Weekly Newsletter 012/2019

Weekly Newsletter 012/2019



Kenya Law

Weekly Newsletter


Court of Appeal upholds High Court’s decision ordering the Non-Governmental Organizations Co-ordination Board to Register Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community Rights Group
Non-Governmental Organizations Co-Ordination Board v EG & 5 others [2019] eKLR
Civil Appeal 145 of 2015
Court of Appeal at Nairobi
P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike Makhandia, JJA
March 22, 2019.
Reported by Kakai Toili

Download the Decision
 
Constitutional Law-interpretation of constitutional provisions-interpretation of article 36 of the Constitution-whether members of the lesbians, gays, bisexuals, trans genders, intersex and queer community were ‘persons’ as used in article 36 of the Constitution on the freedom of association-Constitution of Kenya, 2010, article 27(4), 36& 259
Civil Practice and Procedure-suits-institution of suits-where the Constitution or an Act of Parliament provided for a procedure of resolving a dispute-whether one could file a suit in court where there was a procedure for redress presented by the Constitution or an Act of Parliament before exhausting the procedure provided- Fair Administrative Actions Act, section 9 (4)
Constitutional Law-fundamental rights and freedoms- freedom of association –limitation of freedom of association-where a person sought to register a non-governmental organization(NGO)-where the Executive Director of the Non-Governmental Organizations Co-ordination Board refused to approve the reservation of the name of a proposed NGO-where the Non-Governmental Organizations Co-ordination Board refused to register the said organization-procedure to be followed an aggrieved party-whether an aggrieved party could appeal against a decision of the decision of the Executive Director of Non-Governmental Organizations Co-ordination Board to refuse to approve a proposed name of an NGO to the Minister in charge-Constitution of Kenya, 2010, article 24,27(4), 36 & 259; Non-Governmental Organizations Co-ordination Act, section 10, 14 & 19; Non-Governmental Organizations Coordination Regulations, regulation 8 & 9
Constitutional Law-fundamental rights and freedoms-freedom of association–limitation of freedom of association-under what circumstances could the right to form, join and participate in non-governmental organizations, associations or groups be limited-whether a person could be denied fundamental rights and freedoms based on his or her sexual orientation-Constitution of Kenya, 2010, article 24,27(4), 36 & 259
Criminal Lawunnatural offences and indecent practices between males-elements-whether it was an offence for one to be a gay or a lesbian without more action- Penal Code, section 162 & 165
Constitutional Law-fundamental rights and freedoms-human dignity-concept of dignity-what was the nature of the concept of dignity in human rights- Universal Declaration of Human Rights, article 1
Jurisdiction–jurisdiction of the Court of Appeal –jurisdiction to interfere with findings of fact made by the High Court-what were the circumstances in which the Court of Appeal could interfere with the findings of fact by the High Court
 
Brief Facts:
The 1st respondent floated three names under which he sought to register a non-governmental organization (proposed NGO) with the appellant, seeking to address human rights abuses and violations suffered by the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer persons (LGBTIQ) in Kenya and which request was rejected by the appellant’s Executive Director(Director) precipitating the 1st respondent to file a petition at the High Court on the ground that his right to freedom of association, dignity, equality and right not to be discriminated against had been violated among other grounds. The High Court allowed the petition and held that the right to equality before the law would not be advanced if people were denied the right not to be discriminated against based on their sexual orientation. The appellant was aggrieved by the High Court’s decision and thus filed the instant appeal.

Issues:
  1. Whether one could file a suit in court where there was a procedure for redress presented by the Constitution or an Act of Parliament before exhausting the procedure provided.
  2. What was the procedure to be followed where a person was aggrieved by the decision of the Non-Governmental Organizations Co-ordination Board not to register a non-governmental organization?
  3. Whether an aggrieved party could appeal against a decision of the Executive Director of Non-Governmental Organizations Co-ordination Board to refuse to approve a proposed name of a non-governmental organization to the Minister in charge.
  4. Whether members of the Lesbians Gays Bisexuals Transgender Intersex Queer(LGBTIQ) community were ‘persons’ as used in article 36 of the Constitution on the freedom of association.
  5. Whether it was an offence for one to be a gay or a lesbian without more action as provided for in sections 162,163 and 165 of the Penal Code.
  6. Under what circumstances could the right to form, join and participate in non- governmental organizations, associations or groups be limited?
  7. What was the nature of the concept of dignity in human rights?
  8. Whether a person could be denied fundamental rights and freedoms based on his or her sexual orientation.
  9. What were the circumstances in which the Court of Appeal could interfere with the findings of fact by the High Court?
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 24

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

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

Article 27
(4) The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
 

Article 36
(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—

(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before a registration is cancelled.

Non-Governmental Organizations Co-ordination Act
Section 2

“Non-governmental organization” mean a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes, but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to health, relief, agriculture, education, industry and the supply of amenities and services
 

Section 4
(1) The Board shall consist of-

(a) a chairman appointed by the President;
(b) three members appointed by the Minister by virtue of their knowledge or experience in development and welfare management;
(c) the Permanent Secretary in the Ministry for the time being responsible for matters relating to Non-Governmental Organizations;
(d) the Permanent Secretary in the Ministry for the time being responsible for foreign affairs;
(e) the Permanent Secretary to the Treasury;
(f) the Permanent Secretary in the Ministry for the time being responsible for economic planning;
(g) the Permanent Secretary in the Ministry for the time being responsible for social services;
(h) the Attorney-General;
(i) seven members appointed by the Minister on the recommendation of the Council to represent the diverse areas of Non-Governmental Organisations' interests within the Board;
(j) the executive director appointed under section 5 (1);
(k) the chairman of the Council.

Section 10 - Registration of Non-Governmental Organizations
(1) Every Non-Governmental Organization shall be registered in the manner specified under this Part.
(2) Applications for registration shall be submitted to the executive director of the Bureau in the prescribed form.
(3) An application for registration shall be made by the chief officer of the proposed organization and specify-

(a) other officers of the organization;
(b) the head office and postal address of the organization;
(c) the sectors of the proposed operations;
(d) the districts, divisions and locations of the proposed activities;
(e) the proposed average annual budgets;
(f) the duration of the activities;
(g) all sources of funding;
(h) the national and international affiliation and the certificates of incorporation;
(i) such other information as the Board may prescribe.

(4) The Minister may, on the recommendation of the Board and by notice in the Gazette, exempt such Non-Governmental Organization from registration as he may determine.
(5)
Application for registration under this section shall be accompanied by a certified copy of the constitution of the proposed Non-Governmental Organization.
 

Section 14 - Refusal of registration:
The Board may refuse registration of an applicant if-

(a) it is satisfied that its proposed activities or procedures are not in the national interest; or
(b) it is satisfied that the applicant has given false information on the requirements of subsection (3) of section 10; or
(c) it is satisfied, on the recommendation of the Council, that the applicant should not be registered.

Section 19
(1) Any organization which is aggrieved by decision of the Board made under this Part may, within sixty days from the date of the decision, appeal to the Minister.
(2) On request from the Minister, the Council shall provide written comments on any matter over which an appeal has been submitted to the Minister under this section.
(3) The Minister shall issue a decision on the appeal within thirty days from the date of such an appeal.
(3A) Any organization aggrieved by the decision of the Minister may, within, twenty-eight days of receiving the written decision of the Minister, appeal to the High Court against that decision and in the case of such appeal—

(a) The High Court may give such direction and orders as it deems fit; and
(b) The decision of the High Court shall be final.

Non-Governmental Organizations Coordination Regulations, 1992 (NGOCR),
Regulation 8 - Approval of names

(1) An applicant for the registration of any proposed organization shall prior to such application seek from the Director approval of the name in which the organization is to be registered.
(2) The application for approval under Paragraph (1) shall be in Form 2 set out in the Schedule and accompanied by the fee specified in regulation 33.
(3) The Director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered Organizations kept at the documentation centre and shall notify the applicant either that-

(a) such name is approved as desirable; or
(b) such name is not approved on the grounds that-

(i) it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or Organization existing under any law; or
(ii) such name is in the opinion of the Director repugnant to or inconsistent with any law or is otherwise undesirable.

Regulation 9 - Application for registration
(1) Every application for registration under section 10 of the Act shall be-

(a) in Form 3 set out in the First Schedule;
(b) typewritten;
(c) signed by the chief officer of the proposed Organization
(d) sent to the Director together with the fee specified in regulation 33;
(e) accompanied by-

(i) a copy of the minutes of the meeting of the proposed Organization authorizing the filing of the application;
(ii) a copy of the constitution of the proposed Organization duly certified by the chief officer and the secretary of the proposed Organization, specifying the maters set out in the Second Schedule;
(iii) a notification of the situation of the registered office end postal address of the proposed Organization in Form 4 set out in the First Schedule signed by the chief office of the proposed Organization.

(2) Any proposed Organization legally domiciled in Kenya with branches in countries other than Kenya shall, in addition to the copy of its constitution referred to in paragraph (1) (e), submit copies of the constitutions, deeds or statutes of such branches.
(3)
The Director may upon receipt or an application under this Regulation request such further or better information on the proposed Organization as he may require.
 

Fair Administrative Actions Act
Section 9 (4)

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

Penal Code
Section 162

Any person who -

(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years

Section 165
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years

Held:
Per P N Waki, JA (concurring)

  1. The instant matter was not about the family unit, marriage or morals, legalization of same sex relationships, or the constitutionality of and of the Penal Code. Indeed, the latter issue was pending determination before the High Court, and the less said about it the better.
  2. The Constitution had ring-fenced its purpose and the manner it ought to be construed. After declaring its supremacy in a, the Constitution proceeded in a to bind everyone who applied and interpreted it or any other law or made public policy, to the national values spelt out therein including: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.
  3. The principles of the rule of law, participation of the people, equity, inclusiveness, equality, human rights, transparency and accountability were binding. The Constitution opened up further space for application of other principles and values obtaining in the general rules of international law and the international instruments Kenya had ratified, such as, the , the (ICCPR), and the(ICESCR).
  4. The Constitution laid out an expansive Bill of Rights for the purpose of recognizing and protecting human rights and fundamental freedoms in order to Inand, it gave an edict to the courts as they applied the Bill of Rights to develop the law where it did not give effect to a right; adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and promote the values that underlay an open and democratic society based on human dignity, equality, equity, freedom and the spirit, purport and objects of the Bill of Rights.
  5. In a, the Constitution commanded the manner in which it should be interpreted. It also demanded that every provision of the Constitution . The Constitution had to be interpreted in a manner that eschewed formalism, in favour of the purposive approach and in a holistic manner within its context and in its spirit.
  6. Where there was a procedure for redress of any particular grievance presented by the Constitution or an Act of Parliament, that procedure should be exhausted before resort could be had to the courts. The Director was ex officio and had no vote at any meeting of the Board. The Board could make decisions on cancellation of registration certificates and on entry permits. On all the matters under part III of the Non-Governmental Organizations Co-ordination Act (Act) on registration of non-governmental organizations, where the Board made a decision, an appeal by the aggrieved organization went to the Minister under of the Act on appeals.
  7. There was no an application neither made under part III of the Act on registration of non-governmental organizations nor was a decision made by the Board. The Board as constituted under section 4 of the Act never met, the application as detailed in section 10 of the Act was never submitted. Consequently, one could not talk about refusal of registration under section 14 of the Act on refusal of registration which would attract the procedure of appeal under section 19 of the Act.
  8. All that happened in the instant matter was an administrative procedure that was provided for in the Non-Governmental Organizations Coordination Regulations, 1992 (Regulations), which had to take place long before commencement of an application for registration under part III of the Act. The procedure was in regulation 8 of the Regulations and was referred to as approval of names. Without surmounting that step, there would be no application for registration under section 10 (2) of the Act, as provided for in regulation 9 on application for registration.
  9. All that happened in the instant matter was an administrative procedure that was provided for in the Non-Governmental Organizations Coordination Regulations, 1992 (Regulations), which had to take place long before commencement of an application for registration under part III of the Act. The procedure was in regulation 8 of the Regulations and was referred to as approval of names. Without surmounting that step, there would be no application for registration under section 10 (2) of the Act, as provided for in regulation 9 on application for registration.
  10. The decision in question was not the decision contemplated in section 19 of the Act, on which appeal lay to the Minister. The intention of the law in section 19 of the Act was for an appeal to lie in respect of substantive decisions such as refusal of registration or cancellation of registration. Section 19 of the Act was clear that an appeal only lay to the Minister when the Board had made a decision.
  11. As the Board did not make the decision in terms of the Act, there was no appeal provided for the 1st respondent. Moreover, there was nothing in the Regulations that provided that an aggrieved applicant could appeal a decision made in terms of the Regulations to the Minister. As such, there was no statutory prescribed internal remedy, which was prescribed or available to the 1st respondent. The Court could not close its doors on the 1st respondent for failure to exhaust an internal remedy that did not apply to his circumstances. The grounds upon which the reservation of name was rejected were top-heavy with constitutional questions which deserved the interpretation of the High Court.
  12. The people in Kenya who answered to any of the descriptions in the acronym LBGTIQ, were persons. covered the persons in that group. Like everyone else, they had a right to freedom of association which included the right to form an association of any kind. That was the literal wording of a which had no hidden meaning. of the Constitution provided further clarity to the definition of person. Construing 'person' to refer only to the sane and law abiding people would be unduly stretching the ordinary meaning of the words used in the Constitution.
  13. The Penal Code did not criminalize the persons answering to the description LBGTIQ qua such persons. What it provided for were specific offences, more specifically, , , and . Those were and of the Penal Code, respectively. Like everyone else, LBGTIQ persons were subject to the law and would be subjected to its sanctions if they contravened it. Convicting such persons before they contravened the law would be retrogressive.
  14. According to the proposed NGO’s objectives, the 1st respondent intended to register the NGO to among other things conduct accurate fact finding, urgent action, research and documentation, impartial reporting, effective use of the media, strategic litigation and targeted advocacy in partnership with local human rights groups on human rights issues relevant to the gay and lesbian communities living in Kenya. On the face of it, there was nothing unlawful or criminal about such objectives. However, they never reached the stage of proper consideration by the Board because the main gate to the boardroom was locked.
  15. Article 36 of the Constitution granted every person the right to form an association of any kind. It also provided that an application to form an association could only be refused on reasonable grounds and no person could be compelled to join an association. That was the breadth of the right of freedom of association as provided for in the Constitution. It covered every person and any kind of association. It could only be limited in terms of law and only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. An individual human being, regardless of his or her gender or sexual orientation, was a person for the purposes of the Constitution.
  16. The Constitution extended the definition of ‘person’ from only the natural, biological human being to include legal persons. Neither article 36 of the Constitution nor the definition of “person” in article 260 of the Constitution created different classes of persons. There was nothing that indicated that the Constitution, when referring to ‘person’, intended to create different classes of persons in terms of article 36 based on sexual orientation. Moreover, articles 20(3) and (4) of the Constitution provided that a court adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and promoted the values that underlay an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and objects of the Bill of Rights.
  17. Article 20 (1) of the Constitution provided that the Bill of Rights applied to all persons. Article 259 of the Constitution provided that the Constitution had to be interpreted in a manner that advanced human rights and fundamental freedoms. The term “every person” in article 36 of the Constitution properly construed did not exclude homosexual person and the 1st respondent therefore fell within the ambit of article 36 which guaranteed to all persons the right to freedom of association. The right to freedom of association was also expressly recognised in international covenants to which Kenya was a party.
  18. (Obiter dicta) The issue of persons in the society who answer to the description lesbian, bisexual, gay, transsexual, intersex and queer (LBGTIQ) is rarely discussed in public. The reasons for such coyness vary. But it cannot be doubted that it is an emotive issue. The extensive and passionate submissions made in this matter before the High Court, and before us, is testimony to the deep rooted emotions that the issue can easily arouse. It is possible for the country to close its eyes and hearts and pretend that it has no significant share of the people described as LGBTIQ. But that would be living in denial. We are no longer a closed society, but fast moving towards the 'open and democratic society based on human dignity, equality, equity, and freedom' which the Constitution envisages. We must therefore, as a nation, look at ourselves in the mirror. It will then become apparent that the time has come for the peoples' representatives in Parliament, the Executive, County Assemblies, Religious Organizations, the media, and the general populace, to engage in honest and open discussions over these human beings. In the meantime, I will not ".. be the first to throw a stone at her [LGBTIQ]".

    Per Koome, JA (concurring)
  19. Arguments on morality, religion, culture were none issues in the instant matter as they were based on assumptions that if the proposed NGO were to be registered, it would run counter to religious, cultural and moral values of Kenya. The Court did not wish to delve on matters of morality because what formed the morality of Kenya was basically what was spelt out in various articles of the Constitution especially article 10 of the Constitution.
  20. The Act and the Regulations had not provided an internal appeal mechanism for applicants to follow when a name was refused for reservation to register a non-governmental organization(NGO). If certainly there existed a procedure, the Board should have advised the 1st respondent to place an appeal before the Board or the Minister; since the procedure provided was for refusal of a registration and not a name.
  21. The Board having made up its mind that the proposed NGO did not meet the test, sending the 1st respondent back to exhaust an appeal where the procedure was not even set up, where the Board had strongly expressed its prejudicial view against the proposed NGO would be an exercise in futility. Courts were the ultimate bastion and custodian of the Constitution. The matters of LGBTIQ’s right to associate invoked the interpretation of the Constitution, for determination by court. The matters raised transcended a mere administrative act and touched on constitutional interpretation by court.
  22. It was not an offence for one to be gay or lesbian. What was detestable and an offence was engaging in carnal knowledge against the order of nature. In other words even if somebody stood on a high platform and declared that he or she was a gay or lesbian without more, they would not have committed an offence contrary to the provisions of section 162, 163 and 165 of the Penal Code which criminalised carnal knowledge against the order of nature.
  23. Anybody was capable of committing unnatural offences; attempting to commit unnatural offences and indecent practices between males under section 162, 163 and 165 of the Penal Code respectively. They could be gays, lesbians (LGBTIQ) and even heterosexuals. Reported cases abound where persons who were not LGBTIQ had been charged and convicted of heinous offences of rape, defilement and other sexual offences including beastiality. It was not fair to generalize and stigmatize LGBTIQ persons as the only ones who were prone or predisposed to commit the said offences. Every offender should be dwelt with as an individual.
  24. If a homosexual person committed an offence, he would be arrested and dealt with according to the law, so was a heterosexual. Section 162, 163 and 165 of the Penal Code were neither enacted to criminalize homosexuality nor the state of being homosexual otherwise it would have stated so. Those offences in the Penal Code could be committed by anybody their sexual orientation notwithstanding and to say it was only gays and lesbians who committed them was to subject them to differential treatment.
  25. Freedom of association where citizens were free to assemble and express their opinions in politics, religion and art was universally accepted as vital for a pluralist and open democratic society. The Board did not present any evidence to demonstrate that the evil that abound in the society, from corruption, to murders, rapes including within the families were brought about by LGBTIQ. Nor did the Board provide evidence to show persons who committed offences under sections 162, 163, and 165 of the Penal Code were LGBTIQ.
  26. The institution of marriage could not be threatened by an association of LGBTIQ; marriage was anchored in the Constitution and it was an institution that one entered out of choice. Moreover there were many people who entered it and left it, not because they were LGBTIQ; others entered marriage and choose not to procreate and others did not enter marriage at all and they were not LGBTIQ. There were people who were heterosexuals and they did not engage in sex of any kind out of choice, it was also possible there were homosexuals or LGBTIQ people who did not engage in sex also out of choice.
  27. As a defender of the human rights of the gay and lesbian community in Kenya, the 1st respondent had a right, as stated in the UN Declaration on Human Rights defenders and in accordance with the Constitution to form, join and participate in non- governmental organizations, associations or groups.
  28. It was arbitrary to speculate and categorize LGBTIQ as persons who had the propensity to destroy a society by contravening the provisions of the Constitution or the Penal Code, or as a group bent on ruining the institution of marriage or culture. Overturning the impugned judgment would undermine the gains made over the years in promoting, protecting and building a culture of respect and tolerance of differences that abound in the society.
  29. Allowing the appeal would be stereotyping people and expecting everybody to be the same size fits all. Kenyans were made from the same cloth but cut in different shapes and sizes. The Constitution was the equalizer, it allowed everybody to be and if some people were sinners, God would deal with them, no one could judge for Him. The Constitution was the ultimate guide and liberator from the shackles of all kinds of discrimination. Its bold provisions also domesticated the international human rights law which could be called to aid in the event of a gap within Kenya’s own indigenous and rich jurisprudence.

     

    Per Asike Makhandia, JA (concurring)

  30. Article 1 of the Universal Declaration of Human Rights (UDHR) was in the context of the instant case apt. It recognized that all human beings were born free and equal in dignity. Thus, stripping someone of their dignity stripped off their essence of being a human being. Dignity since the beginning of the era of human rights had become the foundation of all other rights. It amounted to the recognition that the sole purpose for protecting, promoting and fulfilling human rights was the acknowledgement that all human beings had to be accorded respect.
  31. The concept of dignity for all men and women involved the development of opportunities which allowed people to realize full human potential within positive social relationships. It was the quest for dignity, equality and equal recognition and protection before the law that made the 1st respondent to file the petition.
  32. Pursuant to rule 29(1)of the Rules of the Court, an appeal to the Court from a trial by the High Court was by way of a retrial except that the Court had not had the opportunity of seeing and hearing the witnesses. Just like in a retrial, the appellate court was required to reconsider the evidence on record, evaluate itself and draw its own independent conclusions.
  33. The applicable provision was regulation 8 of the Regulations on approval of names as opposed to part III of the Act that dealt with the process and requirements for registration of NGOs. That was because the 1st respondent did not get an opportunity to make an application for registration of his proposed NGO to the Board. All he did was to apply to reserve the name of his proposed NGO.
  34. The Board placed reliance on regulation 8(3)(b)(ii) of the Regulations and advised the 1st respondent that the names sought to be reserved for the registration of the proposed NGO were not acceptable in the opinion of the Director. There was nothing in the Regulations that provided an aggrieved applicant a right to appeal a decision made in terms of regulation 8(3)(b)(ii) for refusal of a name by which an organization could be registered.
  35. Article 165 of the Constitution provided that the High Court had the jurisdiction to interpret the Constitution and determine a claim for the enforcement of fundamental rights and freedoms. The appellant’s officers advised the 1st respondent to seek the guidance of the court on whether the appellant could allow LGBTIQ associations to enjoy Government recognition on an equal basis with other associations through registration. The Minister did not have the power to enforce the Constitution or interpret whether any conduct was in violation of the Constitution. The respondent, in any event, was entitled to seek remedy that was efficacious and pursuing an appeal to the Minister would not have afforded the 1st respondent such remedy. Therefore the petition was properly before the High Court.
  36. The instant appeal was not about sexual orientation and whether or not sexual orientation was innate or not. The High Court did not get into that arena of determining whether or not being LGBTIQ was an innate attribute. The instant Court did not propose to get in there as well.
  37. Article 36 of the Constitution guaranteed freedom of association, it extended to every person’s right to form an association of any kind. That right could only be limited in terms of law to the extent that the limitation was reasonable and justifiable in an open and democratic society as provided for in article 24(1) of the Constitution. Subject to the limitations, a person’s rights under article 36 extended to all human beings without discrimination, whatever their ethnicity, religion, sex, place of origin or any other status such as age, disability, health status, sexual orientation or gender identity.
  38. Article 36 extended to all individuals and juristic persons and sexual orientation did not in any way bar an individual from exercising his right under article 36 of the Constitution. The State had an obligation to refrain from interfering with the formation of associations and there had to be mechanisms that allowed citizens to join without State interference in associations to enable them attain various ends.
  39. By refusing to accept the names for the proposed NGO, the appellant violated the 1st respondent’s freedom of association. It did not matter the views of the appellant that the name of the association was not desirable. In a society as diverse as Kenya, there was need for tolerance. The preambular provisions in the Constitution acknowledged the supremacy of the Almighty God of all creation.
  40. The Constitution recognized the right of persons to profess religious beliefs and to articulate such beliefs including the belief that homosexuality was a taboo that violated the religious teachings. However, the Constitution did not permit the people who held such beliefs to trod on those who did not or subscribed to a different way of life. They too had the right not to hold such religious beliefs. It could not therefore be proper to limit the freedom of association on the basis of popular opinion based on certain religious beliefs that the Board believed amounted to moral and religious convictions of most Kenyans. The Bible and Quran verses as well as the studies on homosexuality relied on by the appellant would not help its case. Religious texts were neither a source of law in Kenya nor formed the basis for denying fundamental rights and obligations.
  41. The decision of the appellant to refuse to accept the proposed names of the NGO, amounted more to a statement of dislike and disapproval of homosexuals rather than a tool to further any substantial public interest. A constitution was to some extent founded on morals and convictions of a people, however a constitution was not founded on division and exclusion.
  42. The instant case did not concern in any way article 45 of the Constitution. It had to be understood that the 1st respondent only sought to exercise his freedom to associate in an organization recognised by law.
  43. In any democratic society, there would always be a marginalized group incapable of protecting their rights through the democratic process. Once a society understood there were people, whose sexual orientation was different from the norm and human rights belonged to all persons by virtue of them being human beings, it would be easier to respect their fundamental rights and freedoms.
  44. The Bill of Rights was not meant to protect only the individuals that were liked and left unprotected those found morally objectionable or reprehensible. In any case, article 10 of the Constitution obliged the Court to protect the marginalized.
  45. The appellant had not been able to prove that the alleged objects of the proposed NGO were not in accordance with the law.Accordingly, the 1st respondent’s right to form an association could only be limited within the parameters provided for in article 24 of the Constitution. The provisions of section 162 and 165 of the Penal Code did not criminalize the state of being homosexual but sexual acts that were against the order of nature. Section 162 and 165 of the Penal Code did not prevent people to form an association based on their sexual orientation.
  46. The appellants had misapprehended the law in determining that sections 162 and 165 of the Penal Code criminalised gays and lesbians’ liaisons and therefore should not allow such persons to register an association. There was no connection between the activities prohibited by section 162 and 165 and the request by the 1st respondent to register an LGBTIQ organization that would promote the rights of people who belonged to that community. There was no law that limited the freedom of association. Therefore there was no need to undertake an inquiry on the remaining criteria established under article 24 of the Constitution.
  47. Article 27 (4) of the Constitution did not include sexual orientation as a prohibited ground of discrimination. The word ‘including’ in article 27(4) was not exhaustive of the grounds listed there. Article 259(4) (b) of the Constitution defined the word ‘including’ as meaning included, but was not limited to. In the circumstances, the High Court was not guided by the South African Constitution that included sexual orientation as a prohibited ground. A purposive interpretation of the grounds listed in article 27(4) was to the effect that they were not exhaustive. The Court would therefore have to determine on a case to case basis other grounds that could form part of article 27(4) whenever called upon to.
Per Nambuye, JA (dissenting)
  1. The mandate of the Court was to re-appraise; re-assess and re-analyze the evidence on record and arrive at its own conclusions on the matter and give reasons either way. The Court should be slow in moving to interfere with a finding of fact by a trial court unless it was satisfied that it was not based on evidence, or it was based on a misapprehension of the evidence or the trial court had been shown demonstrably to have acted on a wrong principle in reaching the finding it did.
  2. Jurisdiction was everything; without jurisdiction, a court had no mandate to proceed further with the determination of any matter before it. Where the issue of jurisdiction was raised, it had to be determined first and once a court came to the conclusion that it had no jurisdiction, it had to down its tools. Jurisdiction was donated either by a charter, constitution or legislation. Therefore, parties had no mandate to confer jurisdiction on a court where non-existed.
  3. Section 14 of the Act was the substantive provision governing refusal of registration of an NGO. It only talked of three instances when the Board could refuse registration. Regulation 8(3) of the Regulations dealing with refusal of registration of an NGO under the Act was the one whose applicability was interrogated by the Board. There was no other provision donating power to the Director to act under section 14.
  4. Absence of a specific provision in the Act donating distinct functions to the Director as opposed to those mandated to the Board on the one hand, and absence of regulation(s) under which the Board, could discharge its functions under section 14 of the Act, independently of that donated to the Director under regulation 8(3) of the Regulations, the only plausible inference that could be drawn was that, the action of the Director under regulation 8(3) fell under section 14 of the Act. They were therefore functions discharged under section 5 of the Act on behalf of the Board by the Director in his capacity as the executive officer of the Board. They were therefore amenable to the section 19(1) (2) & (3) of the Act procedures.
  5. The words ‘any organization’ in section 19 of the Act referred to organizations that fell for registration under the Act namely NGOs. What was on record was the 1st respondents request for the registration of an NGO, that therefore fell into the definition in section 2 of the Act. What were in contest were the names and objectives of the proposed NGO. There was therefore nothing constitutional in issue as at that point in time. The constitutional issues only arose in the petition after the 1st respondent’s request for the registration of the proposed NGO was turned down severally by the appellant.
  6. The genesis of the 1st respondent’s petition was a purely administrative action executed by the Director on behalf of the Board declining registration of the 1st respondent’s proposed NGO with no constitutional underpinnings at that point in time. It was therefore amenable to section 19 of the Act which procedures ought to have been invoked and exhausted before seeking the court’s intervention, notwithstanding, the undisputed constitutional mandate bestowed on the High Court. It was therefore tainted and had the High Court properly construed and applied the cited provisions, it would have downed its tools on account of the petition being premature, rerouted the 1st respondent to exhaust the procedures under section 19 of the Act before seeking a judicial pronouncement on the constitutional issues raised in the petition.
  7. The issue of the appellant’s failure to notify the 1st respondent of a right of appeal upon rejection of his request for registration of the proposed NGO did not arise as none was provided for either in the Act or in the Regulations.
  8. The High Court bore in mind the correct threshold in the interpretation of the constitutional provisions they were called upon to interpretIssues as to whether being an LGBTIQ was or otherwise was never interrogated by the High Court, therefore the Court steered clear of it. However, the meaning to be ascribed to the word “person” should be as defined in article 260 of the Constitution. All human beings, subject to the Kenyan constitutional prescriptions were entitled to protection of the constitutional guarantees enshrined therein but subject to limitations provided for under the law.
  9. Article 36 of the Constitution enshrined the right to freedom of association; the same was guaranteed to every person. It was a right to form, join and participate in the activities of an association of any kind whose registration could not constitutionally be refused, rejected or withheld arbitrarily or unreasonably, save that such withdrawal or withholding of registration was subject to the right of fair hearing.
  10. Articles 20 of the UDHR and 22 of the ICCPR were properly applied to the proceedings pursuant to the provision of article 2(5) and 2(6) of the Constitution as Kenya had ratified both of them. The construction and application of those provisions as carried out by the High Court was in order as those instruments also provided that they applied to all persons. The word “person” used in the said instrument carried the meaning ascribed to it in article 260 of the Constitution. The right to associate was not selective and it applied to everyone, save that the enjoyment of the same was subject to the limitation provided for in the law of the land.
  11. The duty of the Board was to act in accordance with the constitutional mandate bestowed upon it; what the 1st respondent sought to champion through the proposed NGO was the right to associate and not the right to champion criminal activities.The High Court ought to have made a definitive determination as to whether the acts provided for in sections 162,163 and 165 of the Penal Code fell into the sexual orientation category or not because that had been the borne throughout the proceeding both before the High Court and the Court.
  12. Kenya as a society, if it were to recognize that LGBTIQ persons were human beings. However, reprehensible the Board found their sexual orientation, it would be obligated to accord them human rights which were guaranteed by the Constitution by virtue of their being human beings in order to protect their dignity. Such according of human rights had to be within the limits permitted for either by the Constitution itself for the law. Such a protection fell for rights either crystalized or entrenched in the Constitution or laws made thereunder.
  13. The right of association guaranteed to the 1st respondent under article 36 of the Constitution was not absolute, it could be limited. The test for limitation being;
    1. that the limitation was by law,
    2. that such limitation though by law had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom,
    3. that such limitations had to take into consideration all the relevant factors namely the nature of the right, purpose of the limitation and the nature and extent of the limitation,
    4. the need to ensure that the enjoyment of rights and fundamental freedoms by an individual did not prejudice the right and fundamental freedoms of others,
    5. the need to examine closely the relation between the limitation and its purpose, and whether there were less restrictive means of achieving that purpose,
    6. in the case of the limitation by statute, there had to be an express intention to limit that right or fundamental freedom and the nature and extent of the limitation. There was also the need for the provision to be clear and specific about the right and or freedom to be limited and the nature and extent of such limitation. Further such limitation had to ensure that there was no derogation from the core and essential content of the legislation. There was also an obligation placed on the party wishing to limit the right to sufficiently demonstrate to the court or tribunal or some other authority that the requirement of article 24 of the Constitution had been complied with.
  14. Sexual orientation was not one of the exceptions to limitation of rights under article 27(4) of the Constitution. Although, the guiding principle on interpretation was that it should favour the enjoyment of the right, such enjoyment had to be within the limits permissible in law. That meant that non-discrimination on account of sexual orientation could only be accorded and enjoyed on condition that what sexual orientation meant and what people who believed in it, practiced, did not fall within the acts prohibited in sections 162, 163 and 165 of the Penal Code. Enjoyment of the right of non-discrimination on account of sexual orientation, would only be dependent on a clear definition as to whether sexual orientation fell into the category of conduct against the order of nature legislated against in the aforesaid Penal Code provisions.
  15. The High Court failed to distill the values of the freedom of religion guaranteed in article 32 of the Constitution and how those were either distinct or interfaced with those enshrined in article 10 of the Constitution before discounting their application to the issues in controversy.
  16. The High Court laid basis that the provision on the interpretation of the Constitution, advocated for an interpretation that favoured the enjoyment of the right or fundamental freedom sought to be protected or enforced. It was however, necessary for the High Court to provide a basis for holding that the persons whose rights the 1st respondent sought to champion through the proposed NGO, fell into the category of the vulnerable within the context of the Kenyan society. In the absence of such demonstration, the appellant could not be faulted for holding the view that the LGBTIQ group did not fall into the category of the vulnerable in the context of the Kenyan society, but in the context of persons whose attributes were outlawed under the Penal Code.
  17. The right of non-discrimination enshrined in article 27(4) of the Constitution applied to everyone and although sexual orientation was not explicitly indicated therein as a ground for non-discrimination, it could be read into those other categories by applying the word ‘includes’.
  18. The word “includes”, in article 27(4) of the Constitution could be construed and applied to include sexual orientation as one of the categories for non-discrimination; save that, that was subject to the High Court making a definitive finding that sexual orientation, on the basis of which they had crystalized the right of association in favour of the LGBTIQ persons in Kenya, through a judicial pronouncement as one of the elements for non-discrimination under article 27(4) did not fall into the category of acts prohibited under sections 162, 163 and 165 of the Penal Code, namely, conduct against the order of nature.
  19. Protection of a right or fundamental freedom was dependent on either an entrenchment of such a right in the Constitution or through legislation. The Constitution itself had provided for methods for such an entrenchment. Articles 255 (2) of the Constitution made provision for an amendment to the Constitution through a referendum, article 256 of the Constitution through legislation and article 257 of the Constitution through popular initiative. None of those covered a judicial pronouncement. The issue as to whether sexual orientation fell into the elements for non-discrimination enshrined in article 27(4) of the Constitution had to be put to the Kenyan people through any of the stated methods with a view to entrenching it in the Constitution in order for it to crystalize the right accorded to the 1st respondent by the impugned judgment. Short of that, it only amounted to an aspirational right.

    Per D K Musinga, JA(dissenting)
  20. The rejection of the proposed name was not purely administrative and was a Board decision contemplated under part III, section 19(1) of the Act, against which an appeal lay to the Minister. Part III of the Act dealt with registration and licensing of NGOs. Part III of the Regulations under which regulation 8(3)(b) fell dealt with registration and exemption from registration of NGOs. The first step towards registration of an NGO was submission of its proposed name to the Director who was a member of the Board and by virtue of section 5(1) of the Act was responsible for the day to day management of the business of the Board. In rejecting the proposed name the Director did so for and on behalf of the Board. That was why the Board was sued.
  21. Section 10(2) of the Act, which fell under part III, stipulated that applications for registration of proposed NGOs be submitted to the Director, also known as the executive director of the Bureau, which was defined as the executive directorate of the Board. Section 19(1) of the Act required any person aggrieved by a Board decision under part III of the Act, which was about registration and licensing of NGOs, to appeal to the Minister. Part III of the Act had to be read together with part III of the Regulations which also dealt with registration and exemption from registration of NGOs.
  22. Regulations and statutory rules, which were part of statutory instruments as defined under section 2 of the Statutory Instruments Act, 2013, were the most common form of delegated legislation. Regulations and/or statutory rules contained many administrative details that were necessary for operationalisation of an Act of Parliament. The Interpretation and General Provisions Act required all statutory instruments to conform to the Act in regard to construction, application and interpretation. Therefore, the High Court erred in holding that the 1st respondent could not appeal to the Minister since the Regulations did not prescribe any internal remedy.
  23. There was no evidence that the Board ever advised the 1st respondent to move to court to challenge its decision, instead of appealing to the Minister. The 1st respondent stated that it was a legal officer, who suggested that he should seek guidance from the court on the issue of registration. But even if it was the Board that had so advised, such advice could not contravene the provisions of the Act or confer jurisdiction upon the High Court, until the prescribed internal dispute resolution mechanisms had been exhausted.
  24. In the matter that was before the High Court, the 1st respondent did not seek any exemption from the requirement to first exhaust the internal dispute resolution mechanism provided under the Act. The High Court, without any application, assumed jurisdiction on the basis that the issues raised in the petition were of significant public importance requiring authoritative judicial guidance. That could as well have been the case, but it did not mean that the statutory provisions for challenging the Board’s decision could be disregarded with impunity.
  25. To the extent that the 1st respondent was well aware of, but did not comply with the mandatory provisions of section 19(1) of the Act which required him to appeal the Board’s decision to the Minister, whose decision was then appealable to the High Court as stipulated under section 19(3) of the Act, the High Court should have directed the applicant to first exhaust the statutory remedy. In that regard, the High Court had no jurisdiction to entertain the petition. A decision arrived at by a court that lacked jurisdiction was a nullity, even if the court would have arrived at the same decision had it determined the dispute procedurally and at the right time.
  26. Section 162 of the Penal Code addressed itself to unnatural offences and prescribed lengthy custodial sentences to any person who committed such an offence. Section 163 of the Penal Code criminalized attempts to commit unnatural offences while section 165 of the Penal Code prohibited indecent practices between males. The appellant’s rejection of the proposed names was for the reason that the proposed names were inconsistent with the written law. Unless and until the said sections of the law were finally declared unconstitutional they remained part of Kenya’s penal laws and had to be observed accordingly.
  27. For as long as sections of Kenya’s penal law outlawed homosexuality and lesbianism, it would be unlawful to promote and give succor to any process or registration of any organization that could undermine the law. The law granted discretionary power to the Director to accept or reject a proposed name, it was not demonstrated that the Director exercised that jurisdiction in an injudicious manner.
  28. Whether sodomy and lesbianism should be decriminalized or not was a very emotive issue that conjured deep seated constitutional, moral and religious ideologies. They were issues that at best, ought to be left to the people to decide, either directly through a referendum or through their elected representatives in Parliament, which manifested the diversity of the nation and represented the will of the people and exercised their sovereignty.
  29. The appellant did not discriminate against the gay and lesbian community in rejecting the proposed names. Freedom of association that was guaranteed under article 36 of the Constitution was not absolute. It could be limited in terms of article 24(1) of the Constitution.
  30. Sexual orientation simply referred to a person’s sexual identity or self-identification; in other words, the inclination of an individual with respect to heterosexual, homosexual and bisexual behaviour. There was scientific literature that showed that sexual orientation, as opposed to a person’s gender, was not fixed but fluid. Sections 162, 163 and 165 of the Penal Code referred to acts or offences that were committed by persons out of their preferred unnatural sexual orientation, and that was why they were referred to as unnatural offences.
  31. Article 27(4) of the Constitution prohibited discrimination on the basis of a person’s sex (gender), not sexual orientation. There was a reason for the distinction. Other than gay and lesbian liaisons, there were other sexual orientations that were not permitted by Kenya’s law, for example paedophilia, that was, sexual attraction towards children.
  32. The definition of sexual orientation according to Yogyakarta principles was quite different and unacceptable in Kenya. The Yogyakarta principles, a set of principles relating to sexual orientation and gender identity, defined sexual orientation as being understood to refer to each person‘s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
  33. Kenya’s law did not permit homosexual and lesbian sexual practices, just as it outlawed sexual escapades between adults and children. It would be unthinkable, for example, for paedophiles to argue that they were entitled to freedom of association without discrimination on the basis of their sexual preferences and therefore demand registration of, for example a paedophiles human rights protection association. The appellant would not be right if it were to permit registration of such NGO.
  34. The freedom of association of gays and lesbians in Kenya could lawfully be limited by rejecting registration of a proposed NGO, as long as Kenya’s laws did not permit their sexual practices. There were instances where the law permitted positive constitutional or statutory discrimination, for example, prohibition of child adoption by homosexual couples. Gender identity and sexual orientation were two different concepts.
  35. Just like the freedom from discrimination and other constitutional rights, all rights or fundamental freedom, including freedom of association, were subject to the extent authorized by the Constitution or other written law. A democratic society was governed by laws. Kenya’s laws were based on the moral principles of Kenya’s society and had to be respected. It could not be right that every person, including persons whose practices were not permitted by Kenya’s laws, had unbridled right to form an association of whatever nature.
  36. The words every person in article 36 of the Constitution in their proper context had to be taken to mean the right of any sane, law-abiding adult to form, join or participate in the activities of a lawful association that accorded with Kenya’s Constitution and other laws. The appellant was not obliged to accept a name that it truly believed was repugnant to or inconsistent with the law.The proposed NGO had to have objectives that were not illegal according to any law.
  37. The Kenyan Constitution protected family and Kenyan culture. There was a lot of pressure exerted from within and without to disregard some of Kenya’s constitutional, moral, religious and cultural values and embrace practices that were seen as more trendy, progressive and modern, all in the name of protecting constitutional liberties. There was a danger in so doing. As a sovereign nation, the Constitution came after many years of agitating for it and was subjected to a referendum. The values and principles that it espoused had to be respected.
  38. The Judiciary should act very circumspectively whenever it was called upon to pronounce itself on an issue that was argued, debated and eventually voted upon by millions of Kenyans. One such issue was that of the family, which was covered by article 45 of the Constitution. The Constitution recognized the family as the natural and fundamental unit of society and the necessary basis for social order. It was therefore recognized and protected by the State. The Constitution further recognized the right to marry a person of the opposite sex. By implication, any association that did not promote family values went against the spirit of article 45 and it was appropriate for the appellant to reject its registration.
Appeal dismissed, each party to bear own costs.
Kenya Law
Case Updates Issue 012/2019
Case Summaries

EMPLOYMENT LAW Court awards Kshs. 5, 000, 000/= for an early retirement claim in which retirement was done on the basis of a discriminatory policy.

Geeta Joshi v Pandya Memorial Hospital
Cause 190 of 2016
Employment and Labour Relations Court at Mombasa
January 31, 2019
L Ndolo, J
Reported by Beryl Ikamari

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Employment Law-termination of an employment contract-unlawful termination of an employment contract-early retirement-claim that an employee was retired at the age of 55 in accordance with a policy that female employees would retire at 55 years of age-whether the termination of the employment contract was unlawful and discriminatory.
Constitutional Law-fundamental rights and freedoms-equality and freedom from discrimination-claim that an employee was retired at the age of 55 in accordance with a policy that female employees would retire at 55 years of age-whether the decision to retire the employee was discriminatory-Constitution of Kenya 2010, article 27; Employment Act 2007, section 5(3).

Brief facts:
The claimant was employed by the respondent on March 26, 1990 as a laboratory technologist and was later appointed to the position of laboratory superintendent. Her employment was terminated by way of retirement on December 31 2015.
On February 28, 2014, the respondent's laboratory administrator wrote to the claimant asking her to respond to allegations of disclosing confidential information to an unauthorized person. In a response made on March 4, 2014, the claimant asked for a meeting to air her grievances. On March 31, 2014, the claimant received a letter revoking her appointment as a laboratory superintendent and on the same day a new laboratory superintendent was appointed. On July 11, 2014, the claimant was instructed to vacate the respondent's residential premises.
The respondent's chief administrator wrote to the claimant on March 25, 2015 notifying her that she would retire at the age of 55 as the respondent's policy was that female staff retired at that age. The respondent was aggrieved by the decision and stated that she was retired early without her consent on the discriminatory basis of being a female employee. At the Employment and Labour Relations Court, she made a claim for monetary compensation including compensation amounting to Kshs. 6, 000, 000/= for discrimination and unfair labour practices.

Issues:

  1. Whether the claimant’s employment contract was unlawfully terminated by way of early retirement.
  2. Whether the termination of the claimant’s employment contract, on the basis of a policy that female staff retired at the age of 55 years, amounted to discrimination.
  3. What remedies was the claimant entitled to? Read More..

Held :

  1. It was evident that the claimant's employment with the respondent was terminated through retirement. Retirement had to done in accordance with the law. The retirement notice sent by the respondent to the claimant showed that the retirement age of 55 years was applied specifically to female staff. That meant that male staff had a different retirement age. Application of a retirement age of 55 years to female staff only violated the right to equality and freedom from discrimination as recognized in article 27 of the Constitution and section 5(3) of the Employment Act.
  2. Section 5(6) of the Employment Act provided that the burden of disproving an allegation of discrimination lay with the employer. Therefore, the respondent was obligated to prove that the retirement notice issued to the claimant was not discriminatory and particularly that it did not discriminate against her on the basis that she was female. The respondent did not produce a policy document to the contrary nor did it call a witness to dispel the allegations of discrimination.
  3. By retiring the claimant at the age of 55 years, the respondent subjected her to discrimination on the ground of gender and she was entitled to damages. The claimant's retirement amounted to unlawful and unfair termination.
  4. The claimant was entitled to 12 months salary compensation for unlawful and unfair termination. The considerations related to that compensation were the claimant's long service with the respondent as well as the respondent's conduct in the retirement process.
  5. The claimant was entitled to damages for discrimination. The claimant's career in a high skill technical area had been cut short by the respondent's decision to retire her early. She was unable to find alternative employment and she had been jobless for three years at the time of the conclusion of the hearing. Additionally, the respondent had not paid terminal dues to the claimant. Considering that, an award of Kshs. 5, 000, 000/= as damages for discrimination was appropriate.
  6. In a letter dated January 27, 2014, the respondent undertook to pay the claimant Kshs. 40, 000/= for laboratory superintendence duties for the year starting from January 1, 2014 to December 31, 2014. The amount was therefore due and payable to the claimant.
  7. The claimant was entitled to her final dues as tabulated by the respondent in January 27, 2016. However, no basis was laid for the claims for lost earnings and unpaid royalties.

Judgment entered in favour of the claimant against the respondent.
Orders:-

  1. 12 months’ salary in compensation - Kshs. 521,400/=. Damages for discrimination - Kshs.5,000,000/=. Allowance for lab superintendence duties in 2014 - 40,000/=. Final dues as tabulated by the Respondent - Kshs. 354,037/=. Total - 5,915,437/ =
  2. Interest at court rates from the date of the judgment until payment in full.
  3. Certificate of service.
  4. Costs.
TORT LAW An award of 14 Million made for a claim for loss of earning under the Occupiers Liability Act and the Occupational Safety and Health Act

Beatrice Anyango Okoth v Rift Valley Railways (Kenya) Limited & another
Civil Suit 450 of 2011
High Court at Mombasa
P J O Otieno, J
December 6, 2018
Reported by Chelimo Eunice

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Tort law-occupiers liability- where an occupier was liable to every person who entered the premises, whether by invitation or otherwise, for injury suffered out of breach of common duty of care-what was the test for occupiers liability-where it was alleged that the track was not clear for all port users and that there were neither markings nor warnings at the yard where the accident occurred- Occupiers Liability Act, section 3; Occupational Safety and Health Act, section 18.
Civil practice and procedure-damages-damages for diminished earning capacity-when to award damages for diminished earning capacity- damages for diminished earning capacity differentiated from damages for loss of earning capacity-how to assess damages for diminished earning capacity- relevant factors to be taken into account in assessing damages for diminished earning capacity.

Brief Facts:
On 29/01/2011, the plaintiff was lawfully present at the Port of Mombasa carrying out her duties as a port clerk when a train operated by the 1st defendant knocked her occasioning to her bodily injuries leading to a consequent computation of both lower limbs. The plaintiff blamed both defendants for negligence and breach of statutory duty which led to her injuries and resultant damages. The defendants denied the pleadings and invited the plaintiff to strict proof.

Issues:

  1. What were the factors to consider when assessing lost or diminished earning capacity and when were they awarded?
  2. Whether the multiplier was the only approach applied by courts in assessment of damages.
  3. Whether special damages would only be strictly proved by receipts and/or documents.
  4. What amounted to occupiers liability and what was its’ test?Read More...

Held:

  1. Within the yard, the grounds were concreted and rail track laid on the concrete hence the train movement was smoother. There might not have been pronounced noise or vibrations occasioned by the train movement as would be if the ground was of natural earth or paved on loose gravel or ballast. The port was not a serene environment and unruffled environment that would enable a person preoccupied with the task of reading number printed on containers to easily appreciate the movement of a train unless it was approaching from her view side. However, the plaintiff was also not a newcomer to the port. She had worked there for some three or so years. She ought to have been conversant or just expected to be conversant with the fact that there were rail tracks used by trains. With such knowledge and even with the congestion with stacked containers she needed to have steered clear of the track. Had she done so she would not have been injured. The plaintiff had a share of the blame and contributed to the accident. Her contribution had to be weighed against those by the defendants.
  2. There was at least one point’s man who stopped the train driver after the event. Whether there was a point’s man who did not do his duty or whether there was never a point’s man, there was an unreasonable conduct for which the 1st defendant was liable. If there was no point’s man, the evidence was direct upon the 1st defendant for allowing its train to be moved blindly. If, however, there was a point’s man on duty, then he did not discharge the duty of a point’s man as regards warning the train driver of the presence of the plaintiff at the point of being knocked and crushed. He failed on his duty to direct the driver.
  3. In failing to notice the presence of the plaintiff near the railway line and warning her or the driver of eminent collision was the negligence that led to the collision and therefore the plaintiff’s injuries and damage. A reasonable person deployed and detailed to direct a driver of a train, pushing wagons extending some 240 feet long, in the circumstances revealed by evidence should have acted otherwise and better. His action led or just misled the driver to drive blindly and thereby occasioned the accident and injury. All, having been in the employment of the 1st defendant executing their duties as such employees and within the scope of authority made their employer, 1st defendant, vicariously liable.
  4. The track was operated by the 2nd defendant, who was the occupier of the premises where the injury occurred, but used by the 1st defendant. By virtue of section 3 of the Occupiers Liability Act, an occupier was liable to every person who entered the premises, whether by invitation or otherwise, for injury suffered out of breach of common duty of care. The test of whether an occupier had met his duty or breached same was dependent on whether the visitor had been warned of the danger but the occupier was absolved from liability if the visitor willingly assumed the risk.
  5. The track needed to be clear for all port users to obviate the danger of being knocked by moving trains. On the day of the accident, containers were stacked very high and close to the line thereby necessitating that those seeking to identify and verify container work close to the track. That showed that the 2nd defendant did not meet his duty under sections 3 Occupiers Liability Act as well as section 18 of the Occupational Safety and Health Act.
  6. There were neither markings nor warnings at the yard where the accident occurred. Thus, even the 2nd defendant was in infringement of the duty owed to the plaintiff, thus both defendants were liable to the plaintiff equally. Each of the parties contributed to the accident. The plaintiff contributed by being too close to the rail track but that was necessitated by unsafe and risky environment created by the 2nd defendant’s breach of statutory duty and aggravated by the 1st defendant’s employees’ act of moving the locomotive blindly. 20% of the liability apportioned to the plaintiff and to the defendants 80% jointly and severally.
  7. Comparable injuries ought to attract comparable awards. The injuries suffered by the plaintiff as pleaded and proved were very grave and debilitating with life- long physical disability and thus loss of amenities of life. The plaintiff was in hospital admitted for a considerable period of time and that the plaintiff was unlikely to continue leading the life she led before the accident. While noting that money could not restore a battered and shattered human body, the incidence of inflation all around, the plaintiff was awarded a sum of Kshs 6,000,000 for pains suffering and loss of amenities.
  8. Damages for diminished earning capacity were awarded where it was proved that owing to the injury suffered by the plaintiff, her chances of getting a job in the labour market comparable to the one she held before the injury were diminished or just lowered. It ought to be differentiated with loss of earning capacity which occurred where chances of earning were literally erased.
  9. The plaintiff, as a port clerk, her work entailed moving around. With the use of bank statements and payment made for rent and school fees, it was sufficiently proved that the plaintiff was gainfully employed. With the injury, that kind of engagement as means to earn livelihood was curtailed. That, however, was not to say that she was totally unable to engage in any other gainful employment. Kenya was an equal opportunity economy where no discrimination was expected at any front and disability was thus not a disadvantage at seeking gainful engagement. However, the plaintiff made a voluntary and conscious choice to be a port clerk which she might be unable to engage in after the accident. Thus, the plaintiff’s inflicted disability had the effect of reducing her earning capacity.
  10. To assess loss of earning capacity in the future, courts had to consider to what extent the claimant’s ability to earn income would be affected in the future and for how long that restriction would continue. The traditional approach adopted by courts when calculating a claim for future loss was to assess what lump sum was needed to compensate the claimant for the future loss. The starting point in that calculation would be to determine what annual net loss the claimant would incur in the future (the multiplicand), which was the annual loss of earnings. The multiplicand would then be multiplied by a multiplier. The multiplier was assessed having regard to the number of years between the date of the settlement and the date when the loss stopped.
  11. According to the bank statements produced, the plaintiff had money flow into her account. The flow showed a steady growth. While taking an average for the entire period of banking shown in the bank statements might not be the most accurate formula to determine the monthly income, that alone should not be the basis to conclude that ascertaining a monthly income was difficult and therefore the Court was unable to assess the damage. On the same vein the multiplier approach was just but one aid the Court applied in assessment of damages. It was not the only one. The Court would be properly entitled to make a global award because there was a general agreement in decisions rendered by courts that there was no formula for assessing damages for lost or diminished earning capacity provided courts take into account relevant factors.
  12. The fact that the plaintiff had been rendered legless for life, her age at the time of accident and therefore the period she had been consigned to live with reduced mobility, her qualification at the time and that she might not effectively fit back into the job of a port clerk, were relevant factors to be taken into account. Taking into account the fact that for diminished earning capacity was essentially a general damage component, the Court awarded Kshs 2,500,000 for diminished earning capacity.
  13. While the law was that special damages had to be strictly proved, that requirement was intended to do justice between the parties and never to defeat the ends of justice. Strict proof did not mean proof by receipts only. Having seen the plaintiff on a wheelchair, the Court was convinced that she bought it and awarded her Kshs 30,000 for two wheelchairs as pleaded.
  14. The plaintiff had the need for a caregiver and a person to help with her chores. That there was no documentary evidence did not negate the plaintiff’s need and the need to do justice to her and between her and the defendants. It was not entirely correct that only documentary evidence could prove those things. A sum of Kshs 15, 000 per month was not too high for salary to a caregiver, who also doubled up as a driver. However, in awarding a sum under the heading, regard was taken of the fact that an award for artificial limbs said to be able to ameliorate the plaintiff’s ability to move had been made. Once fitted, the plaintiff would be trained or train herself on how to drive using the prosthesis .Damages were intended to compensate and not to enrich. Multiplier was fixed at 14 years rather than the remainder of the plaintiff’s life expectancy. Thus, the damages were:- 15,000 X12 X14= Kshs 2,520,000

Judgment entered for the plaintiff against the defendant jointly and severally for Kshs. 14,818,125, together with costs and interests.

Orders:

  1. The plaintiff bore 20% while each of the defendants bore 40% but on joint and several basis;
  2. General damages for pain, suffering and loss of amenities;Kshs. 6,000,000;
  3. General damages for diminished earning capacity; Kshs 2,500,000;
  4. Special damages:-
  5. a. Medical costs; Kshs 1,348, 582
    b. Artificial limbs and maintenance; Kshs 6,080,000
    c. Air ticket; Kshs 44, 075
    d. Cost of two wheelchairs; Kshs 30,000
    e. Cost of hiring a care giver; Kshs 2,520,000

    Total Kshs. 18,522,657
    Less 20% contribution Kshs. (3,704,531)
    Net due Kshs. 14,818,125

  6. Interest on special damages were to be calculated from the date of the suit will those on special damages from the date of judgment.
JURISDICTION The Supreme Court dismisses an application to determine whether or not a matter is of general public importance.

Kenya Civil Aviation Authority v African Commuter Services Ltd & another [2018] eKLR
Civil Application 7 of 2015
Supreme Court
Maraga,CJ & P, Ojwang, Wanjala, Njoki, Lenaola, SCJJ
Dec 7, 2018
Report by Sang Angela

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Jurisdiction– jurisdiction of the Supreme Court – review – jurisdiction of the Supreme Court to review a decision of the Court of Appeal with respect to certification of a matter for appeal to the Supreme Court – where the Court of Appeal had dismissed an application for leave to file an appeal to the Supreme Court –– whether the Supreme Court had jurisdiction to review a Court of Appeal’s decision declining certification that a matter was one of general public importance-Constitution of Kenya, 2010 article 163(4) (b); Supreme Court Rules, 2012, rule 24(1).
Jurisdiction– jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on matters of general public importance– prerequisites for a matter to be certified as one of general public importance–– whether the matters raised by the applicant were of general public interest and importance- Constitution of Kenya, 2010 article 163(4) (b).

Brief facts:
The applicant filed an Originating Motion before the instant Court contesting the decision of the Court of Appeal where it declined to grant a Certificate to appeal to the Supreme Court as contemplated under article 163(4) (b) of the Constitution.
The applicant thus sought certification that the matter was of general public importance in respect of the anticipated appeal arising from the judgment of the Court of Appeal.

Issues:

  1. Whether the Supreme Court had jurisdiction to review a Court of Appeal’s decision declining certification that a matter was one of general public importance
  2. Whether the matters raised by the applicant were of general public interest and importance as required by article 163(4)(b) of the Constitution Read More..

Relevant Provisions of the Law
Constitution of Kenya
Article 163(4) (b)
Appeals shall lie from the Court of Appeal to the Supreme Court—
(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).

Held:

  1. Where one applied to the Court of Appeal for leave to appeal to the Supreme Court, and the Party was not satisfied by the decision of the Court of Appeal, “no appeal” lay. The only course was for the party to apply for review of the matter to the Supreme Court. A party could go for review of the decision granting leave or denying leave. Hence, certification under article 163(5) had to be broadly read as alluding to certification by the Court that a matter of public importance was involved, or was not involved.Consequently, the instant Court had jurisdiction contrary to the 1st respondent’s assertion.
  2. The specific guiding principles for determining whether or not a matter was of general public importance included;
    1. the intending appellant was to satisfy the Court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest;
    2. where the matter in respect of which certification was sought raised a point of law, the intending appellant was to demonstrate that such a point was a substantial one, the determination of which would have a significant bearing on the public interest;
    3. such question or questions of law were to have arisen in the Court or Courts below, and must have been the subject of judicial determination;
    4. where the application for certification had been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
    5. mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, was not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, had to still fall within the terms of article 163 (4)(b) of the Constitution;
    6. the intending applicant had an obligation to identify and concisely set out the specific elements of “general public importance,” which he or she attributed to the matter for which certification was sought;
    7. determinations of fact in contests between parties were not, by and of themselves, a basis for granting certification for an appeal before the Supreme Court;
    8. issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis of certification for appeal to the Supreme Court;
    9. questions of law that were, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
    10. questions of law that were destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
    11. Questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance,’ justifying certification for final appeal in the Supreme Court.
  3. In light of section 5B of the Civil Aviation Act and Regulation 57(1) of the Air Navigation regulations, the Court of Appeal’s observation that the intended appeal did not raise an issue where the law required clarification was correct. The applicant had indeed not demonstrated the uncertainty that the Supreme Court would need to clear and clarify.
  4. The extent of the effect of non-compliance with the form of communication of the delegation of powers prescribed by legislation did not need any clarification as the effect of such non-compliance would vary depending on the facts of each case and the legislation not being complied with.
  5. The applicant had not demonstrated how a determination on when the 1st respondent’s license expired was of importance to the general public. The applicant had also not demonstrated how failure to mitigate damages by the 1st respondent comprised a matter of general public importance. The application failed to comply with the principles enunciated by the instant Court in the Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, [2012] eKLR.

Application dismissed.

CONSTITUTIONAL LAW Public officers are personally liable for wanton violation of the Constitution and the law

Miguna Miguna v Fred Okengo Matiang’i, Cabinet Secretary, Ministry of Interior and Coordination of National Government & 7 others
Constitutional Petition 51 of 2018
High Court at Nairobi
E C Mwita, J
December 14, 2018

Reported by Claris Njihia

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Constitutional Law-citizenship-qualifications to be met for one to become a Kenyan citizen- whether the petitioner met the qualifications provided under Chapter 3 of the Constitution of Kenya 2010 for purposes of becoming a Kenyan Citizen-Constitution of Kenya 2010, chapter 3.
Constitutional Law-citizenship-revocation of citizenship-circumstances under which citizenship would be revoked- whether a person could lose Kenyan citizenship acquired by birth-Constitution of Kenya, 2010, article 17.
Constitutional Law- fundamental rights and freedoms- right to dignity, freedom from torture, cruel, inhuman and degrading treatment, rights of an arrested person and right to property-claim that the petitioner was not produced in court within 24 hours of his arrest, that he was tortured and that explosives were used in attempts to forcibly enter his house and thereby damage was caused to his property-whether the Petitioner’s rights and fundamental freedoms as provided under chapter 4 of the Constitution 2010 were violated-Constitution of Kenya 2010, articles 28, 29, 40 & 49.

Brief facts:
On February 2, 2018, a group of police officers led by the 3rd, 4th and 5th respondents broke into the petitioner’s house at Runda Estate, Nairobi and arrested him. That was after they used explosives to gain entry into the premises. They drove off with the petitioner in a convoy of police cars and headed to Kiambu Police Station where the Petitioner remained for some time. They later moved him to Githunguri Police station before taking him to Lari Police station where he was held for several days. The petitioner was held incommunicado for most of the period he was in police custody and was subjected to torture; inhuman treatment; was made to stand for long periods and was only given food twice for the entire period under incarceration. He was later moved to the Internal Container Depot Police Station in Industrial Area Nairobi for another round of confinement before he was taken to Kajiado Law Courts with an intention to charge him. A plea was not taken after the Magistrate declined on learning that the petitioner’s issue was live before the High Court in Nairobi.
The petitioner was to be taken to the High Court but that did not happen and instead, he was taken to Jomo Kenyatta International Airport (JKIA) and deported to Canada because he had been declared a prohibited immigrant and his passport suspended by the 1st respondent on grounds that he was an unwanted person in the country and had to be deported out of the country. At the same time, National Resistance Movement (NRM) an organization he was said to be a member of was also declared an illegal organization.

Issues:

  1. Whether the petitioner was a citizen and met the qualifications for citizenship as provided under chapter 3 of the Constitution of Kenya 2010.
  2. Whether the 1st and 2nd respondents acted lawfully in declaring the petitioner a prohibited immigrant and suspending his passport.
  3. Whether the 1st and 2nd respondents had the mandate to declare the petitioner a prohibited immigrant and to suspend his passport.
  4. Whether the petitioner’s rights and fundamental freedoms as provided under chapter 4 of the Constitution 2010, particularly the right to dignity, rights of an arrested person, right to property and freedom from torture, cruel, inhuman and degrading treatment, were violated.
  5. Who bore the responsibility when public officers committed wanton violations of the Constitution and the law? Read More..

Relevant Provisions of Law
Constitution of Kenya 2010
Article 13-Retention and acquisition of citizenship
13. (1) Every person who was a citizen immediately before the effective date retains the same citizenship status as of that date.
(2) Citizenship may be acquired by birth or registration.
(3) Citizenship is not lost through marriage or the dissolution of marriage.

Article 14- Citizenship by birth
14. (1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
(2) Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen
(5) A person who is a Kenyan citizen by birth and who, on the effective date, has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship.

Article 15-citizenship by registration
15. (1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. (2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen. (3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen. (4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries. (5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date.

Article 16-Dual Citizenship
A citizen by birth does not lose citizenship by acquiring the citizenship of another country.

Article 17-revocation of citizenship
17. (1) If a person acquired citizenship by registration, the citizenship may be revoked if the person––

(a) acquired the citizenship by fraud, false representation or concealment of any material fact;
(b) has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war;
(c) has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer; or
(d) has, at any time after registration, been convicted of treason, or of an offence for which––

(i) a penalty of at least seven years imprisonment may be imposed; or
(ii) a more severe penalty may be imposed.

(2) The citizenship of a person who was presumed to be a citizen by birth, as contemplated in Article 14 (4), may be revoked if––

(a) the citizenship was acquired by fraud, false representation or concealment of any material fact by any person;
(b) the nationality or parentage of the person becomes known, and reveals that the person was a citizen of another country; or
(c) the age of the person becomes known, and reveals that the person was older than eight years when found in Kenya.

The Constitution of Kenya, Revised edition 2008(2001)
Section 87-Persons who become citizens on 12th December,1963
87*. (1) Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963: Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.
(2) Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.

Section 89-persons born in Kenya after 11th December,1963
89. Every person born in Kenya after 11th December, 1963 shall become a citizen of Kenya if at the date of his birth one of his parents is a citizen of Kenya; except that a person shall not become a citizen of Kenya by virtue of this section if at the date of his birth - (a) his father possesses immunity from suit and legal process as is accorded to the envoy of a foreign state accredited to Kenya; or (b) his father is a citizen of a country with which Kenya is at war and the birth occurs in a place then under occupation by that country.

Section97 (1)-Dual citizenship
97. (1)A person who, upon the attainment of the age of twenty-one years, is a citizen of Kenya and also a citizen of some country other than Kenya shall, subject to subsection (7), cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was born outside Kenya, made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
(3) A citizen of Kenya shall, subject to subsection (7), cease to be such a citizen if - (a) having attained the age of twenty-one years, he acquires the citizenship of some country other than Kenya by voluntary act (other than marriage)

UN Convention against Torture and other Cruel and Inhuman or Degrading Treatment ,1984
Article 1-Defination of torture
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Kenya Citizenship and Immigration Act, 2011
Section 31(1)-confiscation or suspension of a passport or travel document
(1) An immigration officer or any other law enforcement officer may suspend or confiscate a passport or other travel document where—

(a) the holder permits another person to use his passport or travel document; (b) the holder has been deported or repatriated to Kenya at the expense of the Government;
(c) the holder is convicted for drug trafficking, money laundering, trafficking in persons and smuggling, acts of terrorism or any other international crime;
(d) a warrant of arrest has been issued against the holder and there is a risk of absconding;
(e) the holder is a person against whom there is a court order restricting movement or authorizing denial, confiscation, or suspension of the passport or travel document;
(f) the holder is involved in passport or document fraud, passport or document forgery or transnational crimes;
(g) it is necessary to examine the passport or travel document for a period not exceeding seven days; and
(h) subject to the Constitution, any other circumstances which in the opinion of the Director would be prejudicial to the interest of the State or holder of the passport.

Held:

  1. The petitioner was born a citizen of Kenya in Nyando, along the shores of Lake Victoria (Kisumu County). His parents were also citizens of Kenya by birth. The petitioner grew up as a citizen and attended local schools. After his High School education, he joined the University of Nairobi but at some point in time, he had a brash with the then government and took a flight out of the country ending up exiled in Canada. He would then acquire a Canadian passport while in that country. That was after his efforts to obtain a Kenyan passport both in Nairobi and later in Canada failed.
  2. The petitioner lived in Canada until sometime in 2007 when he returned to Kenya, renewed his Kenyan Identity Card and acquired a Kenyan passport both of which showed that he was born a citizen of Kenya. He was even admitted as an advocate of the instant Court, a profession reserved for citizens of Kenya and those from the East African Community only. In the coalition government formed after the 2007 general elections, the petitioner served as a senior adviser in the Prime Minister’s office. In 2013 during the first general elections under the 2010 Constitution, the Petitioner stood for an elective post as Member of Parliament for a constituency in Nairobi County but did not succeed. He again tried his luck in the 2017 General elections for Governor of Nairobi but again lost.
  3. Article 14 of the Kenyan Constitution clearly provided for citizenship by birth. It was clear that the petitioner was, without a doubt within the category of citizen by birth. That was because the petitioner was not only born in Kenya but both of his parents were also citizens of Kenya.
  4. On the effective date, August 27, 2010, the petitioner was a Kenyan citizen holding a valid Kenyan passport issued by the government. There was no issue over his citizenship and went about as such including being an advocate in the country- a profession reserved for citizens. If there was a question of citizenship, the petitioner would remain a citizen until the dispute had been resolved by a competent authority. That never arose in the case of the petitioner.
  5. To answer the question as to whether the petitioner lost his citizenship under the repealed Constitution, the Court would interpret the relevant provisions of the repealed Constitution on the issue while taking into account the guiding principles in interpreting the Constitution. The Constitution would be interpreted liberally in order to meet the ideals and aspirations of the people; that as living document, the Constitution should not be interpreted in a simplistic and technical manner and it should be read as an integrated whole, with no one particular provision destroying the other but each sustaining the other.
  6. Kenya was transiting from colonial governance to independence and was therefore keen to make provision for accommodating interested persons to make a choice of the country they wanted to owe allegiance to. In that regard, section 97(3) (a) of the repealed Constitution apparently intended to prohibit acquisition of citizenship of another country by a voluntary act. However, the repealed Constitution only prohibited persons of a certain category who were citizens of other countries at the time of independence to choose to be citizens of Kenya. It did not apply to citizens of Kenya by birth. That was because citizenship by birth was a birth right and an in alienable right. The petitioner would be required to do much more than to merely acquire the passport of another country to lose it. That was in line with the principle that a constitutional provision containing a fundamental right was a permanent provision intended to cater for the future and, therefore, while interpreting such a provision, the approach of the Court should be dynamic, progressive and liberal or flexible. The role of the Court should be to expand the scope of such a provision and not to extenuate it.
  7. The petitioner’s acquisition of the Canadian passport was not within the confines of section 97(3) (a) of the repealed Constitution. The petitioner did not lose his citizenship upon acquiring the Canadian passport. He remained a Kenyan Citizen.
  8. Article 17(1) of the Constitution was to the effect that citizenship acquired by registration could be revoked. Citizenship by birth could not be revoked and for that reason, the 1st and 2nd respondents did not have power or discretion to revoke the petitioner’s citizenship. He was not one whose citizenship could be revoked as contemplated by article 17 of the Constitution or whose passport could be suspended or revoked in terms of section 33(1) of the Act.
  9. Even if the 1st respondent had power to revoke citizenship, he had to comply with the law namely, section 21 of the Act. The section was clear that where there was sufficient proof and on recommendation of the Citizenship Advisory Committee, the Cabinet Secretary would revoke citizenship acquired by registration under the grounds specified in article 17 of the Constitution. However before doing so, the Cabinet Secretary was required to give written notice and inform the person whose citizenship was due for revocation, of the intention to revoke his or her citizenship, while giving reasons for the action. The Cabinet Secretary was then required to give the person who had been given such notice an opportunity to present reasons why his or her citizenship should not be revoked.
  10. As public servants, the 1st and 2nd respondents were required to act only in accordance with the Constitution and the law. That was the hallmark of the constitutional architecture, which required them to observe the rule of law as a foundational value of the Constitution. The 1st and 2nd respondents were required to act within the Constitution and exercise only power or authority as donated by the Constitution and the law.
  11. Section 33(1) of the Kenya Citizenship and Immigration Act, 2011 Act (the Act) which the 1st and 2nd Respondents had heavily relied on, only provided for the circumstances under which a passport could be suspended. Those circumstances included situations where the holder permitted another person to use his passport or travel documents; the holder had been deported to Kenya at the government’s expense; the holder was a convict for drug trafficking, money laundering, trafficking in persons, smuggling, acts of terrorism, a warrant of arrest had been issued against him and there was need to prevent him from absconding or he was involved in passport or document fraud among others. There was no evidence in so far as the petitioner was concerned, that any of those circumstances were applicable to him.
  12. Section 43(1) of the Act provided for the removal of persons who were unlawfully in Kenya. The section authorised the Cabinet Secretary to make an order in writing, directing that a person whose presence in Kenya was, immediately before the making of that order, unlawful under the Act or in respect of whom a recommendation had been made to him or her under section 26A of the Penal Code, for removal from and remaining out of Kenya either indefinitely or for such period as was specified in the order.
  13. The petitioner, as a citizen, was not unlawfully in Kenya and, therefore, thepetitioner was not one of the people who fell under the category of persons who could be removed from the country under section 43(1) of the Act. Even assuming that the Petitioner deserved to be removed from Kenya, he had to be subjected to the provisions of the Act and articles 47(1) and 50(1) of the Constitution and given the right to fair administrative action and fair hearing as amplified by section 21 of the Act. Whatever the respondents did had to comply with constitutional standards of procedural fairness and fair hearing. The 1st and 2nd respondents could not just decide to suspend the petitioner’s passport and declare him a prohibited immigrant without subjecting him to any known form of due process. Their actions were not in accord with the Constitution and the law.
  14. One way the 1st and 2nd respondents could have observed the rule of law was for them to subject the petitioner to the safeguards guaranteed by articles 47(1) and 50(1) of the Constitution and give him fair administrative action and a hearing. Article 47 of the Constitution was intended to bring discipline to administrative action so that the values and principles of the Constitution were infused in matters of public administration.
  15. It did not matter whether the Petitioner was a Kenyan citizen or not. He was entitled to due process of the law as an incidence of the rule of law. The 1st and 2nd respondents had no mandate to declare the petitioner a prohibited immigrant because he was not an immigrant. Also, they could not suspend his passport under section 33(1) of the Act since he did not fall in the category of persons whose passports could be suspended and or confiscated.
  16. The petitioner had not lost, damaged or mutilated his passport for him to apply for a new one. His passport was irregularly seized by state agents.
  17. The petitioner as a human being was entitled to his inalienable rights and fundamental freedoms. Human rights were inherent to human beings by virtue of them being human. In 2010, the people of Kenya adopted an expensive Bill of Rights to ensure that they did not experience the kind of violation of human rights the country had witnessed in the years past.
  18. The petitioner was arrested on February 2, 2018 after state agents blew off doors to his residence and entered his house. He was taken away and held at various police stations within Kiambu County. That was clear from both the petition and the respondents’ responses. He was not produced before a court of law until February 6, 2018 when there was an attempt to charge him before a Kajiado Magistrate’s Court. It was, therefore undeniable that the petitioner was not produced before a court of law within twenty-four hours as demanded by the Constitution.
  19. Article 49 of the Constitution documented rights of arrested persons including the right to be brought before a court as soon as reasonably possible but not later than twenty-four (24) hours or the next working day if the day of arrest was not a working day. There could be no doubt that the respondents breached that important constitutional provision and, therefore, violated the petitioner’s constitutional right to be accorded due process of law.
  20. The petitioner was deported from his country without being subjected to any known due process and or being given an explanation. The respondents were unable to justify their actions against the petitioner. It was inconceivable that a state could deport its own citizen to a second country without regard to the Constitution and the law. Even if the state had reason to act as it did, it was under a constitutional obligation to follow the law and not act at whims in complete disregard of the Constitution and the law.
  21. The petitioner was deported despite court orders directing that he be produced in court, a violation of the rule of law and a key national value in article 10 of the constitution. When the petitioner attempted to return after the Court suspended the declaration that he was a prohibited immigrant and the suspension of his passport, he ended up spending days in a toilet at the Jomo Kenyatta International Airport (JKIA). Allegations that the petitioner was held in a toilet were supported by the 1st interested party’s report and the respondents did not file an affidavit to counter the allegations. The respondents merely submitted orally that the petitioner was held in a self-contained facility at the airport.
  22. Holding a human being in a toilet and in total disregard of his human rights and fundamental freedoms was the worst violation of the person’s dignity. Even where one was perceived a criminal, he had to be subjected to due process. The conditions the petitioner was subjected to amounted to torture and inhuman and degrading treatment that were absolutely outlawed by the Bill of Rights. Torture did not have to be physical. Mental and psychological harassment too amounted to torture.
  23. The respondents may not have liked the petitioner. They may not even have liked his abrasiveness, what he said or how he said it. Nonetheless, they had a constitutional duty to respect and protect his rights and fundamental freedoms. Where they failed to do so, the Court, as the arbiter of disputes, protector of the Constitution, human rights and the rule of law, would rise to its constitutional mandate and give protection. The respondents therefore violated the petitioner’s rights and fundamental freedoms guaranteed by the Bill of Rights.
  24. The petitioner came to court seeking redress for violation of his rights and fundamental freedoms enshrined in the Bill of Rights. He had shown that his constitutional rights were violated by the same state that was enjoined by the Constitution to protect those rights. Human rights and fundamental freedoms were to be enjoyed to the greatest extent possible but not curtailed.
  25. The 1st respondent’s declaration that the petitioner was a prohibited immigrant and the directive that he be deported to Canada had no basis in law. Further, the action of suspending his passport lacked legal authority and could not stand.
  26. One reason why courts granted compensation in cases of breach or violation of rights and fundamental freedoms was not so much to restore a person’s already violated rights, but to act as a deterrent against similar violations in the future. The other reason was to send a message that there should be no right without a remedy and to remind the state and its agents that rights were to be enjoyed and had to be respected, enhanced and protected as demanded by the Constitution. That sent a clear message that violation of rights would attract compensation.
  27. The petitioner’s rights were not only violated but the violation continued as the petitioner, a citizen, was forced to remain in Canada, and that required the Court to invoke the doctrine of continued violation. An award of general damages of Kshs. 7 million was fair and reasonable.
  28. A claim was made through submissions for compensation relating to the cost of the damaged house. Special damages had to be pleaded and proved. The cost sought was a direct result of violation of the right to property arising from the actions of the respondents. In exercise of its jurisdiction under article 23 of the Constitution, the Court should fashion a remedy that would be appropriate in the circumstances of the instant case. The damage caused should be penalized and the estimate cost of repairs granted.
  29. The people of Kenya enacted a Constitution that envisioned observance of the Constitution and the law by all. Where overzealous public servants committed wanton violation of the Constitution and the law, any awards arising from such violations should not be imposed on the public. They had to be borne by the responsible public officers themselves so that the public was shielded from such unnecessary costs. Damages and costs in the instant petition had to be borne by the respondents jointly and severally to dissuade any motivation for continued assault on the Constitution, democracy, human rights and the rule of law.

Petition allowed.
Orders: -

  1. An order of certiorari was issued quashing the 1st respondent’s declaration under section 33(1) of the Kenya Citizenship and Immigration Act, 2011 dated February 6,2018 declaring the Petitioner a non-citizen of Kenya or that his presence in Kenya was contrary to national interest.
  2. An order of certiorari was issued quashing the 1st respondent’s declaration under section 43(1) of the Kenya Citizenship and Immigration Act, 2011 dated February 6, 2018 directing the removal of the Petitioner from Kenya.
  3. An order of certiorari was issued quashing Gazette Notice No Vol. CXX – No 15 issued on January 30, 2018 by the 1st respondent, declaring the National Resistance Movement (NRM) to be a criminal organization.
  4. An order of mandamus was issued compelling the respondents to immediately return to the petitioner his Kenyan passport and any other identification documents taken from him.
  5. The petitioner was awarded general damages of Kshs. 7 million for violation of his rights and fundamental freedoms to be borne by the 1st to 6th respondents jointly and severally.
  6. The petitioner was awarded Kshs. 270, 000/= for the damage of his house to be borne by the 1st to 6th respondents jointly and severally.
  7. The 1st to 6th respondents were ordered to bear costs of the petition jointly and severally.
JURISDICTION Supreme Court upholds the declared results for the election of Member of the National Assembly for Embakasi East Constituency, held on August 8, 2017

Francis Wambugu Mureithi v Owino Paul Ongili Babu & 2 others
Petition 15 of 2018
Supreme Court of Kenya
D. K. Maraga, CJ & P, M. K Ibrahim, J. B Ojwang, S. C. Wanjala, Njoki Ndungu & I. Lenaola SCJJ
January 18, 2019
Reported by Claris Njihia

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters of constitutional interpretation and application-claim that a petition of appeal filed at the Supreme Court raised matters of constitutional interpretation and application over which the Supreme Court could assume jurisdiction-whether the Supreme Court had jurisdiction to hear and entertain the matter-Constitution of Kenya 2010, article 163(4)(a).
Appeals-institution of appeals-notice of appeal-failure to file and serve a notice of appeal in accordance with applicable legal stipulations-whether an appeal lodged without the proper filing and service of a notice of appeal would be struck out-Court of Appeal (Election Petition) Rules, 2017, rules 6 & 7.
Evidence Law-electronic records-admissibility of electronic records-video evidence tendered to show the occurrence of violence during an election-effect of a Court of Appeal decision on an election petition appeal wherein the probative value of the video evidence was not considered despite the making of a finding on admissibility-Evidence Act (Cap 80), sections 78 & 106B; Elections Act, No 24 of 2011, section 85A.
Jurisdiction-jurisdiction of the Court of Appeal-jurisdiction of the Court of Appeal in the election petition appeals-matters that constituted matters of law-claim that the Court of Appeal acted in excess of its jurisdiction and delved into matters of fact, when it overturned a trial court's decision on whether there was violence and intimidation during the conduct of an election-whether the Court of Appeal overstepped its jurisdiction-Elections Act, No 24 of 2011, section 85A.
Electoral Law-conduct of an election-electoral irregularities and malpractices-effect of electoral irregularities and malpractices-whether the scale and impact of electoral irregularities and malpractices would result in the nullification of the results of an election.

Brief facts:
The appeal before the Court was against the judgment of the Court of Appeal delivered on June 8, 2018 in Election Petition Appeal No. 18 of 2018. The Appellate Court allowed the appeal and set aside the decision of the High Court in Election Petition No. 8 of 2017 delivered on March 2, 2018. The Court further declared that the 1st Respondent was validly elected as the Member of the National Assembly for Embakasi East Constituency.
The 1st Respondent was declared as the duly elected Member of the National Assembly for Embakasi East Constituency following the general election held on August 8, 2017. Aggrieved by the result of the election, the Petitioner filed a petition on September 5, 2017 challenging the election of the 1st Respondent.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear and determine the petition of appeal brought under article 163(4)(a) of the Constitution.
  2. Whether the appeal before the Court of Appeal was competent, given the failure to file and serve a notice of appeal as required under rule 6 and 7 of the Court of Appeal (Election Petition) Rules, 2017
  3. Whether the Court of Appeal erred in failing to consider the probative value of video evidence.
  4. Whether the Court of Appeal, in overturning an Election Court’s decision on whether there was violence and intimidation during an election, acted in excess of and/or without jurisdiction and delved into matters of fact contrary to section 85A of the Elections Act.
  5. Whether the Court of Appeal misdirected itself in the interpretation of articles 81(e)(ii) and 86 of the Constitution, as related to stipulations on free, fair, transparent, accurate and verifiable elections and whether alleged irregularities affected the outcome of an election
  6. Whether the 1st respondent discharged the burden and standard of proof in the appeal before the Court of Appeal.
  7. What were the reliefs available to the parties?Read More..

Relevant Provisions of Law
Constitution of Kenya, 2010
Article 81(e) (ii)-Representation of the people
81- The electoral system shall comply with the following principles––
(e) free and fair elections, which are—
(ii) free from violence, intimidation, improper influence or corruption;

Article 86 –voting
At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Article 163(4)(a) –Superior Courts
(4) Appeals shall lie from the Court of Appeal to the Supreme Court—
(a) as of right in any case involving the interpretation or application of this Constitution.
Article 159 (2) (d)-Judicial Authority
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(d) justice shall be administered without undue regard to procedural technicalities

Article 163 (4) (a)-Supreme Court
(4) Appeals shall lie from the Court of Appeal to the Supreme Court— (a) as of right in any case involving the interpretation or application of this Constitution

The Appellate Jurisdiction Act
The Court of Appeal (Election Petition) Rules, 2017
Rule 5-Compliance with Rules
5. The effect of any failure to comply with these Rules shall be a matter for determination at the Court’s discretion subject to the provisions of Article 159 (2) (d) of the Constitution and the need to observe the time set by the Constitution or any other law.

Rule 6 (2-5) -Notice of Appeal
(2) A person who desires to appeal to the Court against a decision of the High Court in an election petition shall, within seven days of the date of the decision appealed against, lodge a notice of appeal.
(3) A notice of appeal shall identify the judgment from which the appeal is based and shall, in separate numbered paragraphs—

(a) specify whether all or part of the judgment is being appealed and, if a part, which part;
(b) identify the source of the right of appeal and the basis for the jurisdiction of the Court to determine the appeal;
(c) precisely set out the grounds of the appeal;
(d) concisely state the relief sought;
(e) provide the address for service of the appellant and state the names and addresses of all persons intended to be served with copies of the notice; and
(f) contain a request that the appeal be set down for hearing in the appropriate registry.

(4) Where it is intended to appeal against a decree, it shall not be necessary that the decree be extracted before lodging notice of appeal.
(5) A notice of appeal shall be substantially in the Form EPA 1 set out in the Schedule and shall be signed by or on behalf of the appellant.

Elections Act. No. 24 of 2011
Section 83-Non Compliance with the Law
No election shall be declared to be void by reason of noncompliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.

Section 85 A-Appeals to the Court of Appeal
85A. An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only and shall be— (a) filed within thirty days of the decisions of the High Court; and (b) heard and determined within six months of the filing of the appeal.

Court of Appeal Rules 2010
Rule 29 (1) (b)-Power to re-appraise evidence and to take additional evidence
1)on any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power-
(b) in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial Court or by a commissioner.

Held:

  1. The guiding principles to be considered by petitioners seeking to petition the Supreme Court under the provisions of article 163(4)(a) of the Constitution were as follows:
    1. a Court’s jurisdiction was regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
    2. the chain of courts in the constitutional set-up had the professional competence to adjudicate upon disputes before them and only cardinal issues of law or of jurisprudential moment deserved the further input of the Supreme Court;
    3. not all categories of appeals lay from the Court of Appeal to the Supreme Court under article 163(4)(a); under that head, only those appeals from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court;
    4. under article 163(4)(a) of the Constitution, the lower Court’s determination of an issue which was the subject of a further appeal, had to take a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
    5. an appeal within the ambit of article 163(4)(a) of the Constitution was one founded on cogent issues of constitutional controversy; and,
    6. with regard to election matters, not every petition-decision by the Court of Appeal was appealable to the Supreme Court; only those appeals arising from the decision of the Court of Appeal in which questions of constitutional interpretation or application were at play, lay to the Supreme Court.
  2. The guiding principles were to be considered alongside the provisions of articles 87(1) and 105(1) of the Constitution on the enactment of legislation to establish a mechanism for timely settlement of election disputes and powers of the High Court sitting as an election Court, to determine the question whether a person had been validly elected as a Member of Parliament, with sub-article (3) thereof calling for the enactment of legislation giving effect to that article. Electoral disputes would therefore generally involve the application and interpretation of the Constitution unless the converse was expressly shown.
  3. Given that electoral adjudication generally bore a constitutional and statutory provenance unless the contrary was shown, the Supreme Court had the jurisdiction to hear and determine the appeal before it under the provisions of article 163(4)(a) of the Constitution.
  4. A court could only be faulted if the use of discretionary power was based on a whim, and it could be established that the court did not consider the prevailing circumstances and take into account what needed to be considered, or considered what ought not to have been considered. To infringe upon that discretionary power, would be tantamount to a judicial review of the decision of another court. That was an exercise which the Supreme Court, and indeed every other Court, should refrain from engaging in as it would be viewed as an interference with another court’s judicial independence and exercise of discretion.
  5. Interference with the discretionary powers of one court by another court was to be frowned upon, and the instant Court would only interfere with such exercise of discretion if was on the face of it, an affront to justice or an infringement of fundamental freedoms, such as the right to a fair hearing, as had been alleged in the appeal by the petitioner.
  6. In applying the guiding principles and admitting the notice of appeal, the Court of Appeal took into account the following factors:-
    1. it was acting in exercise of its discretion, under rule 5 of the Court of Appeal Rules, 2017;
    2. the need to determine the appeal on its merits;
    3. the substance and intent of the notice of appeal was clear to it;
    4. the 1st respondent in the appeal (the petitioner in the instant appeal) was duly served with the record of appeal within the stipulated period of five days from the date of its filing;
    5. the 1st respondent (the petitioner in the instant appeal) did not suffer any prejudice as a result of the manner in which the record of appeal was compiled and presented to the Court; and,
    6. article 159(2) (d) of the Constitution obligated the Court to invoke the principle that it would not pay undue regard to technicalities in administering justice.
  7. One of the considerations that the Appellate Court was obligated to take into account in exercise of its discretion to excuse non-compliance with the Rules was the need to observe the timelines set by the Constitution or any other electoral law including on the filing and service of a notice and record of appeal. It did take that consideration into account. Another factor was the application of article 159(2) (d) which the Court considered. The only issue which raised a controversy was whether the Court ought to have specifically addressed rule 6 on the place of filing the notice of appeal. The appellate Court in exercising its discretion determined that no prejudice was caused to the petitioner by that anomaly as he was served within time thus giving clear notice of the intention to appeal and no prejudice was thereby caused to him as he was able, within statutory timelines, to meet and respond to the appeal.
  8. There was no reason to interfere with the Appellate Court’s exercise of discretion as it was neither whimsical, capricious nor unreasonable. That finding notwithstanding, it would be expected that parties and their advocates, being aware of the clear and unambiguous language of rules 2, 5 and 6 of the Court of Appeal (Election petition) Rules, 2017 would comply with them in the next election cycle to avoid different and potentially conflicting decisions on the place of, content and time frames for filing notices of appeal arising from appeals directed at the Court of Appeal.
  9. The Court of Appeal found that the trial Court had not applied its mind to the evidence that the Petitioner sought to rely on and that the probative value of the evidence, or the veracity thereof, had not been tested by the Election Court. The content of the video evidence had also not been evaluated by the Election Court, and as such, the Appellate Court was not able to immediately establish its impact, or lack thereof, on the decision made by the Election Court. Therefore, the Court of Appeal was unable to determine whether upon re-evaluation of the evidence, the decision by the Election Court was so perverse or so illegal that no reasonable tribunal or court would have arrived at a similar conclusion.
  10. There were limits on the evaluation of evidence by the Court of Appeal, and in as much as that Court was free to evaluate any evidence that would be presented before it, the same was delimited by the provisions of Section 85A of the Elections Act.
  11. The Appellate Court declined to admit the video evidence on two tangential factors;
    1. that the probative value of the evidence had not been established by the trial Court;
    2. that it was not appropriately moved by the 1st respondent to admit the evidence in the cross-appeal
  12. The aspect of discretionary powers, as prescribed under rule 29(1)(b) of the Court of Appeal Rules, 2010 and generally under article 159(2)(d) of the Constitution, was clear. The Supreme Court was unable to find that the Court of Appeal misdirected itself in reaching those findings. The Appellate Court exercised its discretion not to act suo moto, but expected to be moved by the pleadings filed by the petitioner and those pleadings did not expressly state that the Court be moved to admit the evidence into the record.
  13. The decision of the Court of Appeal not to admit the video evidence or even evaluate it, was in exercise of its discretion as provided under rule 29(1)(b) of the Court of Appeal Rules, 2010 delimited by the provisions of section 85A of the Elections Act. Additionally, parties were bound by the pleadings and the pleadings of the petitioner in the cross-appeal before the Court of Appeal had no prayer for the admission of video evidence.
  14. The Appellate Court refused to re-examine the evidence that had been examined by the Election Court, in which it was found that there were no incidences of violence at Greenspan Mall and Embakasi Social Hall. However, it re-evaluated the evidence with regards to alleged violence at Soweto Social Hall, primarily on the grounds that the evidence on the violence that was allegedly witnessed at the polling station was the evidence that the Trial Court evaluated in allowing the petition before it. The Appellate Court therefore proceeded to consider the evidence, stating that the Election Court ought to have shown how the violence affected the credibility of the election, given that it nullified the election largely on the finding of the occurrence of violence at Soweto Social Hall during the election.
  15. The Court of Appeal correctly re-examined the evidence that was used by the Election Court to nullify the election. It thereafter emerged that regardless of incidences of violence being reported and evidenced at the Soweto Social Hall, the Election Court did not establish how the violence affected the election specifically in the polling centre, and indeed the results in the entire Constituency. The decision it made was based on the no rule of evidence. The Court of Appeal acted in excess of and/or without jurisdiction.
  16. The Court of Appeal determined that the elections held for the member of the National Assembly for Embakasi East were conducted substantially in accordance with the principles of the Constitution under articles 81(e) and 86, and the substantive and procedural statutory provisions of the Elections Act. For the Instant Court to overturn the decision by the Appellate Court, it had to be shown that the Appellate Court misdirected its mind when invoking those principles and that indeed the conduct of the election did not meet constitutional muster.
  17. Having considered the question of violence apparent at Soweto Social Hall, its impact in the election as a whole, the Supreme Court was unable to find any reason to state that applying the test in section 83 of the Elections Act, either there was such non-compliance with the principles under articles 81(e) and 86 of the Constitution or that the results were affected in such a manner as to render the election a sham or incredible.
  18. The evidentiary burden and standard of proof was met by the 1st respondent as the Appellate Court, which in consideration of the record of appeal, overturned the decision of the trial Court.

Appeal disallowed, costs awarded to the respondents.

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