Weekly Newsletter 037/2018

Weekly Newsletter 037/2018



Kenya Law

Weekly Newsletter


The Criteria for Conferment of the title of Senior Counsel to a select number of the Members of the Legal profession is not Discriminatory.
  Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR
Constitutional and Human Rights Division
 Petition No. 36 of 2018
 High Court at Nairobi
 E. C. Mwita J.
August 3, 2018
Reported by Rutto Jepchirchir Faith
Download the Decision

Advocates - Senior Counsel-conferment of the title senior counsel - criteria for selection of advocates to be conferred with the title of senior counsel - whether the Advocates (Senior Counsel Conferment and Privileges) rules 2011 were inconsistent with section 17 of the Advocates Act on conferment of the title of Senior Counsel and therefore ultra vires-Advocates Act, section 17; Advocates (Senior Counsel Conferment and Privileges) rules 2011, rule 7(f)
Constitutional Law – fundamental rights and freedoms – right to equality and freedom from discrimination – right  of advocates who do not ordinarily litigate cases in court to be conferred the title of Senior Counsel -whether the Advocates (Senior Counsel Conferment and Privileges) rules 2011 were discriminatory for not including advocates who did not ordinarily litigate cases in court – Constitution of Kenya, 2010, article  27;Advocates (Senior Counsel Conferment and Privileges) rules 2011,rule 7(f)
Statutes - interpretation of statutes - interpretation of the Advocates Act, section 17- where the rules were inconsistent with the enabling statute- whether the impugned rules were inconsistent with section 17 of the Advocates Act on conferment of the title of Senior Counsel and therefore ultra vires -   Statutory Instruments Act, No 23 of 2013, section 24(2) ; Advocates Act, section 17; Advocates (Senior Counsel Conferment and Privileges) rules 2011,rule 7(f)
Words and phrases-    discrimination – definition of discrimination – the effect of a law or established practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship- Differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured - Black’s Law Dictionary, 9th Edition
 
Brief facts
 The Petitioners’ complaint was that the  National Assembly enacted section 17 of the Advocates Act , (the Act) giving the President powers to confer the title of “Senior Counsel” to members of the 2nd Respondent with irreproachable professional conduct and who had rendered exemplary service to the legal and public service in the country. They further averred that pursuant to section 17, there was promulgation of rules setting out the criteria for qualifications for conferment of the title of Senior Counsel.  
The Petitioners contended that the criteria set by the rules was inconsistent with the  provisions of section 17 of the Act; irrational, unreasonable, and discriminatory as it discriminated against a section of members of the 2nd Respondent who did not ordinarily litigate cases in court on behalf of their clients.  They stated that section 17 of the Act limited qualifications for conferment of the title of Senior Counsel to those advocates who appeared in court only, hence the rules were, to that extent, inconsistent with the Parent Act.
Issues:

  1. Whether the Advocates (Senior Counsel Conferment and Privileges) Rules 2011 were discriminatory for not including advocates who did not ordinarily litigate cases in court.
  2. Whether the Advocates (Senior Counsel Conferment and Privileges) Rules 2011 rules were inconsistent with section 17 of the Advocates Act on conferment of the title of Senior Counsel and therefore ultra vires. 
  3. What were the benefits and privileges that accrued to an advocate conferred the rank of Senior Counsel?
    • What was the process and consideration to be followed in order to confer the title of Senior Counsel to an Advocate?
Relevant provisions
Constitution of Kenya, 2010
Article 27
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law, and that
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Advocates Act

(1) The President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and dignity of Senior Counsel.

(2) A person shall not be eligible to be a Senior Counsel unless—
(a)     he is a duly enrolled advocate of the High Court of not less than fifteen years’ standing; or
(b)     being a person to whom section 10 applies, he holds, and has held for a continuous period of not less than fifteen years, one or other of the qualifications specified in section 13(1).
(3)      The grant shall be made not later than sixty days upon receipt of a list of names submitted by the Committee on Senior Counsel through the Chief Justice.
Section 17
Rule 7(1)(f)
Criteria for conferment.
7.  (1)    A person qualifies for conferment of the rank of Senior Counsel if that person—
f) has argued at least five substantive appeals before the Supreme Court or the Court of Appeal and at least ten substantive cases before the High Court within a period of ten years preceding the person’s application for conferment or, in the case of an applicant who does not ordinarily undertake litigation, has shown outstanding performance in the area of practice of the applicant;
 
 
 
  Held:

  1. Discrimination meant affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description were subjected to; restrictions to which persons of another description were not made subject or have accorded privileges or advantages which were not accorded to persons of another such description. Discrimination also meant unfair treatment or denial of normal privileges to persons because of their race, age sex, a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured. Discrimination, simply put, was any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that had real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups.
  2. The Constitution advocated for non-discrimination as a fundamental right which guaranteed that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. However, not every distinction or differentiation in treatment amounted to discrimination.Discrimination was deemed to arise where equal classes of people were subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.  Discrimination involved an element of unfavourable bias. Unfavourable bias had to be shown by the complainant; and the bias had to be based on the grounds set in the constitutional definition of the word “discriminatory” in section 82 of the repealed Constitution.
  3. Section 17 of the Advocates Act bestowed powers on the President to confer the rank of “Senior Counsel” on an advocate who was of irreproachable professional conduct who had rendered exemplary service to the legal and public service in Kenya. Section 17(2) identified qualifications of a person who was duly enrolled as an advocate of not less than fifteen years or one to whom section 10 of the Act applied and who had held practicing certificate continuously for fifteen years. In order to give effect to section 17, the impugned rules were promulgated including rule 7 which, for the sake of the instant petition, provided for additional criteria for conferment of the title of Senior Counsel. Rule 7(f) provided that the advocate should have argued a substantive matter before a superior, regional or international court.There were other criteria in rule 7 but the Petitioners had singled out the criteria in 7(f) for attack and used it to submit that the body of rules was discriminatory. They had not, however, demonstrated in what manner the rest of the requirements in rule 7 were discriminatory, if at all, yet the criteria in rule 7 covered a wide range of areas for consideration which the petitioners appeared to have lost sight of.
  4. In order to determine whether rule 7(f) was indeed discriminatory, one had to read all the provisions relating to conferment of senior Counsel holistically and determine whether there was really discrimination as the petitioners alleged. In doing so, one had to consider the benefits and privileges that accrued to the advocate conferred the rank of Senior Counsel. The answer,lay in rule 19 which provided for duties, powers and privileges of Senior Counsel. The privileges included precedence in having matters mentioned first when appearing in court or in a Tribunal; appearing in court or Tribunal robed; wearing special robes; sitting in a separate place designated for Senior Counsel or front bench and any such other privileges the Council of the Law Society may consider appropriate. Simply put, Senior Counsel would have their cases called out and heard first whenever they appeared in court.
  5. There had to be precision in constitutional litigation to enable parties respond to the issues at hand and the Court to make the correct determination on the issues. A Constitutional challenge should be explicit, with due notice to all affected. That requirement ensured that all interested parties had an opportunity to make representations. Constitutional litigation required accuracy in the identification of the provisions of legislation that were challenged to be inconsistent with the Constitution.
  6. It was necessary to establish a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement. That played a positive role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
  7. The question the Petitioners ought to have addressed was how rule 7(f) was discriminatory when, except for those advocates who litigated cases in court, the rest would not enjoy any of the privileges in rule 19, even if the rank of Senior Counsel was conferred on them.Rule 7(f) or any other rule did not result into discrimination or have a discriminatory effect given that only rule 7(f) was the principal rule under attack in the instant petition and there had not been any effort to show that the rest of the rules had a problem.
  8. The names of those to be conferred the title of Senior Counsel were to be picked by a committee of the 2nd Respondent which was established for that purpose and upon application. That meant the process through which those to be conferred were picked was a peer review exercise by fellow members who knew one another and the extent to which those who finally made the list were distinguished in their area of practice, be it in litigation or not. Rule 7(f) was therefore not in any way discriminatory to the extent of violating of article 27 of the Constitution.
  9. The advocate to be conferred with the role of senior counsel should have argued a substantive matter before a superior, regional or international court. Superior Courts in terms of article 162(1), of the Constitution, were the Supreme Court, the Court Appeal, the High Court and the Employment and Labour Relations Court and the Environmental and Land Court. Appearing and arguing a substantive matter in any of the above Courts would suffice as one of the requirements for consideration for purposes of conferment of the rank of Senior Counsel.
  10. There were several other criteria and rule 7(f) gave only one of them but not the only requirement. In that regard, the Petitioners’ apprehension that for one to qualify he had to only have argued cases before the Supreme Court, regional or International Courts was unfounded and misinformed. There had to be rationale and justification in recommending one for the conferment of the rank of Senior Counsel.
  11. In England where the practice originated from, the rank of Queens Counsel (QC) was reserved for a few members within the legal profession who had a distinguished track record in the profession and public service which was in the public knowledge, hence the title was conferred based on sound and rational grounds. Hence, there was no discrimination either in the purpose of enacting the rules or in the effect of implementing them.
  12. Discrimination which was disallowed by the Constitution was that which was unjustifiable and without any rational basis. It was always the duty of the party who alleged discrimination to demonstrate that there was unreasonable differential treatment accorded to persons of the same class or category to amount to real discrimination. Equality was not to be confused with uniformity lest uniformity became the enemy of equality.
  13. Section 17 did not give criteria for choosing those to be conferred with the rank save for the requirement that such a person was to be of irreproachable conduct and ought to have rendered exemplary service to the legal profession and public service for not less than fifteen years. The section however did not state how the committee would identify the advocate. For that reason, there was need to come up with rules that would define the criteria for identification and that was what the impugned rules were for.
  14. The Petitioners were required to point out with clarity and precision the alleged inconsistency between the rules and the parent Act, and to what extent there was tension between the two.
  15. For a rule or regulation to be declared void for reason of in consistency with the parent Act, there had to be clear and irreconcilable tension or inconsistency.Section 24(2) of the Statutory Instruments Act, No 23 of 2013 was clear that a statutory instrument should not be inconsistent with the provisions of the enabling legislation or any Act and that the statutory instrument should be void to the extent of the inconsistency. Section 2 of the Act defined “statutory instrument” to include a rule. If the impugned rules were to be found inconsistent with the Act, they would have been declared void.
  16. As a general principle of interpretation of statutes, a law or regulation should as much as possible be read to be consistent and be declared unconstitutional or void only where it was impossible to rationalize or reconcile it with the constitution or the Act. It was the duty of a judicial officer to interpret legislation in conformity with the constitution so far as that was reasonably possible, while on the other hand, the legislature was under a duty to pass legislation that was reasonably clear.
  17. What the Petitioners did was to plead inconsistency and leave the matter to Court by merely saying the rules were inconsistent with section 17 of the Act. No effort was made at all to show how each of the 20 rules that made up the Advocates (Senior Counsel Conferment and Privileges) Rules, contradicted section 17 of the parent Act for them to be void on account of inconsistency. It was not enough to plead inconsistency or tension between rules and the Act. The Petitioners were to go further and demonstrate how that was so which they fell short of. The rules only expounded on section 17 which set policy without going into the finer details leaving it for the rules.
 
Petition dismissed .Each party to bear its own costs.
 
 
Kenya Law
Case Updates Issue 037/2018
Case Summaries

EVIDENCE LAW Court holds that the manner in which the Lamu Port, South Sudan, Ethiopia Transport Corridor (LAPSSET) project was conceptualized and implemented was unlawful and unconstitutional

Mohamed Ali Baadi and others v Attorney General and 12 others [2018] eKLR
Petition No 22 of 2012
High Court at Nairobi
P Nyamweya, J Ngugi, B T Jaden, J M Mativo, JJ
April 30, 2018
Reported by Ian Kiptoo

Download the Decision

Evidence Law-expert witness evidence-admissibility of expert witness evidence-opinion evidence-what were the factors to be considered by a court when weighing the admissibility of an expert witness opinion-Evidence Act, section 48
Statutes-interpretation of statutes-interpretation of section 30(1) of the Inter-Governmental Relations Act defining inter-governmental disputes-whether a dispute that arose out of failure by the National Government to consult a county government before commencement of a project that affected the County could be classified as an inter-governmental dispute as defined under section 30(1) of the Inter-governmental Relations Act-Inter-Governmental Relations Act, section, 30(1)
Devolution-cooperation between national and county governments-consultation and information exchange between national and county government-subsidiarity principle-where the National government did not involve Lamu County in the LAPSSET Project-claim by the Respondents that Lamu County was not in existence at the commencement of the LAPSSET project-whether the failure by the National government to consult a county government in conceptualization and implementation of a project that would affect the County was unconstitutional
Jurisdiction-jurisdiction of the High Court-jurisdiction of the National Environment Tribunal (NET)-Jurisdiction of the High Court vis-à-vis the NET-scope and mandate of the NET jurisdiction-whether the High Court had jurisdiction to hear and determine a dispute that involved environmental issues as opposed to the Committee and National Environment Tribunal (NET) established under the Environmental Management and Co-ordination Act-Environmental Management and Coordination Act,1999,sections 31 and 129
Jurisdiction-jurisdiction of the High Court-jurisdiction of the Environment and Land Court-Jurisdiction of the High Court vis-à-vis the Environment and Land Court-jurisdiction in hybrid cases-application of the predominant purpose test-whether High Court had jurisdiction, as opposed to the Environment and Land Court, to hear and determine a petition that involved violation of rights despite having environmental issues-Constitution of Kenya, 2010 articles 22, 23, 42, 69, 70, 162(2) (b) and 163(3)(b) & (d); Environment and Land court Act, sections 4 and 13
Jurisdiction-doctrine of ripeness-proactive approach in environmental governance-jurisdiction to determine a matter where a process was ongoing-whether the matter before the Court challenging the legality and constitutionality of the LAPSSET Project was ripe for determination as the Strategic Environment Assessment (SEA) process was ongoing
Environmental Law-Strategic Environmental Assessment(SEA)-requirement of SEA before commencement of a project-claim by the Respondents that SEA was not a requirement in the Environmental Management Coordination Act prior to commencement of the LAPSSET project-whether a Strategic Environment Assessment (SEA), that had not been given provision prior to the amendment of EMCA, was a required legal step that ought to have been conducted before the commencement of the LAPSSET project-Environmental Management and Coordination Act,1999,section 57A; Environmental (Impact Assessment and Audit) Regulations, 2003, regulation 42
Constitutional Law-national values and principles of governance-public participation-public participation in environmental matters-standard test of public participation in environmental governance-whether the Petitioners right to public participation was violated as the proponents of the LAPSSET Project did not engage stakeholders before commencement of the Project-Constitution of Kenya, 2010, article 10; Environmental Regulation 2003, regulations 12, 22, and 23
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-claim that the implementation of the LAPSSET project had violated or threatened to violate a number of the Petitioners and Lamu’s residents rights to earn a livelihood, a clean and healthy environment, cultural rights and the right to information-Constitution of Kenya, 2010, articles 11, 24, 26, 28, 31, 35, 40(3)(b), 43, 44 and 51; Vienna Declaration adopted by the 1993 United nations World Conference on Human Rights, principle 20; International Covenant on Civil and Political Rights, article 27
Constitutional Law-fundamental rights and freedoms-limitation of fundamental rights and freedoms-right to property-fishing rights-proportionality test-whether traditional and artisanal fishermen in the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya traditional fishing rights could be limited-Constitution of Kenya, 2010, articles 24 and 40(3)

Brief facts:
The Petitioners opposed the manner in which the LAPSSET Project was conceptualized and implemented claiming violation of the Constitution and statutory law. Additionally, they were opposed to the manner in which the LAPSSET Project was designed. They also contended that the project was designed without putting in place adequate measures to mitigate the adverse effects of the project. In particular, the Petitioners' case was that the manner in which the LAPSSET Project was being implemented violated statutory and constitutional principles and values among them sustainable development, transparency, public participation, accountability and specifically violated their constitutional rights to earn a livelihood, a clean and healthy environment, cultural rights and the right to information.
On the other hand, the 1st to 6th Respondents contended that the Court lacked jurisdiction as the Environmental Impact Assessment License for the first three berths of the proposed Lamu Port had already been issued, and that the License could only be challenged at the NEMA Tribunal pursuant to section 129 of EMCA.

Issues:

  1. What were the factors to be considered by a court when weighing the admissibility of an expert witness opinion?
  2. Whether a dispute that arose out of failure by the National Government to consult a county government before commencement of a project that affected the County could be classified as an inter-governmental dispute as defined under section 30(1) of the Inter-governmental Relations Act.
  3. Whether the failure by the National government to consult a county government in conceptualization and implementation of a project that would affect the County was unconstitutional.
  4. Whether the High Court had jurisdiction to:
    1. hear and determine a dispute that involved environmental issues as opposed to the Committee and National Environment Tribunal (NET) established under the Environmental Management and Co-Ordination Act;
    2. hear and determine a petition that involved violation of constitutional rights despite having environmental issues as opposed to the Environment and Land Court.
  5. Whether the matter before the Court challenging the legality and constitutionality of the LAPSSET Project was ripe for determination as the Strategic Environment Assessment (SEA) process was still ongoing.
  6. Whether a Strategic Environment Assessment, that had not been given provision prior to the amendment of EMCA, was a required legal step that ought to have been conducted before the commencement of the LAPSSET project.
  7. Whether the Environmental Impact Assessment license issued by the 8th Respondent (NEMA) was unlawful for not containing an Environmental Management and Monitoring Plan (EMMP) or an Inception Environmental Plan prepared by the 5th and 7th Respondent.
  8. Whether the Petitioners right to public participation was violated as the proponents of the LAPSSET Project did not engage stakeholders before commencement of the Project.
  9. Whether the Petitioners right to information was violated as they were not provided sufficient information leading to the conceptualization and implementation of the LAPSSET project.
  10. Whether the Petitioners and Lamu residents’ right to a clean and healthy environment was threatened by the LAPSSET project.
  11. Whether traditional and artisanal fishermen in Lamu;
    1. Had property rights in the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya.
    2. Traditional fishing rights could be limited.
  12. Whether the artisanal and traditional fishermen rights to property had been violated by the LAPSSET project as they were not compensated.
  13. Whether Lamu residents right to culture and way of life was threatened by;
    1. Failure by the proponents of the LAPSSET project to consult the indigenous community of Lamu about the potential cultural impacts of the Project;
    2. Failure by the government to draw up a management plan to preserve Lamu as a UNESCO world heritage site. Read More..

Relevant Provisions of the Law
Rio Declaration on Environment and Development
Principle 10

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level” and that “each individual shall have…the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available…”

Principle 22

For the “effective participation” of “indigenous people and their communities and other local communities” in the “achievement of sustainable development.”
Vienna Declaration, adopted by the 1993 United Nations World Conference on Human Rights,
Principle 20

Recognizes the inherent dignity and the unique contribution of indigenous peoples…and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being.

Constitution of Kenya, 2010
Preamble

“We, the People of Kenya ... Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations..."

Article 70
(1) If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a Court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the Court may make any order, or give any directions, it considers appropriate—

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Environment and Land Court Act
Section 13
Jurisdiction of the Court
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, chooses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.

Environmental (Impact Assessment and Audit) Regulations, 2003
Regulation 42
42 (1) Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for the implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others.
(2) The assessment carried out under this regulation shall consider the effect of implementation of alternative policy actions taking into consideration -

(a) the use of natural resources;
(b) the protection and conservation of biodiversity;
(c) Human settlement and cultural issues;
(d) Socio-economic factors; and
(e) the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance.

(3)The Government, and all the lead agencies shall in the development of sector or national policy, incorporate principles of strategic environmental assessment.

Held:

  1. Under section 48 of the Evidence Act, opinions of science or art were admissible if made by persons specially skilled in such science or art. A person specially skilled in art or science was therefore deemed to be an expert. Whether a person was specially skilled within section 48 of the Evidence Act was a question of fact that had to be decided by the Court and the opinion of the expert was also a question of fact. If the Court was not satisfied that the witness possessed special skill in the relevant area, his or her opinion should be excluded.
  2. While expert evidence was important evidence, it was nevertheless merely part of the evidence which a court had to take into account. Four consequences flowed from that:
    1. Expert evidence did not trump all other evidence. It was axiomatic that judges were entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it was the primary factual evidence which was of the greatest importance. It was therefore necessary to ensure that expert evidence was not elevated into a fixed framework or formula, against which actions were then to be rigidly judged with a mathematical precision.
    2. A judge did not have to consider expert evidence in a vacuum. It should therefore not be artificially separated from the rest of the evidence. To do so was a structural failing. A court’s findings would often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence would assist the Court in forming its views on the expert testimony and vice versa. For example, expert evidence could provide a framework for the consideration of other evidence.
    3. Where there was conflicting expert opinion, a judge was required to test it against the background of all the other evidence in the case which they accepted in order to decide which expert evidence was cogent and give reasons why the Court preferred the evidence of one expert as opposed to the other.
    4. A judge was required to consider all the evidence in the case, including that of the experts, before making any findings of fact.
  3. A further criterion for assessing an expert’s evidence focused on the quality of the expert’s reasoning. A Court was required to examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. Where there was a conflict between experts on a fundamental point, it was the Court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning.
  4. There was no doubt that issues of jurisdiction should be determined at the earliest possible opportunity because jurisdiction was the lifeline of a case and without jurisdiction, a court ought to down its tools. A court’s jurisdiction flowed from either the Constitution or legislation or both. Section 30(1) of the Inter-Governmental Relations Act defined a dispute under the Act as an inter-governmental dispute.
  5. The Petition was brought by residents of Lamu County. It cited violations of certain fundamental rights affecting the people of Lamu County. It was not, by any definition, a dispute between the two levels of government. Furthermore, Lamu County was only enjoined to the suit as an interested party and did not bring the suit; and neither was it a principal party to the suit. It would be to over-stretch the meaning assigned to dispute under the Inter-Governmental Relations Act if the suit was to be submitted for resolution under Part IV of Inter-Governmental Relations Act. In any event, to require a suit alleging violations of fundamental rights by citizens to be submitted for resolution under Part IV of Inter-Governmental Relations Act would unnecessarily limit access to rights given to individuals under article 22 of the Constitution of Kenya, 2010 (Constitution) to challenge any alleged violations of the Bill of Rights.
  6. Even though the LAPSSET Project was an initiative of the National Government, the Constitution required consultation, cooperation and co-ordination between the National Government and County Governments in the performance of their functions. As a necessary implication of the subsidiarity principle- a recognition that the County Government more closely reflected the concerns, preferences and choices of the local population and that 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 – the Lamu County Government needed to be involved in the LAPSSET Project, and, in particular those components – like the construction of the Lamu Port and the Mega-City which were located and implemented within the County. Such involvement had to, at the minimum; include basic consultation and co-ordination between the two levels of government on the project in question or under consideration.
  7. The Environmental Management Coordination Act, 1999(EMCA) availed a number of adjudicatory mechanisms for environmental matters that members of the public could utilize to secure environmental rights and enforce environmental laws without necessarily having recourse to the High Court. Those key mechanisms were the Committee established under section 31 of EMCA and the National Environment Tribunal. Functions of the Committee, under section 31, were to investigate any complaints or allegations against any person or against National Environment Management Authority (NEMA) in relation to the condition of the environment in Kenya. However, its decisions were only useful as findings and recommendations to the National Environment Council. Thus, the issues raised in the Petition and remedies sought were therefore not appropriate subjects for the Committee established under section 31.
  8. On the other hand, the National Environment Tribunal (NET) was empowered to inquire into the matters arising from refusal to grant or transfer a license, imposition of any condition, limitation or restriction on a license, the amount of money required to be paid as a fee and the imposition of an environmental improvement order by the Authority.
  9. The mandate of the National Environment Tribunal (NET) was limited to matters provided for in section 129 of EMCA. Of all the functions of the Tribunal under section 129 of EMCA, the only applicable one would be section 129(1)(a) to the extent that the Petitioners challenged the completeness and scientific sufficiency of the ESIA Report that resulted in the license issued by NEMA to the LAPSSET Project's proponent. However, the scope and range of issues, rights and controversies involved in the instant dispute surpassed the narrow question of the conditions which could be imposed as part of the EIA License. Indeed, it was notable that section 129(1) (b) to (e) was only applicable when a licensee was challenging the terms of a license by NEMA.
  10. While Kenya’s jurisprudential policy was to encourage parties to exhaust and honour alternative forums of dispute resolution where they were provided for by statute, the exhaustion doctrine was only applicable where the alternative forum was accessible, affordable, timely and effective. The Tribunal was not a suitable forum for the purpose of settling environmental conflicts at community level as disclosed in the Petition. In addition, the design of the Tribunal was such that it did not envisage the participation of all interested parties, such as developers, government, the community, non-governmental organizations, and environmental groups in a joint effort aimed at restoring the environment and agreeing on their sustainable use. Differently put, the multiplicity of parties and the polycentricity of issues in a case such as the instant case made it unsuitable for the Tribunal.
  11. The Republic v Karisa Chengo & 2 others case did not resolve the knotted question of which court among the High Court and the two equal status Courts under article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases were cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. Courts had identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts resolved the issue by using the predominant purpose test which involved inquiring what the most substantial question or issue presented in the controversy was.
  12. The case presented by the Petitioners was a hybrid one, where majority of the issues raised involved the interpretation and application of fundamental rights and freedoms which gave the Court jurisdiction. The correct test to utilize was the predominant purpose test. Similarly, there was a narrow class of cases where the exhaustion doctrine in environmental-related controversies did not mandatorily oust the jurisdiction of the Court as the first port of call for litigants. That was so where the alternative fora did not provide an accessible, affordable, timely and effective remedy. Article 165(3) (d) of the Constitution donated to the Court the jurisdiction to entertain any challenges concerning the failure to comply with any constitutional and statutory obligations. Therefore, it would amount to an abdication by the Court of one of its core mandates were it not to seize its jurisdiction in the instant case.
  13. The controversy presented was not pre-mature for the reason that the Strategic Environmental Assessment (SEA) of the LAPSSET Project had not been concluded. The Court also concluded that the proactive approach to environmental governance which included the precautionary principle which the Court was required by the Constitution to apply, made the present controversy ripe for consideration even before the conclusion of the SEA process. Differently put, the doctrine of ripeness did not preclude the Court from hearing and determining the case.
  14. The process of Strategic Environmental Assessment (SEA) was a required legal step prior to embarking on the Environmental and Social Impact Assessment (ESIA) process or implementation of any of the individual components of the LAPSSET Project. By virtue of regulation 42 of the Environmental (Impact Assessment and Audit) Regulations, 2003 as well as the magnitude of the LAPSSET Project, and the significant environmental and cumulative impacts of the Project which implicated Policies, Plans and Programmes.
  15. There was no need to have specific backing in the text of the EMCA for regulation 42 of the Environmental (Impact Assessment and Audit) Regulations, 2003 to be effective. Hence, the Respondents and the 1st and 3rd Interested Parties were legally required to comply with regulation 42 even prior to the passage of the amendment to EMCA of 2015 which introduced section 57A of EMCA (providing for SEA in the legislative scheme).
  16. Beyond the text and the content of EMCA and its Regulations, a necessary reading of the environmental governance principles contained in the Constitution including articles 10, 69 and 70 made it mandatory for the Project Proponents to carry out SEA before embarking on any of the individual components of the LAPSSET Project. Those constitutional provisions, among other things, required a proactive approach to integrate environmental considerations into the higher levels of decision making for projects with the potential to have significant inter-linkages between economic and social considerations. The Project Proponents had failed to carry out Strategic Environmental Assessment (SEA) before embarking on the individual components of the LAPSSET Project as they were duty-bound to do. Therefore, that made the entire LAPSSET Project procedurally infirm.
  17. The Project Proponents failed to adhere to the EIA License issued in the following ways:
    1. The Project Proponents violated condition 2.3 of the EIA License which required them to compensate the local fishermen and in consultation with the Fisheries Department [to] provide improved fishing gear and modern fishing landing sites with adequate infrastructure such as power, access roads and cold rooms.
    2. The Project Proponents failed to adhere to condition 2.23 of the EIA License which clearly required the 5th and 7th Respondents to develop a detailed Environmental Monitoring and Management Plan (EMMP) for the first three berths of the proposed Lamu Port. At the very minimum, the EMMP to be developed had to contain the baseline environmental data and specific monitoring indicators, which could be used to compare the data being collected in a structured way at determined frequency levels.
  18. The 5th and 7th Respondents were not at fault, as a matter of law, for electing to pay out monies for the replanting of mangrove trees to the Kenya Forestry Services (KFS). There was no illegality, and it was not a violation of the EIA License for the Project Proponent to compensate Kenya Forest Services for the mangroves rather than the local community directly. The Project Proponent was at liberty to select an institutional arrangement that it felt would be effective for the purpose of the replanting of the mangrove forests as long as the means chosen was rationally related to the purpose.
  19. Project proponents of projects which were likely to have significant environmental, social, cultural and other impacts were required by the principles of environmental governance in the Constitution, EMCA as well as EMCA Regulations and Guidelines to consider and assess external costs of the projects, policies, plans and programmes associated with proposed projects as part of the ESIA and SEA Processes. Those included the applicability of alternatives; the issue of intergenerational equity; the probability and the costs of calamitous events including oil spills and epidemics associated with the expected high rates of urbanisation; and the welfare losses – both monetary and non-monetary to be borne by the local population – including loss of opportunity costs associated with the new developmental path. Such consideration, assessment and estimation of external costs should be included in the ESIA and SEA Reports, and NEMA was duty-bound to consider them before issuing licenses.
  20. The Project Proponents of the LAPSSET Project and its associated infrastructure failed to consider, assess, estimate and report on the external costs of the first three berths of the Lamu Project as well as the entire LAPSSET Project. That amounted to a procedural inadequacy in the preparation and consideration of the ESIA and SEA Reports.
  21. The Constitution of Kenya at articles 10, 69 and 70 and EMCA obligated the Project Proponents of the LAPSSET Project to fashion an effective programme of public participation by the local community in Lamu County during the conceptualization and implementation of the LAPSSET Project and its various individual components. Such a programme of public participation had to include adequate notification, education and information, review and reaction and, finally, consultation, dialogue and interaction with the local population who would be affected by the Project.
  22. The proper standard of ascertaining whether there was adequate public participation in environmental matters was the reasonableness standard which had to include compliance with prescribed statutory provisions as to public participation. Furthermore, failure to adhere to set statutory provisions on public participation was per se a violation of the constitutional requirement of public participation and yielded an inescapable conclusion that the project which did not so comply suffered from inadequate public participation.
  23. In the instant case, there was no evidence tendered by the Project Proponents to demonstrate that the steps prescribed under regulations 17, 22 and 23 of the Environmental (Impact Assessment and Audit) Regulations, 2003 were adhered to. Thus, there was a per se violation of the requirement of public participation required in the Constitution and EMCA.
  24. Access to information was a key pillar in the environmental governance scheme in the Constitution because effective public participation in decision-making depended on full, accurate and up-to-date information. Furthermore, the right of access to information in environmental matters constituted two aspects:
    1. A passive aspect which included the right of the public to seek from public authorities, and the obligation of public authorities to provide information in response to a request and;
    2. An active aspect which included right of the public to receive information and the obligation of authorities to collect and disseminate information of public interest without the need for a specific request.
  25. In the instant case, the Court found that while the Respondents met the statutory requirements as to disclosure of the ESIA Report, no evidence was tendered to demonstrate that the relevant information leading to the conception of the LAPSSET Project, and the preliminary studies (if any) undertaken were availed to the Petitioners to enable them to fully participate in the Project before implementation commenced. Thus, to that extent the Petitioners' rights to access information on the Project were violated.
  26. The LAPSSET Project Proponents had not put in place adequate mitigation measures consistent with the principle of sustainable development as required by the Constitution and statutory law to minimize the adverse environmental impacts of the proposed Lamu Port Project, and that failure created a verifiable and imminent risk to the violation of the right to a clean and healthy environment of the Petitioners and residents of Lamu County.
  27. The more than 4,700 fishermen from Lamu County had traditional fishing rights to the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya and within Kenya’s Exclusive Economic Zone (EEZ). That was as a consequence of the over-arching right constituted by a progressive and holistic reading of the Bill of Rights and, in particular, articles 26, 28, 40, 42, 43, and 70 of the Constitution, as well as a necessary reading of general principles of International Customary Law.
  28. The government may only have regulated or interfered with the traditional fishing rights for compelling and substantial objectives, justifiable in a modern democratic society such as the conservation and management of the resources, or development of a project of national interest as required by article 24 of the Constitution. Even where the Government had made a determination that it was necessary to limit the traditional fishing rights of the local fishermen, it had to do so subject to full and prompt compensation as provided for under article 40(3)(b) of the Constitution.
  29. Given the dynamic and indeterminate way in which the Government, even after the exercise of all due diligence and good faith, compensated local fishermen for the loss of traditional fishing rights, the government may yet have incurred further obligations to the local fishermen after the initial compensation. In particular, the government was obligated to give the local fishermen priority to fish for food and commercial purposes over other user groups as part of the State’s obligations to the local fishermen as indigenous communities.
  30. It was a clear violation of the law for the 5th and 7th Respondents to have failed to compensate the local fishermen even after identifying them with specificity, conceptualizing a credible methodology for internalizing their costs, and a precise method of approximating their loss in monetary terms. Furthermore, compensation was required as a pre-requisite to embarking on the project in the EIA License issued on March 27, 2014.
  31. It was a further constitutional violation verging on discrimination under article 27 of the Constitution for the 5th and 7th Respondents and the 1st Interested Party to have proceeded to promptly compensate land owners whose property was compulsorily acquired for the LAPSSET Project after identifying the correct land owners yet delay and/or fail to pay the equally agreed compensation for the local fishermen. Therefore, the local fishermen were entitled to full and prompt compensation for the loss of their traditional fishing rights, the failure or delay to compensate them was unfair, discriminatory and a gross violation of their rights to their traditional fishing rights and their right to earn a living.
  32. Culture was fluid and changed from time to time. It was susceptible to be influenced by many factors such as religion, education, and influence from other communities, inter-marriage and urbanization. But there were certain aspects of culture that identified a particular group, their history, ancestry and way of life and that diversity was recognized and protected by the Constitution.
  33. Failure to have prior consultation with the indigenous community in Lamu Island about the potential cultural impacts of the LAPSSET Project on the culture of the Lamu Island was a violation of the Petitioners’ right to culture as enshrined in articles 11(1) and 44 of the Constitution and various international treaties. Failure to consult was a continuing one to the extent that a proponent of a development project was not obligated to only consult at the point of conceptualization of a project but was duty-bound to design on-going consultations with the local indigenous communities throughout the project cycle.
  34. The failure by the Government to draw up a Management Plan to preserve Lamu Island as a UNESCO World Heritage Site despite various declarations by UNESCO that it does amounted to a violation of the right to culture of the Petitioners and the local Lamu Community. In addition, failure to design a specific, measurable and actionable plan in consultation with the Lamu residents on how to protect the cultural identity of the region during and after the construction of the Proposed Lamu Port and the mega-city was a violation of the right to culture of the Petitioners and the residents of the region and needed to be remedied.

Petition allowed
Orders
On the question of procedural infirmities of the LAPSSET Project

  1. Regarding, the EIA License, the Court ordered a return of the License back to NEMA for re-consideration. In re-considering the EIA License for the first three berths of the proposed Lamu Port, NEMA had to comply with the following guidelines:
    1. The ESIA Report had to consider, assess, estimate and report on the external costs of the first three berths of the proposed Lamu Port;
    2. The Project Proponent had to prepare a detailed Environmental Measuring and Monitoring Plan (EMMP); and
    3. All the other guidelines specified later on the disposition in relation to the ESIA and SEA.
  2. The EIA License re-consideration process had to be done within one year from the date thereof and a report filed in the Court to confirm compliance.
  3. For the avoidance of doubt, the orders of the Court on remand of the EIA License to NEMA meant that the EIA License was returned to NEMA for further action in accordance with the judgment, and the said EIA License would in the meantime remain valid and operational pending any further orders of the Court in accordance with the disposition.
  4. Regarding SEA, the Court directed that NEMA had to satisfy itself that the final SEA Report adequately considered all the guidelines given in the disposition in reconsidering the EIA License when assessing each of the individual components of LAPSSET Project and its associated infrastructure.

On whether the County Government of Lamu was involved in the conceptualization and implementation of the LAPSSET Project and if not the consequences of such non-involvement:

  1. The Project Proponents had to, going forward; implement the LAPSSET Project in consultation, cooperation and co-ordination with the 2nd Interested Party (Lamu County Government) and other affected counties and government agencies.

On whether there was sufficient public participation in the conceptualization and implementation of the LAPSSET Project

  1. The Court ordered a return of the EIA License back to NEMA for re-consideration after the Project Proponents satisfied NEMA that they had complied with Regulations 17, 22 and 23 of the Environmental (Impact Assessment and Audit) Regulations, 2003 and had otherwise fashioned a programme of public participation which was effective, inclusive and was appropriate for the scale of the issue involved.
  2. Regarding SEA, the Court directed that NEMA had to satisfy itself that the on-going SEA process similarly considered effective and inclusive public participation in its assessment of each of the individual components of LAPSSET Project and its associated infrastructure.

On whether the Petitioners’ right to access information was violated

  1. Going forward the Project Proponents to craft, as part of the public participation requirement ordered, a demonstrably effective programme to disseminate information on the LAPSSET Project and, specifically those aspects affecting Lamu County, to the Petitioners.

On whether the Petitioners Rights to a clean and healthy Environment had been violated

  1. The Court ordered that the Project Proponents fully comply with the mitigation measures they had identified in the ESIA Report as approved by NEMA and, where those proved inadequate to modify them in consultation with the local population and NEMA, and as part of the public participation programme ordered.

Whether the Petitioners' traditional fishing rights had been violated

  1. The Project Proponent had to pay out the full and prompt compensation to the local fishermen as assessed and accepted by the Project Proponent. For the avoidance of doubt the total compensation of all the different components as per the Project Proponent’s own accepted documents was Kenya Shillings One Billion Seven Hundred and Sixty Million Four Hundred and Twenty Four Thousand (Kshs 1,760,424,000.00).
  2. The Project Proponents had to make those payments and meet the obligations identified in the document entitled “Fisheries Resource Valuation and Compensation: A Report for Consideration by Lamu Port and Coal Plant Power Generation Company in Lamu” within one year of today.
  3. The Project Proponents were directed to file a written report to the Court on the progress made in that regard within one year of delivery of the Judgement.

On the Petitioners' rights to culture

  1. That as part of its renewed programme of public participation ordered, the Project Proponents were required to include a demonstrably specific programme for consultation with the Petitioners and the other Lamu Island residents about the impact the LAPSSET Project was likely to have on their culture as a distinct indigenous community and how to mitigate any adverse effects on the culture.
  2. That within one year of the date of delivery of the Judgement, the Project Proponents design a specific, measurable and actionable Plan in consultation with the Lamu Island residents on how to protect the cultural identity of the region during and after the construction of the Lamu Port and mega-city.
  3. That in its re-consideration of the EIA License as ordered, NEMA satisfy itself that those two components related to the right to culture had been taken into account.
  4. That the Project Proponents were directed to file a written report to the Court on the progress made in that regard within six (6) months of the date of delivery of the Judgement.
  5. The government was directed to draw up a Management Plan to preserve Lamu Island as a UNESCO World Heritage Site as requested by various declarations by UNESCO within one year of the date of delivery of the Judgement.
  6. That the Attorney General was directed to file a report to the Court on the progress made in drawing up the Management Plan to preserve Lamu Island as UNESCO World Heritage Site within six (6) months of delivery of the Judgement.
  7. The Respondents to pay the Petitioners the basic expert and witness costs.
JURISDICTION An application for correction of errors had to specifically point at the particular page/paragraph and/or portion of the judgment where the alleged error was situated

Robert Tom Martins Kibisu V Republic [2018] eKLR
Petition No. 3 of 2014
Supreme Court
J. B. Ojwang, S. C. Wanjala, N. S. Njoki, I. Lenaola & Ibrahim SCJJ
February 28, 2018
Reported by Felix Okiri

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Jurisdiction – jurisdiction to review judgments - jurisdiction of the Supreme Court to review its own judgments – where the Applicant alleged that the presiding judge of the Supreme Court that heard and determined the petition had a personal interest in the outcome of the petition in a matter affecting him at the High Court of Kenya in Petition No. 244 of 2014 – whether article 163(7) clothed the Court with the power to review the substance of its decision - whether the Applicant had made a case to warrant the Court reviewing its decision – Constitution of Kenya, 2010, article 163(7); Supreme Court Act, section 21(4)
Civil practice and procedure – review - form and manner of instituting a review -what essentials were to be contained in an application for review of a judgment?
Words and Phrases – definition – definition of the word bias - an inclination or prejudice for or against one thing or person - Oxford English Dictionary; the Blacks’ Law Dictionary 9th edition

Brief Facts:
The Applicant sought a review against the judgment of the instant Court in Petition No. 3 of 2014 on ground that the presiding judge of the Supreme Court that heard and determined the petition had a personal interest in the outcome of the petition in a matter affecting him at the High Court of Kenya in Petition No. 244 of 2014, a matter that was yet to be concluded.
The Applicant’s case was that since Honourable Justice Tunoi had a case in the High Court seeking to safeguard his retirement age at 74 years as provided for under the repealed Constitution, then as a presiding judge, he was inclined to uphold section 115(3) of the Armed Forces Act, an Act of Parliament under the old constitutional order, in breach of article 50(6) of the new Constitution. It was the Applicant’s preposition that the Honorable Justice was inclined to trump upon the new constitutional order, since that new Constitution was also curtailing his pecuniary interest.
Applicant had sought among other orders- a declaration that section 115(3) of the repealed Armed Forces Act (Cap. 199, Laws of Kenya) denied, violated, or infringed a right or fundamental freedom in the Bill of Rights, and was in conflict with article 24 when read together with article 25 (a) and (c), of the Constitution and was discriminatory, unfair, and therefore unconstitutional.

Issues:

  1. Whether the Supreme Court had jurisdiction to sit on appeal or review over its own decisions.
  2. What were the circumstances upon which the Supreme Court could review, any of its judgments, rulings or orders?
  3. What essentials were to be contained in an application for review of a judgment?
  4. Whether the failure of the Court to cite its own decision on a particular issue could be a ground for review of its judgment.
  5. Whether the mere allegation of bias was enough ground for a judge to recuse himself. Read More...

Relevant provisions of the law
Constitution of Kenya
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”.

Held:

  1. The Court’s appellate jurisdiction under article 163(4) of the Constitution did not grant it power to deal with a second appeal to itself in the same cause of action. Article 163(7) did not clothe the Court with the power to review the substance of its decision in the same matter between same parties. Article 163(7) of the Constitution could only be invoked by a litigant who was seeking to convince the Court, to depart from its previous decision, on grounds for example, that such decision was made per incuriam, or that, the decision was no longer good law. Article 163(7) of the Constitution could not be invoked by a losing party as a basis for the Court to review its own Judgment, decision, or order nor could it confer upon the Supreme Court, jurisdiction to sit on appeal over its own Judgment.
  2. Reviewing a judgment or decision was not the same as departing from a previous decision by a Court. The application before the Court could not be anchored on article 163(7) of the Constitution.
  3. The Supreme Court Rules, rule 20(4) was mischievous as it conferred jurisdiction to the Court which had not been conferred by either the Constitution or statute. Unlike section 21(4) of the Supreme Court Act, rule 20(4) of the Supreme Court Rules on its face appeared to confer upon the Court, jurisdiction or powers, to review its own judgments, or decisions beyond the confines of the slip rule.
  4. Subsidiary legislation had to flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, conferred upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions. No rule of the Court, not even rule 20(4), as worded, could confer upon the Court, jurisdiction to review its own decisions. If that were the intent of rule 20(4), then the said rule would be of doubtful constitutional validity. Rule 20(4) was not capable of conferring upon the Court, powers to review its decisions, beyond the confines of the slip rule, as embodied in section 21(4) of the Supreme Court Act. At best, the rule could only be understood to be echoing section 21(4) of the Supreme Court Act.
  5. Taking into account the edicts and values embodied in chapter 10 of the Constitution, as a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated above. However, in exercise of its inherent powers, the Court may, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances were limited to situations where:
    1. the judgment, ruling, or order was obtained, by fraud or deceit;
    2. the judgment, ruling, or order, was a nullity, such as, when the Court itself was not competent;
    3. the Court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
    4. The judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
  6. The Applicant had not alleged any fraud or deceit in the making of the judgment. He had also not claimed that the judgment subject of the instant application was a nullity. That judgment was also not a product of consent between the Applicant and the Respondent. The judgment was also not based on a repealed law save for the fact that the judgment had an aspect of repealed law (Armed Forces Act, Cap. 199), as one of the laws under which the subject matter was determined since the cause of action arose in the High Court. However, that did not in any way render the judgment subject to review a nullity as even the Applicant in making his case through all the superior courts was cognizant that his rights could only be legally and procedurally be ventilated within the legal framework that prevailed when the cause of action arose. So that at the time of determining the matter, the applicable law was still fully in force and it was the basis upon which it was determined. The matter before the Court had failed to meet any of the exceptional circumstances under which a review might lay to the Court as elaborated in the Outa case.
  7. While the application before the Court was framed as one seeking review for correction of errors apparent on the face of the record, the mischief was in the details. An application could not be said to be for correction of errors when it was anchored and replicate with allegation of discontentment with the Court’s finding and/or appreciation of legal principles and their interpretation thereof. Such dissatisfaction was normally a ground for appeal. Unfortunately for the Applicant, even that appeal option had been exhausted as the instant Court was the apex court of the land.
  8. In an application for correction of errors, the focal point was usually the judgment of the Court/tribunal which was sought to be corrected. An Applicant was thus duty bound to specifically point at the particular page/paragraph and/or portion of the judgment where he opined that the alleged error was situated. An error could not be apparent on the face of the judgment when that error required evidence to be adduced so as to enable the Court to discern it.
  9. It was not necessary that an application for correction of errors drew such a huge record like the one that was before the Court. The precision of such an application and its clear nature was what clothed the Court with the jurisdiction to even move suo motto for what was erroneous was occasionally glaringly obvious.
  10. An application for review of a Court’s judgment could not call for the changing and/or altering of the Court’s final orders and findings drawn from the reasoning in the entire judgment.
  11. Section 21(4) of the Supreme Court Act, did not confer upon the instant Court, jurisdiction, or powers, to sit on appeal over its own judgments. Neither, did it confer upon the Court, powers to review any of its judgments once delivered, save to correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the Judgment or Order so as to give effect to its meaning or intention. Any corrections made pursuant to section 21(4) of the Supreme Court Act became part of the Judgment or Order as initially rendered. The main purpose of section 21(4) of the Supreme Court Act was to steer a Judgment, decision, or Order of the instant Court, towards logical, or clerical, perfection.
  12. The fact that the Supreme Court (or any other court) did not cite its own decision on a particular issue could not be a ground for review of its judgment. The mere fact that the Supreme Court did not, in its decision, expressly cite the Communication Commission of Kenya & 5 others v. Royal Media Services & 5 others [2014] KLR-SCK, eKLR, (CCK case) on the issue of legitimate expectation did not in any way warrant a case for review. The Applicant had not alleged that the failure to cite the CCK case led the Court to making a contrary decision in total disregard of that earlier decision. The Applicant had not contended that the Court developed a new jurisprudence on the same issue while the Court had already rendered itself on the law. If that were the case, then it would prima facie form a case for review as the error or contradiction would have been quite glaring.
  13. As a general principle, each case that came before a court of law was decided on its own facts and merit. While the CCK case laid down the Court’s jurisprudence on legitimate expectation, it was not true that in any subsequent case where a litigant raised the issue of legitimate expectation, the CCK case had to be cited verbatim however remote the issue of legitimate expectation was. It was inaccurate to argue therefore that that had to be done notwithstanding that the case was decided on other issues or even where the Court determined that the issue of legitimate expectation, as framed by a litigant, was not an issue for determination. It was the discretion of the Court to frame issues for determination that a particular case presented before it.
  14. The doctrine of stare decisis was articulated in article 163(7) of the Constitution: all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. The Applicant was in essence unlawfully inviting the Court to be bound by the decisions of the High Court, failure to which the Court’s decisions would be subject to review. The Supreme Court was not bound by decisions of lower Courts. Those decisions only retained their persuasive nature before the instant Court.
  15. Bias was prima facie a factor that might lead to a judge recusing himself from a matter. Such an action was meant to safeguard the sanctity of the judicial process in tandem with the principle of natural justice that no man should be a judge in his own case and that one should be tried and/or have his dispute determined by an impartial tribunal. That was what was provided for in article 50(1) of the Constitution. As one of the fundamental tenets of the rule of law, bias was impartiality of the judiciary. In circumstances where bias was alleged and proved, then the pragmatic practice was that the particular judge or magistrate would as a matter of course recuse/remove himself from the hearing and determination of the matter.
  16. When interrogating a case of bias, the test was that of a reasonable person and not the mindset of the judge. In considering the possibility of bias, it was not the mind of the judge which was considered but the impression given to reasonable people. When the courts were faced with proceedings for the disqualification of a judge, it was necessary to consider whether there was a reasonable ground for assuming the possibility of a bias and whether it was likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test was objective and the facts constituting bias had to be specifically alleged and established. In such cases the Court had to carefully scrutinize the affidavits on either side, remembering that when some litigants lose their case they were unable or unwilling to see the correctness of the verdict and were apt to attribute that verdict to a bias in the mind of the judge, magistrate or tribunal.
  17. The Court dealing with the issue of disqualification was not and could not, go into the question of whether the officer was or would be actually biased. All the Court could do was to carefully examine the facts which were alleged to show bias and from those facts draw an interference, as any reasonable and fair-minded person would do, that the judge was biased or was likely to be biased. The single fact that a judge had sat on many cases involving one party could not be sufficient reason for that judge to disqualify himself. The fact that Tunoi, JA had sat on many cases involving the Goldenberg Affair, without anything more, was absolutely no good reason for him to disqualify himself.
  18. Mere apprehension of bias could not be a ground for recusal. The allegations of bias had to be factual and proved. The apprehension by the Applicant that he would not get justice in court was a normal apprehension whereby each party who had a matter in court was apprehensive as to the decision the court would make. The court may find in his or her favour and that uncertainty made parties to be apprehensive. If a party interpreted his apprehension and concluded that the court would be biased then that was taking the wrong dimension unless allegations of bias were proved by facts. The aspect of judging encompassed the unpredictability of the decision. If that aspect was missing then parties would be able to make their own predictions and make conclusion as to how the court was likely to decide a matter.
  19. No cogent evidence had been placed before the Court to warrant a finding of bias being made on the part of the presiding judge even if the Court had the jurisdiction to entertain such a complaint. While a petition filed by Justice Tunoi had been cited for the Court, that was not sufficient as evidence of bias. The Applicant’s allegations were not only based on apprehension, but on conjuncture. It could never be that the mere fact that a Judge, who as rightly submitted by the Respondent, had rights under the Bill of Rights, he would be biased by the mere fact that he too was pursuing his rights in a different court at the same time he was hearing a different matter touching on issues of rights under the Bill of Rights. The office of a judge did not indeed strip a judge from the enjoyment of rights under the Bill of Rights.
  20. The correct approach to an application for the recusal of members of the instant Court was objective and the onus of establishing it rested upon the Applicant. The question was whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not or would not bring an impartial mind to bear on the adjudication of the case, that was a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension had to be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It had to be assumed that they could disabuse their minds of any irrelevant personal beliefs or predispositions. They had to take into account the fact that they had a duty to sit in any case in which they were not obliged to recuse themselves. However, an impartial judge was a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there were reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.
  21. The case for bias as presented by the Applicant was thus dead on arrival because the Applicant had completely failed to show that the fact that Justice Tunoi was challenging the judges’ retirement age under the Constitution, 2010 had raised perceptions of bias in the minds of reasonable people who had notice that the Honourable judge was presiding over the Applicant’s petition. What the Applicant raised were his own bias perceptions and not perceptions in the public domain. If a party interpreted his apprehension and concluded that the Court would be biased then that was taking the wrong dimension unless allegations of bias were proved by facts. The allegation of bias on the part of the presiding judge had not been proved and neither could they fall within the exceptional circumstances that might warrant the Court reviewing its judgment.
  22. While the application before the Court was framed as one seeking review, it fell short of the exceptional circumstances under which that jurisdiction might be invoked. The application was a disguised appeal against the instant Court’s own judgment calculated towards availing to the Applicant a second bite at the cherry. The elaborate access to justice that the Constitution had granted every person under the Bill of Rights should not be taken as a panacea for endless litigation. The rights in the Bill of Rights remained to be enjoyed and pursued within the laid down legal doctrines and principles.

Application dismissed with no order as to costs.

CONSTITUTIONAL LAW There was no inconsistency between the investigative powers donated to the Ethics and Anti-Corruption Commission (EACC) under the Anti-Corruption and Economic Crimes (ACEC Act) and the provisions of article 79 as read with article 252 of the Constitution

Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] eKLR
Petition No. 109 of 2016
High Court
At Nairobi
G V Odunga, E C Mwita, J Mativo, JJ
June 8, 2018
Reported by Felix Okiri

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Constitutional Law – constitutionality of statutes – constitutionality of sections 23, 24, 25, 25A, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 56b, 56C, 72 and 73 of the Anti-Corruption and Economic Crimes (ACEC Act) and sections 11 (d) & (k) of the Ethics and Anti-Corruption Commission Act (EACC Act) – whether those provisions were unconstitutional to the extent that they mandated the Ethics and Anti-Corruption Commission (EACC) to investigate corruption cases
Constitutional Law – Fundamental Rights and Freedoms – rights of privacy; property, fair administrative action and fair hearing – where investigations of Petitioner’s accounts by the EACC were alleged to have breached the Petitioners’ rights to privacy; property, fair administrative action and fair hearing – whether the EACC had violated the statutory laid down procedure in conducting search warrants - Criminal Procedure Code, section 118A; Constitution of Kenya, 2010, articles 31, 40, 48 and 50
Statutes – interpretation of statutes –- principles applicable in interpreting statutory provisions –- what were the principles applicable in interpreting Statutory Provisions – what were the principles applicable in interpreting statutory provisions vis – a – vis Constitutional provisions
Constitutional law - interpretation of the Constitution- principles applicable in interpreting Constitutional provisions - what were the principles applicable in interpreting Constitutional provisions vis – a – vis statutory provisions - – Constitution of Kenya, 2010 articles 159(2)(e) and 259
Judgments-precedents-principle of stare decisis -the binding effect of the judgments of Superior Courts-the binding nature of a Supreme Court judgment on the High Court Words and phrases – integrity – definition of the word integrity – what was the meaning of the word integrity - soundness of moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it was synonymous with - probity, honesty, and uprightness - Black’s Law Dictionary.

Brief facts:
The 1st and 2nd Petitioners challenged the constitutionality of the provisions of sections 23, 24, 25, 25A, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 56b, 56C, 72 and 73 of the ACEC Act and sections 11 (d) & (k) of the EACC Act to the extent that those provisions conferred the EACC power to undertake criminal investigations which functions they alleged were vested by the Constitution to the National Police Service and the Director of Public Prosecutions.
The Petitioners argued that EACC had unconstitutionally encroached on the mandate of the National Police Service under article 244 of the Constitution and section 4 of the National Police Service Act whose core functions included among others the investigation of crimes.

Issues:

  1. Whether the impugned provisions were unconstitutional to the extent that they unconstitutionally encroached on the mandate of the National Police Service under article 244 of the Constitution and section 4 of the National Police Service Act by mandating the EACC to investigate corruption cases.
  2. Whether EACC was enjoined to give notice to the 3rd Petitioner (Dr. Evans Odhiambo Kidero) prior to applying for the search warrants.
  3. Whether EACC violated the Petitioners’ constitutional rights of privacy, property, fair administrative action and fair hearing by investigating the accounts of the Petitioners.
  4. What were the principles of statutory and constitutional interpretation?
  5. What were the ingredients of a valid search warrant?
  6. What was the applicability of the doctrine of stare decisis?
  7. What was the distinction between the right to a fair administrative action under article 47 of the Constitution and the right to a fair hearing under article 50 (1) of the Constitution? Read More..

Relevant provisions of the law
The Constitution of Kenya, 2010
Article 157(6).
The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

Article 252 (1)
Each commission, and each holder of an independent office—

(a) may conduct investigations on its own initiative or on a complaint made by a member of the public;
(b) has the powers necessary for conciliation, mediation and negotiation;
(c) shall recruit its own staff; and
(d) may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.

Held:

  1. Interpretation was the process of attributing meaning to the words used in a document, 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 was 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.
  2. Article 259 of the Constitution 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 contribute to good governance. That approach had been described as a mandatory constitutional canon of statutory and Constitutional interpretation. The Court had a mandatory duty to adopt an interpretation that conformed to article 259 of the Constitution.
  3. Constitutional provisions had to be construed purposively and in a contextual manner and courts were simultaneously constrained by the language used. Courts might 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 without sufficient attention to the historical contextual scene, which included the political and constitutional history leading up to the enactment of a particular provision.
  4. The EACC Act having been enacted pursuant to article 79 of the Constitution had to be understood purposively because it was umbilically linked to the Constitution. That interpretation had to promote the spirit, purport and objects of the Constitution. A generous construction had to be preferred over a merely textual or legalistic one in order to afford the fullest possible constitutional meanings and guarantees. In searching for the purpose, it was legitimate to seek to identify the mischief sought to be remedied. In part, that was why it was helpful, where appropriate, to pay due attention to the social and historical background of the legislation. The provisions 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. That was so even when the ordinary meaning of the provision to be construed was clear and unambiguous.
  5. One of the canons of statutory construction that a court might look into was the historical setting of an Act, to ascertain the problem with which the Act in question had been designed to deal. A holistic interpretation of the Constitution meant interpreting the Constitution in context. It was the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
  6. In construing the provisions prescribing the constitutional and statutory mandate of the EACC and the constitutionality or otherwise of the impugned provisions, the Court was obliged 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. The Court was also obliged to be guided by the provisions of article 159 (e) of the constitution which required it to promote and protect the purposes and principles of the Constitution.
  7. 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.
  8. It was the duty of a court in construing statutes to seek an interpretation that promoted the objects of the principles and values of the Constitution and to avoid an interpretation that clashed therewith. 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 of the Constitution.
  9. Courts had been called upon on numerous occasions 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 did not foist upon the society their value judgments. They respected and accepted the prevailing values, and did what was expected of them. The courts would, on the other hand, fail in their duty if they did not rise to the occasion but approved 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.
  10. Words, spoken or written, were the means of communication. Where they were possible of giving one and only one meaning there was no problem. But where there was a possibility of two meanings, a problem arose and the real intention was to be sorted out. The Legislature became functus officio after enacting statutes in so far as those statutes were concerned. It was not their function to interpret the statutes. Legislature enacted and the judges interpreted. The difficulty with judges was that they could not say that they did not understand a particular provision of an enactment. They had to interpret in one way or another. They could not remand or refer back the matter to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find out the real intent of the Legislature. Consequently, the superior courts had to give the rules of interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation came into play only where clarity or precision in the provisions of the statute were found missing.
  11. A court had to try to determine how a statute should be enforced. There were numerous rules of interpreting a statute. 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 had to ordinarily be taken as conclusive.
  12. 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 for the very good reason that it had no power to legislate. The power to legislate had not been conferred on the courts. The Court could not add words to a statute or read words into it which were not there. Assuming there was a defect or an omission in the words used by the legislature, the court could not go to its aid to correct or make up the deficiency. Courts decided what the law was and not what it should be. The courts adopted a construction which would carry out the obvious intention of the legislature but could not legislate itself.
  13. In construing a statutory provision, the first and the foremost rule of construction was that of literal construction. All that the Court had to see at the very outset was what the provision said. If the provision was unambiguous and if from that provision the legislative intent was clear, the other rules of construction of statutes needed not be called into aid. They were called into aid only when the legislative intention was not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which could not be warranted by the words employed by the Legislature.
  14. It was trite law that in interpreting the provisions of a statute, the Court should apply the golden rule of construction. The plain meaning of the language in a statute was the safest guide to follow in construing the statute. According to the golden or general rule of construction, the words of a statute had to be given their ordinary, literal and grammatical meaning and if by so doing it was ascertained that the words were clear and unambiguous, then effect should be given to their ordinary meaning unless it was apparent that such a literal construction fell within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction, for example where it led to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent.
  15. Interpretation had to depend on the text and the context. They were the bases of interpretation. If the text was the texture, context was what gave the color. Neither could be ignored. Both were important. The best interpretation was that which made the textual interpretation match the contextual.
  16. The touchstone of interpretation was the intention of the legislature. The legislature might reveal its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute should serve as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, one had to read the text closely, keeping in mind that the initial understanding of the text might not be the only plausible interpretation of the statute or even the correct one. 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 needed 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.
  17. The grammatical meaning of the words alone was a strict construction which no longer found favour with true construction of statutes. The literal method was now completely out of date and had been replaced by purposive approach. Such approach promoted the general legislative purpose underlying the provision which was to be adopted. Whenever the strict interpretation of a statute gave rise to an absurd and unjust situation, the judges should use their good sense to remedy it; by reading words in, if necessary so as to do what Parliament would have done, had they had the situation in mind.
  18. It was an acceptable and established principle of statutory interpretation that the intention of the drafters of the Constitution or legislation could be gathered from the history leading to the enactment of the Constitution.
  19. 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 a statute, the Court should give life to the intention of the lawmaker instead of stifling it.
  20. The EACC Act established the EACC pursuant to article 79 of the Constitution. It further provided for the functions and powers of the Commission, the qualifications and procedures for the appointment of the Chairperson and members of the Commission, and for other connected purposes. The Act enumerated certain functions, in addition to the roles that the Constitution had already accorded the commission. A notable function under the Constitution was the power to oversee the implementation process and compliance with the provisions of Chapter six of the Constitution on leadership and integrity.
  21. The EACC was the only constitutional Commission that was not specifically located in Chapter Fifteen of the Constitution. Its composition and aspects of its mandate were specifically statutory. Subject to the provisions of article 79 of the Constitution, the EACC was established by the EACC Act. It replaced the Kenya Anti-Corruption Commission (KACC) after the adoption of the Constitution.
  22. It was imperative that in the construction of the additional mandate provided under section 11 of the EACC Act, a determination was to be made whether the said mandate could be read in manner consistent with the mandate contemplated under article 79 of the Constitution. A clear reading of article 79 of the Constitution left no doubt that the constitutional mandate of the Commission contemplated under the said provision was to ensure compliance with, and enforcement of, the provisions of Chapter Six of the Constitution.
  23. The Constitution provided, under Chapter 6, for leadership and integrity of all public officers. The Chapter was predicated upon the assumption that State officers were the nerve center of the Republic and carried the highest level of responsibility in the management of state affairs and, therefore, their conduct should be beyond reproach. That meant that under the Constitution, Kenyans decreed that those whose conduct did not bring honor, public confidence and integrity had no place in the management of public affairs. That was to ensure that those entrusted with the management of public affairs and resources were persons of good character, probity and uprightness. The chapter laid down the principles upon which the State Officers should conduct themselves.
  24. The architecture of Constitution of Kenya was intended to deal with a long legacy of impunity, institutional frailties and embedded corruption. The Centre-piece of anti-corruption and public integrity reform was Chapter Six of the Constitution, the Anti-Corruption and Economic Crimes Act and the Leadership and Integrity Act.
  25. The EACC was mandated under section 11(1)(d) of the ACEC Act to investigate and recommend to the DPP the prosecution of any acts of corruption or violation of codes of ethics or other matters prescribed under that Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, under the provisions of section 35 of ACEC Act as read with the provisions of section 11(1) (d) of EACC Act, upon concluding its investigations, EACC was required to report to the DPP who was required to examine the report, evidence gathered and make an independent decision on whether to prosecute or not.
  26. The EACC lacked prosecutorial powers and had to forward all cases it had investigated to the Director of Public Prosecutions (DPP) for prosecution. The State’s prosecutorial powers were vested in the DPP. The decision to institute criminal proceedings by the DPP while discretionary, was also not subject to the direction or control of any authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act.
  27. Section 11 of the EACC Act in addition to the functions conferred by the Constitution, prescribed additional functions among them - investigations. The impugned provisions of the ACEC Act fell under Part IV on investigations covering sections 33 to 37 of the Act; Part V covering offences provided under sections 38 to 50 of the Act; Part V1 covering compensation and recovery of improper benefit and relevant to the instant case was sections 56B which dealt with out of court settlement and section 56C relating to recovery of funds and other assets. It was those sections that the Court had been invited to find ultra vires the constitutional mandate of EACC provided under article 79 of the Constitution.
  28. EACC had a constitutional status vested in commissions established under Chapter 15 of the Constitution. Flowing from that was article 252 (1) (d) of the Constitution which provided that each commission, and each holder of an independent officemight perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.
  29. Article 244 (b) of the Constitution provided that the National Police Service was to prevent corruption and promote and practice transparency and accountability. Article 245 (4) of the Constitution provided that the Cabinet secretary responsible for police services might lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person might give a direction to the Inspector-General with respect to the investigation of any particular offence or offences; and the enforcement of the law against any particular person or persons.
  30. Article 245 (1) (d) of the Constitution granted EACC powers to perform functions prescribed by an Act of Parliament. The provisions in question had been prescribed by Acts of Parliament. Article 244 (b) and 245 (4) of the Constitution granted the National Police Service powers to prevent corruption and promote transparency and power to investigate any particular offence or offences.
  31. The Court could not deviate from its own duty of determining the constitutionality of an impugned statute. Every law had to pass through the test of constitutionality which was a formal test of rationality. The foundation of that power was the theory that the Constitution which was the fundamental law of the land, was the will of the people, while a statute was only the creation of the elected representatives of the people. When, therefore, the will of the legislature as declared in the statute, stood in opposition to that of the people as declared in the Constitution, the will of the people had to prevail.
  32. A law which violated the Constitution was void. In such cases, the Court had to examine as to what factors the court should weigh while determining the constitutionality of a statute. The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law was challenged on grounds that it infringed the Constitution, what the court had to consider was the direct and inevitable effect of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration was the object and reasons as well as legislative history of the statute. That would help the court in arriving at a more objective and justifiable approach.
  33. Articles 252 (1) (d) and 244 (b) and 245 (4) of the Constitution had to be read and construed together. A constitution could not be unconstitutional for lack of another constitution against which alleged unconstitutionality had to be construed. The Constitution granted powers to commissions to perform functions prescribed by an Act of Parliament. The same Constitution created the National Police Service and equally vested it with mandate to prevent corruption and to undertake investigations. The Constitution affirmed its place as the supreme law of the land. In article 2(3), the Constitution provided that its validity or legality was not subject to challenge by or before any court or other state organ. Therefore, even if one felt that a clause in the Constitution was somewhat unconstitutional or illegal, there would be no forum and person before which to challenge it and to make that declaration of unconstitutionality.
  34. 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.
  35. No constitutional clause was superior or inferior to another. Constitutional clauses were complementary. The Constitution mandated constitutional commissions to perform functions prescribed by an Act of Parliament. EACC functions were premised on its constitutional and statutory mandate. The same Constitution mandated the National Police Service to undertake investigations and prevent corruption. While a Constitution may have had its imperfections, to construe those imperfections as amounting to unconstitutionality was jurisprudentially unsound and only created needless confusion.
  36. The impugned provisions had a constitutional underpinning and challenging them amounted to challenging article 252 (1) (d) of the Constitution which was affront to article 2 (3) of the Constitution. There was no inconsistency between the powers donated to the EACC under the ACEC Act and the provisions of article 79 as read with article 252 of the Constitution. A holistic interpretation of articles 79 and 252 of the Constitution led to the conclusion that the Legislature acted within its powers when it enacted the ACEC Act.
  37. A search warrant constituted a serious encroachment on the rights of the individual and careful scrutiny by the courts was required. A valid warrant was one that, in a reasonably intelligible manner:-
    1. stated the statutory provision in terms of which it was issued;
    2. identified the searcher;
    3. clearly mentioned the authority it conferred upon the searcher;
    4. identified the person, container or premises to be searched;
    5. described the article to be searched for and seized, with sufficient particularity; and
    6. specified the offence which triggered the criminal investigation and named the suspected offender.
    There were no allegations before the Court that the above ingredients were missing in the impugned warrants.
  38. Search warrants ought to be scrutinized with technical rigour and exactitude. A search warrant was not some kind of mere, interdepartmental correspondence or note. It was a substantive weapon in the armoury of the State. It embodied awesome powers as well as formidable consequences. It had to be issued with care, after careful scrutiny by a magistrate or justice, and not reflexively upon a mere, checklist approach In the absence of evidence of abuse of power or a gross violation of the rights of a person to be searched, a court would be slow to find that a search warrant was unlawful on purely technical grounds.
  39. The right to privacy was expressly guaranteed by article 31 of the Constitution, while the statutory procedure for conducting search and seizure by the police had three inbuilt requirements to be met. Such requirements were that:-
    1. prior to the search and seizure the police should obtain a search warrant;
    2. such warrant should be issued by a judicial officer; and
    3. lastly there should be proof on oath that there was reasonable suspicion of commission of an offence.
    The above inbuilt requirements were present in the instant case.
  40. Police officers or other state agents could not lawfully enter upon and search any premises without a search warrant, nor could they carry away any property without the authority of the Court. The onus was on the person seeking the search warrant to prove the necessity for such warrant. The above requirements had not been proved to be absent in the proceedings leading to the issuance of the warrant. It was expected that when a police officer or any other investigator approached the Court for a warrant, there had to be reasonable suspicion of an offence being about to be committed or having been committed.
  41. The Criminal Procedure Code provided a simple yet effective mode of obtaining authority through the court. The court had to be satisfied through an affidavit on oath that the warrant or order was necessary for the conduct of the investigations. Section 118A of the Criminal Procedure Code provided that an application for search warrant was to be made ex-parte before a Magistrate.The order or warrant was never to be granted as a matter of course. To give the notice to the person to be investigated could easily jeopardize the incriminating evidence.
  42. A case was only an authority for what it decided. A decision was its ratio and not every observation found therein nor what logically followed from the various observations made in it. Every judgment had to be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which might 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 were to be found. The other was that a case was only an authority for what it actually decided.
  43. The ratio of any decision had to be understood in the background of the facts of the particular case. It was well settled that a little difference in facts or additional facts might make a lot of difference in the precedential value of a decision. 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 might alter the entire aspect. In deciding cases, the Court should avoid the temptation to decide cases by matching the color of one case against the color of another. To decide therefore, on which side of the line a case fell, the broad resemblance to another case was not at all decisive. Precedent should be followed only so far as it marked the path of justice. The cases of Tom Ojienda, SC t/a Tom Ojienda & Associates Advocates vs Ethics and Anti-Corruption Commission & 6 others and Erastus Kibiti Stephen vs Euro Bank Limited & another were distinguishable from the facts before the Court.
  44. A decision of a court of co-ordinate jurisdiction was not binding though it was entitled to its due respect. While decisions of co-ordinate courts were not binding, those decisions were highly persuasive. That was because of the concept of judicial comity which was the respect one court held for the decisions of another. As a concept, it was closely related to stare decisis. The doctrine of stare decisis was one long recognized as a principle of Kenya’s law. The decisions of an ordinary superior court were binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, it was to be followed in the absence of strong reason to the contrary.
  45. ‘Strong reason to the contrary’ did not mean a strong argumentative reason appealing to the particular judge, but something that might indicate that the prior decision was "given without consideration of a statute or some authority that ought to have been followed. “Strong reason to the contrary” was not to be construed according to the flexibility of the mind of the particular judge. Talking about consideration of a statute and authority or authorities that ought to have been followed, perhaps at that juncture was important to recall the provisions of section 118A of the Evidence Act.
  46. The right to a fair administrative action under article 47 of the 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 duties and statutory duties guided by constitutional principles and policy considerations and that 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.
  47. The 3rd Petitioner had not proved the alleged breach of his right to property under article 40 of the Constitution. Consequently, there had been a violation of the 3rd Petitioner’s rights to be heard or violation of rights under article 47 of the Constitution or rights to property.
  48. The instant Court’s jurisdiction sitting as a constitutional Court ought not to be invoked in matters which could properly be dealt with in the ordinary course of litigation. The current Constitution pervaded all aspects of life so much so that any action taken by a party might easily be transformed into a constitutional issue by simply citing some provision of the Constitution however remote. Any inclination to demand an inquiry every time there was a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialize the constitutional jurisdiction and further erode the proper administration of justice by allowing an abuse of the court process.
  49. Whereas every person was under an obligation to respect, uphold and defend the Constitution and had a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened pursuant to the provisions of article 3 and 22 of the Constitution, those provisions ought not to be abused.
  50. To institute a Constitutional Petition with a view to circumventing a process by which institutions established by the Constitution were to exercise their jurisdiction was an abuse of the Court process. To entertain such a course would lead to the Courts crippling such institutions rather than nurturing them to grow and develop. The Constitution ought only to be invoked when there was no other recourse for disposing of the matter. Where there was a remedy in Civil Law, a party should pursue that remedy. The Constitution was a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes.
  51. There was no difficulty in the 3rd Petitioner moving the Court which issued the search warrants ex parte to have the same set aside if the same were improperly obtained instead of transforming such grievance into a constitutional issue.

Consolidated Petitions dismissed with no orders as to costs.

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Kenya Law
Case Updates Issue 037/2018
Case Summaries

EVIDENCE LAW Court holds that the manner in which the Lamu Port, South Sudan, Ethiopia Transport Corridor (LAPSSET) project was conceptualized and implemented was unlawful and unconstitutional

Mohamed Ali Baadi and others v Attorney General and 12 others [2018] eKLR
Petition No 22 of 2012
High Court at Nairobi
P Nyamweya, J Ngugi, B T Jaden, J M Mativo, JJ
April 30, 2018
Reported by Ian Kiptoo

Download the Decision

Evidence Law-expert witness evidence-admissibility of expert witness evidence-opinion evidence-what were the factors to be considered by a court when weighing the admissibility of an expert witness opinion-Evidence Act, section 48
Statutes-interpretation of statutes-interpretation of section 30(1) of the Inter-Governmental Relations Act defining inter-governmental disputes-whether a dispute that arose out of failure by the National Government to consult a county government before commencement of a project that affected the County could be classified as an inter-governmental dispute as defined under section 30(1) of the Inter-governmental Relations Act-Inter-Governmental Relations Act, section, 30(1)
Devolution-cooperation between national and county governments-consultation and information exchange between national and county government-subsidiarity principle-where the National government did not involve Lamu County in the LAPSSET Project-claim by the Respondents that Lamu County was not in existence at the commencement of the LAPSSET project-whether the failure by the National government to consult a county government in conceptualization and implementation of a project that would affect the County was unconstitutional
Jurisdiction-jurisdiction of the High Court-jurisdiction of the National Environment Tribunal (NET)-Jurisdiction of the High Court vis-à-vis the NET-scope and mandate of the NET jurisdiction-whether the High Court had jurisdiction to hear and determine a dispute that involved environmental issues as opposed to the Committee and National Environment Tribunal (NET) established under the Environmental Management and Co-ordination Act-Environmental Management and Coordination Act,1999,sections 31 and 129
Jurisdiction-jurisdiction of the High Court-jurisdiction of the Environment and Land Court-Jurisdiction of the High Court vis-à-vis the Environment and Land Court-jurisdiction in hybrid cases-application of the predominant purpose test-whether High Court had jurisdiction, as opposed to the Environment and Land Court, to hear and determine a petition that involved violation of rights despite having environmental issues-Constitution of Kenya, 2010 articles 22, 23, 42, 69, 70, 162(2) (b) and 163(3)(b) & (d); Environment and Land court Act, sections 4 and 13
Jurisdiction-doctrine of ripeness-proactive approach in environmental governance-jurisdiction to determine a matter where a process was ongoing-whether the matter before the Court challenging the legality and constitutionality of the LAPSSET Project was ripe for determination as the Strategic Environment Assessment (SEA) process was ongoing
Environmental Law-Strategic Environmental Assessment(SEA)-requirement of SEA before commencement of a project-claim by the Respondents that SEA was not a requirement in the Environmental Management Coordination Act prior to commencement of the LAPSSET project-whether a Strategic Environment Assessment (SEA), that had not been given provision prior to the amendment of EMCA, was a required legal step that ought to have been conducted before the commencement of the LAPSSET project-Environmental Management and Coordination Act,1999,section 57A; Environmental (Impact Assessment and Audit) Regulations, 2003, regulation 42
Constitutional Law-national values and principles of governance-public participation-public participation in environmental matters-standard test of public participation in environmental governance-whether the Petitioners right to public participation was violated as the proponents of the LAPSSET Project did not engage stakeholders before commencement of the Project-Constitution of Kenya, 2010, article 10; Environmental Regulation 2003, regulations 12, 22, and 23
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-claim that the implementation of the LAPSSET project had violated or threatened to violate a number of the Petitioners and Lamu’s residents rights to earn a livelihood, a clean and healthy environment, cultural rights and the right to information- 11, 24, 26, 28, 31, 35, 40(3)(b), 43, 44 and 51; Vienna Declaration adopted by the 1993 United nations World Conference on Human Rights, principle 20; International Covenant on Civil and Political Rights, article 27
Constitutional Law-fundamental rights and freedoms-limitation of fundamental rights and freedoms-right to property-fishing rights-proportionality test-whether traditional and artisanal fishermen in the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya traditional fishing rights could be limited-Constitution of Kenya, 2010, articles 24 and 40(3)

Brief facts:
The Petitioners opposed the manner in which the LAPSSET Project was conceptualized and implemented claiming violation of the Constitution and statutory law. Additionally, they were opposed to the manner in which the LAPSSET Project was designed. They also contended that the project was designed without putting in place adequate measures to mitigate the adverse effects of the project. In particular, the Petitioners' case was that the manner in which the LAPSSET Project was being implemented violated statutory and constitutional principles and values among them sustainable development, transparency, public participation, accountability and specifically violated their constitutional rights to earn a livelihood, a clean and healthy environment, cultural rights and the right to information.
On the other hand, the 1st to 6th Respondents contended that the Court lacked jurisdiction as the Environmental Impact Assessment License for the first three berths of the proposed Lamu Port had already been issued, and that the License could only be challenged at the NEMA Tribunal pursuant to section 129 of EMCA.

Issues:

  1. What were the factors to be considered by a court when weighing the admissibility of an expert witness opinion?
  2. Whether a dispute that arose out of failure by the National Government to consult a county government before commencement of a project that affected the County could be classified as an inter-governmental dispute as defined under section 30(1) of the Inter-governmental Relations Act.
  3. Whether the failure by the National government to consult a county government in conceptualization and implementation of a project that would affect the County was unconstitutional.
  4. Whether the High Court had jurisdiction to:
    1. hear and determine a dispute that involved environmental issues as opposed to the Committee and National Environment Tribunal (NET) established under the Environmental Management and Co-Ordination Act;
    2. hear and determine a petition that involved violation of constitutional rights despite having environmental issues as opposed to the Environment and Land Court.
  5. Whether the matter before the Court challenging the legality and constitutionality of the LAPSSET Project was ripe for determination as the Strategic Environment Assessment (SEA) process was still ongoing.
  6. Whether a Strategic Environment Assessment, that had not been given provision prior to the amendment of EMCA, was a required legal step that ought to have been conducted before the commencement of the LAPSSET project.
  7. Whether the Environmental Impact Assessment license issued by the 8th Respondent (NEMA) was unlawful for not containing an Environmental Management and Monitoring Plan (EMMP) or an Inception Environmental Plan prepared by the 5th and 7th Respondent.
  8. Whether the Petitioners right to public participation was violated as the proponents of the LAPSSET Project did not engage stakeholders before commencement of the Project.
  9. Whether the Petitioners right to information was violated as they were not provided sufficient information leading to the conceptualization and implementation of the LAPSSET project.
  10. Whether the Petitioners and Lamu residents’ right to a clean and healthy environment was threatened by the LAPSSET project.
  11. Whether traditional and artisanal fishermen in Lamu;
    1. Had property rights in the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya.
    2. Traditional fishing rights could be limited.
  12. Whether the artisanal and traditional fishermen rights to property had been violated by the LAPSSET project as they were not compensated.
  13. Whether Lamu residents right to culture and way of life was threatened by;
    1. Failure by the proponents of the LAPSSET project to consult the indigenous community of Lamu about the potential cultural impacts of the Project;
    2. Failure by the government to draw up a management plan to preserve Lamu as a UNESCO world heritage site. Read More..

Relevant Provisions of the Law
Rio Declaration on Environment and Development
Principle 10

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level” and that “each individual shall have…the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available…”

Principle 22

For the “effective participation” of “indigenous people and their communities and other local communities” in the “achievement of sustainable development.”
Vienna Declaration, adopted by the 1993 United Nations World Conference on Human Rights,
Principle 20

Recognizes the inherent dignity and the unique contribution of indigenous peoples…and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being.

Constitution of Kenya, 2010
Preamble

“We, the People of Kenya ... Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations..."

Article 70
(1) If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a Court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the Court may make any order, or give any directions, it considers appropriate—

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Environment and Land Court Act
Section 13
Jurisdiction of the Court
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, chooses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.

Environmental (Impact Assessment and Audit) Regulations, 2003
Regulation 42
42 (1) Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for the implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others.
(2) The assessment carried out under this regulation shall consider the effect of implementation of alternative policy actions taking into consideration -

(a) the use of natural resources;
(b) the protection and conservation of biodiversity;
(c) Human settlement and cultural issues;
(d) Socio-economic factors; and
(e) the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance.

(3)The Government, and all the lead agencies shall in the development of sector or national policy, incorporate principles of strategic environmental assessment.

Held:

  1. Under section 48 of the Evidence Act, opinions of science or art were admissible if made by persons specially skilled in such science or art. A person specially skilled in art or science was therefore deemed to be an expert. Whether a person was specially skilled within section 48 of the Evidence Act was a question of fact that had to be decided by the Court and the opinion of the expert was also a question of fact. If the Court was not satisfied that the witness possessed special skill in the relevant area, his or her opinion should be excluded.
  2. While expert evidence was important evidence, it was nevertheless merely part of the evidence which a court had to take into account. Four consequences flowed from that:
    1. Expert evidence did not trump all other evidence. It was axiomatic that judges were entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it was the primary factual evidence which was of the greatest importance. It was therefore necessary to ensure that expert evidence was not elevated into a fixed framework or formula, against which actions were then to be rigidly judged with a mathematical precision.
    2. A judge did not have to consider expert evidence in a vacuum. It should therefore not be artificially separated from the rest of the evidence. To do so was a structural failing. A court’s findings would often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence would assist the Court in forming its views on the expert testimony and vice versa. For example, expert evidence could provide a framework for the consideration of other evidence.
    3. Where there was conflicting expert opinion, a judge was required to test it against the background of all the other evidence in the case which they accepted in order to decide which expert evidence was cogent and give reasons why the Court preferred the evidence of one expert as opposed to the other.
    4. A judge was required to consider all the evidence in the case, including that of the experts, before making any findings of fact.
  3. A further criterion for assessing an expert’s evidence focused on the quality of the expert’s reasoning. A Court was required to examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. Where there was a conflict between experts on a fundamental point, it was the Court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning.
  4. There was no doubt that issues of jurisdiction should be determined at the earliest possible opportunity because jurisdiction was the lifeline of a case and without jurisdiction, a court ought to down its tools. A court’s jurisdiction flowed from either the Constitution or legislation or both. Section 30(1) of the Inter-Governmental Relations Act defined a dispute under the Act as an inter-governmental dispute.
  5. The Petition was brought by residents of Lamu County. It cited violations of certain fundamental rights affecting the people of Lamu County. It was not, by any definition, a dispute between the two levels of government. Furthermore, Lamu County was only enjoined to the suit as an interested party and did not bring the suit; and neither was it a principal party to the suit. It would be to over-stretch the meaning assigned to dispute under the Inter-Governmental Relations Act if the suit was to be submitted for resolution under Part IV of Inter-Governmental Relations Act. In any event, to require a suit alleging violations of fundamental rights by citizens to be submitted for resolution under Part IV of Inter-Governmental Relations Act would unnecessarily limit access to rights given to individuals under article 22 of the Constitution of Kenya, 2010 (Constitution) to challenge any alleged violations of the Bill of Rights.
  6. Even though the LAPSSET Project was an initiative of the National Government, the Constitution required consultation, cooperation and co-ordination between the National Government and County Governments in the performance of their functions. As a necessary implication of the subsidiarity principle- a recognition that the County Government more closely reflected the concerns, preferences and choices of the local population and that 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 – the Lamu County Government needed to be involved in the LAPSSET Project, and, in particular those components – like the construction of the Lamu Port and the Mega-City which were located and implemented within the County. Such involvement had to, at the minimum; include basic consultation and co-ordination between the two levels of government on the project in question or under consideration.
  7. The Environmental Management Coordination Act, 1999(EMCA) availed a number of adjudicatory mechanisms for environmental matters that members of the public could utilize to secure environmental rights and enforce environmental laws without necessarily having recourse to the High Court. Those key mechanisms were the Committee established under section 31 of EMCA and the National Environment Tribunal. Functions of the Committee, under section 31, were to investigate any complaints or allegations against any person or against National Environment Management Authority (NEMA) in relation to the condition of the environment in Kenya. However, its decisions were only useful as findings and recommendations to the National Environment Council. Thus, the issues raised in the Petition and remedies sought were therefore not appropriate subjects for the Committee established under section 31.
  8. On the other hand, the National Environment Tribunal (NET) was empowered to inquire into the matters arising from refusal to grant or transfer a license, imposition of any condition, limitation or restriction on a license, the amount of money required to be paid as a fee and the imposition of an environmental improvement order by the Authority.
  9. The mandate of the National Environment Tribunal (NET) was limited to matters provided for in section 129 of EMCA. Of all the functions of the Tribunal under section 129 of EMCA, the only applicable one would be section 129(1)(a) to the extent that the Petitioners challenged the completeness and scientific sufficiency of the ESIA Report that resulted in the license issued by NEMA to the LAPSSET Project's proponent. However, the scope and range of issues, rights and controversies involved in the instant dispute surpassed the narrow question of the conditions which could be imposed as part of the EIA License. Indeed, it was notable that section 129(1) (b) to (e) was only applicable when a licensee was challenging the terms of a license by NEMA.
  10. While Kenya’s jurisprudential policy was to encourage parties to exhaust and honour alternative forums of dispute resolution where they were provided for by statute, the exhaustion doctrine was only applicable where the alternative forum was accessible, affordable, timely and effective. The Tribunal was not a suitable forum for the purpose of settling environmental conflicts at community level as disclosed in the Petition. In addition, the design of the Tribunal was such that it did not envisage the participation of all interested parties, such as developers, government, the community, non-governmental organizations, and environmental groups in a joint effort aimed at restoring the environment and agreeing on their sustainable use. Differently put, the multiplicity of parties and the polycentricity of issues in a case such as the instant case made it unsuitable for the Tribunal.
  11. The Republic v Karisa Chengo & 2 others case did not resolve the knotted question of which court among the High Court and the two equal status Courts under article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases were cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. Courts had identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts resolved the issue by using the predominant purpose test which involved inquiring what the most substantial question or issue presented in the controversy was.
  12. The case presented by the Petitioners was a hybrid one, where majority of the issues raised involved the interpretation and application of fundamental rights and freedoms which gave the Court jurisdiction. The correct test to utilize was the predominant purpose test. Similarly, there was a narrow class of cases where the exhaustion doctrine in environmental-related controversies did not mandatorily oust the jurisdiction of the Court as the first port of call for litigants. That was so where the alternative fora did not provide an accessible, affordable, timely and effective remedy. Article 165(3) (d) of the Constitution donated to the Court the jurisdiction to entertain any challenges concerning the failure to comply with any constitutional and statutory obligations. Therefore, it would amount to an abdication by the Court of one of its core mandates were it not to seize its jurisdiction in the instant case.
  13. The controversy presented was not pre-mature for the reason that the Strategic Environmental Assessment (SEA) of the LAPSSET Project had not been concluded. The Court also concluded that the proactive approach to environmental governance which included the precautionary principle which the Court was required by the Constitution to apply, made the present controversy ripe for consideration even before the conclusion of the SEA process. Differently put, the doctrine of ripeness did not preclude the Court from hearing and determining the case.
  14. The process of Strategic Environmental Assessment (SEA) was a required legal step prior to embarking on the Environmental and Social Impact Assessment (ESIA) process or implementation of any of the individual components of the LAPSSET Project. By virtue of regulation 42 of the Environmental (Impact Assessment and Audit) Regulations, 2003 as well as the magnitude of the LAPSSET Project, and the significant environmental and cumulative impacts of the Project which implicated Policies, Plans and Programmes.
  15. There was no need to have specific backing in the text of the EMCA for regulation 42 of the Environmental (Impact Assessment and Audit) Regulations, 2003 to be effective. Hence, the Respondents and the 1st and 3rd Interested Parties were legally required to comply with regulation 42 even prior to the passage of the amendment to EMCA of 2015 which introduced section 57A of EMCA (providing for SEA in the legislative scheme).
  16. Beyond the text and the content of EMCA and its Regulations, a necessary reading of the environmental governance principles contained in the Constitution including articles 10, 69 and 70 made it mandatory for the Project Proponents to carry out SEA before embarking on any of the individual components of the LAPSSET Project. Those constitutional provisions, among other things, required a proactive approach to integrate environmental considerations into the higher levels of decision making for projects with the potential to have significant inter-linkages between economic and social considerations. The Project Proponents had failed to carry out Strategic Environmental Assessment (SEA) before embarking on the individual components of the LAPSSET Project as they were duty-bound to do. Therefore, that made the entire LAPSSET Project procedurally infirm.
  17. The Project Proponents failed to adhere to the EIA License issued in the following ways:
    1. The Project Proponents violated condition 2.3 of the EIA License which required them to compensate the local fishermen and in consultation with the Fisheries Department [to] provide improved fishing gear and modern fishing landing sites with adequate infrastructure such as power, access roads and cold rooms.
    2. The Project Proponents failed to adhere to condition 2.23 of the EIA License which clearly required the 5th and 7th Respondents to develop a detailed Environmental Monitoring and Management Plan (EMMP) for the first three berths of the proposed Lamu Port. At the very minimum, the EMMP to be developed had to contain the baseline environmental data and specific monitoring indicators, which could be used to compare the data being collected in a structured way at determined frequency levels.
  18. The 5th and 7th Respondents were not at fault, as a matter of law, for electing to pay out monies for the replanting of mangrove trees to the Kenya Forestry Services (KFS). There was no illegality, and it was not a violation of the EIA License for the Project Proponent to compensate Kenya Forest Services for the mangroves rather than the local community directly. The Project Proponent was at liberty to select an institutional arrangement that it felt would be effective for the purpose of the replanting of the mangrove forests as long as the means chosen was rationally related to the purpose.
  19. Project proponents of projects which were likely to have significant environmental, social, cultural and other impacts were required by the principles of environmental governance in the Constitution, EMCA as well as EMCA Regulations and Guidelines to consider and assess external costs of the projects, policies, plans and programmes associated with proposed projects as part of the ESIA and SEA Processes. Those included the applicability of alternatives; the issue of intergenerational equity; the probability and the costs of calamitous events including oil spills and epidemics associated with the expected high rates of urbanisation; and the welfare losses – both monetary and non-monetary to be borne by the local population – including loss of opportunity costs associated with the new developmental path. Such consideration, assessment and estimation of external costs should be included in the ESIA and SEA Reports, and NEMA was duty-bound to consider them before issuing licenses.
  20. The Project Proponents of the LAPSSET Project and its associated infrastructure failed to consider, assess, estimate and report on the external costs of the first three berths of the Lamu Project as well as the entire LAPSSET Project. That amounted to a procedural inadequacy in the preparation and consideration of the ESIA and SEA Reports.
  21. The Constitution of Kenya at articles 10, 69 and 70 and EMCA obligated the Project Proponents of the LAPSSET Project to fashion an effective programme of public participation by the local community in Lamu County during the conceptualization and implementation of the LAPSSET Project and its various individual components. Such a programme of public participation had to include adequate notification, education and information, review and reaction and, finally, consultation, dialogue and interaction with the local population who would be affected by the Project.
  22. The proper standard of ascertaining whether there was adequate public participation in environmental matters was the reasonableness standard which had to include compliance with prescribed statutory provisions as to public participation. Furthermore, failure to adhere to set statutory provisions on public participation was per se a violation of the constitutional requirement of public participation and yielded an inescapable conclusion that the project which did not so comply suffered from inadequate public participation.
  23. In the instant case, there was no evidence tendered by the Project Proponents to demonstrate that the steps prescribed under regulations 17, 22 and 23 of the Environmental (Impact Assessment and Audit) Regulations, 2003 were adhered to. Thus, there was a per se violation of the requirement of public participation required in the Constitution and EMCA.
  24. Access to information was a key pillar in the environmental governance scheme in the Constitution because effective public participation in decision-making depended on full, accurate and up-to-date information. Furthermore, the right of access to information in environmental matters constituted two aspects:
    1. A passive aspect which included the right of the public to seek from public authorities, and the obligation of public authorities to provide information in response to a request and;
    2. An active aspect which included right of the public to receive information and the obligation of authorities to collect and disseminate information of public interest without the need for a specific request.
  25. In the instant case, the Court found that while the Respondents met the statutory requirements as to disclosure of the ESIA Report, no evidence was tendered to demonstrate that the relevant information leading to the conception of the LAPSSET Project, and the preliminary studies (if any) undertaken were availed to the Petitioners to enable them to fully participate in the Project before implementation commenced. Thus, to that extent the Petitioners' rights to access information on the Project were violated.
  26. The LAPSSET Project Proponents had not put in place adequate mitigation measures consistent with the principle of sustainable development as required by the Constitution and statutory law to minimize the adverse environmental impacts of the proposed Lamu Port Project, and that failure created a verifiable and imminent risk to the violation of the right to a clean and healthy environment of the Petitioners and residents of Lamu County.
  27. The more than 4,700 fishermen from Lamu County had traditional fishing rights to the routes and zones immediately next to the archipelagic waters of Lamu Island within the national waters of Kenya and within Kenya’s Exclusive Economic Zone (EEZ). That was as a consequence of the over-arching right constituted by a progressive and holistic reading of the Bill of Rights and, in particular, articles 26, 28, 40, 42, 43, and 70 of the Constitution, as well as a necessary reading of general principles of International Customary Law.
  28. The government may only have regulated or interfered with the traditional fishing rights for compelling and substantial objectives, justifiable in a modern democratic society such as the conservation and management of the resources, or development of a project of national interest as required by article 24 of the Constitution. Even where the Government had made a determination that it was necessary to limit the traditional fishing rights of the local fishermen, it had to do so subject to full and prompt compensation as provided for under article 40(3)(b) of the Constitution.
  29. Given the dynamic and indeterminate way in which the Government, even after the exercise of all due diligence and good faith, compensated local fishermen for the loss of traditional fishing rights, the government may yet have incurred further obligations to the local fishermen after the initial compensation. In particular, the government was obligated to give the local fishermen priority to fish for food and commercial purposes over other user groups as part of the State’s obligations to the local fishermen as indigenous communities.
  30. It was a clear violation of the law for the 5th and 7th Respondents to have failed to compensate the local fishermen even after identifying them with specificity, conceptualizing a credible methodology for internalizing their costs, and a precise method of approximating their loss in monetary terms. Furthermore, compensation was required as a pre-requisite to embarking on the project in the EIA License issued on March 27, 2014.
  31. It was a further constitutional violation verging on discrimination under article 27 of the Constitution for the 5th and 7th Respondents and the 1st Interested Party to have proceeded to promptly compensate land owners whose property was compulsorily acquired for the LAPSSET Project after identifying the correct land owners yet delay and/or fail to pay the equally agreed compensation for the local fishermen. Therefore, the local fishermen were entitled to full and prompt compensation for the loss of their traditional fishing rights, the failure or delay to compensate them was unfair, discriminatory and a gross violation of their rights to their traditional fishing rights and their right to earn a living.
  32. Culture was fluid and changed from time to time. It was susceptible to be influenced by many factors such as religion, education, and influence from other communities, inter-marriage and urbanization. But there were certain aspects of culture that identified a particular group, their history, ancestry and way of life and that diversity was recognized and protected by the Constitution.
  33. Failure to have prior consultation with the indigenous community in Lamu Island about the potential cultural impacts of the LAPSSET Project on the culture of the Lamu Island was a violation of the Petitioners’ right to culture as enshrined in articles 11(1) and 44 of the Constitution and various international treaties. Failure to consult was a continuing one to the extent that a proponent of a development project was not obligated to only consult at the point of conceptualization of a project but was duty-bound to design on-going consultations with the local indigenous communities throughout the project cycle.
  34. The failure by the Government to draw up a Management Plan to preserve Lamu Island as a UNESCO World Heritage Site despite various declarations by UNESCO that it does amounted to a violation of the right to culture of the Petitioners and the local Lamu Community. In addition, failure to design a specific, measurable and actionable plan in consultation with the Lamu residents on how to protect the cultural identity of the region during and after the construction of the Proposed Lamu Port and the mega-city was a violation of the right to culture of the Petitioners and the residents of the region and needed to be remedied.

Petition allowed
Orders
On the question of procedural infirmities of the LAPSSET Project

  1. Regarding, the EIA License, the Court ordered a return of the License back to NEMA for re-consideration. In re-considering the EIA License for the first three berths of the proposed Lamu Port, NEMA had to comply with the following guidelines:
    1. The ESIA Report had to consider, assess, estimate and report on the external costs of the first three berths of the proposed Lamu Port;
    2. The Project Proponent had to prepare a detailed Environmental Measuring and Monitoring Plan (EMMP); and
    3. All the other guidelines specified later on the disposition in relation to the ESIA and SEA.
  2. The EIA License re-consideration process had to be done within one year from the date thereof and a report filed in the Court to confirm compliance.
  3. For the avoidance of doubt, the orders of the Court on remand of the EIA License to NEMA meant that the EIA License was returned to NEMA for further action in accordance with the judgment, and the said EIA License would in the meantime remain valid and operational pending any further orders of the Court in accordance with the disposition.
  4. Regarding SEA, the Court directed that NEMA had to satisfy itself that the final SEA Report adequately considered all the guidelines given in the disposition in reconsidering the EIA License when assessing each of the individual components of LAPSSET Project and its associated infrastructure.

On whether the County Government of Lamu was involved in the conceptualization and implementation of the LAPSSET Project and if not the consequences of such non-involvement:

  1. The Project Proponents had to, going forward; implement the LAPSSET Project in consultation, cooperation and co-ordination with the 2nd Interested Party (Lamu County Government) and other affected counties and government agencies.

On whether there was sufficient public participation in the conceptualization and implementation of the LAPSSET Project

  1. The Court ordered a return of the EIA License back to NEMA for re-consideration after the Project Proponents satisfied NEMA that they had complied with Regulations 17, 22 and 23 of the Environmental (Impact Assessment and Audit) Regulations, 2003 and had otherwise fashioned a programme of public participation which was effective, inclusive and was appropriate for the scale of the issue involved.
  2. Regarding SEA, the Court directed that NEMA had to satisfy itself that the on-going SEA process similarly considered effective and inclusive public participation in its assessment of each of the individual components of LAPSSET Project and its associated infrastructure.

On whether the Petitioners’ right to access information was violated

  1. Going forward the Project Proponents to craft, as part of the public participation requirement ordered, a demonstrably effective programme to disseminate information on the LAPSSET Project and, specifically those aspects affecting Lamu County, to the Petitioners.

On whether the Petitioners Rights to a clean and healthy Environment had been violated

  1. The Court ordered that the Project Proponents fully comply with the mitigation measures they had identified in the ESIA Report as approved by NEMA and, where those proved inadequate to modify them in consultation with the local population and NEMA, and as part of the public participation programme ordered.

Whether the Petitioners' traditional fishing rights had been violated

  1. The Project Proponent had to pay out the full and prompt compensation to the local fishermen as assessed and accepted by the Project Proponent. For the avoidance of doubt the total compensation of all the different components as per the Project Proponent’s own accepted documents was Kenya Shillings One Billion Seven Hundred and Sixty Million Four Hundred and Twenty Four Thousand (Kshs 1,760,424,000.00).
  2. The Project Proponents had to make those payments and meet the obligations identified in the document entitled “Fisheries Resource Valuation and Compensation: A Report for Consideration by Lamu Port and Coal Plant Power Generation Company in Lamu” within one year of today.
  3. The Project Proponents were directed to file a written report to the Court on the progress made in that regard within one year of delivery of the Judgement.

On the Petitioners' rights to culture

  1. That as part of its renewed programme of public participation ordered, the Project Proponents were required to include a demonstrably specific programme for consultation with the Petitioners and the other Lamu Island residents about the impact the LAPSSET Project was likely to have on their culture as a distinct indigenous community and how to mitigate any adverse effects on the culture.
  2. That within one year of the date of delivery of the Judgement, the Project Proponents design a specific, measurable and actionable Plan in consultation with the Lamu Island residents on how to protect the cultural identity of the region during and after the construction of the Lamu Port and mega-city.
  3. That in its re-consideration of the EIA License as ordered, NEMA satisfy itself that those two components related to the right to culture had been taken into account.
  4. That the Project Proponents were directed to file a written report to the Court on the progress made in that regard within six (6) months of the date of delivery of the Judgement.
  5. The government was directed to draw up a Management Plan to preserve Lamu Island as a UNESCO World Heritage Site as requested by various declarations by UNESCO within one year of the date of delivery of the Judgement.
  6. That the Attorney General was directed to file a report to the Court on the progress made in drawing up the Management Plan to preserve Lamu Island as UNESCO World Heritage Site within six (6) months of delivery of the Judgement.
  7. The Respondents to pay the Petitioners the basic expert and witness costs.
JURISDICTION An application for correction of errors had to specifically point at the particular page/paragraph and/or portion of the judgment where the alleged error was situated

Robert Tom Martins Kibisu V Republic [2018] eKLR
Petition No. 3 of 2014
Supreme Court
J. B. Ojwang, S. C. Wanjala, N. S. Njoki, I. Lenaola & Ibrahim SCJJ
February 28, 2018
Reported by Felix Okiri

Download the Decision

Jurisdiction – jurisdiction to review judgments - jurisdiction of the Supreme Court to review its own judgments – where the Applicant alleged that the presiding judge of the Supreme Court that heard and determined the petition had a personal interest in the outcome of the petition in a matter affecting him at the High Court of Kenya in Petition No. 244 of 2014 – whether article 163(7) clothed the Court with the power to review the substance of its decision - whether the Applicant had made a case to warrant the Court reviewing its decision – Constitution of Kenya, 2010, article 163(7); Supreme Court Act, section 21(4)
Civil practice and procedure – review - form and manner of instituting a review -what essentials were to be contained in an application for review of a judgment?
Words and Phrases – definition – definition of the word bias - an inclination or prejudice for or against one thing or person - Oxford English Dictionary; the Blacks’ Law Dictionary 9th edition

Brief Facts:
The Applicant sought a review against the judgment of the instant Court in Petition No. 3 of 2014 on ground that the presiding judge of the Supreme Court that heard and determined the petition had a personal interest in the outcome of the petition in a matter affecting him at the High Court of Kenya in Petition No. 244 of 2014, a matter that was yet to be concluded.
The Applicant’s case was that since Honourable Justice Tunoi had a case in the High Court seeking to safeguard his retirement age at 74 years as provided for under the repealed Constitution, then as a presiding judge, he was inclined to uphold section 115(3) of the Armed Forces Act, an Act of Parliament under the old constitutional order, in breach of article 50(6) of the new Constitution. It was the Applicant’s preposition that the Honorable Justice was inclined to trump upon the new constitutional order, since that new Constitution was also curtailing his pecuniary interest.
Applicant had sought among other orders- a declaration that section 115(3) of the repealed Armed Forces Act (Cap. 199, Laws of Kenya) denied, violated, or infringed a right or fundamental freedom in the Bill of Rights, and was in conflict with article 24 when read together with article 25 (a) and (c), of the Constitution and was discriminatory, unfair, and therefore unconstitutional.

Issues:

  1. Whether the Supreme Court had jurisdiction to sit on appeal or review over its own decisions.
  2. What were the circumstances upon which the Supreme Court could review, any of its judgments, rulings or orders?
  3. What essentials were to be contained in an application for review of a judgment?
  4. Whether the failure of the Court to cite its own decision on a particular issue could be a ground for review of its judgment.
  5. Whether the mere allegation of bias was enough ground for a judge to recuse himself. Read More...

Relevant provisions of the law
Constitution of Kenya
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”.

Held:

  1. The Court’s appellate jurisdiction under article 163(4) of the Constitution did not grant it power to deal with a second appeal to itself in the same cause of action. Article 163(7) did not clothe the Court with the power to review the substance of its decision in the same matter between same parties. Article 163(7) of the Constitution could only be invoked by a litigant who was seeking to convince the Court, to depart from its previous decision, on grounds for example, that such decision was made per incuriam, or that, the decision was no longer good law. Article 163(7) of the Constitution could not be invoked by a losing party as a basis for the Court to review its own Judgment, decision, or order nor could it confer upon the Supreme Court, jurisdiction to sit on appeal over its own Judgment.
  2. Reviewing a judgment or decision was not the same as departing from a previous decision by a Court. The application before the Court could not be anchored on article 163(7) of the Constitution.
  3. The Supreme Court Rules, rule 20(4) was mischievous as it conferred jurisdiction to the Court which had not been conferred by either the Constitution or statute. Unlike section 21(4) of the Supreme Court Act, rule 20(4) of the Supreme Court Rules on its face appeared to confer upon the Court, jurisdiction or powers, to review its own judgments, or decisions beyond the confines of the slip rule.
  4. Subsidiary legislation had to flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, conferred upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions. No rule of the Court, not even rule 20(4), as worded, could confer upon the Court, jurisdiction to review its own decisions. If that were the intent of rule 20(4), then the said rule would be of doubtful constitutional validity. Rule 20(4) was not capable of conferring upon the Court, powers to review its decisions, beyond the confines of the slip rule, as embodied in section 21(4) of the Supreme Court Act. At best, the rule could only be understood to be echoing section 21(4) of the Supreme Court Act.
  5. Taking into account the edicts and values embodied in chapter 10 of the Constitution, as a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated above. However, in exercise of its inherent powers, the Court may, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances were limited to situations where:
    1. the judgment, ruling, or order was obtained, by fraud or deceit;
    2. the judgment, ruling, or order, was a nullity, such as, when the Court itself was not competent;
    3. the Court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
    4. The judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
  6. The Applicant had not alleged any fraud or deceit in the making of the judgment. He had also not claimed that the judgment subject of the instant application was a nullity. That judgment was also not a product of consent between the Applicant and the Respondent. The judgment was also not based on a repealed law save for the fact that the judgment had an aspect of repealed law (Armed Forces Act, Cap. 199), as one of the laws under which the subject matter was determined since the cause of action arose in the High Court. However, that did not in any way render the judgment subject to review a nullity as even the Applicant in making his case through all the superior courts was cognizant that his rights could only be legally and procedurally be ventilated within the legal framework that prevailed when the cause of action arose. So that at the time of determining the matter, the applicable law was still fully in force and it was the basis upon which it was determined. The matter before the Court had failed to meet any of the exceptional circumstances under which a review might lay to the Court as elaborated in the Outa case.
  7. While the application before the Court was framed as one seeking review for correction of errors apparent on the face of the record, the mischief was in the details. An application could not be said to be for correction of errors when it was anchored and replicate with allegation of discontentment with the Court’s finding and/or appreciation of legal principles and their interpretation thereof. Such dissatisfaction was normally a ground for appeal. Unfortunately for the Applicant, even that appeal option had been exhausted as the instant Court was the apex court of the land.
  8. In an application for correction of errors, the focal point was usually the judgment of the Court/tribunal which was sought to be corrected. An Applicant was thus duty bound to specifically point at the particular page/paragraph and/or portion of the judgment where he opined that the alleged error was situated. An error could not be apparent on the face of the judgment when that error required evidence to be adduced so as to enable the Court to discern it.
  9. It was not necessary that an application for correction of errors drew such a huge record like the one that was before the Court. The precision of such an application and its clear nature was what clothed the Court with the jurisdiction to even move suo motto for what was erroneous was occasionally glaringly obvious.
  10. An application for review of a Court’s judgment could not call for the changing and/or altering of the Court’s final orders and findings drawn from the reasoning in the entire judgment.
  11. Section 21(4) of the Supreme Court Act, did not confer upon the instant Court, jurisdiction, or powers, to sit on appeal over its own judgments. Neither, did it confer upon the Court, powers to review any of its judgments once delivered, save to correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the Judgment or Order so as to give effect to its meaning or intention. Any corrections made pursuant to section 21(4) of the Supreme Court Act became part of the Judgment or Order as initially rendered. The main purpose of section 21(4) of the Supreme Court Act was to steer a Judgment, decision, or Order of the instant Court, towards logical, or clerical, perfection.
  12. The fact that the Supreme Court (or any other court) did not cite its own decision on a particular issue could not be a ground for review of its judgment. The mere fact that the Supreme Court did not, in its decision, expressly cite the Communication Commission of Kenya & 5 others v. Royal Media Services & 5 others [2014] KLR-SCK, eKLR, (CCK case) on the issue of legitimate expectation did not in any way warrant a case for review. The Applicant had not alleged that the failure to cite the CCK case led the Court to making a contrary decision in total disregard of that earlier decision. The Applicant had not contended that the Court developed a new jurisprudence on the same issue while the Court had already rendered itself on the law. If that were the case, then it would prima facie form a case for review as the error or contradiction would have been quite glaring.
  13. As a general principle, each case that came before a court of law was decided on its own facts and merit. While the CCK case laid down the Court’s jurisprudence on legitimate expectation, it was not true that in any subsequent case where a litigant raised the issue of legitimate expectation, the CCK case had to be cited verbatim however remote the issue of legitimate expectation was. It was inaccurate to argue therefore that that had to be done notwithstanding that the case was decided on other issues or even where the Court determined that the issue of legitimate expectation, as framed by a litigant, was not an issue for determination. It was the discretion of the Court to frame issues for determination that a particular case presented before it.
  14. The doctrine of stare decisis was articulated in article 163(7) of the Constitution: all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. The Applicant was in essence unlawfully inviting the Court to be bound by the decisions of the High Court, failure to which the Court’s decisions would be subject to review. The Supreme Court was not bound by decisions of lower Courts. Those decisions only retained their persuasive nature before the instant Court.
  15. Bias was prima facie a factor that might lead to a judge recusing himself from a matter. Such an action was meant to safeguard the sanctity of the judicial process in tandem with the principle of natural justice that no man should be a judge in his own case and that one should be tried and/or have his dispute determined by an impartial tribunal. That was what was provided for in article 50(1) of the Constitution. As one of the fundamental tenets of the rule of law, bias was impartiality of the judiciary. In circumstances where bias was alleged and proved, then the pragmatic practice was that the particular judge or magistrate would as a matter of course recuse/remove himself from the hearing and determination of the matter.
  16. When interrogating a case of bias, the test was that of a reasonable person and not the mindset of the judge. In considering the possibility of bias, it was not the mind of the judge which was considered but the impression given to reasonable people. When the courts were faced with proceedings for the disqualification of a judge, it was necessary to consider whether there was a reasonable ground for assuming the possibility of a bias and whether it was likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test was objective and the facts constituting bias had to be specifically alleged and established. In such cases the Court had to carefully scrutinize the affidavits on either side, remembering that when some litigants lose their case they were unable or unwilling to see the correctness of the verdict and were apt to attribute that verdict to a bias in the mind of the judge, magistrate or tribunal.
  17. The Court dealing with the issue of disqualification was not and could not, go into the question of whether the officer was or would be actually biased. All the Court could do was to carefully examine the facts which were alleged to show bias and from those facts draw an interference, as any reasonable and fair-minded person would do, that the judge was biased or was likely to be biased. The single fact that a judge had sat on many cases involving one party could not be sufficient reason for that judge to disqualify himself. The fact that Tunoi, JA had sat on many cases involving the Goldenberg Affair, without anything more, was absolutely no good reason for him to disqualify himself.
  18. Mere apprehension of bias could not be a ground for recusal. The allegations of bias had to be factual and proved. The apprehension by the Applicant that he would not get justice in court was a normal apprehension whereby each party who had a matter in court was apprehensive as to the decision the court would make. The court may find in his or her favour and that uncertainty made parties to be apprehensive. If a party interpreted his apprehension and concluded that the court would be biased then that was taking the wrong dimension unless allegations of bias were proved by facts. The aspect of judging encompassed the unpredictability of the decision. If that aspect was missing then parties would be able to make their own predictions and make conclusion as to how the court was likely to decide a matter.
  19. No cogent evidence had been placed before the Court to warrant a finding of bias being made on the part of the presiding judge even if the Court had the jurisdiction to entertain such a complaint. While a petition filed by Justice Tunoi had been cited for the Court, that was not sufficient as evidence of bias. The Applicant’s allegations were not only based on apprehension, but on conjuncture. It could never be that the mere fact that a Judge, who as rightly submitted by the Respondent, had rights under the Bill of Rights, he would be biased by the mere fact that he too was pursuing his rights in a different court at the same time he was hearing a different matter touching on issues of rights under the Bill of Rights. The office of a judge did not indeed strip a judge from the enjoyment of rights under the Bill of Rights.
  20. The correct approach to an application for the recusal of members of the instant Court was objective and the onus of establishing it rested upon the Applicant. The question was whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not or would not bring an impartial mind to bear on the adjudication of the case, that was a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension had to be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It had to be assumed that they could disabuse their minds of any irrelevant personal beliefs or predispositions. They had to take into account the fact that they had a duty to sit in any case in which they were not obliged to recuse themselves. However, an impartial judge was a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there were reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.
  21. The case for bias as presented by the Applicant was thus dead on arrival because the Applicant had completely failed to show that the fact that Justice Tunoi was challenging the judges’ retirement age under the Constitution, 2010 had raised perceptions of bias in the minds of reasonable people who had notice that the Honourable judge was presiding over the Applicant’s petition. What the Applicant raised were his own bias perceptions and not perceptions in the public domain. If a party interpreted his apprehension and concluded that the Court would be biased then that was taking the wrong dimension unless allegations of bias were proved by facts. The allegation of bias on the part of the presiding judge had not been proved and neither could they fall within the exceptional circumstances that might warrant the Court reviewing its judgment.
  22. While the application before the Court was framed as one seeking review, it fell short of the exceptional circumstances under which that jurisdiction might be invoked. The application was a disguised appeal against the instant Court’s own judgment calculated towards availing to the Applicant a second bite at the cherry. The elaborate access to justice that the Constitution had granted every person under the Bill of Rights should not be taken as a panacea for endless litigation. The rights in the Bill of Rights remained to be enjoyed and pursued within the laid down legal doctrines and principles.

Application dismissed with no order as to costs.

CONSTITUTIONAL LAW There was no inconsistency between the investigative powers donated to the Ethics and Anti-Corruption Commission (EACC) under the Anti-Corruption and Economic Crimes (ACEC Act) and the provisions of article 79 as read with article 252 of the Constitution

Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] eKLR
Petition No. 109 of 2016
High Court
At Nairobi
G V Odunga, E C Mwita, J Mativo, JJ
June 8, 2018
Reported by Felix Okiri

Download the Decision

Constitutional Law – constitutionality of statutes – constitutionality of sections 23, 24, 25, 25A, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 56b, 56C, 72 and 73 of the Anti-Corruption and Economic Crimes (ACEC Act) and sections 11 (d) & (k) of the Ethics and Anti-Corruption Commission Act (EACC Act) – whether those provisions were unconstitutional to the extent that they mandated the Ethics and Anti-Corruption Commission (EACC) to investigate corruption cases
Constitutional Law – Fundamental Rights and Freedoms – rights of privacy; property, fair administrative action and fair hearing – where investigations of Petitioner’s accounts by the EACC were alleged to have breached the Petitioners’ rights to privacy; property, fair administrative action and fair hearing – whether the EACC had violated the statutory laid down procedure in conducting search warrants - Criminal Procedure Code, section 118A; Constitution of Kenya, 2010, articles 31, 40, 48 and 50
Statutes – interpretation of statutes –- principles applicable in interpreting statutory provisions –- what were the principles applicable in interpreting Statutory Provisions – what were the principles applicable in interpreting statutory provisions vis – a – vis Constitutional provisions
Constitutional law - interpretation of the Constitution- principles applicable in interpreting Constitutional provisions - what were the principles applicable in interpreting Constitutional provisions vis – a – vis statutory provisions - – Constitution of Kenya, 2010 articles 159(2)(e) and 259
Judgments-precedents-principle of stare decisis -the binding effect of the judgments of Superior Courts-the binding nature of a Supreme Court judgment on the High Court Words and phrases – integrity – definition of the word integrity – what was the meaning of the word integrity - soundness of moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it was synonymous with - probity, honesty, and uprightness - Black’s Law Dictionary.

Brief facts:
The 1st and 2nd Petitioners challenged the constitutionality of the provisions of sections 23, 24, 25, 25A, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 56b, 56C, 72 and 73 of the ACEC Act and sections 11 (d) & (k) of the EACC Act to the extent that those provisions conferred the EACC power to undertake criminal investigations which functions they alleged were vested by the Constitution to the National Police Service and the Director of Public Prosecutions.
The Petitioners argued that EACC had unconstitutionally encroached on the mandate of the National Police Service under article 244 of the Constitution and section 4 of the National Police Service Act whose core functions included among others the investigation of crimes.

Issues:

  1. Whether the impugned provisions were unconstitutional to the extent that they unconstitutionally encroached on the mandate of the National Police Service under article 244 of the Constitution and section 4 of the National Police Service Act by mandating the EACC to investigate corruption cases.
  2. Whether EACC was enjoined to give notice to the 3rd Petitioner (Dr. Evans Odhiambo Kidero) prior to applying for the search warrants.
  3. Whether EACC violated the Petitioners’ constitutional rights of privacy, property, fair administrative action and fair hearing by investigating the accounts of the Petitioners.
  4. What were the principles of statutory and constitutional interpretation?
  5. What were the ingredients of a valid search warrant?
  6. What was the applicability of the doctrine of stare decisis?
  7. What was the distinction between the right to a fair administrative action under article 47 of the Constitution and the right to a fair hearing under article 50 (1) of the Constitution? Read More..

Relevant provisions of the law
The Constitution of Kenya, 2010
Article 157(6).
The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

Article 252 (1)
Each commission, and each holder of an independent office—

(a) may conduct investigations on its own initiative or on a complaint made by a member of the public;
(b) has the powers necessary for conciliation, mediation and negotiation;
(c) shall recruit its own staff; and
(d) may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.

Held:

  1. Interpretation was the process of attributing meaning to the words used in a document, 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 was 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.
  2. Article 259 of the Constitution 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 contribute to good governance. That approach had been described as a mandatory constitutional canon of statutory and Constitutional interpretation. The Court had a mandatory duty to adopt an interpretation that conformed to article 259 of the Constitution.
  3. Constitutional provisions had to be construed purposively and in a contextual manner and courts were simultaneously constrained by the language used. Courts might 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 without sufficient attention to the historical contextual scene, which included the political and constitutional history leading up to the enactment of a particular provision.
  4. The EACC Act having been enacted pursuant to article 79 of the Constitution had to be understood purposively because it was umbilically linked to the Constitution. That interpretation had to promote the spirit, purport and objects of the Constitution. A generous construction had to be preferred over a merely textual or legalistic one in order to afford the fullest possible constitutional meanings and guarantees. In searching for the purpose, it was legitimate to seek to identify the mischief sought to be remedied. In part, that was why it was helpful, where appropriate, to pay due attention to the social and historical background of the legislation. The provisions 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. That was so even when the ordinary meaning of the provision to be construed was clear and unambiguous.
  5. One of the canons of statutory construction that a court might look into was the historical setting of an Act, to ascertain the problem with which the Act in question had been designed to deal. A holistic interpretation of the Constitution meant interpreting the Constitution in context. It was the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
  6. In construing the provisions prescribing the constitutional and statutory mandate of the EACC and the constitutionality or otherwise of the impugned provisions, the Court was obliged 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. The Court was also obliged to be guided by the provisions of article 159 (e) of the constitution which required it to promote and protect the purposes and principles of the Constitution.
  7. 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.
  8. It was the duty of a court in construing statutes to seek an interpretation that promoted the objects of the principles and values of the Constitution and to avoid an interpretation that clashed therewith. 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 of the Constitution.
  9. Courts had been called upon on numerous occasions 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 did not foist upon the society their value judgments. They respected and accepted the prevailing values, and did what was expected of them. The courts would, on the other hand, fail in their duty if they did not rise to the occasion but approved 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.
  10. Words, spoken or written, were the means of communication. Where they were possible of giving one and only one meaning there was no problem. But where there was a possibility of two meanings, a problem arose and the real intention was to be sorted out. The Legislature became functus officio after enacting statutes in so far as those statutes were concerned. It was not their function to interpret the statutes. Legislature enacted and the judges interpreted. The difficulty with judges was that they could not say that they did not understand a particular provision of an enactment. They had to interpret in one way or another. They could not remand or refer back the matter to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find out the real intent of the Legislature. Consequently, the superior courts had to give the rules of interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation came into play only where clarity or precision in the provisions of the statute were found missing.
  11. A court had to try to determine how a statute should be enforced. There were numerous rules of interpreting a statute. 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 had to ordinarily be taken as conclusive.
  12. 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 for the very good reason that it had no power to legislate. The power to legislate had not been conferred on the courts. The Court could not add words to a statute or read words into it which were not there. Assuming there was a defect or an omission in the words used by the legislature, the court could not go to its aid to correct or make up the deficiency. Courts decided what the law was and not what it should be. The courts adopted a construction which would carry out the obvious intention of the legislature but could not legislate itself.
  13. In construing a statutory provision, the first and the foremost rule of construction was that of literal construction. All that the Court had to see at the very outset was what the provision said. If the provision was unambiguous and if from that provision the legislative intent was clear, the other rules of construction of statutes needed not be called into aid. They were called into aid only when the legislative intention was not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which could not be warranted by the words employed by the Legislature.
  14. It was trite law that in interpreting the provisions of a statute, the Court should apply the golden rule of construction. The plain meaning of the language in a statute was the safest guide to follow in construing the statute. According to the golden or general rule of construction, the words of a statute had to be given their ordinary, literal and grammatical meaning and if by so doing it was ascertained that the words were clear and unambiguous, then effect should be given to their ordinary meaning unless it was apparent that such a literal construction fell within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction, for example where it led to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent.
  15. Interpretation had to depend on the text and the context. They were the bases of interpretation. If the text was the texture, context was what gave the color. Neither could be ignored. Both were important. The best interpretation was that which made the textual interpretation match the contextual.
  16. The touchstone of interpretation was the intention of the legislature. The legislature might reveal its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute should serve as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, one had to read the text closely, keeping in mind that the initial understanding of the text might not be the only plausible interpretation of the statute or even the correct one. 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 needed 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.
  17. The grammatical meaning of the words alone was a strict construction which no longer found favour with true construction of statutes. The literal method was now completely out of date and had been replaced by purposive approach. Such approach promoted the general legislative purpose underlying the provision which was to be adopted. Whenever the strict interpretation of a statute gave rise to an absurd and unjust situation, the judges should use their good sense to remedy it; by reading words in, if necessary so as to do what Parliament would have done, had they had the situation in mind.
  18. It was an acceptable and established principle of statutory interpretation that the intention of the drafters of the Constitution or legislation could be gathered from the history leading to the enactment of the Constitution.
  19. 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 a statute, the Court should give life to the intention of the lawmaker instead of stifling it.
  20. The EACC Act established the EACC pursuant to article 79 of the Constitution. It further provided for the functions and powers of the Commission, the qualifications and procedures for the appointment of the Chairperson and members of the Commission, and for other connected purposes. The Act enumerated certain functions, in addition to the roles that the Constitution had already accorded the commission. A notable function under the Constitution was the power to oversee the implementation process and compliance with the provisions of Chapter six of the Constitution on leadership and integrity.
  21. The EACC was the only constitutional Commission that was not specifically located in Chapter Fifteen of the Constitution. Its composition and aspects of its mandate were specifically statutory. Subject to the provisions of article 79 of the Constitution, the EACC was established by the EACC Act. It replaced the Kenya Anti-Corruption Commission (KACC) after the adoption of the Constitution.
  22. It was imperative that in the construction of the additional mandate provided under section 11 of the EACC Act, a determination was to be made whether the said mandate could be read in manner consistent with the mandate contemplated under article 79 of the Constitution. A clear reading of article 79 of the Constitution left no doubt that the constitutional mandate of the Commission contemplated under the said provision was to ensure compliance with, and enforcement of, the provisions of Chapter Six of the Constitution.
  23. The Constitution provided, under Chapter 6, for leadership and integrity of all public officers. The Chapter was predicated upon the assumption that State officers were the nerve center of the Republic and carried the highest level of responsibility in the management of state affairs and, therefore, their conduct should be beyond reproach. That meant that under the Constitution, Kenyans decreed that those whose conduct did not bring honor, public confidence and integrity had no place in the management of public affairs. That was to ensure that those entrusted with the management of public affairs and resources were persons of good character, probity and uprightness. The chapter laid down the principles upon which the State Officers should conduct themselves.
  24. The architecture of Constitution of Kenya was intended to deal with a long legacy of impunity, institutional frailties and embedded corruption. The Centre-piece of anti-corruption and public integrity reform was Chapter Six of the Constitution, the Anti-Corruption and Economic Crimes Act and the Leadership and Integrity Act.
  25. The EACC was mandated under section 11(1)(d) of the ACEC Act to investigate and recommend to the DPP the prosecution of any acts of corruption or violation of codes of ethics or other matters prescribed under that Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, under the provisions of section 35 of ACEC Act as read with the provisions of section 11(1) (d) of EACC Act, upon concluding its investigations, EACC was required to report to the DPP who was required to examine the report, evidence gathered and make an independent decision on whether to prosecute or not.
  26. The EACC lacked prosecutorial powers and had to forward all cases it had investigated to the Director of Public Prosecutions (DPP) for prosecution. The State’s prosecutorial powers were vested in the DPP. The decision to institute criminal proceedings by the DPP while discretionary, was also not subject to the direction or control of any authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act.
  27. Section 11 of the EACC Act in addition to the functions conferred by the Constitution, prescribed additional functions among them - investigations. The impugned provisions of the ACEC Act fell under Part IV on investigations covering sections 33 to 37 of the Act; Part V covering offences provided under sections 38 to 50 of the Act; Part V1 covering compensation and recovery of improper benefit and relevant to the instant case was sections 56B which dealt with out of court settlement and section 56C relating to recovery of funds and other assets. It was those sections that the Court had been invited to find ultra vires the constitutional mandate of EACC provided under article 79 of the Constitution.
  28. EACC had a constitutional status vested in commissions established under Chapter 15 of the Constitution. Flowing from that was article 252 (1) (d) of the Constitution which provided that each commission, and each holder of an independent officemight perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.
  29. Article 244 (b) of the Constitution provided that the National Police Service was to prevent corruption and promote and practice transparency and accountability. Article 245 (4) of the Constitution provided that the Cabinet secretary responsible for police services might lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person might give a direction to the Inspector-General with respect to the investigation of any particular offence or offences; and the enforcement of the law against any particular person or persons.
  30. Article 245 (1) (d) of the Constitution granted EACC powers to perform functions prescribed by an Act of Parliament. The provisions in question had been prescribed by Acts of Parliament. Article 244 (b) and 245 (4) of the Constitution granted the National Police Service powers to prevent corruption and promote transparency and power to investigate any particular offence or offences.
  31. The Court could not deviate from its own duty of determining the constitutionality of an impugned statute. Every law had to pass through the test of constitutionality which was a formal test of rationality. The foundation of that power was the theory that the Constitution which was the fundamental law of the land, was the will of the people, while a statute was only the creation of the elected representatives of the people. When, therefore, the will of the legislature as declared in the statute, stood in opposition to that of the people as declared in the Constitution, the will of the people had to prevail.
  32. A law which violated the Constitution was void. In such cases, the Court had to examine as to what factors the court should weigh while determining the constitutionality of a statute. The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law was challenged on grounds that it infringed the Constitution, what the court had to consider was the direct and inevitable effect of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration was the object and reasons as well as legislative history of the statute. That would help the court in arriving at a more objective and justifiable approach.
  33. Articles 252 (1) (d) and 244 (b) and 245 (4) of the Constitution had to be read and construed together. A constitution could not be unconstitutional for lack of another constitution against which alleged unconstitutionality had to be construed. The Constitution granted powers to commissions to perform functions prescribed by an Act of Parliament. The same Constitution created the National Police Service and equally vested it with mandate to prevent corruption and to undertake investigations. The Constitution affirmed its place as the supreme law of the land. In article 2(3), the Constitution provided that its validity or legality was not subject to challenge by or before any court or other state organ. Therefore, even if one felt that a clause in the Constitution was somewhat unconstitutional or illegal, there would be no forum and person before which to challenge it and to make that declaration of unconstitutionality.
  34. 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.
  35. No constitutional clause was superior or inferior to another. Constitutional clauses were complementary. The Constitution mandated constitutional commissions to perform functions prescribed by an Act of Parliament. EACC functions were premised on its constitutional and statutory mandate. The same Constitution mandated the National Police Service to undertake investigations and prevent corruption. While a Constitution may have had its imperfections, to construe those imperfections as amounting to unconstitutionality was jurisprudentially unsound and only created needless confusion.
  36. The impugned provisions had a constitutional underpinning and challenging them amounted to challenging article 252 (1) (d) of the Constitution which was affront to article 2 (3) of the Constitution. There was no inconsistency between the powers donated to the EACC under the ACEC Act and the provisions of article 79 as read with article 252 of the Constitution. A holistic interpretation of articles 79 and 252 of the Constitution led to the conclusion that the Legislature acted within its powers when it enacted the ACEC Act.
  37. A search warrant constituted a serious encroachment on the rights of the individual and careful scrutiny by the courts was required. A valid warrant was one that, in a reasonably intelligible manner:-
    1. stated the statutory provision in terms of which it was issued;
    2. identified the searcher;
    3. clearly mentioned the authority it conferred upon the searcher;
    4. identified the person, container or premises to be searched;
    5. described the article to be searched for and seized, with sufficient particularity; and
    6. specified the offence which triggered the criminal investigation and named the suspected offender.
    There were no allegations before the Court that the above ingredients were missing in the impugned warrants.
  38. Search warrants ought to be scrutinized with technical rigour and exactitude. A search warrant was not some kind of mere, interdepartmental correspondence or note. It was a substantive weapon in the armoury of the State. It embodied awesome powers as well as formidable consequences. It had to be issued with care, after careful scrutiny by a magistrate or justice, and not reflexively upon a mere, checklist approach In the absence of evidence of abuse of power or a gross violation of the rights of a person to be searched, a court would be slow to find that a search warrant was unlawful on purely technical grounds.
  39. The right to privacy was expressly guaranteed by article 31 of the Constitution, while the statutory procedure for conducting search and seizure by the police had three inbuilt requirements to be met. Such requirements were that:-
    1. prior to the search and seizure the police should obtain a search warrant;
    2. such warrant should be issued by a judicial officer; and
    3. lastly there should be proof on oath that there was reasonable suspicion of commission of an offence.
    The above inbuilt requirements were present in the instant case.
  40. Police officers or other state agents could not lawfully enter upon and search any premises without a search warrant, nor could they carry away any property without the authority of the Court. The onus was on the person seeking the search warrant to prove the necessity for such warrant. The above requirements had not been proved to be absent in the proceedings leading to the issuance of the warrant. It was expected that when a police officer or any other investigator approached the Court for a warrant, there had to be reasonable suspicion of an offence being about to be committed or having been committed.
  41. The Criminal Procedure Code provided a simple yet effective mode of obtaining authority through the court. The court had to be satisfied through an affidavit on oath that the warrant or order was necessary for the conduct of the investigations. Section 118A of the Criminal Procedure Code provided that an application for search warrant was to be made ex-parte before a Magistrate.The order or warrant was never to be granted as a matter of course. To give the notice to the person to be investigated could easily jeopardize the incriminating evidence.
  42. A case was only an authority for what it decided. A decision was its ratio and not every observation found therein nor what logically followed from the various observations made in it. Every judgment had to be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which might 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 were to be found. The other was that a case was only an authority for what it actually decided.
  43. The ratio of any decision had to be understood in the background of the facts of the particular case. It was well settled that a little difference in facts or additional facts might make a lot of difference in the precedential value of a decision. 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 might alter the entire aspect. In deciding cases, the Court should avoid the temptation to decide cases by matching the color of one case against the color of another. To decide therefore, on which side of the line a case fell, the broad resemblance to another case was not at all decisive. Precedent should be followed only so far as it marked the path of justice. The cases of Tom Ojienda, SC t/a Tom Ojienda & Associates Advocates vs Ethics and Anti-Corruption Commission & 6 others and Erastus Kibiti Stephen vs Euro Bank Limited & another were distinguishable from the facts before the Court.
  44. A decision of a court of co-ordinate jurisdiction was not binding though it was entitled to its due respect. While decisions of co-ordinate courts were not binding, those decisions were highly persuasive. That was because of the concept of judicial comity which was the respect one court held for the decisions of another. As a concept, it was closely related to stare decisis. The doctrine of stare decisis was one long recognized as a principle of Kenya’s law. The decisions of an ordinary superior court were binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, it was to be followed in the absence of strong reason to the contrary.
  45. ‘Strong reason to the contrary’ did not mean a strong argumentative reason appealing to the particular judge, but something that might indicate that the prior decision was "given without consideration of a statute or some authority that ought to have been followed. “Strong reason to the contrary” was not to be construed according to the flexibility of the mind of the particular judge. Talking about consideration of a statute and authority or authorities that ought to have been followed, perhaps at that juncture was important to recall the provisions of section 118A of the Evidence Act.
  46. The right to a fair administrative action under article 47 of the 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 duties and statutory duties guided by constitutional principles and policy considerations and that 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.
  47. The 3rd Petitioner had not proved the alleged breach of his right to property under article 40 of the Constitution. Consequently, there had been a violation of the 3rd Petitioner’s rights to be heard or violation of rights under article 47 of the Constitution or rights to property.
  48. The instant Court’s jurisdiction sitting as a constitutional Court ought not to be invoked in matters which could properly be dealt with in the ordinary course of litigation. The current Constitution pervaded all aspects of life so much so that any action taken by a party might easily be transformed into a constitutional issue by simply citing some provision of the Constitution however remote. Any inclination to demand an inquiry every time there was a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialize the constitutional jurisdiction and further erode the proper administration of justice by allowing an abuse of the court process.
  49. Whereas every person was under an obligation to respect, uphold and defend the Constitution and had a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened pursuant to the provisions of article 3 and 22 of the Constitution, those provisions ought not to be abused.
  50. To institute a Constitutional Petition with a view to circumventing a process by which institutions established by the Constitution were to exercise their jurisdiction was an abuse of the Court process. To entertain such a course would lead to the Courts crippling such institutions rather than nurturing them to grow and develop. The Constitution ought only to be invoked when there was no other recourse for disposing of the matter. Where there was a remedy in Civil Law, a party should pursue that remedy. The Constitution was a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes.
  51. There was no difficulty in the 3rd Petitioner moving the Court which issued the search warrants ex parte to have the same set aside if the same were improperly obtained instead of transforming such grievance into a constitutional issue.

Consolidated Petitions dismissed with no orders as to costs.

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