Weekly Newsletter 039/2018

Weekly Newsletter 039/2018



Kenya Law

Weekly Newsletter


Supreme Court has inherent Jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal
Republic v Ahmad Abolfathi Mohammed and another [2018] eKLR
Supreme Court of Kenya
Criminal Application No 2 of 2018
D K Maraga, CJ & President; M K Ibrahim; J B Ojwang; S C Wanjala; & S N Ndungu, SCJJ
September 28, 2018
Reported by Ian Kiptoo
Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-Inherent jurisdiction of the Supreme Court-jurisdiction to stay an order of acquittal of an accused person-where no provision in statute or Constitution provided for such jurisdiction-principles applicable in exercising discretion to stay acquittal of an accused person-whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal-what were the applicable principles/guidelines a court should use in exercising its discretion to stay an acquittal of an accused person-Constitution of Kenya, 2010, articles 20 (3), 50 (1), 163 (4) (b), and 259; Criminal Procedure Code, section 348A; Supreme Court Rules, 2012, rule 24
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-freedom from discrimination and right to fair trial-where an aggrieved party was denied certification that a matter was of general public importance-whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination-Constitution of Kenya, 2010, articles 27, 50, 163(4) (b), 163(5), and 259 (1)
Constitutional Law-fundamental rights and freedoms-right to fair hearing-where an appeal sought to stay the acquittal of an accused person-whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted-Constitution of Kenya, 2010, articles 50 (2) (o)


Brief facts:
The Respondents, Iranian nationals, were charged with and convicted for the offences of being in possession of explosives contrary to section 29 of the Explosives Act; committing an act intended to cause grievous bodily harm contrary to section 231 of the Penal Code; and preparing to commit a felony contrary to section 308(1) of the Penal Code. They were each sentenced to life imprisonment on count 1, 10 years’ imprisonment on count 2 and 15 years’ imprisonment on count 3. The sentences were ordered to run concurrently.
The Respondents’ appeal to the High Court against conviction was dismissed. The one against sentence was, however, partially allowed with the result that the sentences imposed upon them by the Trial Court were set aside and in lieu thereof they were each sentenced to a consolidated term of 15 years’ imprisonment. Their second appeal to the Court of Appeal was allowed; their convictions were quashed and the sentences imposed on them were set aside and the Court of Appeal ordered their immediate repatriation.
Its application for certification having been dismissed by the Appellate Court, the State applied to the Court to review and set aside the said decision and in its stead to find that the State’s intended appeal raised matters of general public importance and grant it leave to appeal to the Court. The State wished to appeal to the Instant Court based on 5 main grounds that:

  1. The Applicant had an arguable appeal with high chances of success;
  2. The intended appeal involved a matter of general public importance as it touched on national security;
  3. The net effect of the judgment of the Court of Appeal would affect the investigations of all criminal cases and transcended the particular case;
  4. The intended appeal had a significant bearing on the public interest with respect to criminal matters which the Court of Appeal in its ruling of February 16, 2018 failed to consider; and
  5. That the intended appeal would be rendered nugatory if stay was not granted and the Respondents left the jurisdiction of the Court.
Issues :
  1. Whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination.
  2. Whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal.
  3. Whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted.
  4. What were the applicable principles/guidelines a court should use in exercising it discretion to stay an acquittal of an accused person?


Relevant Provisions of the Law
Criminal Procedure Code
Section 348A

(1)When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2)If the appeal under subsection (1) is successful, the High Court or the Court of Appeal, as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.


Supreme Court Rules, 2012
Rule 24(2)

“[W]here the Court of Appeal has certified or has declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days

Indian Code of Criminal Procedure, 1973
Section 390

When an appeal is presented under s. 411A subsection (2) or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.”

Held:

  1. In interpreting the review jurisdiction in article 163(5) of the Constitution of Kenya, 2010(Constitution), regard should be had to the dictum of harmonization under article 259(1) of the Constitution and giving the term certifies or certification in article 163(4) (b) of the Constitution a broad interpretation. In that regard therefore, and on the facts of the case, the principles of non-discrimination under article 27 and fair hearing under article 50 should never be lost sight of. Therefore, to deny a party aggrieved by a refusal to grant certification that a matter was one of general public importance was discriminatory and contrary to article 27 and a denial of the right to a fair hearing under article 50(1) of the Constitution.
  2. Article 163(5) of the Constitution vested the Supreme Court with jurisdiction to review the Court of Appeal’s decision to grant or decline certification that a matter was one of general public importance therefore affirming the words of rule 24(2) of the Supreme Court Rules, 2012 that where the Court of Appeal had certified or had declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
  3. The State’s wishes to challenge the Appellate Court’s decision allowing the Respondents’ appeal and acquitting them of all the charges they faced thus setting them free could only be availed that opportunity if, as required by article 163(4)(b) of the Constitution, it was granted leave to appeal after it had demonstrated that the issue to be canvassed on appeal was a matter of general public importance the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest.
  4. It was a matter of common notoriety that Kenya had, in the past suffered several horrendous terrorist attacks and as a result lost hundreds of innocent Kenyans and thousands were left maimed and seriously injured with personal disabilities and permanent scars. Due to the nature of the terrorist attacks, the Kenyan public had for a time lived in fear and felt insecurity in their own motherland. The crime of terrorism undermined the national security as well as the peace and tranquility of the people of Kenya and all others who lived within its borders. Consequently, and on the principles the Court set out in various cases, as well as rule 24(2) of the Supreme Court Rule 2012, the Applicant had made out a case for review of the Appellate Court’s orders denying the Applicant leave to appeal to the Court.
  5. The Court of Appeal erred in its observation that it was not aware of any law that granted it jurisdiction to stay an acquittal of an accused person so that he continued to be held in custody as a suspect awaiting a possible finding of guilt by the Supreme Court. In addition, the Appellate Court erred when it held that the inherent jurisdiction of the Court could not be the basis for granting the orders of stay that had no constitutional or statutory basis but instead negated the constitutional presumption of innocence until the contrary was proved.
  6. Unlike in the Indian cases of Express of India v Mangu & Others, (1880) ILR 2 ALL 342 and The State of UP v Poosu & Another, 1976 3 SCC 1 as well as the Malaysian case of Prosecutor v Bird Dominic Jude, Criminal Appeal No. W-05-216-09/2012, where there were express statutory provisions granting the Court discretionary authority to arrest and detain a respondent pending the hearing and determination of the State’s appeal against his acquittal, there was no express statutory provision in Kenyan statutes granting the Court jurisdiction to stay an acquittal. That did not mean the Kenyan appellate courts were helpless in such matters.
  7. It was not in dispute that section 348A of the Criminal Procedure Code, introduced by the Security Law (Amendment) Act No. 19 of 2014 granted the Director of Public Prosecutions (DPP) the right of appeal on both facts and law against the acquittal of an accused person. Although there was no mention of the Supreme Court in section 348A of the Criminal Procedure Code, it was not in dispute that article 163(3)(b) of the Constitution granted the Supreme Court jurisdiction to hear and determine appeals from [inter alia] the Court of Appeal which met the criteria of matters involving the interpretation or application of the Constitution and those certified by either the Court of Appeal or Supreme Court to be of general public importance as stated in clause (4) of article 163. Therefore in the instant matter, the State’s intended appeal was properly grounded on the Constitution.
  8. In exercise of its jurisdiction, article 259 of the Constitution required the Supreme Court, like other courts and tribunals, to interpret the Constitution in a manner that—promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. In the development of the law, article 20(3) of the Constitution required that in applying a provision of the Bill of Rights, a court shall-develop the law to the extent that it did not give effect to a right or fundamental freedom; and adopted the interpretation that most favoured the enforcement of a right or fundamental freedom.
  9. What Clause (a) of article 20(3) required the Court to do, in what appeared to be in mandatory terms, was, under its inherent jurisdiction, to develop the law where there was a lacuna especially in applying the provisions of the Bill of Rights to ensure that such provisions were not rendered ineffectual. One of the rights and fundamental freedoms in the Bill of Rights was the right to a fair trial under article 50(1) of the Constitution.
  10. Justice cut both ways. In both civil and criminal cases, the Court had to be fair to all the parties before it. It followed that in the instant criminal matter, the right to a fair trial under article 50(1) of the Constitution demanded of the Court even-handed treatment of both the Applicant and the Respondents. The Applicant had been allowed to come before the Court under article 163(4) (b) as read with section 348A of the Criminal Procedure Code. The Court could not turn away the Respondents’ contention that there was no provision in law bestowing the Court with jurisdiction to grant stay of an acquittal order and hold the acquitted person(s) in custody pending the hearing of the appeal against their acquittal. To do that would with respect, be a dereliction of the Court’s constitutional obligation under articles 20, 50(1), 163(3) (b) and 259 of the Constitution.
  11. As a matter of public policy, the Court, and indeed any other court, could not and should not exercise its jurisdiction or act in vain. To enable it stamp its authority and deliver on its constitutional mandate in any matter properly before it and to uphold both parties’ right to a fair trial under article 50(1) as well as ensure that its processes were not abused, scuttled or negated by any mischievous or nefarious conduct, the Court had inherent jurisdiction, not expressly conferred by the Constitution or any statute, but accruing to it by its existential nature as a court of law duly constituted to administer justice, to issue any orders to ensure that the ends of justice in any particular case were met. In the circumstances, the Court had inherent jurisdiction to grant the orders of stay sought in the Application if merited.
  12. Invoking a court’s inherent jurisdiction was not a novel proposition the Court was plucking out of the air. By its very nature, the inherent jurisdiction of the Court was neither conferred by statute, nor by any external authority or process. Rather, it emanated from the Court’s broader and primary power to administer justice. In the major jurisdictions across the world, in cases of lacunae in the law, inherent powers of the Court had been recognized and invoked in contexts where it was deemed necessary to serve the ends of justice.
  13. In India, section 390 of the Indian Code of Criminal Procedure, 1973 granted the High Court jurisdiction to stay an acquittal. However, the Indian Supreme Court, which had no such express statutory jurisdiction held in the case of The State of UP v Poosu & Another, 1976 3 SCC 1 that it had inherent jurisdiction drawn directly from the Constitution to stay an acquittal and even remand in custody the person whose acquittal was being challenged.
  14. The Court’s inherent power was not unlimited. Where there was a clear and explicit rule in statute, no such power could be invoked against a clear expression in the law or statute. The Indian Supreme Court in the 1968 case of Padem Sen v State of UP AIR 1961, SC 218 recognized that principle. Referring to a provision in section 151 of the Indian Penal Code, the Court noted that, it was well recognized that the inherent power was not to be exercised in a manner which would be contrary to or different from the procedure expressly provided in the Code.
  15. Even without a specific statutory provision like section 390 of the Indian Code of Criminal Procedure, 1993 or section 56A the Malaysian Courts of Judicature Act, 1964. On the provisions of section 24 of the Supreme Court Act, the Court had inherent jurisdiction to grant interlocutory orders not only to preserve the subject matter of an appeal but also to ensure that an appeal or intended appeal was not rendered nugatory thus defeating the course of justice.
  16. An appeal to a higher court against acquittal of an accused person did not constitute a new or different and distinct trial of the accused person for the offence in respect of which he was acquitted and therefore did not violate article 50(2) (o) of the Constitution. A conviction or acquittal did not mark the end of one trial and an appeal against conviction or acquittal the beginning of another trial. An appeal was a continuation of the same trial in a higher court; a different stage of the same trial for the purposes of correction of errors, if any, and ensuring that there was no miscarriage of justice.
  17. It would throw out of the window the objective of a fair trial under article 50(1) of the Constitution if the Court were to concur with the Appellate Court that courts in the country had no jurisdiction to stay an order of acquittal and remand in custody a respondent whose acquittal was being challenged on appeal. However, an application for stay of an acquittal and remand of an acquitted person, whose innocence had been declared by a court of competent jurisdiction, was a very serious matter as it sought to restrict such acquitted person’s constitutional right to freedom of movement. It was therefore a matter that required to be considered with great circumspection. Orders of stay and remand of an accused-respondent should sparingly be granted. The prosecution had to demonstrate to the Court the risk of flight likely to render the appeal or intended appeal an academic exercise if the Respondent was not remanded.
  18. An appellate court was not totally handicapped. It may where satisfied grant an order staying an acquittal pending the hearing and determination of the appeal by the State. That power may be statutory provided for, like the case of Malaysia, or drawn from the Constitution, like the case of India. Kenya had no legal provision either in the Constitution or statute that directly spoke to the power of an appellate Court, be it the High Court, Court of Appeal or Supreme Court, to grant orders of committal to prison of an acquitted person pending the hearing of the appeal. However, the Supreme Court was not handicapped as to be totally curtailed from granting such an order.
  19. Time was ripe for the legislative arm of the government, Parliament, to consider such legislation. Parliament, the Attorney General, Director of Public Prosecution and other stakeholders in the justice system, including the Law Reform Commission and the Law Society of Kenya were called upon to consider such a legislative framework.
  20. Before the legislative framework was enacted, the Supreme Court in exercise of its inherent jurisdiction and unfettered jurisdiction as pronounced by rule 3 of the Supreme Court Rules, 2012 had the power to grant an order staying an acquittal pending the hearing of an appeal filed by the State, through the office of the Director of Public Prosecution. That jurisdiction was discretionary and had to be exercised judiciously and not whimsically. That called for setting of guidelines/principles on how the Court(s) exercised that jurisdiction.
  21. Drawing from the comparative jurisprudence, the following principles were delimited for consideration in an application for stay of acquittal pending the hearing and determination of an appeal:
    1. The discretion to grant stay of acquittal should be exercised sparingly;
    2. The discretion shall be exercised judiciously and not whimsically;
    3. The accused person had been found not guilty and acquitted, hence there was a presumption of innocence in favour of the accused;
    4. It was in the interest of the Public, the State and the Court before which the appeal had been filed to preserve the integrity of the appeal;
    5. It was not automatic that upon the State’s filing of an appeal stay would be granted. The onus was on the State (Director of Public Prosecution) to lay a basis to the satisfaction of the Court as to the existence of special circumstances that militated against the release of the acquitted person;
    6. In considering what amounted to special circumstances, the Court shall consider the following:
      1. The nature and seriousness of the offence;
      2. Whether the absence or non-attendance of the accused person at the hearing of the appeal would render it nugatory;
      3. The probability of accused absconding court if released, was he/she a flight risk;
    7. A balance had to be struck between the right to individual liberty of the Accused and the interest of the public;
    8. The length of time which was likely to take for the appeal to be heard.
    9. The Court shall expedite the hearing and determination of the appeal.
  22. In the instant case, the Respondents were foreigners. They were Iranians. Kenya had no extradition treaty with Iran. Therefore, if repatriated, it would be difficult to secure the Respondents’ presence in Kenya to complete their imprisonment term if the State’s appeal was allowed.

Application allowed.

Orders
  1. The Application for stay of execution of the Respondents’ acquittal and repatriation was allowed. Article 163(5) of the Constitution vested the Court with jurisdiction to review the Appellate Court’s denial to grant certification under article 163(4)(b) and the Applicant had made out a case for certification.
  2. The Court reviewed and set aside the Appellate Court’s decision of February 16, 2018 declining to grant certification that the matter was of general public importance and denying the Applicant leave to appeal to the Court against the Court of Appeal’s decision of January 26, 2018 which allowed the Respondents’ appeal, quashed their conviction and ordered their repatriation.
  3. Substitution of the denial of certification with an order granting the Applicant leave to appeal.
  4. That the principle of harmonization under article 259 of the Constitution and the spirit of the right to a fair trial under article 50(1) of the Constitution read with section 348A of the Criminal Procedure Code bestowed upon the Court inherent jurisdiction to stay the acquittal of a respondent pending the determination of the appeal challenging that acquittal.
  5. Pending the filing, hearing and final determination of the Applicant’s intended appeal, the Respondents’ acquittal by the Appellate Court was stayed and the Respondents would be held in police custody.
  6. The Applicant would file and serve its appeal within thirty days. Once filed the Appeal would be heard on priority basis.
  7. It was directed that copies of the instant Judgment delivered be transmitted to the said stakeholders for their noting and necessary action.
Kenya Law
Case Updates Issue 039/2018
Case Summaries

CONSTITUTIONAL LAW With the exception of the two lay persons appointed by the president, elected members of the Judicial Service Commission are not subject to approval by the National Assembly before appointment

The Law Society of Kenya v National Assembly of Kenya and 3 others [2018] eKLR
Petition No 106 of 2018
Consolidated with Petition No 119 of 2018
High Court at Nairobi
July 6, 2018
E C Mwita, J
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-interpretation of the Constitution-interpretation of articles 171 and 250 of the Constitution of Kenya, 2010-principles applicable in interpreting the Constitution-claim that article 250 on composition, appointment and terms of office applied to the Judicial Service Commission-whether a commissioner elected to the Judicial Service Commission (JSC) as a representative of the justices of the Court of Appeal was subject to national assembly approval before being appointed by the President-Constitution of Kenya, 2010, articles 171(2); (b), (c), (d), (f), & (h); 248(1) & (2); and 250(6) (a); Judicial Service Act, sections 15(2) and 16
Constitutional Law-separation of powers-functions and powers of the organs of government-extent to which parliament can interfere in the judiciary-claim that elected commissioners of the JSC were subject to parliamentary approval-whether subjecting an elected commissioner of the JSC, excluding the two lay persons appointed by the President, to an approval process by the National Assembly was a breach of separation of powers-Constitution of Kenya, 2010, articles 132(4), 171 and 250; Final Report of Committee of Experts (COE’s Final Report), paragraph 8.11.5
Constitutional Law-constitutionality of statutes-constitutionality of section 15(2) of the Judicial service Act-principles applicable in determining the constitutionality of statutes-whether section 15(2) of the Judicial Service Act was unconstitutional for not providing for mandatory approval of an elected commissioner to the JSC by the National Assembly-Constitution of Kenya, 2010, articles 171 and 250; Judicial Service Act, section 15(2)

Brief facts:
The consolidated Petitions involved the relationship between articles 171(2) and 250(2) of the Constitution of Kenya, 2010 (Constitution) in as far as the appointment of commissioners to the Judicial Service Commission (JSC). The second Petition was, as a matter of fact, a response to the first Petition because issues it raised were answers to the first petition.
The 1st Petitioner averred that the President’s act of nominating the 1st Interested Party was ultra vires article 171(2) (c) of the Constitution and similarly, that the National Assembly had no constitutional mandate to approve elected members of JSC. On the other hand, the 2nd Petitioner contended that approval by the National Assembly was mandatory for all commissioners irrespective of the Commission.

Issues:

  1. Whether a commissioner elected to the Judicial Service Commission (JSC) as a representative of the justices of the Court of Appeal was subject to national assembly approval before being appointed by the President.
  2. Whether subjecting an elected commissioner of the JSC, excluding the two lay persons appointed by the President, to an approval process by the National Assembly was a breach of separation of powers.
  3. Whether section 15(2) of the Judicial Service Act was unconstitutional for not providing for mandatory approval of an elected commissioner to the JSC by the National Assembly. Read More..

Relevant provisions of the Law
Constitution of Kenya, 2010
Article 171
1) “There is established the Judicial Service Commission.
2) The Commission shall consist of-

a) the Chief Justice who shall be the Chairperson of the Commission;
b) one Supreme Court Judge elected by the Judges of the Supreme Court;
c) one Court of Appeal Judge elected by the Judges of the Court of Appeal;
d) one High Court Judge and one Magistrate, one a woman and one a man, elected by the members of the association of Judges and Magistrates;
e) the Attorney General;
f) two advocates, one a woman and one a man, each of whom has at least 15 years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
g) one person nominated by the Public Service Commission; and
h) one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.”

Article 250
Composition, appointment and terms of office
1) each commission shall consist of at least three, but not more than nine commissioners; that
2) the Chairperson and each member of a commission and holder of an independent office

a. shall be Identified and recommended for appointment in a manner prescribed by national legislation;
b. approved by the National Assembly; and
c. appointed by the President


Held :

  1. Article 259(1) of the Constitution of Kenya, 2010 (Constitution) enjoined the Court to interpret the Constitution in a manner that promoted its purpose and principles; advanced the rule of law and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law and contributed to good governance. Furthermore, the Constitution should be given a purposive, liberal and flexible interpretation. A Constitution was a living instrument with several provisions that should be read as an integrated whole, reading one provision alongside others so that they were seen as supporting one another and not contradicting or destroying each other.
  2. Article 171(2) had four categories of commissioners.
    1. persons who were Commissioners by virtue of the offices they held- the Chief Justice who was Chairperson of the Commission by virtue of being Chief Justice and the Attorney General who was a member of Judicial Service Commission (JSC) by virtue of being the Attorney General;
    2. members elected by their peers- a justice of the Supreme Court, a justice of the Court of Appeal and a judge of the High Court and a representative of the Magistrates, male and female, elected by the association of Judges and Magistrates. In the same category were two advocates, a woman and a man of 15 years’ standing, to represent the Law Society of Kenya;
    3. the nominee by the Public Service Commission; and
    4. Two lay persons, a man and a woman, appointed by the President with approval by the National Assembly, to represent public interest.
    In the case of second class of Commissioners, the Constitution was clear that they were elected by their peers. The Supreme Court, Court of Appeal, Judges of the High Court and Magistrates elected representatives of their choice.
  3. The Law Society of Kenya and section 16 of the Judicial Service Act provided that elections had to be by secret ballot and were ordinarily overseen by the Independent Electoral and Boundaries Commission. Therefore, there was no doubt that article 171(2) of the Constitution provided for identification, qualification and appointment of JSCCommissioners. In the case of the 1st Interested Party, he was elected by the Justices of his Court in accordance with article 171(2) (c) of the Constitution, and by secret ballot as required by section 16 of the Judicial Service Act.
  4. Section 15(2) of the Judicial Service Act required the President to formally appoint those elected and the one nominated within three days after receiving the names. After the 1st Interested Party’s election, instead of being appointed as required by law, his name was sent to the National Assembly for approval leading to litigation.
  5. Article 250 was a general provision relating to commissions and independent office holders including the Auditor General and Controller of Budget. Furthermore, article 250 of the Constitution left identification, recommendation for appointment and qualifications of chairpersons and members of commission and independent offices a matter for national legislation. Sub-article 6(a) gave commissioners a single term of six years with no legibility for reappointment. At the same time, article 248(1) of the Constitution provided that Chapter 15 applied to the Commissions specified in clause 2 and the independent offices specified in clause (3) except to the extent that the Constitution provided otherwise. JSC was one of the commissions specified in article 248(2). It was however clear that although Chapter 15, including article 250, applied to all the commissions listed there under, the article contemplated situations where the Constitution may exclude chapter 15 (article 250) from applying to some commissions.
  6. JSC was excluded from the general provisions of article 250 of the Constitution. Whereas article 250(2) left identification, qualification and recommendation for appointment of commissioners to legislation, that was not the case with regard to membership of JSC. In contrast, article 171(2) identified who the Chairperson was; who the members should be; provided for modes of their identification as election, nomination and those to be appointed and in some instances gave qualifications and gender. Moreover, unlike the Commissions contemplated under article 250, JSC had eleven commissioners, way above the maximum number of nine prescribed by article 250.
  7. A reading of the language in articles 171 and 250 of the Constitution, taking into account article 248(1), was that articles 171 and 250 applied to different commissions. Therefore, article 250 of the Constitution did not apply to JSC whether in terms of composition or manner of identification of its commissioners. In that regard, the requirement and processes of approval by the National Assembly in article 250 did not apply to JSCcommissioners except those appointed under article 171(2) (h) of the Constitution.
  8. Even though article 250(6) limited the term of office for commissioners and holders of independent office to a single non-renewable term of six years, article 171(4) gave JSC commissioners, other than the Chief Justice and Attorney General, a renewable term of five years provided they remained qualified. That was; the status of the commissioners must not have changed since their first appointment. Where a statute (read a Constitution) contained both a general provision as well as a specific one, the latter had to prevail.
  9. Articles 171 and 250 were articles in the same Constitution. None of them was superior to the other, and the principles of constitutional construction required that the Constitution be read as an integrated whole with various articles supporting one another. They should never be seen as contradicting each other or one subordinating the others. They had to be read harmoniously because they were mutually consistent with no internal logical contradictions. The Court therefore had to adopt an interpretation that brought a harmonious relationship between the two articles and resist an interpretation that created tension between them or encouraged one provision of the same Constitution to be hoist above the other. They were equal like branches of the same tree.
  10. It was a rule in constitutional interpretation that provisions of a constitution concerned with the same subject should be as far as possible, be construed as complementing and not contradicting one another. Furthermore, the history of the Country including the legislative history of the Constitution was also relevant and a useful guide in constitutional interpretation. The Court had to pay proper attention to the words actually used in context; avoid doing so literally or rigidly; look at the whole Constitution; and consider further the background circumstances when the Constitution was granted because in interpreting the Constitution the whole document had to be looked at, both provisions were impliedly subject to any exceptions made in other parts of the Constitution.
  11. Articles 171 and 250 of the Constitution were not at war with each other but complemented one another. They had to be understood from the historical context that they were a product of change from the past when JSC was composed of unknown people. As a result, the country wanted a break from the past, thus the adoption of article 171 on the establishment, composition and appointment of JSCcommissioners. Article 171(2) reflected the wishes of the people of Kenya and the Court’s duty was to give effect to those wishes. In that regard, the language of article 171(2) (b, (c), (d), and (f) had to be respected and given effect to, rather than ignoring it in favour of a strict and technical interpretation which deviated from the spirit of the Constitution.
  12. Flowing from the language of article 171 (2) (b), (c), (d), and (f) of the Constitution, there was no doubt that results from elections conducted under the authority of the Constitution and the law by constituencies identified in article 171(2)(b), (c), (d), and (f) were final and conclusive and did not require approval by any other state organ, not even the National Assembly under the guise of article 250(2) of the Constitution. Any attempt to subject those elected to any form of approval was against the letter and spirit of the Constitution and was unconstitutional. So was any action so far taken by the National Assembly respecting the election of the 1st Interested Party as a member of JSC.
  13. If a rigid interpretation of article 171(2) (h), that implied that all JSC commissioners had to be approved by the National Assembly, were to be taken to be correct. It would then mean that even the Chief Justice and the Attorney General who were members of JSC by virtue of the offices they held, would be subjected to approval which would obviously be absurd, because those two were appointed after a process that included approval by the National Assembly. They could not be subjected to another approval.
  14. Secondly, such an interpretation would defeat the meaning and essence of elections conducted by peers through secret ballot. Members who had been subjected to elections were, in essence, vetted by their colleagues on their suitability to serve as representatives. The Constitution did not use the word electedjust for the sake of it. It wanted elected representatives subjected to scrutiny and competition among peers before being picked through such elections because only the person who stood out best was elected. It had to be clear that the member was elected as a representative and, therefore, only those who had been given the constitutional mandate to elect had a final say on who their best representative was and not the National Assembly.
  15. The people of Kenya made a deliberate decision on how they wanted JSC constituted and its members appointed. That was intended to guarantee independence to JSC and by extension to the Judiciary. Independence of the Judiciary could not be delinked from that of JSC because article 172(1) of the Constitution mandated JSC to promote and facilitate independence of the Judiciary. JSC could not do so if it was not independent. Subjecting persons duly elected by peers as required by the Constitution to approval by the National Assembly would not only expose them to ridicule, possible political patronage and horse trading, but would also defeat the spirit of the Constitution, thus interfere with independence of JSC and ultimately, that of the Judiciary. In fact, the final Report of Committee of Experts (COE’s Final Report) paragraph 8.11.5 bore the fact that only the two lay members of the JSC appointed by the President should be subject to approval by the National Assembly.
  16. It may well be true that approval by the National Assembly provided checks on those elected to JSC with some scope of public scrutiny of the appointment process. However, the Constitution limited that to the persons appointed under article 171(2) (h) in so far as membership to JSC was concerned. That was the constitutional reality the Court had to be prepared to live with, uphold and defend. Article 250 could not be emphasized while down playing the import of article 171 of the same Constitution. They were equal, complementary and deserved equal consideration.
  17. There was no constitutional requirement that JSC commissioners contemplated in article 171(2) (b), (c), (d), and (f) of the Constitution be approved by the National Assembly. In addition, article 250(2) did not also apply to JSC Commissioners. Therefore, section 15(2) could not be constitutionally invalid for failure to provide for mandatory approval of JSC Commissioners by the National Assembly.
  18. It was the first time the National Assembly and the Attorney General argued that a legislation enacted by the National Assembly was constitutionally invalid, a serious indictment on the National Assembly’s ability to act in accordance with the Constitution. If not for anything else, that admission betrayed any good intentions the National Assembly and the Attorney General may have had in supporting the second petition.
  19. The principles upon which a statute or statutory provision may be declared constitutionally invalid were clear. The provision had to violate or contradict a clear provision of the Constitution to the extent that it could not be reconciled with the offended article; and second, the purpose of enacting the statute or statutory provision had to be unconstitutional or the implementation of the impugned statute or statutory provision had to have an unconstitutional effect. In other words, the statute or statutory provision had to have an unconstitutional purpose or effect.
  20. Section 15(2) provided that where nominations were to be made by bodies specified under article 171(2) (b), (c), (d), (f), and (g) of the Constitution-
    1. the respective nominating body would submit the name of its nominee to the President; and
    2. The President would, within three days of receipt of the names, appoint the nominees as members of the Commission.
    The section simply directed that names be sent to the President for formal appointment. It did not confer any discretion on the President once he received the names. He was under legal obligation to appoint the nominee(s) within three days of receipt of the name(s). Once the President received names of commissioners determined in accordance with provisions of article 171(2) (b), (c), (d), (f), and (g), his mandate was to formally appoint them and nothing more.
  21. The National Assembly, fully cognizant of and appreciating the unique functions and mandate of JSC, assigned a period of three days within which the President had to sign the instrument(s) formally appointing the nominee(s) as commissioner(s). Article 132(4) of the Constitution mandated the President to perform any other executive function provided for in the Constitution and in national legislation. In that regard, appointment of nominees as JSCcommissioners was an executive function conferred on the President by section 15(2) of the Judicial Service Act. Therefore there was no constitutional invalidity in the impugned section 15(2).

First Petition allowed and second Petition dismissed
Orders

  1. A declaration was issued that the 1st Interested Party, having been elected by Judges of the Court of Appeal as a member of the Judicial Service Commission in accordance with article 171(2) (c) as read with section 16 of the Judicial Service Act, was not subject to approval by the National Assembly under article 250(2) of the Constitution.
  2. An order was issued invalidating the purported nomination by the President of the 1st Interested Party as a member of the judicial Service Commission and forwarding his name to the National Assembly for approval and any subsequent decision by the National Assembly in that regard.
  3. A permanent injunction was issued prohibiting the National Assembly, the 1st Respondent, from vetting or approving the 1st Interested Party as a member of Judicial Service Commission.
  4. The 1st and 2nd Respondents in the first Petition would bear the Petitioner’s costs; while the Interested Parties bore their own costs.
  5. The second Petition was dismissed with no order as to costs.
CONSTITUTIONAL LAW The Court upholds the Legal Notice issued by the Cabinet Secretary, Ministry of Health imposing the Shisha ban

Republic v Ministry of Health & 2 Others Exparte
Judicial Review Case No 2 of 2018 And Jr 709 of 2017 [Consolidated]
High Court at Nairobi
R E Aburili, J
July 26, 2018
Reported By Safiya Awil Ibrahim

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Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to health-precautionary principle–circumstances where precautionary principle would be used to ensure the safety of public health-whether the precautionary principle was justifiably applied by the state in order to protect its citizens from harmful or addictive effects of shisha smoking-Constitution of Kenya, 2010, article 43(1) (a)
Constitutional Law-national principles and values of governance-public participation-whether the Cabinet Secretary for Health acted ultravires in issuing the Legal Notice without public participation, giving notice to the Applicants traders and users of Shisha before issuing the ban and gazettement before parliament for approval-Constitution of Kenya, 2010 articles 10 and 47; Statutory Instruments Act, section 11(4)
Statutes- interpretation of statutes-interpretation of section 36 Public Health Act -powers of the Cabinet Secretary-whether the Cabinet Secratary had the power to issue the Legal Notice imposing the shisha ban-Public Health Act, section 36

Brief Facts:
The Applicants who were various persons engaged in the Shisha trade sought judicial review orders against the impugned Legal Notice issued by the 1st Respondent the Cabinet Secretary, Ministry of Health, purporting to ban the importation, manufacture, sale, offer for sale, use, advertisement, promotion, facilitation or encouragement of Shisha smoking in Kenya. The ban had paralysed the operations of the Applicants as they were in long-term leases for the Shisha premises.
The Applicants contended that the impugned notice did not comply with the law, was issued without proper involvement and consultation with the industry stakeholders and that the legal notice failed to indicate the chemical composition of Shisha, its health hazards or any communicable diseases that may be contracted if any.

Issues:

  1. Whether the Cabinet Secratary had the power to issue the Legal Notice imposing the Shisha ban.
  2. Whether the Cabinet Secretary for Health acted ultravires in issuing the Legal Notice banning Shisha without:
    1. public participation,
    2. giving notice to the traders and users of Shisha before issuing the ban
    3. gazettement before parliament for approval.
  3. Whether Shisha business was licensed in Kenya.
  4. Whether the precautionary principle was justifiably applied by the state in order to protect its citizens from harmful or addictive effects of Shisha smoking.
  5. Whether public interest outweighed the social and economic rights of the Shisha traders.
  6. What were the powers of the Court in issuing judicial review orders.
  7. Read More...

Relevant Provisions of The Law
The Constitution of Kenya, 2010
Article 10
(1) the national values and principles of governance in this article bind all state organs, state officers, public officers and all persons whenever any of them_

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

(2) the national values and principles of governance include––

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

Article 24
“ (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

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

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

Statutory Instruments Act
Sections 4(1) and 5
“4. Object of the Act
The object of this Act is to provide a comprehensive regime for the making, scrutiny, publication and operation of statutory instruments by—

(a) requiring regulation-making authorities to undertake appropriate consultation before making statutory instruments;
…………………..

5. Consultation before making statutory instruments:
(1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—

(a) have a direct, or a substantial indirect effect on business; or
(b) restrict competition;

the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.

(2) In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—

(a) drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and
(b) ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.

(3) Without limiting by implication the form that consultation referred to in subsection (1) might take, the consultation shall—

(a) involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or
(b) invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.

Public Health Act
Section 11
“ (1) Every Cabinet Secretary responsible for a regulation-making authority shall within seven (7) sitting days after the publication of a statutory instrument, ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before Parliament.[emphasis added].
(2) An explanatory memorandum in the manner prescribed in the Schedule shall be attached to any statutory instrument laid or tabled under subsection (1).
(3) The responsible Clerk shall register or cause to be registered every statutory instrument transmitted to the respective House for tabling or laying under this Part.
(4) If a copy of a statutory instrument that is required to be laid before Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void.”[emphasis added].

Section 36
Whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease, the Minister may make rules for all or any of the following purposes, namely—

(a) the speedy interment of the dead; (b) house to house visitation;
(c) the provision of medical aid and accommodation, the promotion of cleansing, ventilation and disinfection and guarding against the spread of disease;
(d) preventing any person from leaving any infected area without undergoing all or any of the following, namely, medical examination, disinfection, inoculation, vaccination or revaccination and passing a specified period in an observation camp or station;
(e) the formation of hospitals and observation camps or stations, and placing therein persons who are suffering from or have been in contact with persons suffering from infectious disease;
(f) the destruction or disinfection of buildings, furniture, goods or other articles, which have been used by persons suffering from infectious disease, or which are likely to spread the infection;
(g) the removal of persons who are suffering from an infectious disease and persons who have been in contact with such persons;
(h) the removal of corpses;
(i) the destruction of rats, the means and precautions to be taken on shore or on board vessels for preventing them passing from vessels to the shore or from the shore to vessels, and the better prevention of the danger of spreading infection by rats;
(j) the regulation of hospitals used for the reception of persons suffering from an infectious disease and of observation camps and stations;
(k) the removal and disinfection of articles which have been exposed to infection;
(l) prohibiting any person living in any building or using any building for any other purposes whatsoever, if in the opinion of the medical officer of health any such use is liable to cause the spread of any infectious disease; and any rule made under this paragraph may give the health officer or a medical officer of health power to prescribe the conditions on which such a building may be used;
(m) any other purpose, whether of the same kind or nature as the foregoing or not, having for its object the prevention, control or suppression of infectious diseases,
and may by order declare all or any of the rules so made to be in force within any area specified in the order, and such area shall be deemed an infected area, and to apply to anyvessels,whether on inland waters or on arms or parts of the sea within the territorial jurisdiction of Kenya.

Held:

  1. The Court, in judicial review was not concerned with the merits of the decision but the decision making process. Therefore, if the Court were to consider the arguments raised by both parties with regard to the harmful or potential harmful effects or there being no harmful effects of Shisha use, then it would no doubt be stepping outside the bounds of judicial review. In other words, in judicial review, the Court was not concerned with whether the decision to ban Shisha use or manufacture or sale or offering for sale of Shisha was right or wrong but whether the decision making process was followed to the letter in issuing the ban.
  2. The Cabinet Secretary had wide ranging powers under section 36 of the Public Health Act to undertake measures to ensure the safety of public health in the Republic. The section did not make it mandatory for the Cabinet Secretary to name the particular or specific infectious disease when making the rules whenever such a particular scenario arose. Therefore, the contention that the infectious disease should have been named in the notice had no basis in the law.
  3. There was a statutory obligation on the part of the Cabinet Secretary responsible for Health to, within seven (7) sitting days after the publication of the regulations, ensure that a copy of the regulations was transmitted to the responsible clerk for tabling before Parliament and the clerk was enjoined to register or cause to be registered the regulations for tabling or laying. Whether or not the relevant Cabinet Secretary did transmit the regulations was, peculiarly within the knowledge of the said Cabinet Secretary and therefore it behoved him to place before the Court material supporting the fact that he had fulfilled the legal obligation placed on him. No evidence was placed before the Court to demonstrate that the Cabinet Secretary did comply with the requirement of placing before the clerk the regulations for tabling before the relevant House of Parliament.
  4. Section 11(4) of the Statutory Instruments Act clearly provided for the consequences for the failure to lay the instrument before the House within the stipulated period and the consequences were that the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void. Therefore section 11(4) did not give the Court an option since the section was couched in mandatory terms and the consequences for non-compliance were likewise provided. It followed that the requirement must be read in mandatory terms as opposed to being merely directory.
  5. There was however a difficulty in understanding the said provision. Whereas subsection (1) of section 11 of the Act provided that the Cabinet Secretary was enjoined within seven (7) sitting days after the publication of a statutory instrument, to ensure that a copy of the statutory instrument was transmitted to the responsible clerk for tabling before Parliament, there was no express period within which the clerk was to table the Instrument before the House of Parliament. However, subsection (4) thereof provided that if a copy of a statutory instrument that was required to be laid before Parliament and was not laid in accordance with the section, the statutory instrument would cease to have had effect immediately after the last day for it to be so laid.
  6. One of the rules of statutory interpretation was the rule of harmonisation which was to the effect that all provisions concerning an issue should be considered together to give effect to the purpose of the instrument.
  7. Applying the rule of harmonisation, it was clear that since there was no other timeline stipulated under section 11 of the Statutory Instruments Act, save for the 7 days provided in subsection (1), the phrase, must necessarily refer to the same period of 7 days. It followed that if the regulations were not laid before Parliament within seven (7) sitting days after the publication, the same would on the 8th day become void, albeit the voidance of the regulations would not nullify the acts which were done thereunder before the said 8th day.
  8. Section 36 of the Public Health Act empowered the Cabinet Secretary to make rules when it came to the outbreak or control of infectious diseases, the Statutory Instruments Act on the other hand regulated the manner in which the Cabinet Secretary ought to exercise his powers when making the rules or Gazetting the regulations.
  9. The Statutory Instruments Act required in mandatory terms that consultations be undertaken with those who would be affected by the regulations proposed to be formulated, and their input taken into account. That requirement echoed the principle and spirit of public participation espoused in the Constitution under article 10 on the National Values and Principles of Governancewhich contemplated public participation in the management of public affairs.
  10. Section 11 of the Statutory Instruments Act further required that the regulations were to be submitted to Parliament for approval before they would be published for implementation. Nonetheless, between December 11, 2017 and February 11, 2018 parliament was on recess and was not sitting, therefore, that period was excluded from computation of time and that the 7 days period would have started running from February 11, 2018. To that extent, the ground that the Legal Notice was not submitted to Parliament for consideration and approval was prematurely taken as the legal Notice was issued when Parliament was in recess, and had not become void or cease to have any effect as the proceedings were taken immediately after the Legal Notice was published.
  11. The Cabinet Secretary, in his response to the application had not indicated whether he had any intention of placing the said regulations as gazetted, before Parliament for approval before implementation, even after Parliament resumed its business after the recess.
  12. The list from the Kenya Bureau of Standards that classified Shisha as unregulated was not availed before the Court, there was therefore no evidence to show that Shisha business as conducted by the Applicants was unlicensed in Kenya.
  13. The power to grant orders in judicial review were discretionary in nature. That was so because judicial review orders were not merit orders. A party who wished to obtain merit orders would file proceedings in a court exercising civil or criminal jurisdiction which a judicial review court was not. What that meant was that even where the Applicant had established that their case was merited, the Court had the discretion to issue or not to issue the orders sought. That discretion would however be exercised judiciously and having regard to all circumstances of the case.
  14. The issue was about public health vis-a-vis economic and social benefits of Shisha consumption. The Constitution of Kenya together with the Health Act, 2017 placed a fundamental duty on the state to ensure that the health and well-being of the people of Kenya was maintained at the highest attainable standards, which duty was owed to the present and future generations.
  15. the Cabinet Secretary flouted the procedural requirements for issuance of such legal notices. He had not consulted the public on the same. He also did not demonstrate that he ever intended to place the gazetted Regulations before Parliament for approval before implementation.
  16. Article 47 of the Constitution provided for the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. It was a right guaranteed under the Constitution therefore the question was whether such right can be limited under article 24 of the Constitution
  17. The law was that, once it was shown that there was a limitation on a fundamental right or freedom, the burden of proving that the limitation was justifiable in an open and democratic society based on human dignity, equality and freedom rested on the State or the authority limiting the fundamental right or freedom. Nonetheless, the determination of what was justifiable in a democratic society was not an easy one. That was so because as to what was reasonably justifiable in a democratic society was an elusive concept – one that cannot be precisely defined by the Courts.
  18. There was no legal yardstick save that, the quality or reasonableness of the provision under challenge was to be judged according to whether it arbitrarily or excessively invaded the enjoyment of a constitutionally guaranteed right. The illusive concept of what, was reasonably justifiable in a democratic society, would not precisely be defined by courts, but regard had to be given to a proper respect for the rights and dignity of mankind. The proper test was an objective one and, taking into account the interests of everyone in a democratic society.
  19. It was the duty of the state to ensure that whatever measures it took towards the protection of Kenyans public health, the provisions of article 24 of the Constitution was adhered to, such considerations included the nature and extent of the limitation and the relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.
  20. The relevant provision should not limit the right or fundamental freedom so far as to derogate from its core or essential content. The right to public participation in decision making processes and the right to be given notice before any action was taken against the Applicants traders and users of Shisha was imperative.On the other hand, it was upon the State to ensure that it put into place measures which would ensure that harm or potential harm or death of its citizens were mitigated while at the same time ensured that the freedom of citizens did not become a torturous process, which ought to be dreaded and avoided by all means and at all costs.
  21. The Cabinet Secretary flouted the procedural requirements for issuing the legal Notice. However, the merits of how Shisha smoking was useful or harmful to health had not been delved into. That was so because judicial review looked at the process and not the merits of the decision.
  22. The finding in itself did not mean that the ban had no legitimate aim of balancing the health policy against pressing social economic needs of the Applicants who were users and or traders in Shisha. What it meant was that the state was under a duty to, if it believed that the Shisha smoking was harmful to public health, and if it had to successfully phase out the Shisha trade or consumption, the state must educate the public on the dangers and health risks of Shisha use.
  23. The ban policy would have significant advantages and would cause only relatively minor discomfort to the Applicants owing to the fact that it was common knowledge that generally, tobacco smoking was harmful to health not only of the smoker but also of others hence it could not be a social or cultural developmental right accruing to the Applicants. That was the reason why there were warnings for tobacco smokers as to its harmful effect to health and therefore whoever smoked tobacco took the risk of the harm that smoking the product carried with it.
  24. Tobacco or Shisha addicts might not necessarily entirely be free to choose whether to continue smoking or not. They were people who need help. It therefore followed that liberty could be restricted to protect citizens from harmful or potentially harmful or addictive effects of Shisha smoking. No country should be forgiven for presiding over a dying population. An economy that preyed on a citizen’s life and limb violated the very rights of those citizens to live and live healthy lives.
  25. The Respondents had identified the potential negative effect of the use of Shisha. They had demonstrated that the ban policy on the use of Shisha would cause only relatively minor disadvantage or discomfort to the Applicants. The risks or potential risks identified could not be said to be purely hypothetical. On the material placed before the Court, although not resolving the scientific uncertainty of the benefits and or harm caused by Shisha smoking, there was reasonable doubt raised as to the safety of the Shisha substance to public health and therefore justification for its withdrawal from the market altogether.
  26. The precautionary principle, which was designed to prevent potential risks if applied, it was the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks were fully demonstrated or manifested. That approach took into account the actual risk to public health, especially where there was uncertainty as to the existence or extent of risks to the health of consumers. The state might take protective measures without having to wait until the reality and the seriousness of those risks were apparent.
  27. The precautionary principle asserted that the burden of proof for potentially harmful actions by industry or governments rested on the assurance of safety and that when there were threats of serious damage, scientific uncertainty must be resolved in favour of prevention.
  28. At the core of that precautionary principle were many of the attributes of public health practice including a focus on primary prevention and a recognition that unforeseen and unwanted consequences of human activities were not unusual.
  29. Where, in matters of public health, it proved impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted as was alleged by the Applicants in the case, but the likelihood of real harm to public health persisted should the risk materialise, the precautionary principle justified the adoption of restrictive measures, provided they were non-discriminatory and objective.
  30. The Court was unable to find any evidence of bias or discrimination by the Respondents. There was no material to suggest that the ban was geared towards benefiting the Applicant’s competitors in similar business enterprises to the detriment of the Applicants.
  31. No country and no court of law can afford to gamble with the present and future lives and livelihoods of the Country in the name of fear of loss of social and economic gains. Commercial enterprises go under and could be revived. Lives lost could never be revived. There was no dispute that many Shisha lounges would suffer economic harm as a result of the ban and so they might no longer be viable, but it did not follow that that was the purpose of the regulation issued by the Cabinet Secretary.
  32. Protection of the public and their safety necessarily had economic impact on the operation of the exparte Applicants’ businesses. However, that impact was incidental to, rather than determinative of the purpose of the impugned regulations.
  33. The instant case was one of those exceptional ones where public interest outweighed social and economic individual benefit. It would cause more public inconvenience to lift the ban imposed by the Cabinet Secretary for Health than to decline the prayers sought. Shisha consumption was most likely to cause more harm to public health of the Country and that the alleged harm or potential harm outweighed the economic and social gain to the traders, employees and consumers of the Shisha substance.
  34. Health being a fundamental right and funded by the state through the tax payers’ money, it would be inimical to lift the ban and then turn to the taxpayer to fund the consequences of engaging in leisurely activities whose alleged positive attributes had not been demonstrated to the satisfaction of the Court.

Application dismissed.

CUSTOMARY LAW Essentials of Akamba customary marriage

Munyao Ndolo & 3 others v Mary Nduku Mutisya [2018] eKLR
HCCA No 134 of 2017
High Court at Makueni
C Kariuki, J
July 31, 2018
Reported by Safiya Awil Ibrahim

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Customary Law – Akamba customary law – Akamba customary marriages – existence of Akamba customary marriages – when was Akamba customary law marriages deemed to be in existence – ntheo ceremony - whether a woman whose ntheo had not been paid could receive ntheo for her daughter
jurisdiction-jurisdiction of magistrates Court-burial disputes -whether the magistrate Courts had the jurisdiction to hear and determine burial disputes- Magistrate’s Court Act No. 26 of 2015 Section 7(3)(b)

Brief facts:
The Respondent instituted a suit in the Trial Court against the Appellants seeking a declaration that she was the right person to bury the Deceased, by virtue of being his widow. The Trial Court allowed the Suit and granted the orders for the deceased to be buried by the Respondent.
Aggrieved by the Trial Court’s decision the Appellants lodged an appeal in the instant Court for exhumation of the body as the Respondent was not properly married under customary law and as such, she had lost her right to bury the deceased.

Issues:

  1. When was Akamba customary law marriages deemed to be in existence?
  2. Whether a woman whose ntheo had not been paid could receive ntheo for her daughter.
  3. Whether the magistrate Courts had the jurisdiction to hear and determine burial disputes.Read More..

Relevant Provisions of the Law:
Judicature Act
Section 3(2)
The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

Magistrate’s Court Act No. 26 of 2015
Section 7(3)(b)
A Magistrate’s Court shall have jurisdiction in proceedings of a Civil nature concerning any of the following matters under African Customary Laws;

a) Land….
b) Marriage, divorce, maintenance & dowry
c) Seduction…

Held:

  1. The duty of a first appellate court was to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses
  2. The most essential step in a Akamba customary marriage was the ntheo. Once the ntheo ceremony had been performed, there existed a valid Akamba customary marriage. Where ntheo had been performed and one of the parties to the marriage died, the right to bury the deceased was with the surviving spouse. In case of a polygamous set up and the husband died, he was to be buried at the home of the first wife.
  3. The evidence on record showed that the ntheo ceremony had been pre-planned with the consent of both families and that on the day of the ceremony, the important ingredients to wit, three goats were available.
  4. The Appellants contended that the actual ntheo ceremony did not happen. DW2 and DW4 were present on the day of the ntheo but they gave conflicting accounts of why the ntheo ceremony did not happen. DW2 was blowing hot and cold in his evidence. On one hand, he was categorical that the ceremony actually happened. On the other hand, he said that it did not happen.
  5. It was imperative for their accounts to tally as the Court was not in the business of selective re-evaluation of evidence. DW2 proceeded to say that they did not even drink water, hence trying to paint an acrimonious picture of the situation and then concluded by saying that they were given a place to sleep. That was intriguing because that was not how normal human beings behaved when confronted by unfriendly situations. If the Appellants evidence was anything to go by, the reception at the Respondent’s home was anything but friendly. However, the hostility notwithstanding, they were offered a place to sleep and they accepted.
  6. When talking about the essentials of a valid marriage, the consent required was that of the bride. There were situations involving minors where the parent’s consent was required, however, that was not what the Court was dealing with. In the instant case, the Respondent’s consent was not in issue.
  7. There was evidence to show that PW5, the Respondent’s daughter had been married under the Kamba customary law and ntheo had been taken to her parent’s home. DW1 and DW4 lamented about not being invited to the said marriage ceremony which clearly indicated that it was within their knowledge. There was nothing to show that they raised any objection with regard to the marriage. If a woman’s ntheo had not been paid, she could not receive ntheo for her daughter. That position was further buttressed by the fact that some goats were returned to the Appellants, albeit by the Respondent’s father. If no goats had been taken in the first place, there would have been none to return. From the evidence on record, the burden of proof with regard to the ntheo ceremony was discharged.
  8. The evidence on record showed that indeed the land in which the Deceased was buried was purchased through the efforts of the Respondent’s brother and PW5. It was also clear from the record that the Deceased was not a man of means. From DW4’s evidence, it was discernible that the Deceased collaborated with the Respondent and stuck with her throughout the tribulations. It was unfathomable, that a widow should be denied the rights to bury her husband on the land where they had built a home just because the land was not bought with the husband’s resources. If a couple decided to stay together and live their lives despite financial challenges, there was no reason why anyone else should have an opinion about their affairs.
  9. There was no requirement under Kamba customary law that barred a widow from burying her husband on a land which he did not purchase. If indeed there was such a requirement, it was repugnant to justice and morality hence not applicable. In reaching that conclusion, the Court was guided by the provisions of section 3(2) of the Judicature Act.
  10. It was very clear that the learned Trial Magistrate had already made a finding that the Respondent and deceased were married under Kamba customary law. The Trial Court was well within its right to give an obiter dictum. It had not in any way affected the conclusion that indeed the Respondent and Deceased were married under Kamba customary law.
  11. There was no finding in the Trial Court’s judgment that the wishes of the Deceased needed to be written. The alleged wishes of the Deceased did not meet the threshold of an oral will. There was no need for a million witnesses but the law prescribed certain requirements which had to be fulfilled before an oral will could be said to exist. In the instant case, there was absolutely no evidence to reach such a conclusion.
  12. The case was filed in 2016 after the enactment of the Magistrate’s Court Act hence putting the matter squarely within the jurisdiction of Magistrates Courts.
  13. Having looked at the statements written by the Appellants’ witnesses vis a vis the evidence on record, most of them adopted their witness statements and proceeded to testify further which essentially meant that they added information that was not in their statements. There was no indication of bias on record. The Court was at a loss on how it was expected to verify the allegation that what was said in the Trial Court was not what was recorded.

Appeal dismissed
Consent Order recorded in settlement of the matter prevailed.

JUDICIAL REVIEW Judicial review orders cannot be issued on disputed facts underlying a dispute.

Kenya Revenue Authority & 2 others v Darasa Investments Limited [2018] eKLR
Civil Appeal No. 24 of 2018
Court of Appeal at Malindi
Alnashir Visram, W Karanja & M K Koome, JJA
April 11, 2018
Reported by Kakai Toili

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Judicial Review-orders-granting of judicial review orders- where there were disputed facts-whether judicial review orders could be issued on disputed facts underlying a dispute- Evidence Act, section 107(1)
Jurisdiction-jurisdiction of the High Court-jurisdiction in judicial review applications-discretion of the High Court to issue judicial review orders-interference with the discretion to issue judicial review orders- what were the circumstances in which the Court of Appeal could interfere with the discretion of the High Court to issue judicial review orders- Fair Administrative Action Act, section 11
Judicial Review-judicial review proceedings-institution of judicial review proceedings-where there was an alternative provided for in statute- whether availability of an alternative remedy was a bar to judicial review proceedings- East African Community Customs Management Act, 2004, section 229 (1); Tax Appeals Act, section 12; Fair Administrative Action Act, section 9(4)
Admiralty Law–carriage of goods by sea-shipping documents-bill of lading-what was the purpose of a bill of lading in the carriage of goods by sea

Brief facts:
The Cabinet Secretary of the National Treasury through Gazette Notice No 4536 dated May 12, 2017 gave notice of a general exemption of duty on sugar imported between May 12, 2017 and August 31, 2017. Pursuant to the said waiver, the Respondent imported 40,000 tonnes of brown sugar from Brazil, which was loaded in a vessel known as Anangel Sun( the vessel) on July 15, 2017 destined for arrival at a Port in Mombasa, Kenya on or about August 28, 2017. However, bad weather conditions on the high seas coupled with the fact that the vessel could not berth at the Mombasa Port due to its sheer size, the projected date of arrival was not met. The vessel proceeded to its next destination, Dubai, where the sugar consignment was offloaded and transshipped.
The Cabinet Secretary for National Treasury vide Gazette Notice No. 9802 amended the first notice to the effect that only the consignments which were shipped before the expiry date in the Gazette Notice 4536 would benefit from the extension of the said Gazette Notice. Thereafter, the Respondent's consignment was transshipped from Dubai to Mombasa aboard a vessel known as MV Iron Lady. The consignment arrived at Mombasa between October 28, 2017 and October 30, 2017. The 2nd Appellant vide a letter dated November 22, 2017 declined to exempt the Respondent's consignment from payment of duty as provided under Gazette Notice No 4536 and as subsequently amended by Gazette Notice No 9801. The 2nd Appellant claimed that the consignment did not meet the conditions of the Gazette Notices because of inconsistencies relating to the date of loading, place of inspection, certificate of origin and change of ownership.
Aggrieved by the Appellants decision the Respondent filed a judicial review application in the Trial Court. The Trial Court, after hearing the matter, issued orders in favour of the Respondent. Aggrieved by the Trial Court’s decision, the Appellants filed the instant Appeal.

Issues:

  1. Whether judicial review orders could be issued on disputed facts underlying a dispute.
  2. What were the circumstances in which the Court of Appeal could interfere with the discretion of the High Court to issue judicial review orders?
  3. Whether availability of an alternative remedy was a bar to judicial review proceedings.
  4. What was the purpose of a bill of lading? Read More..

Relevant Provisions of the Law
East African Community Customs Management Act, 2004 (EACCMA)
Section 229 (1)
A person directly affected by the decision or omission of the Commissioner or any other officer on matters relating to customs shall within thirty days of the date of the decision or omission lodge an application for review of that decision or omission.

Tax Appeals Act
Section 12
A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax Jaw may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal.

Fair Administrative Action Act
Section 9(4)
Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

Held:

  1. Initially, the scope of judicial review and the remedies which could issue thereunder were set out in the Law Reform Act and Order 53 of the Civil Procedure Rules. The grounds upon which such review could be exercised by the Trial Court were where the administrative decision/action in question was deemed as being ultra vires or against the rules of natural justice. Similarly, the judicial review remedies which the Trial Court could issue were restricted to orders of certiorari, mandamus and prohibition.
  2. There had been developments in judicial review, judicial review was no longer a strict administrative law remedy as was the case in the past. Judicial review was an administrative law remedy and a constitutional fundamental. The right to fair administrative action, the right to written reasons for adverse administrative action and the right to judicial review of administrative action were enshrined in the Constitution as fundamental rights and freedoms to be enjoyed by every person subjected to administrative action. The remedies which could issue had since expanded from the traditional remedies to declarations, damages and injunctions as set out under section 11 of the Fair Administrative Action Act.
  3. Judicial review orders were discretionary in nature and whenever the Court was called upon to interfere with the exercise of judicial discretion, as in the instant case, it ought not to interfere with the exercise of such discretion unless it was satisfied that the Trial Court misdirected itself in some matter and as a result arrived at a wrong decision or that it was manifest from the case as a whole that the Trial Court was wrong in the exercise of discretion and occasioned injustice.
  4. Jurisdiction was what clothed a court with the authority to entertain a matter before it and issue appropriate orders. A court either had jurisdiction or it did not have jurisdiction. It could not be inferred or presumed. The Trial Court erred in holding that the Appellants had consented and acquiesced to the Trial Court's jurisdiction by participating in the judicial review proceedings.
  5. In light of section 229(1) of the East African Community Customs Management Act, 2004 (EACCMA) and section 12 of the Tax Appeals Act, alternative remedies thereunder did not specifically relate to quantum or assessment of tax payable. The wording used thereunder was clear that any decision which was made by the Commissioner or any other officer under the respective Acts was subject to review by the Commissioner under section 229 of the EACCMA and appeal to the Tax Appeals Tribunal. Where the Constitution or statute conferred jurisdiction upon a court, tribunal, person, body or any authority, that jurisdiction had to be exercised in accordance with the Constitution or statute.
  6. Availability of an alternative remedy was not a bar to judicial review proceedings. It was only in exceptional cases that the Trial Court could entertain judicial review proceedings where such alternative remedies were not exhausted. A reading of section 9(4) of the Fair Administrative Action Act revealed that the Trial Court or a subordinate court could on its own motion or pursuant to an application by the concerned party, exempt such a party from exhausting the alternative remedy.
  7. In determining whether an exception should be made and judicial review granted, it was necessary for the Court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.
  8. The dispute in the instant case rightly fell within the scope of judicial review which was concerned with the decision making process rather than the merit consideration of the decision in issue. On the face of it, it would seem the Trial Court could not have declined to hear the matter. However, the refusal by the Appellants to clear the sugar was due to failure on the part of the Respondent to produce evidence to show that the subject sugar was exempt from duty, that was when matters began to look like perhaps the judicial review forum was not the most efficacious in the circumstances. That was because judicial review did not avail parties' court room processes to thrash out disputed matters.
  9. Following the amendment of the initial Gazette Notice, the Respondent was required to establish that the consignment was loaded onto a vessel destined to a port in Kenya within the exemption period. That was to be done through the requisite shipping documents submitted by the Respondent to the Appellants. The Appellants examined the shipping documents which were handed in by the Respondent to determine whether the consignment was loaded onto a vessel destined to a port in Kenya within the exemption period. Albeit the explanation tendered, the 2nd Appellant was not satisfied that the inconsistencies had been adequately addressed and communicated as much to the Respondent by a letter dated November 22, 2017 which was the subject of the judicial review proceedings. Whether or not the decision taken by the Appellants in the letter dated November 22, 2017 was wrong or right was not an issue that fell for consideration by the Trial Court. Similarly, the Court could not delve into the same.
  10. The Respondent's contention that it was not given an opportunity to be heard held no water, such an opportunity was given to the Respondent when it was asked to clarify the issues regarding several inconsistencies relating to the date of loading, date and place of inspection, certificate of origin and change of ownership.
  11. The 2nd Appellant's letter dated November 22, 2017 set out the reasons for the decision thereunder. The duty to give reasons and the nature and extent of the reasons envisaged by article 47(2) of the Constitution was dependent on the character and limits of the administrative discretion conferred on the administrator by the Constitution or law and its application to the facts of the case. The need to take into account relevant considerations and ignore irrelevant facts in the decision making had close nexus with the need to act reasonably. By scrutinizing the requisite shipping documents the Appellant could not be said to have taken into account irrelevant matters.
  12. Shipping documents were essential in establishing whether the consignment had been shipped within the requisite time frame. One of such requisite documents was a Bill of Lading. Apart from acting as a title to the goods specified thereunder, a Bill of Lading also acted as a receipt of the goods by the carrier, that was, acknowledgment that the goods in question had been received by the owner of the ship or his agent. Consequently, the date on such a Bill of Lading was prima facie evidence of the date the goods were loaded onto a vessel.
  13. In the instant case there were two sets of Bills of Lading issued on July 15, 2017 in Brazil and October 17, 2017 in Dubai, that raised questions as to when the sugar consignment was loaded onto a vessel destined for Mombasa port. The date upon which the sugar consignment was loaded was uncertain. As the Trial Court accepted matters were disputed and the decision being challenged was fundamentally to do with the date of loading of sugar for a port in Kenya, the Trial Court erred by proceeding to issue judicial review orders on disputed facts as the underlying dispute of whether the consignment of sugar was loaded between May 12 to August 31, 2017 as per the Gazette Notices remained unresolved. Under section 107(1) of the Evidence Act, whoever desired any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserted had to prove that those facts existed. In the absence of such proof, such as in the instant case, rendered the Respondent's claim that it had shipped the consignment within the exemption period moot.
  14. Judicial review remedies were not available in matters where facts were disputed. To the extent that the Trial Court despite cautioning itself delved deep into the evidence to consider letters dated January 12, 2018 and January 29, 2018 which were authored way after the decision contained in the letter dated November 22, 2017 was made and during the litigation, the Trial Court acted beyond the scope of its jurisdiction. The Trial Court substituted its own opinion of the matter with that of the 2nd Appellant or the administrator. It was the 2nd Appellant's mandate to clear goods according to the law and unless it was established there was a breach of the law, impropriety or unreasonableness, the Court could not substitute its own opinion with that of the mandate holder.
  15. Assuming that the letters established that the vessel left the port in Brazil in July, 2017 and was within the Kenya waters, they still did not address the inconsistencies with regard to when the Respondent's consignment was loaded in a vessel destined for a port in Kenya according to the two Gazette Notices. The disputed facts were a good candidate for a normal court room trial where parties could conduct discovery, examination and cross examination of witnesses.
  16. As the 2nd Appellant found that the Respondent had not established that the consignment had been shipped within the exemption period the issue of legitimate expectation could not arise. The promise made to the general public was that they had to import sugar and provide proof that the consignment of sugar was loaded in a vessel for a port in Kenya within the dates of May 12, to August 31, 2017. In the event that the 2nd Appellant found the Respondent did not provide clear evidence of the time of loading, there was no legitimate expectation.
  17. There was no evidence that the Appellants subjected the Respondent to differential treatment or discrimination by allowing the consignment of sugar belonging to the other 13 companies who were subject to the amended Gazette Notice to be cleared duty free without complying with the condition attendant thereto. There was no evidence to show that the documents presented by the other 13 importers had the same inconsistencies as those presented by the Respondent. The Trial Court erred in holding that the Appellants' decision was unreasonable, unlawful and procedurally deficient.

Appeal allowed.

  1. Orders issued by the High Court in the ruling dated February 22, 2018 set aside and substituted with an order dismissing the Respondent’s Application.
  2. Each party to bear its own costs both in the High Court and in the Appeal.

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