Weekly Newsletter 038/2018

Weekly Newsletter 038/2018



Kenya Law

Weekly Newsletter


Refund ordered where a bank made payments on the basis of RTGS instructions where one of the relevant account’s signatories was deceased and had his signature on the RTGS forms forged.
Eunice Wairimu Muturi & another v James Maina Thuku & another
Civil Suit No 343 of 2011
High Court at Nairobi
G L Nzioka, J
September 12, 2018
Reported by Beryl A Ikamari
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Evidence Law-documentary evidence-validity of a signature authenticating a document-where an expert opinion stated that a signature was a forgery-where two sets of documents, one RTGS forms instructing a bank to make a transfer of funds and secondly documents tending to show the existence and terms of a beer distributorship business, were said to bear the forged signature of a deceased person-whether that documentary evidence had probative value.
Banking Law-bank and customer relationship-duties of a bank-duties of the bank upon receiving instructions for payments-where payments were made after RTGS fund transfer instructions were received after the death of one of the signatories to a joint account and where it was claimed that the deceased signatory's signature on the forms was forged-whether in making payments on the basis of the instructions the bank acted lawfully.
 
Brief facts:
The Plaintiffs sued the Defendants as the legal representatives of the estate of the Deceased. They said that the Deceased opened a joint escrow account with the 1st Defendant at the 2nd Defendant Bank. The Deceased then transferred Kshs. 10 million to the account for purposes of buying a piece of land. The 1st Defendant was to serve as an agent of the Deceased in the purchase of the land known as L. R. No. 209/138/44 owned by PundaMilia Farmers’ Co-operative Society. The intended sale did not take place as the deceased died before entering into a sale agreement with the property's vendor.
The Plaintiff's claim was that after the death of the deceased, the 1st Defendant, together with the 2nd Defendant, illegally and fraudulently withdrew the sum of Kshs. 9,912,447.50, from the said joint escrow account leaving only Kshs. 95,766.15/=. The Plaintiffs sought various reliefs against the Defendants and they included a declaration that the money in the joint escrow account belonged to the deceased and orders for a refund of the money withdrawn plus interest.
The 1st Defendant stated that the account was not a joint escrow account but a business account for two partners to operate a beer distribution business. He explained that the Kshs. 10, 000, 000/= was his contribution towards the business. He denied knowledge of a sale of land agreement and explained that an agent would not be the one to handle the money but it would be either the vendor's lawyer or the purchaser's lawyer. He further stated that the contemplated distributorship to be awarded by East Africa Breweries Limited had been postponed indefinitely and he agreed with the Deceased that he would get a refund from the account. He said that he did not need the consent of the Deceased's family in order to withdraw money from the account.
The 2nd Defendant stated that the account in question was a joint account operated under the set standards and ordinary terms relating to the management of joint accounts. It stated that the account holders were duly supplied with statements of account and they had not received complaints with respect to the supply of statements of account.
 
Issues:
  1. What was the nature and purpose of the joint bank account?
  2. Whether a transfer of funds could lawfully be made by one of the account holders of a joint account, where the customers' mandate required the signatures of both account holders to make debits and credits to the joint account and the other account holder was deceased and the consent of his legal representatives had not been sought.
  3. What was the effect of a discovery that the signature of a deceased account holder, who was one of two account holders for a joint account, was forged for purposes of obtaining a transfer of funds by the other account holder?
  4. What was the appropriate remedy for a claim by a bank customer for payment made against a forged signature?
 
Held :
  1. The Deceased and the 1st Defendant opened a joint account. Evidence adduced showed that the account was opened on November 30, 2010.
  2. The Account Operating Forms, which was part of the mandate for the account, indicated that for any debits and credits to be effected on the joint account both signatories, the 1st Defendant and the Deceased, had to give instructions. The 2nd Defendant was supplied with a specimen signature of each account holder and also passport photographs of the account holders.
  3. The 2nd Defendant produced a statement of account showing that withdrawals made from the account between January 26, 2011 and February 7, 2011 amounted to Kshs. 9,913,649.90/= and the account balance as at June 30, 2011 declined to Kshs. 95,766.15/= from a balance of Kshs. 10,009,400/= as at January 1, 2011. The withdrawals were made by the 1st Defendant after the death of the deceased.
  4. The relationship between a Bank and its customer was contractual. In that relationship, the Bank had duties which included the duty to comply with the customer's mandate. The Bank owed the customer an obligation to obey the customer's instructions based on the mandate given. Where the mandate required both account holders’ to sign against withdrawal instructions and/or cheques, then the bank could only pay against both signatures. The legal effect of the death of a customer was to terminate any mandate given to the bank.
  5. The 1st Defendant benefited from the funds transferred from the joint account on the basis of the said RTGS. He gave evidence indicating that the Deceased signed the RTGS forms for the transfer of the funds but a Forensic Document Examiner testified that the Deceased signature on the forms was a forgery. Given that the signature was a forgery, all payments made by the 2nd Defendant were made without authority and mandate and they had to be reversed. The amount withdrawn would have to be re-credited back to the joint account.
  6. A report had been made to the police in relation to the money and the 1st Defendant was facing charges for the offences of stealing and forgery in Chief Magistrate’s Court in Criminal Case No. 1547 of 2012. In that criminal case, part of the evidence of the cashier to whom the 1st Defendant presented the RTGS transfer forms was that when asked where the Deceased was, the 1st Defendant stated that the Deceased went outside the bank to make a call.
  7. Compensation for a claim by a customer for payment made against a forged endorsement entailed refunding the account with the amount debited together with any lost interest or charges incurred as a result of the forgery. Therefore, the money withdrawn from the joint account based on the forged signature of the deceased on the RTGS transfer forms being a sum of Kshs. 9,913,647.50/=, should be re-credited to the account.
  8. The funds in the joint account would belong to both account holders. The purpose of the account was a point of divergence for the parties. The Plaintiffs claimed that it was a joint escrow account created for purposes of a sale of land agreement while the 1st Defendant claimed that it was a joint account relating to a business partnership for beer distributorship. Evidence indicated that the Deceased intended to purchase a house from Punda Milia Cooperative Society but he died before he could do so. On the hand the Memorandum of Agreement and several documents supporting the beer distributorship business were found to have forged signatures of the Deceased upon forensic examination. The 1st Defendant's claim on the purpose of the joint account and funds was therefore unsupported.
  9. There was no evidence that the 2nd Defendant colluded or connived actively and intentionally with the 1st Defendant to defraud the estate of the Deceased. There was evidence that the 2nd Defendant was negligent. However, negligence was not pleaded and for that reason the 2nd Defendant could not be found negligent. Unless evidence was tendered to show that the 2nd Defendant knew that the Deceased's signature on the RTGS forms was forged, it was difficult to find the 2nd Defendant liable.
Judgment entered for the Plaintiffs against the Defendants.
Kenya Law
Case Updates Issue 038/2018
Case Summaries

JURISDICTION The law did not provide for an appeal from the decision of the Retirements Benefits Tribunal and such right of appeal could neither be implied nor inferred to confer jurisdiction to Employment and Labour Relations Court (ELRC) or the High Court

Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others [2018] eKLR
 Civil Appeal No. 20 of 2017
Court of Appeal
 At Nairobi
E.M Githinji, H. M. Okwengu & J. Mohammed, JJ.A
March 16, 2018.
Reported by Felix Okiri

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Jurisdiction – appellate jurisdiction – where a decision by the Retirements Benefits Tribunal could be appealed at the Employment and Labour Relations Court (ELRC) - Employment & Labour Relations Court Act, 2011, sections 12(1), 12(5); Retirement Benefits (Tribunal) Rules, 2000, Rules 12
Statutes – interpretation of statutes – interpretation of the Retirement Benefits (Tribunal) Rules, 2000; Rule 11 of the Arbitration Rules; and article 165(6) as read with article 162(2) and 165(5) of the Constitution of Kenya, 2010 – whether those provisions allowed an appeal to the High Court or ELRC - Constitution of Kenya, 2010, articles 162(2) and 165(5); Retirement Benefits (Tribunal) Rules 2010; Arbitration Rules, Rule 11

Brief facts:
The instant appeal emanated from a ruling of the Employment and Labour Relations Court (ELRC) which dismissed a preliminary objection which challenged the jurisdiction of the ELRC to hear and determine any dispute including appeals from the Retirement Benefits Tribunal relating to a retirement benefits or pension scheme.
The ELRC held that the Court had jurisdiction to hear the matter and that the absence of any inhibitive legislative provision could not be construed to oust a fundamental right such as the right to access the courts for redress.
It was from that decision of the ELRC that the Appellants herein appeal against.

Issues:

  1. Whether a decision by the Retirements Benefits Tribunal could be appealed at the Employment and Labour Relations Court (ELRC) or High Court.
  2. When could the Retirements Benefits Tribunal adopt the Civil Procedure Rules in matters of procedure?Read More..

Relevant provisions of the law
Employment & Labour Relations Court Act, 2011
Section 12(1)
 “(1) The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any written law which extend jurisdiction to the court relating to employment and labour relations including

Section 12(5)
 “The court shall have jurisdiction to hear and determine appeals arising from –
 (a) Decisions of the Registrar of Trade Unions.
 (b) Decisions of any other local tribunal or commission as may be prescribed under any written law.”

Retirement Benefits Act No. 3 of 1997
Section 46
Appeals to the Chief Executive Officer
(1) Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established.

Section 47.
(1) The Minister shall, by order published in the Gazette establish an Appeals Tribunal for the purpose of hearing appeals under this Act.

Section 48.
(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.
(2) Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal in such manner as may be prescribed.

Section 49(1)
 On hearing of an appeal, the tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.”

The Retirement Benefits (Tribunal) Rules 2000
Rule 12
            “In matters of procedure not governed by these Rules or the Act, the Tribunal may
             adopt the Civil Procedure Rules made under the Civil Procedure Act (Cap 21) 
            where applicable.”

 

Held:

  1. The Retirement Benefits (Tribunal) Rules 2000 were made to regulate appeals under section 48(1) and 48(2) of the Tribunal. The extent to which the Civil Procedure Rules were applicable to the appeals was circumscribed by rule 12.
  2. The decisions of the Retirement Benefits Tribunal had been challenged by way of appeal, either in the High Court or in the Employment and Labor Relations Court (ELRC) but the jurisprudence was not consistent. The courts’ decision fell into three categories. In the first category were decisions of the High Court which emphatically held that there was absolutely no right of appeal. The second category, were decisions which equated the Tribunal to a subordinate court and applied the provisions of the Civil Procedure Act to find that a right of appeal existed. In the third category were decisions which invoked the supervisory jurisdiction of the High Court under article 165(6) of the Constitution and held that the decision of the Tribunal could be reviewed by the ELRC.
  3. The High Court had occasionally found that notwithstanding that the Retirement Benefits Authority (RBA) Act was silent on the issue of review or appeal of the decision of the Tribunal, the High Court had jurisdiction to entertain judicial review applications by fact of its supervisory jurisdiction under article 165(6) as read with article 162(2) and 165(5) of the Constitution of Kenya, 2010.
  4. An appeal was granted in specific terms by the Constitution or Statute. A right of appeal had to expressly be conferred by Statute and such right could not be implied or inferred. The scope of appellate jurisdiction was clearly delimited by the legal source from which it derived its existence. A court of law could not assume appellate jurisdiction where none had specifically been granted by the Constitution or Statute.
  5. Rule 11 of the Arbitration Rules did not confer a right of appeal to the Court of Appeal. The Civil Procedure Rules applied to Arbitration Rules – not the Act. In any event, a rule 11 could not override a substantive section 10 of the Retirement Benefits Act.
  6. It was not possible to found a right of appeal to the Court in the Civil Procedure Act. The Arbitration Act was in a specific code on matters of arbitration while the Civil Procedure Act and the rules made thereunder provided the general procedure to be followed in civil disputes. A general Act would not prevail over or supplant a specific Act. Application of the Civil Procedure Rules in arbitration proceedings was qualified by the words ‘in so far as it was appropriate’. That did not constitute a wholesale importation of the Civil Procedure Rules into arbitration proceedings.
  7. The Constitution in article 162(2) enjoined Parliament to establish courts with status of a High Court to hear disputes, inter alia, relating to employment and labour relations and article 162(3) gave Parliament power to determine the jurisdictions and functions of such courts. Pursuant to article 162(2), Parliament enacted the Employment & Labour Relations Court Act, 2011 which provided for the jurisdiction of the ELRC in section 12(1).
  8. Rule 2 of the Employment and Labour Relations Court (Procedure) Rules 2016 (Employment Procedure Rules) defined an appeal as: an appeal to court by a party against an order, decision or proceedings under any written law and including appeals from the Cabinet Secretary, Director of Work Injury Benefits Authority, Registrar of Trade Unions, Subordinates Courts and Tribunals. Further, rule 8(1) of the Employment Procedure Rules provided that where any written law provided for an appeal to the court, an Appellant was to file a memorandum of appeal with the court within the time specified for that appeal under the written law.
  9. The RBA was the statutory law which provided for the establishment of retirement benefits schemes, regulated their operations and, in addition, provided for dispute resolution mechanisms arising from the operation of such schemes. The Act entrusted the Trustees with the responsibility of determining the retirement benefits payable to a member. Section 46(1) of the Act gave a right of appeal or review to a member who was dissatisfied with the decision of the Trustees to the CEO. Section 48 (1) of the Act provided for a second appeal to the Tribunal. The court was to solely resort to the Act as the basic law in establishing whether a third appeal was provided for or whether Parliament intended that there should be a further third appeal. It was a common ground, and, the trial court, that the Act did not expressly provide for an appeal from the decision of the Tribunal either to ELRC or to the High Court.
  10. Section 12(5) of the ELRC Act and rules 2 and 8(1) of the Employment Procedure Rules gave jurisdiction to ELRC to hear appeals and to regulate the procedure in appeals respectively where an appeal was provided for or prescribed under any written law. It followed that neither section 12 (5) nor rules 2 and 8(1) conferred a right of appeal to ELRC.
  11. The Civil Procedure Act defined a court as meaning the High Court or subordinate court acting in exercise of civil jurisdiction. Section 3 of the Civil Procedure Act provided that in the absence of any specific provision to the contrary, nothing in the Act should  limit or otherwise affect any special jurisdiction or power conferred or any special form or procedure prescribed, by or under any other law, for the time being in force.
  12. The submission that the Tribunal was a subordinate court and that where there was no provision in the RBA relating to appeals, the provisions of Civil Procedure Act applied was patently erroneous. The Tribunal was a statutory body established by the Minister under the authority of RBA. The powers of the Tribunal referred to in section 49(1) of the RBA Act were limited to summoning witness, taking evidence and to the production of documents. Furthermore, section 52 of RBA did not apply as the Chief Justice had made the Retirement Benefits (Tribunal) Rules 2000 which regulated appeals to the Tribunal. According to rule 12 of those rules, the Civil Procedure Rules were only applicable, if at all, where the rules had no provision to govern the procedure of appeals.
  13. By section 3 of the Civil Procedure Act, the operation of the RBA, the appeal rules made thereunder and the provisions of the Employment & Labour Relations Court Act and the rules made thereunder governing appeals were not limited or affected by the Civil Procedure Act. It followed that the Civil Procedure Act did not give a right of appeal from the decision of a Tribunal.
  14. The supervisory powers of the High Court conferred by article 165(6) of the Constitution was invoked by the trial court as giving power to ELRC to supervise decisions of tribunals. The jurisdiction of the High Court and ELRC were distinct. The High Court had unlimited jurisdiction. The ELRC was a court of limited jurisdiction.
  15. The supervisory jurisdiction was in essence a review jurisdiction exercisable in accordance with the prescribed procedure or rules and that the Respondents invoked the appellate jurisdiction of ELRC and not the review jurisdiction and that the general supervisory jurisdiction was not applicable to appeals.
  16. The grant of leave to appeal by a court was not decisive. For a right of appeal to exist, the statute itself had to provide for an appeal with the leave of the court. The duty of the court was to interpret the law, as enacted by Parliament. It was not its duty to legislate for what Parliament had failed to provide.
  17. The Tribunal was a specialized quasi-judicial body. Like any specialized field or profession, a court of law was least equipped to supervise and question the technical and scientific rationale of the decisions of such specialized bodies.
  18. The appeal to the Tribunal was a second appeal. The appeal to ELRC was a third appeal. For finality of disputes, granting of right to a third appeal was rare in Kenya. By article 163(4) of the Court, appeals lay to the Supreme Court from decisions of the Court of Appeal with leave of either the Supreme Court or the Court of Appeal in the special circumstances specified therein. Therefore, as a general principle, if the Court of Appeal determined a second appeal, the Supreme Court might entertain a third appeal with leave if the conditions therein were satisfied. That was one rare case where a third appeal was allowed.
  19. The law did not provide for an appeal from the decision of the Retirements Benefits Tribunal and such right of appeal could neither be implied nor inferred to confer jurisdiction to ELRC or the High Court Jurisdiction to entertain such an appeal. The appeal filed by the Respondents was incompetent.
  20. The decision of the lower court was also assailed on the ground that it erred in finding that it had jurisdiction to determine a dispute relating to a retirement benefits or pension scheme.
  21. The question whether ELRC had jurisdiction to entertain a constitutional petition impugning the decision of the Retirement Benefits Tribunal had not been raised in the instant appeal and thus did not fall for determination. To determine the statutory jurisdiction of the ELRC to entertain disputes relating to retirement benefits or retirement benefits schemes without determining the court’s constitutional jurisdiction to entertain such disputes, would not finally settle the law on jurisdiction. It would only cause confusion.

Appeal allowed, each party to bear own costs

CONSTITUTIONAL LAW Court declares the Machakos County Finance Act, 2018 unconstitutional for lack of public participation to the extent that it imposed a different levy for sand harvesting permits contrary to the Bill presented to the public

Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others [2018] eKLR
Petition No. 9 of 2018
High Court at Machakos
G V Odunga, J
August 6, 2018.
Reported by Kakai Toili

Download the Decision

Constitutional Law-interpretation of the Constitution-principles guiding interpretation of the Constitution-what were the principles guiding the interpretation of the Constitution.
Constitutional Law– national values and principles of governance - public participation – principles to be inculcated in public participation-what were the principles that had to be inculcated in public participation-Machakos County Public Participation Act, section 2.
Constitutional Law– national values and principles of governance - public participation-facilitation of public participation-what were the measures required to facilitate public participation-County Governments Act, 2012, section 87; Machakos County Public Participation Act, section 52(f).
Constitutional Law– national values and principles of governance - public participation-duration for conducting public participation-where the period for public participation was short but no member of the public was locked out from presenting his or her views- whether a court could invalidate a legislation where the period for public participation was short but no member of the public was locked out from presenting his or her views.
Constitutional Law–national values and principles of governance-public participation-public participation in enacting legislation-where a bill was subjected to public participation but substantially amended before its enactment- whether a Bill which was subjected to public participation but substantially amended before being enacted as an Act could be declared unconstitutional for lack of public participation-Constitution of Kenya, 2010, articles 10 and 196
Words and Phrases – consultation – definition of consultation – the act of asking the advice or opinion of someone - Black’s Law Dictionary 9th Edition, page 358
Words and Phrases – participation - definition of participation - the act of taking part in something, such as partnership - Black’s Law Dictionary 9th Edition, page 1229

Brief Facts:
The 2nd Respondent (the County Assembly of Machakos) enacted the Machakos Finance Act, 2017 (the Act). The Act provided for Sand Harvesting/ Transportation Cess. The 2nd Respondent through a letter dated September 26, 2017, invited the Petitioners to attend foras at various venues all of which were to take place on September 29, 2017 from 11.00 am to 2.00pm in order to discuss the Machakos Finance Bill (the Bill). The Petitioners contended that the Bill availed by the 2nd Respondent for the public participation was markedly different from the Act as the rates that were provided in the Bill were as for the previous year thus the Petitioners’ contention that no public participation was carried on in respect of the Act. The Petitioners sought, among other orders, that the Act be declared unconstitutional.

Issues:

  1. What were the principles guiding the interpretation of the Constitution?
  2. What were the principles that had to be inculcated in public participation?
  3. What were the measures required to facilitate public participation?
  4. Whether a court could invalidate legislation where the period for public participation was short but no member of the public was locked out from presenting his or her views.
  5. Whether a Bill which was subjected to public participation before being substantially amended and enacted as an Act could be declared unconstitutional for lack of public participation. Read More...

Relevant Provisions of the Law
Machakos County Public Participation Act
Preamble
AN ACT of the Machakos County Assembly to give effect to Articles 1,10 (2) (a), 118, 119, 174, 232 (l) (d) and paragraph 14 of Part 2 of the Fourth Schedule of the Constitution to establish modalities and platform for public participation in the governance of the County and for connected purposes.

Section 2
"public participation"  means an open, democratic and accountable process of engaging a representative sector of the public in formulating policies and developing laws that affect them.

County Governments Act 2012
Section 87
a)     Timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;
b)     Reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards;
c)     Protection and promotion of the interest and rights of minorities, marginalized groups and communities and their access to relevant information;
d)     Legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, Including women, the youth, and disadvantaged communities;
e)     Reasonable balance in the roles and obligations of county governments and non-state actors in decision-making processes to promote shared responsibility and partnership, and to provide complementary authority and oversight;
f)       Promotion of public-private partnerships, such as joint committees, technical teams, and citizen commissions, to encourage direct dialogue and concerted action on sustainable development; and
g)     Recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight.

Section 88
(a)  Information communication technology based platforms;
(b)  Town hall meetings;
(c)   Budget preparation and validation fora;
(d)  Notice boards: announcing jobs, appointments, procurement, awards and other important announcements of public interest;
(e)   Development project sites;
(f)     Avenues for the participation of peoples’ representatives  including but not limited to members of the National Assembly and Senate; or
(g)   Establishment of citizen fora at county and decentralized  units.

Machakos County Public Participation Act 2014
Section 4
The guiding principles for public participation in Machakos County Government to include:

(a)  The communities, organizations and citizens affected by any policy decision of the government shall have the right to be consulted and shall be accorded an opportunity to participate in the process of formulating policy;
(b)  Availing participants access to the information necessary to ensure meaningful participation; and
(c)  Feedback to the public on how their input is included in the policy decision.

Held:

  1. The mere fact that the 2nd Respondent enacted an Act that was not the end of the matter. The Court could grant the orders sought in the Petition where appropriate orders in accordance with article 23(3) of the Constitution. The Court could not down its tools where there was an allegation of violation of the Constitution without investigating the same. The Court could not therefore, in the circumstances of the case decline to interrogate the issues raised by the Petitioners which touched on the application of constitutional provisions.
  2. The presumption of constitutionality of statutes was not in doubt. In interpreting the Constitution, the Court would be guided by the general principles that there was a rebuttable presumption that a legislation was constitutional hence the onus of rebutting the presumption rested on those who challenged that legislation’s status save that, where those who supported a restriction on a fundamental right relied on a claw back or exclusion clause, the onus was on them to justify the restriction.
  3. The state organs delegated with the sovereign power under article 1 of the Constitution had to perform their functions in accordance with the Constitution. The Constitution having been enacted by way of a referendum, was the direct expression of the people’s will and therefore all state organs in exercising their delegated powers had to bow to the will of the people as expressed in the Constitution otherwise article 2 of the Constitution allowed for the recall of any law, including customary law that was inconsistent with the Constitution or any act or omission in contravention of the Constitution for the purposes of being voided and or invalidated.
  4. The general provisions governing constitutional interpretation were that in interpreting the Constitution, the Court would be guided by the general principles that;
    1. The Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts had to therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it, so construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document.
    2. The provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that Kenyans enjoyed their rights, Kenya’s young democracy not only functioned but also grew and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.
  5. It could be argued that where the action taken was in consonance with the Constitution in its formal aspects then the mere fact that there was no public participation ought not to nullify such otherwise legal action. However, the obligation to facilitate public involvement was a material part of the lawmaking process. It was a requirement of manner and form. Failure to comply with that obligation rendered the resulting legislation invalid. The Court not only had the power but the obligation to determine whether a particular legislation was in fact and in substance enacted in accordance with the Constitution and not to just satisfy itself as to the formalities or the motions of doing so.
  6. Public participation ought not to be equated with mere consultation; it was not a mere cosmetic venture or a public relations exercise. Whereas it was not to be expected that the Legislature would be beholden to the public in a manner which enslaved it to the public, to contend that public views ought not to count at all in making a decision whether or not a draft Bill ought to be enacted would be to negate the spirit of public participation as enshrined in the Constitution. Public views ought to be considered in the decision making process and as far as possible the product of the legislative process ought to be true reflection of the public participation so that the end product bore the seal of approval by the public. In other words the end product ought to be owned by the public.
  7. In the instant case, the definition of public participation was to be found in section 2 of the Machakos County Public Participation Act. Public participation had to inculcate the principles of openness, democracy, accountability and representation. However, the yardstick for public participation was that a reasonable opportunity had been given to the members of the public and all interested parties to know about the issue and to have an adequate say. It could not be expected of the Legislature that a personal hearing would be given to every individual who claimed to be affected by the laws or regulations that were being made. What was necessary was that the nature of concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations. The mere fact that particular views had not been incorporated in the enactment did not justify the Court in invalidating the enactment in question. Public participation was not the same as saying that public views had to prevail.
  8. Upon perusal of the Memorandum of Understanding (M O U) between the 1st Respondent and the Petitioners, it was clear that the Fourth Schedule of the impugned Finance Act was not a replica of the charges captured in paragraph 7 of the M O U. Whereas the M O U was clear that sand harvesting permits would be issued strictly on a monthly basis and that charges per trip would not be allowed except on special conditions, the Schedule introduced charges per trip. The charges in the Schedule did not reflect the contents of the M O U.
  9. Whereas the Taifa Leo advertisement invited the public to various public fora and invited participation therein, the details of the document which the public was required to contribute on was not disclosed. At a minimum, the Respondents should have informed the public where the document in question could be obtained and the costs, if any, for doing so. No such information which was crucial to meaningful public participation was disclosed. The said advertisement was not useful for the purposes of obtaining information from the members of the public and that also went for the advert in the Daily Nation which was also crafted in similar terms.
  10. Section 52(f) of the Machakos County Public Participation Act provided for the public to be accorded reasonable time to input and comment on any proposals. The measures that were required to be taken to facilitate public participation in the law-making process included provision of notice of and information about the legislation under consideration and the opportunities for participation that were available.
  11. The letter addressed to the Kenya National Chamber of Commerce and Industry, Machakos County, was dated September 26, 2017 and it was inviting the membership of the Petitioners to attend the foras at various venues all of which were to take place on September 29, 2017 from 11.00 am to 2.00pm. There was no indication in the said letter where the Bill was to be obtained from. The Petitioners averred that the letter was received on September 27, 2017. Section 87 of the County Government Act 2012 mandated that the public be given timely access to information, data, documents and other information relevant or related to policy formulation and implementation.
  12.  In determining the reasonableness of the conduct of public participation process, the nature and importance of the legislation and the intensity of its impact on the public were relevant. A Bill that had financial ramifications on the members of public was a very crucial Bill and ought not to be treated lightly. Sufficient time had to therefore be afforded to the public to air their views thereon. In the instant case the Respondents had not disclosed the dates when the adverts appeared in the Daily Nation and the Taifa Leo. The copies exhibited did not show when in fact the said adverts appeared in the media. To inform the public to air their views on a Bill whose contents were not disclosed without informing them how and where to access the Bill and proceeding to limit the period for transmission of the views to two days in respect of a Bill so crucial to the public ordinarily could not amount to reasonable opportunity to the public to participate in the process of enactment of the Bill in question.
  13. Whereas the magnitude of the publicity required could depend from one action to another, a one day newspaper advertisement in a country such as Kenya where a majority of the populace survived on less than a dollar per day and to whom newspapers were a luxury leave alone the level of illiteracy in some parts of Kenya, could not suffice for the purposes of seeking public views and public participation. That position was underpinned in legislation vide section 88 of the County Governments Act which provided for the modalities and platforms for citizen participation.
  14.  Even if the period was short but it was shown that the Petitioner did in fact participate in the enactment of the Bill, the Court would be reluctant to nullify the enactment in the absence of any evidence that a member of the public was as a result of the short notice locked out from presenting his views. In the instant case it was clear that the Petitioners’ case was with respect to the levies imposed on Sand Harvesting and Transport industry as opposed to the Act generally.
  15. It was clear that not only was the Bill leading to the Act advertised but that the Applicants themselves participated by giving their views thereon. In fact the Petitioners expressly admitted that there was a newspaper advertisement inviting all persons to present their views, their only issue was that the same did not meet the threshold of the public participation as per the Machakos County Public Participation Act, 2014 and section 88 and 89 County Governments Act. Ordinarily, the material placed before the Court by the Respondents would have fallen short of the threshold required for public participation to be deemed to have been properly undertaken. In the absence of any evidence to the effect that any person was thereby locked from being afforded an opportunity to present his or her views, the Petitioners, who were themselves afforded that opportunity could not succeed in the Petition.
  16. It was clear from the newspaper adverts as well as the letter addressed to the Petitioners’ organization on September 29, 2017 that the consultative forum was in respect of the Finance Bill year 2017-2018. It was incumbent upon the Petitioners to satisfy the Court that not only was the notice given too short, but that as a result thereof they were unable to adequately prepare and meaningfully participate in the process of the enactment of the Bill. Whereas the notice in question was short, there was no satisfactory material placed before the Court to convince it that as a result, the Petitioners were deprived of an opportunity to participate in the process.
  17. Whereas the views of the Petitioners could not have been swallowed hook, line and sinker by the Respondents that did not necessarily mean that there was no public participation. Whereas the views expressed by the public were not necessarily binding on the Legislature, due consideration had to be given to them before they were dismissed. In other words public participation ought not to be taken as a mere formality for the purposes of meeting the constitutional dictate. Not all persons had to be heard. In the instant case, there was an opportunity for public participation and there was no evidence that any member of the public, through the shortness of the notice was deprived of an opportunity to participate in the law making process.
  18. Looking at the Bill and the Act, it was clear that the Act did not exactly reflect what was contained in the Bill. For example whereas in the Bill the sand permit per 7 tonne Lorry per trip was indicated as Kshs 1,300 uniformly, the Act stated that sand permit per 7 tonne lorry per trip was Kshs 5000.00. It was not clear at what stage the amount in the Bill that was the subject of public participation was altered in terms of the amount payable in respect of the sand permit per 7 tonne Lorry per trip. The onus was on the law making authority to show that there was public participation in the process and that the end product reflected that process.
  19. Where there was a break in the process and the end product was a monster that was completely strange to what was presented to the public as seemed to be the case in the instant case. In the absence of any reasonable justification, the Court had to find that the product was a not result of the public participation and had to proceed to declare it to be so. For any amendments to be introduced on the floor of the Assembly subsequent to public participation, the amendments had to be the product of the public participation and ought not to be completely new provisions which were neither incorporated in the Bill as published nor the outcome of the public input.
  20.  By introducing totally new and substantial amendments to the Act which were not in the Bill, the Assembly not only set out to circumvent the constitutional requirements of public participation but mischievously short-circuited and circumvented the letter and the spirit of the Constitution. Its action amounted to a violation of articles 10 and 196 of the Constitution. The substitution of the sum of Kshs 1,300 as indicated in the Bill with that of Kshs 5,000 in respect of the sand permit per 7 tonne Lorry per trip was improper and unlawful.
  21. The Bill of Rights had been or was threatened with contravention, to avoid to enforce the Bill of Rights on the ground that the supplicant for the orders had not set out with reasonable degree of precision that of which he complained had been infringed and the manner in which they were alleged to be infringed. Where the Court could glean from the pleadings the substance of what was complained, to dismiss the Petition on the ground of lack of precision would amount to the Court shirking from its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues. Where there was a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the Bill of Rights, the latter ought to prevail over the former.

Petition partly allowed
Orders

  1. To the extent that the Machakos County Finance Act, 2018  substituted what was presented to the public with a completely different figure, the Machakos County Finance Act, 2018 fell afoul of article 2(4) of the Constitution and was inconsistent with the Constitution hence void to the extent of the inconsistency. In other words the insertion of the figure of Kshs 5,000.00 instead of Kshs 1,300.o0 in respect of sand permit per 7 tonne Lorry per trip was contrary to the Constitution and was quashed.
  2.  If the Petitioners had paid any sum over and above the sum of Kshs 1,300.00 in respect of the sand permit per 7 tonne lorry per trip, they were entitled to a refund of the same.
  3. Each party to bear its own costs.
COMMERCIAL LAW The Court will be guided by the Partnership Act in distribution the Capital and liabilities of the Partnership where parties lack a Partnership deed

M W K & 2 Others V C N
Civil Suit No. 650 of 2015
High Court at Nairobi
F. Tuiyott, J
July 27, 2018
Reported by Safiya Awil Ibrahim

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Commercial Law- partnerships- dissolution of a partnership- distribution of profits and losses-where the parties did not have a partnership deed in regards to distribution of profit and losses- The Partnership Act (repealed), section 28(a)

Brief facts:
M W K (The 1st Plaintiff or M) lived with R K K (the Defendant or R) as wife and husband for a considerable period of time. C N (the 2nd Plaintiff or C) and S G (the 3rd Plaintiff or S) were daughters of M and Stepdaughters of R. They entered into partnership that was registered on June 15, 2004 in the names of R, M, C and S. It later hit an unhappy stretch and the Partners agreed that it was time for it to be dissolved.

Issues:

  1. Whether the contribution by each Partner to the business should be considered during Distribution.
  2. Whether the dormant partners should be left out during the distribution of profits. Read More..

Relevant Provisions of the Law:
Partnership Act. 
Section 28(a)
 “The interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement express or implied between the partners, by the following rules—

(a)   all the partners are entitled to share equally in the capital and profits of the business and must contribute equally towards the losses whether of capital or otherwise sustained by the firm;
 (b)   the firm must indemnify every partner in respect of payments made and personal liabilities incurred by him—

 (i)    in the ordinary and proper conduct of the business of the firm; or
 (ii) in or about anything necessarily done for the preservation of the business or property of the firm;

(c)     a partner making, for the purpose of the partnership, any actual payment or advance beyond the amount of capital which he has agreed to subscribe is entitled to interest at the rate of six per centum per annum from the date of the payment or advance;
(d) a partner is not entitled, before the ascertainment of profits, to interest on the capital subscribed by him;
 (e) every partner may take part in the management of the partnership business;
(f) no partner shall be entitled to remuneration for acting in the partnership business;
 (g) no person may be introduced as a partner without the consent of all existing partners;
(h) any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners;
 (i) the partnership books are to be kept at the place of business of the partnership (or the principal place, if there is more than one) and every partner may, at all reasonable times, have access to and inspect and copy any of them”

Section 48
“In settling accounts between the partners after a dissolution of partnership, the following rules shall, subject to any agreement, be observed—
a. losses, including losses and deficiencies of capital, shall be paid first out of profits, next out of capital, and lastly, if necessary, by the partners individually in the proportion in which they were entitled to share profits;
 b. the assets of the firm, including the sums, if any, contributed by the partners to make up losses or deficiencies of capital, shall be applied in the following manner and order—

 i. in paying the debts and liabilities of the firm to persons who are not partners therein;
  ii. in paying to each partner rateably what is due from the firm to him for advances as distinguished from capital;
 iii. in paying to each partner rateably what is due from the firm to him in respect of capital;
 iv. the ultimate residue, if any, shall be divided among the partners in the proportion in which profits are divisible”

Held:

  1. The Court was tasked to share the Capital and liabilities of the Partnership amongst the partners. However there was no partnership deed that would guide the Court during the division, therefore it had to resort to the provisions ofsection 28(a) of the Partnership Act.That had been referred to as the rule of equality.
  2. Section 24 of the English Partnership Act 1890 was word for word section 28(a) of The Repealed Partnership Act. The rule of equality embodied in the section 24 of the English Partnership Act 1890 would, in the absence of any contrary agreement, always be applied when determining partners’ shares in the firm’s fixed capital, income or trading profits and capital or asset surpluses. The amount by which the market value of the partnership assets exceeded their acquisition or book value. The same held true for section 28(a) of the repealed Partnership Act.
  3. The rationale for the rule of equality being that, in the absence of any express or implied agreement between the partners, the partners would consider their shares to be equal notwithstanding their contribution to the partnership be it capital, skill, labour, business connections or otherwise.  It was to be presumed that having not expressed or implied their shares, then the Partners took their contributions of whatever nature to be equal. If it were otherwise, then they would have said so expressly or by implication. Whilst it would sometimes lead to some seemingly absurd or unjust outcome, it removed the need of putting value to the respective contributions of each partner when they themselves did not find it necessary to do so.
  4. R had made a spirited fight to have his contribution given a bigger recognition than that of C and S, he had not been able to point to an express or implied agreement between the parties that the shares should be unequal. R pegged his hope on the fact that the 2nd and 3rd Plaintiff had all along been dormant Partners, but in the absence of a written agreement or implied agreement (which for example could be gleaned by the manner in which profits were shared), the instant Court had no option but to assume that the partners intended to have their shares considered as equal.
  5. The opposing parties took a joint valuation of the Partnership which returned a net total valuation of 109,715,673 as at August 4, 2017. That would be exclusive of a contentious loan amount of Khs.8,400,000/- from one Simon T. Wood (the Deceased). The Net Valuation of Ksh.109,716,673 comprised the following:-
    1. Land & Building …………………..78,500,000/=
    2. Furniture & Equipment………………….4,248,300/=
    3. Motor vehicles ………………………………..9,240,000/=
    4. Business value ………………………………..17,727,373/=
  6. When the Court moved to assign a value to each partner’s share, it had to make an observation on the question of ownership of LR No. [Particulars Withheld] on which the school stood. Whilst the valuer separated the value of the Land from that of buildings, it seemed obvious, and accepted by both sides, that the buildings were part of the land. Whatever was planted in (built on) the soil went with the soil was the maxim.
  7. The land was registered in the names of M, C and S as tenants in common in equal shares. The law on ownership of that land, its partitioning or sale if it was incapable of being partitioned was to be found in part IX of The Land Registration Act (Act No. 3 of 2012).
  8. There was a controversy as to whether a loan was ever granted by one Simon wood (now deceased) to the Partnership.  The Plaintiffs denied that such a loan was ever taken by the business or used towards payment of liabilities of the Partnership.  That in fact there was no claim of any such money from the estate of the late Simon wood.
  9. The evidence presented by the Defendant had not been controverted by the Plaintiffs and on the matter the Court believed the Defendant when he said that khs.14,000,000 was lent to the school and it (partnership) owed kshs.8,400,000 to the Estate of the deceased. That debt had been established on a balance of probabilities and was a true liability and not a contingent one.
  10. Just like the capital of the partnership, the liability would be shared equally amongst the Partners.  Yet on the issue of liability, regard had to be given to the provisions of section 48 of The Repealed Partnership Act which was the Rule for Distribution of Assets on Final Settlement of Accounts.
  11. The evidence before the Court was that, although the debt to the Estate of deceased was due, the Estate had not come forward to claim it. Following section 48(b), such a debt ought to be paid out prior to the division of the Net Capital to the Partners and there was no knowing if and when the Estate of the Deceased should be laying a claim.
  12. On the question of land and buildings, the instant Court had found that it had no jurisdiction to deal with the matter. In the absence of an amicable settlement between M, C and R, then, the Land Registration Act, no doubt, provided a way out.

Appeal dismissed
Orders

  1. The distribution of the Net Capital or value of Partnership should be shared equally between the Partners.
  2. The Defendant should be paid the value of his share by the remaining Partners so as to buy him out of the Partnership.
  3. In respect to the debt to the Estate of Simon Wood, there had been no claim of interest on that loan and so the amount to be deposited is Ksh 8,400,000/=.That money is to be paid out only to the Estate of the Deceased.
  4. Each party should bear its own costs.
CONSTITUTIONAL LAW Kenya Medical and Training College (KMTC), and not Kenya Universities and Colleges Central Placement Service (KUCCPS), has the mandate to place students to the Kenya Medical and Training College

Kyalo Kamina v Kenya Universities and Colleges Central Placement Service and 2 others [2018] eKLR
Petition No 3 of 2016
(Formerly Nairobi – Petition No 513 of 2015)
High Court at Nakuru
A K Ndung’u, J
July 24, 2018
Reported by Ian Kiptoo

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Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-claim that the Respondents violated the Petitioner’s son’s rights-where a claimant was unknown to the Court-whether a court could practically enforce the rights of an unknown entity if breach was to be established-whether the Petitioner’s son’s rights were violated as a result of the confusion as to whom between KUCCPS and KMTC was mandated to place students to KMTC-Constitution of Kenya, 2010, articles 43, 47(1), and 50
Statutes-interpretation of statutes-repeal of statutes-doctrine of implied repeal- whether the Technical and Vocational Education and Training Act and Education Act, enacted prior to the Kenya Medical Training College Act, impliedly repealed the Kenya Medical Training College Act-Technical and Vocational Education and Training Act, 2013; Sessional Paper No 14 of 2010
Statutes-interpretation of statutes-interpretation of the Technical and Vocational Education and Training, Education Act and Kenya Medical Training and College Act as to who had the mandate to place students to the Kenya Medical and Training College-who within the law, between KUCCPS (1st Respondent) and KMTC (2nd Respondent), had the statutory mandate to admit students to the Kenya Medical Training College-Technical and Vocational Education and Training Act 2013, sections 2 and 52; Kenya Medical Training College Act, Cap 261 Laws of Kenya, sections 5 and 6; Sessional Paper No 14 of 2010
Words and Phrases-technical college-definition of-a college that trains people for jobs in technology and other practical subjects-The Macmillan Dictionary
Words and Phrases-vocational course-definition of-one that teaches the skills necessary for a particular job or basically an occupation-The Macmillan Dictionary
Words and Phrases-profession-definition of-relating to work that needs special skills and qualifications-The Macmillan Dictionary

Brief facts:
The Petition was founded on the alleged conflict between Kenya Medical Training College (KMTC), 2nd Respondent, and Kenya Universities and Colleges Central Placement Service (KUCCPS), 1st Respondent, on which body between the two had the legal right to admit students into KMTC. KMTC claimed the exclusive right to admit students by virtue of section 6 of the KMTC Act and section 57 of the Universities Act, 2012 whereas KUCCPS claimed exclusive right to admit students to KMTC by virtue of section 55 and 56 of the Universities Act, 2012 and section 2 and 52 of the Technical and Vocational Education and Training Act 2013.
The Petitioner averred that his son’s rights were violated by the confusion where KUCCPS placed 2,302 applicants to KMTC, the Petitioner's son being one of the students placed by KUCCPS, in the 2015/2016 year with the KMTC board subsequently advertising for placement of regular students and informing members of the public through an advertisement in media that they would not be admitting any of the students placed to it by KUCCPS.

Issues:

  1. Whether the Technical and Vocational Education and Training Act and Education Act, enacted prior to the Kenya Medical Training College Act, impliedly repealed the Kenya Medical Training College Act.
  2. Who within the law, between the KUCCPS (1st Respondent) and KMTC (2nd Respondent), had the statutory mandate to admit students to the Kenya Medical Training College?
  3. Whether a court could practically enforce the rights of an unknown entity if breach of a right was to be established.
  4. Whether the Petitioner’s son’s rights were violated as a result of the confusion as to who between KUCCPS and KMTC was mandated to place students to KMTC. Read More..

Relevant Provisions of the Law
Technical and Vocational Education and Training Act, 2013
Section 52-Placement of students into technical and vocation education institutions
Admission of students into technical and vocation education institutions shall be conducted by the Service established under the law relating to universities.

Section 58(1)
 “Notwithstanding the provisions of Education Act (Cap 211) or regulations made thereunder, all technical and vocational training institutions established by orders made under the Act shall within a period of two years from the date of commencement of this Act, seek accreditation from the Authority in accordance with the provisions of this Act.”

Kenya Medical Training College Act, Cap 261 Laws of Kenya
Section 6-Admission to the College
Admission to the College as candidates for diplomas, certificates or other awards shall be open to all persons accepted as being qualified by the Academic Board, without distinction of race, tribe, place of origin or residence or other local connections, political opinion, colour, creed or sex; and no barrier based on any such distinction shall be imposed upon any person as a condition of his becoming, or continuing to be a lecturer, graduate, or student of the College, or of his holding office in the College, nor shall any preference be given to, or advantage be withheld from, any person on the grounds of any such distinction.

Held:

  1. The starting point of interpreting a statute was the language itself. In the absence of an expressed legislature intention to the contrary, the language had to ordinarily be taken as conclusive. Thus, when the words of a statute were unambiguous, then the first canon was also the last, judicial inquiry was complete. The implication was that when the language was clear as in the sections complained about, then it was not necessary to belabour examining other rules of statutory interpretation.
  2. The 2nd Respondent was established under section 3 of the KMTC Act as a body corporate with perpetual succession and common seal. Section 5 stipulated the functions of the 2nd Respondent. Section 11 of the Act established the Academic Board which under section 6 of the Act had the mandate to admit students to the 2nd Respondent. The words/language of the provisions were clear and unambiguous. Therefore, there existed no expressed legislative intention to the contrary and thus the language was conclusive.
  3. Section 55(1) of the Universities Act established the 1st Respondent as a body corporate with perpetual succession whereas section 55(3) provided that KUCCPS was to be governed by the Placement Board. Under Section 56(1) (a), the placement board would co-ordinate the placement of government sponsored students to universities and colleges. The Universities Act preamble stated that the Act was intended, to, inter alia, provide for the development of university education, the establishment of the Kenya Universities and Colleges Central Placement Service Board and the repeal of certain laws. Section 2 interpreted a constituent college as a constituent college of a university and Institution as a public or private institution or facility used for the conduct of university education. Section 71 of the Universities Act listed statutes specified for repeal. Of note was that the KMTC Act was not among them.
  4. The Technical and Vocational Education and Training (TVET) Act was an Act of Parliament to provide for the establishment of a technical and vocational education and training system; to provide for the governance and management of institutions offering technical and vocational education and training; to provide for coordinated assessment, examination and certification; to institute a mechanism for promoting access and equity in training to assure standards, quality and relevance; and for connected purposes. Under section 2(1) of the TVET Act, a technical and vocational college was defined as an institution offering technical and vocational education and training at diploma level whereas under section 52 of the TVET Act, admission of students into technical and vocational education institutions would be conducted by the service established under the law relating to universities.
  5. A look at section 4A of the Education Act showed that KMTC was not among institutes established by the minister by order in the gazette. The doctrine of implied repeal, that the provisions in the Universities Act and the TVET Act took away the mandate of the academic board of the KMTC to admit students to KMTC, would have arose if the Petitioner was able to demonstrate that the provisions in the Universities Act and TVET Act which were more recent as compared to the KMTC Act provided for the admission of students to the KMTC by the 1st Respondent. That was because of the canons of interpretation with regard to the timing of legislation and the doctrine of implied repeal, which was to the effect that where provisions of one Act of Parliament were inconsistent or repugnant to the provisions of an earlier Act, the later Act abrogated the inconsistency in the earlier one.
  6. Even where there was conflict with legislation enacted subsequent to the subject Act, the inconsistency had to be clearly demonstrated. A closer look at the provisions of the three Acts; the KMTC Act, the Universities Act and the TVET Act did not entirely support the proposition that there was an implied repeal of the KMTC Act. First, under section 71 of the Universities Act, Parliament expressly repealed legislations that were affected by that Act. If the intention of parliament would have been to repeal the KMTC Act, nothing would have been easier than for it to provide for such repeal. The preamble of the Universities Act provided the intention of the Act. The legislature had at the very onset clear sight of the targeted laws for repeal and it expressed itself clearly on those affected Acts under section 71 of the Universities Act. Where the repeal was not explicit, the intention to repeal had to be clear and manifest.
  7. Secondly, as to whether an implied repeal was applicable, it was not demonstrated in either the Universities Act or the TVET Act or both that KMTC was one of the colleges envisaged under the said Acts. A proper reading of the TVET Act read with the Education Act did not place the KMTC under the category of Technical and Vocational Education and training.
  8. Material in sessional paper No 14 of 2010 (sessional paper) was the basis upon which the TVET Act was born. In paragraph 1.34, it was appreciated that specialized vocational training programmes existed in various government ministries and fell under the supervision of the respective sector ministries. Paragraph 1.35 listed the technical educational institutions which included Polytechnic University Colleges, National Polytechnics, Technical Teachers Training College and Technical Training Institutes among others. The 2nd Respondent was not referred to or mentioned as among those inclusive institutions and safely, it could therefore have been construed that it was intentional to omit it as forming part of the vocational training institutions subject of the Sessional Paper.
  9. Paragraph 3.18 of the Sessional Paper referred to technical training and vocational training institutions. Highlights were made to Kenya and Mombasa Polytechnics, national polytechnics at Eldoret and Kisumu, Technical training institutes, institutes of technology, youth polytechnics and technical teachers training college. However, there was no mention or reference to the 2nd Respondent. Furthermore, paragraph 14.1 appreciated that education and training in Kenya was constituted in the Education Act and other related Acts of Parliament and that the Education Act and other related Acts of Parliament had not been harmonized.
  10. Under paragraph 14.13 of the Sessional Paper, an implementation strategy was secured, and for purposes of harmonization, it was proposed under paragraph 14.12(1) that there be a repeal of all the relevant Acts of parliament on education and training with a view of inter alia, resolving existing conflicts in the education related Acts. Notably, although the Universities Act and TVET Act were said to be a product of the Sessional Paper, the KMTC was never repealed and or amended to align it with the strategy under paragraph 14.13(1) of the Sessional Paper. That was a more clear indication that the 2nd Respondent was never in the minds of the drafters of the Sessional Paper and or the consequent Acts, namely the Universities and TVET Acts respectively. Indeed, that paragraphs 15.16(11) and 15.2191) of the Sessional Paper proposed the establishment of the 1st Respondent and TVET Authority respectively confirmed the intention of the establishment and clear exclusion of the 2nd Respondent as among the targeted institutions.
  11. There was a stark difference between the institutions falling under the TVET Act and in which the 1st Respondent had mandate to coordinate placements and the 2nd Respondent which was a professional institution. It was clear that the institutions targeted under the TVET Act were institutions under the Education Act and KMTC was not one of them, the same being anchored on and governed by an independent statute, the KMTC Act and falling under a different ministry, the Ministry of Health.
  12. Under section 58(1) of the TVET Act, all technical and vocational training institutions established under the Education Act were required to seek accreditation from the Authority (created by the TVET Act) within 2 years of the commencement date of the Act. That provision further amplified the fact that KMTC, which existed under an independent Act of Parliament, was not subject to the TVET Act since if that was the intention of parliament, again, nothing would have been easier than to require all institutions created under other Acts of parliament other than the Education Act to seek accreditation from the authority. Parliament did not do that. Therefore, to the extent that TVET Act was silent on KMTC, KMTC was not subject to that law.
  13. The 2nd Respondent was neither a technical nor a vocational training institution. The mere fact that the 2nd Respondent offered an award of diploma did not by itself bring it within the ambit of the TVET Act and the institutions governed by it. It had been suggested and demonstrated through an advertisement in a local daily that KMTC at some point acknowledged the right of the 1st Respondent to admit the students. However, such an act was of no consequence in a litigation of that nature where the Court was to make its own independent interpretation of the law and a finding thereon.
  14. Analysis of the relevant Acts led to the conclusion that there was no explicit or implied repeal of the KMTC Act in the Universities Act and/or in the TVET Act. There was no conflict between the provisions on admission of students in the KMTC Act and in the Universities Act and/or in the TVET Act.
  15. The purpose and intention of the legislature was to streamline the organization and management of the technical and vocational education and training Institutions of which the KMTC was not part thereof. Bearing in mind the principle of separation of powers and noting no ambiguity or conflict in the provisions of the law complained of, the Court would be reluctant to transcend into the arena of law making and import other meaning to the law other than that within the object and intention of parliament.
  16. It was instructive that the Petitioner did not name the son whose rights were violated (ostensibly for fear of victimization). However, the alleged fear of victimization could not hold as a citizen who appeared before court ought to be well aware that the Court was a ready shield of protection for already committed violations, if at all, and even for any future violations by a party who may be unhappy with the institution of a suit.
  17. The claim on violation of the Petitioner's son’s constitutional rights to health was vague and unsubstantiated. The claim on violation of the Petitioner's son right to education was compromised by the consent orders recorded in Nairobi JR Civil Application No 291 of 2015 whereby students selected by the 1st and 2nd Respondents, and who included the Petitioner's son were to be admitted to KMTC and indeed the Petitioner confirmed that in the pleadings.
  18. As regards the claim on violation of the Petitioner's rights under article 47(1) and article 50 of the Constitution, the proceedings in Nairobi JR Civil Application No 291 of 2015 were judicial proceedings. The challenge to the withdrawal of the suit and matters related to a fair hearing in that court could only be addressed through the established legal procedures of review, or appeal. Thus the claim was misguided.

Petition dismissed
Orders

  1. The 2nd Respondent would admit all students placed to it by the 1st Respondent as at the date of the Judgment including the Petitioner.
  2. The academic board established under section 11 of the KMTC Act was declared the body mandated to admit students to KMTC under section 6 of the KMTC Act.
  3. Costs to the 2nd Respondent to be shared equally between the Petitioner and the 1st Respondent.

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