Children Adoptees Have a Right to Know the Identity of their Parents, the Parent’s Origin and the Existence if any of their Siblings.
D W T v B N T & 3 others  eKLR
Petition No. 46 Of 2016
High Court at Nairobi
Milimani Law Courts
Constitutional & Human Rights Division
April 18, 2018
J.M. Mativo, J
Reported By Felix Okiri
Download the Decision
Constitutional Law- fundamental rights and freedoms –rights of a child - rights of an adoptee – application to know biological parents and circumstances of adoption - whether an adopted child had a right to know his or her biological parents- what were the limitation of that right - Constitution of Kenya, 2010 articles 24,27, 28, 29, 35 and 45
Constitutional Law- fundamental rights and freedoms- rights of a child- enforcement of the Bill of Rights- whether a right to the information of the child’s background and the identifying information about his/her biological parents could be articulated as a fundamental right guaranteed in the Bill of Rights.
Civil Practice & Procedure- parties to a suit -joinder of parties-where a party was improperly enjoined in the suit- whether joinder, misjoinder or non-joinder of a party was sufficient to defeat a constitutional Petition - whether the Petition was bad for misjoinder of parties and for raising several causes of action- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
The Petitioner, a male adult, was an adopted son of the 1st and 2nd Respondents. He sought to know his biological parents and circumstances of his adoption from the 3rd Respondent. The Petitioner claimed that his rights under articles 27, 28 and 35 of the Constitution had been violated in that the adopting parents adopted him under circumstances unknown to him, yet they had denied him parental compassion, love, care and support.
The Petitioner claimed that he lived with the 1st and 2nd Respondents until he was 17 years when he was compelled by adverse treatment to leave their home. He stated that sometimes in 2011, he was charged, tried and convicted of the offence of violently robbing the 2nd Respondent. His appeal against the said conviction was pending in the Court of Appeal.
The Petitioner sought a declaration that despite not being their biological son and regardless of criminal proceedings against him, he was part of the 1st and 2nd Respondents’ family, and was consequently eligible to parental care, love and support and was entitled to enjoy the right to dignity, security of person, family and equality like other members of the family to the greatest extent possible.
The Petitioner had also enjoined the fourth Respondent, the British High Commission in the instant Petition.
- Whether an adopted child had a right to know his or her biological parents.
- Whether a right to the information of the child’s background and the identifying information about his/her biological parents could be articulated as a fundamental ‘right’ guaranteed in the Bill of Rights.
- Whether the Petition was bad for misjoinder of parties and for raising several causes of action.
Relevant Provisions of the Law
Convention on the Rights of Child 1989
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where the child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption.
(1) The competent authorities of a contracting State shall ensure that information held by them concerning the child's origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.
(2) They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.”
The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children
... need of a foster or an adopted child to know about his or her background was to be recognized by persons responsible for the child's care, unless that was contrary to the child's best interests.
The Evidence Act
Section 107 (1)
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
Rule 5 (d)
“The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added”
- A person was significantly shaped by his identity as a person who was adopted and his biological identity was as much a part of his life as was his adopted identity. That information which was critical to the formation of a person’s identity was often inaccessible to most adopted children, who did not know who their biological parents were.
- Whereas the law in Kenya merely provided for adoption, it did not address any concerns or the rights of adopted children to know the identity of their biological parents, the circumstances that led to their adoption, and the suitability of the adopting parents.
- Whereas pertinent questions were determined by the court handling the adoption, there was no provision stating that such information was to be provided to the child either during minority or upon attaining the age of majority. Part X11 of the Children's Act lay down parameters as to who could adopt and under what conditions, but other than parental rights, it did not address pertinent rights of the adopted child such as: the right to identity, the right to be informed about his or her biological parents, the right to be informed of the circumstances leading to his adoption, and the right to know the whereabouts of her/his biological parents or the suitability of the adopting parents.
- Every person had the right to know where they came from and their family lineage. A big dilemma however arose in adoption cases. Adoption processes throughout the world were shrouded in secrecy, perhaps due to the sensitive nature of the relationship that was being severed or created out of the adoption exercise. The Children's Act was silent on the question of whether or not adopted children had a right to know their origin. Further, the Act was also silent on what information the children could or could not access and at what age. The information on the origin of the child was in the custody of the government and adoption agencies and the court handling the adoption. That lacuna in Kenya’s law led the Court to resort to international law as a source of law in Kenya.
- Article 8 of the Convention on the Rights of the Child provided that States Parties were to undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. It further provided that where the child was illegally deprived of some or all of the elements of his or her identity, States Parties had to provide appropriate assistance and protection, with a view to re-establishing speedily the child’s identity. Article 30 of the same convention provided that the competent authorities of a Contracting State were to ensure that information held by them concerning the child's origin, in particular information concerning the identity of the child’s parents, as well as the medical history, was preserved. It required State parties to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State.
- The law in the United Kingdom provided that children could apply for a copy of their original birth certificate and for information about their birth family from the adoption agency, which arranged the adoption. Adult adoptees and birth family members could also apply to the Registrar General for entry of their names on the Adoption Contact Register which included the names of adopted persons and the relatives of adopted persons. In other Jurisdictions, the right was guaranteed once one reached the age of majority.
- From the child study report, one would be able to gather information as to who were the biological parents of the child, if the biological parents were known. There could be no objection in furnishing to the adoptive parents particulars in regard to the biological parents of the child taken in adoption, but it was to be made clear that it was to be entirely at the discretion of the adoptive parents whether and if so when , to inform the child about its biological parents. But if after attaining the age of maturity, the child wanted to know about its biological parents, there could not be any serious objection to the giving of such information to the child because after the child had attained maturity, it was not likely to be easily affected by such information and in such a case, the adoptive parents could, in exercise of their discretion, furnish such information to the child if they thought fit.
- In Kenya, when issues of the need for the child to know the biological parents arose, the Court could refer to the Constitution for reference and guidance. Article 35 of the Constitution provided that every citizen had the right of access to information held by the State, information held by another person and required for the exercise or protection of any right or fundamental freedom. Information regarding adoption of children in Kenya was held by the State and adoption agencies. Article 35 enabled the child either during the age of minority through her legal guardian or after attaining the age of majority to apply to be furnished with information about their biological parents.
- Article 31 of the Constitution provided that every person had the right to privacy, which included the right not to have information relating to their family or private affairs unnecessarily required or revealed. That provision brought about a competition of rights and interests. The biological parents of the child had the right to have their matters kept in secrecy but the child on the other hand had the right to the information and to know their true identities. Article 53 of the constitution provided that the best interest of the child was of paramount importance in all matters affecting the child. Children adoptees had a right to know the identity of their parents, the parent’s origin and the existence if any of their siblings. In pursuing the right to know one’s origins as a fundamental right, the three interests that emerged were - medical, legal and genetic. Also, when enjoying the right, one had to strike a balance between the need for one to know the biological parents, and protection of confidentiality/privacy of the biological and adopting parents.
- The need to know one’s parentage and background was crucial to children and adults who did not have that information. That right to know one’s origins meant having the information and identity of one’s biological parents and conditions of birth. The right to know stemmed from the desire to know the identity of self. Social scientists had considered the meaning of identity to be determined by three main aspects: self-definition, coherence of personality and a sense of continuity over time.
- That meant that identity was often determined by social changes and one’s definition of self was affected by how a relationship was seen in the social context. Adoption transgressed notions of identity and the journey of identity development in Kenya was complex and problematic for adopted persons. Adoption was governed by different kinds of social arrangements; those arrangements had implications on the development of the identity of the child.
- Many adopted persons felt the need to know information about their birth parents. That need translated to an assertion of the right to know one’s origins. There were three main needs to have that information –
- There was often the desire to know one’s medical and health history and for that purpose, knowing the medical history of one’s parents and ancestors became important.
- One’s legal interest in property, which blood relationship could confer on children. Those two interests were subsidiary interests.
- The primary interest was a psychological need for identity. The psychological need to know one’s roots or identity was found to be the most important reason as to why adoptees wanted to know about their biological parents since it underlay the need to know and could shape the identity of an adopted person.
- There was a psychological need in all people, manifest principally among those who grew up away from their original families, to know about their background, geneology, and personal history, if they were to grow up feeling complete and whole. The idea of the importance of blood ties and genes was common to most people and they felt profoundly deracinated if brought up with no knowledge of their blood origins. That psychological need to know one’s origins had now been recognized as . It was an important element in one’s psychological balance to know where one came from and that everyone had a right to know the truth about their origins.
- Adopted persons who did not have information about their roots often had difficulty establishing a personal identity. Problems with identity formation were particularly acute during adolescence and at crisis points in adulthood. A diminished sense of self was also related to genealogical bewilderment. Genealogical bewilderment could occur when children either did not have any knowledge of their biological parents or possessed only uncertain knowledge and the resulting State of confusion and uncertainty fundamentally undermined children’s sense of security, thus affecting their mental health. In addition to the psychological need, medical crises also often precipitated the need for information about biological relatives. Ranging from allergies to searches for transplant donors, medical needs could have left adoptees without sufficient information to get proper treatment. Short of a crisis, impending marriage and childbearing led to concerns about genetic disease and hereditary traits. Other reasons for open records advanced by adoptees included inheritance rights, religion, and simply a longing to meet their birth parents.
- It was beyond doubt that there was an international recognition of the Child’s Right to identity as a fundamental right. That psychological need to know one’s identity had been articulated as a right in the Convention for the Rights of the Child 1989 (CRC) in articles 7 and 8.The CRC had gone on to protect several rights of the child, such as the right to identity that were not recognized as fundamental human rights before, a recognition that it was a right worthy of international recognition. “Identity” was not defined under the CRC and only instances of identity such as nationality, name and family relations were listed.
- Article 8 was particularly meant to address unusual conditions such as natural parents versus adoptive parents and other such conditions. Article 8, therefore imposed an obligation on the State to not only preserve the identity of a child i.e. to preserve all the information relating to the biological parents of the adopted child, but also not to deprive the child of such information and to assist the child in getting such information.
- The CRC thus affirmed that an adoptee could seek a right against the State or any person for providing him/her information about her identity and about her biological parents. In addition to the CRC, the child’s right to know her identity was also protected in the Hague Convention on Protection of Children and Cooperation in Respect of Inter- Country Adoption. In article 30, it required State authorities to ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, was preserved and that the child or his or her representative had access to such information, under appropriate guidance, in so far as it was permitted by law in that State.
- The child’s right to know his or her origin was derived from the general right to privacy guaranteed under article 17 of the International Covenant on Civil and Political Rights 1966.The right to privacy would include the right to know and receive information of one’s family and private life and guaranteed against arbitrary interference with the same. The right to privacy and family life was also guaranteed under article 8 of the European Convention of Human Rights.
- That need of the child to know about her background was also recognized in the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally in article 9 which stated that the need of a foster or an adopted child to know about his or her background was to be recognized by persons responsible for the child's care, unless that was contrary to the child's best interests.
- The competing rights such as the right to privacy for the biological parents and the adopting parents all had to be balanced. With those competing interests, courts were obligated to ensure that the best interests of the child where the child was still a minor, had to prevail over all interests of all other parties. On the other hand, where the child had attained the age of majority as in the instant case, the reasons for refusal to supply the information had to satisfy the limitations test under article 24 of the Constitution.
- The law in Kenya was in favour of the disclosure. First, the adopted person had a constitutional right to dignity and privacy which included right to know their biological parents.By insisting on the information, the person was seeking to exercise a fundamental right recognized in Kenya’s Constitution and international Instruments discussed above. Article 35 of the constitution provided that every citizen had the right of access to information held by the state, information held by another person and required for the exercise or protection of any right or fundamental freedom.
- Information regarding adoption of children in Kenya was held by the State and adoption agencies. The only limitation in the case of a minor would be of the child contemplated under article 53 (2) of the Constitution. For an adult as in the present case, the reasons for refusal could only pass constitutional muster if they satisfied limitation of rights under article 24. For example, the need to ensure that the disclosure did not prejudice the rights and fundamental freedoms of others. Examples here would have included the right to privacy of the biological parents and the Adoptive parents, but even then, the burden lay on the person who sought to justify the limitation to demonstrate to the Court that the requirements of article 24 of the Constitution had been satisfied.
- There was no material before the Court to demonstrate that the 3rd Respondent handled the adoption in question or had in its custody, care or control the information sought. The adoption was done in Court. The Petitioner did not avail the court proceedings, judgment and documents produced in court in the adoption proceedings to demonstrate that indeed the 3rd Respondent was involved in the Adoption. The Court had the Petitioner’s averments on one side and a denial by the 3rd Respondent on the other and it was expected to make a determination.
- All cases were decided on the legal burden of proof being discharged (or not). Whether one liked it or not, the legal burden of proof was consciously or unconsciously the acid test applied when coming to a decision in any particular case.
- It was a fundamental principle of law that a litigant bore the burden of proof in respect of the propositions he asserted to prove his claim. Decisions on violation of constitutional rights were not to be made in a factual vacuum. To attempt to do so had the impact of trivializing the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights was not, a mere technicality; rather, it was essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights could not be based upon the unsupported hypotheses.
- There was also no evidence that the Petitioner ever requested the information in question from the 3rd Respondent or any of the Respondents and was denied.
- Failure by the Petitioner to adduce evidence to link the 3rd Respondent with the adoption led the Court to the irresistible conclusion that there was no material for the Court to conclude that the 3rd Respondent handled the adoption in question or had in their custody, control or power the information sought. Consequently, the answer to the issue under consideration was in the negative.
- The 1st and 2nd Respondents cited provisions of the Civil Procedure Rules and heavily relied on decisions rendered in civil cases. They over looked the fact that the case was a constitutional Petition seeking to enforce fundamental rights and that the same was expressed under the provisions of the Constitution. The proceedings were governed by
- It was evident both from the Constitution and the rules which required that substantive justice be done that the joinder, misjoinder or non-joinder of a party was not sufficient to defeat a constitutional Petition. Those rules were in accord with the requirements of the Constitution that in exercising judicial authority, the Court was to seek to do substantive justice, hence the provisions of article 159 (2)(d) of the Constitution which provided that . In the circumstances, the objection which premised on the alleged misjoinder of parties failed.
- In a mathematical proof, elegance was the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance was minimum motion with maximum effect. In filmmaking, elegance was a simple message with complex meaning. The most challenging games had the fewest rules, as do the most dynamic societies and organizations. An elegant solution was quite often a single tiny idea that changed everything. Elegance was the simplicity found on the far side of complexity.
- While elegance in a pleading was not a precondition to its legitimacy, it was an aspiration which, if achieved, could only but advance the interests of justice. A poorly drawn pleading, on the other hand, which did not tell a coherent story in a well ordered structure, would fail to achieve the central purpose of the exercise, namely communication of the essence of case which was sought to be advanced.
- Pleading was not to be dismissed as a lost art. It had an important part to play in civil litigation conducted within the adversarial system. Crafting a good pleading called for precision in drafting, diligence in the identification of the material facts marshaled in support of each allegation, an understanding of the legal principles which were necessary to formulate complete causes of action and the judgment and courage to shed what was unnecessary.
- Although a primary function of a pleading was to tell the defending party what claim it had to meet, an equally important function was to inform the court or tribunal of fact precisely what issues were before it for determination.
- The function of a pleading in civil proceedings was to alert the other party to the case they needed to meet and hence satisfy basic requirements of procedural fairness and further, to define the precise issues for determination so that the court could conduct a fair trial. The cardinal rule was that a pleading had to state all the material facts to establish a reasonable cause of action (or defence). The expression material fact was not synonymous with providing all the circumstances. Material facts were only those relied on to establish the essential elements of the cause of action. The instant pleading was not so prolix that the opposite party was unable to ascertain with precision the causes of action and the material facts that were alleged against them. The issues raised in the Petition were not confusing. The objection based on the said ground thus failed.
- The Petitioner was an adult in his late thirties or thereabouts. He could not be heard to say he had a fundamental right to receive financial support from his parents or even to be facilitated to travel abroad as of right as he alleged. Failure to visit him in prison could have been distressing but the victims of the crime were his parents. They could have been distressed too.
- The apprehension that the adoptee could have been disinherited remained a mere apprehension. Courts did not deal with hypothetical situations. Differently put, whether or not the Petitioner’s fear of his right to inherit his parents could be canvassed in the instant Petition raised common law principles in relation to what were called abstract, academic or hypothetical questions. The principle is called ripeness; it prevents a party from approaching a court prematurely at a time when he/she has not yet been subjected to prejudice, or the real threat of prejudice, as a result of the conduct alleged to be unconstitutional.
- The essential flaw in the applicants' cases was one of timing referred to as ‘ripeness’. The doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, the criteria for hearing a constitutional case were more generous than for ordinary suits, even cases for relief on constitutional grounds were not decided in the air. The time of the instant Court was too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.
- It had always been a fundamental feature of Kenya’s judicial system that the Courts decided disputes between the parties before them; they did not pronounce on abstract questions of law when there was no dispute to be resolved. It was perfectly true that usually the court did not solve hypothetical problems and abstract questions and declaratory actions could not be brought unless the rights in question in such action had actually been infringed. The requirement of a dispute between the parties was a general limitation to the jurisdiction of the Court. The existence of a dispute was the primary condition for the Court to exercise its judicial function. Ripeness asked whether a dispute existed, that was, whether the dispute had come into being.
- In the instant case, a dispute on the alleged inheritance rights did not exist. Before the Court was a constitutional Petition seeking declarations premised on alleged violation of constitutional rights but not a succession dispute. A dispute premised on alleged inheritance right was a matter primarily to be determined in succession proceedings where beneficiaries were identified and their rights over the property, if any, determined.
- On the question of ripeness, the court was being asked to make a declaration on an issue whether the Petitioner was part of the 1st and 2nd Respondents family, despite not being their biological son and regardless of criminal proceedings against him. The Petitioner had however not demonstrated that a dispute existed. There was nothing on record to show that the parents had denied, disowned the Petitioner as their son.
- Courts decided disputes between the parties before them; they did not pronounce on abstract questions of law when there was no dispute to be resolved. The court did not solve hypothetical problems and abstract questions and declaratory actions could not be brought unless the rights in question in such action had actually been infringed. The declaration sought if granted in the instant Petition, owing to the peculiar circumstances of the case, would have been tantamount to determining succession rights or property rights or declaring the Petitioner a beneficiary which would have had far reaching consequences because it would have amounted to encroaching in to the mandate of the succession court in the event of a succession dispute.
Petition dismissed with no orders as to costs.
Case Updates Issue 017/2018
||Evidence Obtained In A Manner Inconsistent With the Bill of Rights Is To Be Excluded From Any Trial If The Admission of That Evidence Would Render The Trial Unfair Or Detrimental To the Administration Of Justice.
Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others  eKLR
Presidential Election Petition No.4 of 2017
Supreme Court of Kenya
D Maraga, CJ; P Mwilu, DCJ & VP; J B Ojwang; S C Wanjala; Njoki S. Ndung’u and Lenaola, SCJJ
December 11, 2017
Reported by Felix Okiri
Constitutional Law – fundamental rights and freedoms- enforcement of fundamental rights and freedoms- right to information – whether the right to information was absolute - what was the extent of the disclosure of the information held by a public entity - whether a person had to prove entitlement to the right of information - what was the balance between the rights to privacy and protection of property guaranteed under articles 31 and 40 of the Constitution vis a vis rights to access of information as guaranteed under article 35 of the Constitution - Constitution of Kenya, 2010 articles 24(1), 31, 35 & 40 ; Access to Information Act, sections 3 & 6; Independent Electoral and Boundaries Commission Act, section 27
Evidence Law – admissibility of evidence- admissibility of illegally obtained evidence – admissibility of illegally obtained evidence under common law vis a vis Constitutional law - whether evidence ought to be obtained in accordance with the provisions of both the Constitution and the law - whether memos obtained unlawfully could be admitted in court as evidence - whether illegally obtained evidence was admissible - what was the probative value of illegally obtained evidence
The instant application sought to expunge from the record various identified internal communications between members of the 2nd Respondent (Independent Electoral and Boundaries Commission). The 3rd Respondent’s (H. E. Uhuru Muigai Kenyatta) position was that the said memos were obtained unlawfully, contrary to section 27 of the Independent Electoral and Boundaries Commission Act, and that article 50(4) of the Constitution also required that such evidence be excluded.
The Petitioners (Njonjo Mue and Khelef Khalifa) contended that the said memos were obtained legally and that in any event, article 50(4) of the Constitution gave an exception under which any such evidence could be relied upon by the Court. Furthermore, they argued that the memos, apart from being in the public domain, formed an integral part upon which their petition was grounded and their presence on the record would assist the Court in making a fair determination
- Admissibility of the evidence under common vis a vis constitutional law.
- What was the extent of the disclosure of the information held by a public entity and under what circumstances could a person be denied right to information?
- Whether a person had to prove entitlement to the right of information and what was the threshold of proof of entitlement to that right?
- What were the procedures provided in law on how a person could access information held by the State or State organs
- Whether evidence ought to be obtained in accordance with the provisions of both the Constitution and the law.
- What was the applicable test in both civil and criminal cases in considering whether evidence was admissible
- What was the place of illegally obtained evidence in terms of admissibility and admissible and its probative value.
- What was the balance between the rights to privacy and protection of property guaranteed under articles 31 and 40 of the Constitution vis a vis rights to access of information as guaranteed under article 35 of the Constitution Read More...
Relevant provisions of the law
Independent Electoral and Boundaries Commission Act
Management of information
(1) The Commission shall publish and publicize all important information within its mandate affecting the nation.
(2) A request for information in the public interest by a citizen—
(a) shall be addressed to the secretary or such other person as the Commission may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Commission incurs an expense in providing the information; and
(b) may be subject to confidentiality requirements of the Commission.
(3) Subject to article 35 of the Constitution, the Commission may decline to give information to an applicant where—
(a) the request is unreasonable in the circumstances;
(b)the information requested is at a deliberative stage by the Commission;
(c) failure of payment of the prescribed fee; or
(d) the applicant fails to satisfy any confidentiality requirements by the Commission.
(4) The right of access to information under article 35 of the Constitution shall be limited to the nature and extent specified under this section.
(5) Every member and employee of the Commission shall sign a confidentiality agreement.”
The Constitution of Kenya, 2010
A right or fundamental freedom in the Bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the need to ensure that the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others; and
(d) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(1) Every citizen has the right of access to:
(a)Information held by the State; and
(b)Information held by another person and required for the exercise or protection of any right or fundamental freedom.
(3) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
Access to Information Act (Act No. 31 of 2016)
“(a) give effect to the right of access to information by citizens as provided
under article 35 of the Constitution;
(b) provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;
(c) provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;
(d) promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;
(e) provide for the protection of persons who disclose information of public interest in good faith; and
(d) provide a framework to facilitate public education on the right to
access information under this Act.
(1) Pursuant to article 24 of the Constitution, the right of access to information under article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to:
(a) undermine the national security of Kenya;
(b) impede the due process of law;
(c) endanger the safety, health or life of any person;
(d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;
(e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
(f) cause substantial harm to the ability of the Government to manage the economy of Kenya;
(g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
(h) damage a public entity's position in any actual or contemplated legal proceedings; or
(i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.
- In order to give effect to the rights under article 35 of the Constitution, Parliament enacted the Access to Information Act which provided for the modalities of obtaining any information held by the State or another person. Section 3 was relevant to the instant application as it stipulated the objectives of the Act. Section 6(1) on the other hand provided the extent of the disclosure of the information held by an entity.
- Article 35(1)(a) and (b) of the Constitution, read with section 3 of the Access to Information Act showed without unequivocation that all citizens had the right to access information held by the State, or public agencies including bodies such as the 2nd Respondent. A plain reading of article 35(1)(a)of the Constitution revealed that every citizen had a right of access to information held by the State which included information held by public bodies such as the 2nd Respondent. The second consideration to bear in mind was that the right to information implied the entitlement by the citizen to information, but it also imposed a duty on the State with regard to provision of information. Thus, the State had a duty not only to proactively publish information in the public interest. That was the import of article 35(3) of the Constitution of Kenya which imposed an obligation on the State to not only publish and publicise any important information affecting the nation but also to provide open access to such specific information as people might have required from the State.
- The right of access to information was however not absolute and there were circumstances in which a person was denied particular information. Specifically, procedures were provided in a law on how a person ought to access information held by another person and particularly a State organ or entity. Section 8 of the Access to Information Act in the above context thus provided that a person could apply in writing, or where one was unable to write, could apply orally to an information officer who was to put the request in written form.
- Any such request for information was to be processed within 21 days. Furthermore, section 27(2) of the Independent Electoral and Boundaries Commission Act specified the person to whom such a request was to be addressed to and further provided circumstances when the Commission could withhold any information sought. One such circumstance was where the information sought related to a matter under deliberation and therefore no conclusive findings had been made by the Commission.
- From the foregoing, the rights of access to information relevant to the matter before the Court was limited by operation of law, in the instant case, being the procedures for access of any information under section 27(2) of the Independent Electoral and Boundaries Commission Act, as read together with sections 6(1) of the Access to Information Act. The Constitution, further set limitations on rights including the right to access to information.
- In common law, the applicable test in both civil and in criminal cases in considering whether evidence was admissible was whether it was relevant to the matters in issue. If it was relevant, it was admissible and the Court was not concerned with how it was obtained. It mattered not how one obtained the evidence. Even where it was stolen, the evidence was still admissible. The common law did not reject relevant evidence on the ground that it had been obtained illegally. So far as civil cases were concerned, the Court had no discretion; the evidence was relevant and admissible. The Court could refuse it on the ground that it may have been unlawfully obtained in the beginning. The above position applied generally including to election petitions which were matters sui generis.
- The 3rd Respondent relied on article 50(4) of the Constitution and urged that evidence obtained in a manner that violated any right or fundamental freedom in the Bill of Rights was to be excluded as the admission of that evidence had the possibility of rendering the trial unfair, or detrimental to the administration of justice. Evidence ought to have been obtained in accordance with the provisions of both the Constitution and of the law. Obtaining evidence and indeed, as was in the instant case, seizing the same without first obtaining appropriate warrants violated Constitutional norms. The right to property as well as the right to privacy stood violated.
- Article 50(4) of the Constitution provided that evidence obtained in a manner that violated any right in the Bill of Rights had to be excluded if the admission of that evidence had the impact of rendering the trial unfair or otherwise detrimental to the administration of justice.
- However, not all evidence illegally obtained led to some form of prejudice and therefore occasioning automatic termination of a criminal trial. Such an approach negated and diluted, invariably, the words of the Constitution emphasized above. There had to be established that a right in the Bill of rights was unjustifiably violated whilst obtaining the evidence in question. Secondly, there had to be shown that the admission of such evidence could render the trial unfair or be detrimental to the administration of justice. That was the correct interpretation of the issue at hand generally.
- In the instant matter, the Constitution provided for the right of access to information which had been operationalized through two pieces of legislation, the Independent Electoral and Boundaries Commission Act and the Access to Information Act. The information held by the State or State organs, unless for very exceptional circumstances, had to be freely shared with the public. However, such information was to flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information.
- A duty had also been imposed upon the citizens to follow the prescribed procedure whenever they required access to any such information. That duty could not be abrogated or derogated from, as any such derogation could have led to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It was a two way channel where the right had to be balanced with the obligation to follow due process.
- The Petitioners, using the above test, did not show how they were able to obtain the internal memos showing communication between employees of the 2nd Respondent. Further, it had been alleged that those memos had only been shown in part, and taken out of context to advance the Petitioners’ case against the 1st and 2nd Respondents, and to an extent, the 3rd Respondent. No serious answer had been given to that contention. The use of such information before the Court, accessed without following the requisite procedures, not only rendered it inadmissible but also impacted on the probative value of such information.
- In the instant case, there had been a clear violation of laid out procedures of law attributable to access of information, and violation of the rights of privacy and protection of property that the 2nd Respondent was guaranteed under the Constitution and section 27 of the IEBC Act. That was because the limitation imposed by both article 50(4) and section 27 of the IEBC Act aforesaid squarely applied to the matter before Court.
- The Court had to find a balance between the Petitioners’ rights to access of information as guaranteed under article 35 of the Constitution, against those of the 1st and 2nd Respondents’ rights to privacy and protection of property also guaranteed under articles 31 and 40 of the Constitution. If access was in the instance, obtained through the laid down procedure under section 27 of the Independent Electoral and Boundaries Commission Act, and section 6(1) of the Access to Information Act, then the rights of both the Petitioners and the Respondents would have been protected, by dint of the applicable laws that set out the limitations for access of any such information.
- The Petitioners had further been unable to establish that the internal memos obtained from the 2nd Respondent were to be used in the protection of fundamental rights or freedoms, or that without such information; they would have been unjustly prejudiced. Information could only be required for the exercise or protection of a right if it would have been of assistance in the exercise or protection of the right.Therefore, in order to make out a case for access to information, an applicant had to state what the right was that he wished to exercise or protect, what the information was which was required and how that information was to assist him in exercising or protecting that right. The threshold requirement of 'assistance' had thus been established as: where the requester could not show that the information would have been of assistance for the stated purpose, access to that information was to be denied. Self-evidently, however, mere compliance with the threshold requirement of 'assistance' was not to be enough.
- From the foregoing, it had to be established that the public interest that the Petitioners sought to advance was not an infringement on the Respondents’ rights, and that the acts of the Petitioners could have been justifiably upheld in an open and democratic society. However, by violating the provisions of the same Constitution that they lauded in their objection, the Petitioners not only violated the provisions of sections 27 of the Independent Electoral and Boundaries Commission Act, but also breached the provisions of articles 24(1) and 35(1) of the Constitution and in the circumstances, their use of the internal memos did not advance the interests of justice.
- The following documents were expunged from the record:
- The Internal Memo dated 5th September, 2017 from the 1st Respondent to the Chief Executive Officer, Mr. Ezra Chiloba marked NM-3 annexed to the Affidavit of Njonjo Mue.
- The Internal memo dated 9th October, 2017 from a former Commissioner of the 2nd Respondent, Ms. Roseylne Akombe to the 1st Respondent marked NM-10 annexed to the Affidavit of Njonjo Mue sworn on 5th November, 2017.
- The Internal Memo dated 14th October, 2017 from the Chief Executive Officer of the 1st Respondent addressed to the Directors, Managers, CEMS and CECs of the 2nd Respondent marked as NM-12 annexed to the Affidavit of Njonjo Mue sworn 5th November, 2017.
- Internal Memo dated 16th October, 2017 from a former Commissioner of the 2nd Respondent, Ms Roseylne Akombe to the 1st Respondent marked as NM-13 annexed to the Affidavit of Njonjo Mue sworn on 5th November, 2017.
- The Internal Memo dated 16th October, 2017 from a former Commissioner of the 2nd Respondent, Ms. Roselyn Akombe to the 1st Respondent marked as PA-7 annexed to the Affidavit of Perpetua Adar sworn on 5th November, 2017.
- No orders as to costs.
||The Directors of a Bank under Statutory Management can institute a suit on behalf of the bank challenging the validity of the appointment of a Statutory Manager
Odera Obar & Co. Advocates V Charter House Bank Limited  eKLR
Civil Appeal No. 12 Of 2015
Court of Appeal
Githinji, Okwengu & J. Mohammed, JJ.A.
February 9, 2018.
Reported By Felix Okiri
Banking Law –statutory management – appointment of a statutory manager-effect of appointment of a statutory manager - whether the statutory manager appointed assumed the management, control and conduct of the affairs and business of a bank to the exclusion of the Board of Directors –whether a bank had a right to challenge the appointment of a statutory manager - Banking Act, section 34 (2) (b
Company law - placement of a company under statutory management vis a vis the appointment of a receiver or manager of a company - where the bank was placed under statutory management - what was the effect of placement of a company under statutory management vis a vis the appointment of a receiver or manager of a company on the corporate structure, existence and personality of a company.
Company Law - receivership - appointment of a receiver- what was the effect of receivership on the corporate structure, existence and personality of a company - whether the appointment of a receiver divested the Board of Directors of their powers to manage the affairs and business of a company
Civil Practice and Procedure – institution of suits – institutions of suits by corporations – authority to institute suits – who between the statutory manager vis a vis the Board of Directors could institute a suit on behalf of the company.
On June 23, 2006, the Central Bank of Kenya (CBK) placed Charter House, Bank Limited (CHB) under statutory management pursuant to section 34(1)(d), 34(2)(9) of the Banking Act and appointed a Statutory Manager. CBK contended that on the basis of the appointment, the statutory manager assumed the management, control and conduct of the affairs and business of CHB to the exclusion of CHB Board of Directors.
The instant appeal arose from the Ruling of the High Court which struck out the Appellant’s advocate/client bill of costs against CHB. The bill of costs was intended to recover costs incurred by the Appellant firm of advocates in Milimani High Court Civil Suit No. 329 of 2006. According to CBK, it was only CBK and the statutory manager who had power to appoint an advocate to represent CHB. CBK further contended that since it (CBK) and Statutory Manager did not appoint the Appellant advocates to act for CHB, the Appellant could only recover costs from the person or persons who instructed them.
The High Court found that the CHB had a right to challenge the appointment of the statutory manager and that the corporate entity and personality of CHB was still intact, it nevertheless held that only the statutory manager could instruct an advocate to act for CHB.
- Whether there was a difference in principle between the appointment of a receiver or manager of a company vis a vis placement of a company under statutory management.
- What was the effect of placement of a company under receivership vis a vis placement of a company under statutory management on the powers of directors and on the corporate structure, existence and personality of a company.
- Whether the appointment of a statutory manager divested the Board of Directors of their powers to manage the affairs and business of a company including instituting and defending suits on behalf of the company.
- Whether the directors had residual powers to challenge the appointment of the statutory manager
Section 34 (2) (a), now S.34 (2) (b)
In any case to which this section applies, the Central Bank may –
(a) Appoint any person (in this Act referred to as “a manager”) to assume the management, control and conduct of the affairs and business of an institution to exercise all the powers of the institution to the exclusion of its board of directors including the use of its corporate seal.
Insofar as the general powers of the directors of a company were concerned, there was no difference in principle between the appointment of a receiver or manager of a company and the placement of a company under statutory management. In receivership, the receiver or manager protected the interest of the debenture holders, while a statutory manager protected the interests of the company, its deposits and other creditors. However, in both cases, the powers of the directors of the company were paralyzed and vested in the receiver or statutory manager.
- In both receivership and statutory management, the structure of the company remained intact until the winding up or liquidation. The appointment of a receiver or a statutory manager had the effect of rendering the board of directors functus officio as the receiver manager became the sole person in charge of the company’s operations. However, that appointment did not destroy the corporate structure, existence and personality of the company. Even though that appointment made the directors unable to act in the name of the company in law, it did not make them in their capacity as members equally disabled.
- The appointment of a receiver or a statutory manager made the discharge of director’s duties extremely difficult or even impossible. However, the directors were not relieved of their normal statutory duties. They could discharge those duties without the co-operation of the receiver, which they did not require, save in relation to accounts.
- Appointment of a receiver of a company or the placement of a company under statutory management did not divest the company’s directors of their power to institute proceedings on behalf of the company, provided that the proceedings did not interfere with the receiver’s function of setting in the company’s assets or prejudicially affecting the debenture holder by impelling the assets.
- Although the powers of the board of directors ceased to exist when CHB was placed under statutory management, the directors were however entitled to use the name of the company for the purposes of litigating the validity of the security under which the appointment had taken place.
- While it remained the position that a receiver and manager supplanted the board of directors in the control, management and disposition of assets over which security rested, the receiver and statutory manager did not usurp all the functions of the company’s board of directors. The extent to which the powers of directors were supplanted would vary with the scope of the receivership and management vested in the appointee.
- The management, control and conduct of the affairs and business and exercise of all powers of the statutory manager, to the exclusion of its board of directors, included defending any court proceedings that were brought against the company. Where an advocate was appointed to defend a suit brought by a third party when statutory management was subsisting, the statutory manager who had already assumed the management, control and conduct of the affairs and business of the company to the exclusion of its board of directors was the one legally entitled to instruct advocates to defend the suit on behalf of the company. However, in a suit challenging the validity of the appointment of a statutory manager, such a suit was a suit between the company against the appointing authority.
- CHB had the right to challenge the appointment of a statutory manager. It was inconceivable that the statutory manager would have given instructions to an advocate to challenge her own appointment. In that scenario and in the circumstances of the instant case, CHB could only effectively have exercised its right through its own advocate.
- CHB had a legal right to file the suit for the revocation and appointment of a statutory manager and to instruct the Appellants to conduct the proceedings notwithstanding the appointment of a statutory manager. The High Court erred in law in striking out the bill of costs. The Appellant was justly entitled to costs of the proceedings against CHB.
Appeal allowed with costs.
- The ruling of the High Court was set aside and substituted with an order that the bill of costs dated August 11, 2010 was to proceed to taxation in the normal manner.
|WORDS AND PHRASES
||Bride price is a gift to the parents while dowry is a gift given to the woman in a marriage, which becomes her sole property in Islamic Law
F B I v B G  eKLR
Civil Appeal 6 of 2017
High Court at Garissa
George Dulu, J
January 30, 2018
Reported by Felix Okiri
Download the Decision
Words and phrases – Bride price and dowry - definition - what was the difference between bride price and dowry - meaning of dowry - a gift given to the woman in a marriage, which becomes her sole property as distinguished from bride price which is a gift to the parents
Family Law – dissolution of marriage - divorce- what amounted to divorce under Islamic law - where the parties to an Islamic Marriage had sought to divorce - where marriage was still repairable - whether the Kadhi’s Court could order a party to return to her matrimonial home - what was the standard of proof that was required before the Kadhi’s Court- what was the proof of adultery in Islamic law
Jurisdiction – jurisdiction of courts – jurisdiction of Kadhi’s Courts - whether marriage and divorce were some of the aspects of personal law that Kadhi’s Courts had jurisdiction to deal with - Constitution of Kenya, 2010, Article 170 (5)
On May 3, 2017, the Kadhi’s Court determined that the marriage of the Appellant and Respondent (herein) was still repairable. The Kadhi’s Court ordered the Appellant to return to her matrimonial home and advised the Respondent to be a good husband to the Appellant. The Respondent was also ordered to pay the Appellant Kshs.5000/= as fine for alleging that the Appellant had an affair outside her marriage, an allegation which he (Respondent) failed to prove in Court.
Aggrieved by the decision of the Kadhi’s Court, the Appellant preferred the instant appeal on grounds that the Kadhi’s Court erred by finding that the marriage between her and the Respondent was still repairable and that the parties were still husband and wife and that they just parted ways and had not divorced thus ordering the Appellant to return to her matrimonial home. The Appellant also prayed for an order of maintenance of the children and payment of dowry of two cows.
The Appellant submitted that the Respondent returned her to her parent’s home and witnesses had testified in the trial court to that effect. She stated further that though she had the two children of marriage with her, the Respondent never visited her again, and had not assisted her in any way for 3 years.
- What was the difference between bride price and dowry?
- What amounted to divorce under Islamic law?
- Whether the act of sending a spouse back to his parents or deserting a spouse amounted to divorce.
- What was the standard of proof that was required before the Kadhi’s court?
- What was the proof of adultery in Islamic law?
- Whether a Court had jurisdiction to order a person to go back to her matrimonial home.
- Whether promise of dowry is an enforceable contract.Read More...
Relevant provisions of law
Constitution of Kenya 2010
Article 170 (5) The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s Courts.
- Under Article 170 (5) of the Constitution of Kenya 2010, the jurisdiction of the Kadhi’s Court was limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties professed the Muslim religion and submitted to the jurisdiction of the Kadhi’s Courts. Marriage and divorce were some of the aspects of personal law that Kadhi’s Courts had jurisdiction to deal with.
- The standard of proof that was required before the Kadhi was on the balance of probabilities as the instant case was a principally civil case, and as such the Respondent who brought proceedings in the Kadhi’s Court was required to prove his case on the balance of probabilities.
- The case was a matrimonial matter. There was no dispute that the Respondent handed over the Appellant to elders to take her to her parent’s home. There was no dispute that the two had been married since 2004 and had two boys. There was also no dispute that the children had been living and were still living with the mother who was the Appellant. The action of the Respondent handing over the Appellant to elders to take her to her parent’s home did not amount to divorce under Islamic law, or any other law or custom applicable in Kenya.
- The allegation of adultery of the Appellant made by the Respondent was not proved by the Respondent, as he had not provided the evidence under required Islamic law to satisfy the legal requirements including- calling eye witnesses or taking special oath and stating the allegation in court. Though there might have been suspicion by the Respondent of adultery committed by the Appellant, the same was not proved by the Respondent.
- A marriage was a voluntary union between two consenting adults. Its workability was determined by both partners to the marriage. From the evidence on record before the Kadhi’s Court, the Respondent created a situation in which he sent the Appellant back to her parent’s home back in 2014. He did not go back to try to reconcile with the Appellant, nor did he call elders to go and reconcile with the Appellant through her parents. He did not care for the Appellant or the children of the marriage. Instead he went to the Kadhi’s Court in 2016 after two years asking that the Appellant be ordered by the Court to go back to him as a wife. However, the Appellant did not wish to go back to the Respondent for reasons of neglect of her and her children as well as threats of assault by the Respondent to her.
- The Respondent was misadvised in going to the Kadhi or to any court of law for it to order the Appellant to go back to his home as a wife. The Kadhi’s Court had no power to make such order. The Kadhi’s Court could only make a decision on whether the marriage was to continue or be dissolved. The Kadhi’s Court erred in ordering the Appellant to go back to her husband. That amounted to forcing somebody on another which was a violation of the right of freedom of association provided under article 36 of the Constitution of Kenya 2010, as neither the Constitution nor the written law allowed a court to force somebody to live with another when that person felt like not doing so.
- As at then, there existed a marriage between the parties. However, from the evidence on record, the marriage had irretrievably broken down. The Kadhi’s Court should have ordered dissolution of the marriage.
- Though the two terms have often been confused to mean the same thing, “bride price” and “dowry” were two different things. Bride price was a gift or payment made to the parents of the bride at marriage, while dowry was a gift given to the woman in a marriage, which became her sole property. The promise of dowry in the marriage was a contract and was enforceable. The two goats were paid by the Respondent as bride price and were not given to the Appellant but to the Appellant’s parents.
- While the marriage was bound to be dissolved, the two cows promised to the Appellant had not yet been paid by the Respondent to the Appellant. The Respondent was obliged to give to the Appellant the two cows or the money equivalent of Kshs.16, 500/= per cow which translated to Kshs.33, 000/= as dowry within 60 days from the date of judgment. The fine of Kshs.5, 000/= in the place of 80 lashes of the cane imposed by the Kadhi’s Court on the Respondent for the false accusation by the Respondent of adultery of the Appellant was not justified. The punishment was handed down by the Kadhi without availing the Respondent an opportunity to swear to prove his allegations on adultery of the Appellant in the place of providing physical witnesses as required in Islamic law.
- The Appellant had asked on appeal for maintenance and custody of the children of the marriage. However, the children were already with the Appellant. The Appellant could approach the Children’s Court for appropriate orders on custody and maintenance of the children.
- Kadhi’s Court decision ordering the Appellant to go and live at the home of the Respondent was set aside.
- The marriage between the Appellant and the Respondent was dissolved.
- A decree nisi for divorce was granted which was to become absolute on the lapse of 6 months from date of judgment.
- Respondent ordered to give dowry of 2 female cows to the Appellant or pay the Appellant the money equivalent Kshs. 33,000/= being the total for two cows each at Kshs.16, 500/= within 60 days from date of judgment.
- Each party to bear their own costs
||Arrest, Strip Search and Detention of a Minor without Considering the Best Interests of the Minor Violates Article 53 of the Constitution of Kenya, 2010
M W and another vs The Attorney General and & 7 others
Constitutional Petition No. 347 of 2015
High Court at Nairobi
December 17, 2017
M J Mativo, J
Reported by Ian Kiptoo
Download the Decision
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-children rights-where a Childs’ best interest was not taken into consideration-where a minor was arrested, detained and subjected to a strip search-whether the Petitioners’ rights to dignity, privacy and the right not to be subjected to inhuman or degrading treatment was violated–Constitution of Kenya, 2010, articles 25, 28, 31 and 53(d), (f) and (2), Universal Declaration of Human Rights, 1948 articles 1, 5 and12.
Criminal Law-conviction-quashing of a conviction-where a petitioners’ rights were declared to be violated after conviction-whether a conviction rendered by a competent Court on a plea of guilty could be quashed by a declaration as opposed to a review or appeal
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-children rights-award of damages-factors the Court considered in awarding damages for violation of rights-whether the Petitioner was entitled to damage
On August 5, 2015 the media was awash with news of a Matatu that was intercepted by traffic Police officers along Karartina/Nairobi Road carrying students. It was playing loud music; the students were allegedly intoxicated and it was alleged some were engaging in sex in the vehicle. The Police commandeered the vehicle to the Police Post where they searched the students. They recovered Cannabis sativa hidden in the under garments of the first Petitioner. She was detained at the Police Station overnight and charged in court the following day with the offence of being in possession of cannabis sativa.
The 1st Petitioner was then 18 years old and a form 4 student. She brought the Petition seeking to vindicate her constitutional rights not to be subjected to degrading and inhuman treatment, to safe guard her right to privacy, rights of an arrested person and fair process and compensation for the violations.
- Whether the Petitioners’ Rights to dignity, privacy and the right not to be subjected to inhuman or degrading treatment were violated by;
- The 4th and 5th Respondents action of arresting and detaining the Petitioner without according her the best interest paramount under article 53 of the Constitution of Kenya, 2010;
- The 4th and 5th Respondent subjecting the Petitioner to a strip search without adhering to the statutory provision governing the search of women and children;
- By taking naked photographs of the Petitioner and publishing them.
- Whether a conviction rendered by a competent Court on a plea of guilty could be quashed by a declaration as opposed to a review or appeal.
- Whether the Petitioner was entitled to damages , and if so;
- What was the quantum of damages?
- What were the factors the Court had to consider in awarding damages?
Relevant Provisions of the Law
The Constitution of Kenya, 2010 Article 53 (d), (f) and (2);
Every Child has the right-
to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
(f) not to be detained, except as a measure of last resort, and when detained, to be held-
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child's sex and age.
(2) A child's best interests are of paramount importance in every matter concerning the child.
The Universal Declaration of Human Rights, 1948
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
- Article 28 of the Constitution of Kenya, 2010 (Constitution) provided no definition of dignity. However, its role and importance as a foundational constitutional value had been emphasized. So important was the right not to be subjected to cruel, inhuman or degrading treatment or punishment that under article 25 of the Constitution, it was one of the rights that would not be limited.
- Article 31 of the Constitution provided the right to privacy of the person, home or property searched. It had become established law, insofar as privacy was concerned, that the right became more powerful and deserving of greater protection the more intimate the personal sphere of the life of a human being which came into legal play.
- There was a connection between an individual’s right to privacy and the right to dignity. Privacy fostered human dignity insofar as it was premised on and protected an individual’s entitlement to a sphere of private intimacy and autonomy. The rights of equality and dignity were closely related, as were the rights of dignity and privacy.
- The Constitution placed human dignity and equality as the central theme to Kenya’s constitutional order. The determination of whether an invasion of the common law right to privacy had taken place was a single enquiry. It essentially involved an assessment as to whether the invasion was unlawful. The assertion had also been made that in the case of female prisoners' expectation of privacy, the Courts had held that gender and gender differences had to matter because the Courts imbued women with a sense of modesty and a greater need for privacy than men.
- When a constitutional right was infringed, it was important to determine whether such infringement was justified in terms of article 24 of the Constitution which provided that the rights in the Bill of Rights would be limited only in terms of law and only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including —The nature of the right; The importance of the purpose of the limitation; The nature and extent of the limitation; The relation between the limitation and its purpose; and Less restrictive means to achieve the purpose.
- The Court was constitutionally obliged to consider the facts complained of through the lens of article 53(d),(f) and (2) of the Constitution to determine if the police officers considered the 1st Petitioners' best interests, and if they did, whether they accorded the best interests paramount importance. Courts were enjoined when interpreting any legislation to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. That required courts to play a crucial role in giving content and meaning to the fundamental rights enshrined in the Bill of Rights. The Courts were the guardians of the Constitution and the values it espoused.
- In interpreting the law, courts had to infuse it with values of the Kenyan Constitution. Courts ought to have never shirked that constitutional responsibility. All courts, including the High Court, were enjoined by the Constitution to uphold the rights of all, to ensure compliance with constitutional values, and to do so by granting appropriate relief, just and equitable orders, and by developing the common law taking into account the interests of justice. In a constitutional democracy such as Kenya’s, courts had to devise means of protecting and enforcing fundamental rights.
- Article 2 of the Constitution proclaimed the Constitution to be the supreme law of the country. Importantly, it declared that law or conduct inconsistent with it was invalid, and further that the obligations it imposed had to be fulfilled. The Constitution was underpinned by a bill of rights that, according to article 19, was declared a cornerstone of Kenya’s’ democracy.
- The Bill of Rights was an integral part of Kenya's democratic state and was the framework for social, economic and cultural policies. The rights and fundamental freedoms in the Bill of Rights belonged to each individual and were not granted by the State. Article 21 of the Constitution commanded the State, and every state organ including the Police to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights subject to the limitations in article 24 or elsewhere in the Bill of Rights.
- Therefore, the Police were also required to honour the obligation to respect, protect, promote and fulfil the rights in the Bill of Rights. That was crucial as the police were, in the daily execution of their duties, involved in instances that had the potential to affect people’s rights to dignity, equality and freedom–which were foundational to Kenya’s democracy. Kenya’s people deserved a police service which was steeped in a culture of respect for human rights. That required them in all their dealings with society whilst executing their constitutional duties to be guided by respect for human rights and strict observance of the rights to human dignity, equality and freedom.
- It was trite that an arrest was an invasive curtailment of a person’s freedom. Under any circumstance an arrest was a traumatising event. Its impact and consequences on children might have been long-lasting if not permanent. The need for the Kenyan society to be sensitive to a child’s inherent vulnerability was behind the provisions of article 53 of the Constitution which was broadly worded. The interests of children were multifarious. However, in the context of arrests of children, article 53 of the Constitution sought to insulate them from the trauma of an arrest by demanding in peremptory terms that, even when a child had to be arrested, his or her best interests had to be accorded paramount importance.
- Given the importance which Kenya’s Constitution placed on the rights of children, meant that an arrest of a child would be resorted to when the facts were such that there was no other less invasive way of securing the attendance of such a child before a court. That required police officers to consider and weigh all the facts carefully and exercise a value-judgment whether an arrest could be justified. Invariably that positioned the Police in an invidious position. A question might have been asked: how did the Police execute their constitutional mandate to prevent and combat crime without falling foul of article 53 of the Constitution? It did not mean that children would not, under no circumstances, be arrested or detained for it was a fact that children did commit crimes. Even heinous crimes for that matter. Statistics could attest to that. Sad as it might have been, it was a reality of our times.
- The fact that article 53(2) of the Constitution demanded that the best interests of children be accorded paramount importance did not mean that children’s rights trumped all other rights. All that the Constitution required was that, unlike pre-2010, and in line with Kenya’s solemn undertaking as a nation to create a new and caring society, children ought to have been treated as children– with care, compassion, empathy and understanding of their vulnerability and inherent frailties. Even when they were in conflict with the law, The Court would not permit the hand of the law to fall hard on them like a sledgehammer lest they were destroyed. The Constitution demanded that Kenya’s criminal justice system ought to have been child-sensitive.
- Contrary to the position before the Constitution of Kenya, 2010, Kenya’s constitutional dispensation had ushered in a new era – an era where the best interests of a child had to be accorded paramount importance in all matters affecting the child–an era where Kenya, as a society, was committed to raising, developing and nurturing Kenyas’ children in an environment that conduced to their well-being.
- In line with its constitutional obligation, the High Court was obliged to interpret police actions premised on provisions relating to arrest, detention and searching of children through the prism of article 53 of the Constitution to determine if the Police Officers had accorded the Applicant’s best interests paramount importance. That was a constitutional obligation imposed on them by article 53 of the Constitution. Therefore, when the constitutionality of the manner in which the Police conducted the search was challenged, the Court ought first to have determined whether, through the application of all legitimate interpretive aids, the impugned action was capable of being read in a manner that was constitutionally compliant.
- The Court, in line with its constitutional mandate to promote and protect the values and ethos that underpinned Kenya’s Constitution, would undoubtedly find and hold that an arrest, search and detention of a child that violated privacy and dignity of the child was unconstitutional. The thrust of that conclusion was that, because an arrest, search and detention constituted an infringement of a person’s rights to his or her liberty, dignity and privacy, all of which were enshrined in the Bill of Rights, the actions had to be justifiable according to the dictates of the Bill of Rights. Consequently, in line with Kenya’s nascent human rights culture, before every arrest, search and a detention of a child was executed, police officers had to consider whether there were no less invasive methods which might have been used to bring the suspect before court and to secure the evidence.
- Article 259 of the Constitution enjoined the Courts, in interpreting the Constitution, to promote the purposes, values and principles of the Constitution, advance the Rule of Law, and Human Rights and Fundamental freedoms in the Bill of Rights, permit development of the law and contribute to good governance. That required courts to interpret the 4th Respondents’ actions in line with those constitutional values. Article 259 of the Constitution introduced a new approach to the interpretation of the Constitution. That approach had been described as a mandatory constitutional canon of statutory and constitutional interpretation. The duty to adopt an interpretation that conformed to article 259 of the Constitution was mandatory.
- It was sufficient that in arresting a child, police officers had to do it through the lens of the Bill of Rights and pay special attention to the paramount importance of the best interests of such a child. The Constitution demanded that of the Police as a constitutive part of the State. A failure to do that would render such an arrest, search and detention inconsistent with the Constitution and consequently unlawful.
- The 1st Petitioner was detained and arraigned before the court the next day. Article 53(2) of the Constitution demanded that a child ought only to have been detained as a measure of last resort. In its ordinary and grammatical meaning, the expression a measure of last resort meant that the detention of a child ought to have happened when all else had failed. That required police officers to investigate other less invasive methods which can satisfy their legitimate purpose without having to detain a child. That was because, first, a detention constituted a drastic curtailment of a person’s freedom which Kenya’s Constitution guarded jealously, and would only be interfered with where there was a justifiable cause. Second, detention had traumatic, brutalising, dehumanising and degrading effects on people and of course, worse on children.
- It was a known fact that Kenya’s detention centres, be it police holding cells or correctional centres, were not ideal places. They were not homes; they were bereft of most facilities which one required for raising children. It was worse for children. The atmosphere was not conducive to their normal growth, healthy psycho-emotional development and nurturing as children. Evidence by the 1st Petitioner, the mother and the Doctor was that the 1st Petitioner was psychologically affected. She was seriously traumatised by the experience. Her detention had left her with serious psycho-emotional problems. Wounds that were still festering. Those were the deleterious effects of incarceration against which the Constitution sought to protect children. That was the reason why, even when a child had to be detained, article 53(2) of the Constitution stipulated that it ought to have been as a last resort and for the shortest appropriate time. There was no evidence the Police considered other options such as bail which the parents said they were ready to provide or why the Police failed to admit her into bail pending charge which was a Constitutional Right.
- The detention of the Petitioner in the circumstances of the case was not justifiable as a measure of last resort because both her parents reported to the police station, were ready to provide bail, and, importantly, it was not shown that she was a flight risk; nothing prevented the Police Officers from leaving the 1st Petitioner in the custody of her parents with appropriate instructions to ensure her appearance in court. There being no evidence that the Police considered her circumstances to determine if her detention was a measure of last resort, hence, it followed that her detention was in flagrant violation of article 53(2) of the Constitution and therefore unlawful.
- A strip search was generally humiliating, uncomfortable, and of an invasive nature, and in the instant case affected the dignity of the girls and in particular the 1st Petitioner. The photographs annexed to the Petition attested to that. The right to dignity was at the heart of the Constitution. It was the basis of many other rights. The basis was that of recognizing that every person had worth and value and had to be treated with dignity. That was also highlighted in the international treaties Kenya had assented to.
- The right to dignity was further relevant to the specific social context in Kenya. In many instances, past and present, Children and women's basic rights had been violated within society. Women and children were vulnerable to violence and unjust treatment due to economic inequalities and gross abuse of power as was evident in the instant case.
- A strip search constituted an interference with the privacy of the individual concerned. It was recognized that common law recognized the right to privacy as an independent personality right. Privacy was therefore, a valuable aspect of one's personality. The right to privacy was protected in terms of both common law and the Constitution of Kenya. The right was however not absolute as there were competing factors such as maintaining law and order that could bear a significant limitation on the right. A careful weighing up of the right to privacy and other factors was necessary.
- In the case of a constitutional invasion of privacy the following questions needed to be answered:
(a) Had the invasive law or conduct infringed the right to privacy in the Constitution? ;
(b) If so, was such an infringement justifiable in terms of the requirements laid down in the limitation clause of the Constitution?
The act of causing the 1st Petitioner and her colleagues to strip naked in the presence of the 4th and 5th Respondents and of one another and other persons was undeniably an invasion of their privacy. The search was unlawful in that it violated her constitutional right to privacy and dignity. Even if the Court assumed that the 1st Petitioner and her colleagues stripped naked without a request to do so, the presence of other persons while they did so, would also amount to wrongful conduct.
- On Freedom and Security of the Person. Searching of any person that involved the exposure of that person's naked body, and in particular the most private parts thereof, to the gaze of another person, was degrading to the person being so exposed. The conduct of the 4th and 5th Respondents with regard to the 1st Petitioner and her colleagues was inherently inhumane, and amounted to a degrading assault upon their physical, emotional and psychological integrity.
- Children needed special protection because they were among the most vulnerable members of society. They were dependent on others - their parents and families, or the State when those failed - for care and protection. As a result, the drafters of Kenya’s Constitution made children's rights a priority - and stated that the best interests of a child were the overriding concern when it came to any matter affecting a child. Thus, the inclusion in the Bill of Rights of a provision on the rights of the child was an important development for Kenyan children, many of whom had suffered and continued to suffer long imprisonments and detention in harsh conditions.
- The objective of the special protection was to ensure that the justice system treated every child in conflict with the law in a manner that recognized and upheld human dignity and worth, and instilled in the child respect for the fundamental rights and freedom of others. The Rule considered the developmental age of the child and the desirability of the child's reintegration in and assumption of a constructive role in society in accordance with the principles of balanced and restorative justice.
- The Police were specifically required to search women within the limits provided under the law and had to uphold the values enshrined in the Constitution. In the Constitution of Kenya, 2010 constitutional dispensation, an unlawful interference with a person's right was a constitutional infringement. The Police failed to exercise their duties in line with the law, the Constitution and uphold the Bill of Rights. In terms of article 53 of the Constitution, in all matters concerning children, including litigation or Police investigations, their best interests were of paramount importance. Article 53 of the Constitution had to be interpreted so as to promote the foundational values of human dignity, equality and freedom. The reach of article 53 of the Constitution extended beyond those rights enumerated in the Bill of Rights, it created a right that was independent of the other rights specified in the Bill of Rights. It established a set of rights that courts were obliged to enforce.
- The ambit of the provisions was undoubtedly wide. The comprehensive and emphatic language of article 53(d), (f) and (2) of the Constitution indicated that just as law enforcement had to always be gender-sensitive, it had to always be child-sensitive; those statutes had to be interpreted and the common law developed in a manner which favoured protecting and advancing the interests of children; and that courts had to function in a manner which at all times showed due respect for children's rights.
- The inclusion of a general standard, the best interest of a child, for the protection of children’s rights in the Constitution would have become a benchmark for review of all proceedings in which decisions were taken regarding children. Courts and administrative authorities would be constitutionally bound to give consideration to the effect their decisions would have on children’s lives.
- There existed in the case the reasonable privacy interest of the 1st Petitioner who was depicted in the images. There was also a significant public interest in ensuring that no duplication or distribution occurred in the disclosure process. Those interests ought not to have been further compromised by the copying, viewing, circulation or distribution of the images beyond what was reasonably necessary to give effect to her constitutional rights.
- It was evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor was compelling and that a democratic society rested, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. The prevention of exploitation and abuse of children constituted a government objective of surpassing importance.
- The harm of child abuse was real and ongoing and the State was under a constitutional obligation to combat it. To hold otherwise would place the State in jeopardy of having to close the gate, as it were, after the horse had bolted and might have signaled a breach by the State of its obligation towards children. Children’s dignity rights were of special importance. The degradation of children through publishing their nude images was a serious harm which impaired their dignity and contributed to a culture which devalued their worth.
- Society had recognised that childhood was a special stage in life which was to be both treasured and guarded. The State had to ensure that the lives of children were not disrupted by overzealous police officers who in total disregard of the law, the Constitution and childrens' rights engaged in acts as was witnessed. There was obvious mental and physical harm suffered by the victims of child abuse. The 1st Petitioner and her colleagues were forced naked to pose for photographs to be taken. Even if the Police desired to gather evidence, they ought to have done it within the confines of the law. The chief purpose of the statutory provisions prescribing the manner in which women were to be searched was to protect their dignity, humanity and integrity.
- A child whose nude images were circulated in the media had to go through life knowing that the image was probably circulating within the mass distribution network for the Public to see. That experience might have haunted him or her for long because it created a permanent record of the child’s image. The psychological harm to the child was exacerbated if he or she knew that the photograph continued to circulate among viewers who might have used it to derive sexual satisfaction or other purposes. Maintaining the integrity of the administration of justice was also an important principle of fundamental justice. The principles of fundamental justice operated to protect the integrity of the system itself. The Constitution guaranteed individuals a fundamentally fair trial and not the fairest of all possible trials. A fair trial included a fair investigation and arrest process.
- The photographing and publication of the child's images struck at the dignity of the child, it was harmful to the child, and it was potentially harmful because it invaded on her privacy and dignity. Dignity was a founding value of Kenya’s Constitution. It informed most if not all of the rights in the Bill of Rights and for that reason was of central significance in the limitations analysis. The value of dignity in Kenya’s constitutional framework could not therefore be doubted. The Constitution asserted dignity to contradict Kenya’s past in which human dignity was routinely and cruelly denied. It asserted it to inform the future, to invest in Kenya’s democracy respect for the intrinsic worth of all human beings.
- Human dignity therefore informed constitutional adjudication and interpretation at a range of levels. It was a value that informed the interpretation of many, possibly all, other rights. The Court acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity was also a constitutional value that was of central significance in the limitations analysis. Dignity was not only a value fundamental to Kenyas’ Constitution; it was a justiciable and enforceable right that had to be respected and protected.
- Similarly, article 1 of the Universal Declaration of Human Rights stressed the importance of human dignity. It stated that all human beings were born free and equal in dignity and rights. Children merited special protection by the State and had to be protected by legislation which guarded and enforced their rights and liberties. That was recognised in article 53 of the Kenyan Constitution. Children’s dignity rights were of special importance. The degradation of children through illegal body search as had happened and taking nude photos was a serious harm which impaired the Petitioners' dignity and devalued her worth.
- The 1st Petitioner was charged in a criminal court. She was convicted on her own plea of guilty by a court of competent jurisdiction. The Petitioner ought to have challenged the said conviction either by way of an appeal or by way of a revision as provided under the provisions of the Criminal Procedure Code. There was a well laid down statutory mechanism of challenging the said conviction. Therefore, it would have been inappropriate for the Court to exercise its jurisdiction and quash the said decision.
- The Constitution recognized the hierarchy of Kenyan courts and the appellate mechanism through which decisions of inferior courts were subjected to appeals to the higher courts. A holistic and purposive reading of the Constitution would have therefore entailed construing the unlimited original jurisdiction conferred on the High Court by article 165(3)(a) and article 23(3) of the Constitution in a way that would have recognized and upheld its appellate jurisdiction to hear and determine appeals from the Lower Court.
- A party could not be heard to move a court in glaring contradiction of the judicial hierarchal system of the land on the pretext that an injustice would be perpetrated by the lower court. Courts of justice had the jurisdiction to do justice and not injustice. However, the law acknowledged that judges were human and were fallible hence the judicial remedies of appeal and review. A party could not in total disregard of those fundamental legal redress frameworks move the apex Court.
- A person’s image constituted one of the chief attributes of his or her personality, as it revealed the person’s unique characteristics and distinguished the person from his or her peers. The right to the protection of one’s image was thus one of the essential components of personal development. It mainly presupposed the individual’s right to control the use of that image, including the right to refuse publication thereof. Personality rights, generally speaking, consisted of two types of rights, the right to privacy and the right of publicity. The right of privacy was the right to keep one’s image and likeness from exploitation without permission or compensation and generally applied to members of the general public. The right of publicity was the exclusive right of an individual to market his or her image, likeness or persona for financial gain.
- Aggravated damages were the special and highly exceptional damages awarded against a defendant by a court, when his or her conduct amounted to tortious conduct subjecting the Plaintiff to humiliating and malicious circumstances. Additional damages were also awarded in situations where a plaintiff was subjected to distress, embarrassment, or humiliation.
- Aggravated damages were basically compensatory in nature and they were awarded for the aggravated damage that was caused to a plaintiff. Aggravated damages were determined on the basis of the intangible injury inflicted on a plaintiff. Intangible injury included the pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that were caused by the conduct of a defendant. When compared to punitive damages, aggravated damages required proof of injury. Aggravated damages could be attained as additional compensation if the injured established that a breach caused mental distress.
- It was well settled that an award of compensation was an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. The quantum of compensation would, however, depend upon the facts and circumstances of each case. An award of damages entailed an exercise of judicial discretion which would have been exercised judicially and that meant that it had to be exercised upon reason and principle and not upon caprice or personal opinion.
- Arriving at the award of damages was not an exact science. No monetary sum could really erase the scarring of the soul and the deprivation of dignity that some of those violations of rights entailed. When exercising that constitutional jurisdiction, the Court was concerned to uphold, or vindicate, the constitutional right which had been contravened. A declaration by the Court would have articulated the fact of the violation, but in most cases more would be required than words. If the person wronged had suffered damage, the Court might have awarded compensation.
- An award of compensation would go some distance towards vindicating the infringed constitutional right. How far it went would depend on the circumstances, but in principle it might have not sufficed. The fact that the right violated was a constitutional right added an extra dimension to the wrong. An additional award, not necessarily of substantial size, would have been needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All those elements had a place in helping the Court arrive at a reasonable award. The court had to consider and have regard to all the circumstances of the case.
- It was self-evident that the assessment of compensation for an injury or loss, which was neither physical nor financial, presented special problems for the judicial process, which aimed to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity were incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency was bound to be an artificial exercise.
- There was no medium of exchange or market for non-pecuniary losses and their monetary evaluation, it was a philosophical and policy exercise more than a legal or logical one. The award ought to have been fair and reasonable, fairness being gauged by earlier decisions; but the award ought to also of necessity have been arbitrary or conventional. No money could provide true restitution.
- Although they were incapable of objective proof or measurement in monetary terms, hurt feelings were none the less real in human terms. The Courts and Tribunals had to do the best they could on the available material to make a sensible assessment, accepting that it was impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury.
Petition partly allowed
- A declaration issued that the 4th Respondents conduct of searching the 1st Petitioner in the presence of male police officers and/or other students and members of the public and photographing her or allowing or permitting third parties to take her nude photographs was a gross violation of the law and an infringement of her constitutional rights to dignity, privacy and her right not to be subjected to degrading treatment.
- A declaration issued that the manner in which the Police strip searched the 1st Petitioner and the other students was a gross violation of the statutory provisions governing conduct of Police while searching women, a violation of article 53(d), (f) and (2) of the Constitution and the Children's Act.
- The Order of judicial review seeking to quash the conviction and sentence of the 1st Petitioner in Baricho Criminal Case No. 1262 of 2015 refused on grounds that the law provided for right of appeal or revision against the said decision.
- A Declaration issued that the 1st Petitioner was entitled to damages for violation of her constitutional rights to dignity, degrading treatment and privacy.
- That judgement entered in favour of the 1st Petitioner against the Respondents jointly and severally for a global sum of Ksh. 4,000,000/= by way of general damages.
- That the above sums would attract interests at court rates from date of filing suit until payment in full.
- No orders as to costs
||Court Declares Unconstitutional the Amendment of Sections 35A (5) and 35I (b) of the Pharmacy and Poisons Act
Republic vs The National Assembly and 7 others ex-parte Dr. George Wang’anga’a
Miscellaneous Civil Application 391 OF 2017
High Court at Nairobi
G V Odunga, J
January 17, 2018
Reported by Ian Kiptoo
Constitutional Law-separation of powers-function and role of the legislature and judiciary-independence of the legislature and judiciary in performing their functions-parliamentary proceedings-what was the extent and role of the judiciary in reviewing parliamentary proceedings-Constitution of Kenya, 2010, article 165(3)
Constitutional Law-public participation-degree of participation in the law making process-whether the public was accorded reasonable participation- whether the process of enactment of the Clinical Officers (Training, Registration and licensing) Bill 2016 was unconstitutional for lack of public participation- Constitution of Kenya, 2010, articles 10 and 118
Constitutional Law-law making process-bills concerning county governments-whether the process of enactment of the Clinical Officers (Training, Registration and licensing) Bill 2016 was unconstitutional for failure to involve the Senate in legislation that involved Counties
Constitutional Law-law making process-presidential assent-where a flawed bill was assented by the president-whether the presidential assent to the Bill was unconstitutional despite the Attorney General giving the Bill a clean bill of health.
Statutes-Interpretation of statutes-interpretation of section 11 of the Parliamentary and Privileges Act No. 29 of 2017-whether the Parliamentary Powers and Privileges Act No. 29 of 2017 was meant to act retrospectively and therefore limit the Applicants’ right to challenge the amendments to the Pharmacy and Poisons Act.
The Application before the Court challenged the Constitutionality of the Clinical Officers (Training, Registration and Licensing) Bill, 2016 in which section 34 of the said subject Bill amended sections 35A (5) and 35I (b) of the Pharmacy and Poisons Act. The said amendments were inserted by the National Assembly in the Bill during the Committee Stage through a notice of motion. It was averred that the substantive amendment to the Act in the said Bill was a different subject matter and unreasonably or unduly expanded the subject of the Bill and was not in logical sequence to the subject matter of the Bill.
It was further stated that the Respondents’ failure to refer the impugned amendments of the Bill to the Senate violated articles 109, 110, 112,113, 122 and 123 of the Constitution of Kenya, 2010 (Constitution) and National Assembly standing orders No. 121 to 123
What was the extent and role of the judiciary in reviewing parliamentary proceedings?
- Whether the process of enactment of the Clinical Officers (Training, Registration and licensing) Bill 2016 under which section 34 intended to amend sections 35A (5) and 35I (b) of the Pharmacy and Poisons Act was unconstitutional for:
- Lack of public participation as provided for in article 10 and 118 of the Constitution of Kenya, 2010;
- For being unrelated to the substance of the Clinical Officers (Training, Registration and licensing) Bill 2016.
- Failure to involve the Senate in legislation that involved Counties.
- In regards to the shortcomings above, whether the presidential assent to the Bill was unconstitutional despite the Attorney General giving the Bill a clean bill of health.
- Whether the Parliamentary Powers and Privileges Act No. 29 of 2017 was meant to act retrospectively and therefore limit the Applicants’ right to challenge amendments to the Pharmacy and Poisons Act.
Relevant Provisions of the Law
Constitution of Kenya, 2010 Article 109 provided that:
(1) Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President;
(2) Any Bill may originate in the National Assembly.
(3) A Bill not concerning county government is considered only in the National Assembly, and passed in accordance with Article 122 and the Standing Orders of the Assembly.
(4) A Bill concerning county government may originate in the National Assembly or the Senate, and is passed in accordance with Articles 110 to 113, Articles 122 and 123 and the Standing Orders of the Houses
Constitution of Kenya, 2010 Article 118(1) and (2) provided:
(1) (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and;
(b) Facilitate public participation and involvement in the legislative and other business of Parliament and its committees;
(2) Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.
Health Act, 2017 Sections 62 and 63:
62. There shall be established by an Act of Parliament a single regulatory body for regulation of health products and health technologies;
63(1)(c) The regulatory body shall- Conduct laboratory testing and inspection of manufacturing, storage and distribution facilities of health products and technologies;
Standing Orders of the National Assembly Section 133(2),(4),(5) & (6) provided:
(2) No amendment shall be moved to any part of a Bill by any Member, other than the Member in charge of the Bill, unless written notification of the amendment shall have been given to the Clerk twenty-four hours before the commencement of the sitting at which that part of the Bill is to be considered in Committee.
(4) A Member moving an amendment or a further amendment to any part of the Bill under paragraphs (2) and (3) shall explain the meaning, purpose and effect of the proposed amendment or further amendment.
(5) No amendment shall be permitted to be moved if the amendment deals with a different subject or proposes to unreasonably or unduly expand the subject of the Bill, or is not appropriate or is not in logical sequence to the subject matter of the Bill;
(6) No amendment shall be moved which is inconsistent with any part of the Bill already agreed to or any decision already made by the Committee, and the Chairperson may at any time during the debate of a proposed amendment, withdraw it from the consideration of the Committee if in the opinion of the Chairperson, the debate has shown that the amendment contravenes this paragraph.
Interpretation and General Provisions Act Cap 2 Laws of Kenya Section 23(3) (e) of the provided:
Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears the repeal shall not—
(e) affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing written law had not been made.
- The Constitution of Kenya, 2010 had been hailed as being a transformative Constitution as opposed to a structural Constitution; it was a value-oriented one. Its interpretation and application had to therefore not be a mechanical one but had to be guided by the spirit and the soul of the Constitution itself as ingrained in the national values and principles of governance espoused in the preamble and inter alia article 10 of the Constitution.
- Kenya’s Constitution embodied the values of the Kenyan Society, as well as the aspirations, dreams and fears of the nation as espoused in article 10 of the Constitution. It was not focused on presenting an organisation of Government, but rather was a value system itself hence not concerned only with defining human rights and duties of individuals and state organs, but went further to find values and goals in the Constitution and to transform them into reality. Therefore, the Court was required in the performance of its judicial function to espouse the value system in the Constitution and to avoid the structural minimalistic approach.
- The general rule or principle applying to legislation is that there is a presumption of constitutionality of statutes. Under article 1 of the Constitution, sovereign power belonged to the people and it was to be exercised in accordance with the Constitution. That sovereign power was delegated to Parliament and the Legislative Assemblies in the County Governments; the National Executive and the Executive structures in the County Governments; the Judiciary and independent tribunals.
- There was however a rider that the said organs had to perform their functions in accordance with the Constitution. The Constitution of Kenya, 2010 having been enacted by way of a referendum, was the direct expression of the people’s will and therefore all State organs in exercising their delegated powers had to bow to the will of the people as expressed in the Constitution. Article 2 of the Constitution provided for the binding effect of the Constitution on state organs and proceeded to decree that any law, including customary law, which was inconsistent with the Constitution, was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid.
- Where the Court was convinced that the orders ought to have been granted, the Court would not shy away from doing so. The Constitution was a living thing: it adopted and developed to fulfil the needs of living people whom it both governed and served. Like clothes, it ought to have been made to fit people and never to have been strangled by the dead hands of long discarded custom, belief, doctrine or principle. It had, of necessity, to adapt itself; it could not lay still. It had to adapt to the changing social conditions.
- The doctrine of constitutionality of statutes, when in conflict with the constitutional obligation of the Court to investigate the constitutionality of a statute, had to give way to the latter. When any of the State Organs or State Officers stepped outside its mandate, the Court would not hesitate to intervene and that was appreciated. Therefore, the Court vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution, had the duty and obligation to intervene in actions of other State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.
- As the Petition alleged a violation of the Constitution by the Respondents, it was the Court’s finding that the principle of independence of the Legislature did not inhibit the Court's jurisdiction or prohibit it from addressing the Applicant’s grievances so long as they stemmed out of alleged violations of the Constitution. To the contrary, the invitation to do so was most welcomed as that was one of the core mandates of the Court.
- The Constitution is the Supreme Law of the country and all State Organs have to function and operate within the limits prescribed by the Constitution. In cases where they step beyond what the law and the Constitution permit them to do, they could not seek refuge in independence and hide under that cloak or mask of inscrutability in order to escape judicial scrutiny.
- The doctrine of independence had to be read in the context of Kenya’s Constitutional framework and where the adoption of the doctrine would clearly militate against the constitutional principles that doctrine or principle had to bow to the dictates of the spirit and the letter of the Constitution and the enabling legislation. It was not only the role of the Courts to superintend the exercise of such powers but their constitutional obligation to do so. In effect, the Legislature’s independence under the Constitution only remained valid and insurmountable as long as it operated within its legislative and constitutional sphere. Once it left its stratosphere and entered the airspace outside its jurisdiction of operation, the Courts were then justified in scrutinizing its operations.
- The Constitution instilled a culture of justification, in which every exercise of power was expected to be justified. The stages through which a bill passed before being enacted were to be found in the National Assembly Standing Orders 120 to 139, which were made pursuant to the provisions of articles 109 to 113, 119, 122 and 123 of the Constitution and those stages were:
It was clear that public participation took place between the First Reading and the Second Reading. In that case, the impugned amendments were introduced at the Committee Stage well after the period for the public participation.
- The publication of the Bill;
- Determination through concurrence of speakers of both houses on whether or not the Bill concerned County Governments;
- First Reading of the Bill;
- Committal of the Bill to the relevant Committee to commit it to the Public Participation;
- Second Reading of the Bill;
- Committal of the Bill to the Committee of the whole house;
- Third Reading of the Bill and passage into law.
- Public participation was one of the national values and principles of governance enunciated in article 10 of the Constitution which bound all State organs, State officers, public officers and all persons whenever any of them inter alia enacted, applied or interpreted any law. One of the principles thereunder was the participation of the people. Therefore where the principle of public participation was not inculcated in the process of legislative enactment, the process of such enactment could not be said to meet the constitutional threshold. In the instant case, it was not contended that after the amendment the Bill was re-subjected to public participation. The result was that the public’s input in the said amendment was ignored.
- It was clear that the introduced amendment to the Pharmacy and Poisons Act, deleted section 35I (b) and also substituted the Director of National Quality Control Laboratory with the Pharmacy and Poisons Board in section 35A (5). In addition, it was clear that the aim and or motivation of the amendment was to transfer the GMP inspection functions from the National Quality Control Laboratory to the Pharmacy and Poisons Board, the resultant effect of the deletion of section 35I(b) which dealt with inspection of premises and issuance of certificates of compliance, left that important power unregulated. Therefore, the Applicant’s view that the effect of the amendment was an exposure of Kenyan citizens to dangerous substandard and counterfeit medicines could not be without merit.
- By acting in the manner it did, the 1st Respondent improperly ignored the Court’s earlier decision where it held that the Board and the Laboratory played distinctive and complimentary roles with one body having the regulatory role while the other ensuring quality assurance compliance, being two complimentary regulatory bodies under the Pharmacy and Poisons Act. While the Court appreciated that it was within the province of Parliament to delineate the respective roles where an enactment left a particular role unregulated without expressly stating that was its intention, it could only be deemed as a failure to consider relevant material.
- It was true that Parliament had vide sections 62 & 63 of the Health Act, 2017 contemplated a single regulatory body for the regulation of health products and health technologies. However, what was contemplated was the creation of such body through future legislative enactment in accordance with the aforementioned sections. The effective and operational statutory law on regulation of medicines remained the Pharmacy and Poisons Act, Cap 244 Laws of Kenya, since apart from the purported transfer of sampling of medicinal samples under production and carrying out analytical testing for issuance of certificate of Analysis provided for under sections 35A (5) and 35K of Pharmacy and Poisons Act, it was the 3rd interested party’s mandate to issue certificate of analysis.
- The effect of the amendment was clearly not just a formal amendment but a substantive one that required public input. The failure to seek the public input could not therefore be brushed aside. The Court not only had the power but the obligation to determine whether a particular legislation was in fact and in substance enacted in accordance with the Constitution and not to just satisfy itself as to the formalities or the motions of doing so.
- By introducing totally new and substantial amendments to the Pharmacy and Poisons Act at the Committee Stage of the whole house, which was neither consequential amendment nor amendment within statute law (Miscellaneous) Bill, but concerned drugs-control of manufacture of medicines, Parliament not only set out to circumvent the constitutional requirements of public participation but, with due respect, mischievously short-circuited and circumvented the letter and the spirit of the Constitution. Its action amounted to a violation of articles 10 and 118 of the Constitution.
- What was before the House was Clinical Officers (Training, Registration and Licensing) Bill, 2016 which repealed the existing Clinical Officers (Training, Registration and Licensing) Act, Cap. 260 of the Laws of Kenya which made provision for training, registration and licensing of Clinical Officers; to regulate their practice and to provide for the establishment, powers and functions of the Clinical Officers Council. The Pharmacy and Poisons Act on the other hand was an Act of Parliament to make better provision for the control of the profession of pharmacy and the trade in drugs and poisons.
- Section 34, instead of 35 because section 22 was deleted, of the Clinical Officers (Training, Registration and Licensing) Act, which came in by virtue of the said amendment however read that the Board (Pharmacy and Poisons Board) or any person authorized in writing by the Board would have power to enter and sample any medicinal substance under production in any manufacturing premises and certify that the method of manufacture approved by the Board was being followed.
- There was absolutely no nexus between section 34 and the rest of the sections of the Clinical Officers (Training, Registration and Licensing) Act. Clearly by amending the provisions of the Pharmacy and Poisons Act, which had nothing to do with the objectives of the Clinical Officers (Training, Registration and Licensing) Bill, 2016, the 1st Respondent purported to deal with a different subject and proposed to unreasonably or unduly expand the subject of the Bill and in a manner not appropriate or in logical sequence to the subject matter of the Bill. In other words, the 1st Respondent exceeded its powers conferred on it by the Constitution as read with the Standing Orders.
- The 1st Respondent deleted a provision of the Act which there was no express intention to be deleted. In so doing, the 1st Respondent failed to consider a relevant matter. The considerations that a decision-maker was bound to consider or bound to ignore in making the decision were determined by construction of the statute conferring the discretion. Statutes might expressly state the considerations that need to be taken into account or ignored. Otherwise, they had to be determined by implication from the subject matter, scope and purpose of the statute. Had the 1st Respondent considered the effect of the late amendments no doubt it would not have passed the same in the manner it did.
- It was expressly provided that control of drugs and pornography was the function of county governments. The Pharmacy and Poisons Act dealt with control of drugs. Therefore a bill proposing amendments to that Act ought to have necessarily been deemed as a Bill concerning county governments pursuant to article 110 of the Constitution and therefore ought to have been referred to the Senate.
- There was no evidence of concurrence of the Speaker of the Senate having expressed that the Bill did not concern county governments. However, the final decision as to whether a bill concerned county governments had to rest on the Court. While the opinions of the Speakers of the two houses were entitled to their respect, the ultimate decision was vested in the Court. There was no evidence that the Bill in question was referred to and passed by the Senate as ought to have been done. Parliament as a law making body ought to have set standards for compliance with the Constitutional provisions and with its own Rules.
- As regards the advice of the Attorney General, that opinion ought to have itself been lawful. In the case, with due respect to the office of the Attorney General, in a rather convoluted opinion, misdirected the President on the legality of the impugned amendments. The Attorney General, rightly in the Court’s view opined that section 34, which was unrelated to the substance of the Bill and which was inserted during the Committee Stage, intended to amend sections 35A(5) and 35I(b) of the Pharmacy and Poisons Act. He further opined that the National Assembly might not have acted strictly in accordance with its Standing Orders.
- Despite those clear grave misgivings, the Attorney General proceeded to give the whole Bill a clean bill of health by confirming that the Bill was consistent with the provisions of the Constitution and other existing laws and that the President could assent to the Bill, if he approved. The opinion was unsupported by the law and the authorities. The Bill ought not to have been signed in the manner in which it was passed and the Attorney General ought to have advised the President along those lines as was rightly proposed by the Chief of Staff and Head of the Public Service on April 18, 2017.
- Consequently, the manner in which sections, 35A(5) and 35I(b) of the Pharmacy and Poisons Act, were amended by the impugned Clinical Officers (Training, Registration and Licensing) Act, was clearly unprocedural, unlawful and ultra vires and was consequently unconstitutional.
- The Court was aware that on July 21, 2017, the Parliamentary Powers and Privileges Act, No. 29 of 2017 was assented to by the President. Under section 38(1) of the said Act the National Assembly (Powers and Privileges)Act was repealed. However the commencement date of the Act was indicated as August 17, 2017. Those proceedings were commenced before the commencement date of the said Act. Section 11 of the Parliamentary Powers and Privileges Act provided that no proceedings or decision of Parliament or the Committee of Powers and Privileges acting in accordance with the Act would be questioned in any court.
- The general rule was that all statutes other than those which were merely declaratory or which relate only to matters of procedure or evidence were prima facie prospective and retrospective effect was not to be given to them unless by express words or necessary implication, it appeared that that was the intention of the legislature. There was no stipulation in the Parliamentary Powers and Privileges Act that it was meant to operate retrospectively. Before its commencement, the ex parte Applicant had the right to challenge the amendments to the Pharmacy and Poisons Act. Therefore, section 11 of the Parliamentary Powers and Privileges Act, No. 29 of 2017, assuming without deciding that the provision was in the first place constitutional, did not apply to those proceedings.
- Section 12 only dealt with civil proceedings. Those were judicial review proceedings. High Court in the exercise of its judicial review jurisdiction exercised neither a criminal jurisdiction nor a civil one since the powers of the High Court to grant judicial review remedies was sui generis. However, in conducting its proceedings, Parliament was bound to adhere to the provisions of the Constitution and where its actions contravened the Constitution; the same was null and void.
- An Order of Certiorari removing into the Court for the purposes of being quashed all attendant proceedings and the decision of the 1st Respondent dated April 5, 2017 that passed the motion to amend sections 35A(5) & 35I(b) of the Pharmacy and Poisons Act under Clinical Officers (Training, Registration & Licensing) Bill 2016;
- A declaration that the amendment to sections 35A(5) & 35I(b) of the Pharmacy and Poisons Act under section 34 of the Clinical Officers (Training, Registration & Licensing) Bill 2016 was passed in a manner that breached the express provisions of the Constitution and was thus unconstitutional, null and void.
- Costs awarded to the Applicant.
||Court Nullifies Court Proceedings Conducted by an Unqualified Person
Sammy Mwiria vs Luca Nyaga Njerera
Succession Cause 627 of 2013
High Court at Embu
F Muchemi, J
December 14, 2017
Reported by Ian Kiptoo
Download the Decision
Advocate-validity of proceedings conducted by an unqualified person-where documents where prepared by an advocate-whether a court could nullify proceedings conducted by an unqualified person despite the documents being prepared and drawn by a qualified advocate-Advocates Act, section 31 and 34.
Advocate-advocate/client relationship-liability of negligent acts/omissions by an advocate- whether a client could seek damages in respect of negligent acts or omissions committed by a law firm-Advocate Act, section 39Brief facts:
The Applicant approached the Court through a notice of motion that the Court strike out the proceedings in the matter from the date of December 1, 2014 to December 6, 2016 conducted by Mr. Vincent Afande, a person not qualified to act as an advocate. It also sought orders that all rulings/orders and/or judgments issued in favour of the Objector/Respondent between the December 1, 2014 and December 6, 2016 be set aside and declared a nullity.
On the other hand, the Respondent stated that the said Vincent Afande never prepared any pleading and neither did he prosecute the matter. All the pleadings were drawn and filed by Guserwa & Company advocates. He was never involved in any interparte hearing of any applications in court save for mentions and delivery of a ruling on July 27, 2017. For that reason, the Respondent pleaded with the Court not to allow the Application.
- Whether a court could nullify proceedings conducted by an unqualified person despite the documents being prepared and drawn by a qualified advocate.
- Whether a client could seek damages in respect of negligent acts or omissions committed by a law firm.Read More...
Relevant Provisions of the Law
Advocates Act; Section 31
(1) Subject to section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.
(2) Any person who contravenes subsection (1) shall—
(a) be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and
(b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and
(c) in addition be guilty of an offence.
- The part played by Mr. Afande in the cause and in particular the hearing of the Application dated February 27, 2015 could not be underestimated. It was as a result of the actions by Mr. Afande that the Application was set for hearing, directions taken and orders sought granted.
- The firm of J.A. Guserwa & Co. prepared and filed the pleadings and it remained the advocates for the Objectors/Respondents at all material times. Therefore, the Application dated February 27, 2015 was filed by the said firm which was competent and qualified under the Advocates Act.
- Section 31 of the Advocates Act prohibited an unqualified person from acting as an advocate. Mr. Afande was an unqualified person who took upon himself to conduct legal business knowing that his actions were contrary to the law and amounted to a criminal offence. The firm of J.A. Guserwa & Co. failed to take due diligence to establish the legal qualifications of Mr. Afande before instructing him to hold their brief. It was important to note that Mr. Afande held brief from the said firm about ten times. That was the height of negligence on the part of the firm that would not be condoned.
- Under the law, a client was entitled to claim damages against a law firm for any loss suffered as a result of the illegalities caused by the act or omission of a law firm. That kind of negligence might have led to prosecution of the firm concerned with a criminal offence under section 39 of the Advocates Act which forbade such conduct.
- Section 34 of the Advocates Act forbade an unqualified person from directly or indirectly taking instructions from or drawing or preparing any documents or instruments relating to the work of an advocate. Any person wishing to practice law had to meet the mandatory qualifications.
- The actions of Mr. Afande were a breach of statutes and a commission of a crime which risked suffering by innocent litigants. By virtue of the oath of office, an advocate in private practice had to promote the integrity and discipline in the legal profession. Therefore, negligence of the law firm was inexcusable.
- The proceedings for the period between December 1, 2014 to December 6, 2014 were conducted by a person not qualified to act as an advocate and were therefore null and void.
- The Application dated February 27, 2015 or any pleadings filed by the firm of J.A. Guserwa & Co. were declared in order and were properly on record.
- The costs of the Application would be paid by the firm of J.A. Guserwa & Co. advocates for reasons given in the ruling.
Long'et Terer - CEO and Editor
The Kenya Law Team
Where Legal Information is Public Knowledge.
The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org