Weekly Newsletter 009/2019



Kenya Law

Weekly Newsletter


Factors a court considers in exercising its discretion to grant an absolute or conditional discharge
Wilson Kipchirchir Koskei v Republic
Criminal Appeal 333 of 2013
High Court at Nakuru
J M Mativo, J
January 30, 2019
Reported by Ian Kiptoo
Download the Decision
Constitutional Law-fundamental rights and freedoms-right to fair hearing-right to be provided with an interpreter if accused person cannot understand language used at the trial-where an accused was not provided with an interpreter except when giving his evidence-whether conducting a trial, except where an accused gave his/her defence, in a language he/she did not understand without providing an interpreter violated an accused person’s right to fair hearing-Constitution of Kenya, 2010, article 50(2)(m)
Criminal Law-sentencing-discharge-absolute and conditional discharge-courts discretion to exercise discharge-factors a court considers in exercising its discretion-what are the factors a court considers in exercising its discretion to grant or decline an absolute or conditional discharge-Constitution of Kenya, 2010, article 165(5); Criminal Procedure Code, sections 362 and 364; Penal code, section 35(1)
Criminal Law-sentencing-discharge-absolute and conditional discharge-factors a court considered in exercising its discretion on sentencing-age of the accused-where an accused was 80 years at the time of sentencing-whether the age of an accused person ought to be considered before a court exercised it discretion on sentencing- Penal Code, section 35(1)
Statutes-interpretation of statutes-interpretation of the Sexual offences Act-mandatory nature of sentences imposed by the Sexual Offences Act-limitation of court’s discretion-whether the mandatory sentences under the sexual offences Act limited a court’s jurisdiction on sentencing
 
Brief Facts:
The appellant was convicted of the offence of defilement contrary to section 8(1) of the Sexual Offences Act and sentenced to serve life imprisonment. The appellant in his grounds of appeal contended that he did not understand the language of the court.

Issues :
  1. Whether conducting a trial, except where an accused gave his/her defence, in a language he/she did not understand without providing an interpreter violated an accused person’s right to fair hearing.
  2. What are the factors a court considers in exercising its discretion to grant or decline an absolute or conditional discharge?
  3. Whether the age of an accused person ought to be considered before a court exercised it discretion on sentencing.
  4. Whether the mandatory sentences under the sexual offences Act limited a court’s jurisdiction on sentencing.
Relevant Provisions of the Law
Penal Code
 Section 35 (1)
 (1). "Where a court by or before which a person is convicted of an offence is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act (Cap. 64) is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein."
 
Held:
  1. Article 50(2) (m) of the Constitution of Kenya, 2010 (Constitution) guaranteed a fair trial to include the right to have the assistance of an interpreter without payment if the accused person could not understand the language used at the trial. The record showed that the proceedings were conducted in English language which was translated to Kiswahili. Curiously, after the appellant was put on his defence, while tendering his defence, for the first time in the proceedings a Tugen Interpreter was availed. Curiously, that was the first time the court recognized the need for an interpreter.
  2. The Court hoisted high the constitutional requirement for a fair trial which included the right of the accused to have the assistance of an interpreter without payment if the accused person could not understand the language used at the trial. The Court had a duty to study the entire record and satisfy itself that indeed the Trial Court did not comply with that constitutional requirement. The Appellate Court had to consider whether the misdirection, viewed either on its own or cumulatively together with any other misdirection, was so material as to affect the judgment, in the sense that it justified interference by the Court of Appeal bearing in mind that what the Constitution demanded was that the accused be given a fair trial.
  3. The right to a fair trial was among the fundamental rights and freedoms that could not be limited. Article 50(2) (m) correctly interpreted meant that an accused person should be able at all stages of the trial to understand the case against him or have the case explained to him in a language that he understood. The sole purpose of doing so was to ensure that an accused at all stages of the trial understood the case against him and availed the accused person sufficient time and facilities to enable him prepare his defence and challenge the prosecution’s evidence at the opportune time both in cross-examination and in his defence.
  4. The constitutional dictate to a fair trial could not be met if the accused could not understand the language of the Court. If that goal was not met, it meant that the Court would be misinterpreting the letter and spirit of the supreme law of the land thereby belittling the Constitution and the very purpose for which it was intended. Courts had to therefore be very keen in ensuring that the provision was adequately given regard to so as to ensure that the rights of an accused person were not violated.
  5. Fair trial was the main object of criminal procedure, and it was the duty of the Court to ensure that such fairness was not hampered or threatened in any manner. Fair trial included the grant of fair and proper opportunities to the person concerned, and understanding the nature of the case against him and understanding the language of the Court. That had to be ensured and observed as it was a constitutional, as well as a human right. Under no circumstances could a person’s right to fair trial be jeopardized. On that ground alone, the trial at the Lower Court was not conducted in a manner that could be said to be consistent with the Constitution. Therefore, the conviction could not be allowed to stand.
  6. Even though the Court was a court of law, it had a conscience. The appellant was aged over 85 years. At the time of the conviction, he was over 80 years or thereabout. He exhibited serious difficulties answering simple questions, was evidently disoriented and incoherent and was evidently confused. Above all, he looked frail and manifested old age related complications.
  7. The jurisdiction of the High Court to review or revise orders of a Magistrate’s Court or Tribunal was underpinned by the Constitution at article 165(5) which comported with section 362 as read together with section 364 of the Criminal Procedure Code.Even though the instant case came to the High Court by way of an appeal, the peculiar circumstances made the case an appropriate case for the Court to invoke its vast jurisdiction under article 165 of the Constitution.
  8. The supervisory powers of a High Court were intended to be used by the High Court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by an inferior criminal court and even as to the regularity of any proceeding of any inferior court. The object of conferring such powers on the High Court was to clothe the High Court with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders or where justice and circumstances of the case so demanded.
  9. Section 35 of the Penal Code provided for absolute or conditional discharge. The obvious purpose of the provision was to provide the Trial Courts with an alternative to convicting an accused when the consequences of such a conviction would outweigh the benefit normally obtained through securing a conviction after a finding or admission of guilt. It was clear that it was the function of the Trial Court to decide the appropriateness of a discharge. The granting of a discharge was discretionary. The Trial Court could by order direct a discharge if it considered it to be in the best interests of the accused and not contrary to the public interest.
  10. An absolute discharge or a discharge upon conditions prescribed in section 35(1) could be ordered where an accused pleaded guilty to or was found guilty of an offence. The Court had to consider a discharge to be in the best interests of the accused and not contrary to the public interest. Absolute discharges were only available where an accused was not a significant threat to the safety of the public. The appellant was aged over 85 years. He was over 80 years as at the time of the conviction. He could not be said to be a significant threat to the safety of the public.
  11. There were two conditions precedent to the exercise of the jurisdiction to grant a discharge, either conditionally or absolutely;
    1. the Court could consider that it was in the best interests of the accused; and
    2. the Court had to consider that a grant of discharge was not contrary to the public interest.
      In the consideration of that aspect, a discharge, conditional or absolute, should not be granted routinely. Further, that the jurisdiction should be used sparingly.
  12. In consideration of the exercise of the discretion to grant an absolute or conditional discharge, it was quite impossible to lay down rules which would cover the myriad of situations which could appear before a trial court confronted with the task of appropriate sentence in any given case. However, some of the relevant factors which had to be considered in every case were;
    1. nature of the offence: While it was to be borne in mind that the section could be used in respect of any offence, one had to nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious the offence, the less frequent would be the use of a discharge in sentencing. It would, for instance, be a most exceptional case where a crime involving violence or sexual assault would be dealt with by an order of discharge;
    2. one had to consider the prevalence of the particular offence as it could exist in the community from time to time;
    3. where the offence was relating to property, the value of the property destroyed or stolen had to be relevant;
    4. where the offence involved sexual assault, as in the instant case, the Court should consider the rights of the victim and whether there were aggravating circumstances including violence; and
    5. whether the crime was committed as a matter of impulse, and in the face of unexpected opportunity, or whether it was calculated and the propensity of the accused to commit such offences.
  13. It was necessary that the Courts express the moral condemnation of the community for deliberate infractions of the criminal law. The discharge should never be applied routinely to any criminal offence, in effect labelling the enactment violable. It should be used frugally, selectively and judiciously as Parliament obviously intended. The Courts should not compromise or circumvent the law. While rejecting a blanket application of section 35(1) to criminal cases, of course, there would be cases under the section and for other infractions of the criminal law, where a discharge was appropriate, depending upon the nature of the offence, theage and antecedents of the accused and the circumstances of the case.
  14. Deterrence to others would be a factor to be assessed when considering the contrary to public interest limb. The more serious the offence, the less likely it would appear that a discharge was not contrary to the public interest. To attempt more specific delineation would be unwise, and might serve to fetter what was conceived to be a wide, albeit judicial, discretion vested in the Court. The Court had to consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria mentioned.
  15. Public interest in respect of the offence in question had to be fully and carefully canvassed and given due weight before a disposition could be made. Much of the public interest in the area was exemplified by the well-known considerations which a court took into account in determining sentence. Section 35 of the Penal Code provided conditions to be taken into consideration by the Court. The Court was required to be of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it was inexpedient to inflict punishment and that a probation order was not appropriate.
  16. Life in prison could challenge anyone, but it could be particularly hard for people whose bodies and minds were being whittled away by age. Older prisoners were more likely than younger ones to develop mobility impairments, hearing and vision loss, and cognitive limitations including dementia. Older prisoners were also more likely to have chronic, disabling, and terminal illnesses. Prisoners who continued to age behind bars would eventually require assisted living and nursing home levels of care while incarcerated.
  17. For an old and frail person, the right to safe conditions of confinement meant not having to live in a cell with younger persons prone to violence and extortion; the right to decent conditions of confinement meant receiving extra blankets and clothing because it was harder to stay warm; and the right to rehabilitation meant receiving age-appropriate educational, recreational, and vocational opportunities.
  18. Some elderly inmates were being unnecessarily held in prison despite the fact that their continued incarceration did little to serve the principal purposes of punishment: retribution, incapacitation, deterrence, and rehabilitation. For prisoners who no longer posed a public safety risk because of age and infirmity, and who had already served some portion of their prison sentence, continued incarceration could constitute a violation of their right to a just and proportionate punishment. Alternative forms of punishment should be imposed—for example, conditional release to home confinement under parole supervision—that would serve the legitimate goals of punishment.
  19. Time had come for Kenya’s criminal justice system to review sentencing, penal laws and policies and guidelines to determine which could be adjusted to reduce the elderly prisoner population without risking public safety. Correctional facilities should review the conditions of confinement for their elderly prisoners, including the services and programs available to them, and make changes as needed to ensure their human rights are respected.
  20. The case presented exceptional circumstances to compel a court to order an unconditional and absolute discharge as contemplated under section 35 of the Penal Code. The appellant was 80 years as at the time he tendered his defence in the Lower Court. He was jailed on November 27, 2013. He was aged over 85 years. Keeping a person aged over 85 years in prison under the harsh prison conditions when he was not a danger even to himself was something that should prick the conscience of humanity and Kenya’s entire criminal justice system. It was tantamount to sentencing such a person to a slow death. Differently stated, the Trial Court properly directing its mind to the provisions of section 35 of the Penal Code wouldhave been perfectly entitled to invoke the said section on account of the appellant's age who was over 80 at the time of sentencing.
  21. Much had been said about the mandatory sentences under the Sexual Offences Act. However, the drafters of section 35 of the Penal Code contemplated circumstances such as presented in the instant case. To reason otherwise would amount to a blind and mechanical application of the law. Legislators simply could not write laws to address all situations which found their way into court or that developed as a case made its way through the legal system. Judges were present during proceedings and heard the evidence firsthand. From that vantage point a judge had to have some discretion to apply the law to the facts and procedure of the pending dispute.
  22. Crime and its punishment was a public policy concern in which Parliament had a key role in defining. It was a judicial function to ensure the criminal laws were implemented fairly and in accordance with the law. If an arrested person was found guilty, it was a judicial function to set out the punishment of the individual on a case-by-case basis guided by the statutory parameters set out by the legislature. Judicial discretion was necessary for the proper discharge of court's constitutional obligations. Time had come for Parliament to reconsider the provisions of the Sexual Offences Act particularly on the question of taking away or limiting judicial discretion on sentencing.
  23. What the law required and allowed was a function not just of legal rules, but also of considerations without which decisions could not soundly be made. Those considerations were relevant to a judicial decision, so that a court had to take them into account and weigh them in the balance in a judicially appropriate way. Neglecting relevant considerations would be a judicial error and could cause injustice. Differently stated, a law that took away judicial discretion was an open invitation to injustice and could open the law to violation of fundamental rights. It was assumed that the established rules of law sometimes ran out and that when they did judges had discretion and had to exercise choice between legally open alternative decisions.
  24. The proceedings in the lower Court were not conducted in a manner that could be read to be consistent with the fair trial requirements under article 50(2) (m) of the Constitution. The appellant could not be said to have been accorded a fair trial when it was evident that the entire proceedings except his defence were conducted in a language he did not understand. Therefore, it would be an affront to the letter and spirit of the Constitution to allow the conviction and imprisonment imposed upon the appellant to stand.
Appeal allowed
Conviction quashed and sentence imposed upon the appellant in CMC Criminal Case Number 153 of 2012 set aside. Consequently, the appellant be released from prison unless otherwise lawfully held. Right of appeal 14 days.
Kenya Law
Case Updates Issue 009/2019
Case Summaries

JUDICIAL REVIEW Whether an order for disclosure can be made in judicial review proceedings.

Munir Sheikh Ahmed v Capital Markets Authority
Judicial Review Application No 269 of 2018
High Court at Nairobi
P Nyamweya, J
December 13, 2018
Reported by Beryl A Ikamari

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Judicial Review-disclosure in judicial review proceedings-legal framework applicable to disclosure in judicial review proceedings-claim that a respondent's affidavit contained annexures of minutes from which substantial information had been redacted and that the information was necessary to prove the applicant's case-whether the Court would order for full disclosure and for a fresh affidavit with the full minutes annexed to be filed and served-Constitution of Kenya 2010, article 35; Access to Information Act, No 31 of 2016, sections 5(1)(a) & 6(1)(a); Civil Procedure Act (Cap 21) sections 1A & 3A; Civil Procedure Rules 2010, order 23 rule 4(3).

Brief facts:
The applicant filed judicial review proceedings to challenge a notice of enforcement action which had imposed sanctions on him. Additionally, the applicant made an application for the respondent's supplementary affidavit to either be expunged from the record or for the respondent to produce the full minutes that were annexed to the affidavit. Annexure AHA 1 of the affidavit related to minutes of the respondent's Board of Directors held on various dates but substantial portions of the minutes had been redacted. The applicant stated that the respondents could not withhold information from the Court and it was the Court that would determine whether the documents were confidential and should not be filed. He further stated that the minutes would help verify two issues; one was on the participation of the treasury representative at the meetings and the second was on the issue of alleged bias on the part of the respondent.

Issues:

  1. Within what legal framework would an order for disclosure be made in judicial review proceedings?
  2. Circumstances in which the Court would make an order for disclosure in judicial review proceedings . Read More..

Held :

  1. There were no specific provisions of law applicable to disclosure of documents in judicial review proceedings. The only related provision was order 53 rule 4 which inter alia provided for further affidavits to be used if they dealt with new matters arising out of the affidavits of any other party in the proceedings.
  2. Although there were no specific provisions for formal disclosure of documents in judicial review proceedings in Kenya, various judicial decisions in other jurisdictions determined that all parties in judicial review proceedings were under a general duty of candour which required them to disclose all information necessary for the Court to determine the claim before it. Therefore, the duty of candour required a defendant in judicial review proceedings to give a full and accurate explanation of its decision-making process while identifying relevant facts and reasoning underlying the measure being challenged. The reason was that in judicial review, the facts were not in issue but the decision under challenge would be reviewed for its legality and not its merits.
  3. An order for disclosure would only be made where there was some material before the Court that suggested that the defendant's statement was inaccurate, inconsistent or incomplete in a material respect. The test to be applied was whether further information or disclosure was necessary to resolve the matter fairly or justly.
  4. Order 53 rule 4(3) of the Civil Procedure Rules implied a duty of candour on the parties in judicial review proceedings. The overriding objective of the Civil Procedure Act and the rules made thereunder, as stated in section 1A was to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Additionally, the Court had inherent power to make such order as would be necessary for the ends of justice or to prevent abuse of the process of court and that power was recognized in section 3A of the Civil Procedure Act.
  5. Article 35 of the Constitution recognized the right to access to information held by another person and required for the exercise or protection of any right or fundamental freedom. Section 5(1)(a) of the Access to Information Act specifically provided for a public entity's duty to facilitate access to information. Section 6(1)(a) of the Access to Information Act provided for information for which non-disclosure was permitted.
  6. The applicant challenged the respondent's decision on grounds of bias. The respondent was under a duty to disclose to the Court its decision making process with regard to the notice of enforcement action and to produce the necessary board minutes. The impugned supplementary affidavit was clearly incomplete and it deliberately withheld information on the respondent's processes.
  7. Where a party sought not to disclose information on grounds of confidentiality, there was an applicable procedure. The Court would first receive and consider the documents to decide on their relevance in order to justify disclosure in the interests of fair disposal of the case. If the Court found that disclosure was necessary, it could consider the question of redaction and invite the parties to make submissions on that question. If the Court decided otherwise, the documents would not be disclosed to the applicant.

Orders:-

  1. The respondent’s supplementary affidavit sworn on August 24, 2018 by Abubakar Hassan Abubakar was expunged from the record for reasons of being incomplete in material respects as regards the minutes of the relevant respondent’s board meetings.
  2. The respondent was ordered, within three days of the date of the ruling, to file and avail only to the Court at the first instance, three copies of a fresh supplementary affidavit annexing inter alia the accurate and complete minutes of all its meetings and discussions leading to the decision to issue the impugned notice of enforcement action dated April 3, 2018 against the applicant.
  3. The Court would make its ruling on disclosure of the said minutes, and would receive submissions on and rule on any redactions if necessary, at a hearing to be held on December 17, 2018 at 2.30 p.m at the Mombasa High Court, where the Court was sitting.
  4. The substantive hearing of the applicant’s notice of motion would proceed on December 18, 2018 at 2.30 pm at the Mombasa High Court.
  5. The costs of the application were to be in the cause.
CIVIL PRACTICE AND PROCEDURE The nature of locus standi required in order to apply for the revival of an abated suit at the Court of Appeal.

Elizabeth Wanjiru Njenga & another v Margaret Wanjiru Kinyara & 2 others
Civil Appeal (Application) 30 of 2005
Court of Appeal at Nairobi
P N Waki, S Gatembu Kairu & K M'Inoti, JJA
November 23, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure- abatement of suits-abatement of suits by death-abatement of a suit at the Court of Appeal-revival of an abated suit at the Court of Appeal-locus standi to apply for the revival of an abated suit-whether a person who was not a legal representative of the deceased could apply for the revival of an abated suit-Appellate Jurisdiction Act (Cap 9), sections 3A & 3B; Court of Appeal Rules 2010, rule 99.
Civil Practice and Procedure-parties to a suit-substitution of parties to a suit-death of a party to an appeal at the Court of Appeal-whether a person who was not the deceased's legal representative could be made a party in place of the deceased-Court of Appeal Rules 2010, rule 99

Brief Facts:
At the High Court, the appellant's application sought revival of their appeal against the 1st respondent who was deceased and the substitution of that respondent with John Wainaina Wanjiru who was said to be the sole surviving son and heir of the deceased. The High Court dismissed the application.
The deceased's father was registered as the proprietor of the suit premises. The deceased had one brother and a sister. Upon her father's death in 1972, her brother, Peter Njenga Kinyara, as an only son, got registered as the proprietor of the land. After the death of Peter Njenga Kinyara, the High Court issued a grant of letters of administration to his widow Elizabeth Wanjiru Njenga, David Karanja Njenga and John Wainaina Njenga on September 26, 2000 in Nairobi High Court Succession Cause No. 1610 of 2000.
Margaret Wanjiru Kinyara, the deceased, filed summons for revocation or annulment of grant on grounds that there had been material concealment of facts in that her deceased brother, Peter Njenga Kinyara, held the property in trust and she was entitled to a share of the deceased's assets. She said that she resided on the land and had undertaken extensive developments on it. On September 17, 2004, the High Court ruled that she had a beneficial interest in a third of the property in question which had been occupied by her mother and that interest should be noted in the grant of letters of administration relating to the estate of Peter Njenga Kinyara.
Two of the administrators lodged an appeal against the decision. In the appeal, the deceased, was the 1st respondent and the two administrators namely, Elizabeth Wanjiru Njenga and David Karanja Njenga, were the appellants. When the 1st respondent died they unsuccessfully sought the revival of the appeal and the substitution of the 1st respondent with her son. The High Court stated that they had no locus standi to apply for the revival of an abated appeal and that the only person who could do so was a legal representative of the deceased.

Issues:

  1. Who had locus standi to apply for the revival of an abated appeal at the Court of Appeal?
  2. What was the difference between the revival of an abated application and the revival of an abated appeal under the Court of Appeal Rules 2010?
  3. What was the effect of the overriding objectives recognized in section 3A and 3B of the Appellate Jurisdiction Act, in the exercise of discretion by the Court?
  4. Whether a person who was not the legal representative of a deceased person could be substituted in place of a deceased person in a succession cause. Read More...

Relevant provisions of the law
Court of Appeal Rules 2010, rule 99;
99. Death of party to appeal
(1) An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.
(2) If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate.
(3) The person claiming to be the legal representative of a deceased party to an appeal may apply for an order to revive an appeal which has abated; and, if it is proved that the legal representative prevented by sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit.

Held:

  1. Under rule 99(3) of the Court of Appeal Rules 2010, the only person that could apply for the revival of the appeal after it abated upon the expiry of 12 months from the time of death of the 1st respondent was her legal representative. Therefore, a question arose as to whether the appellants had locus standi to apply for the revival of an abated appeal.
  2. In dismissing the appellant's application, the High Court was exercising discretion. For the Court of Appeal to interfere with such a decision it would have to be shown that the High Court failed to consider relevant factors or considered irrelevant factors in reaching at its decision or that its decision was plainly wrong.
  3. Prior to the enactment of the Court of Appeal Rules 2010, there was no specific rule dealing with revival of abated appeals. Under rule 51(4) of the Court of Appeal Rules 2010, any interested person could apply to revive an application that had abated but under rule 99(3) of the same rules only a person claiming to be the legal representative of a deceased party to an appeal could apply for revival of an appeal. There was no rational basis as to why the right to apply for revival of an appeal and substitution of a deceased party to the appeal was not extended under rule 99(3) to any interested person but was limited to the person claiming to be the legal representative to a deceased person. Similarly, there was no rational basis as to why any interested person would be at liberty or entitled to apply for substitution of a deceased party to the appeal within 12 months of the death of such party but lose the right to do so upon abatement of the appeal 12 months following the death of a party.
  4. Amendments made to the rules to cater for revival of abated applications and appeals, were intended to avoid injustice that innocent litigants or other relevant parties could suffer through no fault of their own. It was doubtful that the Rules Committee intended that an application to revive an abated application could be made by any interested person and application to revive an abated appeal could only be made by the legal representative of the deceased party.
  5. One of the overriding objectives under section 3A of the Appellate Jurisdiction Act was to facilitate just, expeditious, proportionate and affordable resolution of appeals. For purposes of furthering those objectives, the Court was required, under section 3B of the Act, to handle matters with the aim of, among other things, just determination of proceedings. It was apparent that the High Court did not consider the import of such provisions in exercising discretion.
  6. The application for revival of the appeal was made approximately a year and 7 months after the death of the 1st respondent. At that point the appeal had abated given that it was in excess of 12 months after the death of the deceased. The delay in filing the application for revival of the appeal was therefore explained and was not in the circumstances inordinate. Had the High Court applied the overriding principles to the circumstances, the Court would have arrived at a different conclusion.
  7. John Wainaina Wanjiru, the son of the 1st respondent, was not the legal representative of the 1st respondent. The High Court, to that extent, could not be faulted for declining to accede to the request to substitute him for the deceased.
  8. The Grant of Probate of Written Will of the deceased issued by the High Court in Succession Cause No. 1075 of 2012 indicated that the 1st respondent's personal representatives were Margaret Wanjiru Wainaina and Eunice Wangari Mwangi. Consequently, Margaret Wanjiru Wainaina and Eunice Wangari Mwangi should be made parties to the appeal in place of the 1st respondent.

Appeal allowed.
Orders:-

  1. The appeal was revived.
  2. The appellants were ordered, within 14 days from the date of delivery of the ruling, to file and serve an amended record of appeal reflecting the substituted parties in accordance with the ruling and in accordance with the orders of the Court given on November 5, 2015. Thereafter, the appeal shall be fixed for hearing on basis of priority.
  3. The costs of the reference were to be costs in the appeal.
CONSTITUTIONAL LAW Section 62 of the Kenya Ports Authority Act which provided for dispute settlement via an agreement or arbitration is constitutional.

Redington (Uganda) Limited v Office of the Attorney General & another
Constitutional Petition 11 of 2017
High Court of Kenya at Mombasa
E K O Ogola, J
June 14, 2018
Reported by Beryl A Ikamari

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Constitutional Law-enforcement of fundamental rights and freedoms-constitutional petition-drafting of a constitutional petition-precision in drafting a constitutional petition-whether in drafting a constitutional petition, the petitioner complied with the requirement of precision by identifying the provisions of the Constitution which were alleged to be infringed and particularizing the manner in which those provisions were infringed.
Statutes-constitutionality of a statutory provision-constitutionality of section 62 of the Kenya Ports Authority Act-statutory provision requiring settlement of disputes via an agreement or via arbitration where there was no agreement-whether such a provision violated rights to property, consumer protection, access to justice and fair administrative action-Constitution of Kenya 2010 articles 40, 46 47, 48, 159(2)(c) & 165; Kenya Ports Authority Act ( Cap 391), section 62.

Brief facts:
The petitioner challenged the constitutionality of section 62 of the Kenya Ports Authority Act. Section 62 of the Kenya Ports Authority Act provided for settlement of disputes relating to compensation by way of an agreement with the Kenya Ports Authority or arbitration proceedings and it disallowed court action. Amongst the orders the petitioner sought were various declarations to the effect that section 62 of the Kenya Ports Authority Act, violated the petitioner's right to property, consumer rights, right to fair administrative action and right of access to justice. The petitioner also stated that the provision violated the rule of law as a national value and principle of governance recognised in article 10 of the Constitution.
The 2nd respondent explained that section 62 of the Kenya Ports Authority Act did not grant it immunity but only provided alternative dispute resolution mechanisms which included an agreement or arbitration proceedings. The 2nd respondent added that the provision was in line with article 159 of the Constitution on the issue of promotion of alternative dispute resolution. Lastly, the 2nd respondent submitted that the petition was not precisely drafted and did not sufficiently inform the court of the exact manner in which the petitioner’s rights were infringed.

Issues:

  1. Whether the petition was drafted with the required degree of precision.
  2. Whether section 62 of the Kenya Ports Authority Act was unconstitutional as it violated fundamental rights and freedoms including rights to property, consumer protection, access to justice and fair administrative action. Read More...

Relevant provisions of the law.
Kenya Ports Authority Act (Cap 391), section 62;
62. Compensation
(1) In the exercise of the powers conferred by sections 12, 14, 15 and 16, the Authority shall do as little damage as possible; and, where any person suffers damage, no action or suit shall lie but he shall be entitled to such compensation therefore as may be agreed between him and the Authority or, in default of agreement, as may be determined by a single arbitrator appointed by the Chief Justice.
(2) Nothing in this section shall be construed as entitling any person to compensation—

(a) for any damage suffered unless he would have been entitled thereto otherwise than under the provisions of this section; or
(b) for any damage suffered as a result of the user of any works authorized under this Act unless such damage results from negligence in such user.

Held:

  1. Petitions had to be drafted with a reasonable degree of precision so as to meet the ends of justice by enabling the court to discern the provisions that were alleged to be violated and the manner in which the provisions were violated. A petitioner should set out with a reasonable degree of precision that of which he complained, the provisions said to be infringed and the manner in which they were alleged to be infringed.
  2. It was necessary for the Court to be able to identify the specific rights alleged to have been infringed and the particulars as to how those rights were allegedly infringed. The petition identified articles of the Constitution that were alleged to be infringed as articles 40, 46, 47 and 48 and it systematically provided details on the manner in which each right was alleged to have been violated by the 2nd respondent. Therefore, the petitioner drafted its petition with a reasonable degree of precision.
  3. The required degree of precision did not entail formulaic prescription of constitutional provisions alleged to have been infringed. Precision was not conterminous with exactitude.
  4. Section 62 of the Kenya Ports Authority Act did not deny the petitioner access to justice but instead it provided two mediums through which the petitioner could be compensated. The first was to agree with the Kenya Ports Authority on the compensation and the second was the option of an arbitrator appointed by the Chief Justice to determine the compensation. The petitioner did not try entering into an agreement with the Kenya Ports Authority or subjecting its claim to arbitration.
  5. The High Court had unlimited original jurisdiction in criminal and civil matters under article 165 of the Constitution. Alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms were to be promoted under the terms of article 159(2)(c) of the Constitution. The Constitution should be interpreted as a whole with each provision sustaining the other. Section 62 of the Kenya Ports Authority Act sought to support article 159 (2) (c) of the Constitution by providing for dispute settlement via arbitration.
  6. Section 62 of the Kenya Ports Authority Act did not shield the 2nd respondent from liability nor deny the petitioner access to justice. Arbitration was merely an alternative to the courts and also a forum through which a person could access justice.
  7. Section 62 of the Kenya Ports Authority Act did not infringe on the petitioner's right to property as recognized in article 40 of the Constitution. It merely provided for an alternative mode of dispute resolution and in turn it safeguarded rights to property. Arbitration was not a hindrance to justice. Some disputes were complex and required technical skills and thus the courts were less preferable in the handling of such disputes.
  8. Section 62 of the Kenya Ports Authority Act only stated that if a person did not reach an agreement with the Authority on the compensation, the compensation would be determined by a single arbitrator appointed by the Chief Justice. That provision did not provide the criteria for the selection of the arbitrator or the rules and procedure to be followed during the arbitration. That alone was not reason enough to invalidate section 62 of the Kenya Ports Authority Act.

Petition dismissed.

JUDICIAL REVIEW Requirements to be met by the Salaries Remuneration Commission before reviewing remuneration and benefits of state and public officers

County Government of Kakamega & 2 others v The Salaries and Remuneration; County Government of Mombasa (Interested Party) Commission [2018] eKLR
Petition No. 9 of 2018
High Court at Nairobi
G V Odunga, J
December 10, 2018.
Reported by Kakai Toili

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Brief facts:
In March 2013, the respondent caused to be published in Gazette Notice Numbers 2885, 2886, 2887 and 2888 on the salaries for State officers serving in the National and County Government, the Senate and the National Assembly, Constitutional Commissions and Independent Offices. In July, 2017, the respondent issued a press statement in which it announced the reviewed salary structure for the all the State officers for the period 2017-2022. The respondent clarified that the recommended remuneration structure for State officers for the period 2017-2022 was anchored on the job evaluation that was undertaken in the year 2013
Aggrieved by the decision of the respondent the petitioners instituted the instant petition on the grounds that the impugned decision unlawfully varied, to the disadvantage and detriment of the affected officers, the remuneration and benefits payable to State officers serving in County Assemblies among other grounds.

Issues:

  1. What were the requirements to be met by the Salaries Remuneration Commission before reviewing remuneration and benefits of state and public officers?
  2. What was the difference between judicial review, ordinary adversarial litigation and appeals?
  3. What were the grounds for making a judicial review application?
  4. What were the circumstances in which a court could interfere with a decision of a public authority where the decision was alleged to be unreasonable?
  5. What were the tests to be applied in determining a judicial review application?
  6. What were the circumstances in which a court could interfere with the Salaries and Remuneration Commission power to provide for annual salary increments?
  7. Read More..

Relevant Provisions of the Law
Salaries and Remuneration Commission (Remuneration & Benefits of State & Public Officers) Regulations, 2013
Regulation 4
(1) The Commission shall undertake a review of remuneration and benefits of state and public officers every four years.
(2) A review under paragraph (1) shall be conducted at the same time across the public sector.
Regulation 5
(1) The Commission shall, at least one year before the review, cause the following to be conducted –

(a) a study on labour market efficiency and dynamics;
(b) a survey of the prevailing economic situation; and
(c) a comprehensive job evaluation.

(2) The Commission shall prepare a report on the findings under paragraph (1) and the report shall form the basis for review.
(3) The review shall be communicated to the Cabinet Secretary responsible for matters relating to finance, the Judicial Service Commission, the Parliamentary Service Commission and the national and county governments for inclusion in the subsequent budgetary estimates.

Regulations 12
(a)Fixed and variable components of the remuneration;
(b)Legal, social, economic and environmental issues;
(c)Results of job evaluation, performance and productivity;
(d)Results of market studies;
(e)Key elements and factors of pay for considerations;
(f) Market rates from the results of comparative market surveys;
(g)Collective bargaining agreements;
(h)Overall and specific cost of employment, relating it to the resource capacity of the organization;
(i) Affordability and sustainability of compensation or award to government and within the job market;
(j) Linkage to the national objectives, priorities and the human resource management strategy;
(k) Level of performance or productivity of the officer or level of performance and achievement of the national objectives by the organization;
(l) Salary structures in the public service;
(m) Benchmark with similar organizations or those organizations to which the organization loses staff;
(n)Equity and competitiveness; and
(o)Any other relevant matter to remuneration setting and advice.

Held:

  1. A constitutional issue was that which directly arose from a court’s interpretation of the Constitution. A wrong action or decision did not necessarily elevate the matter to a constitutional issue in order to warrant a party aggrieved thereby to institute proceedings by way of a constitutional petition. The Constitution pervaded all aspects of life so much so that any action taken by a party could easily be transformed into a constitutional issue by simply citing some provision of the Constitution however remote.
  2. Any inclination to demand an inquiry every time there was a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialise the constitutional jurisdiction and further erode the proper administration of justice by allowing what was plainly an abuse of the court process. Where the facts as pleaded did not plainly disclose any breach of fundamental rights or the Constitution there could not be any basis for an inquiry.
  3. Judicial review was an important control, ventilating a host of varied types of problems. The focus of cases could range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self-interest; and anything in between. As a result, judicial review had significantly improved the quality of decision making. It had done that by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It had also restrained or curbed arbitrariness, checked abuse of power and had generally enhanced the rule of law in government business and other public entities. It was a sufficient tool in causing the body in question to remain accountable.
  4. Judicial Review was a special supervisory jurisdiction which was different from both ordinary (adversarial) litigation between private parties and an appeal (rehearing) on the merits. Whereas private law proceedings involved the claimant asserting rights, judicial review represented the claimant invoking supervisory jurisdiction of the court through proceedings brought nominally by the Republic.
  5. In Kenya, judicial review was a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It did not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. In a case of review, as distinct from an ordinary appeal, the Court could not set about forming its own preferred view of the evidence.
  6. Judicial review was concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose was to ensure that the individual was given fair treatment by the authority to which he had been subjected. In other words the purpose of judicial review was to ensure that the individual received fair treatment and not to ensure that the authority, after according fair treatment, reached on a matter which it was authorised by law to decide for itself a conclusion which was correct in the eyes of the court.
  7. It was not mere unreasonableness which would justify the interference with the decision of an inferior tribunal. It had to be noted that unreasonableness was a subjective test and therefore to base a decision merely on unreasonableness placed the Court at the risk of determination of a matter on merits rather than on the process. To justify interference the decision in question, had to be so grossly unreasonable that no reasonable authority addressing itself to the facts and the law would have arrived at such a decision. In other words such a decision had to be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it.
  8. Whereas that the Court was entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness was met, it was only when the decision was so grossly unreasonable that it could be found to have met the test of irrationality for the purposes of Wednesbury unreasonableness. There was a difference between judicial review and an appeal. Courts would only interfere with the decision of a public authority if it was outside the band of reasonableness.
  9. In judicial review, the court’s jurisdiction was limited to applying the three tests of legality, rationality and procedural propriety to the decision under review and once the decision passed the tests the court had no business taking any further step in respect of that decision. There was always a temptation to descend into the arena and substitute the court’s decision with that of the public body whose decision was under attack. A court should, however, avoid that temptation by all means lest it be accused of abusing the powers given to it to review the decisions of subordinate courts and tribunals.
  10. The traditional thinking that judicial review remedies were distinct from remedies for violation of the Constitution had to take a dramatic shift. According to the Constitution, judicial review remedies were part of the reliefs which the Court could grant where a person complained that his or her rights had been violated. Since the Constitution was incremental in its language, what the constitutional dispensation required was that both the grounds and remedies in judicial review applications be developed and the grounds for granting relief under the Constitution and the common law be fused, intertwined and developed so as to meet the changing needs of the society so as to achieve fairness and secure human dignity.
  11. The traditional grounds of judicial review in a purely judicial review application under the Law Reform Act and order 53 of the Civil Procedure Rules had not been discarded nor had its scope left the airspace of process review to merit review except in those cases provided in the Constitution. In other words, the categories of judicial review grounds were not heretically closed as opposed to their being completely overtaken or that the Court’s jurisdiction under order 53 of the Civil Procedure Rules should include merit review. Once that distinction was made, there would be little difficulty for the Court to maintain that it should be concerned with process review rather than merit review of the decision of the respondent board given the statutory circumstances of the instant case.
  12. It was not the duty of the Court to set out the remuneration and benefits of State officers including Members of Parliament. The Court had no powers to demarcate to the respondent the nature of the remuneration and benefits which the respondent, in the exercise of its constitutional and statutory mandate was to determine. The respondent had the power to determine the remuneration and benefits of the petitioners.
  13. Article 230(4) of the Constitution was clear that it was the respondent’s mandate to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers. A State officer, encompassed a member of a county assembly or other member of the executive committee of a county government on whose behalf the petition was filed. Unless that provision was amended, the petitioners had to abide by the respondent’s decision as long as the same was made in accordance with the Constitution and the relevant statutory provisions. It did not matter whether such a decision was unpalatable to the applicants.
  14. Whereas regulation 15 of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations 2013(the Regulations), provided for annual increments, the same had to be based on productivity and performance. Therefore unless the decision not to affect the increment was clearly irrational, there would be no justification for interference. However if the decision was not arrived at in accordance with the said instruments, the Court would not hesitate to state so since the respondent had to operate within the four corners of the Constitution and the law. A judicial or quasi-judicial tribunal, such as the respondent board had no inherent powers.
  15. A tribunal’s power had to be conferred by the statute establishing it which statute had to set out its powers expressly since such tribunals had no inherent powers. Unless its powers were expressly donated by the parent statute, it could not purport to exercise any powers not conferred on it expressly. Where a statute donated powers to an authority, the authority ought to ensure that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority. A public authority could not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others.
  16. Where the law exhaustively provided for the jurisdiction of an executive body or authority, the body or authority had to operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. Whereas, if Parliament gave great powers to them, the courts had to allow them to it, courts had to nevertheless be vigilant to see that the said bodies exercised those powers in accordance with the law. The administrative bodies and tribunals or boards had to act within their lawful authority and an act, whether it was of a judicial, quasi-judicial or administrative nature, was subject to the review of the courts on certain grounds. The tribunals or boards had to act in good faith; extraneous considerations ought not to influence their actions; and they had to not misdirect themselves in fact or law.
  17. In order to justify any review of the remuneration and benefits by the respondent, it was necessary that the respondent undertake a study on labour market efficiency and dynamics; a survey of the prevailing economic situation; and a comprehensive job evaluation. Those processes were to be undertaken at least one year before the review. The failure to comply with regulations 5 and 12 of the Regulations amounted to a procedural impropriety on the part of the respondent. Such impropriety could not be justified simply on the ground that the applicants were heard before the review for the simple reason that it was the information obtained through the said processes that were to form the basis of a hearing through which the applicants were to ventilate their issues.
  18. Regulation 15 of the Regulations entitled State and public officers to annual salary increment. However, the petitioners could not peg their remuneration on the terms of the previous County Assembly as the term of the previous Assembly came to an end. Accordingly, the petitioners were new employees and came into office by virtue of elections held on August 8, 2017. They had contested their seats knowing of the remuneration rates as per the Gazette Notice No. No. 6518 published on July 7, 2017.
  19. The petitioners were afforded an opportunity to present their views on the review of their remuneration and benefits, they were afforded an opportunity of being heard. Regulation 14 of the Regulations which provided that where a reviewed remuneration or benefit had been approved and was due, it had to be granted with effect from July 1, of the subsequent financial year. That was after being factored in the national or respective county government budget and that communication of set remuneration that had to be by notice in the gazette was meant to insulate the budgetary process so that any financial expenditures arising from a review did not interfere with the budgetary allocation for the year in which the review was undertaken. A decision made upon review could only take effect at the following financial year.
  20. If the Regulations were void then there was no basis of the Members of Parliament being remunerated at that time. An attempt to render the said Regulations inoperative was unconstitutional; the Court could not, without a proper suit being brought before it for the said purposes make a declaration that the said Regulations were void. It was not the duty of the respondent to ensure that the procedure effectuating the said Regulations was adhered to.
  21. Since the impugned Gazette Notices were meant to replace the 2013 Notices, it could not be successfully argued that the quashing of the Gazette Notice No. 6518 of July 7, 2017 would leave a lacuna in the remuneration of the applicants. The effect of a decision quashing the said Gazette Notice was that the status quo prevailing before the publication of the said Gazette Notice would be revived. That position would be curable by the spirit of section 24 of the Interpretation and General Provisions Act. The manner in which the Gazette Notice No. 6518 of July 7, 2017 was promulgated was tainted with procedural impropriety. It could not be sustained.

Petition partly allowed

  1. An order of certiorari quashing the decision by the respondent contained in Gazette Notice No. 6518 of July 7, 2017 was issued
  2. The respondent to decide how best to proceed.
  3. No order as to costs.

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