Weekly Newsletter 026/2018

Weekly Newsletter 026/2018



Kenya Law

Weekly Newsletter



A Reference in a Document to an Annexure Had the Effect of Incorporating The Contents of the Annexure in The Document
Mbaraka Issa Kombe v. Independent Electoral and Bounderies Commission (Iebc) & 2 others [2018] eKLR
Election Petition Appeal No. 3 Of 2017
Court of Appeal
At Malindi
A. Visram, W. Karanja & M.K Koome, JJ.A
May 10, 2018
Reported By Felix Okiri
Download the Decision

Electoral Law – election petition – parliamentary election- form of an election petition – where a petitioner had not included in the petition the particulars of the declared results and the date those results were declared- whether that omission adversely affected the substance of the petition and was thus non-curable – whether a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document - Election Petition Rules, Rules 8(1) & 12
Statutes – interpretation of statutes – Interpretation of electoral law - whether common law or the principles of equity applied to interpretation of electoral law – whether article 159 of the Constitution and the oxygen principles were applicable in interpreting electoral law

Brief facts:
Following the general elections held on August 8, 2017, the 3rd Respondent was declared as the duly elected Member of the National Assembly of the Ganze Constituency. The Appellant contended that the election in question was not free and fair as envisioned under article 38 of the Constitution. As a result, he filed an election petition challenging the results.
The 3rd Respondent raised a preliminary objection challenging the competency of the Petition on grounds that both the Petition and the supporting affidavit thereto did not comply with rules 8(1) & 12 of the Election Petition Rules. In the 3rd Respondent’s view, the omission rendered the petition fatally defective.
The Court decided for the 3rd Respondent on grounds that the particulars of the declared results and the date those results were declared had not been disclosed in the Petition.
It was that decision that the Appellant had appealed against.

Relevant provisions of the law
Election Petition Rules
Rule 8(1)
An election petition shall state-
(a) the name and address of the petitioner;
(b) the date when the election in dispute was conducted;
(c) the results of the election, if any, and however declared;
(d) the date of the declaration of the results of the election;
(e) the grounds on which the petition is presented; and
(f) the name and address of the advocate, if any, for the petitioner which shall be the address for service.

Rule 5(1)
The effect of any failure to comply with these rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159 (2)(d) of the Constitution.

Issues:

  1. Whether non-compliance with rule 8(1)of the Election Petition Rules by not including in the Petition the particulars of the declared results and the date those results were declared was a violation that went to the root of the petition, and one that adversely affected its substance and was thus not curable.
  2. Whether common law or the principles of equity applied to interpretation of electoral law.
  3. Whether a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document.
Held:
  1. The provision in rule 8(1) of the Election Petition Rules made it mandatory for certain particulars to be stated in the body of the Petition. Moreover, such an omission could not in any way be equated to a technicality because it went to the root and substance of the Petition. Similarly, the Appellant could not take refuge under article 159(2) (d) of the Constitution of Kenya, 2010 (Constitution).
  2. Article 159 of the Constitution and the oxygen principles which both commanded courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were never meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free for all in the administration of justice. Courts were never to provide succor and cover to parties who exhibited scant respect for rules and timelines.
  3. Rules and timelines for filing pleadings served to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts could not aid in the bending or circumventing of rules and a shifting of goal posts for, while it may have seemed to aid one side, it unfairly harmed the innocent party who strived to abide by the rules. It was in the even handed and dispassionate application of rules that courts gave assurance that there was clear method in the manner in which things were done so that outcomes could be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application were concerned.
  4. The appeal turned on the construction of of the . It was trite that electoral law was a special jurisdiction whose interpretation was strictly confined within the parameters of the and relevant electoral statutes.
  5. In discerning the intention of the Rules Committee in making the rule 8(1) of the Election Petitions Rules, that discernment could not be solely based on the language employed thereunder. Regard had to be given to the parent statute (the as well as the context within which both the parent statute and the were formulated.
  6. Article 87 (1) of the Constitution granted Parliament the latitude to enact legislation to provide for timely resolution of electoral disputes. That provision had to be viewed against Kenya’s electoral history. The Constitutional sensitivity about ‘timelines and timeliness’ was intended to redress that aberration in the democratic process. The country’s electoral cycle was five years. It was now a constitutional imperative that the electorate was to know with finality, and within reasonable time, who their representatives were.
  7. Vide article 87 (1) of the Constitution, the legislature enacted a number of electoral statutes, key among them being the Elections Act. Pursuant to section 96(1) of the Elections Act, the Rules Committee made the Election Petition Rules regulating the practice and procedure at the Election Court with respect to election petitions. It followed that interpretation and application of provisions relating to resolution of electoral disputes were to be geared towards facilitating the aforementioned constitutional objective, that was, the expedient resolution of electoral disputes.
  8. Accordingly, the Rules Committee in of the set out the contents that an election petition was to have for purposes of advancing the said objective. Those particulars gave clarity to both the parties and the Court as to the issue in dispute; it enabled the concerned parties to prepare suitable defence; and it enabled parties not to stray from the issues identified; all of which facilitated expedient resolution of the dispute in issue.
  9. The whole object of pleadings was to bring the parties to an issue, and the meaning of the rules was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. The whole meaning of the system was to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.
  10. There were different schools of thought in considering whether rules were mandatory or not. The first school of thought considered the rules as mandatory in nature, but would hesitate to take steps to strike out pleadings for such shortcomings. Anchoring the petition on rule 4 of the Election Petition Rules as well as article 159(2) (d) of the Constitution of Kenya, the proponents of this approach would save the petition. On the other hand, was the school of thought that considered non-compliance with the said rule a violation that went to the root of the petition, and one that so adversely affected its substance. For those who followed that school of thought, non-compliance with rule 8(1) was non-curable violation of article 87 of the Constitution which detrimentally affected the timelines within which an election petition was to be heard and determined.
  11. Whether non- compliance could warrant striking out or saving of the petition was a determination that could be made on a case by case basis. In addition to the constitutional timeline objective the Court was to be guided by of the which required it to give effect to the overriding objective thereunder.
  12. The goal of the overriding objective principle was to enable a court to achieve fair, just, speedy, proportionate, time and cost saving disposal of cases before it.
  13. The overriding objective principle conferred courts with considerable latitude in the exercise of its discretion in the interpretation of the law and rules made thereunder. However, its application did not operate to uproot established principles and procedures but emboldened the court to be guided by a broad sense of justice and fairness.
  14. The Court was also to take into account of the in exercising its discretion. Article 159(2)(d) advocated that a court in exercising judicial authority was not to pay undue regard to procedural technicalities. Article 159(2) (d) accorded precedence to substance over form. Rules of procedure were meant to be handmaidens and were never to be elevated to the status of mistresses of justice. In totality, the Election Court was to look into the nature of the non-compliance, that is, whether it went to the jurisdiction of the Court, root of the dispute or whether it occasioned prejudice to the other party.
  15. In the instant appeal, of the required results of the election in issue to be set out on the face of the petition.The Appellant, save for naming the candidates who vied for the post in question, only set out the 3rd Respondent’s results in the petition. The non-compliance did not render the petition defective because the Appellant disclosed the declared results in his affidavit in support of the petition. That supporting affidavit was part and parcel of the petition. He did so by annexing thereto form 35 which was the prescribed form for tallying, announcement and declaration of the final results from each polling station in a constituency for the election of a Member of National Assembly. Equally, the reference of the annexure in question in the supporting affidavit incorporated the contents of form 35 into the petition. As a general rule, a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document.
  16. The Court erred in ignoring the contents of the Appellant’s supporting affidavit and form 35 annexed thereto. In as much as the results were not set out on the face of the petition, the Respondents as well as the Election Court were not in the dark with regards to that issue. Therefore, the omission did not go to the jurisdiction of the Court or go to the root of the dispute nor did it prejudice the Respondents.
Appeal allowed.
Kenya Law
Case Updates Issue 026/2018
Case Summaries

EMPLOYMENT LAW Court Awards compensation for Forced Early Retirement.

Kenya University Staff Union & another v Masinde Muliro University of Science and Technology
Cause No 397 of 2015
(As consolidated with Kisumu Cause Nos. 344/16, 106/15 and 307/15)
Employment and Labour Relations Court at Kisumu
M N Nduma, J
April 12, 2018
Reported by Beryl A Ikamari

Download the Decision

Employment Law-employment contract-terms of an employment contract-retirement age-where a Collective Bargaining Agreement provided for a retirement age of 65 years whereas a Government circular provided for a retirement age of 60 years-whether it was lawful under the circumstances to enforce a retirement age of 60 years-Labour Relations Act, No 14 of 2007, section 59(3); Employment Act, 2007, section 26
Employment Law-employment contract-termination of an employment contract-termination of an employment contract through retirement-where it was alleged that an employment contract was terminated prematurely through forced early retirement-nature of remedies available under the circumstances-whether it was appropriate to grant injunctions, declarations and monetary compensation-Employment Act, 2007, sections 49(1)(c), 49(4), 41, 43 & 45.

Brief Facts:
Pursuant to a Collective Bargaining Agreement (CBA) between the Claimant Union and the Respondent, the compulsory retirement age of the Respondent's non-teaching staff was set at 65 years. In an alleged breach of the terms of the CBA, the Respondent wrote letters informing 10 members of staff that they would retire after attaining the age of 60 years. Those letters sparked a dispute about the correct retirement age for the Respondent's non-teaching staff. The Claimants’ contention was that the CBA provisions on a retirement age of 65 years were applicable and that the Claimants had a legitimate expectation that they would retire after attaining the age of 65 years.

The Respondent stated that its budget and expenditure had to be approved by the Government. Further, the Respondent said that the Government's policy on retirement was provided for in a circular ref. OP/CAB.2/7A dated February 14, 2014 which provided for a retirement age of 60 years for all public officers and was based on the terms of an earlier circular dated March 20, 2009. The Respondent stated that the CBA, relating to the period between July 1, 2010 to June 30, 2012 and which provided for a retirement age of 65 years had expired and the Government circular was applicable.

Issues:

  1. Whetherit was lawful to enforce a retirement age of 60 years in accordance with aGovernment Circular where an employer had entered into a CollectiveBargaining Agreement which provided for a retirement age of 65 years.
  2. Whatreliefs were available for purposes of wrongful termination of anemployment contract through forced early retirement? Read More...

Held:

  1. Underclause 37.0 of the CBA, the CBA whose effective date was from July 1, 2010to June 30, 2012 was to remain in force until its revision by bothparties. Therefore, at the time the Respondent wrote to its staff aboutretiring at 60 years, the CBA was in force.
  2. Section59(3) of the Labour Relations Act provided that the terms of a CBA wouldbe incorporated into the employment contract of every employee covered bythe CBA. Additionally, section 26 of the Employment Act elevatedcontractual terms and conditions of employment above statutory terms. AGovernment circular was inferior to a statute and it was also inferior toa term provided for in a CBA. Clause 28.0 (i) of the CBA which providedfor a retirement age of 65 years for non-teaching staff, would precede theGovernment circular. Until the renegotiation of the CBA, the retirementage of the Respondent's non-teaching staff was 65 years.
  3. Theremedies sought by the Claimants included an injunction to restrain theRespondent from retiring non-teaching staff at the age of 60 years and adeclaration to the effect that while the CBA was in effect and remainedwithout amendments being made to it, it was unlawful and in breach ofcontract for the Respondent's non-teaching staff to retire at the age of60 years. It was appropriate for the Court to grant the injunction anddeclaration as sought.
  4. Itwas noteworthy that the Claimants in the suit did not seek damages.However, in individual claims which were consolidated with the cause(cause No. 397 of 2015), individual grievants sought special and generaldamages for early retirement and breach of their employment contracts.Those individual claims included E & LRC No. 106 of 2015, Kisumu E& LRC No. 307 of 2015 and Kisumu E & LRC No. 344 of 2016.
  5. In Cause 106 of 2015, the Claimant,Richard Mark Busuru, was employed as a Senior Architect Grade XIV in theProject Development Unit and earned a gross monthly salary of Kshs. 227,193/= He was retired at the age of 62 years and he sought damages relatingto the remaining 3 years of service. There was no valid reason given forthe Claimant's premature retirement and he was therefore entitled tocompensation under section 49(1)(c) as read with section 49(4) of theEmployment Act. He would therefore be entitled to compensation amountingto Kshs. 300,824.90/= in respect of 50 days accrued leave and Kshs.2,271,930/= being 10 months’ salary compensation. (Total award -Kshs.2,572,754.90)
  6. TheClaimant in Cause No 307 of 2015,Richard Lusweti Waphukula, was employed by the Respondent as a centerco-ordinator/administrative officer and was retired at the age of 60 yearson June 30, 2015. The retirement was a violation of the CBA. The Claimanthad served the Respondent for 5 years at the time of his retirement. TheCourt awarded 5 months’ salary amounting to Kshs.379,185/= as compensationfor early retirement under section 49(1)(c) as read with section 49(4) ofthe Employment Act.
  7. TheClaimant in Cause No 344 of 2016,Alexander J. M. Mate, was employed in October 2003 as a Senior ClinicalOfficer Grade (XII) and retired on July 7, 2015 at the age of 60. Theproper retirement age under the CBA was 65 years. The early retirement wasunlawful and was a violation of sections 41, 43, and 45 of the EmploymentAct, 2007. There was no valid reason for forcefully retiring the Claimantand he was not given an opportunity to explain why he ought not to beretired early. However, he did not seek an order for monetarycompensation.

Judgment entered in favour of the Claimants against the Respondent.
Orders:-

  1. An order ofinjunction was issued to restrain the Respondent from retiring theClaimant Union members at the age 60 years, unless the CBA was variedaccordingly.
  2. An order ofprohibition was granted to prohibit the Respondent from retiring theClaimant Union members until they attained the age of 65 years.
  3. The Courtdeclared that retiring the Claimant Union members at 60 years of age wasunlawful.
  4. Judgment was enteredin favour of Richard Mark Busuru in the sum of Kshs. 2,572,754.90.
  5. Judgment wasentered in favour of Richard Lusweti Waphukula in the sum of Kshs.379,185.
  6. Judgment wasentered in favour of Alexander J. M. Mate for re-engagement without lossof income until he attained 65 years within 30 days of the judgment.
  7. The awardswere payable with interest at Court rates from the date of judgment tillpayment in full.
  8. Costs were toabide the outcome.
ELECTION LAWS A Court of Law cannot Issue Final Orders Adversely Affecting Persons or Bodies that are not before the Court.

National Gender and Equality Commission (NGEC) v Independent Electoral & Boundaries Commission (IEBC) & 3 others [2018] Eklr
Constitutional and Human Rights Division
Petition No. 409 Of 2017
High Court at Nairobi
Mativo J
May 4, 2018
Reported by Nasike Robai and Faith Jepchirchir Rutto

Download the Decision

Election Laws – nomination of candidates – timeframe for lodging complaints arising from the final Party lists – compliance with the party lists rules and regulations -where the IEBC gave political parties only two days to file complaints – whether the time frame given by the IEBC amounted to a denial of citizens to engage in the democratic process envisaged in the Constitution – Constitution of Kenya, 2010 article 38
Electoral Law– electoral disputes – political parties’ disputes - party lists Rules and regulations - election of special seat members to county assemblies- constitutional principles of ethnic inclusivity, protection of ethnic minorities and marginalized groups - Constitution of Kenya, 2010 articles 177 (1) (b) & (c), 90, 56, 98 (1) (c) and (d) 100; Elections Act 2011, section 36 (3), 34 (6); Elections (General) Regulations 2012, regulation 54 (8), 55 (3A)
Jurisdiction – jurisdiction of Courts – jurisdiction to hear and determine petitions- jurisdiction of the High Court in matters of constitutional interpretation and application -where a Court’s jurisdiction to hear a matter was challenged - whether the High Court had jurisdiction to hear and determine the petition - Constitution of Kenya, 2010, article 165 (3) (d)

Brief facts:
The Petitioner averred that prior to the 2017 general elections, 56 political Parties, as required by law, submitted their party lists to IEBC by June 24, 2017, but upon scrutiny, Independent Electoral and Boundaries Commission (IEBC) found that all the party lists did not comply with the Constitution or the Election Regulations. By a notice published in newspapers on Friday the July 21, 2017, IEBC and the Political Parties Disputes Tribunal (PPDT) advised aggrieved persons to lodge complaints arising from the "final" Party lists with the IEBC Dispute Resolution Committee and the PPDT between 21st and 23rd July 2017. The said complaints were to be heard from July 21 to the July 28, 2017. The Petitioner stated that no Party lists had been published whether in newspapers or on IEBC's websites at the time. The Petitioner also contended that IEBC violated articles 10, 88 (5), 90, 249 (1) and (2), 81, 2 (2), 10 (1) & (2) (c), and 177 and Section 36 (3), (4) of the Elections Act and Regulation 54 (8) of the Elections (General) Regulations, and hence infringed the sovereign right of Kenyans. Political Parties were accused of submitting lists which did not comply with the law and illegally rewarding cronies and girlfriends with the nominations.

Issues:

  1. Whether the instant Court had jurisdiction to hear and determine the Petition once form 38 had been issued declaring a winner of an election.
  2. Whether the relief sought for a declaration be issued that the election of special seat members to county assemblies under article 177 (1) (b) & (c) as read with article 90 of the Constitution must conform to the constitutional principles of ethnic inclusivity was likely to affect persons who were not parties to the Petition
  3. Whether a Court of law could issue final orders adversely affecting persons or bodies that were not before the Court
  4. Whether IEBC failed in exercising its legal mandate of supervising the entire elections for the special interests group seats for the August 8th 2017 general elections.
  5. Whether the Petition was rendered moot after the nominations were Gazetted and the subsequent swearing in of the nominated persons.Read More..

Relevant provisions of the Law
Constitution of Kenya, 2010
Article 165 (3) (d)
The High Court shall have jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of-

(i) The question whether any law is inconsistent with or in contravention of this Constitution;
(ii) (ii) The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution;
(iii) Any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the two levels of governments.

Article 87 (1)
Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.

Article 90
(1) Elections for the seats in Parliament provided for under articles 97(1) (c) and 98 (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.
(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that--

(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1),within the time prescribed by national legislation;
(b) except in the case of the seats provided for under article 98 (1) (b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and
(c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.

(3) The seats referred to in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

The Constitution of Kenya (Protection on of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Rule 5

"A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute. “

The Elections Act
Section 34
(1)The election of members for the National Assembly, Senate and county assemblies for party list seats specified under articles 97(1)(c) and 98(1)(b)(c) and (d) and article 177(1)(b) and (c) of the Constitution shall be on the basis of proportional representation and in accordance with article 90 of the Constitution.
(2) A political party which nominates a candidate for election under article 97(1)(a) and (b) shall submit to the Commission a party list in accordance with article 97(1)(c) of the Constitution.
(3) A political party which nominates a candidate for election under article 98(1)(a) shall submit to the Commission a party list in accordance with article 98(1)(b) and (c) of the Constitution
(4) A political party which nominates a candidate for election under article 177(1)(a) shall submit to the Commission a party list in accordance with article 177(1)(b) and (c) of the Constitution.
(5) The party lists under subsections (2), (3) and (4) shall be submitted in order of priority.
(6) The party lists submitted to the Commission under this section shall be in accordance with the constitution or nomination rules of the political party concerned.

(7) The party lists submitted to the Commission shall be valid for the term of Parliament.
(8) A person who is nominated by a political party under subsections (2), (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.
(9) The party list may contain a name of any Presidential or Deputy Presidential candidate nominated for an election under this Act.
(10) A party list submitted for purposes of subsections (2), (3), (4) and (5) shall not be amended during the term of Parliament or the county assembly, as the case may be, for which the candidates are elected.

35. (1) A political party shall submit its party list to the Commission on the same day as the day designated for submission to the Commission by political parties of nominations of candidates for an election before the nomination of candidates under articles 97(1)(a) and (b), 98(1)(a) and 177(1)(a) of the Constitution.

36 (1) A party list submitted by a political party under—

(a) Article 97(1)(c) of the Constitution shall include twelve candidates;
(b) Article 98(1)(b) of the Constitution shall include sixteen candidates;
(c) Article 98(1)(c) of the Constitution shall include two candidates;
(d) Article 98(1)(d) of the Constitution shall include two candidates;
(e) Article 177(1)(b) of the Constitution shall include a list of the number of candidates reflecting the number of wards in the county;
(f) Article 177(1)(c) of the Constitution shall include eight candidates, at least two of whom shall be persons with disability, two of whom shall be the youth and two of whom shall be person representing a marginalized group

(2) A party list submitted under subsection (1)(a), (c), (d), (e) and (f) shall contain alternates between male and female candidates in the priority in which they are listed.
(3) The party list referred to under subsection (1)(f) shall prioritise a person with disability, the youth and any other candidate representing a marginalized group.
(4) Within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.
(5) The allocation of seats by the Commission under article 97(1)(c) of the Constitution will be proportional to the number of seats won by the party under article 97(1)(a) and (b) of the Constitution.
(6) The allocation of seats by the Commission under article 98(1)(b), (c) and (d) of the Constitution shall be proportional to the number of seats won by the party under article 98(1)(a) of the Constitution.
(7) For purposes of article 177(1)(b) of the Constitution, the Commission shall draw from the list under subsection (1)(e), such number of special seat members in the order given by the party, necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.
(8) For purposes of article 177(1)(c) of the Constitution, the Commission shall draw from the list under subsection (1)(f) four special seat members in the order given by the party.
(9) The allocation of seats by the Commission under article 177(1)(b) and (c) of the Constitution shall be proportional to the number of seats won by the party under article 177(1)(a) of the Constitution.

Held:

  1. Jurisdiction is so fundamental that once the Court’s jurisdiction to hear a matter was challenged, or an issue touching on jurisdiction arose, it had to be dealt with and resolved first before any other step in the proceedings. The law was that where the Court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, was an exercise in futility, for the proceedings were a nullity ab initio.
  2. Jurisdiction is the lifeblood of any adjudication and where it was lacking it would render any proceedings, no matter how well conducted, liable to be set aside for being a nullity. A Court’s jurisdiction flows from either the Constitution or legislation or both, hence, assumption of jurisdiction by Courts in Kenya was a subject regulated by the Constitution; by statute law, and by principles laid out in judicial precedent. Thus, a Court of law could only exercise jurisdiction as conferred by the Constitution or other written laws.
  3. On principle it seemed that in general a Court was bound to entertain proceedings that fell within its jurisdiction. Put differently, a court had no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction was determined on the basis of pleadings and not the substantive merits of the case.
  4. A decision is only an authority for what it actually decides. What was of the essence in a decision was its ratio and not every observation found therein nor what logically followed from the various observations made in it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there were not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.
  5. The ratio of any decision must be understood in the background of the facts of the particular case. It is also an established principle of law that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The bottom line was that 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.
  6. Numerous leading decisions on the value or precedents had emphasized time without a number that in deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. Accordingly, to decide therefore, on which side of the line a case falls, the broad resemblance to another case was not at all decisive. Precedent should be followed only so far as it marks the path of justice.
  7. The nominated persons having been Gazetted four days or so after the instant Petition was filed, they became members of either the National Assembly, the Senate or the County Assemblies. From that moment, the dispute became an electoral dispute within the meaning of article 87 of the Constitution. That being the case, the question that followed was whether the nominations could be challenged by way of that Petition. In other words whether the instant case was overtaken by events.
  8. The Constitution and the electoral law envisaged the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of the election process. The Gazette Notice in the instant case, signified the completion of the “election through nomination,” and finalized the process of constituting the Assembly in question. On the other hand, an “election by registered voters”, was in principle, completed by the issuance of Form 38, which terminated the returning officer’s mandate, and shifted any issue as to the validity of results from the IEBC to the Election Court. It was therefore clear that the publication of the Gazette Notice marked the end of the mandate of IEBC, regarding the nomination of party representatives, and shifted any consequential dispute to the Election Courts. The Gazette Notice also served to notify the public of those who had been “elected” to serve as nominated members of a County Assembly.
  9. The Petitioner ought to have distinguished the facts of the instant case with the Supreme Court Decision in Moses Mwicigi & 14 Others vs I.E.B.C & 5 others. Article 163 (7) of the Constitution explicitly provided that all Courts, other than the Supreme Court, Were bound by the decisions of the Supreme Court. Clearly, the decision, coming from the Apex Court in this country as it did, was binding to the instant Court by dint of article 163 (7) of the Constitution. The binding nature of the Supreme Court decisions under article 167 (7) of the Constitution was absolute. Article 163 (7) was an edict firmly addressed to all Courts in Kenya that they were bound by the authoritative pronouncements of the Supreme Court and that where the issues before the instant court were determined by the Supreme Court, it was not open to the instant court to examine the same with a view to arriving at a different decision. By dint of the above clear provisions of the Constitution, the Supreme Court decision cited above, the conclusion became irresistible that the instant Court lacked jurisdiction to entertain that Petition.
  10. The reliefs sought if granted, were bound to affect both the persons who were nominated and sworn into the various posts and the 56 Political Parties which prepared and submitted the lists to IEBC. More fundamental was the truth that such drastic orders if granted would divest the persons sworn their posts and the Parties which sponsored them.
  11. It could not be disputed that invalidating the impugned Gazette Notices would inevitably lead to divesting all the Members of the National Assembly, the Senate and the County Assemblies who were nominated and sworn their respective positions. It was also common knowledge that the Political Parties played a central role in the allocation of the said seats, hence a determination that nullified the entire process would be an indictment to them and it would directly affect them.
  12. The successful candidates, having been duly sworn and assumed their respective offices, certain rights had accrued in their favour and a determination that invalidated their nomination would deprive them their positions without giving them an opportunity of being heard or without being afforded a fair process or being afforded the right to contest the decision or to apply for various forms of relief from the instant Court. Also, the Political Parties having gotten their slots depending on their numerical strength in the respective houses stood to lose the slots courtesy of the reliefs sought in the Petition in which they were not parties.
  13. The Political Parties and the persons who were nominated, Gazetted and sworn to their respective positions and were members of the various houses and they were necessary parties to the proceedings. They ought to have been enjoined in the Petition. Certain rights recognized by the law had already accrued to the Political Parties and the nominated persons. Accrued rights could not be taken away even by a judicial pronouncement without affording the affected persons the opportunity of being heard. Such a decision would have been arrived at in total breach of the rules of natural justice, and it would be unconstitutional and a mockery of justice.
  14. The principle that came out in that case was that a person or a body 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 has its own sanctity. That apart, a person or a body must have had a legal right or right in law to defend or assail.
  15. The constitution recognized a duty to accord a person procedural fairness or natural justice when a decision was made that affected a person’s rights, interests or legitimate expectations. It was a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order was made which would deprive a person of some right or interest or the legitimate expectation of a benefit, he was entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
  16. No order should be passed behind the back of a person who was to be adversely affected by the order. A person challenging the selection process as far as the nominations or elections jurisprudence was concerned was bound to make the successful candidates parties.
  17. Where a selection or a nomination process was under challenge, there could be no shadow of doubt that they were necessary parties. The first defect in that petition was that of non-joinder of necessary parties. Those who were vitally concerned, namely, the successful candidates and the Political Parties. A Court ought not to decide a case without the persons who would be vitally affected by its judgment being before it as respondents.
  18. Rule 5 of The Constitution of Kenya (Protection on of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provided that a petition could not be defeated by reason of the misjoinder or non-joinder of parties, and the Court could in every proceeding deal with the matter in dispute. That rule could not have provided refuge in the clear circumstances of the instant case whereby it was clear the orders sought were directed at parties who were not before the court.
  19. The orders sought in the amended Petition seeking reliefs that directly affected persons who were not parties before the court would amount to condemning the persons to be likely affected without affording them the opportunity to be heard. The said prayers could not be issued.
  20. Political Parties play a central role in the Preparation of Party lists. How the election of persons on the list was carried out was a matter entirely within the mandate of the respective political parties. It was for that reason that regulation 55 (1) of the General Regulations provided that, the party list contemplated under regulation 54 {the lists under article 90 (1) of the Constitution} should be prepared in accordance with the rules of the political party. Furthermore, paragraph 19 of the Second Schedule to the Political Parties Act (Act No. 11 of 2011) required every party to have, nomination rules and regulation with respect to elections of the party and rules governing the preparation of party lists. The effect was that, the process of preparation of the party list was an internal affair of the Political Party, which ought to proceed in accordance with the national Constitution, the Political Party Constitution, and the nomination rules as prescribed under Regulation 55.
  21. A political party had the obligation to present the party list to IEBC, which after ensuring compliance, took the requisite steps to finalize the "elections" for these special seats. In the event of non-compliance by political party, IEBC had power to reject the party list, and to require the omission to be rectified, by submitting a fresh list or by amending the list already submitted. That summarized the correct legal position on the role of Political Parties in preparing Party lists. The role and mandate of IEBC was to ensure that the party lists complied with the law.
  22. IEBC was not supposed to micro-manage the process or enter into the internal affairs of the Political Parties. Where the Political Parties failed to comply with the regulations in the nomination processes, the aggrieved Party had recourse in the PPDT. More fundamental was that the Petitioner had failed to prove any blame on the Part of IEBC as far as the contents of the said Gazette notice was concerned and if there were failures in the nomination process, the Petitioner carefully omitted to include the Political Parties in those proceedings, hence, the orders sought could not issue against Parties who were strangers to the case.
  23. If at all any person was illegally nominated as a nominee for youth or as a person with disability that particular nomination ought to have been challenged by way of a Petition but not a global challenge as in the instant Petition seeking to make a global determination which would affect persons who were not before Court. The allegation that IEBC defied some orders from the PPDT and failed to update the party lists to accord to the Court orders was jurisprudentially unsustainable. That was because from the copies of the orders or ruling annexed to the supplementary affidavit of Winfred Lichuma, it was clear that in all the cases relied upon, only the Political Parties were sued and IEBC was not a party in the said cases.
  24. It was an elementary point of law that court decisions only bound the parties before the Court. But more pertinent was the fact there was absolutely no evidence that IEBC was served with the said orders. The logical position was that the Political Party concerned after losing the case was required to forward an amended list to IEBC. That had not been shown to have been done. Worse still, the Petitioner opted not to enjoin the Political Parties in the case, and expected the Court to make a determination against the IEBC based on allegations directed at parties who were absent from the Court.
  25. Upon analyzing the earlier cited provisions of the Constitution, the Election laws and the Regulations, and applying the law and the authorities cited the Court concluded that the role of IEBC was to allocate seats on the basis of lists submitted by the Political Parties. There was nothing to show that IEBC failed in its mandate. In fact, most of the allegations were directed against the Political Parties which were not parties in the Petition, yet, the Political Parties were necessary parties in those proceedings.
  26. During the pendency of the instant Petition, IEBC Gazetted the persons who were nominated and they were all subsequently sworn and assumed their respective position in the National Assembly, Senate and the County Assemblies. That brought into sharp focus the law of mootness which inquired whether events subsequent to the filing of a suit had eliminated the controversy between the parties.
  27. Mootness issues could arise in cases in which the plaintiff challenged actions or policies which were temporary in nature, in which factual developments after the suit was filed resolved the harm alleged, and in which claims had been settled. Generally, a case was not moot so long as the plaintiff continued to have an injury for which the court could award relief, even if entitlement to the primary relief had been mooted and what remained was small. Put differently, the presence of a “collateral” injury was an exception to mootness. As a result, distinguishing claims for injunctive relief from claims for damages was important. Because damage claims sought compensation for past harm, they could not become moot. Short of paying plaintiff the damages sought, a defendant could do little to moot a damage claim.
  28. A matter is moot if further legal proceedings with regard to it have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness also arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the Court has no actual, practical impact.
  29. The Gazettement shifted the entire dispute to the election Court, thereby rendering the dispute moot or a mere academic exercise. The alleged shortcomings in the process in question were issues that could be raised in the election Courts. In any event, the bottom-line of the Petitioners case was that it sought to invalidate the nominations by challenging the entire process. Such a challenge was a matter for the election Court.

Petition dismissed with no orders as to costs.

LAW OF TORT Court Awards Kshs 54 Million as Damages for Medical Negligence

P K M (Suing on own behalf and as next friend of A J B) & G S M v Nairobi Women Hospital & Mutinda [2018] eKLR
Civil Case No. 186 of 2009
High Court at Nairobi
A.M. Msagha, J
May 16, 2018
Reported by Kakai Toili
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Law of Tort – negligence – medical negligence – awards in medical negligence cases - what were the factors to consider in making awards in medical negligence cases
Words and Phrases – cerebral palsy – definition of cerebral palsy - a group permanent movement disorder that appear in early childhood. It is caused by abnormal development or damage to the parts of the brain that control movement balance and posture. Most often the problem occurs during pregnancy; however they also occur during child birth , a difficult delivery and head trauma during the first few years of life among others - Wikipedia encyclopaedia

Brief facts:
On May 27, 2007 the 1st Plaintiff was admitted to the 1st Defendant’s hospital’s labour ward and was induced into labour without positive result. The 1st Plaintiff alleged that in the process she was left without any proper attention or attention at all and that the 1st Defendant’s agents and servants did not monitor her labour with due care and attention and was left alone in the delivery room. On May 29, 2007 her labour had intensified without good progress whereupon she demanded to see a doctor on call but nobody was available to attend to her until that afternoon when the 2nd Defendant arrived and the 1st Plaintiff rushed to the theatre for a caesarean section. Following that procedure, the minor was born but by then the minor had suffered severe birth asphyxia.
Due to that condition the minor had to be transferred to Aga Khan University Hospital a few hours after delivery in critical condition. After being discharged, the child was referred to an occupational therapist and visited Kenyatta National Hospital. The child was diagnosed with cerebral palsy. Aggrieved by the actions of the Defendants, the Plaintiffs filed the instant suit. On July 21, 2015 Counsel appearing for the parties recorded a consent judgment for the Plaintiff against the Defendant on liability at 90%.

Issue:

  1. What were the factors to consider in making awards in medical negligence cases?Read More...

Held:

  1. When one surrendered himself or herself into the hands they believed to have the relevant facilities, expertise, knowledge and experience to undertake the expected services, their legitimate expectation had to be met. Nothing short of that was to be expected of any facility that opened its doors to offer such services at a fee. In the instant case the legitimate expectation of the Plaintiffs was not met. Negligence was established against both the 1st and 2nd Defendants.
  2. The observation that future and medical therapy implications and costs for the minor had not been computed was contrary to the evidence because the medical reports were produced by consent. Any award should not have sent shock waves in the body politic with far reaching implications. The Plaintiffs would not have found themselves in the situation had prudent and professional attendance been extended to them. The economic implications should have been considered in making such awards, the Plaintiffs should have been compensated for the injuries sustained as a result of the actions or omissions of the Defendants.
  3. The 2nd Plaintiff did not give evidence. To say that the 1st Plaintiff was at pain as a result of what she had gone through was an understatement. The condition of the minor child was irreversible. All the needs stated by the doctors had been confirmed by the 1st Plaintiff who was the mother and lived with him. The injury leading to his condition had denied him everything one could call life. The contents of the medical report had not been controverted. There was always an opportunity for the opposing party to present alternative assessments, that was not the case in the instant case. Those expenses were presented by an expert and the Court had no reason to discount them. In the event that the awards were paid out, the money could reasonably be invested for the benefit of the minor child. The multiplier of 50 years was therefore on the higher side, the Court applied a multiplier of 40 years.

Suit partly allowed

  1. Judgment entered for the Plaintiffs against the Defendants jointly and severally in the sum of Kshs. 54,712,078/=. As follows:
  2. General damages for the 1st Plaintiff - Kshs. 800,000/=
    1. General damages for the minor - Kshs. 8,000,000/=
    2. Cost of speech, occupation and Physiotherapy-Ksh. 18,720,000/=
    3. Cost of schooling - Kshs. 6,000,000/=
    4. Cost of personal hygiene -Kshs. 2,880,000/=
    5. Cost of medical consultations - Kshs. 3,360,000/=
    6. Cost of medications - Kshs. 9,600,000/=
    7. Care giver - Kshs. 7,200,000/=
    8. Adaptive equipment - Kshs. 3,600,000/=
    9. Special Damages - Kshs. 631, 198/=
    10. Total - Kshs. 60,791,198/= ,less 10% - Kshs. 6,079,120/=
  3. Plaintiffs to have costs of the suit and interest at court rates.
EVIDENCE LAW Holding of the Applicants at an Anti-Terrorism Police Unit establishment by the Police, after a court had ordered them to ensure the continued presence of the Applicants within Kenya, does not amount to contempt of court.

Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR
Criminal Application No. 2 of 2018
Supreme Court of Kenya
D.K. Maraga, CJ; M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, & N.S. Ndungu, SCJJ
April 23, 2018.
Reported by Kakai Toili
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Evidence Law – standard of proof –standard of proof in contempt of court cases - higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt - what was the rationale for the set standard of proof in contempt of court cases
Civil Practice and Procedure - contempt of court - definition of contempt of court - failure to comply with court orders - conduct that would amount to contempt of court - whether holding the Applicants at an Anti-Terrorism Police Unit establishment after a court had ordered the Respondent to ensure the continued presence of the Applicants within Kenya amounted to contempt of court - Contempt of Court Act, section 4; Supreme Court Act, section 28 (1) (b)

Brief Facts:
The Court in February 2018 issued an order that pending the hearing of the Application seeking to review the Court of Appeal decision acquitting the Applicants, arrangements be made by the Respondent to ensure the continued presence of the Applicants within the jurisdiction of Kenya without infringing on their liberties as guaranteed by the Constitution.
After the said order the Applicants continued being held in police custody at the Anti-Terrorism Police Unit in Nairobi Area. Aggrieved by the actions of the police, the Applicants filed the instant Application seeking various orders including that a stay of the hearing of the Respondent’s Application be granted, that the Inspector General of the National Police Service be cited for contempt of the Court’s Order issued in February 2018 and that he be committed to civil jail for a term not exceeding six months.

Issues:

  1. What was the standard of proof in contempt of court cases?
  2. What was the rationale for the standard of proof in contempt of court cases?
  3. Whether holding the Applicants at an Anti-Terrorism Police Unit establishment, after a court had ordered the Respondent to ensure the continued presence of the Applicants within Kenya, amounted to contempt of Court.Read More...

Held:

  1. According to section 4 of the Contempt of Court Act, contempt included civil contempt which meant willful disobedience of any judgment, decree, direction, order or other process of a court or willful breach of an undertaking given to a court. Section 28 (1) (b) of the Supreme Court Act also made it an offence for a person to willfully and without lawful excuse, to disobey an order of the Court, that section allowed the Court to punish for contempt. It was therefore evident that the willful disobedience of a judgment, decree or order properly constituted contempt of court.
  2. It was evident that not only did contemnors demean the integrity and authority of courts, but they also derided the rule of law. That had to not be allowed to happen. The standard of proof in cases of contempt of court was well established. The standard of proof had to be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to have been left where it belonged, to wit, in criminal cases. It was not safe to extend it to an offence which could be said to be quasi-criminal in nature.
  3. The rationale for the standard of proof in contempt cases was that if cited for contempt and the prayer sought was for committal to jail, the liberty of the contemnor would be affected. As such, the standard of proof was higher than the standard in civil cases. That power to commit a person to jail had to be exercised with utmost care and exercised only as a last resort. It was of utmost importance for the Applicants to establish that the alleged Contemnor’s conduct was deliberate in the sense that he or she willfully acted in a manner that flouted the Court Order.
  4. Whichever way the Court’s Order was interpreted, it did not allow the release of the Applicants. It would therefore render the proceedings otiose and utterly nugatory if the Applicants were set free. Courts do not act in vain. The Court did not order that the Applicants be released but rather that their rights not to be infringed, indeed the Applicants were not in prison but in a situation more elevated than that of prisoners.
  5. Holding the Applicants at the Anti-Terrorism Police Unit establishment was not willful or deliberate disobedience to Court Orders. It was a well-considered course of action for balancing between Applicants security and compliance with the Court’s Order.
  6. The allegations of contempt of Court had not been proved to the required standard, the Respondent was not in contempt of Court.

Application dismissed, no orders as to costs.

CONSTITUTIONAL LAW The Senate and the County Assembly has concurrent jurisdiction and not coordinate jurisdiction to receive and review an audit report under Article 229, of the Constitution

Kyalo Kamina V the Senate & Another
Constitutional Petition No. 334 of 2016
High Court at Nairobi
E.M Muriithi, J
August 25, 2017
Reported by Robai Nasike Sivikhe and Safiya Awil

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Constitutional Law- separation of powers- functions and roles of the senate and county assembly-circumstances where both organs had concurrent jurisdiction - Whether concurrent jurisdiction of the Senate and the County Assembly under article 229 to consider the Auditor’s Report barred one organ from considering the report where the other had already considered the report- Constitution of Kenya, 2010, article 229Constitutional Law-interpretation of the constitution- principles applied in the interpretation of the Constitution- what was the true meaning of Article 229 (7) and what was the impact of the requirements of article 254 of the Constitution- Constitution of Kenya, 2010, article 229(7)

Brief Facts:
The Petitioner had commenced the instant suit against the 1st Respondent the Senate, as an arm of the Government established under article 93(1) of the Constitution and its Speaker as the 2nd Respondent established under article 106(1) (a) of the Constitution.
The Petition sought Court’s interpretation of article 229 (7) of the Constitution after the 1st Respondent summoned the 2nd Interested Party to produce certain documents pursuant to the Auditors’ Report of 2013/2014 to answer various questions amongst them to give documentation evidencing the closure of accounts and transfer of funds to the County Revenue Account, irregular payments for legal services, allocation of County land to private developers, outstanding imprest and rates, loss of Revenue due to computerization of off-street parking, misuse of fuel and poor maintenance of work tickets. The Petitioner contended that the report had already been considered and appropriate action taken by the 1st Respondent county assembly, and consequently urged that the Senate had no power to consider the report, in view of the provisions of article 229 (7) that gave concurrent jurisdiction to the Senate and the County Assembly.

Issues:

  1. Whether the Senate had a role in theoversight of county finance
  2. Whether the Auditor General was obliged to file his report to boththe Senate and the County Assembly under article 229(7) of theConstitution.
  3. Whether concurrent jurisdiction of the Senate and the CountyAssembly under article 229(7) to consider the Auditor’s Report barred oneorgan from considering the report where the other had already consideredthe report. Read More..

Held:

  1. The Constitution directs a purposive interpretation for therealization of its objects of the values and principles entrenched init. The Court’s interpretation mustaccordingly uphold the principles set out. The articles in theConstitution cannot be read in isolation as stand-alone stipulations. They have to be read together so thatthey harmoniously promote its purpose, values and principles. The Constitution ought to be looked atas a whole and all the provisions on an issue should be considered so asto give effect to the purpose of the instrument.
  2. The Auditor General was obligated under article 254 (1) of theConstitution to have submitted a report to the Parliament (including theSenate) and under article 254 (2) to have reported on a particular issueas would have been required at any time by the Senate, he was not to befaulted after he presented the audit report 2013/2014 to the Senate. Upon receipt of the report, the Senatewas empowered to call for a report on any particular issue undersub-article 2 of article 254, and in so doing was empowered in the samemanner as a high court to summons the 2nd Interest Party countygovernor in accordance with article 125 of the Constitution.
  3. If the Senate would order a report under article 254 (2) of theConstitution it had power to consider a report under article 229 (7)whether filed in the County Assembly or to Parliament or both.
  4. The Senate was empowered to summon any person in pursuant to itspowers under article 125 of the Constitution, including the accountingofficers of the County Governments if such officers would provideinformation or evidence in relation to the national revenue allocated to aparticular county. Section 30(3)(f) of the County Governments Act of 2012 provided that the CountyGovernor would be accountable for the management and use of countyresources. By implication that provision meant that the County Governor asthe overall head of the county was accountable for the utilization of countyresources including the national revenue allocated to his or herrespective county.
  5. The County Governors were not answerable to the County Assembly interms of fiscal management of the county resources under section 149 ofthe Public Finance Management Act 2012, they were to be held to account bythe Senate for the national revenue allocated to their respective countiesin view of the provisions of section 30(3) (f) of the of the CountyGovernments Act, 2012 as read together with article 10(2) (c) on thenational values and principles of governance. Governors being stateofficers were bound by the national values of transparency, accountabilityand observance of good governance when performing their duties as theChief Executive Officers of the County Governments.
  6. The 1st Interested Party vide a letter dated May 11,2014 was summoned to appear before the Senate for purposes of presentingdocuments for consideration, the Senate was exercising its powers underarticle 125 of the Constitution. In its letter the Senate indicated thatthey had considered the report of the Auditor General on the financialoperations of the County Executive for the Financial Year 2013/2014(July1, 2013 to June 30, 2014). The letter could not be issued if the 2ndInterested Party did not have relevant knowledge or information necessaryto assist the Senate on clarification.Therefore 2nd Interested Party could properly besummoned by the 1st Respondent.
  7. The action taken by the 1st Respondent was within itsconstitutional mandate to protect the interests of the County Governmentand to give effect to the principles of accountability by oversight of theCounty Government with regard to national revenue allocated to it andwas therefore not unconstitutional,unlawful, irregular, illegal, null and void as contended by thePetitioner.
  8. Article 229 (7) of the Constitution was to be interpretedpurposively as meaning that the Auditor General would have complied withhis duty under that sub-article if he presented his report to either of thetwo organs but it did not restrain him for presenting the report to bothof them. The reference toParliament or the County Assembly in article 229 (7) was to indicate where or with whom the report would be filed.
  9. It was not a direction that the Auditor General had to only file areport with one or the other of the two organs. The Court had to seek to harmoniseconstitutional provisions on related subject of accountability rather thanseparately give effect to one clause at the expense, or to the exclusion,of another. The Auditor General wasrequired by the purposive and harmonious construction of articles 254 (1)and 229 (7) of the Constitution to present his audit reports to the Senateand the County Assembly,and not to either one or the other organ.
  10. Article 6 (2)of the Constitution required the 1st Interested Party (the County Assembly)to work with the 1st Respondent (the Senate), so that article10 of the Constitution on national values and principles of governancewhich bound all state organs, state officers, public officers and allpersons whenever any of them made or implemented public policy decisionswas upheld. Article 2 (1) of the Constitution declared the Constitution asthe supreme law of the Republic and it bound all persons and all stateorgans at both national and county levels. Hence, the 1stInterested Party and the Petitioner being public officers were not anexemption to being summoned by the 1st Respondent.
  11. The Senate was given an oversight role by article 96 of theConstitution and the Petitioner and 1st Interested Party wereall bound by the Constitution to the principle of accountability.Secondly, while the two organs had concurrent jurisdiction to consider anauditor’s report, the two had different scopes of consideration so thatone, the Senate, had a more expansive jurisdiction to protect theinterests of counties and their county governments including the CountyAssembly and an to oversight of national revenue to the County Governmentsof which the County Assembly was part.Accordingly, while the two organs had concurrent jurisdiction underarticle 229 (7) to consider the auditor’s report, their scope ofconsideration was not coordinate.The County Assembly for example had no mandate to oversight theCounty Executive on the national revenue allocated to the CountyGovernment. Indeed, article 185 (3)expressly required the County Assembly to observe the principle ofseparation of powers.
  12. The Senatewas vested under article 96 of the Constitution as the oversight of theCounty Government with regard to national revenue allocated to the CountyGovernment. The County Assembly had to defer to the consideration of thereport on such matters to the Senate.The two organs had therefore with regard to the respective extentsof their jurisdiction power to consider audits report, whetherconcurrently or simultaneously or one after the other to their different scopesof jurisdiction. The timelines ofarticle 229 (8) that within three months after having received an auditreport, Parliament or the County Assembly should debate and consider thereport and take appropriate action, it was a constitutional provisions forefficient dealing with questions of accountability consistent with goodgovernance and not a limit on one organ’s consideration of a report afterthe other organ had to the extent of its jurisdiction considered thereport
  13. Because of the different powers of the two constitutional organs,the exercise of concurrent jurisdiction to consider auditor’s report byone did not affect the consideration of the report by the other where theother had a wider or different ambit of consideration of the Report; thatwas to say that despite the two organs having, in judicial parlance,original concurrent jurisdiction to receive and review an audit reportunder article 229, the scope of review may vary in nature and extentmaking the jurisdictions unco-ordinate even though concurrent inthat the one was not an appellate or revisionary jurisdiction over theother.
  14. The legislative jurisdiction of the National Assembly and theSenate was concurrent but not coordinate because the Senate was entrustedwith a less expansive legislative role than the National Assembly. Itstood as the Constitution’s safeguard for the principle of DevolvedGovernment.
  15. The Senate and the County Governments were to work together toensure that the purpose of devolution was achieved. The two bodies cannotwork separately and since the County Government received funds from thenational level they could not check themselves. Accountability had to comefrom a body not within the county level, thus the Senate.
  16. TheAuditor General was under articles 229(7) and 254 (1) of the Constitutionobligated to submit his annual reports to parliament and the CountyAssembly. The Senate had an oversight responsibility over the CountyGovernment with regard to national revenue allocated to it. Therefore, thejurisdiction of the Senate and the County Assembly to consider the auditreports was concurrent but not coordinate and the Senate had under article254 (2) power to call for reports from the Auditor General over anyparticular issue and under article 125 authority to summon the CountyGovernor.

Petition dismissed.

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