Weekly Newsletter 046/2018

Weekly Newsletter 046/2018



Kenya Law

Weekly Newsletter


 

The mandate of the Public Private Partnership Petition Committee to consider all petitions and complaints submitted by private parties before it included the power to award costs.
Kenya National Highways Authority v PPP Petition Committee & 2 others [2018] eKLR
Petition No. 247 of 2017
High Court at Nairobi
W A Okwany, J
November 8, 2018.
Reported by Kakai Toili

Download the Decision

 

Constitutional Law-fundamental rights and freedoms-right to fair hearing- rules of natural justice-ingredients-what were the ingredients of fairness or natural justice that guided all administrative decisions-Constitution of Kenya, 2010, article 47
Jurisdiction-jurisdiction of tribunals-jurisdiction of the Public Private Partnership Petition Committee- jurisdiction to award costs when determining petitions and complaints-whether the mandate of the Public Private Partnership Petition Committee to consider all petitions and complaints submitted by private parties before it included the power to award costs-whether the Public Private Partnership Petition Committee was a specialized tribunal capable of performing judicial functions–Constitution of Kenya, 2010, article 169(1)(d); Public Private Partnership Act, section 67(1); Civil Procedure Act, section 27: Public Private Partnerships Regulations, regulation 60 (1)(e)
Statutes-interpretation of statutes-interpretation of regulation 60(1(e) of the Public Private Partnerships Regulations-whether regulation 60(1)(e) of the Public Private Partnerships Regulations was inconsistent with the Public Private Partnership Act by empowering the Public Private Partnership Petition Committee to award costs when dealing with a petition or complaint-Public Private Partnership Act, section 67; Public Private Partnerships Regulations, regulation 60(1)(e)

Brief Facts:
The petitioner invited bids for the development of roads in several counties under Public Private Partnership (PPP) arrangement to finance, design, build, maintain and transfer the projects over a specified period of time. The petitioner prepared and issued tender documents after which bids were received from three entities and thereafter a preferred bidder determined. The 2nd interested party’s bid failed triggering a petition by the said 2nd interested party to the 1st respondent( the committee) challenging the procurement process and seeking to be declared the preferred bidder and to be awarded the tender together with costs. The committee annulled the entire tender process and awarded costs of the petition to the 2nd interested party. Aggrieved by the decision the petitioner filed the instant petition. The petitioner averred that the committee did not have the requisite jurisdiction to make an award for costs.
 

Issues :

  1. What were the ingredients of fairness or natural justice that guided all administrative decisions?
  2. Whether the mandate of the Public Private Partnership Petition Committee to consider all petitions and complaints submitted by private parties before it included the power to award costs.
  3. Whether regulation 60(1)(e) of the Public Private Partnerships Regulations was inconsistent with the Public Private Partnership Act by empowering the Public Private Partnership Petition Committee to award costs when dealing with a petition or complaint.
  4. Whether the Public Private Partnership Petition Committee was a specialized tribunal capable of performing judicial functions.

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 47

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

Public Private Partnership Act
Section 67

1. There is established a committee to be known as the Petition Committee which shall consider all petitions and complaints submitted by a private party during the process of tendering and entering into a project agreement under this Act.
2. The petition committee shall consist of-

a. The chairperson who shall be a person qualified for appointment as a judge of the High Court of Kenya;
b.
Four other persons with such knowledge and experience as the Cabinet Secretary shall, in consultation with the unit, consider appropriate; and
c.
The unit director.

3. The members of the Petition Committee shall hold office for a term of three years and shall be eligible for re- appointment for one further term.
4.
Where a petition is based on administrative decision of the Committee, the unit or the contracting authority, such petition for a review of the decision shall be made within fifteen days from the date of the decision in the prescribed form.
5.
For the decision of the Committee shall be final and binding on both parties.
6.
The Cabinet Secretary may by regulations, provide for the procedure for determining a petition under Subsection (1)
 

Civil Procedure Act
Section 27

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
 

Public Private Partnerships Regulations
Regulation 60

(1)(e) When dealing with a petition or a complaint, the petition committee may allocate costs of hearing the petition or petition to the parties to the petition or complaint.
 

Held:

  1. In cases where there was no express requirement that a person be heard before a decision was made, the tribunal or authority entrusted with the mandate of making the decision had to act fairly. The values underlying the duty of procedural fairness related to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.
  2. The ingredients of fairness or natural justice that had to guide all administrative decisions were;
    1. that a person had to be allowed an adequate opportunity to present their case where certain interests and rights could be adversely affected by a decision-maker;
    2. that no one ought to be a judge in his or her case .That was the requirement that the deciding authority had to be unbiased when according the hearing or making the decision; and
    3. that an administrative decision had to be based upon logical proof or evidence material.
  3. Whatever form of proceedings adopted by an authority had to meet the basic elements of fairness. As a component of due process, it was important that a party had reasonable opportunity to know the basis of the allegations against it. Elementary justice and the law demanded that a person be given full information on the case against him and given reasonable opportunity to present a response. That right was not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. Even where no actual hearing was to be held in relation to the making of an administrative or quasi-judicial decision, an individual could be entitled to be informed that a decision which would have adverse consequences for him could be taken and to notification of the possible consequences of the decision.
  4. The petitioner’s rights under article 47 and 50 of the Constitution were not violated. The committee had the jurisdiction to hear the dispute that was presented before it and the mere fact that its decision did not favour the petitioner did not mean that its rights under articles 47 and 50 of the Constitution were violated.
  5. A reading of section 67(1) of the Public Private Partnership Act (the Act) revealed that the committee was mandated to consider all petitions and complaints submitted by a private party during the process of tendering. In the instant case, the issue of costs was one of the issues presented before the committee for determination.
  6. Section 67(1) of the Act was all encompassing and granted the committee power to determine all complaints which meant that the committee was not limited in the kind of the complaints that it could consider and determine. In that regard, it was not necessary for the Act to make a specific provision on the committee’s power to award costs.
  7. Whether the committee was precluded from determining the question of costs or any other issue, was an issue that ought to have been raised by the petitioner before the committee, that was not done. Challenging the committee’s award in the instant proceedings was an afterthought and a belated attempt by the petitioner to appeal against the decision of the committee contrary to the provisions of section 67(5) of the Act which stipulated that the findings of the committee were final and binding on both parties.
  8. Regulation 60(1)(e) of the Public Private Partnerships Regulations could not be said to be in conflict with the Act as there was no corresponding provision in the Act that provided that the committee could not award costs. The impugned regulation complimented the provisions of the Act in so far as it clarified the mandate of the committee on the issue of the award of costs.
  9. It was not necessary for the law makers to make a provision for every possible determination/finding that the committee could arrive at upon hearing such petitions or complaints as every decision would then depend on the circumstances of each case. In the instant case, it was not disputed that the committee was a specialized tribunal established by an Act of Parliament in conformity with the provisions of article 169(1)(d) of the Constitution. A look at the mandate and composition of the committee especially its chairperson showed that it was a committee mandated to decide on questions of law. The question of costs was a legal issue and a natural consequence of litigation which ordinarily followed the events. The court or tribunal hearing a dispute could award costs to the winning party.
  10. It would be inconceivable to have a scenario where a specialized tribunal, such as the committee, could be granted powers to consider all complaints related to the tendering process and be denied the power to consider costs that arose from such proceedings.
  11. In the instant case, the impugned regulation was made by the 2nd respondent (Cabinet Secretary) pursuant to the clear provisions of section 67(6) of the Act which was legislation within the meaning of article 94(5) of the Constitution and he could not therefore be said to have acted in violation of the said article. It was ironical and indeed baffling that the Cabinet Secretary, who was the maker of the impugned Public Private Partnerships Regulations, was the same state officer that was on the frontline in opposing the said regulations.
  12. The claim that the impugned regulation was unconstitutional was not proved. No material was placed before the Court to show that the procedure adopted in the enactment of the said regulations did not conform to the Constitution and neither was it proved that the committee acted outside the law in awarding the impugned costs.

Petition dismissed, interim orders issued on May 24, 2017 vacated, no orders as to costs
Kenya Law
Case Updates Issue 046/2018
Case Summaries

JUDICIAL REVIEW Leave to institute judicial review proceedings is not necessary where proceedings are based on alleged violations of fundamental rights and freedoms

Republic v Kenyatta University Ex parte Ochieng Orwa Dominick & 7 others
Judicial Review Application No 201 of 2018
High Court at Nairobi
J M Mativo, J
September 10, 2018
Reported by Beryl A Ikamari

Download the Decision

Judicial Review-leave to apply for orders of certiorari and mandamus-importance of seeking leave in order to institute judicial review proceedings-threshold to be met by applicants seeking leave to institute judicial review proceedings-circumstances under which it would not be necessary to apply for leave in order to institute judicial review proceedings-whether an application for leave would be necessary where judicial review remedies were sought as a remedy for the violation of fundamental rights and freedoms recognized in the Bill of Rights.
Judicial Review-exhaustion requirement-availability of alternative remedies-where ex parte applicants in a judicial review application had not utilized an appeal mechanism before seeking judicial review remedies-circumstances under which an exception to the exhaustion requirement would be granted.

Brief facts:
The ex parte applicants sought leave for purposes of applying for orders of certiorari and mandamus. They wanted the leave to operate as a stay of the respondent's decision made on December 20, 2017 and a stay of proceedings in the case of Republic v Morara Kebaso & others, Kiambu Chief Magistrates Criminal Case No. 105 of 2018.
The ex parte applicants were the respondent's students who protested against the conduct of elections for the Kenyatta University Students Association (KUSA) for the academic year 2017/2018. They said that the elections were fraught with malpractices and irregularities. The ex parte applicants, with the exception of one, were subjected to disciplinary proceedings which concerned the destruction of university property during the protests. The result was that the ex parte applicants were expelled from the university and the decision was communicated in a letter dated December 22, 2018. Additionally, the ex parte applicants faced charges for destruction of property in Criminal Case Number 105 of 2018 at the Chief Magistrate's Court in Kiambu, after the respondent made a complaint against them.
The ex parte applicants complained that the decision to expel them was arrived at through a process that was irrational, unreasonable and ultra vires the mandate of the respondent as provided in the Universities Act 2012. They said that extraneous issues were considered and they were not afforded a hearing. They also said that the decision to institute criminal proceedings against them was irrational, malicious and made in bad faith.

Issues:

  1. What was the threshold to be met in order for the Court to grant leave for purposes of instituting judicial review proceedings?
  2. What was the effect of failure to exhaust internal appeal mechanisms as a remedy to a grievance, relating to administrative action, before instituting judicial review proceedings? Read More..

Held :

  1. Leave to institute judicial review proceedings was discretionary and it was necessary for the applicant to demonstrate the existence of a prima facie case. Leave to institute judicial review proceedings had the purpose of eliminating frivolous, vexatious or hopeless claims and ensuring that a substantive hearing was only possible where there was a case for further consideration. It prevented the Court's time from being wasted by busy bodies with misguided, trivial complaints or administrative errors.
  2. The first stage in judicial review proceedings was the leave stage and at that stage an applicant was required to show:-
    1. that he/she had sufficient interest in the matter also known as locus standi;
    2. that he/she was affected by the decision being challenged;
    3. that he/she had an arguable case with a reasonable chance of success;
    4. that the application concerned a public law matter i.e. it had to be based on some rule of public law; and,
    5. that the decision was taken by a public body or a body established by statute or otherwise exercising a public function.
  3. Section 7 (1) of part two of the sixth schedule to the Constitution was to the effect that all law had to conform to the Constitution and laws that were in force before the promulgation of the Constitution had to be construed with alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. Therefore, section 8 and 9 of the Law Reform Act which concerned judicial review remedies had to be construed in conformity with the Constitution.
  4. Article 47 of the Constitution codified every person's right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. The Constitution recognized a duty to accord a person procedural fairness or natural justice when a decision which affected the person’s rights, interests or legitimate expectations, was made.
  5. Part of the remedies for violations of fundamental rights and freedoms recognized under the Constitution were judicial review remedies. However, that did not mean that there were two systems of law dealing with judicial review. There was only one system of law which was shaped by the Constitution and all law including common law was subject to constitutional control. The entrenchment of the power of judicial review as a constitutional principle should of necessity expand the scope of the remedy:-
    1. parties who were denied judicial review on the basis of public-private power dichotomy would access judicial review if an authority exercised quasi-judicial or a function that was likely to affect rights;
    2. in cases citing a violation of the Bill of Rights, leave was unnecessary as the right to access courts was constitutionally guaranteed;
    3. judicial review was a remedy to a violation of fundamental rights and freedoms under article 23(3)(f) of the Constitution; and,  
    4. section 7  of the Fair Administrative Action Act provides for applications for judicial review by those who were aggrieved by an administrative action and the grounds for applying for judicial review.

    Therefore, in cases citing a violation of the Bill of Rights or a violation of the Constitution, leave of the Court was not a prerequisite before instituting judicial review proceedings nor was it necessary to invoke the provisions of order 53 of the Civil Procedure Rules, 2010 or sections 8 and 9 of the Law Reform Act.

  6. An applicant who was aggrieved by administrative action was required to exhaust the available administrative remedies before seeking judicial review remedies. Where such remedies were not exhausted, the Court would permit judicial review only when all the available administrative proceedings failed to produce a satisfactory resolution.
  7. Exceptions to the exhaustion requirement were not clearly delineated. Courts had to undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including the level of public interest involved and the poly-centricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applied. In exceptional circumstances, the Court could find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
  8. Under section 9 of the Fair Administrative Action Act, judicial review remedies would not be available unless all alternative remedies had been exhausted. The Court was required to direct an applicant to first exhaust such remedies before instituting judicial review proceedings. The exhaustion of those remedies was a mandatory and not directory requirement.
  9. The decisions to expel the ex parte applicants and to institute criminal proceedings against them constituted forms of administrative action. The ex parte applicants had an appeal mechanism available at the university as concerned the decision to expel them and they had not utilized it. They had to show that there were exceptional circumstances warranting an exemption from the exhaustion requirement. Exceptional circumstances depended on the facts and circumstances of each case and the nature of administrative action in issue. In deciding whether exceptional circumstances existed the Court decided on whether the internal remedy was effective, available and adequate. An internal remedy would be adequate if it was capable of redressing the complaint.
  10. An exception to the exhaustion requirement was particularly likely where a party pleaded that the issues in the dispute verged on constitutional interpretation in virgin areas or that an important constitutional issue was at stake. Such an argument was not advanced by the ex parte applicants.
  11. An exception to the doctrine of exhaustion was available in appropriate cases for purposes of carefully reading a provision on alternative dispute resolution forum so as not to oust the Court's jurisdiction, to consider valid grievances from parties who did not have audience before the forum or those who did not have the quality of audience before the forum which was proportionate to the interests that the parties wished to advance. The rationale was that ouster clauses had to be construed restrictively. The ex parte applicants did not advance an argument related to ouster clauses.
  12. The ex parte applicants did not meet the exceptional circumstances requirement. They did not exhaust the available appellate mechanism before approaching the Court.
  13. The ex parte applicants sought prayers for leave to operate as a stay in the criminal proceedings instituted against them. The prayer was not addressed in court. Given that prosecutorial powers were held by the DPP, the DPP was a necessary party where such orders were sought. An amendment would have cured the non-joinder. Failure to have the DPP named as a party was a serious omission.

Application dismissed.

CONSTITUTIONAL LAW The Kiambu County Alcoholic Drinks Control Act, 2018 is constitutional.

Okiiya Omtatah Okoiti v County Government of Kiambu
Constitutional Petition No 48 of 2018
High Court at Kiambu
C Meoli, J
November 2, 2018
Reported by Beryl A Ikamari

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Constitutional Law-devolution-distribution of functions between the national government and the county government-liquor licencing function-whether the liquor licencing function included regulation and control of alcoholic drinks and whether the function of alcoholic drinks control was vested in the national government-Constitution of Kenya 2010, articles 186, 191 & paragraph 4(c) of part 2 of the fourth schedule.
Constitutional Law-national values and principles of governance-public participation-threshold to be met in fulfilment of the requirement of public participation-whether the process leading to the enactment of the Kiambu County Alcoholic Drinks Control Act, 2018 met constitutional requirements on public participation-Constitution of Kenya 2010, articles 10, 174 & 196; County Governments Act, No 17 of 2012, sections 3 & 87.
Taxation Law-double taxation-regulation and licencing-liquor licencing-whether it was lawful to require liquor traders to pay fees for both business permits and liquor licences.
Statutes-interpretation of statutory provisions-constitutionality of a statutory provision-constitutionality of section 30(3) of the Kiambu County Alcoholic Drinks Control Act 2018-whether the requirement that a liquor licence holder would have to display a list of alcoholic drinks that they were licenced to sell was unconstitutional-Kiambu County Alcoholic Drinks Control Act 2018, section 30(3).
Statutes-interpretation of statutory provisions-constitutionality of a statutory provision-alleged breach of national values and principles of governance-constitutionality of section 36 of the Kiambu County Alcoholic Drinks Control Act 2018-creation of alcohol free zones-whether it was lawful to provide for the creation of alcohol free zones without providing for the criteria for the creation of such a zone-Kiambu County Alcoholic Drinks Control Act 2018, section 36.
Statutes-constitutionality of a statutory provision-constitutionality of section 63 of the Kiambu County Alcoholic Drinks Control Act 2018-whether providing for seizure of alcoholic drinks or things without providing for the restoration of the seized item was a violation of rights to protection of property, privacy, and to fair administrative action-Kiambu County Alcoholic Drinks Control Act 2018, section 63.
Statutes-interpretation of statutory provisions-interpretation of section 69 of the Kiambu County Alcoholic Drinks Control Act 2018-transitional clause relating to liquor licences issued before the commencement of the Kiambu County Alcoholic Drinks Control Act 2018-whether it was lawful to provide for a 30 day period within which holders of liquor licences under the old regime would have to apply for new liquor licences under a newly enacted statute-Kiambu County Alcoholic Drinks Control Act 2018, section 69.

Brief Facts:
The petitioner challenged the constitutionality of the Kiambu County Alcoholic Drinks Control Act, 2018. The petitioner alleged that the process leading to the enactment entailed breaches of constitutional provisions on national values and principles of governance recognized in the Constitution. He also stated that the provisions of the statute infringed constitutional provisions on distribution of functions between the national government and the county government. He said that licensing could be done by the county government but alcoholic drinks control was a function of the national government. He also said that some provisions of the statute breached fundamental rights and freedoms. Additionally, the petitioner contended that by requiring liquor traders to obtain both a business permit and a liquor licence, the respondent was engaging in double taxation.

Issues:

  1. Which level of government had functions related to the control of alcoholic drinks?
  2. Whether control and regulation were part of the licencing function vested on county governments under paragraph 4(c) of part 2 of the fourth schedule to the Constitution.
  3. Whether section 30(3) of the Kiambu County Alcoholic Drinks Control Act which required a licensee to display a list of alcoholic drinks that they were licenced to sell was unconstitutional.
  4. Whether section 36 of the Kiambu County Alcoholic Drinks Control Act in failing to provide a criteria for the creation of alcohol free zones violated national values and principles of governance provided for under the Constitution.
  5. Whether section 63 of the Kiambu County Alcoholic Drinks Control Act in failing to provide for restoration of seized goods was a violation of rights to protection of property, privacy, and to fair administrative action.
  6. Whether section 69 of the Kiambu County Alcoholic Drinks Control Act, which was a transitional clause requiring holders of liquor licences, existing before the commencement of the Act, to apply for new liquor licences under the Act within 30 days of the commencement of Act, was unreasonable as it amounted to an automatic termination of valid alcoholic drinks licences.
  7. Whether the required threshold for public participation was met in the process leading to the enactment of the Kiambu County Alcoholic Drinks Control Act, 2018.
  8. Whether the requirement for liquor traders to have both a business permit a liquor licence amounted to double taxation and was unlawful. Read More...

Held:

  1. The functions and powers of the national government and the county government were provided for in the fourth schedule to the Constitution. As provided for in article 186 of the Constitution, a function or power, vested on both the county government and national government, was deemed to be within the concurrent jurisdiction of both levels of government and any governmental function not assigned by the Constitution or national legislation to a county was a function or power vested in the national government. For functions exercised concurrently by both levels of government, article 191 provided for the resolution of conflicts that could arise.
  2. Part 2 of the fourth schedule provided for the functions of a county and those functions included cultural activities, public entertainment and public amenities including liquor licensing. Part 1 of the fourth schedule set out the functions of the national government. It did not make reference to the control, regulation or licensing of alcoholic beverages as a function of the national government.
  3. If the intention of the Constitution was to limit the functions of the county government to the mere licencing of bars, nothing would have been easier than to use express words to that effect. The interpretation proposed by the petitioner would lead to two absurdities. First, counties would be expected to license only liquor outlets and not manufacturers and distributors within the county. Secondly, there would be a vacuum in relation to the licensing of distributors, manufacturers or importers of alcoholic drinks.
  4. The Alcoholic Drinks Control Act, 2010, merged functions relating to regulation and control of alcoholic drinks under the licensing function. There was an overlap in the meaning of the words “control,” “regulation” and “licensing”. The effect of paragraph 4(c) of part 2 of the fourth schedule was to lift and devolve the entire licensing function as a whole and to assign it to the county government. The words control or regulation, were not used in the paragraph but they were implied in the word licensing. Therefore, it was the county government and not the national government that had the constitutional mandate to make and enforce legislation for the control of alcoholic drinks.
  5. The impugned statute had provisions which conveyed the intention to control or regulate through licensing aspects of liquor trade which involved production, sale, distribution, consumption and outdoor advertising and provisions for the treatment and rehabilitation of alcohol dependent persons. The objects and purposes of the Act aligned to the nature and effective performance of the county functions provided for under the fourth schedule.
  6. The object and purport of an impugned legislation was an important consideration where a constitutional challenge was raised. Section 3 of the impugned legislation provided that the purpose of the legislation was mitigation and reduction of negative health, social and other impacts resulting from the sale and consumption of alcoholic drinks, protection of underage persons by denying them access to alcoholic drinks, elimination of illicit brews, counterfeit, adulterated and substandard alcoholic drinks. The objects and purpose of the legislation appeared noble and to be aligned to the licensing function envisaged in the fourth schedule and the empowering provisions of article 185 (2) of the Constitution.
  7. Article 24 of the Constitution was an important consideration where it was alleged that certain statutory provisions had limiting effects on the enjoyment of fundamental rights and freedoms. The burden of proving that a statutory provision constituted an unjustified limitation of a right or freedom would be borne by the person alleging the existence of such a limitation.
  8. Section 30(3) of the Kiambu County Alcoholic Drinks Control Act required the licensee to display a list of alcoholic drinks, manufactured, distributed, stored, offered for sale or in any way handled by the licensee. The licensee could only sell brands for which a license was issued. The effect was that a new license was required whenever new products were introduced into the market. Failure to comply with the provision meant that the Director under the impugned legislation could, without notice, cancel the license.
  9. The display of a list of alcoholic drinks covered by the license was a form of commitment not to deal with illicit or unlicensed brews. It was not understandable why a genuine licensee would be wary of displaying the “menu” of alcoholic beverages available for sale at his premises. The provisions of section 30(3) of the impugned legislation did not violate article 47 of the Constitution and were meant to prevent abuse of liquor licences in order to sell illicit brews. That was reasonable enough.
  10. The possibility that a licence could be cancelled without notice to the licensee was a drastic sanction which was contrary to the spirit and provisions of article 47 of the Constitution. Where such cancellation was a possibility, the licensee was entitled to be heard in line with article 47 of the Constitution and the Fair Administrative Action Act.
  11. Section 36 of the Kiambu County Alcoholic Drinks Control Act, 2018, was a variation of sections 12 and 13 of the Alcoholic Drinks Control Act of 2010.  It provided for the creation of alcohol-free zones but it was not explicit on the areas envisaged or the criteria for the classification. The absence of such criteria appeared contrary to national values and principles of governance espoused in article 10(2) of the Constitution. Nonetheless the deficiency was cured by the fact that alcohol sale free zones could only be created with public participation and the approval of the county assembly. It was unlikely that it could create a blanket restriction applicable to the entire county. The provision was therefore not unconstitutional.
  12. Section 63 of the Kiambu County Alcoholic Drinks Control Act, 2018 related to powers of seizure of alcoholic drinks or things. It failed to provide for the restoration of the seized items to the owner. The provisions affected rights to protection of property, privacy, and to fair administrative action and it was necessary to consider whether it violated article 24 of the Constitution which provided for limitation of fundamental rights and freedoms.
  13. Section 63 of the Kiambu County Alcoholic Drinks Control Act, 2018 did not provide for the restoration of seized alcoholic drinks or things but it provided for documentation and preservation of seized goods. However, under section 66 of the Kiambu County Alcoholic Drinks Control Act, 2018, the County Appeals Committee could review a seizure decision. The failure to provide for the restoration of seized goods would not lead to an outright declaration that section 63 of the Kiambu County Alcoholic Drinks Control Act, 2018 was unconstitutional. Any deficiency in that provision could be cured by an amendment.
  14. Section 65 of the Kiambu County Alcoholic Drinks Control Act, 2018 was challenged on the basis that it illegitimately donated power to the County Executive Committee. The challenge was not pleaded in the petition. It provided that regulations envisaged under the impugned legislation were to be approved by the County Executive Committee.
  15. Section 66 of the Kiambu County Alcoholic Drinks Control Act, 2018 provided for a forum for resolution of disputes related to the licensing process. It provided for different categories of members in the envisaged appeals committee and that was not proof that it envisaged a mob as opposed to the rule of law.
  16. Section 69 of the Kiambu County Alcoholic Drinks Control Act, 2018 provided that holders of liquor licences that were issued before the Act came into force would have to apply for a licence within 30 days of the commencement of the Act. The petitioner contended that it amounted to an automatic termination of valid alcoholic drinks licenses. It was a transitional clause and an argument could not be made as to whether the 30 days period it provided for was reasonable or not. So long as the affected party applied for a new license within the required period, the pre-existing license was not automatically extinguished and it was recognized for the period of the transition to a new license under the Act. There was no evidence tendered to support allegations that the license application forms were only available online after the closure of the 30 day grace period.
  17. The imposition of license conditions was not unreasonable as long as the conditions did not violate the law and the Constitution. A condition requiring an applicant to submit building plans or to restructure their premises was not unreasonable. An assurance that the premises were fit for purpose and consistent with considerations of the health and safety of the general public patronizing such outlets was the legitimate duty of the licensing authority.
  18. Introduction of new grounds by the petitioner without having them disclosed in the pleadings made it difficult for the Court and other parties to appreciate the true gravamen of the petitioner's case. A party desiring to recast his case had to seek to amend their pleadings as provided under the law and not do so through patently covert means.
  19. The petitioner's pleadings did not raise an issue related to public participation. With respect to the process leading to the enactment of the Kiambu County Alcoholic Drinks Control Act, 2018, a 2017 Bill preceded the 2018 Bill. The 2017 Bill was not produced in court but it related to the regulation or control of alcoholic drinks. With respect to that Bill, public participation was undertaken in various fora. That bill did not become an Act of the County Assembly.
  20. Public participation in the process leading to the enactment of a piece of legislation was provided for in sections 3 and 87 of the County Governments Act and articles 10, 174 and 196 of the Constitution. The 2018 Bill that culminated in the enactment of the Kiambu County Alcoholic Drinks Control Act, 2018, was subjected to public participation. There were newspaper and radio advertisements and members of the public were given information on how to access the Bill. The advertisements gave the public eight days after which presentations on the Bill were to be received. Records show that 25 people made presentations on the Bill.
  21. Public participation requirements did not include a requirement that individual views would be included in the final policy or law. There was no duty placed on the public authority involved to accept each and every view. The requirement was that a reasonable opportunity was to be given to the public and all interested parties, with timely access to information relevant to the legislative process.
  22. The requirement for liquor traders to have both a business permit and a liquor license was not unlawful. Liquor licenses and business permits served different purposes. A liquor license was primarily a control license even though revenue was generated from it. A business permit authorized general trading and was primarily a source of revenue for the county. There was no instance of double taxation in the requirement that liquor traders should have both a business permit and a liquor license.

Petition dismissed.

CONSTITUTIONAL LAW Petition filed to challenge measures introduced in 2016 in order to curb exam irregularities, was dismissed.

Okiya Omtatah Okoiti v Kenya National Examinations Council
Petition No 609 of 2017
High Court at Nairobi
W A Okwany, J
November 29, 2018
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-right of access to information-limitation of the right of access to information-access to examination marking schemes and marked answer sheets by candidates-where rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules of 2015 denied candidates access to marked examination scripts-whether the limitation of the right to access information was reasonable-Constitution of Kenya 2010, articles 24 & 35; Access to Information Act, No 31 of 2016, sections 8 & 9;  Kenya National Examinations Act, No 29 of 2012, section 42.
Constitutional Law-constitutional petitions-particulars required when drafting pleadings about alleged violations of constitutional provisions-degree of specificity required in pleadings to show that there had been violations of constitutional provisions-effect of failure to demonstrate the manner of infringement of constitutional provisions and the nature and extent of that infringement and the nature and extent of the injury suffered.
Evidence Law-burden of proof-proof of facts-where a party sought to found a claim of breach of constitutional rights on the basis of certain alleged facts-claim that raw marks which were not moderated were used to declare examination results-whether it was proper, without tendering sufficient evidence, for the petitioner to require the respondent to show that raw marks were not used-Evidence Act (Cap 80), sections 115 and 112.

Brief facts:
The Ministry of Education and stakeholders in the education sector came up with measures to curb exam irregularities, which were implemented in the year 2016. The measures included the marking of examinations within the shortest time possible to avoid alleged tampering with the results. The changes related to the KCPE (Kenya Certificate of Primary Education) and KCSE (Kenya Certificate of Secondary Education) examinations.
The petitioner said that the changes to the examination grading policy were made without public participation. He added that the use of raw grades and lack of moderation in the years 2016 and 2017 in the KCPE and KCSE examinations meant that the grading system created mass failures to the detriment of candidates and was invalid. Amongst the orders sought by the petitioner was a declaration to the effect that KCPE and KCSE candidates had a right to receive marking schemes and their marked answer sheets or certified copies of their marked sheets.

Issues:

  1. Whether failure by the Kenya National Examinations Council to provide examination candidates with marking schemes and marked answer sheets or certified copies of marked sheets was a violation of the right to access information.
  2. Whether the changes introduced to the marking and release of examination results in the year 2016 occasioned violations of constitutional rights.
  3. Whether examination results issued by the Kenya National Examinations Council in the year 2016 and 2017 were moderated.
  4. Whether rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules of 2015 which denied candidates access to marked examination scripts was unconstitutional.Read More..

Held:

  1. Article 35 of the Constitution provided for the right of access to information. The right of access to information was a foundation for the exercise of other rights. It was not an absolute right and was capable of being limited within the terms of article 24 of the Constitution.
  2. The Access to Information Act 2016 provided for the procedure applicable when seeking information from the state. Generally, an application would have to be made in writing in English or Kiswahili language and it would have to be processed within 21 days of its receipt.
  3. The petitioner did not demonstrate that he wrote to the respondent asking to be given certain information or that the respondent did not give the information sought. He therefore failed to tender evidence showing that his right to access information was violated.
  4. The right to information was not absolute and under section 6 of the Access to Information Act various exceptions to the right were provided for. An additional limitation applicable to that right was provided for in rule 19 of the Kenya National Examinations (Release of Results and Certification) Rules of 2015 which provided that the examination scripts would not be accessible to any candidate, institution, teacher or any other third party representing the interest of the candidate after the scripts had been marked.
  5. The limitation to the right to access information provided for in rule 19 of the Kenya National Examinations (Release of Results and Certification) Rules of 2015 was reasonable and within the terms of article 24 of the Constitution. The limitation was properly founded on the basis that the release of marking schemes or answer scripts would compromise the security of the national examinations. The limitation was lawful and reasonable and it did not amount to a violation of the right to access information.
  6. Section 42 of the Kenya National Examinations Act provided for the nature of information that the respondent was not obliged to give pursuant to the right to access to information. That information included information that compromised the integrity of any examination administered by the council, the examination process or any individual's right to privacy.
  7. It would be contrary to the law to issue orders of mandamus to compel the respondent to release marking schemes and marked answer sheets to candidates and their respective schools or examination centres.
  8. Sections 107 and 109 of the Evidence Act were to the effect that it was the party that sought to rely on the existence of certain facts to establish any legal right or liability that bore the burden of proving that those facts existed. The petitioner did not tender evidence to establish that raw marks, which were not moderated, were used by the respondents in declaring examination results.
  9. The petitioner's supplementary affidavit appeared to shift the burden of proof and to require the respondent to demonstrate that raw marks were not used. For that burden to shift, the existence of a special relationship as provided for in section 115 of the Evidence Act or a discharge of the petitioner's burden of proof under the terms of section 112 of the Evidence Act, was required. None of the scenarios were applicable.
  10. The use of newspaper cuttings and articles to prove that raw marks, that were not moderated, were used was insufficient to prove the allegations on raw marks. Statements of facts in newspaper articles were hearsay and inadmissible in evidence in the absence of the maker of the statement appearing in court.
  11. The petitioner alleged that, contrary to the Statutory Instruments Act, there was a failure to place before parliament the changes made to the marking and grading of examinations. However, the petitioner failed to demonstrate that the changes included an instrument or legislation to which the Statutory Instruments Act was applicable.
  12. Pursuant to the presumption of constitutionality of statutes, anyone challenging the constitutionality of a piece of legislation had to show that the legislature did not act in accordance with the law. Only where a court was satisfied that the legislation did not meet constitutional muster would the Court declare the law unconstitutional.
  13. It was not enough for the petitioner to allege that there was no public participation. The petitioner had to demonstrate that public participation was not observed in the entire process of the enactment of the impugned rules that governed the marking of the contested examinations. The claim on public participation was not proved to the required standard.
  14. The petitioner alleged that there had been violations of articles 1(1), 2(1), 2(2), 3, 10(2), 35, 47, 232 and 259(1) of the Constitution. He did not demonstrate to the required degree of specificity the nature of the violation and the manner of the violation. Therefore, no contravention of constitutional rights had been established.

Petition dismissed.

Long'et Terer - CEO and Editor

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t: @LongetTerer

The Kenya Law Team

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