an employment contract, where persons who were party to the contract were parties to the suit, could institute a claim seeking to enforce fundamental rights and freedoms and to redress breaches of constitutional provisions, in relation to the employment contract-Constitution of Kenya 2010, articles 22 & 258.
Constitutional Law-locus standi-public interest matters-circumstances under which a matter would be deemed to be a public interest matter-whether a claim whose subject was that the Director General of a public body had been sent on compulsory leave allegedly in breach of the rules of natural justice and the rule of law, entailed a public interest matter.
Administrative Law-judicial review-natural justice-circumstances under which a decision would be deemed to be an administrative action to which the rules of natural justice were applicable-whether sending an employee on compulsory leave was an administrative action to which the right to fair administrative action and the rules of natural justice would apply-Constitution of Kenya 2010, article 47; Fair Administrative Action Act, No. 4 of 2015, section 4.
Words and phrases-meaning of the term "statutory underpinning"- employment contract with statutory underpinning-circumstances under which an employment contract would be considered to have a statutory underpinning-whether the employment contract of the Director General of the Communications Authority of Kenya had a statutory underpinning.

Brief facts:
The Applicants sought various remedies against the decision of the Communications Authority of Kenya, the 1st Respondent, to send the Interested Party, the 1st Respondent's Director General, on compulsory leave in order to facilitate an audit of Human Resource. They said that the decision was made unilaterally without consulting the Interested Party, that it was inconsistent with the organization's human resource policy and that it discriminated against the Interested Party. The Applicants stated that the decision went contrary to constitutional provisions on national values and principles of governance, the right to equality and freedom from discrimination and the right to fair administrative action recognized in articles 10, 27 and 47 of the Constitution.
In response, the 1st Respondent filed grounds of opposition. It said that the decision to send the Interested Party on compulsory leave had been effected and there was nothing to set aside and that no exceptional circumstances which warranted the setting aside of the decision had been established. They also said that the decision was legal and within the terms of the 1st Respondent's Human Resource Manual and the applicable law. The 1st Respondent also argued that the Applicants did not have locus standi. It said that under article 22 and 258 of the Constitution, in order to institute proceedings, the Applicants had to show that they had an interest in the matter and given that it was an employment matter they needed to show that the Interested Party could not act by himself. The 1st Respondent elaborated that the Interested Party was present and represented by an advocate.

Issues:

  1. With respect to employment matters, when would a party have locus standi to institute proceedings in Court for the enforcement of fundamental rights and freedoms and for a claim on the contravention of constitutional provisions?
  2. When would a suit constitute a public interest matter?
  3. Whether sending an employee on compulsory leave was an administrative action for which the provisions of article 47 of the Constitution were applicable.
  4. When would an employment contract be deemed to have a statutory underpinning?
  5. When would judicial review remedies be available in a claim relating to an employment contract? Read More..

Held:

  1. Article 22 and 258 of the Constitution provided for locus standi for purposes of instituting Court proceedings for the enforcement of fundamental rights and freedoms and for claims concerning the contravention of the Constitution. A person who instituted an action for such purposes had to come within the terms of the two provisions and had to specify the capacity in which he or she came to Court.
  2. The Applicants stated that they brought the application in furtherance of their obligation to respect, uphold and defend the Constitution whenever it as under attack, in their capacity as “good samaritans” and “on behalf of the greater public interest.” It was therefore necessary to determine whether the issue before the Court was a public interest matter or a private law matter.
  3. The only person who was affected by the decision to send the Interested Party on compulsory leave was the Interested Party. When being sent on compulsory leave, the Interested Party was directed to hand over office to the Director General Compliance and Standards. That meant that the public would not suffer a disadvantage as the Interested Party's duties would adequately be covered by the person appointed to act in his position. Given that the public would not be disadvantaged, the matter was not a public interest matter.
  4. Sending an employee on compulsory leave would not fit into the category of administrative action. The compulsory leave was not a disciplinary action but the beginning of an investigatory process and it was just a holding operation pending inquiries. At that stage, the rules of natural justice would not apply.
  5. The decision taken against the Interested Party was a matter relating to a private contract governed by employment law and the terms and conditions of employment in the employment contract. In sending the Interested Party on compulsory leave, the 1st Respondent was not exercising administrative action and therefore the action did not fall within the purview of article 47 of the Constitution and section 4 of the Fair Administrative Actions Act.
  6. There were instances in which judicial review could apply to employment contracts. Examples were where the employment contract had a statutory underpinning and where there were gross and clear violations of fundamental rights and freedoms.
  7. Statutory underpinning was a term of art and the term underpin meant to strengthen. As a concept it meant that the employee’s removal was forbidden by statute unless certain formal requirements prescribed by statute were complied with. It meant that certain mandatory procedures had to be followed before certain employment contracts were terminated.  Examples included constitutional office holders such as judges and the Attorney General.
  8. It was important to distinguish between a public body acting in its public capacity and a public body acting in a private capacity. A public body like any other employer could enter into private contracts with employees. In such cases the rights, duties and obligations of the public body were not different from those of a private entity that entered into private contracts with employees. The 1st Respondent had a private employment contact with the Interested Party. That contract ought not to be confused with an employment with a statutory underpinning where there was no direct relationship between the employer and the employee.

Application dismissed.

JURISDICTION Court Allows the Land Adjudication Process for the Ngare Mara/Gambella Section in Meru County to Continue Despite Claims of Non-Compliance With Legal Requirements.

County Government of Meru & another v District Land Adjudication and Settlement Officer Tigania East Sub-County & 18 others
Petition No 7 of 2017
High Court at Meru
L N Mbugua, J
February 1, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the High Court-jurisdiction to hear a constitutional petition-mixture of judicial review issues and constitutional law issues-where there were allegations of contravention of the provisions of the Constitution and some issues related to judicial review such as decisions made ultra vires the powers of a decision-maker-where the gist of the petition was on the propriety of a land adjudication section declaration by a District Land Adjudication and Settlement Officer-whether the High Court had jurisdiction over such a matter.
Civil Practice and Procedure-institution of suits-constitutional petition-nature and extent of locus standi in a constitutional petition-petition instituted in public interest by Petitioners (a County Government and its Governor) to question the propriety of a land adjudication section declaration by a District Land Adjudication and Settlement Officer-whether such Petitioners had locus standi to institute the petition.
Constitutional Law-interpretation of the provisions of the Constitution-community land-nature of land that would constitute community land-whether land that was occupied by a community for decades without title deeds was community land-Constitution of Kenya 2010, article 63(2)(d).
Constitutional Law-interpretation of the provisions of the Constitution-community land-scope of laws applicable to an adjudication process over community land-applicability of the Land Adjudication Act to such an adjudication process-Constitution of Kenya 2010, article 63(5).
Statutes-interpretation of statutory provisions-application of the Land Adjudication Act to community land-circumstances under which the Land Adjudication Act would apply to community land-the import of the requirements of section 3(a) and 3(b) of the Land Adjudication Act-whether the making of a formal request for the relevant Minister to apply the Act by order to community land was mandatory-Constitution of Kenya 2010, article 159(2)(d); Land Adjudication Act (Cap 284), sections 3(a) & 3(b).
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to property-effect of failure to comply with section 3 of the Land Adjudication  Act, which required the making of a formal request for the relevant Minister to apply the Act by order to community land, in an adjudication process in relation to community land-effect of the requirement that rights in the Bill of Rights were to be interpreted in a manner the most favoured the enforcement of the right-Constitution of Kenya 2010, articles 20, 40 & 159(2)(d); Land Adjudication Act (Cap 284), sections 3(a) & 3(b).
Land Law-principles of interpretation-principles of interpretation in environment and land matters-principles of intergenerational equity and intra-generational equity-where a community had inhabited land for over 60 years and had acquired a legitimate expectation to granted title to the land-whether the halting of an adjudication process undertaken for purposes of title acquisition violated the principles of intergenerational equity and intra-generational equity.

Brief facts:
On May 8, 2015, the County Assembly of Meru County resolved that the County Department of Land Planning would engage the National Land Commission and the Cabinet Secretary, responsible for land and environment matters, with a view of establishing adjudication sections within Meru County. One of the adjudication sections would be the Ngare Mara/Gambella section which was trust land held in trust by the County on behalf of the community. Without communicating with the County Government, without consultation or any public participation or compliance with section 8(1) of the Community Land Act, on March 11, 2016, the District Land Adjudication Officer, Tigania East District (Sub-County), issued a notice of establishment of an adjudication section known as Ngare Mara/Gambella Adjudication Section.
The 1st Petitioner, the County Government of Meru, said that it was important for the 1st Respondent, the District Land Adjudication Officer, Tigania East District (Sub-County), to work in collaboration with it. The County Government said that it had commenced crucial projects within the declared adjudication section. The projects included the proposed planned township of Turingwi “A” and Turingwi “B. The 1st Petitioner also said that the proposed adjudication section had various public utilities and facilities administered by the County Government of Meru. The 1st Petitioner stated that there was a possibility that the proposed projects would stall and that unscrupulous individuals would grab the public land.

Issues:

  1. Whether the Court had jurisdiction to hear and determine the petition.
  2. Whether Petitioners had the locus standi necessary to institute the petition.
  3. What nature of land would constitute community land?
  4. What was the applicable law to a dispute concerning an adjudication process over community land?
  5. Whether the land adjudication process was undertaken in compliance with legal requirements including section 8 of the Community Land Act and section 3 of the Land Adjudication Act, which provided for an order of the Minister to apply the Land Adjudication Act to community land and for the publication of an adjudication programme for purposes of registration of community land in the Kenya Gazette by the relevant Cabinet Secretary in consultation with the County Government concerned, respectively.
  6. Whether long-term inhabitants of community land had a legitimate expectation to be given title deeds to the land after the conduct of an adjudication process.
  7. Whether failure to conduct an adjudication process and grant title to land to persons who had inhabited community land for over 50 years was a violation of the principles of intergenerational equity and intra-generational equity and the right to development. Read More...

Held:

  1. Some of the issues raised in the petition were within the ambit of judicial review. An example of such an issue was the allegation that the decision of the 1st Respondent to make an adjudication section declaration was ultra vires. However, other issues in the petition such as the issue as to whether the suit land was unregistered community land and the issue on the applicable law, were issues which could properly be determined via a petition.
  2. The petition was instituted in public interest. It not only touched on land adjudication issues but it also concerned constitutional issues. It referred to the Land Adjudication Act and other statutes including the Community Land Act. Therefore it was not necessary for the Petitioners to seek consent under section 30 of the Land Adjudication Act in order to institute the suit. The suit was properly before the Court and the Petitioners had locus standi to institute it.
  3. The suit land comprised of unregistered community land and it fell within the provisions of article 63(2)(d) of the Constitution. The history of the land was that community members used it for decades pursuant to a process known as gathering of the land. The community's goal was to get title deeds.
  4. Article 63(2)(d) of the Constitution provided that community land consisted of land which was lawfully held, managed or used by specific communities as community forests, grazing areas or shrines or ancestral land and lands traditionally occupied by hunter-gatherer communities or land lawfully held as trust land by County Governments but excluding public land held in trust by the County Government under article 62(2) of the Constitution.
  5. Pursuant to the provisions of article 63 (4) of the Constitution, the legislation specifying the nature and extent of the rights of community members was primarily the Land Adjudication Act and the Community land Act. The Trust Land Act was no longer applicable as it was repealed by Community Land Act.
  6. The preamble of the Land Adjudication Act provided that it was an Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto.
  7. The importance of the ascertainment and recording of rights in unregistered community land was discernible from the fact that the two main statutes dealing with the adjudication process (the Land Adjudication Act and Land Consolidation Act) were not repealed by the enactment of Community Land Act, yet other legislation dealing with Community Land for instance, the Land (Group Representatives) Act and Trust Land Act were repealed.
  8. The adjudication process commenced 6 months before the coming into force of the Community Land Act. However, the Community Land Act was meant to provide a seamless transition in the management of community lands. The two statutes (the Community Lands Act and the Land Adjudication Act) were to operate in harmony and not in conflict. If the drafters of the Community Land Act intended that only the Community Land Act would apply to the adjudication of community land, they would have made provision for that.
  9. The contention that section 8 of the Community Land Act had to be complied with before the commencement of the adjudication process was unfounded. The Community Land Act came into force 6 months after the commencement of the adjudication process.
  10. Section 3 of the Land Adjudication Act  provided that the Minister may by order apply the Act to any area of community land if the County Government in which the land was vested made a request and the Minister considered it expedient that the rights and interests of persons in the land be ascertained and registered. To determine compliance with the provision, it was necessary to determine whether the County Government made the prescribed request and whether the Minister made the prescribed considerations and applied the Act to community land.
  11. There was evidence that a resolution was passed by the County Assembly of Meru County on May 8, 2015 for the department of land, ICT and planning to engage the N.L.C with a view of establishing adjudication sections. It was clear that the Petitioners were involved in the adjudication process but there was no evidence of a formal request under the terms of section 3 of the Land Adjudication Act.
  12. The evidence of the 1st Respondent indicated that he had discussed the issue of the Ngare Mara Adjudication with the County Principal Secretary and the Land Adjudication Director at Maua in the presence of the relevant Cabinet Secretary. However, there was no express order or formal document showing that the Minister acted upon considerations set out in section 3 of the Land Adjudication Act.
  13. There was no formal request by the County Government and there was no formal order by the Minister to have the area declared as an adjudication section. However, that in itself would not be the basis of determining the petition.
  14. The petition dealt with the emotive issue of land. The Court was alive to the fact that the suit land was occupied and yet the rights and interests of the residents had not been formerly ascertained. Against that background the law ought to be interpreted holistically.
  15. Article 40 of the Constitution provided for the protection of the right to property and under article 20(3) (b) of the Constitution the Court was to adopt an interpretation that favoured the enforcement of a right. Further, article 20(4) of the Constitution provided that in interpreting the Bill of Rights the Court would promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom.
  16. The word used in section 3 of the Land Adjudication Act with respect to what the Minister was required to do was "may" and not "shall." The proviso to that provision did not state the manner in which the request and the order were to be made.
  17. Article 159(2)(d) of the Constitution provided in mandatory terms that justice was to be administered without undue regard to procedural technicalities. Therefore, the absence of a formal request from the County Government and an order from the Minister would not hinder the quest for substantive justice for the community members who intended to benefit from the adjudication process.
  18. History indicated that settlement on the suit land began in the 1950s. The Petitioners had not done much to ensure that members of the community got title to their land and to implement the resolution of the County Assembly of Meru County in 2015. Allowing the petition would only perpetuate injustices for the people of Muthara/ Ngare Mara.
  19. Legitimate expectation is a variant of the duty to act fairly. It arises where a decision-maker induces someone to reasonably expect that he will receive or retain a benefit of advantage. As a basic principle of fairness, a legitimate expectation ought not be thwarted.
  20. The 1st Interested Parties were representatives of the community living on the suit land. They had a legitimate expectation that they would get title to the land. That expectation had been there for decades. Rights over the land could only be acquired by members of the community after the ascertainment of rights and interests over the land through the adjudication process. The legitimate expectation would be thwarted if the adjudication process was halted.
  21. The principles of intergenerational and intra-generational equity were enshrined in section 18 (a) (iv) of the Environment and Land Court Act. With respect to the suit land, for 50 years successive generations have waited for their rights and interests in the land to be ascertained in accordance with the provisions of the Land Adjudication Act. Persons, in Rwarera and Akiithi, who were apparently in the same vicinity had benefited from adjudications. However, persons from Ngare Mara had been left behind. Without adjudication such persons would be unable to fully utilize the land in terms of social economic benefits.
  22. Pursuant to the right to development, human beings had a right to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms would be realized. The right was an integral part of human rights and the community residing on the suit land was entitled to enjoy the right to development.
  23. To implement the right to development, there was need for effective development policies and programmes. The generation of power, which was within the mandate of the 2nd Interested Party, was an example of such policies and programmes. It would promote economic development for the County Government of Meru and the entire nation.
  24. Article 201(d) of the Constitution made a mandatory requirement for public money to be used in a prudent and responsible way. Public funds were pumped into the adjudication process. The petition was filed in excess of a year after the notice declaring the adjudication section was issued. The Petitioners needed to be candid on when they learnt about the notice.
  25. The adjudication process was already underway and if halted there was a real risk that the process would be thrown into disarray. The Court had to guard against that risk.
  26. The Petitioner ought to be at the forefront of supporting the adjudication process instead of calling for it to be disbanded. The process ought to continue despite the shortcomings in compliance with section 3 of the Land Adjudication Act.
  27. Public participation was one of the key constitutional principles recognized in article 10 of the Constitution. The residents in the suit land gave a detailed account of community engagement with stakeholders in the adjudication process and of the fact that they had pursued the issue of adjudication for a long time.
  28. There was evidence of public participation in the adjudication process and the forming of the committee with responsibilities in the adjudication process. The allegations that there was no public participation in the process were unfounded.
  29. It was evident that it was not clear whose interest the petition was being filed to safeguard. The 1st Interested Parties stated that they had been discriminated against by successive Governments since independence and that successive County Governments had made attempts to deprive them and subdivide the land and distribute it to cartels and cronies.
  30. The Petitioners’ averments that there were ongoing projects on the suit land were not a justification for halting the adjudication process. The public utilities would still remain under the care of the Petitioners.

Petition dismissed.

CIVIL PRACTICE AND PROCEDURE The Options Available to the Court in Resolving a Situation Where a Party was In Contempt of Court.

Miguna Miguna v Director of Public Prosecutions & 2 others
Misc. Criminal Application No 57 of 2018
High Court at Nairobi
Criminal Division
L Kimaru, J
February 15, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure-contempt of Court-definition of contempt of Court-conduct that would amount to contempt of Court-failure to comply with an order of the Court-Contempt of Court Act, No. 46 of 2016, section 4(1)(a).
Civil Practice and Procedure-contempt of Court-punishment for contempt of Court-circumstances in which the Court would opt not to punish an alleged contemnor despite a finding that the contemnor was in contempt of Court-where the Court opts to give a contemnor an opportunity to purge his contempt-Contempt of Court Act, No. 46 of 2016, section 28.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to liberty, right to freedom and security of the person and rights of an arrested person-remedies available for alleged breaches of fundamental rights and freedoms-anticipatory bail-Constitution of Kenya 2010, articles 23(3), 29(a) & 49(1)(f).

Brief facts:
On February 2, 2018, the Applicant was arrested. The Applicant then successfully made an application for release on anticipatory bail. On the same day, February 2, 2018, the High Court ordered him to pay Kshs. 50, 000/= as cash bail. He was also ordered to appear before the High Court on February 5, 2018, if the Respondents intended to charge him with an offence. However, the Applicant was not released as ordered by the Court and on February 5, 2018 he did not appear before the High Court.
On February 5, 2018, the High Court made orders for the Applicant to appear before it at 9.00 a.m. and for the Inspector General of Police and the Director of Criminal Investigation, to appear before the Court personally to show cause why they ought not be punished for being in contempt of the orders of the Court. On February 6, 2018, the High Court was informed that the Applicant was scheduled to appear before the Chief Magistrate’s Court at Kajiado to answer to charges. The Chief Magistrate's Court made orders for the police to produce the Applicant before the High Court at 3.00 p.m. on February 6, 2018. On that date at 3.00 p.m., the High Court was informed that by Court orderlies that the Applicant was within the Court precincts in a holding cell. Nonetheless, the Applicant was not produced before the High Court on that day. The High Court directed that the Applicant be produced before the Court by 11.00 a.m. on February 7, 2018.
On February 7, 2018, the Deputy Director of Public Prosecutions informed the Court that the Applicant had been deported upon receipt of a letter written to the Ministry of Foreign Affairs by the Canadian High Commission. The deportation was undertaken pursuant to a declaration issued by the Cabinet Secretary for Interior and Coordination of National Government under sections 43 and 33(1) of the Kenya Citizenship and Immigration Act 2011. The Canadian High Commission was concerned that they were unable to verify or confirm the wellbeing of the Applicant due to fact that he was being kept incommunicado.
The High Court directed the 2nd and 3rd Respondents to swear affidavits showing the circumstances under which the Applicant was removed from the Court's custody and handed over to the Director of Immigration. The High Court received affidavits from the 2nd and 3rd Respondents and also from the Director of Immigration.

Issues:

  1. Whether the 2nd and 3rd Respondents failed to comply with Court orders and acted in contempt of Court. 
  2. What were the consequences of a finding by the Court that a party was in contempt of Court?
  3. When would the Court grant an Applicant anticipatory bail? Read More...

Held:

  1. The 2nd and 3rd Respondents said that they did not intend to disobey Court orders but it was apparent that they had engaged in deliberate disobedience of the orders. They creatively interpreted the orders in order to avoid liability for contempt of Court.
  2. The averments in their affidavits confirmed that the 2nd and 3rd Respondent were aware that the orders of the High Court required them to produce the Applicant before the Court to be dealt with in accordance with the law. They were also aware of the orders of the Kajiado Chief Magistrate’s Court to produce the Applicant before the High Court on February 6, 2018 by 3.00 p.m. The Office of the Director of Public Prosecutions was represented in Court and communicated to the 2nd and 3rd Respondents about the orders that the High Court issued.
  3. The 2nd and 3rd Respondents claimed to have complied with the orders of the High Court but instead of producing the Applicant before the Court at 3.00 p.m. on February 6, 2018, they released him at the Inland Container Depot Police Station at Embakasi on that day at 6.00 p.m. Therefore the 2nd and 3rd Respondents acted in contempt of Court.
  4. The 2nd and 3rd Respondents were mandated under article 232 of the Constitution to uphold, inter alia, high standards of professional ethics, responsiveness, promptness, effectiveness, impartiality and equity in the provisions of service to the public. They were also required to be accountable for their administrative actions done in the course of their duties. Additionally the national values and principles of governance as espoused in article 10(2) of the Constitution required the 2nd and 3rd Respondents, in the course of their duties, to respect human dignity, equity, social justice, inclusiveness, and equality.
  5. The Applicant made the application for anticipatory bail to secure his liberty and to enforce his right to freedom and security of the person and the right not to be deprived of freedom arbitrarily or without just cause as recognized in article 29(a) of the Constitution. The Court's jurisdiction to grant anticipatory bail was based on the Constitution. Anticipatory bail would be an appropriate remedy for a person constantly subjected to harassment and in fear of being unjustifiably arrested. It was available as an appropriate relief fashioned by the Court for purposes of enforcing fundamental rights and freedoms.
  6. Under article 49(1)(f) of the Constitution, after being arrested, the Applicant had the right to be brought before a Court as soon as reasonably possible, but not later than twenty-four hours after being arrested; or if the twenty-four hours ended outside ordinary Court hours, or on a day that was not an ordinary Court day, the end of the next Court day.
  7. The Applicant was arrested in February 2, 2018. On the day of his arrest he was granted anticipatory bail for his release with directions that he would present himself before Court on February 5, 2018. February 2, 2018 was on a Friday. Despite being required to release the Applicant on February 2, 2018, the 2nd and 3rd Respondents did not release him. After being served with the Court orders they ought to have released the Applicant on February 3, 2018 or February 4, 2018 but they did not.
  8. When the matter was mentioned before the High Court on February 5, 2018, the 2nd and 3rd Respondents did not present the Applicant before court as required under article 49(1)(f) of the Constitution. That was the reason why the High Court directed the 2nd and 3rd Respondent to appear before the Court on February 6, 2018 and present the Applicant to the Court so that he could be dealt with in accordance with the law. On February 6, 2018, in spite of the order issued by the High court, twice during the same day, the 2nd and 3rd Respondents did not present the Applicant before Court so that he could be released in accordance with the orders of the Court.
  9. Contempt of Court proceedings were necessary for the rule of law and administration of justice to be effective and efficacious in securing compliance with the orders of the Court. Failing to comply with Court orders was a form of contempt of Court. Under section 4(1)(a) of the Contempt of Court Act 2016, contempt of Court included civil contempt which meant wilful disobedience of any judgment, decree, direction, order or other process of a Court or wilful breach of an undertaking given to a Court.
  10. When the High Court found that the 2nd and 3rd Respondents were apparently in contempt of Court, it required them required to personally appear before the Court to show cause why they acted in contempt of the orders of the Court and why they ought not be punished for being in contempt. They were also required to swear affidavits explaining how the Applicant was removed from the Court's custody and handed over to the Director of Immigration. Asking the 2nd and 3rd Respondents to show cause was in fulfilment of the duty of the Court to give a hearing before issuing a final verdict on contempt.
  11. Section 28 of the Contempt of Court Act provided for the punishment that would be meted out where a person was convicted for contempt of the orders of the Court. The punishment included a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding six months, or both. Additionally, such a person could be detained in police custody until the rising of the Court.
  12. The Court had other options for purposes of securing respect of Court orders and meeting the ends of justice. The Court could direct the contemnor to take positive action to purge the contempt.
  13. The 2nd and 3rd Respondents would be granted an opportunity to purge the contempt of the orders of the Court. Committing the 2nd and 3rd Respondents to prison would not serve the ends of justice in the particular circumstances of this case.
  14. The Court had power to hold accountable third parties who assisted primary contemnors to commit contempt of Court. It was clear that the 2nd and 3rd Respondents acted together with the Director of Immigration to defeat the orders of the High Court that required the 2nd and 3rd Respondents to produce the Applicant before the Court. It is trite that any action done in contempt of the orders of the Court is illegal and could not be given recognition in the eyes of the law. It was evident that the action taken by the Director of Immigration in furtherance of the contempt of the orders of the High Court was illegal, null and void and did not have any legal effect.

The 2nd and 3rd Respondent guilty of contempt of Court.
Orders: -

  1. The declaration dated February 6, 2018 issued by Fred Matiang’i, Cabinet Secretary, Ministry of Interior and Coordination of National Government, in respect of the Applicant, on the advice of the Director of Immigration, under section 33(1) of the Kenya Citizen and Immigration Act 2011 was declared null and void and of no legal effect because it was issued in contempt of the orders of the Court.
  2. The declaration dated February 6, 2018 issued by Fred Matiang’i, Cabinet Secretary, Ministry of Interior and Coordination of National Government in respect of the Applicant, on the advice of the Director of Immigration, under section 43 of the Kenya Citizenship and Immigration Act 2011 was declared null and void and of no legal effect because it was issued in contempt of the orders of the Court.
  3. The valid Kenyan Passport of the Applicant had to be surrendered to the Deputy Registrar of the Court by the Director of Immigration within seven (7) days of the Ruling. That Passport had to be dealt with by the Court with jurisdiction in accordance with the law.
  4. The 2nd and 3rd Respondents had to personally give a written undertaking to the Court that they would comply and give effect to the orders of the Court. The undertakings would have to be presented to the Court within seven (7) days of the Ruling.
  5. For avoidance of doubt, upon compliance with the orders of the Court, the 2nd and 3rd Respondents and the Director of Immigration would be at liberty to defend the validity of their actions before a Court of competent jurisdiction.
  6. Leave was granted to the 2nd and 3rd Respondents and any aggrieved party to appeal against the decision of the Court.
LEGAL SYSTEMS Committal to Civil Jail, Where the Judgment Debtor Had the Ability to Pay The Debt But Had Failed to Do So, Was Not Unconstitutional

Charles Lutta Kasamani v Concord Insurance Co Ltd & another
Petition No 303 of 2015
High Court at Nairobi
Constitutional and Human Rights Division
E C Mwita, J
February 16, 2018
Reported by Beryl A Ikamari

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Legal systems-sources of law-hierarchy amongst the sources of law-the hierarchical status of international treaties ratified by Kenya-where it was alleged that statutory provisions contradicted with the provisions of an international treaty-whether section 38 and 40 of the Civil Procedure Act contradicted with article 11 of the International Convention on Civil and Political Rights as concerned the question as to whether a judgment debtor could be committed to civil jail-Civil Procedure Act (Cap 21), sections 38 & 40; International Convention on Civil and Political Rights, 1966, article 11.
Civil Practice and Procedure-decrees-execution of decrees-committal to civil jail-where it was shown that a judgment debtor had failed to pay a decretal sum despite having the ability to do so-whether under the provisions of article 11  of the International Convention on Civil and Political Rights it was legal to commit such a judgment debtor to civil jail for failure to pay- Civil Procedure Act (Cap 21), sections 38 & 40; International Convention on Civil and Political Rights, 1966, article 11.
Constitutional Law-judiciary-judicial officers- judicial immunity-acts done in the performance of a judicial function-issuance of orders for committal to civil jail after due process was followed-whether a Deputy Registrar who issued orders for a judgment debtor to be committed to civil jail could be sued for having issued such orders, allegedly on grounds that the orders were unconstitutional-Constitution of Kenya 2010, article 160 (5); Judicial Service Act, No. 1 of 2011, section 45.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to liberty and dignity and right to freedom and security of the person-nature of limitations placed on fundamental rights and freedoms which would be considered to be reasonable-committal to civil jail as a limitation placed on the enjoyment of fundamental rights and freedoms-Constitution of Kenya 2010, article 24.

Brief facts:
The Petitioner was indebted to the 1st Respondent. The 1st Respondent instituted Court proceedings and obtained a decree for Kshs. 3,806,676/= with costs and interest against the Petitioner. The Petitioner did not pay the decretal sum and he explained that the non-payment was due to his inability to practice law between 2007 and 2013.
The 1st Respondent took out execution proceedings and the Petitioner was served with a notice to show cause why he ought not be committed to civil jail for failing to pay the decretal sum. Despite being served he did not attend Court. On July 16, 2015, the Petitioner was arrested and presented before the Deputy Registrar and upon failing to show cause, he was committed to civil jail.
On July 17, 2015, the Petitioner filed the petition stating that his committal to civil jail was unconstitutional because he was unable to pay the debt as he genuinely did not possess the property to pay for it. He stated that such committal to civil jail was unconstitutional and it went against the provisions of the International Convention of Civil and Political Rights (ICCPR) which was part of the laws of Kenya by virtue of article 2(6) of the Constitution. The Petitioner stated that the Respondents violated his constitutional rights guaranteed under articles 28, 29, 39, 47 and 51 of the Constitution.

Issues:

  1. What was the hierarchical status of international treaties ratified by Kenya as compared to the Constitution and statutes?
  2. Whether a judgment debtor who had indicated ability to pay a decretal sum would be protected from committal to civil jail as means of executing the decree under section 38 of the Civil Procedure Act and article 11 of the International Convention on Civil and Political Rights.
  3. Whether committal to civil jail of judgment debtor who had the ability to pay a decretal sum was a violation of that debtor's fundamental rights and freedoms.
  4. Whether a person could institute a suit against the Deputy Registrar of the High Court with regard to the performance of a judicial function. Read More..

Held:

  1. The 1st Respondent was a beneficiary of a decree of a Court of competent jurisdiction. Section 38 of the Civil Procedure Act empowered the Court, upon application by a decree holder, to order execution and an order of arrest and detention of a person in prison was a form of execution.
  2. The proviso to section 38 was to the effect that where a decree was for the payment of money, execution by detention would not be ordered unless after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, for reasons recorded in writing, the Court was satisfied either that;
    1. the judgment debtor possessed or had possessed since the date of the decree the means to pay the amount of the decree or some substantial part thereof; or,
    2. that the decree was for a sum which the judgment debtor was bound in a fiduciary capacity to account.
  3. Article 11 of the International Covenant on Civil and Political Rights provided that no one ought to be imprisoned merely on the ground of inability to fulfil a contractual obligation. The Convention was ratified by Kenya and it was part of the laws of Kenya recognized under article 2(6) of the Constitution. As part of the laws of Kenya, the International Convention of Civil and Political Rights (ICCPR) did not have a hierarchical status that was higher than that of other statutes. It could only rank pari passu with statutes. It was not equal to the provisions of the Constitution.
  4. Where provisions in different statutes appear contradictory, it is a general principle of statutory interpretation that as much as possible, the statutes should be read and interpreted in a manner that brings harmony. There was no apparent conflict between sections 38 and 40 of the Civil Procedure Act and article 11 of ICCPR. Even under section 38 and 40 of the Civil Procedure Act, a person would not be committed to civil jail for his or her inability to pay a debt.
  5. Under sections 38 and 40 of the Civil Procedure Act, in an application for committal, the determining factor was inability to pay. Inability meant that the judgment debtor had completely no means of settling the decree however much time he was given to do so.
  6. Article 11 of ICCPR and section 38 of the Civil Procedure Act protected the dignity of those who were unable to pay. However it ought not to be taken as a blanket cover for even those who had the means but refused to pay and instead sought refuge under article 11 of ICCPR.
  7. The right to liberty and dignity and the right to freedom and security of the person were not absolute. Article 24 of the Constitution stated that they could be limited where the limitation was reasonable and justifiable in an open and democratic society. The limitation of those rights under sections 38 and 40 of the Civil Procedure Act and order 21 of the Civil Procedure Rules was reasonable. It was meant to enforce Court decrees where a party, who had the means, refused to meet his obligations under the decree.
  8. Without enforcing Court decrees through committal to civil jail where the judgment debtor had the means but refused to pay, there would be an infringement of the rights of those who had successfully utilized the legal system and obtained decrees. Such decrees would be unenforceable because judgment debtors who refused to pay them would rush to Court and obtain declarations of violations of fundamental rights and freedoms to avoid committal to civil jail.
  9. A party with a decree from a competent Court had a right recognized in law. That right could only be recognized through execution including committal to civil jail. It ought not to be easy for a judgment debtor to defeat that right by making committal to civil jail an unavailable option, despite ability to pay up in the decree. The law ought to protect only those who could not pay genuinely.
  10. There was nothing unconstitutional in sections 38 and 40 of the Civil Procedure Act.  Committal to civil jail of a person who was able to make payments under a decree but had refused to do so was lawful and it would not amount to a violation of fundamental rights and freedoms.
  11. It was shown that there were instances where the Petitioner asked for payment by instalments and indicated ability to pay the decretal sum. On March 26, 2013 parties recorded a consent to the effect that the Petitioner would liquidate the decretal sum by monthly instalments of Ksh. 100,000/= with effect from April 30, 2013 and in default execution would issue. On July 16, 215, when responding to a notice to show cause, the Petitioner said that he had properties which he could dispose of and he requested for time to do so. There was an admission that the Petitioner had the ability to pay the decretal sum.
  12. The petitioner did not fit into the category of persons who could seek refuge under section 38 of the Civil Procedure Act as read with article 11 of ICCPR as a person who was unable to pay. What the Petitioner required was time to pay. In that case, the Petitioner had the option of making an application for a review of the Deputy Registrar's decision or to engage the 1st Respondent so that he could be accommodated.
  13. The Deputy Registrar was acting in his/her official capacity as the officer responsible for ensuring that the decree was executed and was the one to commit the Petitioner where there was default. He/she was therefore performing judicial functions. Article 160 (5) of the Constitution and section 45 of the Judicial Service Act insulated judicial officers from suits arising from the performance of their official duties. Joining the Deputy Registrar as a party to the suit was therefore a violation of the Constitution and statute.

Petition dismissed.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org