Weekly Newsletter 016/2018

Weekly Newsletter 016/2018



Kenya Law

Weekly Newsletter


 

The Installation of a DMS System Device with the Capacity to Access Information belonging to Subscribers of Certain Networks is Unconstitutional
Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eKLR
Constitutional Petition No. 53 of 2017
High Court at Nairobi
J M. Mativo, J
April 19, 2018
Reported by Kakai Toili

Download the Decision

 

Constitutional Law - fundamental rights and freedoms - right to privacy -installation of a DMS device – where the DMS device had the capacity to access information belonging to subscribers of selected networks in the telecommunication sector - whether the installation of a DMS system to control use of illegal devices infringed on subscribers’ right to privacy -Constitution of Kenya 2010, articles 31 & 24; Kenya Information and Communications Act, section 27A

Constitutional Law - fundamental rights and freedoms – right to claim redress – factors to consider - what were the factors that determined whether one had the right to claim redress on a justiciable matter

Constitutional Law constitutional petitions – where there was violation of constitutional rights – applicable law – common law – doctrine of ripeness - whether the common law doctrine of ripeness was applicable in cases involving violation of constitutional rights – Constitution of Kenya, 2010 article 50 (1)

Constitutional Law fundamental rights and freedom – limitation of rights - right to privacy – introduction of a DMS system that infringed on the right to privacy in combating illegal devices – whether introduction of a DMS system which had the capability of accessing subscribers’ information was lawful and met the article 24 of the Constitution on limitation of rights analysis test – Constitution of Kenya, 2010, article 24

Constitutional Law fundamental rights and freedom – limitation of rights - right to privacy – introduction of a DMS system that infringed on the right to privacy in combating illegal devices – whether apart from the DMS devise there were other lawful and less restrictive means of combating illegal devices

Constitutional Law -fundamental rights and freedoms – limitation of fundamental rights and freedoms – what were the factors to consider in deciding matters relating to limitations placed on the enjoyment of fundamental rights and freedoms – Constitution of Kenya, 2010, article 24

Judicial Review - grounds for the grant of judicial review remedies - ultra vires -extent of the mandate of the Communications Authority of Kenya - whether the Communications Authority of Kenya had the mandate to combat illegal devices in the telecommunications sector

Constitutional Law national values and principles of governance – public participation – facilitation of public participation - elements of gauging whether the obligation to facilitate public participation had been met - whether the requirement for public participation was met in the acquisition and installation of the DMS system – Constitution of Kenya, 2010, article 10; Kenya Information and Communications Act, section 5 (2)

Constitutional Law fundamental rights and freedoms – right to fair administrative action – duty to give reasons for undertaking an administrative action – failure to give reasons - what was the effect of failure by an administrator to give reasons for an administrative action to persons likely to be affected by the administrative action – Constitution of Kenya, 2010 article 47; Fair Administrative Action Act, section 6

Constitutional Law - fundamental rights and freedoms - consumer rights – where there was installation of a DMS system device with the capacity to access information belonging to subscribers – where the subscribers were not given information about the device or consulted before its installation – whether the installation of a DMS system which could access personal information belonging to subscribers of certain networks in the telecommunications sector, without consulting subscribers was a violation of the subscribers' consumer rights - Constitution of Kenya 2010, article 46

Constitutional Law public finance – public funds – loss of public funds – liability for loss of public funds - what were the requirements for a public officer to be held directly and personally liable for any loss of public funds under his or her watch – Constitution of Kenya, 2010, article 226 (5)

Words and Phrases public interest litigation – definition of public interest litigation - a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected – Black’s Law Dictionary, Sixth Edition


Brief Facts:

The Petition challenged the introduction of a Device Management System (DMS system) device into the networks of the 1st, 2nd and 3rd Interested Parties. The 1st, 2nd and 3rd Interested Parties provided various telecommunication services to their customers and those services included mobile telephone, data, internet and mobile money transfers. The Petitioner alleged that the device had the capacity to access customers' information, which could only be accessed in a manner prescribed by law and was therefore said to be a violation of the right to privacy. The Petition also challenged the manner in which the device was introduced. The Petitioner alleged that the device was introduced without public participation and there was no guarantee that the information accessed would remain confidential.

 

Issues:

  1. What were the factors that determined whether one had the right to claim redress on a justiciable matter.
  2. Whether the common law doctrine of ripeness was applicable in cases involving violation of constitutional rights.
  3. Whether the installation of a DMS system to control use of illegal devices infringed on the subscribers right to privacy?
  4. Whether introduction of a DMS system which had the capability of accessing subscribers’ information was lawful and met the article 24 of the Constitution on limitation of rights analysis test.
  5. Whether apart from the DMS devise there were other lawful and less restrictive means of combating illegal devices.
  6. What were the factors to consider in deciding matters relating to limitations placed on the enjoyment of fundamental rights and freedoms
  7. Whether the Communications Authority of Kenya had the mandate to combat illegal devices in the telecommunications sector.
  8. Whether the requirement for public participation was met in the acquisition and installation of the DMS system.
  9. What was the effect of failure by an administrator to give reasons for an administrative action to persons likely to be affected by the administrative action?
  10. Whether the installation of a DMS system which could access personal information belonging to subscribers of certain networks in the telecommunications industry, without consulting those subscribers, was a violation of the subscribers' consumer rights.
  11. What were the requirements for a public officer to be held directly and personally liable for any loss of public funds under his or her watch

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 10

(1)The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—
(a)applies or interprets this Constitution;

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

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

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

Article 22 

(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

 

Article 24

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

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

Article 31

Every person has the right to privacy, which includes the right not to have—

(a)  their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.

Article 50

(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Article 47

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

(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b)promote efficient administration.

Article 258

(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a)a person acting on behalf of another person who cannot act in their own name;
(b)a person acting as a member of, or in the interest of, a group or class of persons;
(c)a person acting in the public interest; or
(d)an association acting in the interest of one or more of its members.

Kenya Information and Communications Act
Section 2

(1)In this Act unless, the context otherwise requires—
“access” in relation to any computer system”, means instruct, communicate with, store data in, retrieve data from, or otherwise make use of any of the resources of the computer system; “data” means information recorded in a format in which it can be processed by equipment operating automatically in response to instructions given for that purpose, and includes representations of facts, information and concepts held in any removable storage medium;
“electronic record” means a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium;
“telecommunication system” means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy, of—

(i)speech, music and other sounds;
(ii)visual images;
(iii)data;
(iv)signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sound, visual images or data; or
(v)signals serving for the activation or control of machinery or apparatus and includes any cable for the distribution of anything falling within (i) to (iv) above;

Section 5

(1)The object and purpose for which the Commission is established shall be to licence and regulate postal, information and communication services in accordance with the provisions of this Act.
(2)The Commission shall have all powers necessary for the performance of its functions under this Act.
(3)The Commission may enter into association with such other bodies or organisations within or outside Kenya as the Commission may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established.
(4)The Commission shall, in the performance of its functions under this Act have regard to—

(a)any policy guidelines of a general nature relating to the provisions of this Act notified to it by the Minister and published in the Gazette;
(b)Kenya’s obligations under any international treaty or agreement relating to the provisions of telecommunication, radio and postal services.

Section 5 C

(1)The Cabinet Secretary may issue to the Authority, policy guidelines of a general nature relating to the provisions of this Act.
(2)The guidelines referred to under subsection (1) shall be in writing and shall be published in the Gazette.

 

Statutory Instruments Act
Section 2

“statutory instrument” means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.

 

Anti-Counterfeit Act
Section 5

The functions of the Agency shall be to—

(c)enlighten and inform the public on matters relating to counterfeiting;
(d)combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with this Act;
(e)devise and promote training programmes on combating counterfeiting;
(f)co-ordinate with national, regional or international organizations involved in combating counterfeiting;
(g)carry out any other functions prescribed for it under any of the provisions of this Act or under any other written law; and
(h)perform any other duty that may directly or indirectly contribute to the attainment of the foregoing.

Standards Act
Section 4

1)The functions of the Bureau shall be—

(a)to promote standardization in industry and commerce;
(b)to make arrangements or provide facilities for the testing and calibration of precision instruments, gauges and scientific apparatus, for the determination of their degree of accuracy by comparison with standards approved by the Minister on the recommendation of the Council, and for the issue of certificates in regard thereto;
(c)to make arrangements or provide facilities for the examination and testing of commodities and any material or substance from or with which and the manner in which they may be manufactured, produced, processed or treated;
(d)…
(e)to prepare, frame, modify or amend specifications and codes of practice;
(f)…
(g)…
(h)…
(i)to provide for the testing at the request of the Minister, and on behalf of the Government, of locally manufactured and imported commodities with a view to determining whether such commodities comply with the provisions of this Act or any other law dealing with standards of quality or description.

Fair Administrative Action Act
Section 4

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a)prior and adequate notice of the nature and reasons for the proposed administrative action;
(b)an opportunity to be heard and to make representations in that regard;
(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d)a statement of reasons pursuant to section 6;
(e)notice of the right to legal representation, where applicable;
(f)notice of the right to cross-examine or where applicable; or
(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.

Section 7

(2) A court or tribunal under subsection (1) may review an administrative action or decision, if-

(a)…
(b)a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
(c)the action or decision was procedurally unfair;
(d)….
(e)the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;
(f)the administrator failed to take into account relevant considerations;
(g)….
(h)…
(i)…
(j)…
(k)the administrative action or decision is unreasonable;
(l)…
(m)the administrative action or decision violates the legitimate expectations of the person to whom it relates;
(n)…
(o)the administrative action or decision is taken or made in abuse of power.

Held:

  1. The Court usually does not solve hypothetical problems and abstract questions. Declaratory actions could not be brought unless the rights in question in such actions 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. A stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases could subvert requisite approaches to the interpretation of the Constitution. Courts could not afford to routinely cite Common-Law cases to deny or grant locus standi or determine ripeness.
  2. The Constitution of Kenya, 2010 recognised a fairly broad catalogue of human rights. Those constitutional commitments to human rights were however nothing but printed futility unless enforced through institutions established for that purpose, particularly those empowered to interpret the Constitution.
  3. A strategy to ensure the enforcement of human rights was litigation. The first aspect that determined the enforcement of constitutionally-entrenched human rights through courts and other judicial bodies however was the locus standi of the Applicant and ripeness. Standing and ripeness determined whether an individual or group of individuals or an entity had the right to claim redress on a justiciable matter before a tribunal authorised to grant the redress sought.
  4.  The guarantee of access to the courts or other fora embodied the requirement that there be a dispute that could be resolved by the application of law. The choice of the words, a dispute that could be resolved by the application of the law, in article 50 (1) of the Constitution was a clear intention by the drafters of the Constitution to exclude the requirement of common law doctrine of ripeness in cases involving violation of constitutional rights. The drafters were clear that a mere threat of violation of a constitutional right was sufficient. It reflected a conscious decision to move away from the restrictive effect of the use of the word ripeness. That was because the concept of ripeness could present a procedural barrier to access to the courts, particularly with regard to the litigation of constitutional issues where a party was citing threat to violation of constitutional rights. Under the Constitution of Kenya, 2010 any person could approach the Court claiming violation or threat to violation of rights
  5. A determination of ripeness in cases involving violation of constitutional rights involved an inquiry into whether it was appropriate for a particular issue to be resolved by the courts. The features which could be subject to inquiry were whether the Petitioner had standing to claim the relief, whether there was a threat,  whether the issue was moot in that the dispute had been resolved, whether the subject matter was appropriate for judicial action.
  6. It was sufficient that the Petitioner had alleged that a right in the Bill of Rights, namely the right to privacy had been infringed or threatened with violation or a threat to breach of the Constitution. The word threatened was included in article 22 of the Constitution to make it clear that an applicant could also approach a court to obtain an interdict to prevent a future violation of a right. The issue of threats to the violation of the fundamental rights and freedoms did not require a real and live case for the Court to intervene. The argument that the dispute was hypothetical failed.
  7. Consistent with article 259, when the constitutionality of legislation or any act or omission was in issue, the Court was under a duty to examine the objects and purport of the legislation, the act or omission and to read the provisions of the legislation, the conduct or omission so far as was possible, in conformity with the Constitution. The principles relating to constitutional interpretation were:
    1. Constitutional provisions were to be broadly, liberally and purposively interpreted so as to avoid what had been described as the austerity of tabulated legalism. Situations could arise where the generous and purposive interpretations did not coincide, in such instances it could be necessary for the generous to yield to the purposive interpretation.
    2. In interpreting constitutional rights, close scrutiny had to be given to the language of the Constitution itself in ascertaining the underlying meaning and purpose of the provision in question.
  8. The words, to access information on the International Mobile Equipment Identity (IMEI), International Mobile Subscriber Identity (IMSI), Mobile Station Integrated Subscriber Directory number (MSISDN) and Call Data Records (CDRs) of the subscribers on your network, in the letter from the 1st Respondent dated January 31, 2017 warranted no explanation. Section 2 of Kenya Information and Communications Act (KICA) defined access, data, electronic record and telecommunication system. Privacy was a fundamental human right enshrined in numerous international human rights instruments. It was central to the protection of human dignity and formed the basis of any democratic society. It also supported and reinforced other rights such as freedom of expression, information and association. The right to privacy embodied the presumption that individuals should have an area of autonomous development, interaction and liberty, a private sphere with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals.
  9. Activities that restricted the right to privacy, such as surveillance and censorship, could only be justified when they were prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued. A person’s right to privacy entailed that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. Privacy in its simplest sense allowed each human being to be left alone in a core which was inviolable yet the autonomy of the individual was conditioned by her relationships with the rest of society.
  10. The Constitution protected privacy as an elemental principle but the Court had to be sensitive to the needs of, the opportunities and dangers posed to liberty in a digital world. Data protection was an aspect of safeguarding a person’s right to privacy. It provided for the legal protection of a person in instances where such a person’s personal particular (information) was being processed by another person or institution (the data user). Processing of information generally referred to the collecting, storing, using and communicating of information. The processing of information by the data user or responsible party threatened the personality in two ways:
  1. The compilation and distribution of personal information created a direct threat to the individual's privacy.
  2. The acquisition and disclosure of false or misleading information could lead to an infringement of his identity.
  1. As innovations in information technology had enabled previously unimagined forms of collecting, storing and sharing of personal data, the right to privacy had evolved to encapsulate state obligations related to the protection of personal data. The internet had also enabled the creation of greater quantities of personal data. Communication data was information about a communication, which could include the sender and recipient, the date and location from where it was sent and the type of device used to send it. Threats to individual privacy were greater than earlier envisaged. Global technologies and convergence facilitated the dissemination of information but at the same time posed enormous threats to individual and corporate confidentiality.
  2. Privacy had both positive and negative content. The negative content restrained the State from committing an intrusion upon the life and personal liberty of a Kenyan. Its positive content imposed an obligation on the State to take all necessary measures to protect the privacy of the individual. The right of privacy was a fundamental right. It protected the inner sphere of the individual from interference from both State, and non-State actors and allowed the individuals to make autonomous life choices.
  3. The letter dated January 31, 2017 stated the purpose of the DMS system, that was to access information. Accessing such information could only be lawful if it fell within the permitted parameters of section 27A of KICA. Accessing mobile telephone subscribers’ information in a manner other than as provided under the law inherently infringed the right to privacy. For the DMS system to be lawful, the reason given had to not only be lawful, but meet the article 24 of the Constitution analysis test.
  1. Human rights enjoyed a prima facie presumptive inviolability and would often trump other public goods. Whether the DMS device would help in combating illegal devices had to be answered with reference to the standards of review laid down by courts when the validity of a statute was challenged which included two main standards:    
    1. The rationality test, that was the standard that applied to all legislation under the rule of law.
    2. The reasonableness or proportionality standard which applied when legislation limited a fundamental right in the Bill of Rights.
  1. It was important for the Court to determine whether combating illegal devices related to a legitimate purpose, that was to enable the 1st Respondent to fulfill its statutory mandate. In determining reasonableness, relevant factors included:
    1. Whether there was a valid, rational connection between the limitation and a legitimate public interest to justify it, which connection could not be so remote as to render the decision arbitrary or irrational.
    2. Whether there were alternative means of exercising the asserted right that remained open to the 1st Respondent.
  2.  A common way of determining whether a law, regulation or decision that limited rights was justified was by asking whether the law was proportionate. Established jurisprudence on proportionality had settled on the following tests:
    1. Did the legislation or other government action establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?
    2. Were the means in service of the objective rationally connected (suitable) to the objective?
    3. Were the means in service of the objective necessary, that was, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?
    4. Did the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation, in short, was there a fair balance between the public interest and the private right?
  3.  Limitation of a constitutional right would be constitutionally permissible if:
    1. It was designated for a proper purpose.
    2. The measures undertaken to effectuate such a limitation were rationally connected to the fulfillment of that purpose.
    3. The measures undertaken were necessary in that there were no alternative measures that could similarly achieve that same purpose with a lesser degree of limitation
    4. There needed to be a proper relation (proportionality stricto sensu or balancing) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.
  4. When employing the language of proportionality the Court would ask whether the end could be pursued by less drastic means and it had been particularly sensitive to laws that imposed adverse consequences unrelated to their object, such as the infringement of basic common law rights. Talking of a less restrictive meant, the alleged illegal devices were not manufactured in Kenya. There were laws governing importation of goods. There were laws governing counterfeit goods. The Kenya Bureau of Standards monitored standards. There was the Kenya Revenue Authority and the National Police Service. All the points of entry were manned. Those laws and the institutions they created had not been shown to be insufficient. In the past 1.89 million illegal devices were switched off. The Mobile Network Owners were able to identity and block black listed devices. That could be used to effectively combat the illegal devices by denying them access as was successfully done in the past. All those were lawful and less restrictive means which were available to achieve the same purpose.   
  5.  Subscribers data held by the 1st to 3rd Interested Parties could only be released under the circumstances permitted by the law and in particular section 27A of KICA. There was no argument before the Court to demonstrate that the DMS fit any of the circumstances contemplated under the said section.
  6. For the DMS system to pass the article 24 of the Constitution analysis test, the decision introducing it had to be lawful. For the decision to be legal the object cited, namely, combating illegal devices had to be within the statutory mandate of the 1st Respondent. The mandate of combating illegal devices did not fall within the statutory mandate of the 1st Respondent. There were other less restrictive means, hence the DMS system did not satisfy the article 24 analysis test.
  7. The information sought to be accessed involved the subscribers, however, there was no attempt to engage them or the public. The practical elements or principles which both the Court and public agencies could utilize to gauge whether the obligation to facilitate public participation had been reached in a given case included the following:
    1. It was incumbent upon the Government agency or public official involved to fashion a programme of public participation that accorded with the nature of the subject matter. It was the Government agency or public official who was to craft the modalities of public participation but in so doing the Government agency or public official had to take into account both the quantity and quality of the governed to participate in their own governance. The Government agency enjoyed some considerable measure of discretion in fashioning those modalities.
    2. Public participation called for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints and so forth. In other words, no single regime or programme of public participation could be prescribed and the Courts would not use any litmus test to determine if public participation had been achieved or not. The only test the courts used was one of effectiveness. A variety of mechanisms could be used to achieve public participation.
    3. Whatever programme of public participation was fashioned, it had to include access to and dissemination of relevant information.
    4. Public participation did not dictate that everyone had to give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, had to, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the Government agency or public official had to take into account the subsidiarity principle. Those most affected by a policy, legislation or action had to have a bigger say in that policy, legislation or action and their views had to be more deliberately sought and taken into account.
    5. The right of public participation did not guarantee that each individual’s views would be taken as controlling, the right was one to represent one’s views not a duty of the agency to accept the view given as dispositive.  However, there was a duty for the Government agency or public official involved to take into consideration, in good faith, all the views received as part of the public participation programme. The Government agency or public official could not merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.
    6. The right of public participation was not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who would be most affected by the decision or policy at hand.
  8. Public participation had to apply to policy decisions affecting the public though the degree and form of such participation would depend on the peculiar circumstances of the case. The decision to install the DMS system and the purported implementation was done before undertaking any meaningful stakeholder engagement, and the same was incapable of being read in a manner that was constitutionally compliant.
  9. The nature and the degree of public participation that was reasonable in a given case depended on a number of factors. They included the nature and the importance of the policy or decision and the intensity of its impact on the public. The public whose data was held by the 1st, 2nd and 3rd Interested Parties and whose constitutional right to privacy was at risk in the event of breach had as of necessity to be involved in the engagements. Thus, the process had to be subjected to adequate public participation wide enough to cover a reasonably high percentage of the affected population in the country. The more discrete and identifiable the potentially affected section of the population and the more intense the possible effect on their interests, the more reasonable it would be to expect the 1st Respondent to be astute to ensure that the potentially affected section of the population was given a reasonable opportunity to have a say. There was inadequate public participation prior to the process leading the acquisition and the attempt to install the DMS system.
  10. Article 165 of the Constitution granted the Court the jurisdiction to determine inter alia the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with or in contravention of the Constitution. Article 94 (5) of the Constitution precluded all other persons or bodies other than Parliament from making provisions having the force of law in Kenya except under authority conferred by the Constitution or delegated by the Legislature through a statute. The National Assembly could, therefore delegate to any person or body the power to make subsidiary legislation, which required approval of the House before having the force of law. Subsidiary legislation made by persons or bodies other than Parliament were commonly known as Statutory Instruments.
  11. If the introduction of the DMS was a regulation then the statutory and dictionary definition applied. The Regulation was a Statutory Instrument within the said definition. Statutory Instruments were prepared by the Cabinet Secretary or a body with powers to make them such as a Commission, Authority or a Board. Statutory Instruments had to conform to the Constitution, Interpretation and General Provisions Act, the Parent Act and the Statutory Instruments Act. If the introduction of the DMS system was a policy or a guideline, then the provisions of section 5C of KICA came into play and as per the definition it was a statutory instrument. The Statutory Instruments Act required consultation with stakeholders, preparation of regulatory impact statement, preparation of explanation memorandum, tabling of statutory instrument in the House and  consideration of the  statutory instrument by the National Assembly, Committee on Delegated Legislation. If the decision was a Regulation, it was a constitutional and statutory imperative that sufficient public participation be undertaken prior to implementation and it was a legal imperative that it be presented to Parliament as the law demanded.
  12. Regulations or policy guidelines had to conform to the Constitution and the statute in terms of both their content and the manner in which they were adopted. Failure to comply with the manner and form of requirements in enacting Regulations or policy guidelines rendered the same invalid. Courts had the power to declare such Regulations or policy guidelines invalid.  The Court not only had a right but also had a duty to ensure that the Regulation or guideline making processes prescribed by the Constitution and the Statute was observed. If the conditions for regulation-making processes had not been complied with, it had the duty to say so and declare the resulting statute, regulation, policy or guideline invalid.
  13. The Regulation or policy guidelines introducing the DMS system were adopted in a manner inconsistent with the constitutional and statutory requirements. The provisions of the Statutory Instruments Act were not complied with, hence, the Regulation or Policy guideline lacked legal basis to stand on. Courts were enjoined by the Constitution to uphold the rights of all and to ensure compliance with constitutional values and principles, a duty the Court could not shy away from.
  14. A reading of the Anti-Counterfeit Act, the Standards Act and KICA left no doubt that the functions of combating counterfeit fell within the mandate of the Anti-Counterfeit Agency, while enforcing standards was the mandate of the Kenya Bureau of Standards. The role of the Kenya Revenue authority, the Ministry Responsible for Trade and the National Police Service in ensuring illegal goods did not enter the country was clearly pronounced under the law.  For the 1st Respondent to purport to perform the functions vested by the law in other statutory bodies which actions were not expressly provided under its enabling statute was ultra vires its functions.
  15. When the constitutionality or legality of a decision made by a public body in the exercise of its statutory mandate was questioned, the duty of the Court was to determine whether the impugned decision was capable of being read in a manner that was constitutionally compliant or as in the instant case whether it could be read in a manner that conformed to the relevant statute. Every act of the State or public bodies had to pass the constitutional test. Put differently, it had to conform to the principal of legality. A contextual or purposive interpretation of the challenged decision had to remain faithful to the actual wording of the statutes, namely the Fair Administrative Action Act, the Constitution, KICA and the Regulations made there under and the Consumer Protection Act. The challenged decision had to be capable of sustaining an interpretation that would render it compliant with the Constitution and the statutes, otherwise the courts were required to declare it unconstitutional and invalid.
  16. Section 6 of the Fair Administrative Action Act entitled persons affected by any administrative action to be supplied with information necessary to facilitate their application for appeal or review. The information, which had to be supplied in writing within 3 months, could include reasons for the administrative action and any relevant documents relating to the matter. Where an administrator did not give an applicant reasons for an administrative decision, there was a rebuttable presumption that the action was taken without good reason.
  17.  The impugned decision fell within the definition of an administrative action as contemplated under the Fair Administrative Action Act, the decision affected the subscribers and the public generally. The subscribers and the general public were never involved at all in the discussions nor were they supplied with reasons for the decision. In light of the principle of legality which required the 1st Respondent's actions to conform with the law, failure to engage the public and the subscribers and failure to give them a hearing offended the provisions of the Fair Administrative Action Act.
  18. The purpose of the Consumer Protection Act was to promote and advance the social and economic welfare of consumers in Kenya. Consumer rights litigation was not a game of win or lose in which winners had to be identified for reward and losers for punishment and rebuke. It was a process in which litigants and the courts asserted the growing power of the expanded Bill of Rights in Kenya’s transformative and progressive Constitution by establishing its meaning through contested cases.
  19. In peremptory terms, the Constitution imposed an obligation on all courts to promote the spirit, purport and the objects of the Bill of Rights, when interpreting legislation. In line with the dictates of the Constitution, the Court rejected the narrow, literal reading of article 46 of the Constitution and section 3 and 4 the Consumer Protection Act and opted for a construction that promoted wider access to protection of consumer rights. Article 46 (3) of the Constitution provided that the article applied to goods and services offered by the public entities or private persons.  The consumers were never involved in the discussions, hence, they were never provided with information on the device. That was a breach of their constitutional and statutory rights.
  20. Theconsumers’constitutionally guaranteed right to privacy was under threat. The Consumer Protection Act and the regulations recognized the need to protect consumer rights. On the whole, the DMS was introduced in a manner that was inconsistent with the constitutionally and statutory guaranteed rights of the consumers and or subscribers of the 3rd, 4th and 5th Respondents, hence the same violated article 46 of the Constitution and the provisions of the Consumer Protection Act.
  21. Whereas the Court hoisted high article 226 (5) of the Constitution as the basis for holding each individual accounting officer and other public officers directly and personally liable for any loss of public funds under their watch, for such orders to issue, the individual persons  had to be parties to the case. The Petitioner had not sued any of the alleged officers. An order holding each individual accounting officer and other public officers directly and personally liable for any loss of public funds could only issue against specified individuals. The actions, omission or commissions of the individuals giving rise to the claim had to be pleaded and particulars thereof stated with sufficient clarity. The Court had not been told who the public officers involved were, the role each person played, the nature and extent of persons blame and the particulars of breach of the constitutional provisions and the provisions they violated. The orders sought, much as they could have a constitutional underpinning warranted that the individuals be named and the case against each one of them be disclosed with sufficient clarity.  
  22. A court could not issue orders against undisclosed persons. A court could not issue orders, which  would affect persons who were not parties to the case. Such a scenario posed a danger of granting orders affecting other persons without giving them the benefit of a hearing. A person became a necessary party if he was entitled in law to defend the orders sought. The term entitled to defend conferred an inherent right to a person if he or she was affected or was likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem had its own sanctity. A person or an authority had to have a legal right or right in law to defend or assail.
  23.  Kenyan courts had been consistent on the importance of observing the rules of natural justice and in particular hearing a person who was likely to be adversely affected by a decision before the decision was made. No order could be passed behind the back of a person adversely affecting him and such an order if passed, was liable to be ignored being not binding on such a party as the same had been passed in violation of the principles of natural justice. The principles provided that impleadment of a necessary party was mandatory and in case of non-joinder of necessary party, the Petitioner could not be entitled for the relief sought by him. The litigant had to ensure that the necessary party was before the Court otherwise the proceedings would have to fail.  To try and condemn undisclosed persons who were not parties to the Petition was an invitation to violate article 50 of the Constitution and common law principles which were ingrained in Kenya’s jurisprudence and legal system.
  24. No evidence was tendered on the tendering process, how the device was procured, the breaches if any nor was there evidence to enable the Court to make a finding on the issue of whether the Petitioner had made a case for the Court to cancel the tender to the 2nd Respondent.
  25. Courts were reluctant to award costs in constitutional petitions seeking to enforce constitutional rights brought in public interest. Costs had been identified as the single biggest barrier to public interest litigation in many countries, not only did the Applicants incur their own legal fees, they ran the risk of incurring the other side’s costs. For all potential litigants, the risk of exposure to an adverse costs order was a critical consideration in deciding whether to proceed with litigation. In accordance with its wide remedial powers, the Court had repeatedly deviated from the conventional principle that costs follow the result.
  26. In public litigation, a litigant was usually advancing public interest as opposed to personal gain. The primary consideration in constitutional litigation had to be the way in which a costs order would hinder or promote the advancement of constitutional justice. The nature of the issues rather than the characterization of the parties was the starting point. Costs should not be determined on whether the parties were financially well-endowed or indigent. One exception which could justify a departure from the general rule was where the litigation was frivolous or vexatious. That had not been demonstrated in the instant case nor was it alleged.
  27. The Petition was brought in public interest, public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. It was a highly effective weapon in the armoury of law for reaching social justice to the common man. It was a unique phenomenon in the constitutional jurisprudence that had no parallel in the world and had acquired a big significance in the modern legal concerns. There was no suggestion that the Petition was frivolous or vexatious.
  28. The instant case was a proper case for the Court to fashion appropriate reliefs as the justice and circumstances of the case demanded.  The Court was empowered by article 23 (3) of the Constitution to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as the instant case. Appropriate relief would in essence be relief that was required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief could be a declaration of rights, an interdict, a mandamus or such other relief as could be required to ensure that the rights enshrined in the Constitution were protected and enforced. If it was necessary to do so, the Court could even have to fashion new remedies to secure the protection and enforcement of those all important rights. The Courts had a particular responsibility in that regard and were obliged to forge new tools and shape innovative remedies, if need be to achieve that goal.

Petition allowed

  1.  A declaration issued that policy decisions or Regulations affecting the public had to conform to the Constitution and the relevant statute in terms of both its content and the manner in which it was adopted and failure to comply rendered the policy decision, Regulation or guideline invalid.
  2. A declaration issued decreeing that the decision, policy or regulation seeking to implement the DMS System was adopted in a manner inconsistent with the provisions of the Constitution, section 5 (2) of KICA and the Statutory Instruments Act, hence the said decision, policy and or regulation was null and void for all purposes.
  3. Further and or in the alternative a  declaration issued decreeing that the decision, policy and or regulation seeking to implement the DMS System was adopted  in a manner inconsistent with the Constitution, Section 5A (2) of KICA and the Statutory Instruments Act in that there was  no adequate public participation prior to its adoption and implementation with the 1st, 2nd and 3rd Interested Parties and further the subscribers of the 1st, 2nd and 3rd Interested Parties were not engaged at all in the public consultations, hence the same was null and void for all purposes.
  4. A declaration issued decreeing that the 1st Respondent was obligated to craft and implement a meaningful programme of public participation and stakeholder engagement in the process leading to the decision, policy and or regulation or implementation of  the DMS System.
  5. A declaration issued  declaring that the 1st Respondents request and/or purported intention and/or decision and or plan contained in its letter dated  January 31, 2017 addressed to the 1st, 2nd and 3rd Interested Parties seeking to integrate the DMS to the 1st, 2nd and 3rd Interested Parties’ networks to inter alia create connectivity between the DMS and the1st, 2nd and 3rd Interested Parties system to access information on the IMEI, IMSI, MSISDN and CDRs of their subscribers on their network was a threat to the subscribers privacy, hence a breach of the subscribers’ constitutionally guaranteed rights to privacy, therefore unconstitutional null and void.
  6. A declaration issued that the 1st Respondent’s decision to set up connectivity links between the DMS and the 1st, 2nd and 3rd  Interested Parties’ networks communicated in its letter  dated February 6, 2017 was unconstitutional, null and void to the extent that it was arrived at unilaterally, without adequate public participation and that it was a threat to the right to privacy of the 1st, 2nd and 3rd Interested Parties subscribers and a gross violation of their constitutionally and statutory protected consumer rights.
  7. An order of prohibition issued prohibiting the 1st Respondent, its servant or agents from implementing its decision to implement the DMS system to establish connectivity between the DMS and the 1st, 2nd and 3rd Interested Parties’ system to access information on the IMEI, IMSI, MSISDN and CDRs of their subscribers on their network.
  8. No orders as to costs.
Kenya Law
Case Updates Issue 020/2018
Case Summaries

TORT LAW Court Rules that a Party can bring an Action for Defamation if the Published words concerned the Party by Inference

Musikari Kombo vs Royal Media Services Limited
Civil Appeal No 156 of 2017
Court of Appeal at Nairobi
February 9, 2018.
A Visram, W Karanja, M K Koome, JJA
Reported by Ian Kiptoo

Download the Decision

Tort Law-defamation-libel-elements of libel-where the words published did not directly concern the Appellant-whether the words published by the Respondent was defamatory of the Appellant as they did not directly concern the Appellant but his wife
Tort law-defamation-libel-defences-qualified privilege-factors the Court has to consider in allowing the defence of qualified privilege-whether the Respondent was entitled to the defence of qualified privilege on the claim that the broadcasted words were of public interest-Defamation Act, section 7
Tort Law-defamation-libel-defences-apology-where an apology did not receive the same magnitude of coverage-whether the Respondent could rely on the defence of apology even though the said apology did not receive the same magnitude of coverage as the defamatory words

Brief Facts:
The appeal related to the decision of the High Court where the Appellant ’s suit seeking damages for defamation against the Respondent was dismissed. The Respondent’s news programme known as Citizen Nipashe aired a story under the caption ‘Kosgey in the Dock/Kombo’s wife also charged over graft’. Subsequently, at 9:00 p.m. the Respondent repeated the story in its news programme known asCitizen at 9.
The Petitioner stated that the foregoing was defamatory and lowered him in the estimation of right thinking members of society and as a result, the Appellant demanded a retraction and an apology from the Respondent. When none was forthcoming, he filed suit seeking inter alia an unconditional apology and general damages from the Respondent.
On the other hand, the Respondent denied publishing the alleged defamatory words. It maintained that even if the words complained of were broadcasted, they were not capable of bearing the meaning alluded to by the Appellant. In the alternative, the Respondent averred that if the words were broadcasted about the Appellant it was done in good faith and in public interest thus raised the defence of qualified privilege.

Issue:

  1. Whether the words ‘Kombo’s wife also charged over graft’ published by the Respondent were defamatory of the Appellant as they did the not directly concern Appellant but his wife.
  2. Whether the Respondent was entitled to the defence of qualified privilege on the claim that the broadcasted words were of public interest.
  3. Whether the Respondent could rely on the defence of apology even though the said apology did not receive the same magnitude of coverage as the defamatory words.Read More...

Held:

  1. The Respondent had not admitted the Appellant’s claim. It was crystal clear from its statement of defence that the Respondent denied the allegations of defamation. In the alternative, it pleaded that if indeed the offending words were aired concerning the Appellant it was not in bad faith. That could not amount to an admission which would have justified the entry of judgment on liability without the benefit of evidence being adduced.
  2. The law of defamation was concerned with the protection of a person’s reputation. It followed that a claimant in a defamation suit ought to have principally established in no particular order:
    1. The existence of a defamatory statement;
    2. The Defendant had published or caused the publication of the defamatory statement;
    3. The publication referred to the Claimant.
    It was not in dispute that the broadcasts in question were aired by the Respondent as pleaded. What was in issue was whether the offending words in those broadcasts were concerning the Appellant. The general rule as to who could sue in a claim for defamation was that it was the person against who the defamatory words had been published.
  3. The offending words referred to the Appellant’s wife who filed a separate claim and succeeded. However the Court found that the broadcasts were also concerning the Appellant to a certain extent. That was because his name and his status were clearly mentioned in both broadcasts.
  4. The Respondent’s witness was categorical that the use of the Appellant’s name was to sensationalize the story and attract a wide audience. The Appellant’s cause of action was not based purely on his relationship to his wife. The Appellant was entitled to file suit on his own right because the broadcasts referred to him and more importantly the woman named was not his wife.
  5. The test for whether a statement was defamatory was an objective one. It was not dependent on the intention of the publisher but on what a reasonable person reading the statement would have perceived. Looking at the broadcasts in question, the ordinary meaning of the words uttered was that the Appellant was polygamous and his wife was involved in corruption. The Appellant tendered uncontroverted evidence of how that story affected him and his family who had received inquiries on the issue far and wide. In light of the foregoing coupled with the Appellant’s political standing, the defamatory nature of the broadcasts was quite clear.
  6. The essence of the defence of qualified privilege was an attempt to balance two competing but vital interests in society; the individual’s right to have their character and reputation protected and safeguarded from false, unwarranted and malicious or scurrilous attacks on the one hand, and the public’s right to know as exercised and fed by freedom of expression, which was an indispensable feature of a free and democratic society as well as a major tool for public accountability. The defence was entrenched under section 7 of the Defamation Act.
  7. The issue of corruption involving public figures was a public interest issue. However, it was not in the public interest for the Respondent to set out the offending description which associated the Appellant with the story and the woman named. Besides, the Respondents’ witness in her evidence stated that she did not verify whether the accused woman was the Appellant’s wife. She simply stated that she drew an inference from the Court orderlies’ utterances that she was the Appellant’s wife.
  8. There was no basis for such an inference since she also testified that the said orderlies did not mention the name of the mheshimiwa they alluded to. The reporter having not confined herself to what transpired in the Court room could not justifiably claim that she lacked malice. Additionally, it was the Appellant’s uncontroverted evidence that after the first broadcast he called the Respondent and registered his grievance. It was not clear why the Respondent ran the story again at 9:00 p.m. without verifying the complaint. All of those opened the Respondent up to the imputation of malice against the Appellant; hence the defence of qualified privilege was not applicable.
  9. Ultimately it was the Respondent’s contention that it had issued an apology the following day at 7:00 a.m. in its programme known as the Breakfast Show. It was clear that the said apology did not receive the same magnitude of coverage as the offending broadcasts which were aired at prime time. Both the Appellant’s witnesses as well as the Respondent’s own witness acknowledged that not many people watched that early morning programme. Consequently, the apology was not adequate in the circumstances.
  10. The High Court erred in finding that the Appellant had no cause of action. Accordingly, the impugned judgment was set aside and the Court found that the Appellant had established his claim on defamation as against the Respondent.

Appeal allowed
Orders

  1. As to the quantum of damages, there was no reason to interfere with the High Court’s assessment of the sum of Kshs 6,000,000. The Court confirmed that award of damages in favour of the Appellant bieng general damages of Kshs 5,000,000 and aggravated damages Kshs 1,000,000.
  2. Costs to the Appellant. In addition, the Appellant would also have costs of the High Court suit.
CONSTITUTIONAL LAW Disciplining a Child Through Expulsion for Possession of Bhang is in the Best Interest of a Child

M N M vs Naisula Holdings Limited T/A N School
Constitutional Petition No 198 of 2017
High Court at Nairobi
March 7, 2018
J M Mativo, J
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-fundamental rights and freedoms-right to fair administrative action-claim that the process of expulsion was not fair and was discriminatory-whether the Respondent, during the disciplinary proceedings against the Petitioner, acted in a manner that violated article 47 on fair administrative action and article 50 on right to fair trial-Constitution of Kenya, 2010, article 47 and 50
Constitutional Law-fundamental rights and freedoms-right to information-claim that reasons were not given for expulsion-whether the disciplinary process up to the expulsion of the Petitioner violated the Petitioners’ right to information-Constitution of Kenya, 2010, article 35; Fair Administrative Action Act, section 6
Constitutional Law-fundamental rights and freedoms-children rights-the right of schools to impose appropriate and reasonable disciplinary measures vis-a-vis the best interests of a child-where a minor was expelled from school-whether the Respondents, through expulsion of the Petitioner, had violated the Petitioners’ right under article 53 of the Constitution by not taking the best interests of a child into consideration-Constitution of Kenya, article 53
Contract Law-contract-construction and interpretation-jurisdiction of a court to alter/rewrite a contract-whether a court could alter/rewrite contracts voluntarily entered into between parties

Brief facts:
The Petitioner, a minor, who was expelled from school for possession of bhang brought the Petition through his next of friend M N M against the Respondent contesting that the expulsion offended articles 47 and 50 of the Constitution of Kenya, 2010 (Constitution) and breach of fair trial rights and contended that the minor was deceived to admit the allegations upon being promised a favourable decision.
In addition, the Petitioner also cited breach of article 27 of the Constitution arguing that other students in similar circumstances were treated differently. Furthermore, the Petitioner stated that the minor was not provided with written reasons prior to the expulsion which was a breach of rights under article 35 of the Constitution.
On the other hand, the Respondents contended that the expulsion letter giving reasons for the expulsion was given to his mother and prior to the expulsion, the minor was accorded an opportunity to be heard. In addition, it was contended that the minor and his mother visited the school seeking to appeal against the expulsion and/or have the decision reviewed. It was stated that the minor admitted that he brought the bhang to the school. Upon re-evaluating the case, and in the interests of the other students, the school upheld the expulsion.

Issues:

  1. Whether the Respondent, during the disciplinary proceedings against the Petitioner, acted in a manner that violated article 47 on fair administrative action and article 50 on right to fair trial of the Constitution.
  2. Whether the disciplinary process up to the expulsion of the Petitioner violated the Petitioners’ right to information.
  3. Whether the Respondents, through expulsion of the Petitioner, had violated the Petitioners’ right under article 53 of the Constitution by not taking the best interests of a child into consideration.
  4. Whether a court could alter/rewrite contracts voluntarily entered into between parties.Read More..

Held:

  1. The right to a fair administrative action under article 47 of the Constitution of Kenya, 2010 (Constitution) was a distinct right from the right to a fair hearing under article 50(1) of the Constitution. Fair administrative action broadly referred to administrative justice in public administration and was concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional and statutory duties guided by constitutional principles and policy considerations.
  2. The right to a fair administrative action, though a fundamental right was contextual and flexible in its application and could be limited by law. Fair hearing under article 50(1) of the Constitution applied in proceedings before a court of law or independent and impartial tribunals or bodies. Article 47 of the Constitution codified every person's right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair and the right to be given reasons to any person who had been or was likely to be adversely affected by an administrative action.
  3. Administrative, statutory bodies, schools or academic institutions were created for a variety of reasons to meet a variety of needs and in some instances; some functions were a necessary element to fulfilling their mandate. For example, it was a function of the school authorities to ensure discipline was maintained in the school and also to instill discipline to the students. Provided that the decision-maker was not acting outside its authority such functions might have stood court scrutiny.
  4. The implicated students were interviewed separately. The evidence gathered implicated the minor. It was not disputed that the school rules provide for expulsion for possession of bhang in the School. There was nothing to show that the minor was not given the opportunity to explain his case. The school was persuaded that the evidence against the minor was credible.
  5. The nature and circumstances of the decision fell into the category of areas which were not disturbed by the Courts unless the decision under challenge was constitutionally fragile and unsustainable. If the decision was legal and lawful, the reasonableness and propriety of the same might have not been questioned by the Courts. In other words, among the wednesbury principles of illegality, irrationality and impropriety, if the decision could get over the first test, it might have withstood the other two tests, unless it was shockingly unreasonable, perverse or improper.
  6. The test of reasonableness was not applied in a vacuum but in the context of life’s realities. The Court ought to have been extremely reluctant to substitute its own views as to what was wise, prudent and proper in relation to those formulated by educational institutions or professional bodies possessing the expertise and experience of actual day to day working of their institutions. At stake was the discipline, well-being and future of the minor and other students in the school.
  7. It would be wholly wrong for the Court to make a pedantic and purely idealistic approach to a problem of that nature, isolated from the actual realities and grass root problems involved in managing discipline in schools and unmindful of the consequences which would emanate if cases of indiscipline were to be allowed to be tolerated in school.
  8. The term best interests broadly described the well-being of a child and the disciplinary action taken ought to have been viewed in that regard. Such well-being was determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences, behaviour in school and attitude towards other children. Also relevant was the gravity of the accusation facing the child. The child was entitled to protection, equally true was that the other pupils at the school were also entitled to protection. Therefore, it was a question of maintaining the essential balance taking into account the interests and well-being of the child on one hand and well-being of the other pupils at the school on the other hand.
  9. The Court had to engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list, without losing sight of the ultimate values to be protected, that was the value of instilling discipline in children. Best interests could have in appropriate circumstances included disciplining children.
  10. Limitations on constitutional rights could pass constitutional muster only if the Court concluded that, considering the nature and importance of the right and the extent to which it was limited, such limitation was justified in relation to the purpose, importance and effect of the provision which resulted in the limitation, taking into account the availability of less restrictive means to achieve the purpose. Expulsion under the instant circumstances was justifiable and proportionate to the offence.
  11. Close attention to the facts of each individual case was required in order to decide on what was required to meet the need for vindication of the constitutional right which was at stake. The Respondent was vested with powers to ensure discipline was maintained in the school. The school had an obligation to ensure the school code of conduct was adhered to.
  12. The decision in question could only be challenged on grounds of illegality, irrationality and procedural impropriety. A close look at the material presented before the Court did not demonstrate any of the above. The decision had not been shown to be illegal or ultra vires and outside the functions of the Respondent.
  13. Section 7(2) of the Fair Administrative Action Act provided for grounds of review which included bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power. None had been proved in the case. What constituted fair procedure would depend on the nature of the administrative action and circumstances of the particular case. The circumstances of the case were clear, all the implicated students were interrogated and granted the opportunity to respond to the allegations and the decision made was communicated promptly.
  14. The authority of schools and their administrators to impose sanctions, including expulsion, as disciplinary action against erring students was consistent with their duty and statutory mandate to teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline of the students.
  15. Schools and school administrators had the authority and responsibility to maintain school discipline and the right to impose appropriate and reasonable disciplinary measures. On the other hand, students had the duty and the responsibility to promote and maintain discipline and tranquility of the school by observing the rules of discipline. Therefore, the minors' rights under articles 50 (1), 47, and 53 of the Constitution were not violated in the circumstances of the case
  16. Section 6 of the Fair Administrative Action Act entitled request for reasons for administrative action provided that every person materially or adversely affected by any administrative action had a right to be supplied with such information as might have been necessary to facilitate his or her application for an appeal or review in accordance with section 5. In addition, sub-section 2 of section 6 of the Fair Administrative Action Act provided that the information referred to in subsection (1), might have included-the reasons for which the action was taken, and any relevant documents relating to the matter.
  17. Though the short title to section 6 was entitled request for reasons for administrative action, the subject of the section was really access to information on administrative action. To that end, the section entitled persons affected by any administrative action to be supplied with information necessary to facilitate their application for appeal or review. The information, which had to be supplied in writing within three months, might have included reasons for the administrative action and any relevant documents relating to the matter. Where an administrator did not give an applicant reasons for an administrative decision, there was a rebuttable presumption that the action was taken without good reason.
  18. The Act provided that an administrator would have been permitted to depart from the requirement to furnish adequate reasons if such departure was reasonable and justifiable in the circumstances. The administrator had to inform the person of such departure. The implication of the provision was that the section allowed a limitation of the right to information under article 35 and the right to fair administrative action under article 47 of the Constitution.
  19. The Petitioner was given the letter of expulsion which stated the reasons for the decision. Furthermore, there was uncontroverted evidence that the minor in the company of the mother visited the school after the expulsion seeking to persuade the school to reverse the decision. It was during that visit that the minor handed in a written document admitting the offence. The foregoing left no doubt that the minor was supplied with the reasons for the decision. No evidence was tendered to establish violation of section 6 of the Fair Administrative Action Act or article 35 of the Constitution.
  20. It was not disputed that there existed a binding contract signed by the school, the minor and the parent. The terms were clear, the fees paid was not refundable upon expulsion as in the case. A court of law could not purport to re-write a contract voluntarily executed by parties. Furthermore, it could not be denied that the relationship between the parties in the case was governed by the contract in question. The Petitioner was inviting the Court to re-write the contract in question. In exercise of jurisdiction under the Constitution, the Court could not re-write binding contracts voluntarily entered into between parties by converting the unutilised portion of the fees into a debt due and payable by the Respondent. Therefore, there was a bona fide defence raised by the Respondent which had not been rebutted.
  21. The Courts did not make contracts for the contracting parties. It was a matter purely between them sese ipse. The position was informed by the concept of freedom of contract. Contracts are voluntary undertakings and contracting parties are free to specify the terms and conditions of their agreement, and that when parties do contract, the Court does not have the right nor ability to substitute its judgment for that of the parties. When a contract was clear and ambiguous, a court’s role was to apply the parties’ contract as written and not rewrite the contract. Thus, the plea for the refund of Kshs 305,500/= was misguided and had no basis in law.
  22. Limitations on constitutional rights could have passed constitutional muster if the Court concluded that, considering the nature and importance of the right and the extent to which it was limited, such limitation was justified in relation to the purpose, importance and effect of the provision which resulted in the limitation, taking into account the availability of less restrictive means to achieve the purpose. No contravention of constitutional rights had been proved at all. The evidence tendered on behalf of the Petitioner did not demonstrate the alleged violations.

Petition dismissed; no order as to costs

CRIMINAL LAW The Definition of Penetration under Section 2 of The Sexual Offences Act is Gender Neutral

Naomi Bonareri Angasa Vs. Republic
Criminal Appeal No. 95 Of 2017
High Court at Kiambu
February 21, 2018
D.S. Majanja, J
Reported by Robai Nasike & Safiya Awil
Download the Decision

Criminal Law- sexual offences-defilement-what amounted to penetration- Whether the act of “penetration” envisioned under Section 8 of the Sexual Offences Act was gender neutral- Sexual Offences Act section 2
Criminal Procedure – sexual offences– defilement- key ingredient in proving defilement-Whether the prosecution established a case of defilement- Sexual Offences Act section 8
Evidence Law- documentary evidence- admissibility of documentary evidence- basis for the admission a document- Whether failure to lay basis for production of a medical form by a person other than the maker resulted to the evidence being inadmissible- Evidence Act (cap 80) section 77
Criminal Law- Judgments- structure of a judgment- duty to state the offence and the reasons for a decision- Whether the trial court failed to comply with the requirements under section 169 of the Criminal Procedure Code which encapsulated the duty to give reasons for a decision- Criminal Procedure Code, Section 169 of the Criminal Procedure Code.

Brief facts:
The Appellant was charged with defilement of a 7 year old boy contrary to section 8(1) and (2) of the Sexual Offences Act. She also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act and a third charge of deliberate transmission of a life threatening transmitted disease contrary to section 26(1) (c) of the Sexual Offences Act.
The Appellant was convicted for the offence of defilement and sentenced to life imprisonment she appealed against the conviction and sentence.

Issues:

  1. Whether the act of “penetration” envisioned under Section 8 of the Sexual Offences Act was gender neutral?
  2. Whether the prosecution established a case of defilement by proving the act of the accused amounted to penetration?
  3. Whether failure to lay basis for production of a medical form by a person other than the maker resulted to the evidence being inadmissible
  4. Whether the trial court failed to comply with the requirements under section 169 of the Criminal Procedure Code which encapsulated the duty to give reasons for a decision? Read More...

Relevant Provisions of the law:
Sexual Offences Act No. 3 Of 2006
Section 2 Interpretation
1. “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

Section 8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

Section 11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

Section 26(1) (c) Deliberate transmission of HIV or any other life threatening sexually transmitted disease
1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and wilfully does anything or permits the doing of anything which he or she knows or ought to reasonably know—

a) will infect another person with HIV or any other life threatening sexually transmitted disease;
b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;
c) Will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life.

Criminal procedure Code
169. Contents of judgment
(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty

Held:

  1. For defilement to be proved, the prosecution had to show that the accused did an act that amounted to penetration of a child. The Appellant argued that it was not possible for a boy aged 7 years to cause an act of penetration or to penetrate a vagina with his penis. Penetration under section 2 of the Sexual Offences Act meant the partial or complete insertion of the genital organs of a person into the genital organs of another person, that Section was gender neutral because it did not require a voluntary sexual act on the part of both parties. From the case it was clear from the complainant statement that it was the appellant who did the act that caused insertion in her private parts.
  2. The testimony of the child did not require corroboration under the proviso section 124 of the Evidence Act. It was complete and supported a conviction. The Court was entitled to look at the record, the veracity and consistency of the testimony both in examination in chief and in cross-examination and the surrounding circumstances in order to be satisfied that the child was telling the truth. In that case the trial magistrate held that the child was intelligent, gave consistent evidence and had no reason to frame the Appellant.
  3. The admissibility of the medical report depended on whether it was produced by the maker thereof or under section 77 of the Evidence Act. The doctor who examined PW 1 and prepared the P3 form was not called. The prosecution did not lay any basis for the admission of the document. PW 4 did not vouch for his qualification or even confirm that he was familiar with his handwriting and signature. He only stated that the doctor who prepared the report had left public service. The medical evidence was therefore inadmissible
  4. The trial magistrate failed to comply with the requirements of section 169 of the Criminal Procedure Code. She did not state or specify the counts on which the appellant was found guilty and convicted yet he faced two principal counts and an alternative charge. That provision encapsulated an important principal in the delivery of justice which was the duty to give reasons for a decision. Such a duty was not merely statutory but constitutional. Apart from the appellants being denied an opportunity to know why they were convicted, it was difficult for the appellate to determine whether the trial magistrate erred and if so, how the trial magistrate failed to comply with section 169(2) of the Criminal Procedure Code. However, that did not prejudice the appellant.
  5. The Appellant molested the Complainant since the trial magistrate did not have the benefit of assessing the demeanour of PW 1 and PW 2 and taking into account that the medical evidence was inadmissible, the appellant was given the benefit of doubt. What was clear from the testimony of PW 1 was that the appellant touched his penis not once but several times.
  6. The Applicant was acquitted on the indecent act with a child. The second count of transmitting a threatening disease was not proved and the Applicant was therefore acquitted. The mandatory minimum sentence for the offence of committing an indecent act under section 11(1) of the Sexual Offences Act was 10 years’ imprisonment hence she was sentenced accordingly.

Appeal partly allowed. Conviction quashed on the charge of defilement and vacated to a sentence of 10 years on the charge of indecent assault.

ADVOCATES The Constitutionality of the Statutory Requirements That Determine the Eligibility of a Person to Vie for the Position of President of the Law Society of Kenya

Nelson Havi Andayi V. Law Society of Kenya and 3 Others
Petition No 607 of 2017
High Court at Nairobi
J. Mativo, J
February 5, 2018
Reported by Safiya Awil and Robai Nasike Sivikhe
Download the Decision

Advocates- the Law Society of Kenya- election processes within the Law Society of Kenya-eligibility of election as member of the Council - statutory and constitutional provisions regarding eligibility of a person for nomination to vie for President of the Law Society of Kenya- whether the Petitioner had attained the requisite number of years in practice hence was eligible to vie for the position of President of the Law Society of Kenya- whether the pupilage period could be considered in computing the number of years that one had been in legal practice- whether the Petitioner could be considered a member or former member of the Council as per section 18 (1) (a) of the Law Society of Kenya Act- whether the Petitioner had attained the requisite statutory and constitutional requirements to qualify for nomination to vie for president of the Law Society of Kenya- Law Society of Kenya Act, section 18 (1)
Advocates- the Law Society of Kenya- membership rights- the members’ right to vote- members who could be considered eligible to vote-whether an advocate who had been admitted to the bar and had obtained a practicing certificate after the election process had begun, possessed voting rights
Statutes- interpretation of statutes- interpretation of section12 (e) & (f) and 18 (1) (a) and (b) of the Law Society of Kenya Act- distinction between provisions ofsections 12 (e) & (f) from provisions of section 18 (1) (a) and (b) of the Law Society of Kenya Act-whether the provisions under section 18 (1) (a) and (b) on eligibility of a council member was inconsistent with provisions of section 12 (e) and (f) that on members the right to vote- Law Society of Kenya Act, sections 12 (e) & (f) and 18 (1) (a) & (b)
Constitutional Law – fundamental rights and freedom- limitation of fundamental rights and freedoms viz-a-viz equality and freedom from discrimination – whether provisions on eligibility to vie as a council member contained limitations that were reasonable and justifiable- whether provisions on eligibility to vie as a council member was discriminatory hence offended article 27 of the Constitution- Constitution of Kenya, 2010 articles 24 & 27
Constitutional law- fundamental rights and freedoms- the right to a fair hearing and fair administrative action- requirement to hear a person vying for an elective post during scrutiny and verification of nomination papers to confirm compliance-whether the Petitioner had the right to a hearing before rejection of his nomination papers during scrutiny and verification of the nomination papers to confirm compliance- Constitution of Kenya, 2010, article 47 & 50
Constitutional Law – public participation- public participation during the legislative process- whether every amendment introduced to a bill was subject to public participation- whether the process of enactment of the Law Society of Kenya Act involved consultation and public participation
Precedent – the binding or persuasive nature of judicial decisions -applicability of precedent - factors the Court should consider when adopting judicial precedents-whether the broad resemblance of one case to another would determine the precedential value of that decision to a case in issue- whether foreign case law could provide a safe guide for interpretation of the Constitution of Kenya

Brief Facts:
The Petitioner was an advocate of the High Court of Kenya and a Member of the Law Society of Kenya (the 1st Respondent), a body corporate established under section 3 of the Law Society of Kenya Act (the Act). The Petitioner was admitted to the bar on June 12, 2003 and his first practicing certificate was issued on June 19, 2003.At the time of his admission, the applicable law governing the election of the Chairman and Vice Chairman of the first Respondent was section 18 of the Law Society Act (Repealed). Currently, the applicable law was the Law Society of Kenya Act (the Act) which came into force on January 14, 2015.
The Petitioner averred that section 41 of the Act required the 1st Respondent's Council, acting upon approval by a resolution of Members of the 1st Respondent, to make Regulations for inter alia the manner of election, removal and replacement of the President, the vice-president and the other members of the Council, and representatives of the Society in the Disciplinary Committee. According to the Petitioner, there was no justification why the regulations had never been submitted for approval by members 3 years after the Act had come into force and 2 years after the High Court decision requiring the urgent enactment of the regulations and the Members Resolution of March 11, 2017.
The Petitioner had presented his nomination papers to vie for Presidency of the Society. However, his nomination was not accepted on grounds that he had not attained fifteen years in practice. The Petitioner maintained that he was qualified to run for the office of the President of the 1st Respondent by dint of section 18 (1) (a) and (b) of the Act, having been admitted to the bar on June 12, 2003 and been issued with a practicing certificate for year 2003. He averred that section 24 of the Advocates Act defined a practice year as running from January 1st to December 31st; hence, he had attained 15 years in practice.
Alternatively, the Petitioner averred that under Section 12 of the Act, a member was entitled to vote and to vie for any office. That the minimum 15 years to contest as chairman and 2 years for council member restricted over 60% of the members from vying for offices of president, vice president and council members.
The Petitioner challenged the refusal of his nomination papers based on section 18 (1) (a) and (b) of the Act and article 166 (3) (b) of the Constitution on grounds that it was unlawful, irrational, unjustifiable; that he was not afforded the right to be heard; and that the challenged provisions contravened articles 24, 25 and 27 of the Constitution.

Issues:

  1. Whether the broad resemblance of one case to another would determine the precedential value of that decision to a case in issue
  2. Whether foreign case law could provide a safe guide for interpretation of the Constitution of Kenya
  3. What considerations ought to be made during interpretation of the Constitution
  4. What was the duty of the court in interpretation of statutes where the language of a provision was plain and unambiguous
  5. Whether the Petitioner had attained the requisite number of years in practice hence was eligible to vie for the position of President of the Law Society of Kenya
  6. Whether the pupilage period could be considered in computing the number of years that one had been in legal practice
  7. Whether the Petitioner could be considered a member or former member of the Council as per section 18 (1) (a) of the Law Society of Kenya Act.
  8. Whether the Petitioner had attained the requisite statutory and constitutional requirements to qualify for nomination to vie for president of the Law Society of Kenya.
  9. Whether the provisions under section 18 (1) (a) and (b) on eligibility of a council member was inconsistent with provisions of section 12 (e) and (f) that on members the right to vote.
  10. Whether provisions on eligibility to vie as a council member contained limitations that were reasonable and justifiable
  11. Whether provisions on eligibility to vie as a council member was discriminatory hence offended article 27 of the Constitution
  12. Whether an advocate who had been admitted to the bar and had obtained a practicing certificate after the election process had begun possessed voting rights
  13. Whether the Petitioner had the right to a hearing before rejection of his nomination papers during scrutiny and verification of the nomination papers to confirm compliance
  14. Whether every amendment introduced to a bill was subject to public participation Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 24 (1)
24. Limitation of rights and fundamental freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

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

Article 27 (1)
27. Equality and freedom from discrimination
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

Article 47
47. Fair administrative action
(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.

Article 50 (1)
50. Fair hearing
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Law Society of Kenya Act, No 21 of 2014
Section 12
12. Membership rights
The members of the Society shall have the following rights—
(a) a paid up member with a practicing certificate shall have all rights of a member;
(b) a non-practicing member shall have all the rights except that such member shall have no right to practice or vote or vie for office in any election or matter;
(c) a honorary member have all rights of a member but shall have no right to practice or vote or vie for office in any election or matter;
(d) a special member shall have the right to—

(i) vote at any election of the Society or on any matter of the Society;
(ii) vie for any office of the Society;
(iii) be nominated by the Society to any Constitutional or statutory body.

Section 18 (1) (a) & (b)
18. Eligibility of election as member of the Council
(1) A person is eligible for election as the president or vice-president if the person—

(a) is a member or former member of the Council: or
(b) is qualified to be a Judge of the Supreme Court.

(2) A person is eligible for election as a member of the Council if the person—

(a) is a member of the Society;
(b) has been practise for at least two years, from the date of admission;
(c)has not been found liable for professional misconduct by the Disciplinary Committee established by the Advocates Act (Cap.16), in the three years immediately preceding the election; and
(d) meets the requirements of Chapter Six of the Constitution.

Held:

  1. A case is only an authority for what it actually decides, and not what logically follows from it. The ratio of any decision must be understood in the background of the facts of the particular case. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
  2. Each case depended on its own facts and a close similarity between one case and another was not enough because even a single significant detail could alter the entire aspect. In deciding cases, one had to avoid the temptation to decide cases by matching the colour of one case against the colour of another. Therefore, to decide on which side of the line a case fell, the broad resemblance to another case was not at all decisive. Precedent had to be followed only so far as it marked the path of justice, but one had to cut the dead wood and trim off the side branches else you would find yourself lost in thickets and branches. The path of justice has to be kept clear of obstructions which could impede it.
  3. Foreign decisions were cited by counsels in support of their cases. The Court also considered foreign decisions in its determination. Foreign jurisprudence was of value because it showed how courts in other jurisdictions had dealt with the issues that confronted the Kenyan Courts in that matter. However, foreign case law would not always provide a safe guide for the interpretation of the Constitution of Kenya. Except the Republic of South Africa, most decisions cited were from countries whose constitutions are not similar to Kenya’s.
  4. When developing the Kenyan jurisprudence in matters that involve constitutional rights, particular caution had to be exercised when referring to foreign jurisprudence and the common law developed in a manner that promoted the values and principles enshrined in the Constitution.
  5. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, statutory instrument, or contract , having regard to the context provided by reading the particular provision or provisions in light of the document as a whole and the circumstances attendant upon its coming into existence. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
  6. Article 259 of the Constitution introduced a new approach to the interpretation of the Constitution. It obliged Courts to promote the spirit, purport, values and principles of the Constitution, advance the rule of law, human rights and fundamental freedoms in the Bill of Rights and contributed to good governance. That approach has been described as a mandatory constitutional canon of statutory and constitutional interpretation. The duty to adopt an interpretation that conformed to article 259 was mandatory.
  7. The Constitution of a nation is not to be interpreted like an ordinary statute. The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion. In keeping with the requirement to allow the constitutional spirit and tenor to permeate, the Constitution must not be interpreted in a narrow, mechanistic, rigid and artificial manner. Constitutional provisions are to be broadly, liberally and purposively interpreted so as to avoid what has been described as the austerity of tabulated legalism. In situations where the generous and purposive interpretations do not coincide, it may be necessary for the generous to yield to the purposive. In interpreting constitutional rights, close scrutiny should be given to the language of the Constitution itself in ascertaining the underlying meaning and purpose of the provision in question.
  8. The Law Society of Kenya Act, 2014 was umbilically linked to the Constitution; hence, during its interpretation, the spirit, purport and objects of the Constitution had to be promoted. In searching for the purpose, it was legitimate to seek to identify the mischief sought to be remedied by the statutory provisions in question. The provision had to be understood within the context of the grid, if any, of related provisions and of the Constitution as a whole, including its underlying values. Although the text was often the starting point of any statutory construction, the meaning it bore had to pay due regard to context.
  9. In construing the provisions, there was an obligation not only to avoid an interpretation that clashed with the constitutional values, purposes and principles but also to seek a meaning of the provisions that promoted constitutional purposes, values, principles, and which advanced rule of law, human rights and fundamental freedoms in the Bill of Rights and also an interpretation that permitted development of the law and contributed to good governance. There was also an obligation to be guided by the provisions of article 159 (e) of the Constitution.
  10. It was an elementary rule of constitutional construction that no one provision of the constitution was to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject were to be brought into view and be interpreted as to effectuate the greater purpose of the instrument. If any statutory provision, read in its context, could reasonably be construed to have more than one meaning, the court had to prefer the meaning that best promoted the spirit and purposes of the Constitution and the values stipulated in article 259.
  11. Courts had on numerous occasions been called upon to bridge the gap between what the law was and what it was intended to be. The courts could not in such circumstances shirk from their duty and refuse to fill the gap. In performing that duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what was expected of them. The courts would, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute, a document or an action of an individual which was certain to subvert the societal goals and endanger the public good.
  12. There were numerous rules of interpreting a statute, but without demeaning the others, the most important rule was the rule dealing with the statutes plain language. The starting point of interpreting a statute was the language itself. In the absence of an expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.
  13. It was not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision was plain and unambiguous. The Court could not rewrite, recast or reframe the legislation because it had no power to legislate. The Court could not add words to a statute or read words into it which were not there. Courts decided what the law was and not what it should be. The court of course adopted a construction which would carry out the obvious intention of the legislature but could not legislate itself.
  14. The language of the text of the statute had to serve as the starting point for any inquiry into its meaning. Courts generally assumed that the words of a statute meant what an ordinary or reasonable person would understand them to mean. If the words of a statute were clear and unambiguous, the court need not inquire any further into the meaning of the statute. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
  15. A decision is only an authority for what it decides. Willis Evans Otieno vs Law Society of Kenya and 2 Others (2011) eKLR defined a practice year as provided under section 24 (3) of the Advocates Act. It had not addressed itself to section 24 (1). The interpretation of section 24 (3) could not be imposed on section 24 (1) which defined the effective date of a practicing certificate.
  16. Section 18 (1) of the Act provided that a person was eligible for election as the president or vice-president if the person was a member or former member of the Council or was qualified to be Judge of the Supreme Court. The Petitioner was not a member or a former Member of the Council. Hence, section 18 (1) (a) was not applicable to him.
  17. The Petitioner was admitted to the bar on June 12, 2003. His first practicing certificate was issued on June 19, 2003. Section 9 of the Advocates Act prescribed that a person should have been admitted as an advocate, his name had to be on the Roll and had to have in force a practicing certificate. That section warranted no elaboration. Prior to June 12, 2003, the Petitioner had not been admitted, his name was not on the Roll and he did not have in force a Practicing Certificate. A computation of the 15 years that included or purported to include the period when the Petitioner did not possess the requisite qualifications was out rightly erroneous.
  18. Section 22 (2) of the Advocates Act provided that the Registrar had to be satisfied that the applicants name was in the Roll before issuing a practicing certificate. Under Section 23, a person became a Member upon being issued with a practicing certificate. Thus, the Petitioner became a Member on June 19, 2003. In computing the fifteen years, the period he was not a Member could not be included nor could he be said to have been in practice prior to becoming a Member of the Society.
  19. From the provisions of section 24 (2) the Petitioner’s certificate for all purposes could only be said to have had effect from the beginning of June 2003, and not before. Hence, the Petitioners practicing certificate issued on June 19, 2003 was effective from the beginning of June 2003 and could not be said to have been effective from January 1, 2003. The Petitioners fifteen years in legal practice had to be computed from the effective date of his first practicing certificate. The Petitioner would have attained 15 years of experience in legal practice on June 19, 2018. Hence, as at the time his nomination papers were rejected he had not attained the fifteen years of experience in legal practice.
  20. Citing a dictionary meaning of legal practitioner, the Petitioner argued that pupilage had to be factored in the computation of time stating that a pupil engaged in matters touching on legal practice; hence was a legal practitioner for the purposes of the requirements under article 166 (3) (b). That argument flew on the face of the clear provisions of the law. A pupil could not appear in court. He could not competently draw and file pleadings in court or execute conveyance instruments. His name was not in the Roll of Advocates.
  21. Provisions had to be construed purposively and in a contextual manner. Courts were constrained by the language used. Courts could not impose a meaning that the text was not reasonably capable of bearing. The interpretation should not be unduly strained but should avoid excessive peering at the language to be interpreted. The interpretation propounded by the Petitioner on computation of time was not supported by the language in the provisions or the authorities cited. Stretching the date to January 2003, to cover the period prior to admission and prior to issuance of practicing certificate not only flew on the fact of section 24 (1) but also amounted to unduly straining the language of the provision.
  22. The statutory definition of effective date of a practicing certificate in section 24 (1) would prevail. There was nothing to show that the legislature intended otherwise. Where the language of the provision was clear as in section 24 (1) of the Advocates Act, judicial inquiry was complete. The interpretation propounded by the Petitioner inviting the court to compute time to run from a period he was not in practice, prior to his admission, if upheld by the Court, could lead to absurdity. A court could not uphold a construction that would lead to an absurdity, or unworkable or impracticable result, or anomalous or illogical result, or an artificial result. The law should serve public interest.
  23. When the constitutionality of legislation or a provision in a statute or conduct of any person was challenged, a court ought first to determine whether, through the application of all legitimate interpretive aids, the impugned legislation or provision or conduct was capable of being read in a manner that was constitutionally compliant. The court as an independent arbiter of the Constitution had fidelity to the Constitution and had to be guided by the letter and spirit of the Constitution. In interpreting the constitution, the court had to give life to the intention of the document instead of stifling it.
  24. The rule of law was a founding value of Kenya’s constitutional democracy. It was the duty of the courts to insist that the state, individuals or statutory bodies in all their dealings, operate within the confines of the law. The supremacy of the Constitution and the guarantees in the Bill of Rights added depth and content to the rule of law. When upholding the rule of law, Courts were required not only to have regard to the strict terms of regulatory provisions but also to the values underlying the Bill of Rights.
  25. A court should be slow to declare a law prescribing qualifications to lead a professional body especially when the qualifications were grounded on the law and were consistent with the constitutional values. Article 166 (3) of the Constitution prescribed the qualifications for Supreme Court Judges. By adopting the said qualifications, the intention of the drafter was to ensure that the President of the Law Society was elected from the most suitable, experienced and qualified person. The intention of Parliament was also clear from the contribution made on the floor of the house as evidenced by the Parliamentary debates annexed to the Petitioners supplementary Affidavit that a person desiring to serve as president of the Law Society had to have the qualifications of a Supreme Court Judge.
  26. Section 12 (e) and (f) of the Act conferred the rights to vote or contest while section 18 (1) (a) & (b) stipulated the qualifications to vie. There was no inconsistency at all in the two provisions. A provision that prescribed qualifications to view as in the present case could not be deemed to be taking away the right to vote. It was aimed at prescribing a permissible statutory requirement to exercise the right. In all elections, whether Parliamentary, presidential or County Assemblies, the law laid down qualifications to contest.
  27. The prescribed qualifications were reasonably related to a legitimate purpose- to ensure the leadership of the 1st Respondent was accorded to the best suitable person to fulfill its statutory mandate. In determining reasonableness, relevant factors included whether there was a valid, rational connection between the qualifications and a legitimate and public interest to justify it. That connection could not be so remote as to render the requirement for the qualifications arbitrary or irrational. Requirements for high qualifications and professional experience were a legitimate purpose. The second consideration was whether there were alternative means of exercising the asserted right that remained open to the affected person. The Petitioner, upon attaining the requirements in the fullness of time would be eligible to render his candidature.
  28. The court should as far as possible, avoid any decision or interpretation which would bring about the result of rendering the system of selecting suitable candidates unworkable in practice or create a situation that would go against clear provisions of the law governing the subject in issue. The law and the Regulations in question were designed at maintaining and ensuring the most qualified and experienced candidates were elected to run the affairs of the 1st Respondent. The qualifications prescribed in the law had not been shown to be unreasonable and or violating the Petitioners rights as alleged. The provisions in question advanced a compelling public interest to ensure the affairs of the Law Society were placed under the management of the most qualified persons, which was a legitimate interest.
  29. A law aimed at promoting legitimate public interest was fair, reasonable, and consistent with the provisions of the Constitution. The provisions of the constitution had to be read and interpreted in a wholesome manner. The right to contest for the leadership of the 1st Respondent had to be read and appreciated with the constitutional provisions that prescribed values and principles of public service, leadership and integrity and national values and principles of governance.
  30. Infringement of the provisions of the constitution in relation to the challenged provisions was not revealed. The challenged provisions were clear, precise, and unambiguous. However, if at all any limitation was imposed on the rights of the Petitioner or any citizen, such a limitation was proportionate considering the purpose of the law in question. The provision satisfied the requirements set out under article 24 of the Constitution in that the limitation was provided under the law and that the same was reasonably justifiable in a modern democratic society.
  31. In determining discrimination, the guiding principles were clear. The first step was to establish whether the law differentiated between different persons. The second step entailed establishing whether that differentiation amounted to discrimination. The third step involved determining whether the discrimination was unfair. Discrimination meant treating differently, without any objective and reasonable justification, persons in similar situations.
  32. The Constitution prohibited unfair discrimination. Unfair discrimination was differential treatment that was demeaning. That happened when a law or conduct, for no good reason, treated some people as inferior or less deserving of respect than others. It also occurred when a law or conduct perpetuated or did nothing to remedy existing disadvantages and marginalization.
  33. Mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason was a most reprehensible phenomenon. But where there was a legitimate reason, then, the conduct or the law complained of could not amount to discrimination. It was not every differentiation that amounted to discrimination. Consequently, it was always necessary to identify the criteria that separated legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation was permissible if it did not constitute unfair discrimination.
  34. The requirement for qualifications to occupy a particular office could not amount to unfair discrimination. The test would depend on the nature of the job or post the Applicants were required to perform, and the responsibilities that go with it. The drafters of the provisions under challenge in their wisdom felt that the post of the President of the Law Society was a high calling that called for the most qualified person. Consequently, they opted for high qualifications. They felt that the qualifications similar to those required for appointment of a Supreme Court Judge would suffice.
  35. Save for the Republic of South Africa, most examples cited by the Petitioners Counsel where the Bar Associations had no age limit or such high requirements did not have a progressive and transformative Constitution like Kenya. Lowering the bar to make it easy for people to qualify could not necessarily be in the best interests of the society. But should the majority feel the necessity to effect the changes, then that could be achieved legally by Members voting for the changes in a properly constituted Annual General Meeting. That way, the majority would have their say as opposed to a Court decision which could have the force of law, but could go against the preference of the majority. A court of law should be hesitant to involve itself in internal matters of professional bodies especially where the law provided for clear mechanisms of resolving them.
  36. A members' right to vote could not be construed to operate retrospectively. If a person was not a Member or did not hold a practicing certificate as at the time the election process kicked off, the mere fact he obtained a practicing certificate after the process started or was admitted after the process started could not be said to be a ground to confer voting rights retrospectively.
  37. An election was a process not a one day event. It was, in effect, a process set in a plurality of stages. The voters register could not be amended any time new advocates were admitted or a person decided to obtain a practicing certificate after the nomination process had kicked off. The effective date of practicing certificate was from the month of issue. Membership rights accrued upon a person becoming a member not before. To hold that an Advocate who was admitted and obtained a practicing certificate after the election process had begun amounted to conferring upon such a Member rights which accrued prior to him or her becoming Member. Such an interpretation was a wrong interpretation of the law.
  38. A literal interpretation of section 18 (1) (a) and (b) of the Act showed that there were two avenues for vying for Presidency of the Law Society. Any Member aggrieved by those provisions had the option of raising the issue at AGM for deliberation, consideration and voting. In so doing, the majority view would have prevailed as opposed to a Court decision which could not necessarily represent the majority wishes. The court could not descend to run the affairs of a professional society governed by clear provisions of a statute where the members had a legal channel of addressing the issues.
  39. Decisions of a society taken by its majority could not be thwarted at the instance of one individual. Courts were highly reluctant to interfere; at any rate, could not lightly interfere with the functioning of a corporate body or a society. It was not a dispute between two private individuals. The challenged provisions affected the members and they could best be resolved by the members in a properly constituted A.G.M. The challenged provisions had not offended article 27 in any manner.
  40. There was no reason to impute improper motive on the part of the council for the delay in passing the Regulations as the Petitioner seemed to insinuate. Further, even if the Regulations were passed on that day, they would have required Parliamentary approval. The elections could not be stopped because neither the council nor the Petitioner, not even the Court could control the calendar of Parliament or dictate to Parliament when to approve the Regulations.
  41. There was no lacuna in that the Regulations made under the repealed Act were still in force by dint of section 43 (3) of the Act. No argument was advanced that the Regulations in force were not consistent with the existing law nor had a contrary intention been alleged or demonstrated. In fact, the Act clearly provided that the existing Regulations would remain in force as if it had been so made, issued, given or undertaken under the Act. The Regulations made under the Repealed Act remained in force until new Regulations under the new Act were enacted. There were Regulations in place governing the elections and the process could not be faulted or stopped on account of absence of Regulations made under the existing Act.
  42. The Law Society of Kenya (Arbitration) Regulations, 1997 provided for Arbitration. None of the parties addressed that subject. Internal remedies were designed to provide immediate and cost-effective relief, giving the parties the opportunity to utilise their own mechanisms, rectifying irregularities first, before aggrieved parties resorted to litigation. Although courts played a vital role in providing litigants with access to justice, the importance of more readily available and cost-effective internal remedies could not be gainsaid.
  43. Statutory words overrode an expectation howsoever founded. Thus, a decision maker could not be required to act against clear provisions of a statute just to meet ones expectations otherwise his decision would be out rightly illegal and a violation of the principle of legality, a key principle in Rule of Law. There could not be legitimate expectation against the clear provisions of a statute. The impugned decision was grounded on the relevant statutory provisions, in particular section 18 (1) (a) & (2) and article 166 (3) (b) of the Constitution and the Regulations in force. Thus, the plea for alleged violation of legitimate expectation would fail.
  44. Administrative or statutory bodies were created for a variety of reasons to meet a variety of needs and in some instances; some functions were a necessary element to fulfilling their mandate. Provided that the particular decision-maker was not acting outside its statutory authority (and the governing statute was constitutional), such functions could stand court scrutiny.
  45. The function under consideration was scrutinizing nomination papers for confirmation of compliance with the statutory, constitutional and other prescribed requirements. That could be likened to national elections where the electoral body invited interested candidates to submit their nomination papers or where a person applied for a job and submitted his credentials and all the required documents. What followed next was scrutiny for the body to satisfy itself that the Applicants met the requirements. It was a formal exercise which could be likened to a preliminary investigation as opposed to a trial.
  46. The exercise of scrutinizing nomination papers to confirm compliance with the statutory and constitutional requirements fell into the category of areas which were not disturbed by the courts unless the decision under challenge was constitutionally fragile and unsustainable. If the decision was legal and lawful, the reasonableness and propriety of the same could not be questioned by the courts.
  47. The Court had to be extremely reluctant to substitute its own views as to what was wise, prudent and proper in relation to those formulated by professional societies possessing the expertise and experience of actual day to day working of their institutions. If any member was unhappy with the process of scrutinizing nomination papers to confirm compliance, the issue could be tabled in the AGM and a majority decision made accordingly. It would be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of that nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded.
  48. The Respondent was statutorily vested with powers to appoint a body to run the elections. There was a Code of the elections. No abuse of such powers had been alleged or proven. It had not been shown that that power to scrutinize nomination papers was not exercised as provided for under the law or regulations. The decision in question could only be challenged on grounds of illegality, irrationality and procedural impropriety. The decision had not been shown to be illegal or ultra vires and outside the functions of the Respondent.
  49. The requirement that the Petitioner ought to be heard at the time the papers were to be scrutinized for compliance would amount to overstretching the purpose of article 47. However, once it was confirmed that the Petitioner had not qualified, he was entitled to a prompt decision and reasons. In the instant case, the Petitioner was notified of the rejection and the reasons thereof and he had exhibited the relevant e-mail communication. To hold that an applicant for a job, an interview or an applicant to contest an election had to be given a hearing just to be explained why he had not satisfied the requirements would be imposing an unnecessary burden upon the decision maker which was not contemplated under the law. It was sufficient that the Petitioner was notified the reasons why he did not qualify.
  50. What constituted a “fair” procedure depended on the nature of the administrative action and circumstances of the particular case. The circumstances of the instant case were clear. All the nomination papers were to be scrutinized for compliance. None of the applicants was required to attend the scrutiny. The need for statutory bodies to utilise their own fair procedures was crucial in administrative action, provided they acted within the provisions of the governing statute and Regulations.
  51. When legislation was challenged on the grounds that Parliament had not adopted it in accordance with the provisions of the Constitution, courts had to consider whether in enacting the law in question Parliament had given effect to its constitutional obligations. For a court to exercise its powers to invalidate legislation, it had to act on clear evidence beyond doubt that either the legislative process was unconstitutional or the legislation was out rightly unconstitutional.
  52. There exists a presumption as regards constitutionality of a statute. The rule of presumption in favor of constitutionality, however, only shifted the burden of proof and rested it on the shoulders of the person who attacked it. It was for that person to show that there had been a clear transgression of constitutional principles. But that rule was subject to the limitation that it was operative only till the time it became clear and beyond reasonable doubt that the legislature had crossed its limits.
  53. During the legislative process, amendments might be introduced to the Bill and to hold that every amendment had to be subjected to public participation, would negate the legislative process. The explanation by the 1st Respondent that the Bill was circulated to members, was discussed in various forums, and that the council submitted views to the Parliamentary Committee and the Attorney General was satisfactory. There was sufficient public participation of all stakeholders.
  54. The Petition had not disclosed a case against the Interested Parties. The 2nd Interested Party had disputed rendering the alleged opinion and could not recall rendering the opinion. Alternatively if at all the opinion was rendered, the same was privileged being communication between an advocate and a client. The Petitioner had a duty to prove the existence of the opinion, which he had not discharged. He framed the case in a way shifting the burden to the interested Parties to go to court and help him in his case. He who alleges must prove. The Petitioners case against the interested parties could not stand.

Petition dismissed.

STATUTES Considerations of the Court in Awarding Damages under the Fatal Accidents Act and the Law Reform Act.

Hussein Ahmed Hanshi & another v Peter Gichuru Njoroge & 2 others
High Court Appeal 161 of 2015
High Court at Mombasa
P J O Otieno, J
September 2, 2016
Reported by Beryl A Ikamari

Download the Decision

Statutes-interpretation of statutory provisions-personal injuries claim-fatal road traffic accident-award of damages-award of damages under the Fatal Accidents Act and the Law Reform Act-whether damages could be awarded under both the Fatal Accidents Act and the Law Reform Act and how the Court would settle on the sums awarded under the two statutes-Law Reform Act (Cap 26), section 2(6).

Brief Facts:
An appeal was lodged for purposes of a reassessment of the quantum of damages awarded by the Trial Court, for personal injuries suffered by the Respondent in a road traffic accident. The Trial Court awarded a total of Kshs. 2, 280, 000/=. The main contention was that the award of damages was excessive and to some extent it lacked an evidentiary basis. The Appellant also contended that there was a case of double compensation as damages were awarded both under the Fatal Accidents Act and the Law Reform Act.

Issues:

  1. Whether the Court could award damages under both the Fatal Accidents Act and the Law Reform Act for one claim.
  2. What were the considerations of the Court in awarding damages under both the Fatal Accidents Act and the Law Reform Act for a given claim?
  3. What were the considerations of the Court in assessing damages for lost dependency? Read More..

Held:

  1. The award of damages under the Fatal Accidents Act and the Law Reform Act was expressly provided for by statute. Section 2(6) of the Law Reform Act provided that the rights conferred under the Act for the benefit of the estate of deceased persons shall be in addition to and not in derogation of the rights conferred on the deceased person's dependants in the Fatal Accidents Act. It was possible to make awards for the same claim on the basis of both statutes. However, in making awards under the Fatal Accidents Act the court would have to take into account the awards made under the Law Reform Act.
  2. In making awards under the Fatal Accidents Act and the Law Reform Act, what mattered was whether the judgment met the ends of justice or caused the Appellant to suffer prejudice. Under the Law Reform Act, the Trial Court made an award of Kshs. 20, 000/= for pain and suffering and Kshs. 100, 000/= for loss of expectation of life. Under the Fatal Accidents Act the Trial Court awarded a sum of Kshs. 2, 160, 000/= for lost dependency. The circumstances did not require the Trial Court to take into account one award and discount it against the other.
  3. The award of damages was an exercise of discretion. The Court would generally not interfere with the Trial Court's decision unless it was shown that there was an outright error in principles.
  4. Dependency was a matter of fact. There was evidence that the deceased earned Kshs. 18, 000/= a month and the Plaintiff, asserted that the deceased used to send Kshs. 10, 000/= to his dependants. The Trial Court set the dependency ratio at 1/3 with a multiplier of 30 years. After calculations (1/3 x 18,000 x 30 x 12) the sum of 1,710,000/= was arrived at while the correct sum for that calculation was 2,160,000/=.
  5. The Trail Court made an error in determining that the dependency ratio would be 1/3. That ratio was improperly invoked and the sum of Kshs. 10, 000/= proved to have been available to the dependents was ignored. The Court ought to have used the sum available to the dependants together with the number it settled on as a multiplier to make the calculation.
  6. The multiplier of 30 years was also an error. The deceased would have established his own family and reduced his support to the dependants. Noting that payment was accelerated and made in lump sum, a multiplier of 20 years was appropriate. The correct calculation for lost dependency would be 10,000 x 12 x 20 = Ksh. 2, 400, 000/=.

Appeal partly allowed.(The Court found that there were errors in the making of the award and awarded a sum which amounted to an increment in damages due.)

LAND LAW Equitable Trusts and the Transfer of Land.

Mwai Kibaki & another v Mathingira Wholesalers Company Limited & 6 others
Civil Appeal No 6 of 2017
Court of Appeal at Nyeri
A K Murgor, F Sichale & S Kantai, JJA
March 21, 2018
Reported by Beryl A Ikamari

Download the Decision

Land Law-proprietorship-indefeasible title-overriding interests-where there was an alleged expressed intention to transfer land to a company but the intention was not executed-considerations of the Court in determining whether there was an equitable trust-whether there was a trust in existence in favour of the company-Registered Land Act (Cap 300) (repealed), section 27 & 30.
Company Law-shareholders-transfer of shares-legal requirements relating to the transfer of shares-effect of failure to adhere to internal procedures provided for in the Memorandum and Articles of Association where effecting a transfer of shares in favour of a new shareholder-whether such an un-procedural transfer of shares was valid.

Brief Facts:
A group of 8 persons namely, Kimwatu Kanyungu, Francis Gathungwa, Gadson Gitonga Mbuthia, Mwai Kibaki, Kiiru Gachuiga, Kibera Gatu, Philip Gichuhi and Muriithi Nganga decided to engage investments. They obtained a loan of Kshs. 225,000/= from Industrial and Commercial Development Corporation (ICDC) and effected a charge over land which they bought in 1976 with the loan. Thereafter, together with Samuel Githinji Kibaki, they formed a company known as Mathingira Wholesalers Company Limited. The company was incorporated on June 17, 1983. Some of the shareholders of the company sold their shares to other parties who became involved in the management of the company and even joined the board of directors.
The 2nd Appellant was the chairman of the board of directors and he was a signatory to various bank accounts held by the company. It was alleged that in the years 2007 and 2008, the 2nd Appellant fraudulently and without authority operated the company's bank accounts, received payments meant for the company and generally committed acts that were detrimental to the company. Various reliefs were sought at the High Court against that alleged conduct.
The company, which was the Plaintiff at the High Court stated that assets belonging to the original shareholders including Title No. Nyeri Municipality Block 1/94 (the suit property) and a parcel of land called Nyaribo Plot were transferred to the company. Therefore, the company was managing those properties for the benefit of its shareholders.
The defence at the High Court was to the effect that the company was created to manage the property as an agent of the proprietors and that included the running of a bar, butchery and restaurant. It was said that the proprietors had exercised their powers to terminate the company's role in the management of their property and had appointed the 2nd Appellant to manage the property. It was also said that the transfer of shares in the company to new shareholders was not done in accordance with the provisions of the company’s Memorandum and Articles of Association.
The defence included a counterclaim which, inter alia, sought a declaration to the effect that the company was the management agent for a given period and that the company was obliged to account to the Defendants their respective shares of rent and revenue. A permanent injunction was also sought in the counterclaim to restrain the company from managing or dealing with the suit property.
The High Court found that money in the company's bank accounts belonged to the company and ordered for its release to the management. The High Court ordered for status quo to be maintained and for a meeting to be held within 3 months of the date of delivery of the judgment for purposes of appointing a new board to manage the affairs of the company.
An appeal was filed at the Court of Appeal against the High Court's decision.

Issues:

  1. Whether the suit property was owned under a situation where there was an equitable trust.
  2. What was the effect of a failure to comply with the requirements of the Memorandum and Articles of Association in order to transfer of shares in a company to new shareholders?
  3. What was the nature of the relationship between equity and statutory provisions. Read More...

Held:

  1. As the First Appellate Court, the Court of Appeal would reconsider the evidence and evaluate it while being mindful of the fact that it had not heard the witnesses or observed their demeanour. The Court of Appeal would be entitled to depart from the findings of the Trial Court if there were not based on evidence or they were made due to a failure to consider certain circumstances.
  2. Title to the suit premises, Title No. Nyeri Municipality/ Block 1/94, was issued under the Registered Land Act on May 5, 1976 to Kimwatu Kanyungu, Francis Gathungu, Gadson Gitonga Mbuthia, Mwai Kibaki, Kiiru Gachuiga, Kibera Gatu, Philip Gichuhi and Murithii Nganga. Under section 27 of the Registered Land Act the registration of a person as a proprietor of land gave that person absolute ownership of the land together with all rights and privileges related to the ownership.
  3. The finding of the Trial Court on the question of ownership of the land was that it was apparent that the proprietors of the land expressed an intention to transfer it to the company, the 1st Respondent, and that it was reasonable to draw the inference that those proprietors held the land in trust for the company. There was no evidence tendered before the Trial Court to show that steps towards the transfer of the land in favour of the company had been taken. There was evidence that title to the land was held by the original proprietors of the land and it was unencumbered. It was therefore an error for the Trial Court to hold that there was a resulting trust or any form of a trust.
  4. Clause 12 to 22 of the company's Memorandum and Articles of Association were about the transfer and transmission of shares. Clause 13 stated that a shareholder could freely transfer shares to his wife or her husband, children, son or daughter in law or grandchildren but no shares could be transferred except as provided in the Memorandum and Articles of Association. A shareholder who wished to sale his or her shares was required to prepare a sale notice to issue to the company. The sale notice would state the number of shares to be sold and the price at which they were to be sold. If within 28 days of the notice an existing shareholder was willing to buy the shares, a transfer would be issued in favour of that shareholder upon payment of the purchase price. Under clause 16 of the Memorandum and Articles of Association of the company, for purposes of shares that were offered for sale without an existing shareholder offering to buy them, the Director was to make regulations on how a purchaser would be found.
  5. The evidence tendered showed that persons bought shares from the shareholders of the company. There was also evidence that despite the sale of shares being undertaken, the requisite procedures, including the issuance of a sale notice, were not followed. The finding of the Trial Court was that without fraud being pleaded or proved against a new shareholder, the new shareholder was entitled to presume that the internal procedures of the company were complied with. The Trial Court found that fraud was neither pleaded nor proved. The Trial Court relied on the equitable doctrine to the effect that the law would regard that which ought to have been done to have been done properly. The finding was erroneous as equitable principles would not be applicable where there were express statutory provisions governing how shares could be transferred.
  6. The suit property Title No. Nyeri Municipality/Block 1/94 belonged to the proprietors as shown in Certificate of Lease dated May 5, 1976 as extended by the Certificate of Lease issued on November 19, 2012. The shareholders of the 1st Respondent were the subscribers to the Memorandum and Articles of Association issued in 1983.

Appeal and cross-appeal allowed.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

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