Weekly Newsletter 015/2018

Weekly Newsletter 015/2018



Kenya Law

Weekly Newsletter


Capital Gains Tax in Transactions entered into pursuant to the Chargee’s Statutory Power of Sale not Payable before Completion of Sale of the Charged Property
Kenya Bankers Association v Kenya Revenue Authority [2018] eKLR
Miscellaneous Civil Case No. 510 of 2017
High Court at Nairobi
G. V. Odunga, J
March 13, 2018.
Reported by Kakai Toili
Download the Decision

Tax Law taxes – types of taxes - capital gains tax - obligation to pay capital gains tax – chargee’s obligation to pay capital gains tax - in respect of all transactions entered into pursuant to the chargee’s exercise of its statutory power of sale – where the sale had not been completed - whether it was proper for a chargee to pay capital gains tax in respect of all transactions entered into pursuant to the chargee’s exercise of its statutory power of sale before such a sale could be completed – Constitution of Kenya, 2010, articles 47 (1), 209 & 210; Income Tax Act, section 3

Land Law-- charges – chargee – chargee’s statutory power of sale – powers of a chargee exercising statutory power of sale – powers of the chargor - whether a chargee exercising statutory power of sale possessed the absolute powers of the chargor – Income Tax Act, eighth schedule, paragraph 5(2)
Land Law-- charges – charged property - chargee’s interest in charged property - what was the extent of a chargee’s interest in charged property - Land Registration Act, 2012 sections 2 & 56; Land Act, 2012 section 2, 98 (3) & (4)
Tax Law taxes – obligation to pay taxes - what were the conditions for an obligation to pay tax to accrue – Income Tax Act, section 15 (3) (f), eigth schedule, paragraph 4 (1) & 8
Land Law- charges – chargee – chargee’s statutory power of sale – powers of a chargee exercising statutory power of sale – trustee for a chargor - whether a chargee was a trustee for a chargor in the exercise of the chargee’s statutory power of sale – Land Act, 2012, section 97 (1)
Judicial Reviewjudicial review applications – parties – applicant – State - what was the rationale for having the State at the applicant in judicial review applications

Words and Phrases nominee – definition of nominee – a person designated to act in place of another, usually in a very limited way; a person who holds bare title for the benefit of others or who receives and distributes funds for the benefit of others - Black’s Law Dictionary, 9th Edition at page 1149
 

Brief Facts:

By an administrative action announced in a notice published in the Daily Nation newspaper on October 4, 2016 the Respondent discontinued the manual payment of both stamp duty and Capital Gains Tax (CGT) and required the simultaneous online payment of both stamp duty and CGT. It is alleged that the effect of the announcement was that stamp duty had to be paid through the Respondent’s I-tax system simultaneously with the CGT. It was also alleged that the I-tax system did not permit the payment of stamp duty on a transfer unless an acknowledgment number for the payment of CGT on that sale was entered into the I-tax system.
Aggrieved by the Respondent’s administrative action the Applicant filed the instant Application.

 

Issues:

  1. Whether it was proper for a chargee to pay capital gains tax in respect of all transactions entered into pursuant to the chargee’s exercise of its statutory power of sale before such a sale could be completed.
  2. Whether a chargee exercising statutory power of sale possessed the absolute powers of the chargor as the proprietor of the charged property.
  3. What was the extent of a chargee’s interest in charged property?
  4. What were the conditions for an obligation to pay tax to accrue?
  5. Whether a chargee was a trustee for a chargor in the exercise of the chargee’s statutory power of sale.
  6. What was the rationale for having the State at the applicant in judicial review applications.

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 47 – Fair administrative action.

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3)

 

Income Tax Act, Cap 470 Laws of Kenya
Section 3 – Charge of tax

(1) Subject to , and in accordance with, this Act, a tax to be known as income tax shall be charged for each year of income upon all the income of a person, whether resident or non-resident, which accrued in or was derived from Kenya.
(2) Subject to this Act, income upon which tax is chargeable under this Act is income in respect of -

(a) gains or profits from -

 

(i) a business, for whatever period of time carried on;
(ii) employment or services rendered
(iii) a right granted to another person for use or occupation of property;

 

(b) dividends or interest;
(c)

 

(i) a pension, charge or annuity; and
(ii) any withdrawal from, or payments out of, a registered pension fund, or a registered provident fund or a registered individual retirement fund; and
(iii) any withdrawals from registered home ownership savings plan.

 

(d) (Deleted by 14 of 1982, s.17);
(e) an amount deemed to be the income of a person under this Act or by rules made under this Act;
(f) gains accruing in the circumstances prescribed in, and computed in accordance with, the Eighth Schedule.

 

(3) For the purposes of this Section -

(a) "person" does not include a partnership; and
(b)
a bonus or interest paid by a designated co-operative society, as defined under section 19A, shall be deemed to be a dividend.
 

Section 15 – Certain income exempt from tax.

(3) A notice under subsection (2) shall be laid before the National Assembly without unreasonable delay, and if a resolution is passed by the assembly within twenty days on which it next sits after the notice is so laid that the notice be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the issuing of a new notice.
 

Eighth Schedule paragraph
Section 4 – Computation of gains.

(1) The gain which accrues to a person on the transfer of property is the amount by which the transfer value of the property exceeds the adjusted cost of the property.
 

Section 5 - Dealings by nominees, trustees and liquidators, and for the enforcement of securities

(2) Where a person entitled to property by way of security or to the benefit of a charge or encumbrance on property, deals with the property for the purpose of enforcing or giving effect to the security, charge or encumbrance, his dealings with it shall be treated as if they were done through him as nominee by the person entitled to the property subject to the security, charge or encumbrance, and this subparagraph shall apply to the dealings of a person appointed to enforce or give effect to the security, charge or encumbrance as receiver and manager as it applies to the dealings of the person so entitled.
 

Land Act, 2012
Section 2 – Interpretation

“charge” means an interest in land securing the payment of money or money’s worth or the fulfillment of any condition, and includes a subcharge and the instrument creating a charge, including -
(a) an informal charge, which is a written and witnessed undertaking, the clear intention of which is to charge the chargor’s land with the repayment of money or money’s worth obtained from the chargee; and
(b) a customary charge which is a type of informal charge whose undertaking has been observed by a group of people over an indefinite period of time and considered as legal and binding to such people;
“interest” means a right in or over a land;
“proprietor” means—

(a) in relation to land or a lease, the person named in the register as the proprietor; and
(b) in relation to a charge of land or a lease, theperson named in the register of the land or
lease as the person in whose favour the chargeis made;

Section 97 – Duty of chargee exercising power of sale.

1. A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale.
 

Section 98 - Powers incidental to the power of sale.

3) A sale of the charged land by a chargee in exercise of the power of sale shall be made in the prescribed form and the Registrar shall accept it as sufficient evidence that the power has been duly exercised.
4)
Upon registration of the land or lease or other interest in land sold and transferred by the chargee the interest of the chargor as described therein shall pass to and vest in the purchaser free of all liability on account of the charge, or on account of any other charge or encumbrance to which the charge has priority, other than a lease easement to which the chargee had consented in writing.
 

Land Registration Act, 2012
Section 2 - Interpretation.

In this Act, unless the context otherwise requires—
“proprietor” means—

(a)in relation to land or a lease, the person named in the register as the proprietor; and
(b)in relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge is made;

Section 56 - Form and effect of Charges.

(1) A proprietor may by an instrument, in the prescribed form, charge any land or lease to secure the payment of an existing, future or a contingent debt, other money or money’s worth, or the fulfillment of a condition and, unless the chargee’s remedies have been by instrument, expressly excluded, the instrument shall, contain a special acknowledgement that the chargor understands the effect of that section, and the acknowledgement shall be signed by the chargor or, where the chargor is a corporation, the persons attesting the affixation of the common seal.
(2) A date for the repayment of the money secured by a charge may be specified in the charge instrument, and if no such date is specified or repayment is not demanded by the charge on the date specified, the money shall be deemed to be repayable three months after the service of a demand, a written, by the chargee.
(3) The charge shall be completed by its registration as an encumbrance and the registration of the person in whose favour it is created as its proprietor and by filing the instrument.
(4) The Registrar shall not register a charge, unless a land rent clearance certificate and the consent to charge, certifying that no rent is owing to the Commission in respect of the land, or that the land is freehold, is produced to him or her.
(5) ...
(6)

 

Held:

  1. Whereas under the principles of interpretation of statutes, the general rule is that the Court should lean against the construction which reduces a statute to futility but lean in favour of an interpretation which makes it effective and operative. In tax legislation the Court ought not to strain the language with the intention of bringing taxpayers within an otherwise vague and ambiguous legislation. Where the legislation was vague or ambiguous the Courts ought to adopt an interpretation which best favoured the taxpayer.
  2. The basis upon which the Capital Gains Tax (CGT) was being imposed on the chargees exercising their statutory power of sale seemed to be paragraph 5(2) of the eighth schedule to the Income Tax Act (the Act) which provided that where a person entitled to property by way of security or to the benefit of a charge or encumbrance on property, dealt with property for the purpose of enforcing or giving effect to the security, charge or encumbrance, his dealings with it would be treated as if they were done through him as nominee by the person entitled to the property subject to the security, charge or encumbrance
  3. A chargee in his capacity of a nominee pursuant to paragraph 5(2) of the eighth schedule to the Act did not possess the absolute powers possessed the chargor, but as the paragraph expressly stated subject to the security, charge or encumbrance. In other words the chargee’s powers to step into the shoes of the chargor had to be read within the context of the security, charge or encumbrance in question.
  4. The fact that CGT was a species of income tax came from a reading of section 3(2)(f) of the Act which provided that income upon which tax was chargeable under the Act was income in respect of gains accruing in the circumstances prescribed in and computed in accordance with the eighth schedule. However, section 3(1) of the Act provided that subject to and in accordance with the Act, a tax to be known as income tax would be charged for each year of income upon all the income of a person, whether resident or non-resident which accrued in or was derived from Kenya.
  5. Income tax was only charged upon the income of a person. However, before a person could be compelled to pay tax, his liability had to be expressed in clear terms by a taxing Act and the amount of his liability had to be clearly defined.
  6. Section 56 of the Land Registration Act, 2012 (LRA) provided for the form and effect of Charges. A chargee’s interest in a charged property was only to the extent of the sum due under a charge and not in the property. He did not acquire any proprietory right in the property as such. The definition of a proprietor in section 2 of the LRA and in section 2 of the Land Act, 2012 meant:
    1. in relation to land or a lease, the person named in the register as the proprietor; and
    2. in relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge was made.
      In other words the proprietary rights of a chargee were limited to the interests conferred by the charged document. The chargee was only the proprietor of the Charge, not the land. That position was supported by the provisions of section 98(3) and (4) of the Land Act
  7. The scheme of the land legislation was to create security over land which the chargee could sell after complying with the various statutory obligations and that at no time did the chargee step into the shoes of the owner of the land or become the owner of the land. However, for one to be obliged to pay CGT, it had to be shown that the person had in fact made a gain in income arising from the disposal of the property. The mere disposal of a property did not give rise to liability to pay the tax. A loss arising from the disposal of property could not give rise to liability to pay the tax that was clear from the reading of section 15(3)(f) of the Act.
  8. A loss made in the process of disposal of a property led to a deduction of any income tax payable or due from a tax payer. It was therefore necessary before the tax was imposed that the taxing authority established that a gain had in fact been made. The obligation to pay the tax only accrued after the conditions precedent necessary for it to arise had been satisfied, those conditions were:
    1. The disposal of an asset.
    2. The accrual from that disposal of a chargeable gain.
    3. The accrual of that gain to a person chargeable to CGT.
  9. The conditions necessary for an obligation to pay tax answered the question when liability to pay CGT accrued. Requiring payment of the tax before registration of the transfer essentially meant the tax was payable before the conditions. The effect was that a citizen could be called to pay tax before it was legally due, thereby creating an unfair tax burden to the citizens. The term unfair burden had to be defined taking specifically into account the degree and capacity of the citizens to shoulder the tax in question, bearing in mind what could be burdensome to one person could not be so to another.
  10. Before tax could be imposed there had to be a specific determination that the sum accruing from the exercise of the statutory power of sale was actually a chargeable gain. That was a determination that could only be made on a case to case basis and could not be made to apply generally to all sales made in pursuance of the exercise of statutory power of sale. Therefore there could not be an administrative fiat that CGT was payable at the same time as the payment of the stamp duty.
  11. Paragraph 4(1) of the eighth schedule to the Act stated that the gain which accrued to a person on the transfer of any property was the amount by which the transfer value of the property exceeded the adjusted cost of the property. Therefore in order to determine whether or not there was a gain a determination had to be made on the transfer value as well as the adjusted cost of the property which was defined in paragraph 8 of the eighth schedule. Those were not issues that could be within the knowledge of a chargee and only the chargor had the necessary information for the calculation of any gain since there was no way a bank would know how much the chargor spent to acquire the land or to construct buildings or to enhance the value of the property or whether the chargor had spent money to establish, preserve or defend the title or right to the property.
  12. Section 97(1) of the Land Act did not necessarily constitute a chargee a trustee for a chargor in the exercise of the former’s statutory power of sale. Whereas a chargee was required to undertake a valuation of a property before accepting the same as security and at the time of the sale thereof, it did not necessarily follow that if a property was valued at a particular sum, that was the sum that would eventually be realised upon sale. The valuation was meant to ensure that the chargee obtained the best price reasonably obtainable at the time of sale but did not necessarily mean that it was the real price of the property.
  13. To expect a chargor to pay CGT in respect of a transaction which he had no control was unreasonable, it was equally unreasonable to demand that a chargee pay CGT upfront notwithstanding whether the property was sold at a profit or a loss and without first making a determination, based on the relevant factors, whether there was in actual fact a capital gain or loss. Whereas the chargee was a nominee of the chargor for the purposes of payment of CGT where after the sale of the property the same was found to be lawfully due and payable, such a decision had to be determined on a case to case basis.
  14. It was irrational to direct that CGT had to be paid in respect of all transactions entered into pursuant to the chargee’s exercise of its statutory power of sale before such a sale could be completed. The chargee was only a trustee for the chargor in respect of the surplus arising from the sale in which event the same could be defrayed towards the payment of any taxes due including the CGT.
  15. The chargee only became a trustee of the chargor in respect of the surplus realised from the sale of the charged property, if any. In that event he was obliged to remit to the tax authority any sum determined as payable in respect of the CGT. The distinction between situations where a proprietor sold land to another person directly and where the land was sold pursuant to the exercise of statutory power of sale was clear from a reading of paragraph 6 of the eighth schedule.
  16. In the instant case, the Applicant was not seeking any change in the law imposing the payment of CGT. What the Applicant was challenging was the administrative action taken by the Respondent in firstly requiring the payment of Stamp Duty through I-tax and secondly in setting up I-tax in such a way that stamp duty could not be paid without an acknowledgment number for payment of CGT. Article 209 of the Constitution gave the National Government power to impose income taxes and as long as such imposition was in accordance with article 210 of the Constitution, it was proper, the subject was not to be taxed unless the words of the taxing statute unambiguously imposed the tax upon him and that the legal provision being invoked was one that imposed a tax upon the subject.
  17. It was incumbent on the Tax Authority to establish that its claim came within the very words used in article 210 of the Constitution on imposition of tax and if there was any doubt or ambiguity that defect if it was indeed one, could only be remedied by legislation. The Tax Authority could not in those circumstances purport to remedy the defect by way of administrative or policy decision since imposition of tax had to be by an express provision in a legislation.
  18. In carrying out their statutory obligations the Respondents had to adhere to the law. Whereas the obligation to pay taxes was a statutory obligation and the failure to collect the tax by way of withholding and remitting taxes ought not to have been lightly excused, the Court had to not without a little anguish find that where the decision by the Respondent was unjustified under the law such a decision ought not to have been allowed to stand and the same had to be quashed.
  19. Article 47(1) of the Constitution marked an important and transformative development of administrative justice for, it not only laid a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenched the right to fair administrative action in the Bill of Rights. The right to fair administrative action was a reflection of some of the national values in article 10 of the Constitution such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies were subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.
  20. In the instant case, the implementation of the impugned administrative decision amounted to imposition of tax upon the Applicant’s members in situations where they could well not be obliged to pay the same. That was unlawful. The said decision was further being taken without the Applicants’ members being afforded an opportunity of being heard as to whether in the exercise of their statutory power of sale they in fact made capital gains. That was procedurally unfair.
  21. The Notice of Motion was not properly intituled. In judicial review applications, the Applicant was always the Republic rather than the person aggrieved by the decision sought to be impugned. The rationale for that was that prerogative orders, like the old prerogative writs, were issued in the name of the Crown at the instance of the Applicant and were directed to the person or persons who were to comply therewith. Applications for such orders had to be intituled and served accordingly.

Application allowed.

  1. A declaration issued that the administrative action by the Respondent requiring simultaneous payment of Stamp Duty and Capital Gains Tax on sale of land by a chargee pursuant to a chargee’s power of sale was unreasonable, unfair and influenced by an error of law.
  2. A declaration issued that the administrative action by the Respondent requiring payment of Capital Gains Tax by the chargee or purchaser on the sale of land by a chargee pursuant to a chargee’s power of sale without first ascertaining whether there was in fact capital gain was unreasonable, unfair and influenced by an error of law.
  3. A declaration issued that on the sale of land by a chargee pursuant to a chargee’s statutory power of sale, Capital Gains Tax was payable upon registration of the transfer by the chargor of the land pursuant to paragraph 5(2) of the eighth schedule of the Income Tax Act and not by the chargee or purchaser, unless there was a surplus from the proceeds of sale as to constitute the chargee a trustee for the chargor.
  4. An order of mandamus issued compelling the Respondent to allow payment of Stamp Duty on an instrument of transfer following the sale of land by a chargee pursuant to a chargee’s power of sale without requiring payment of Capital Gains Tax or an acknowledgment number for payment of Capital Gains Tax.
  5. No order as to costs.
Kenya Law
Case Updates Issue 015/2018
Case Summaries

JURISDICTION Election Courts can Determine Issues not Pleaded in Pleadings

Lenny Maxwell Kivuti v The Independent Electoral and Boundaries Commission (IEBC) & 3 others [2018] eKLR
Election Petition No. 1 of 2017
High Court at Embu
W.Musyoka,J
February 22, 2018.
Reported by Kakai Toili

Download the Decision

Jurisdiction – jurisdiction of the High Court – jurisdiction to determine an issue which was not pleaded in the pleadings in an election petition - whether the High Court could determine an issue which was not pleaded in the pleadings in an election petition.
Electoral Laws- election petitions- pleadings - materials not pleaded – material unearthed after recount and scrutiny of votes - approaches available to an election court - what were the approaches available to an election court to unpleaded material unearthed after recount and scrutiny of votes
Electoral Law – elections – invalidation of an election – grounds for invalidation of an election – non-compliance with electoral laws - whether any noncompliance with electoral laws invalidated an election – Constitution of Kenya, 2010, article 81 & 86; Elections Act, 2011, section 83
Electoral Law – election petitions - scrutiny and recount of votes – orders of scrutiny and recount of votes - under what circumstances would a court order for scrutiny and recount of votes

Brief facts:
On August 8, 2017 elections were held for the position of Governor Embu County after which the 3rd Respondent was declared the winner. Aggrieved by the decision to declare the 3rd Respondent as winner, the Petitioner filed the instant Petition on the grounds that the counting and tallying process was characterised by irregularities among other grounds.
At the end of the oral hearing, the Petitioner filed an application seeking scrutiny and recount of the ballots cast in the gubernatorial election. The Court allowed the Application for a partial scrutiny limited to recount of ballots in specified polling stations and a re-tally of the relevant forms. The 3rd Respondent also filed an application seeking a tally of all forms 37A and 37B for all the polling stations in Embu County. The Court extended recount of ballots to six polling stations and directed the Deputy Registrar of the Court to carry out a re-tally exercise of forms 37A, 37B and 37C in respect of the polling stations that were not going to be subjected to recount.
After the exercise the 3rd Respondent emerged as the winner and the Deputy Registrar compiled a report which was subsequently filed in court together with, the original forms used in the partial scrutiny, duly filled by hand and signed by the agents of all the parties and by the Deputy Registrar.

Issue:

  1. Whether an election court could determine an issue which was not pleaded in the Pleadings.
  2. What were the approaches available to an election court to unpleaded material unearthed after recount and scrutiny of votes?
  3. When would non-compliance with electoral laws lead to nullification of an election?
  4. Under what circumstances would a court order for scrutiny and recount of votes?Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 81- General principles for the electoral system.
The electoral system shall comply with the following principles—

(a)freedom of citizens to exercise their political rights under Article 38;
(b)not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c)fair representation of persons with disabilities;
(d)universal suffrage based on the aspiration for fair representation and equality of vote; and
(e)free and fair elections, which are—

(i)by secret ballot;
(ii)free from violence, intimidation, improper influence or corruption;
(iii)conducted by an independent body;
(iv)transparent; and
(v)administered in an impartial, neutral, efficient, accurate and accountable manner.

Article 86 - Voting.
At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a)whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b)the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c)the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d)appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Elections Act, 2011
Section 83 - Nullification of an election
(1)A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that —

(a)the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
(b)the non-compliance did not substantially affect the result of the election.

(2)Pursuant to section 72 of the Interpretation and General Provisions Act, (Cap. 2), a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.

Elections (General) Regulation 2012
Regulation 81 - Sealing of ballot papers by presiding officer
(1) Upon completion of a count, including a recount, the presiding officer shall seal in each respective ballot box–

(a)valid votes,
(b)rejected ballots sealed in a tamperproof envelope,
(c)unused ballot papers sealed in a tamperproof envelope,
(d)counterfoil of used ballot papers sealed in a tamperproof envelope,
(e)copy of election results declaration forms, and
(f)stray ballot papers in a tamperproof envelope.

Held:

  1. The only way to raise issues before a court was through pleadings and that has always been the legal position. All the rules of pleadings and procedure were designed to crystalize the issue which the Court was to be called upon to determine and the parties were themselves made aware well in advance as what the issues between them were.
  2. The Court would not grant a remedy, which had not been applied for and that it would not determine issues which the parties had not pleaded. In an adversarial system, parties to litigation were the ones who set the agenda and subject to rules of pleadings, each party was left to formulate its own case in its own way. It was for the purpose of certainty and finality that each party was bound by its own pleadings. A party could not be allowed to raise a different case from that which it had pleaded without due amendment being made, that was the position in civil matters.
  3. The issue of counterfoils was not pleaded in the Petition and the 1st Respondent did not have an opportunity to address it during trial. It could therefore amount to an ambush to deal with it. However, it had to be noted that the instant proceedings were sui generis. They were civil by nature but subject to their unique procedures.
  4. It would appear that the legal position could be different with respect to electoral disputes. The general principle is that courts should proceed with caution with respect to material that could be unearthed during scrutiny and recount, for scrutiny and recount were not designed to discover new evidence or unpleaded matters that could found basis for nullification of an election
  5. The law on scrutiny and recount suggested that scrutiny and recount was not a gambling exercise that set the Court to rummaging through the ballot boxes to see whether any scintilla of evidence of electoral malpractice or irregularity could be found. If the Petition was based on any particular electoral malpractice or irregularity that would warrant scrutiny or recount of votes, the malpractice or irregularity had to be pleaded and the evidence of such malpractice or irregularity laid out or established prior to an order for scrutiny or recount. The Court had to be satisfied that on the basis of the evidence before it, it was necessary to call for a scrutiny and recount, if not for anything else, to confirm the truth of the particular evidence.
  6. There were three possible approaches to unpleaded material unearthed after recount and scrutiny.
    1. The Court could ignore such material and proceed to dismiss the Petition if the Petitioner failed to prove the allegations made in his pleadings.
    2. A party was at liberty to pose questions on such unpleaded materials and the Court could make findings on the effect of such irregularities on the declared results.
    3. The Court ought not to have turned a blind eye on serious electoral malpractices or irregularities as could be exposed by scrutiny or recount merely because they were not pleaded.
  7. An electoral court could look at the material that emerged from a scrutiny or recount and which was unpleaded and make a decision one way or the other with respect to the same. A court was not precluded from studying the materials merely because the same was not pleaded. Whether the same influenced the direction the matter took depended on the nature of the unpleaded material and the extent that it affected the final outcome.
  8. The forms that the Deputy Registrar designed for the purpose of the partial scrutiny were his working notes and the material in them was what was used to generate his report. The forms formed part of the proceedings. The matters recorded in the notes of the Deputy Registrar were no doubt an indication that there were irregularities in the counting exercise.
  9. The import of section 83 of the Elections Act was that as a general rule, the Court should not interfere with results where irregularities or non-compliance with the law was established so long as the election appeared to have been conducted in accordance with the Constitution and the law and the non-compliance did not affect the result.
  10. An election had to be conducted substantially in accordance with the principles of the Constitution as set out in article 81 of the Constitution. Voting was to be conducted in accordance with the principles set out in article 86 of the Constitution. The Elections Act and the Regulations thereunder constituted the substantive and procedural law for the conduct of elections. If it was shown that an election was conducted substantially in accordance with the principles of the Constitution and the Elections Act, then such election was not to be invalidated only on the grounds of irregularities. Where, however, it was shown that the irregularities were of such magnitude that they affected the election result, then such an election stood to be invalidated.
  11. Procedural or administrative irregularities and other errors occasioned by human imperfection were not enough by and of themselves to vitiate an election. Where an election was conducted in such manner as demonestrably violated the principles of the Constitution and the law, such an election stood to be invalidated.
  12. A petitioner who was able to satisfactorily prove either of the two limbs of section 83 of the Elections Act could void an election. In other words a petitioner who was able to prove that the conduct of the election in question substantially violated the principles laid down in the Constitution as well as other written law on elections , would on that ground alone, void an election. He would be able to void an election if he was able to prove that although the election was conducted substantially in accordance with the principles laid down in the Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election.
  13. It could not be said that the first phase of the election was conducted so badly that there was really no election at all. However, it emerged from the material generated by the scrutiny that there were irregularities or non-compliance with the law on elections.
  14. The irregularities identified related to material that ought to have been found in the ballot boxes during recount. Regulation 81(1) of the Elections (General) Regulation 2012(the Regulations) was in mandatory terms. The effect of non-compliance with it would depend on the impact of the non-compliance on the total result.
  15. The first non-compliance related to failure to put and seal in the ballot boxes all the ballot papers used in the election, whether valid or rejected, contrary to regulation 81 of the Regulations. The record filed by the Deputy Registrar of the forms used during the partial scrutiny revealed that varying numbers of ballots in 184 polling stations were unaccounted for. The number of such ballots was 566. That was a case where the ballots actually cast were less than the total number of counterfoils of used ballot papers. It could not be ascertained as to whether they were spoilt, rejected or valid and if valid in whose favour they were cast.
  16. The second non-compliance related to omission to put and seal counterfoils of used ballot papers in the ballot boxes contrary to regulation 81(1) of the Regulations. The record of the forms used by the Deputy Registrar during the recount revealed that in 11 polling stations the counterfoils of the used ballot papers were missing, or, put differently, were not found in the respective ballot boxes. It could not be ascertained therefore how many ballot papers were issued to electors and used, it therefore meant that the results could not be ascertained and verified. the ballot papers in the relevant ballot boxes were recounted against the record in forms 37A for the relevant polling stations but the accuracy of the record in forms 37A could not be ascertained without the counterfoils of the ballots used in those polling stations.
  17. The third non-compliance was with respect to form 37A. The handwritten record of the forms that the Deputy Registrar prepared for the scrutiny and disclosed that in 12 polling stations there were no forms 37A in the ballot boxes and in 12 other polling stations copies of the forms 37A found in the boxes were totally illegible. Form 37A was a critical document for the purpose of collation, tallying and declaration of results. Without the form or even where the same has been rendered useless by illegibility, there could not be any results to declare as it was the document which authenticated the results. That effectively meant that the results of the election in the 26 polling stations had not been authenticated and validated.
  18. Excess votes were ballot papers found in the ballot boxes during recount which were not issued out of the ballot booklets for the relevant polling stations for they could not be traced to the counterfoils of used ballot papers found in the ballot boxes. Such ballot papers in varying numbers were found in 12 ballot boxes from the record of the Deputy Registrars handwritten forms. The total excess ballot papers cast amounted to 111. That was an irregularity that seriously undermined the electoral process as it suggested that those materials were introduced into the ballot boxes unprocedurally. The effect was to defeat or subvert and distort the will of the people. The excess votes were not authentic and should not have been in the system. Such ballots could only have gotten in through an illegal process and an outcome which was arrived at with such votes being taken into account could not be said to have been fair, accurate, authentic or verifiable.
  19. . Elections were about electors expressing their will at the voting booth as to who should lead them. Compiling the total results while excluding the votes of the electors in the affected polling stations amounted to disenfranchising them, something that the Court could not countenance.
  20. The scrutiny and recount exercise was designed to determine whether the results of the election were accurate, verifiable and accountable and if it produced material that was not in the pleadings the Court could not ignore the same but had to look at it in the wider interests of electoral justice.
  21. According to the Report of the Deputy Registrar, the final tally of the results showed that the difference between the votes garnered by the Petitioner and the 3rd Respondent was between 700 and 800 votes. The non-compliance with regard to the unaccounted ballots affected ballots in the region of 566 votes while that relating to missing counterfoils affected ballots in the region of 4,000 votes while those relating to missing or illegible forms 37A were in excess of 10,000 votes. The excess votes amounted to 111 votes. Looking at all those figures globally there was no doubt that the irregularities affected the final results of the election.
  22. The irregularities or errors or non-compliance with the law during the collating, counting and tallying of votes in the gubernatorial election held for Embu County on August 8, 2017 undermined the electoral process fundamentally and produced a result that could not be said to be accountable, verifiable or accurate. Consequently, it could not be said to reflect the will of the people of Embu County. It had not been established that the 2nd, 3rd and 4th Respondents were complicit in any way to the non-compliance and the irregularities identified which appeared to have been caused either by fatigue or incompetence on the part of the elections staff hired by the 1st Respondent.

Petition allowed

  1. The results of the election held on August 8, 2017 nullified and a fresh gubernatorial election for Embu County ordered.
  2. Costs capped at Kshs. 3,000,000 subject to taxation awarded to the Petitioner to be borne by the 1st Respondent in the sum of Kshs. 2,000,000 and the 3rd and 4th Respondents at Kshs 1,000,000.
  3. A certificate to issue to the 1st Respondent and the Speaker of Senate pursuant to section 86 of the Elections Act
ELECTORAL LAW The Signature of a Deputy Presiding Officer is Sufficient to Validate a Form 35A not Signed by the Presiding Officer

Sammy Kemboi Kipkeu v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR
Election Petition No. 2 Of 2017
High Court at Eldoret
Kanyi Kimondo, J
February 27, 2018.
Reported by Kakai Toili.

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Electoral law – elections – invalidation of an election – grounds for invalidation of an election – non-compliance with electoral laws - whether any non-compliance with electoral laws invalidated an election - Elections Act, 2011, section 83
Electoral Law – election petitions –burden of proof - standard of proof- what was the requisite standard of proof in nullifying an election
Electoral Law – election petitions –burden of proof - which party in an election petition bore the evidential burden of proof
Electoral Law – election petitions – elections – ballot boxes – handling of ballot boxes in an election - what was the process of handling ballot boxes during an election
Electoral Law – election petitions – elections – election forms – form 35A – validity of form 35A – signatures of the Presiding Officer and Deputy Presiding Officer – where form 35A was only signed by the Deputy Presiding Officer - whether the signature of a Deputy Presiding Officer was sufficient to validate a form 35A not signed by the Presiding Officer
Electoral Law – election petitions – elections – election forms – form 35A – signing of form 35A by agents - whether it was mandatory for agents of candidates in an election to sign form 35A
Electoral Law – Independent Electoral and Boundaries Commission – Presiding Officer - functions – functions of a presiding officer during elections – stamping of documents - election forms – form 35A - whether failure of a Presiding Officer to stamp form 35A was fatal – Election (General) Regulations,2012 regulation 79
Electoral Law – elections – election documents – form 35A - validity of form 35A – requirements - signature by candidates’ agents – where form 35A was not signed by either the Presiding officer or his deputy - whether a form 35A that was not signed by either the Presiding Officer or his deputy but signed by candidates’ agents was fatally defective
Electoral Law – elections – polling -adjournment and transfer of polling stations - what were the circumstances when a Presiding Officer could adjourn polling and transfer polling to a new area - Election (General) Regulations, 2012 regulation 7 & 64

Brief facts:
The elections for Member of the National Assembly for Marakwet East Constituency were held on August 8, 2017 and on August 9, 2017. The 3rd Respondent was declared as the winner of the said election. Aggrieved by the decision, the Petitioner filed the instant Petition on the grounds that the elections were not free, fair, credible and verifiable among other grounds.

Issues:

  1. Whether any non-compliance with electoral laws invalidated an election.
  2. What was the requisite standard of proof in nullifying an election petition?
  3. Who in an election petition bore the evidential burden of proof?
  4. What was the process of handling ballot boxes during an election?
  5. Whether the signature of a Deputy Presiding Officer was sufficient to validate a form 35A not signed by the Presiding Officer.
  6. Whether it was mandatory for agents of candidates in an election to sign form 35A.
  7. Whether failure of a Presiding Officer to stamp form 35A was fatal
  8. Whether a form 35A that was not signed by a Presiding Officer or Deputy Presiding Officer but signed by candidates’ agents was fatally defective.
  9. What were the circumstances when a Presiding Officer could adjourn polling and transfer polling to a new area. Read More..

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 38 -
Political rights
(1)Every citizen is free to make political choices, which includes the right—

(a)to form, or participate in forming, a political party;
(b)to participate in the activities of, or recruit members for, a political party; or
(c)to campaign for a political party or cause.

(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a)any elective public body or office established under this Constitution; or
(b)any office of any political party of which the citizen is a member.

(3)Every adult citizen has the right, without unreasonable restrictions—

(a)to be registered as a voter;
(b)to vote by secret ballot in any election or referendum; and
(c)to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Article 81 - General principles for the electoral system
The electoral system shall comply with the following principles—

(a)freedom of citizens to exercise their political rights under Article 38;
(b)not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c)fair representation of persons with disabilities;
(d)universal suffrage based on the aspiration for fair representation and equality of vote; and
(e)free and fair elections, which are—

(i)by secret ballot;
(ii)free from violence, intimidation, improper influence or corruption;
(iii)conducted by an independent body;
(iv)transparent; and
(v)administered in an impartial, neutral, efficient, accurate and accountable manner.

Elections Act, 2011

Section 83 - Non-compliance with the law
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears 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.

Elections (General) Regulations, 2012
Regulation 64 - Adjournment, etc., of polling by the presiding officer
(1)Notwithstanding the terms of any notice issued under the Act or these Regulations, a presiding officer may, after consultation with the returning officer, adjourn the proceedings at his or her polling station where they are interrupted by a riot, violence, natural disaster or other occurrence, shortage of equipment or other materials or other administrative difficulty, but where the presiding officer does so, the presiding officer shall re-start the proceedings at the earliest practicable moment.
(2)The discretionary powers of a presiding officer under subregulation (1) shall include a power in the circumstances therein mentioned to transfer the proceedings to another polling station or public facility in the same constituency, and where presiding officer does so—

(a)the presiding officer shall advertise the fact in such manner as is sufficient to bring it to the notice of voters; and
(b)the electoral area for the polling station from which the proceedings are transferred shall, for all the purposes of these Regulations, be deemed to be part of the electoral area of the polling station to which the proceedings are transferred.

(3)A presiding officer shall, in consultation with the returning officer—extend the hours of polling at the polling station where polling has been interrupted under this regulation or for other valid cause; and where polling in that polling station has started late, extend the hours of polling by the amount of time which was lost in so starting late.
(4)Where hours of polling have been extended as contemplated under subregulation (3), the presiding officer shall give a detailed report on the clear facts justifying such extension of hours.

Regulation 67 – Sealing of ballot boxes, etc.
(1)The presiding officer shall, immediately before the commencement of the poll—

(a)show the ballot box or ballot boxes to those persons lawfully present in the polling station;
(b)allow those of the candidates, agents and any voter as may wish, to do so, to ascertain that the box or boxes are empty; and
(c)close the box or boxes with seals so that they may not be opened without breaking the seal.

(2)After a ballot box is sealed under subregulation (1) the presiding officer shall cause it to be so placed in the polling station that it can at all times be in the view of himself or herself or a deputy presiding officer and of the candidates or the agents.
(3)On the adjournment of the poll in a polling station to another day, or on the close of the poll at one station with a view to transferring a ballot box to another station, and at any other time when a ballot box is not in use for the purpose of receiving ballot papers, the presiding officer shall close up the aperture used for the insertion of the ballot papers into the box and place his or her seal on it in such a manner as to prevent the insertion of ballot papers without breaking the seal.
(4)After a box has been sealed under subregulation (3), the seal shall not be broken or the aperture opened except in the presence of the candidates or agents present in the polling station where polling is about to re-commence.
(5)Where a presiding officer affixes his or her seal on a ballot box or aperture thereof under this regulation, the presiding officer shall permit any candidate or agent who so wishes to affix his or her seal on the box or aperture.

Regulation 73 - Procedure on close of polling
(1)At the end of voting, the presiding officer shall declare the polling station closed and shall proceed to seal the ballot boxes in the presence of the candidates or agents and observers at his or her polling station.
(2)Immediately after the close of the polling at his or her polling station, the presiding officer shall make in the polling station diary a written statement of—

(a)the number of ballot papers issued to him or her under regulation 61;
(b)the number of ballot papers, other than spoilt ballot papers, issued to voters;
(c)the number of spoilt ballot papers; and
(d)the number of ballot papers remaining unused.

Held:

  1. The golden thread running through the Constitution was one of the sovereignty of the people of Kenya articulated in article 1. The exercise of sovereignty of the people was anchored by other rights and fundamental freedoms. Article 38 of the Constitution articulated political rights which were given effect through the electoral system set out in chapter seven of the Constitution.
  2. Under Kenya’s democratic form of government, an election was the ultimate expression of sovereignty of the people and the electoral system was designed to ascertain and implement the will of the people. The bedrock principle of election dispute resolution was to ascertain the intent of the voters and to give it effect whenever possible.
  3. Article 81 of the Constitution laid down the principles to be followed in an election. The Elections Act 2011 (the Act) and the Regulations thereunder were the legislation contemplated by article 82. The amendments to the Act introduced other relevant provisions and regulations, sections 39, 40 and 40A for example anchored the use of technology in elections.
  4. There were also new Regulations in the Act, an example was the Election (Technology) Regulations 2017, rule 17 mandated the 1st Respondent to retain electronic data in safe custody for three years after the elections. The KIEMS kits were deployed in the previous election for electronic registration and identification of voters and transmission of results
  5. Section 83 of the Act was amended after the conduct of the impugned election. The amendment was thus irrelevant to the instant dispute, the amendments had no retroactive effect. The Court applied the law as it existed on the date of the election. Section 83 of the Act was coached in negative language to emphasize the caveat placed on the Election Court. There was in it a rebuttable presumption in favour of the Respondents that the election was conducted properly and in accordance with the law. It also implied by that provision that elections were not always perfect. It was not all malpractices would lead to nullification of the result.
  6. Parties to the Petition were bound by their pleadings. The legal burden of proof remained firmly on the shoulders of the Petitioner, the Petitioner had to lead cogent evidence to impeach the poll. The cardinal precept of the law of evidence was that he who alleged had to prove and to the required standard of proof.
  7. Where a party alleged non-conformity with the electoral law, the Petitioner had to not only prove that there had been non-compliance with the law but that such failure of compliance affected the validity of the elections. It was on that basis that the Respondents bore the burden of proving the contrary. The Petitioner had to set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.
  8. An election petition had to succeed or fail on its pleadings and evidence. All that was meant by that onus propandi was that;
    1. The Petitioner had to proffer adequate or sufficient evidence.
    2. The evidence had to be of a persuasive quality.
    It was then that the Respondents were called to rebut it. The Petitioner had to show that the preponderance of evidence inured in his favour. If he failed to rise to that standard, the Petition had to be dismissed.
  9. Evidential burden kept shifting in the course of the trial. The Petitioner was under obligation to discharge the initial burden of proof before the Respondents were invited to bear the evidential burden.
  10. The standard of proof in election petitions was higher than a balance of probabilities in ordinary civil cases but not beyond reasonable doubt as required in criminal cases. The crux of the matter was whether all the grounds raised by the Petitioner sufficiently challenged the integrity of the poll. The Court had to weigh the impact of the alleged irregularities on the outcome of the election. In the context of a general election for six electoral offices, it would have been impractical to demand or expect mathematical precision.
  11. There was little or no merit in the allegation that the Presiding Officer authorized at Murto Polling Station allowed voting without use of the KIEMS kit. The Presiding Officer was unable to deal with technical rudiments of the KIEMS kit and was replaced with another officer. The remedial action was sensible, timely and did not materially affect the poll outcome.
  12. There was a paucity of evidence to prove that he 3rd Respondent held meetings with poll officials and senior police officers to interfere with the tallying exercise or that he engineered the shooting approximately 1 kilometer away from the tallying center as a smokescreen to rig the poll.
  13. The Petitioner was only able to pinpoint one ballot box without a seal. From the photograph produced only one seal was missing at a corner. The Petitioner could not say whether the box was from Mungwa Dispensary Hall (Station 140) or Mungwa Primary School (code 119). The Petitioner failed to prove that several unsealed ballot boxes were delivered. He also failed to demonstrate that the missing seal on one box left sufficient space to put in or remove ballot papers or a form.
  14. An outbreak of violence occurred on August 9, 2017. However, the violence took place one kilometer from the tallying centre. There was no allegation that the 3rd Respondent instigated the violence. By the time the violence flared up, the process of voting had long ended and, the tallying of results was at the tail end. The Court was unable to hold that the election was marred by violence.
  15. There was no explanation about the source of the broken seals inside the two ballot boxes for Mungwa Dispensary Hall (Station 140 1 of 1) and Mungwa Primary School (Station 119 1 of 1). the evidence of the broken seals emerged from the scrutiny exercise and after close of the evidence by the parties.
  16. Under regulation 67 and 73 of the General Regulations 2012, ballot boxes were supposed to be open at the commencement of voting exercise, they were then sealed. When voting ended the seals were broken in the presence of agents or the candidates, that was to facilitate the counting of votes. When the counting ended, the boxes were sealed afresh and delivered to the Returning Officer. They could not be re-opened without an order of the election court. The broken seals in the two ballot boxes left lingering doubts about the integrity of the materials inside.
  17. While form 35A has provision for signatures by both the Presiding Officer and the Deputy Presiding officer, the signature of one of the officials was sufficient to validate the form. Regulation 5 (4) of the General Regulations allowed the Deputy Presiding Officer to undertake tasks on behalf of the Presiding Officer.
  18. It was desirable for agents to sign forms 35A, It made the process transparent and verifiable. Signatures by agents were not mandatory. Regulation 79 (6) and (7) of the General Regulations provided that the absence of an agent or candidate at the time of announcing results did not invalidate it. Form 35A provided for signatures by agents or candidates if present. An aggrieved agent or candidate had a right to protest or refuse to sign the form. Doubt was removed completely because at the foot of the form there was a space intituled, refusal to sign (if any).
  19. Lack of the 1st Respondent’s stamp on form 35A was not fatal for various reasons;
    1. There was no formal space set out in the form to place the impression.
    2. The stamp constituted what the General Regulations referred to as non-strategic materials.
    3. There was no express requirement in the Act or Regulations that the Presiding Officer had to stamp form 35A. That was unlike the case of a ballot paper.
  20. The 1st Respondent’s stamp created the aura of an official document but it would be a fallacy to have thrown out a form for want of a stamp when the maker had signed it.
  21. A form 35A that was not signed by either the Presiding Officer or Deputy Presiding Officer was fatally defective. It would be a form that lacked validation by the maker. Its authenticity was immediately cast into doubt.
  22. Form 35A was the most important primary record of the election. All the other forms were built atop it. The sealed ballot boxes delivered to the Returning Officer could not be reopened except by an order of the Election Court. The results in form 35A were then tallied and fed into a computer to generate a spreadsheet known as 35B.
  23. The Petitioner failed to prove that a large number of forms 35A were not signed as required under the law and Regulations but did so for one station. The certified copy by the 1st Respondent of form 35A for Bororwo Nursery School Polling Station (Station 76 1 of 1) was neither signed by the Presiding Officer nor his deputy. It could not be said whether it was an official or authentic record of the results at that station. The impugned form was signed by three agents. However, the agents were not the makers of the document. Form 35A for the said polling station was not a reliable snapshot of the contents of the ballot box. It tainted the form 35B built atop it
  24. Form 35B which was used to announce and declare the results was inaccurate. That was a close contest the margin of votes between the candidates was only 967 votes. Kenya’s electoral system remained first past the post. However, the irregularities in the instant case cast doubt on the numbers. The winner was not even given his certificate at the tallying hall following the public announcement. He received the certificate later at Iten. The results were opaque and unverifiable. The conduct of the election failed the constitutional test in article 81 (e) of the Constitution.
  25. It was highly irregular and contrary to the General Regulations that two gazetted stations were not captured in form 35 and two unofficial polling stations purported to replace them. Regulation 7 of the General Regulations required the 1st Respondent to assign to each electoral area a distinguishing letter or number or both and to publish them in the Gazette and electronic and print media.
  26. Regulation 64 of the General Regulations conditionally allowed a Presiding Officer after consultation with the Returning Officer to adjourn polling and to transfer polling to a new area due to riots, violence, natural disasters and so forth. That was not the case in the instant Petition.
  27. The complaints relating to Embokala and Ketmekinget were sufficiently pleaded in the Petition. The Respondents could not be heard to say that they did not know the case they were confronting in the Petition.
  28. The 1st and 2nd Respondents did not conduct an accurate or verifiable election in accordance with the Constitution, the Elections Act and Regulations thereunder. There were serious irregularities and anomalies which cast doubt on the accuracy of the numbers, verifiability, credibility or integrity of the results.
  29. The 3rd Respondent was not validly elected as Member of Parliament for Marakwet East Constituency. Owing to the serious irregularities and anomalies which cast a long shadow on the results, it was not feasible to declare Linah Jebii Kilimo as the winner.
  30. The Petitioner had partially proved his case to the required standard of proof and sufficiently challenged the integrity of the poll. The impact went to the root of the results.
  31. Costs follow the event, they are at the discretion of the Court. Section 84 of the Act provided that an election court shall award the costs of and incidental to a petition and that such costs shall follow the cause. Rule 30 (1) (b) of the Elections (Parliamentary and County Elections) Petition Rules 2017 empowered the Court to set the maximum of costs payable.
  32. If the Court did not determine the costs, the Registrar of the Court was required by rule 31 to tax such costs.

Petition partly allowed

  1. Declaration issued that the election held on August 8, 2017 for the Member of National Assembly for Marakwet East Constituency was not free, fair, credible or verifiable.
  2. Declaration issued that the 3rd Respondent was not validly elected as the Member of the National Assembly for Marakwet East Constituency.
  3. The prayer that Linah Jebii Kilimo be declared as the winner of the election dismissed.
  4. The 3rd Respondent to hold a fresh election for the Member of National Assembly for Marakwet East Constituency in accordance with the Constitution, the Elections Act and the Regulations thereunder.
  5. Petitioner granted costs to be met in equal shares by the 1st and 3rd Respondents; maximum costs to be Kshs. 2,000,000.
  6. Deputy Registrar of the Court to tax the Bill of Costs under Rule 31.
  7. Security deposit of Kshs. 500,000 paid into court to be refunded to the Petitioner subject to deduction of any unpaid court fees.
  8. Certificate of determination of the Petition required under section 86 of the Elections Act to issue.
JUDICIAL REVIEW Dismissal of cases that raise issues of breach of fundamental rights and freedoms at an interlocutory stage

Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR
High Court at Nairobi
Miscellaneous Civil Cause No. 706 Of 2017
G V Odunga,J
February 26, 2018.
Reported by Kakai Toili

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Judicial Review – judicial review proceedings – applicable law – Civil Procedure Act - whether the Civil Procedure Act was applicable to judicial review proceedings – Civil Procedure Act; Fair Administrative Action Act, 2015, section 9(2), (3) and (4)
Jurisdiction – jurisdiction of the High Court – setting aside of orders - setting aside of leave and stay orders issued by the same court -whether the High Court had jurisdiction to set aside leave and stay orders granted by the same Court in judicial review proceedings
Judicial Review – judicial review proceedings – orders - setting aside of ex parte orders - what were the circumstances in which a court would set aside ex parte orders
Jurisdiction – Jurisdiction of the High Court – jurisdiction to entertain a dispute where an alternative remedy was provided by an Act of Parliament - whether the High Court could entertain a dispute where an alternative remedy was provided by an Act of Parliament – Constitution of Kenya, 2010, article 159 (2) (c)
Jurisdiction – Jurisdiction of the High Court – limitation of the High Court’s jurisdiction – Acts of Parliament - whether the High Court’s jurisdiction could be limited by an Act of Parliament - Constitution of Kenya, 2010, article 165
Jurisdiction – jurisdiction of subordinate courts - jurisdiction to deal with questions respecting the interpretation of the Constitution - whether subordinate courts had jurisdiction to deal with questions respecting the interpretation of the Constitution- Constitution of Kenya, 2010, article 23 (1) & (2)
Constitutional Law – Parliament – role of Parliament - conferring powers upon itself - powers not conferred to Parliament by the Constitution - whether Parliament could confer upon itself powers not conferred to it by the Constitution
Jurisdiction – Jurisdiction of the High Court – scope -what was the scope of the High Court jurisdiction to inquire into Parliament’s failure to abide by its standing Orders – Constitution of Kenya, 2010, articles 93 (2) and 124(1)
Constitutional Law – fundamental rights and freedoms – breach of fundamental rights and freedoms – suits on breach of fundamental rights and freedoms – dismissal of suits on breach of fundamental rights and freedoms – where parties had not been heard - whether a court could dismiss a case that raised issues of breach of fundamental rights and freedoms at an interlocutory stage before parties to the case had been heard - Constitution of Kenya, 2010, article 24
Constitutional Law – separation of powers - doctrine of separation of powers-arms of government - relationship between the different arms of government – judiciary and the legislature – where there was an on going parliamentary process - whether a court could intervene in an ongoing Parliamentary process before both parties were heard- Constitution of Kenya, 2010, article 24

Brief facts:

The ex parte Applicants were elected Members of the National Assembly representing various constituencies and were all members of the Jubilee Party having been elected on its ticket. The Applicants were nominated and consequently approved by the House as members of the Labour and Social Welfare Committee, Agriculture and Livestock Committee, Environment and Natural Resources Committee and Parliamentary Broadcasting and Library Committee in the National Assembly. The ex parte Applicants expressed interest in being considered as leaders of their respective Committees and were elected as the Chairpersons of the said committees on December 20, 2017.
On December 21, 2017 the ex parte Applicants were served with notices from the 3rd Respondent notifying them of their intended discharge from the said departmental committees. Subsequently the 1st Respondent discharged them from their various departmental committees. Aggrieved by the decision to discharge them, the ex parte Applicants sought leave of the Court to institute judicial review proceedings, the Court granted leave to the Applicants to commence judicial review proceedings and directed that the said leave operate as a stay of the decision of the 1st and 3rd Respondents to discharge the Applicants from their various departmental committees pending the hearing and determination of the substantive motion.
Aggrieved by the Court’s decision the 1st and 2nd Respondent filed an application seeking several orders among them that the judicial review proceedings commenced by the ex parte Applicants be dismissed and that the ex parte Applicants be referred to the appropriate forum for the adjudication of the dispute. The 3rd Respondent subsequently filed a Preliminary Objection on the grounds that the Court lacked jurisdiction to determine the proceedings.

Issues:

  1. Whether the Civil Procedure Act was applicable to judicial review proceedings.
  2. Whether the High Court had jurisdiction to set aside leave and stay orders granted by the same Court in judicial review proceedings.
  3. What were the circumstances in which a court would set aside ex parte orders?
  4. Whether the High Court could entertain a dispute where an alternative remedy was provided by an Act of Parliament.
  5. Whether the High Court’s jurisdiction could be limited by an Act of Parliament.
  6. Whether a subordinate court had jurisdiction to deal with questions respecting the interpretation of the Constitution.
  7. Whether Parliament could confer upon itself powers not conferred to it by the Constitution.
  8. What was the scope of the High Court jurisdiction to inquire into Parliament’s failure to abide by its standing Orders.
  9. Whether a Court could dismiss a case that raised issues of breach of fundamental rights and freedoms at an interlocutory stage before parties to the case had been heard.
  10. Whether a court could intervene in an ongoing Parliamentary process before both parties were heard. Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 23 – Authority of courts to uphold and enforce the Bill of Rights
(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

Article 93- Establishment of Parliament
(2) The National Assembly and the Senate shall perform their respective functions in accordance with this Constitution.

Article 124 - Committees and Standing Orders
(1)Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.

Article 159 –Judicial authority
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

Article 165 - High Court
(1)There is established the High Court, which—

(a)shall consist of the number of judges prescribed by an Act of Parliament; and
(b)shall be organised and administered in the manner prescribed by an Act of Parliament.

(2)There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
(3)Subject to clause (5), the High Court shall have—

(a)unlimited original jurisdiction in criminal and civil matters;
(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i)the question whether any law is inconsistent with or in contravention of this Constitution;
(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv)a question relating to conflict of laws under Article 191; and

(e)any other jurisdiction, original or appellate, conferred on it by legislation.

(4)Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
(5)The High Court shall not have jurisdiction in respect of matters—

(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b)falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

Section 40 - Jurisdiction of Tribunal
(1)The Tribunal shall determine—

(a)disputes between the members of a political party;
(b)disputes between a member of a political party and a political party;
(c)disputes between political parties;
(d)disputes between an independent candidate and a political party;
(e)disputes between coalition partners; and
(f)appeals from decisions of the Registrar under this Act;
(fa) disputes arising out of party primaries.

(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

Held:

  1. The provisions of the Civil Procedure Act as well as the Rules made thereunder did not ordinarily apply to judicial review proceedings since the Civil Procedure Act was expressed to be an Act of Parliament to make provision for procedure in civil courts. Judicial review jurisdiction was a special jurisdiction which was neither civil nor criminal and the Civil Procedure Act did not apply
  2. The Court had jurisdiction to set aside leave and stay granted in judicial review proceedings. That was a very limited jurisdiction and would be exercised very sparingly and on very clear-cut cases. The Superior Court did not grant leave as a matter of course. Unless the case was an obvious one, such as where an order of certiorari was being sought and it was clear to the Court that the decision sought to be quashed was made more than six months prior to the Applicant coming to court and there were no prospects at all of success, practitioners were discouraged from routinely following the grant of leave with applications to set leave aside. Such applications were rare and the mere fact that an applicant could in the end have great difficulties in proving his case was no basis for setting aside leave already granted.
  3. Where a party at the ex parte stage of an application failed to disclose relevant material to the Court and thus obtained an order by disguise or camouflage the Court would set aside the ex parte orders so obtained. Where there was an efficacious remedy provided by law, the same ought to be resorted to first. Where a statute provided a remedy to a party, the Court had to exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute.
  4. Under article 165(2)(a) as read with articles 162(2) and 165(5) of the Constitution the Court had unlimited jurisdiction in Criminal and Civil matters save for matters reserved for the exclusive jurisdiction of the Supreme Court and matters relating to employment and labour relations, the environment and the use and occupation of and title to land. However, under article 2 of the Constitution, sovereign power which was delegated to inter alia the judiciary was to be exercised in accordance with the Constitution. Article 47 of the Constitution as read with article 165(6) donated to the Court supervisory powers with respect to decisions of the Subordinate Courts and inferior tribunals or bodies. Pursuant to article 47 Parliament enacted the Fair Administrative Action Act, 2015, section 9(2), (3) and (4) thereof provided for the procedure for judicial review
  5. The onus was upon the Applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. A remedy by judicial review should not have been made available where an alternative remedy existed and should only have been made as a last resort.
  6. Where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it was only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it was necessary for the Court to look carefully at the suitability of the statutory appeal in the context of the particular case.
  7. If there was a particular procedure provided under the Constitution or any written law the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom, which was in existence before the enactment of the Fair Administrative Action Act, ought not to have been invoked if the invocation would amount to contravention of the provisions of an Act of Parliament passed by the Legislature. Accordingly, where there was an alternative remedy provided by an Act of Parliament which remedy was effective and applicable to the dispute before the Court, the Court ought to have ensured that that dispute was resolved in accordance with the relevant statute. Where an obligation was created by statute and a specific remedy was given by that statute, the persons seeking the remedy were deprived of any other means of enforcement. It was not only the Constitution that could limit or confer jurisdiction of the Court but that any other law could by express provision confer or limit that jurisdiction
  8. Alternative dispute resolution processes were complementary to the judicial process and by virtue of article 159(2)(c) of the Constitution, the Court was obligated to promote those modes of alternative dispute resolution. The Court was entitled to either stay the proceedings until such a time as the alternative remedy had been pursued or bring an end to the proceedings and leave the parties to pursue the alternative remedy. The Court’s jurisdiction under article 165 of the Constitution could be limited and restricted by an Act of Parliament.
  9. Any provision that purported to limit the jurisdiction of the Court had to derive its validity from the Constitution and it had to do so expressly and not by implication unless the implication was necessary for the carrying into effect the provisions of the Act.
  10. In cases where the alternative remedy was in addition to the right to access the Court, to interpret the provisions in such a manner as to render the provision for alternative remedy illusory, would defeat the whole purpose of making provisions for alternative remedies. Therefore where the alternative route did not necessarily lock out judicial process the alternative remedies being a route provided under the relevant Act ought to have been adhered to unless circumstances militated against that route.
  11. The Applicant would not be required to resort to some other procedure if that other procedure was less convenient or otherwise less appropriate. Where a remedy provided was made illusory with the result that it was practically a mirage, the Court would not shirk from its constitutional mandate to ensure that the provisions of article 50(1) of the Constitution were attained with respect to ensuring that a person’s right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body was achieved
  12. The law is a living thing. The law could be thought to have failed if it could offer no remedy for the deliberate acts of one person which caused damage to the property of another.
  13. Section 40 of the Political Parties Act provided for the jurisdiction of the Political Parties Disputes Tribunal. The Constitution under article 169(2) empowered Parliament to enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1) which clause established subordinate courts. Under article 169(1)(d) subordinate courts were Magistrate’s Courts, Kadhi’s Courts, Courts Martial and any other court or local tribunal as could be established by an Act of Parliament, other than the courts established as required by article 162(2) of the Constitution.
  14. The Political Parties Tribunal (the Tribunal) was established pursuant to section 39 of the Political Parties Act. Pursuant to article 169(2) the jurisdiction, functions and powers of the subordinate court were conferred by the respective Acts of Parliament establishing the particular subordinate Court. In other words subordinate courts being creatures of the statute had to only exercise the powers conferred upon them by the statute creating them pursuant to the Constitution.
  15. Article 23(1) and (2) of the Constitution provided for jurisdiction in matters dealing with applications for redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. Subordinate Courts could only be empowered by Parliament in appropriate cases to deal with applications seeking redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. Parliament determined the parameters of the appropriate cases since it was left to Parliament to enact the legislation conferring jurisdiction on the subordinate courts. The people of Kenya in their wisdom did not expressly empower Parliament to enact legislation empowering subordinate Courts to deal with questions respecting the interpretation of the Constitution. It had to be presumed that the people of Kenya had a good reason for that.
  16. Article 20(4) of the Constitution only applied where the Bill of Rights was being applied in a matter in which the Tribunal was seized of jurisdiction. Subordinate courts were entitled to apply the Constitution in matters which they ordinarily had jurisdiction. To set out to place before a subordinate court what in effect was a constitutional petition when the Act of Parliament creating the Tribunal did not clothe it with such jurisdiction was to embark on a futile mission.
  17. Standing order No. 176 of the National Assembly Standing Orders provided for a discharge of a member from a committee. Article 93(2) of the Constitution enjoined the National Assembly and the Senate to perform their respective functions in accordance with the Constitution and in so doing they were enjoined by article 124(1) to make Standing Orders for the orderly conduct of their proceedings. Parliament had to comply with its own procedures
  18. In a jurisdiction such as Kenya’s in which the Constitution was supreme, the Court had jurisdiction to intervene where there had been a failure to abide by Standing Orders which had been given constitutional underpinning under article 124 (1). However, the Court had to exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.
  19. Whether by the fact that the ex parte Applicants were not just elected by the members of the Jubilee Party but by the whole House hence their discharge could not be treated just like an internal party affair could not be determined in a summary manner. That was a matter that required arguments before the Court could make a determination.
  20. The alternative dispute resolution mechanism prescribed by section 40 of the Political Parties Act could not be said to be a more convenient, beneficial and efficacious remedy. While the Court appreciated the importance of party discipline amongst its members, it had to be appreciated that party membership did not necessarily imply that a member of a political party by virtue of such membership surrendered or ceded his or her inalienable constitutional rights to the political party.
  21. Political parties were vehicles through which one’s freedom of association and political rights under articles 36 and 38 respectively of the Constitution were enjoyed, fulfilled and realised. They were not cemeteries or graveyards where such rights and ambitions were interred, extinguished or dimmed.
  22. Article 19(3) of the Constitution provided for rights and fundamental freedoms. The State or in the instant case political parties did not grant rights and fundamental freedoms to any person. That was necessarily so because human rights are generally universal and inalienable rights of human beings. A constitution simply recognised the natural and original human rights of mankind which any and every human being should have in order to lead a dignified life till his or her natural death. Rights contained in the Constitution were not the only rights to be enjoyed by persons but were just examples of the same.
  23. The rights and fundamental freedoms were not favours dished. The only avenue via which those rights and fundamental freedoms could be limited was pursuant the provisions of article 24 of the Constitution. In the instant case the parties had not been heard, it was inappropriate and premature at that stage to make such a determination. Whereas the Court could arrive at a decision after hearing the parties that the proceedings ought not to have been commenced before the Court at that stage. Based on the material before the Court it was highly inappropriate to do so when not all the facts had been placed before the Court and when the window for filing further documents had not yet been closed.
  24. In matters where a violation or threatened violation of the Constitution was alleged the Court ought to have been slow to summarily terminate such proceedings unless it was clear beyond paradventure that the matter was beyond resuscitation, that was not the case in the instant proceedings. It was not appropriate to reverse the decision of the Court at that stage. The parties had to expedite the hearing of the Motion so that the matter could be heard and determined on its merits.
  25. The National Assembly was subject to the supremacy of the Constitution. It was an organ of state and therefore was bound by the Bill of Rights. All its decisions and acts were subject to the Constitution and the Bill of Rights. Parliament could no longer claim supreme power subject to limitations imposed by the Constitution. It was subject in all respects to the provisions of the Constitution. It had only those powers vested in it by the Constitution expressly or by necessary implication or by other statutes which were not in conflict with the Constitution. Parliament could not confer on itself or on any of its constituent parts, including the National Assembly, any powers not conferred on them by the Constitution expressly or by necessary implication
  26. Courts had the competence to pronounce on the compliance of a legislative body with the processes prescribed for the passing of legislation. When a parliamentary process was challenged on the grounds that Parliament did not adopt it in accordance with the provisions of the Constitution or the Standing Orders, the Court had to consider whether in its proceedings in question Parliament gave effect to its constitutional obligations or the provisions of the Standing Orders and should the Court hold that it did not do so, the Court was obliged by the Constitution to say so and such determination though an intrusion into the domain of the legislative branch of government was nevertheless an intrusion mandated by the Constitution itself. When it was appropriate to do so, courts could and if need be had to use their powers to make orders that affected the legislative process.
  27. While the importance of the doctrine of separation of powers was an important one in Kenya’s constitutional democracy, it could not be used to avoid the obligation of a court to prevent the violation of the Constitution since that right and duty of protecting the Constitution were derived from the Constitution and the Court could not shirk from that duty. In such event, the legitimacy of an order made by the Court did not flow from the status of the institution itself but from the fact that it gave effect to the provisions of the Constitution.
  28. Whether the Court ought to have intervened in an ongoing Parliamentary process depended on the facts of each case and preferably after the cases for both sides were heard. Any political party’s constitutive instruments in so far as they purported to limit or restrict the rights and fundamental freedoms of their members, had to satisfy the provisions of article 24 of the Constitution.
  29. When the legislative and executive powers were united in the same person or in the same body of magistrates, there could be no liberty. There was no liberty if the power of judging was not separated from the Legislature and Executive, there would be an end to everything, if the same man or the same body were to exercise those three powers.

Applications dismissed, costs to the ex parte Applicants.

CIVIL PRACTICE AND PROCEDURE Principles that Govern Matters of General Public Importance

Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and allied Workers’ Union (Kefhau) Represented By Its Promoters David Benedict Omulama & 9 oythers [2018] eKLR
Civil Application No. Sup. 5 of 2017
Court of Appeal at Nairobi
M. Warsame, W. Ouko & K. Murgor, JJA
February 23, 2018
Reported by Kakai Toili

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Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court - what types of appeals lay from the Court of Appeal to the Supreme Court – Constitution of Kenya, 2010, article 163(4) (b)
Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court – certification of appeals from the Court of Appeal to the Supreme Court – criteria to certify appeals – public interest - principles to determine public interest - what were the principles to determine whether a matter was of general public importance.
Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court – certification of appeals from the Court of Appeal to the Supreme Court – criteria to certify appeals – public interest - matters affecting fundamental freedoms - whether a matter that would affect fundamental freedoms amounted to a matter of general public importance - Constitution of Kenya, 2010, article 36(1) & 41
Brief Facts:
The Applicant filed the instant Application seeking certification and leave to appeal to the Supreme Court against the decision of the Court of Appeal sitting at Nairobi.

Issues:

  1. What types of appeals lay from the Court of Appeal to the Supreme Court.
  2. What were the principles to determine whether a matter was of general public importance.
  3. Whether a matter that would affect fundamental freedoms amounts to a matter of general public importance. Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 36 - Freedom of association
(1)Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

Article 41 - Labour relations
(1)Every person has the right to fair labour practices.
(2)Every worker has the right—

(a)to fair remuneration;
(b)to reasonable working conditions;
(c)to form, join or participate in the activities and programmes of a trade union; and
(d)to go on strike.

(3)Every employer has the right—

(a)to form and join an employers organisation; and
(b)to participate in the activities and programmes of an employers organisation.

(4)Every trade union and every employers’ organisation has the right—

(a)to determine its own administration, programmes and activities;
(b)to organise; and
(c)to form and join a federation.

(5)Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Article 163 - Supreme Court
(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(a)as of right in any case involving the interpretation or application of this Constitution; and
(b)in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause

Held:

  1. It was not all intended appeals that lay from the Court of Appeal to the Supreme Court. Only those appeals that arose from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. The only other instance when an appeal could lie to the Supreme Court was one contemplated under article 163(4) (b) of the Constitution, where it was certified that the appeal involved a matter of general public importance.
  2. A matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that its impact and consequences were substantial, broad-based, transcending the litigation-interests of the parties and bearing upon the public interest. As the categories constituting the public interest were not close, the burden fell on the intending Appellant to demonstrate that the matter in question carried specific elements of real public interest and concern.
  3. The principles to determine whether a matter was of general public importance included;
    1. For a case to be certified as one involving a matter of general public importance, the intending Appellant had to satisfy the Court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case and had a significant bearing on the public interest.
    2. Where the matter in respect of which certification was sought raised a point of law, the intending Appellant had to demonstrate that such a point was a substantial one, the determination of which would have had a significant bearing on the public interest.
    3. Questions of law had to have arisen in the Court or Courts below and had to have been the subject of judicial determination.
    4. Where the Application for certification had been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court could either resolve the uncertainty, as it could determine or refer the matter to the Court of Appeal for its determination.
    5. Mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts was not a proper basis for granting certification for an appeal to the Supreme Court. The matter to be certified for a final appeal in the Supreme Court had to still fall within the terms of article 163(4) (b) of the Constitution.
    6. The intending Applicant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought.
    7. Determination of facts in contests between parties were not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
  4. Prima facie, the issue of whether the Court of Appeal erred in law in finding and holding that the Industrial Court was right in applying the provisions of the Kenyan Constitution, 2010 to a case that was filed before its promulgation transcended the circumstances of the instant case and could have bearing on public interest.
  5. The Constitution of Kenya, 2010 under article 36(1) conferred the right to freedom of association by every person as a fundamental human right. Article 41 provided that every worker had the right to form, join or participate in the activities and programmes of a trade union of their choice. Consequently, because the instant case could affect those fundamental freedoms, it was of general public importance.
  6. From an analysis of the Notice of Motion and the Affidavit in support of the Application, the intending Appellant had met his obligation to identify and concisely set out the specific elements of general public importance. An Appeal to the Supreme Court within the terms of article 163 (4) of the Constitution had to be founded on cogent issues of constitutional controversy.
  7. The Applicant demonstrated that he intended to challenge the interpretation or application of any specific provision in the Constitution and demonstrated how the issues that were before the High Court and the Court of Appeal became matters within the ambit of article 163 (4) of the Constitution. A petitioner had to rationalize the transmutation of the issue in contention from an ordinary subject of leave to appeal to a meritorious theme involving the interpretation or application of the Constitution such that it became a matter as of right falling within the appellate jurisdiction of the Supreme Court. In the instant case the Applicant established that the issues in it could be issues of constitutional interpretation or application, for which under article 163(4) (a) of the Constitution no leave would have been required. The threshold in article 163(4) (b) had been met.
  8. The instant Application demonstrated to the existence of specific elements of general public importance which were attributed to the matter.

Application allowed, Appeal certified and leave to appeal to the Supreme Court granted .

CRIMINAL LAW Effect of Failure to Establish the Age of a Victim of Defilement

Moses Muyan v Republic [2018] eKLR
Criminal Appeal Number 14 of 2017
High Court at Kapenguria
S. M. Githinji, J
March 14, 2018.
Reported by Kakai Toili

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Criminal Law – sexual offences – victims – age of victims – failure to establish the age of a victim - what was the effect of failure to establish the age of a victim of a sexual offence

Brief Facts:
The Appellant was charged in the Trial Court with the offence of defilement, the particulars were that in January, 2017 within West Pokot County, the Appellant intentionally caused his penis to penetrate the vagina of the Complainant, a child aged between 12 and 15 years. The Appellant faced an alternative count of committing an Indecent Act with a child, the particulars thereof being that in January, 2017 within West Pokot County, the Appellant intentionally touched the vagina of the Complainant, a child aged 14 years, with his penis.
After the alleged defilement the Complainant was seen at Kapenguria Referral Hospital and the medical officer who examined her noted that her hymen was broken and the tests done for sexually transmitted diseases (STD’s) were negative. The PRC form which had been filled earlier indicated the birth canal was bruised and perforated. Age assessment was done and she was found to be 14 years old.
During trial at the Trial Court, the Complainant said in her evidence in chief that she was born on June 8, 2000 and that she had her Birth Certificate however she did not produce it. The Complainant’s father in his evidence said the Complainant was born in the year 2003 but could not remember the month and that her Birth Certificate got burnt in their house in 2017.
The Trial Court found the Appellant guilty of the offence of defilement and sentenced him to serve 20 years imprisonment. Discontented with the conviction and sentence, the Appellant filed the instant Appeal.

Issue:

  1. What was the effect of failure to establish the age of a victim of a sexual offence?Read More..

Held:

  1. The main charge disclosure that the Complainant was between the age of 12 and 15 years showed that the Investigating Officer was not able to establish her actual age and that was why he gave a range. The alternative charge put the Complainant’s age at 14 years of which was specific and contradicted the particulars in the main count. When the Trial Court swore the Complainant as an adult, it suggested that she physically looked like an adult.
  2. It was doubtful why the Complainant never produced the Birth certificate if she had it with her in court while giving evidence. The contradictions in the evidence of the Complainant and his father showed either one of them or both were not truthful. The age assessment did not reveal the examination that was done to establish it. It is just stated as 14 years. Such evidence could not be trusted.
  3. The age given on the front page of the original P-3 form appeared to have been 16 years, of which was later changed to 14. On page 3, part c, it was given as 14 years. That could be the reason why PW-5 gave both ages in his evidence. The Trial Court had no sufficient grounds to hold that the Complainant was 14 years old.
  4. There was nothing, given the evidence on record that made it certain that the Complainant was not below 12 years and above 15 years. It was crucial for the prosecution to ascertain the age of a sexual offence victim as the age differentiated between the offence of rape and defilement and the sentence which the offence would attract. Failure by the prosecution to do so was fatal to their case.
  5. In the instant case the evidence suggested the Complainant consented to having sex with the Appellant. If she was an adult consent would have been an available defence to the Appellant and the offence would have been of rape. Failure by prosecution to establish the age of the Complainant formed the Achilles heel in their case.

Appeal allowed, conviction and sentence quashed, Appellant set free unless otherwise lawfully held.

JURISDICTION A commissioner for oaths who works for a firm that represents a particular Petitioner is not allowed to have that Petitioner's affidavits sworn before her.

Stephen M Mogaka v Independent Electoral & Boundaries Commission & 2 others
Election Petition 2 of 2017
High Court at Nyamira
J A Makau, J
December 14, 2017
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the High Court-categorization of a dispute-circumstances in which a matter would be considered to be an employment dispute-whether a dispute touching on the commissioning of affidavits by an unauthorized person was an employment dispute-where it was necessary to determine whether an advocate who commissioned the affidavits of a certain Petitioner's witnesses worked for the firm which drew and filed all of the Petitioner's documents-Constitution of Kenya 2010, articles 162 & 165.
Electoral Law-election petition-interlocutory application-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-what would amount to an interlocutory application?-Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 15(1)(c) & 15(2).
Statutes-interpretation of statutory provisions-commissioner for oaths-powers of a commissioner for oaths-unauthorized acts by a commissioner of oaths-where the commissioner for oaths worked for a firm of advocates that represented the Petitioner whose supporting affidavit and witness affidavits were sworn before her-whether those affidavits would be struck out and expunged from the court record-Oaths and Statutory Declarations Act (Cap 15), section 4(1).
Electoral Law-election petition-supporting affidavit and the Petitioner's witness affidavits-time of filing the petition and the accompanying affidavits-whether the applicable timelines could be extended-effect of having a supporting affidavit and the Petitioner's witness affidavits struck out and expunged from the Court record-whether the petition could proceed to the hearing stage-Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 8(4)(b), 12 (3) & 12(4). 

Brief facts:
The Petitioner was an aspirant in the August 8, 2017 elections for Member of National Assembly, West Mugirango Constituency. There were 14 aspirants in that election and the 3rd Respondent emerged as the successful candidate and was declared duly elected as the Member of the National Assembly for the constituency. To challenge that outcome, the Petitioner filed a petition together with 6 affidavits from his witnesses.
The affidavits were sworn before Mercy Moragwa Mogusu Advocate (the advocate) and Commissioner for Oaths, at Nairobi by some witnesses and at Nyamira by other witnesses. The 2nd Respondent made an application for the 6 affidavits and the Petitioner’s supporting affidavit to be struck out and for the petition to be dismissed for want of evidence. The basis for seeking the striking out the affidavits was that section 4 of the Oaths and Statutory Declaration Act barred an advocate from commissioning documents drawn by her own firm of Advocates.
Against the application, the Petitioner raised a preliminary objection stating that the Court lacked jurisdiction to determine it as it required the Court to make a determination as to whether the advocate who commissioned the affidavits worked for the firm that drew the Petitioner's documents. The Petitioner said that such a determination was within the exclusive competence of the Employment and Labour Relations Court. The Petitioner also stated that the application, pursuant to rule 15(1) (c) of the Elections (Parliamentary and County Elections) Petitions Rules 2017, ought to have been determined at the pre-trial stage and not after the commencement of the hearing of the petition.

Issues:

  1. Whether the High Court had jurisdiction to determine the application.
  2. Whether an application whose determination could have the effect of determining a suit conclusively was a form of an interlocutory application.
  3. Whether a dispute about the commissioning of affidavits by an unauthorized person was an employment dispute.
  4. What was the effect of having an advocate who worked for a firm, that represented a particular Petitioner, having that Petitioner’s affidavits sworn before her?
  5. Whether an election petition which was filed together with a supporting affidavit and witness affidavits which were struck out could be heard by the Court.Read More...

Held:

  1. Article 165 of the Constitution provided for the jurisdiction of the High Court. The High Court would not have jurisdiction over maters reserved for the exclusive jurisdiction of the Supreme Court or the Employment and Labour Relations Court or the Environment and Land Court.
  2. The Court was not being asked to determine a dispute between an employee and an employer. It was being asked to make a finding of fact as to whether the impugned affidavits were commissioned by an unauthorized person in light of the provisions of the Oaths and Statutory Declarations Act.
  3. An interlocutory application was capable of resulting in the final determination of a matter on a point of law. An interlocutory application would be an application filed and heard before a final decision was made on a matter. Therefore all applications filed before the making of a determination on the election petition were interlocutory applications notwithstanding the eventual outcome, except where the application was on a point of law.
  4. Rule 15 (1) (c ) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided that an election court would schedule a pre-trial conference with the parties and determine interlocutory applications in the pre-trial conference. Further, under rule 15 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 an election court would not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before commencement of the hearing of the Petition.
  5. At the conclusion of the pre-trial conference, the Court directed that any further applications be brought by way of formal application. The Court did not close the door for the filing of interlocutory applications before the commencement of the hearing of the petition. The 2nd Respondent's application was filed after the conclusion of the pre-trial conference but before the hearing of the petition.
  6. The 2nd Respondent offered satisfactory reasons as to why the application was not made at the pre-trial conference. The hearing of the petition had not commenced. There was no breach of rule 15 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. An application for striking out a petition which was purely based on a point of law was capable of being filed at any time before the conclusion of the hearing of the petition.
  7. There was sufficient evidence indicating that the while applying for her 2017 practicing certificate, the advocate declared her place of work as M/s. Musyoki Mogaka & Co. Advocates and gave those particulars to the Law Society of Kenya. If she changed her place of work it was up to her to inform the Law Society of Kenya. The information in the Law Society of Kenya website was credible, correct and updated and it was a true reflection of where that advocate was working. Otherwise, she would have sworn an affidavit to controvert that information.
  8. The information on the Law Society of Kenya website in relation to three other persons, Agonda Jacqueline Adhiambo, Gisembe Paul Nyamweya and Mwea Dorcas Wanjiru, indicating that they worked for M/s. Musyoki Mogaka & Company Advocates, did not mean that the Law Society of Kenya's website was incredible or unupdated. It was information which provided the last known contacts declared by those persons.
  9. What the Court was dealing with in the election petition was not an issue of technicalities. It was an issue of non-compliance with the law regarding commissioning of affidavits under the Oaths and Statutory Declarations Act. Articles 10, 12, 19 – 22, 159 (2) (d) of the Constitution of Kenya 2010 and schedule 6 of the Constitution of Kenya 2010, did not exempt a party from complying with the provisions of the law. The Court was obligated to interpret and apply the law. It could not shut its eyes to non-compliance with the law or forgive the non-compliance.
  10. Considering that the advocate did not swear an affidavit to controvert the assertion that she worked at Musyoki Mogaka and Company Advocates and the Petitioners only offered an affidavit that was evasive, diversionary and argumentative, on a balance of probabilities it was proven that at the time of commissioning the 7 impugned affidavits, Mercy Moragwa Mogusu worked at Musyoki Mogaka and Company Advocates.
  11. Contrary to the provisions of section 4(1) of the Oaths and Statutory Declarations Act, the advocate in question, being an Advocate practicing law in the firm, that was acting for the Petitioner, had the supportive affidavit of the Petitioner as well as the six witnesses affidavits sworn before her. That constituted a failure to comply with the law.
  12. The swearing of the 7 affidavits offended statutory provisions and it was not a mere irregularity, it was neither a defect in form nor a technical irregularity as it went to the root of the substantive issue before the Court. It was an irregularity which was incurably defective. All the affidavits commissioned by an unauthorized person were defective and ought to be struck out and expunged from the record of the Court.
  13. Rule 8(4)(b) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, provided that a petition had to be accompanied by a supporting affidavit sworn personally by the Petitioner. Rule 12 (3) and 12(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided that the petition would also be filed together with the affidavits of the Petitioner's witnesses. The affidavits of the Petitioner's witnesses and the supporting affidavit were part of the petition. They had to accompany the petition and they could not be filed after the timelines set for filing the petition had lapsed.
  14. The fact that the Petitioner's supporting affidavit and the affidavits of the Petitioner's witnesses had been struck out and expunged from the record, meant that the petition was not supported by any affidavit and it could not proceed to hearing without the affidavits being on record.
  15. The timeline within which a petition and all accompanying documents ought to be filed was 28 days from the time of the declaration of the results of the elections. The High Court had no jurisdiction to extend timelines for the filing of further affidavits or fresh affidavits after the expiry of that timeline and neither could it re-admit expunged or struck out affidavits.

Preliminary Objection dismissed and Notice of Motion allowed.

Long'et Terer - CEO and Editor

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t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

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