Weekly Newsletter 027/2019



Kenya Law

Weekly Newsletter


Section 63 of the Finance Act, 2018 and section 31A of the Banking Act which required financial institutions to maintain a register of the next of kin for their customers declared unconstitutional for violating the right to privacy
Kenya Bankers Association v Attorney General & another; Central Bank Of Kenya (Interested Party) [2019] eKLR
Petition 427 of 2018
High Court at Nairobi
J A Makau, J
June 20, 2019.
Reported by Kakai Toili

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Statutes – interpretation of statutes – interpretation of section 63 of the Finance act, 2018 and section 31A of the Banking Act – where section 63 of the Finance Act, 2018 and section 31A of the Banking Act required banks and financial institutions to maintain a register of the next of kin for their customers - whether section 63 of the Finance Act, 2018 and section 31A of the Banking Act violated banks and financial institutions customers' right to privacy and therefore unconstitutional - whether section 63 of the Finance Act, 2018 was imprecise and vague for failing to define the next of kin or the particulars of the next of kin that should be obtained and what was to be done in relation to keeping such records or data - Constitution of Kenya, 2010, article 22, 23, 24, 31(c),165 &259(1): Finance Act, 2018, section 63; Banking Act section 31(2) & 31A
Jurisdiction– jurisdiction of the High Court - jurisdiction to determine matters where an Act of Parliament was alleged to have violated the Constitution - whether the High Court had jurisdiction to determine matters where an Act of Parliament was alleged to have violated the Constitution – Constitution of Kenya, 2010, article 22, 23, 165 &259(1)
Constitutional Law– separation of powers – powers of the Judiciary vis a vis powers of other arms of Government - where it was alleged that the Constitution had either been violated or was threatened with violation by another arm of Government - whether the Judiciary could intervene in actions of other arms of Government where it was alleged that the Constitution had either been violated or was threatened with violation - Constitution of Kenya, 2010, article 22, 23, 165 &259(1)
Constitutional Law- interpretation of constitutional provisions - principles applicable to constitutional interpretation - what were the guiding principles to be followed in interpreting the Constitution - Constitution of Kenya 2010, article 259
Constitutional Law - national values and principles of governance - public participation – public participation in amending Bills of Parliament – whether it was mandatory for amendments at the various stages of the enactment of a Bill of Parliament to be subjected to public participation - Constitution of Kenya, 2010, article 10 & 124; National Assembly Standing Orders, standing order 133
Constitutional Law – Parliament – role of Parliament – making of laws – amendment of Bills - amendment of Bills at the various stages of enactment – whether a Bill of Parliament could be amended at the various stages of enactment - Constitution of Kenya, 2010, article 94 & 124; National Assembly Standing Orders, standing order 133

Brief Facts:
The memorandum of objects and reasons of the Finance Bill, 2018(the Bill) was to formulate the proposals announced in the budget for 2018/2019 relating to liability, and collection of taxes and matters incidental thereto and sought to amend various laws including the Banking Act. The Bill was first read in the 2nd respondent’s House and committed to the Departmental Committee on Finance and National Planning (the Committee) which carried out public participation on the Bill. However, section 63 of the Finance Act was not included in the Bill at the time of gazettement and first reading of the Finance Bill, 2018. Thereafter, the Bill underwent debate during the second reading and new clauses introduced to the Bill at that stage.
One of the proposed amendments was to require the banks, whenever a customer was opening an account, should be compelled to indicate who their next of kin was. The Bill was passed to become the Finance Act, 2018. Aggrieved by the 2nd respondent’s actions, the petitioner filed the instant petition. The petitioner averred that the amendments violated the right to privacy and were therefore unconstitutional. The petitioner contended that the 2nd respondent acted ultra vires to its constitutional mandate by introducing substantive amendments to the Banking Act during the 3rd reading and enacting legislation without public participation.


Issues:
  1. Whether section 63 of the Finance Act, 2018 and section 31A of the Banking Act, which required banks and financial institutions to maintain a register of the next of kin for their customers, violated their customers’ right to privacy and therefore unconstitutional.
  2. Whether the High Court had jurisdiction to determine matters where an Act of Parliament was alleged to have violated the Constitution.
  3. Whether the Judiciary could intervene in actions of other arms of Government where it was alleged that the Constitution had either been violated or was threatened with violation.
  4. What were the guiding principles to be followed in interpreting the Constitution?
  5. Whether section 63 of the Finance Act, 2018 which required banks and financial institutions to maintain a register of the next of kin for their customers was imprecise and vague for failing to define the next of kin or the particulars of the next of kin that should be obtained and what was to be done in relation to keeping such records or data.
  6. Whether a Bill of Parliament could be amended at the various stages of enactment.
  7. Whether it was mandatory for amendments at the various stages of the enactment of a bill had to be subjected to public participation.

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 259

(1) This Constitution shall be interpreted in a manner that—

(a) Promotes its purposes, values and principles;
(b) Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) Permits the development of the law; and
(d) Contributes to good governance.

Banking Act
Section 31

(2) Except as provided in this Act, no person shall disclose or publish any information which comes into his possession as a result of the performance of his duties or responsibilities under this Act and, if he does so, he shall, for the purposes of section 49, be deemed to have contravened the provisions of this Act.
 

Section 31A

(1) A bank or financial institution licensed under this Act shall, in respect of all accounts operated at the institution, maintain a register containing particulars of the next of kin of all customers operating such accounts, and shall update this register on an annual basis.
(2) A bank or financial institution which contravenes subsection (1) commits an offence and shall be liable, for each account in which there is default, to a fine not exceeding one million shillings.

 

Held:

  1. The petitioner was a corporate body duly registered under the laws of Kenya composed of 47 members all of which were commercial banks and microfinance banks.In light of articles 22 and 258 of the Constitution, the petitioner was within its rights to file the instant petition and had the requisite locus standi to do so.
  2. Article 23 of the Constitution gave the Court jurisdiction to hear and determine matters involving violation of fundamental rights under the bill of rights. The Court further had jurisdiction, in accordance with article 165 of the Constitution to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the bill of rights; in any proceedings brought under article 22 of the Constitution, where a Court could grant appropriate relief. Further article 165 (3) (d) of the Constitution gave the Court jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights had been denied, violated, infringed or threatened.
  3. In the instant petition, the petitioner sought interpretation of articles 24 and 31(c) of the Constitution and section 31 (2) and (3) of the Banking Act by introduction of section 31A of the Banking Act. The instant petition was premised on the jurisdiction of the Court to interpret the Constitution. The instant dispute, being a question as to whether the impugned amendment was inconsistent with or in contravention of the Constitution, the suit fell squarely within the purview of article 165(3) (d) of the Constitution. The Court had jurisdiction to determine the instant dispute.
  4. Whereas the legislative authority vested with the 2nd respondent, where a question arose as to the interpretation of the Constitution and whether enactment of legislation was inconsistent with the Constitution or was in contravention of the Constitution, the Court was constitutionally empowered to determine such an issue.The Constitution was the supreme law of Kenya pursuant to article 2(1) and (2) of the Constitution and bound all persons. The Judiciary had to be firm and apply the Constitution, whenever an issue arose as to the constitutionality of any act done or threatened by either the Executive or the Legislature, it had to act decisively.
  5. The Judiciary was vested with the power to interpret the Constitution, to safeguard, protect and promote its provisions as provided under article 165(3) of the Constitution.It also had the duty and obligation to boldly intervene in actions of other arms of Government and state organs where it was alleged or shown that the Constitution had either been violated or was threatened with violation. That was a sacred and lonely path that the Judiciary was called upon to always take and remain firm in discharging its mandate.To succeed one did not have to look at the left or right in looking for justice for Kenya but straight forward.
  6. The courts in interpretation of the Constitution, were guided by the general principle that there was a rebuttable presumption that legislation was constitutional, therefore the onus of rebutting the presumption vested on those who alleged the legislation’s status. In determining the constitutionality of a statute or statutory provisions, the court had to look at the object and purpose of the impugned statute or statutory provision.
  7. When it came to interpretation of the Constitution, article 259(1) of the Constitution was the foundation of the interpretation of the Constitution.It lay down the guidelines as follows: - the values and principles of the Constitution thus; the rule of law; human rights and fundamental freedoms, development of the law and good governance had to permeate the process of constitutional interpretation.It had to be holistic interpretation; so as to promote its purpose, values and principles and contribute to rule of law and good governance.
  8. Section 31A of the Banking Act imposed upon banks or financial institutions to maintain a register containing particulars of the next of kin of all customers and any bank that contravened the said section was liable upon conviction for each count in default to a fine not exceeding one million shillings. The purpose or the effect of section 63 of Finance Actimplementation infringed a right guaranteed by the Constitution. The requirement under section 63 of the Finance Act for banks and financial institutions to maintain a register of next of kin was not justifiable nor did it have a rational connection with the intended purpose of the Finance Act whose purpose was to amend the law relating to various taxes and duties and for matters incidental thereto but not to ensure that the abandoned property was returned to its true owner and within a reasonable period.
  9. Section 63 of Finance Act, 2018 was derogation from the core normative content of the right to privacy. The implementation of section 63 of the Finance Act infringed on a right guaranteed by the Constitution. The section in question was therefore unconstitutional and contradicted article 31(c) of the Constitution and section 31(2) of the Banking Act to the extent that it breached the right of privacy as provided in article 31(c) of the Constitution and section 31(2) of the Banking Act.
  10. Section 63 of the Finance Act had not attempted to define who the next of kin was or the particulars of the next of kin that should be obtained and what was to be done in relation to keeping such records or data. The section was mute and did not provide clarity on how the corporate clients were to be handled. It also did not give distinction between individual persons and legal persons.The section was equally silent on how minors could be treated and did not indicate as to whether minors could be listed as next of kin. Section 63 of the Finance Act and consequently section 31A of the Banking Act was not only ambiguous but vague.
  11. Vagueness of a statute amounted to invalidity of a statute. The enactment of section 63 of the Finance Act was void for vagueness as a citizen would not be able to know in advance what the legal consequences that flew from the impugned section of the Finance Act were. The members of the petitioner were unable to know what was regulated and the manner of that regulation. Section 63 of Finance Act and consequently section 31A of the Banking Act lacked certainty; it was confusing due to being imprecise and vague.
  12. Article 94 of the Constitution vested legislative authority in Parliament and therefore the 2nd respondent was allowed to amend a legislative proposal as the bill went through the various stages of enactment of legislation such that the final statute passed by the 2nd respondent and which the President assented to was different from the Bill published at the first instance. Once a Bill was published and read in the 2nd respondent’s House, it went through first reading, second reading, committee stage and third reading and the purpose of all those stages of the reading of a Bill was to allow the members of the 2nd respondent who represented different constituencies of the electorate to negotiate on their behalf and represent their varying interests.
  13. The Constitution recognized that a House of Parliament could amend bills and hence article 124 of the Constitution allowed Parliament to make Standing Orders to provide for its procedures for conducting House business. The Constitution recognized that a House of Parliament could amend Bills and hence article 124 allowed Parliament to make Standing Orders to provide for its procedures for conducting House business. Pursuant to standing order 133 of the 2nd respondent’s Standing Orders, during the legislative process, amendments to the Bill could be moved during the committee stage. The averment that every amendment moved had to undergo the process of public participation would negate and undermine the legislative process. However, where a major amendment was introduced and where it was contrary to the purpose of the Bill the position could be different.
  14. Both Houses of Parliament could exercise their legislative will by enacting laws and amending existing laws as well as bills which were before the House. There was nothing unconstitutional where the 2nd respondent chose to amend a legislative proposal from the initial form; because as a bill went through debate and public participation, the House could co-opt proposed amendments and drop some clauses as the House deemed fit so long as the amendments were minor and did not alter the purpose of the Bill.
  15. The 2nd respondent conducted public participation on the Finance Act and took the views of the public into account as well as the views of all members of the 2nd respondent as representatives of various constituencies before introduction of clause 57A of the Bill. Clause 57A as introduced was contrary to the objects and reasons for seeking to amend the Banking Act; at a time of adoption of the proposed amendments, the petitioner, a key stakeholder was denied an opportunity to participate in the enactment of the impugned amendments in contravention of the provisions of article 118 of the Constitution.
  16. There was no public participation in the enactment of the impugned section. The alleged amendment was not a minor amendment but a major or substantive amendment which was against the purpose of the Bill and which required public participation. The passed legislation contained unreasonable provision which provisions were punitive as members of the petitioner were liable to pay one million shillings for each account in default.
  17. What was introduced as clause 57A of the Finance Bill was not what was in the Bill at the time the Bill underwent public participation and upon amendment of the Bill, it introduced a substantive amendment affecting the rights of the petitioners, it was therefore mandatory for the 2nd respondent to have resubmitted the Bill to the public to obtain their views.That was not a minor amendment such as adding a comma and full stop.There was no public participation in the major enactment of section 63 of the Finance Act and the 2nd respondent violated article 10(2) and article 118 of the Constitution in introducing clause 57A during the committee of the whole house stage.
Petition allowed
  1. Section 63 of the Finance Act, 2018 and section 31A of the Banking Act were in conflict with article 31(c) of the Constitution.
  2. The 2nd respondent breached the national values and principles enshrined under article 10 of the Constitution for failing to subject the amendment to public participation.
  3. A declaration was issued to the effect that section 63 of the Finance Act, 2018 (Act No. 10 of 2018) and consequently section 31A of the Banking Act were null and void and of no legal effect for being unconstitutional.
  4. A declaration was issued to the effect that section 63 of the Finance Act, 2018 and consequently section 31A of the Banking Act was invalid for being vague and ambiguous.
  5. Each party to bear its own costs.

Editorial Note
In the main judgment, article 37(c) of the Constitution and section 33A of the Banking Act have been used at certain instances. However, we believe the provisions meant to be used in that context are article 31(c) of the Constitution and section 31A of the Banking Act.
 
Kenya Law
Case Updates Issue 032/2019
Case Summaries

CONSTITUTIONAL LAW Constitutionality of section 7(3) and 6(2) of the State Corporations Act in relation to appointments and revocation of appointments done by the President.

Okiya Omtatah Okoiti v Attorney General & 2 others; Francis K. Muthaura (AMB) & 5 others (Interested Parties)
Petition 47 of 2018
Employment and Labour Relations Court at Nairobi
Byram Ongaya, J
June 14, 2019
Reported by Beryl A Ikamari

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Constitutional Law-constitutionality of statutory provisions-constitutionality of sections 7(3), 26 and 27(c) of the State Corporations Act and sections 6(2) (a) & (e) of the Kenya Revenue Authority Act-constitutionality of presidential powers to revoke the appointment of the Board of Kenya Revenue Authority (KRA), where it failed to undertake its functions in national interest, and appoint a new Board-whether, in light of the constitutional powers and functions of the Public Service Commission, such presidential powers as granted by statute were constitutional-Constitution of Kenya 2010, articles 234 (2), 249 (2) (a), 47 & 236; State Corporations Act (Cap 446), sections 7(3), 26 and 27(c); Kenya Revenue Authority Act (Cap 469), sections 6(2)(a) & 6(2)(e).
Civil Practice and Procedure-suits-institution of suits-doctrine of sub judice-claim that the issues raised in a suit were the subject matter of another suit which was pending determination before a court of concurrent jurisdiction- whether differences in the two suits relating to the nature of the cause of action and the parties would allow for the application of the doctrine of sub judice.
Jurisdiction-jurisdiction of the Employment and Labour Relations Court-nature of what would constitute an employment dispute-whether a claim challenging the validity of appointments made to the Board of a state corporation was within the jurisdiction of the Employment and Labour Relations Court.
Constitutional Law-Executive-the President-decisions of the President-claim that a gazette notice issued by the President did not bear his seal and signature and was therefore invalid-whether a gazette notice was the instrument through which the decision was made and whether its validity required it to bear the seal and signature of the President-Constitution of Kenya 2010, article 135.

Brief Facts:
The President of Kenya made appointments to the Board of the Kenya Revenue Authority (the Board) in the Month of May 2018 through various gazette notices. Also via gazette notice, the appointments of the immediate former chairperson and members of the Board were revoked. The persons appointed were the 1st interested party as the chairperson of the Board and the 2nd, 3rd, 4th and 5th interested parties as members of the Board. The basis of the appointments and revocations was the powers granted to the President under section 6(2) & 7(3) of the State Corporations Act.
The petitioner challenged the constitutionality of the appointments of the interested parties to the Board. He stated that sections 7(3), 26 and 27(c) of the State Corporations Act and sections 6(2) (a) & (e) of the Kenya Revenue Authority Act were in conflict with articles 2, 10, 27, 47, 73(2), 129(1), 153(4), 232, 234(2) and 259(1) of the Constitution and were therefore void to the extent of the inconsistency. He explained that the appointments to the Board were done without subjecting the appointees to a fair, open, competitive, merit based and inclusive recruitment process and without involving the 2nd respondent (the Public Service Commission.) He also challenged the validity of the gazette notice issued by the President without his seal and signature.
The respondents raised a preliminary objection. They stated that under article 162 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, the Court lacked jurisdiction to entertain the matter and that the matter was sub judice as the question concerning presidential powers under inter alia section 7(3) of the State Corporations Act was pending determination before a court of concurrent jurisdiction. That question was said to be due for determination in the case of Katiba Institute and Africa Center for Open Governance v The Attorney General and the Public Service Commission, Nairobi High Court Constitutional Petition No. 331 of 2016.

Issues:

  1. Whether the suit should be stayed under the doctrine of sub judice as it entailed the determination of an issue which was part of the subject matter of a pending suit before a court of concurrent jurisdiction.
  2. Whether the Employment and Labour Relations Court had jurisdiction to entertain a petition wherein the petitioner challenged the validity of appointments made to the board of a state corporation.
  3. Whether gazette notices issued by the President without his seal and signature were valid.
  4. Whether sections 7(3), 26 and 27(c) of the State Corporations Act and sections 6(2) (a) & (e) of the Kenya Revenue Authority Act, which as read together related to the President's powers to revoke the appointment of the Board of KRA, where it failed to undertake its functions in national interest, and appoint a new Board, were unconstitutional, as the new Board would be appointed without being subjected to a fair, open, competitive, merit based, and inclusive recruitment process and without the involvement of the Public Service Commission.
  5. Whether appointments made to the Board of a state corporation could be backdated. Read More...

Held:

  1. The doctrine of res sub judice in Latin meant under judgment. It aimed at preventing courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same relief claimed – with the consequence that the Court should stay the proceedings or the suit.
  2. The case of Katiba Institute and Africa Center for Open Governance v The Attorney General and the Public Service Commission, Nairobi High Court Constitutional Petition No. 331 of 2016 had a different set of parties from the parties to the petition. Additionally, the appointments in question differed from those in the petition before court. The petition before court entailed a fresh cause of action based upon the appointments of the chairperson and members of the Board of the Kenya Revenue Authority. It was true that both petitions challenged appointments made by the President and Cabinet Secretaries to Boards of various state corporations. However, there were differences relating to the cause of action, the parties and the reliefs sought and therefore the doctrine of sub judice did not apply.
  3. Public officers were servants of the people who were engaged or employed within a framework of constitutional and statutory provisions as well as lawful practices and policies. The dispute was within the Court's jurisdiction as it related to the employment of public officers as defined in the Constitution. The applicable law included the Constitution, statutory provisions and other lawful policies and practices. Particularly, the provisions of articles 73, 80(c) and 232 of the Constitution were applicable to their engagement.
  4. The petition was about employment within the complex framework of public service or public sector employment. The substantive law applicable to such employment ranging from the declaration of a vacancy, recruitment and selection procedures, appointment procedure, and termination procedure would be the applicable public service constitutional and statutory provisions and such other lawful policies and practices to the extent that they prescribed minimum or better terms and conditions of service than those envisaged in the Employment Act, 2007.
  5. Constitutional and statutory provisions did not confer upon the Board members a distinctive status separate from that of other public officers including those serving as staff in the state corporations – the difference amongst public officers being distinctiveness in the role played as vested by the Constitution, statute or terms and conditions of service and as based on the public or state office held by the individual. They were all governed by the general statutory and constitutional provisions on public or state service and paid out of monies provided by the taxpayer. Board members of a state corporation were distinct from board members of a private company, whose service was clearly distinct from that of the staff of a company registered under the Companies Act.
  6. The respondents did not file replying affidavits to dispute the facts pleaded in the petition and supporting affidavit. Those facts were therefore not in dispute.
  7. The 1st interested party's contention that the Kenya Revenue Authority was not part of the public service was misconceived. Constitutional definitions of public service, public office, public officer and public body in article 260 of the Constitution were fully applicable to the staff, chairperson and members of the Board of Kenya Revenue Authority. Section 5(1) of the Kenya Revenue Authority Act provided that the KRA would, under the general supervision of the minister, be an agency of the Government for the collection and receipt of all revenue.
  8. Article 233 of the Constitution established the Public Service Commission. It had powers and functions which could be exercised over other government bodies except those excluded under article 233 of the Constitution. The Kenya Revenue Authority was not one of the entities excluded under that provision and therefore, the Public Service Commission could exercise power with respect to the Kenya Revenue Authority.
  9. The functions and powers of the Public Service Commission were provided under article 234 (2) of the Constitution. Those functions and powers could be delegated in writing by the Public Service Commission to any one or more of its members, or to any officer, body or authority in the public service. The Board of KRA was a body to which those functions and powers could be delegated.
  10. Under article 249 (2) (a) of the Constitution, the Public Service Commission was subject to the Constitution and the law. It had power to establish and abolish offices in the public service and appoint persons to hold or act in those offices and to confirm appointments, as per the provisions of article 234(2) (a) of the Constitution. The powers to establish and abolish offices in the public service, to appoint persons to hold or act in those offices and to confirm appointments could be limited by statute or all together taken away by statute. It was not uncommon for legislation to create public bodies and offices or to make appointment to public offices by designating public office holders as duly appointed.
  11. Parliament could legislate on matters that were within the functions of the Public Service Commission. Such matters would include recruitment and selection procedures, promotional criteria, transfer and deployment criteria, work load analysis and parameters to consider in the establishment and abolition of offices and generally all matters incidental to establishment and abolition of offices, appointments and confirmation of appointments.
  12. Parliament was entitled to enact section 7(3) of the State Corporations Act. That provision empowered the President to revoke the appointment of a board of a state corporation and to appoint another board in its place. In enacting the provision Parliament transferred the power to initiate appointments in that regard by way of nominations to the President from the Public Service Commission. Article 234(2) (a) of the Constitution provided that the Public Service Commission’s function and power to appoint was subject to legislation.
  13. Under section 7(3) of the State Corporations Act, the reason for revocation of the appointment of a board of a state corporation by the President had to be a statutory reason; namely, failure of the board to undertake functions in national interest. There was no allegation or evidence tendered to show that the statutory test or circumstance had not accrued.
  14. The provisions of section 7(3) of the State Corporations Act were consistent the requirements of article 47 on fair administrative action and article 236 of the Constitution which offered protection to public officers. Article 236 of the Constitution protected public officers from being victimised or discriminated against for having performed the functions of office in accordance with the Constitution or any other law or being dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.
  15. Section 7(3) of the State Corporations Act existed as a remedial or emergency temporary measure rather than the norm. It was an exception to the general provisions on appointment and removal or dismissal in the public service.
  16. Section 7(3) of the State Corporations Act did not confer upon the President power to establish an office. Therefore, article 132 (4) (a) which provided that the President had power to establish an office in the public service in accordance with the recommendation of the Public Service Commission was not applicable.
  17. There was nothing unconstitutional about the establishment and functions of the State Corporations Advisory Committee under sections 26 and 27 of the State Corporations Act. section 27 (c) of the Act in so far as it vested an advisory function in the Advisory Committee did not take away anything from the powers and functions of the Public Service Commission and even if it had taken away something, it was within Parliament's authority to enact it as envisaged in article 234(2) (a) of the Constitution.
  18. Section 6 (2) (a) of the Kenya Revenue Authority Act provided that the Board of Directors of the KRA had to comprise, amongst other members, a chairman to be appointed by the President and section 6 (2) (e) of the Act provided that the Board shall as well comprise, amongst other members, six other persons appointed by the Minister by virtue of their knowledge and experience in accountancy, commerce, law, taxation, business administration or public administration. Those statutory provisions were not unconstitutional. The functions and powers of the Public Service Commission under article 249(2)(a) were subject to legislation. The provisions of section 6 of the Kenya Revenue Authority Act were capable of being implemented within the applicable constitutional tests and standards on public service employment.
  19. Where a statutory provision was enacted pursuant to a constitutional provision and its content was not shown to be inconsistent with any constitutional provision, even where the manner in which the provision was applied in a given instance violated a given constitutional provision, the statutory provision would not be unconstitutional. The unconstitutional application of a statutory provision, that was not inherently unconstitutional, would only render the outcome, decision or process of the unconstitutional application null and void.
  20. Sections 7(3), 26 and 27(c) of the State Corporations Act and sections 6(2)(a) & (e) of the Kenya Revenue Authority Act were not unconstitutional and therefore, they were not invalid, null and void. The sections as enacted were in line with articles 132(4) (a), 234(2) (a) and 249 (2) (a) of the Constitution. The statutory provisions had not been shown to inherently contain unconstitutional content, they were capable of being constitutionally applied, and they were therefore not unconstitutional.
  21. Outside the urgent remedial measures under section 7(3) of the State Corporations Act, normal appointments under section 6(2) (a) and (e) respectively of the Kenya Revenue Authority Act had to comply with the criteria for appointment as prescribed in articles 232, 73, and 10 of the Constitution.
  22. As much as sections 6(2) (a) and 6(2)(e) of the Kenya Revenue Authority Act gave the President and the Cabinet Secretary the power to appoint the KRA Board, the sections did not provide for the recruitment and selection criteria of the persons to be appointed. The Public Service Commission Act, 2017 would provide for the applicable procedure and criteria. If legislation had provided for the specific or special recruitment and selection criteria for the Board the Public Service Commission Act would not apply.
  23. Temporary and remedial appointments done by the President, pursuant to section 7(3) of the State Corporations Act, would not be unconstitutional for want of competitive recruitment and selection as such appointments were clearly vested in the President’s discretion by statute and in the specific statutory circumstance.
  24. A gazette notice would serve as a notification to the public and it did not constitute the instrument of the decision of which it gave notice. The gazette notices did not constitute the President’s instrument for appointment of the 1st to 5th interested parties and therefore there was no material before the Court to allow for a finding on whether such instrument of appointment complied or did not comply with article 135 of the Constitution. Without evidence of non-compliance, the reasonable presumption was that the instrument of the respective appointments complied with article 135 of the Constitution.
  25. The petitioner did not identify a provision of law that barred retroactive appointments. Section 35 of the Public Service Commission Act, 2017 provided that the effective date of appointment, acting appointment, promotion or re-designation would be the date of the decision to appoint, promote or re-designate or such date as the Commission or authorised officer would determine. Therefore, there was no basis to find that the retroactive appointments were unlawful.

Preliminary objection and petition dismissed. The respondents were to pay 50% of the petitioner's costs.

CONSTITUTIONAL LAW Court awards compensation to students who were forced to graduate later than expected, owing to the university’s refusal to rectify the situation

Charles Kaindo Kuria & 20 others v Technical University of Kenya [2019] eKLR
Petition 607 of 214
Constitutional & Human Rights Division
High Court at Nairobi
J A Makau, J
May 2, 2019
Reported by Ian Kiptoo and Kadzo Jally

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Constitutional Law - fundamental rights and freedoms - right to inherent dignity and the right to have that dignity protected - enforcement of - where a university’s commission and/or omission caused the petitioners to graduate later than their fellow classmates - whether students’ right to inherent dignity was violated when a university failed to ensure that students graduated on time owing to a university’s failure to ensure that students re-sat their exam –Constitution of Kenya, 2010, articles 28
Constitutional Law - fundamental rights and freedoms - right to fair administrative action - enforcement of – where a university failed to take any action for a period of 1 year and 6 months - where a university did not give written reasons to the petitioners of the reasons why they were not graduating - whether students’ right to fair administrative action was violated by a university’s failure to ensure the students re-sat their exam and graduated on time as it violated their legitimate expectation and the university failed to give written reasons for their action as required by law - Constitution of Kenya, 2010, article 47; Universities Act, section 63(3)
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - award of damages - where petitioners were shut out of employment for over 1 year due to the respondent’s commission, and or omission - whether students were entitled to compensation as a result of a university’s failure to ensure that students graduated on time

Brief facts:
The petitioners were students in the respondent’s university pursuing a diploma in engineering who did not graduate when they were scheduled to due to the respondent’s commission and/or omission. The petitioners filed the instant petition on December 10, 2014 seeking several prayers including declaratory orders that the rights and freedoms of the petitioners under articles 27, 28, 47 and 50 of the Constitution of Kenya, 2010 (Constitution) had been violated; an order for compensation and that an inquiry as to the quantum be gone into; and costs be provided to the petitioners.
The respondents averred that the lecturer in charge of teaching the unit mathematics picked the answer scripts from the petitioners but failed to return them after marking, which left the respondent in a condition of confusion since it could not verify whether the petitioners duly passed their examination in order to be allowed to graduate.

Issues:

  1. Whether students’ right to inherent dignity was violated when a university failed to ensure that students graduated on time owing to a university’s failure to ensure that students re-sat their exam.
  2. Whether students’ right to fair administrative action was violated by a university’s failure to ensure the students re-sat their exam and graduated on time as:
    1. it violated their legitimate expectation; and
    2. the university failed to give written reasons for their action as required by law.
  3. Whether students were entitled to compensation as a result of a university’s failure to ensure that students graduated on time. Read More...

Held:

  1. Article 28 of the Constitution provided that every person had inherent dignity and the right to have that dignity respected and protected. The petitioners contented that their inherent dignity and right to have their dignity respected and protected had been violated since they were considered failures by their parents, college mates, community, friends and the society for not graduating at the required time. The petitioners’ classmates, friends and parents saw them as slow, not bright and equated them with failure.
  2. The petitioners’ allegations were not controverted. They demonstrated that their inherent dignity and right to have their dignity respected and protected was abrasively violated. That was a lifelong stigma that the petitioners had to live with since the damage done could not be undone and that kind of pain and suffering could only be compensated by an award of damages
  3. When a constitutional right was infringed, a court was required to determine whether such infringement was justified in terms of article 24 of the Constitution, which provided that rights in the Bill of Rights could be limited only 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, taking into account all relevant factors including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; and the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual did not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.
  4. Fair administrative action, as per article 47 of the Constitution, referred to administrative justice in public administration and was concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations and the right to a fair administrative action. Article 47 of the Constitution codified every person’s right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair and the right to be given reasons for any person who had been or was likely to be adversely affected by administrative action.
  5. It was not in dispute that the petitioners undertook all the examinations required by the respondent and successfully completed their programmed course in December and were qualified to graduate on December 18, 2014. The respondent unreasonably refused/declined and/or delayed to include the petitioners’ names in the graduation list for graduation ceremony slated for December 18, 2014. The petitioners sat for the mathematics examination paper which was collected for marking but the lecturer failed to return the papers or submit the marks for each respective petitioner.
  6. The petitioners had sat for the mathematics paper in May 2012 in their 2nd year of study. The respondent had 1 year before the petitioners sat for their 3rd and final year examination and also had 1 year and 6 months before the graduation date on December 18, 2014. The respondents had all the time needed to rectify the situation or take decisive action to dispose and resolve the matter by informing and asking the petitioners to re-sit the paper in view of the situation but the respondent failed to take expeditious, efficient, lawful, reasonable and procedurally fair action, notwithstanding, that the petitioners right or fundamental freedom had been or was likely to be adversely affected by its administrative action.
  7. No reason was given to the petitioners for their failure to graduate with other candidates notwithstanding the petitioners’ right to be given written reason for the respondent’s action. The respondent’s failure to take any action for a period of 1 year and 6 months was inefficient, unreasonable and procedurally unfair in light of article 47 of the Constitution and section 63(3) of the Universities Act. The criminal charges preferred against the respondent’s lecturer in December 2014 were just after the petitioners’ counsel letter was received by the respondent on November 13, 2014, which pointed to the fact that the respondent had no intention of taking any action to ensure the petitioners indeed graduated. That was the highest form of dereliction of duty by the respondent which ought not to go unpunished.
  8. The petitioners had to re-sit the examination after the court’s intervention. That forced the petitioners to re-schedule and re-sit a paper they were taught 1 year and 7 months earlier on. The course intended to have taken 3 years, took 5 years to complete leading to the petitioners loosing lifetime opportunities, as they could not secure the job opportunities as their peers, who undertook other courses within the same period. The petitioners could not be absorbed or employed without the academic certificate issued by the respondent hence they had to wait. The petitioners were punished by the respondent’s commission or omission and through no fault of their own.
  9. The respondent infringed article 47 of the Constitution as they failed to resolve the petitioners’ issue in time and within 6 months as required by law for the petitioners to graduate on time. The respondent knew and was aware that by their failure to act expeditiously, the petitioners’ rights and fundamental freedoms were likely to be adversely affected by their administrative action but failed to give written reasons for their action as required by the law.
  10. The respondent did not demonstrate to the court that it gave written reasons to the petitioners informing them the reasons why they were not graduating on December 18, 2014. The respondent’s actions were a clear violation of article 47 of the Constitution. The petitioners had legitimate expectation, that they would graduate in the year 2014 and contribute to the nation building but that was frustrated by the respondent’s action which was unjust, unfair, inefficient, unlawful, unreasonable and procedurally unfair and amounted to infringement of article 47(1) and (2) of the Constitution and also section 63(3) of the Universities Act and Technical University of Kenya charter.
  11. The principles applicable to award of damages for constitutional violations under the constitution had been explained exhaustively where it was held that a monetary award for constitutional violation was not confined to an award of compensatory damages. When the court was exercising the constitutional jurisdiction, the court was concerned with upholding or vindicating the constitutional right which had been infringed or breached and where an award of damages was to be made it was at the discretion of the court as it was not compensatory or punitive. It was a secondary remedy to be made only in the most appropriate cases to vindicate the rights violated.
  12. The petitioners had demonstrated to the satisfaction of the Court, that they were innocent victims of arbitrary and callous action, perpetrated upon them by the respondent. The petitioners did not in any way contribute to the delay in their graduation since the duty of administering and marking the examinations fell squarely upon the respondent. The petitioners during the period of waiting to know their fate, leading and re-siting the examination underwent a lot of mental torture, pain, loss and suffering and were entitled to damages due to omission on the part of the respondent. The petitioners, who should have taken their course for 3 years, took 5 years and graduated 1 year from the time they were supposed to graduate. The petitioners ought to have graduated in 2014.
  13. It had been submitted for the petitioners that Legal Notice No. 197 of Regulation of Wages (General Amendment Order 2013) under the Labour Institution Act read together with section 63(1) and (2) of the said Act, would be applicable. That under Artisan grade I, a sum of Kshs. 1062.60 was payable per day, and if 25 working days was used to calculate it translated to Kshs. 26, 585 per month. The petitioners urged that it would have taken some time for some of the petitioners to apply and be employed and that a period of 7 months would be reasonable in computing damages and sought an award of Kshs 185, 955 for each petitioner as adequate compensation.
  14. In the instant petition, the respondent was found liable for violating the petitioners’ right. The declaration to that effect articulated a fact of violation of the petitioners’ right but that was not going to be enough for the petitioners, whose rights had been infringed. The petitioners were shut out of employment for over 1 year due to the respondent’s commission, and or omission and as such the Court had to consider the nature of relief that could give full effect to the petitioners’ right. It would have taken about 7 months for the petitioners to be employed and the Court found 7 months reasonable as sought by the petitioners in computing damages and 20 working days as jobs were not available always but applied Kshs. 1062.60 per day giving Kshs. 21,252 per month. For 7 months each petitioner would have earned Kshs.148, 764. An award of Kshs.148, 764 for each petitioner was adequate.

Petition allowed with costs to be borne by the respondent
Orders:

  1. A declaration issued that the rights and freedoms of the petitioners under articles 28 and 47 of the Constitution had been violated.
  2. An order issued granting each of the petitioners an award of Kshs. 148,764/- as compensation for the violations of their bill of rights under articles 28 and 47 of the Constitution.
CIVIL PRACTICE AND PROCEDURE A stay order cannot be granted on an issue that cannot be legitimately solved by a court

Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others [2019] eKLR
Election Appeal Application 38 of 2018
Supreme Court of Kenya
M K Ibrahim, J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ
March 29, 2019.
Reported by Kakai Toili

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Civil Practice and Procedure – suits – institution of suits – institution of suits through interlocutory applications - whether an interlocutory application could originate proceedings before the Supreme Court
Civil Practice and Procedure – orders – stay orders – nature of - whether a stay order can be granted on an issue that can be legitimately solved by a court

Brief Facts:
Following the general election held in August 2017, the applicant was declared as the duly elected Member of the County Assembly for Abakaile ward in Daadab constituency. Aggrieved by that declaration, the 1st respondent challenged the declaration at the Chief Magistrate’s Court in Garissa. The Chief Magistrate’s Court dismissed the petition and held that the declared results reflected the will of the people. Aggrieved by that decision, the 1st respondent filed an appeal at the High Court which allowed the appeal and set aside the judgment of the Chief Magistrate’s Court and ordered the 4th respondent (IEBC) conduct a fresh election in accordance with the law.
Aggrieved by the High Court’s decision, the applicant filed an appeal at the Court of Appeal challenging the said decision. However, before the appeal was heard on merits, the 1st respondent filed an application seeking to strike out the applicant’s notice of appeal and a preliminary objection challenging the jurisdiction of the Court of Appeal to hear the appeal. The Court of Appeal upheld the preliminary objection and struck out the notice of appeal for want of jurisdiction. Aggrieved by the decision the applicant filed the instant application seeking stay orders against both the High Court and the Court of Appeal decisions.

Issues:

  1. Whether an interlocutory application could originate proceedings before the Supreme Court.
  2. What was the nature of stay orders and whether a stay order could be granted on an issue that could be legitimately solved by a court?Read More...

Held:

  1. The applicant filed the instant application without first filing a substantive appeal. The appeal was in fact a month after the filing of the application. An interlocutory application could not originate proceedings before the Court. A stand-alone application would not generally be considered as it was not predicated upon a substantive matter before the Court and remained unknown in law.
  2. In the instant case, the applicant subsequently filed his petition of appeal enumerating the grounds in which the intended appeal stood and the consequential orders that he sought. The Court would not ordinarily consider the applicant’s application which was unprocedurally filed. Nonetheless, at the time the Chief Justice constituted the instant Bench, the applicant had already filed his appeal. In the interests of justice therefore, the application was deemed as properly filed in order to avoid unnecessary delay in determining it, especially considering the nature of elections petitions which were regulated by time bound procedures.
  3. A stay order denoted that neither party nor interested individual nor entity was to take action until the Court had given the green light. The Court had jurisdiction to grant stay orders for the purpose of safeguarding the character and integrity of the subject-matter of the appeal, pending the resolution of the contested issues. Stay orders were generally temporary measures meant to preserve the subject matter of an appeal, pending the final determination of the case.
  4. If the Court found that the Court of Appeal had jurisdiction to hear appeals arising from the election of a Member of a County Assembly, it would mean that the Court of Appeal wrongly struck out the applicant’s notice and record of appeal and certain consequential orders would have to be issued. Even if the appeal could be arguable, staying the Court of Appeal’s ruling was unnecessary and would serve no purpose as there was no subject matter which was required to be preserved. The Court of Appeal only struck out the notice and record of appeal without more. There was nothing to be stayed.
  5. The High Court decision which nullified the applicant’s election was not the subject of instant appeal. Since the Court of Appeal found that it had no jurisdiction to hear appeals arising from the elections of the Member of County Assemblies, it did not determine the question of the validity of the election for the Member of County Assembly for Abakaile ward. As a result, the High Court decision was never determined on appeal. Indeed, in his petition of appeal, the applicant appreciated that when he sought the prayer for the remittal of the matter to the Court of Appeal for hearing on merit. Therefore, since the question of the validity of the election of the Member of County Assembly of Abakaile ward was not before the Court, a stay order could not be granted on an issue that could not be legitimately solved by the Court.

Application dismissed, applicant to bear the costs.

CONSTITUTIONAL LAW The scope of the Attorney General’s advisory powers with regard to Government and State Corporations

Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] eKLR
Judicial Review Miscellanous Application 364 of 2018
High Court at Nairobi
June 4, 2019
P Nyamweya, J
Reported by Kakai Toili

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Constitutional Law –Executive -office of the Attorney General – powers of the Attorney General – advisory powers – scope of- what were the factors to consider in determining whether guidelines issued by the Attorney General were statutory instruments - what were the factors to consider in deciding whether a statutory power or duty had been lawfully exercised - whether the Attorney General had the power to determine procedures of contracting in the procurement of goods, works and services by Government entities - Constitution of Kenya, 2010, article 156 & 227; Office of the Attorney General, section 4, 18, 19, 20 & 32; Public Procurement and Asset Disposal Act, 2015, section 5(1), 134 &135
Judicial Review – judicial review applications – filing of judicial review applications – timelines for filing judicial review applications - where the last date for filing the application fell on a Sunday - what was the proper way of calculation of time for filing a judicial review application where the last date for filing the application fell on a Sunday - Civil Procedure Rules, 2010, order 53 rule 2; Interpretation and General Provisions Act, section 57
Civil Practice and Procedure – suits – parties to a suit – interested parties – enjoining of interested parties to a suit - what were the requirements to be met for a person to be enjoined as an interested party in a suit - Law Society of Kenya Act, section 4
Jurisdiction – jurisdiction of public bodies – acting without jurisdiction - what were the circumstances in which a public body would be considered to have acted without jurisdiction
Words and Phrases – advice – definition of advice - guidance offered by one person, especially a lawyer, to another - Black’s Law Dictionary, Ninth Edition at page 63
Words and Phrases - representative – definition of a representative – a representative is one who stands for or acts on behalf of another - Black’s Law Dictionary, Ninth Edition at page 1416

Brief Facts:
The respondent issued directives through Circular Reference Number AG/CIRCULAR/2018 dated March 1, 2018 and titled “Guidelines on Provision of Legal Services by the Office of the Attorney General and Department of Justice(the Circular). Aggrieved by the guidelines contained in the said Circular, the ex parte applicant filed the instant application. It was alleged that the respondent, through the Circular, had directed that the engagement of external lawyers by State Corporations, Constitutional Commissions and Independent Offices required his written approval and concurrence as related to their terms of reference and fees payable, to which he had to first issue a certificate of appointment. It was further alleged that no legal fees was to be processed without the respondent’s approval and authorization.
The ex parte applicant alleged that he was on the panel of external lawyers for various corporations, wherefrom he had been obtaining legal work. He contended that the Circular had adversely affected him and other members of the interested party. The respondent subsequently filed a notice of preliminary objection based on the grounds that the application was statute barred by limitation, having been filed outside the prescribed time limit of six months and that the Law Society of Kenya had been improperly enjoined as an interested party in the proceedings, being a party that could not be affected by the orders sought.

Issues:

  1. What was the scope of the advisory powers of the Attorney General?
  2. What was the proper way of calculation of time for filing a judicial review application where the last date for filing the application fell on a Sunday?
  3. What were the requirements to be met for a person to be enjoined as an interested party in a suit?
  4. What were the factors to consider in determining whether guidelines issued by the Attorney General were statutory instruments?
  5. What were the circumstances in which a public body would be considered to have acted without jurisdiction?
  6. What were the factors to consider in deciding whether a statutory power or duty had been lawfully exercised?
  7. Whether the Attorney General had the power to determine procedures of contracting in the procurement of goods, works and services by Government entities. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 156
(4) The Attorney-General—

(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.

(5) The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.
(6) The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.
(7) The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Civil Procedure Rules, 2010
Order 50 Rule 8
In any case in which any particular number of days not expressed to be clear days is prescribed under these rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.

Order 53 Rule 2
2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

Interpretation and General Provisions Act
Section 57
In computing time for the purposes of a written law, unless the contrary intention appears—

(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;
(c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.

Office of the Attorney General Act
Section 18
(1) The Attorney-General shall exercise powers, issue directives or practice notes to any officer to whom this Act applies for the purpose of maintaining standards and uniformity.
(2) The directives or practice notes issued pursuant to subsection (1) shall be in such form and manner as the Attorney-General may determine.

Section 32
The Attorney-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted to be prescribed, or necessary or convenient to be prescribed or carrying out or giving effect to this Act.

Held:

  1. The timelines for filing of judicial review proceedings for orders of certiorari was regulated by order 53 rule 2 of the Civil Procedure Rules. If not complied with order 53 rule 2 ousted the jurisdiction of the Court. That was thus a pure point of law. In the instant application, the circular whose contents were sought to be quashed by an order of certiorari was dated March 1, 2018, and the time for purposes of bringing judicial review proceedings therefore started to run on the next day which was March 2, 2018. Six months thereafter lapsed on September 2, 2018, that date fell on a Sunday and was therefore excluded for purposes of computing time. The ex parte applicant filed his chamber summons application for leave in court on September 3, 2018, which was the last day of the deadline for filing judicial review proceedings in the circumstances. The instant judicial review proceedings were therefore filed within time.
  2. Whether or not the interested party had been properly joined, the Court would need to interrogate the said party’s stake and interests that were likely to be affected by the proceedings. That was thus not a pure question of law. A preliminary objection was in the nature of what used to be a demurrer. It raised a pure point of law which was argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained or if what was sought was the exercise of judicial discretion. A preliminary objection could not therefore be raised if any fact required to be ascertained.
  3. The interested party entered appearance in the instant proceedings, and did not dispute its joinder. On the contrary, the interested party actively participated in the proceedings and outlined its statutory functions as provided under section 4 the Law Society of Kenya Act. A person was legally interested in the proceedings if they lead to a result that would affect him by either establishing or curtailing his or her legal rights. It was evident that the Law Society of Kenya had a stake in the impugned provisions of the Circular, to the extent that the said guidelines could affect the practice of law by members of the legal profession, and the proper administration of justice. It was therefore properly joined in the instant proceedings as an interested party.
  4. The Statutory Instruments Act regulated the making, scrutiny, publication and operation of statutory instruments, and defined a statutory instrument as any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation was expressly authorized to be issued. Therefore a statutory instrument was a category of delegated legislation, which had to be made pursuant to express enabling statutory power. The respondent was expressly granted two types of powers in that regard under the Office of the Attorney General Act:
    1. An executive power to provide directions and practice notes to officers to whom the Act applied.
    2. An express legislative power to make regulations which was granted under section 32 of the Act.
  5. From the definition of statutory instruments and the powers granted to the respondent, not all the guidelines, orders, or directions given by the respondent were legislative in character and therefore statutory instruments. There could be guidelines and directions that were purely executive in character, in the sense that their objectives were solely administrative in guiding implementation of standards in laws and policies. In the instant application, the Circular set out its purpose in paragraph 3 thereof.
  6. There was no reference in the Circular to any statutory provision empowering the guidelines, or to indicate that the same were being made in exercise of any legislative powers. Thus, the said Circular was not made in exercise of the legislative powers granted to the respondent and its purpose was clearly stated to be explanatory. It was therefore not a statutory instrument as envisaged by the Statutory Instruments Act, and was therefore not subject to the procedure set out in the said Act as regards enactment of statutory instruments, including the requirements of consultation and publication.
  7. Illegality was a failure by a public body to understand correctly the law that regulated its decision making power, or a failure to give effect to that law. Lack of jurisdiction could arise in various ways;
    1. there could be an absence of those formalities or things which were conditions precedent to the tribunal having any jurisdiction to embark on an inquiry,
    2. or the tribunal could at the end make an order that it had no jurisdiction to make,
    3. or in the intervening stage, while engaged on a proper enquiry, the tribunal could depart from the rules of natural justice;
    4. or it could ask itself the wrong questions;
    5. or it could take into account matters which it was not directed to take into account.

    Thereby it would step out of its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament directed. Any of those things would cause its purported decision to be a nullity.

  8. It was necessary when deciding whether a statutory power or duty had been lawfully exercised or performed, to identify the scope of that power and duty, and which involved construing the legislation that conferred the power and duty. Article I56 of the Constitution in that respect established the office of the Attorney General as an office in the Executive arm of the National Government and provided that the Attorney General was to be appointed by the President with the approval of the National Assembly. The specific duties of the Attorney General were set out in article 156 (4) to (7) of the Constitution.
  9. A key presumption that came to play in construing and interpreting the respondent’s powers and functions in making the said guidelines, was that of the application of rules of constitutional law and ancillary rules of law. That was particularly so because the respondent’s role and functions as the principal legal adviser to the National Government was to ensure that the rule of law was maintained, and that Government actions were legally and constitutionally valid. Therefore, unless any contrary intention appeared, the provisions on the functions and powers of the respondent by implication imported any principle or rule of the Constitution and of law which prevailed and was relevant to the operation of the respondent’s powers. Put another way, the respondent’s powers could not be construed as operating in a vacuum, but in tandem with the existing constitutional and legal infrastructure.
  10. Guideline D of the Circular on provision of legal services stated that its purpose was to give legal advice as regards transactions and agreements that the Government entered into which gave rise to contractual obligations, and gave various instructions in that regard. The said Guideline was thus subject to any other laws that could govern particular contracts entered into by Government, and which law would override the said guidelines in the event of any conflict or inconsistency. That was for the reason that the guidelines were essentially administrative in nature, and the doctrine of ultra vires would come into play where they conflicted with substantive legislation.
  11. The procurement of goods and services by public entities was regulated by article 227 of the Constitution, which required a fair, transparent, competitive and cost effective system, and which stated that a legislative framework should be developed for that purpose. The relevant legislative framework was the Public Procurement and Asset Disposal Act of 2015(PPAD Act), which provided for the awarding of contracts after the prescribed procurement processes in sections 134 and 135.
  12. The PPAD Act provided at section 5(1) that the Act prevailed in case of any inconsistency between the Act and any other legislation or Government notices or circulars, in matters relating to procurement and asset disposal, except in cases where procurement of professional service was governed by an Act of Parliament applicable for such services. It was thus evident from the said provisions that the power to make contracts in public procurement was exclusively given to the accounting officer of the procuring entity, and the only powers given to the respondent were with respect to clearance of contracts that exceeded the value of Kshs five billion.
  13. To the extent that paragraphs 18 to 24 of guideline D purported to change and amend the provisions of sections 134, 135 and 138 of the PPAD Act as regards the procedures of contracting in the procurement of goods, works and services by Government entities, without any express power having been granted to the respondent to do so, the same were ultra vires. The respondent could in that respect only provide guidelines that clarified the processes of clearance of the contracts for the value of over Kshs 5 billion as envisaged by section 134 (2) of the PPAD Act.
  14. The powers of the respondent required to be interpreted in line with other applicable provisions of the Constitution and statutes. There were existing constitutional and legal provisions that regulated the matters covered by Guidelines D, H and L and which specifically assigned constitutional and statutory responsibility and accountability as regards procurement of legal services and payment of legal fees to different public and private authorities. The office of the respondent was an office in the Executive arm of Government, and its functions of legal services as set out in article 156 of the Constitution and section 4 of the Office of the Attorney General Act vis-à-vis constitutional commissions, state corporations and other governmental bodies was advisory.
  15. The exercise of the respondent’s advisory powers with respect to legal services could be upon request from Government ministries, departments and State corporations, or suo moto, in matters the administration of justice and the public interest were at stake, in his capacity the custodian of the rule of law and public interest as specifically recognized by article 156(6) of the Constitution. Section 19 and 20 of the Office of the Attorney General Act in that respect provided that Government ministries, departments and State corporations should seek the opinion of the respondent on any matter raising substantial legal or constitutional issues, and should notify the respondent. In addition, where such legal advice was rendered, it should not be lightly disregarded and the responsible officer could be held to account for disregarding such advice.
  16. No express provisions of the law permitted the respondent to limit the constitutional independence of the constitutional commissions or independent offices within the context of article 249 of the Constitution. Likewise, no constitutional or statutory provisions gave the respondent powers to interfere with, or limit the constitutional and statutory individual responsibility, and operational independence specifically bestowed upon Cabinet Secretaries, State Corporations and accounting officers. In that regard the constitutional independence of constitutional commissions and independent offices was guaranteed by the Constitution.
  17. Cabinet Secretaries were responsible for matters that arose in their ministries, and when reporting to Parliament, article 152 (8) of the Constitution provided that they had the right to appear and be represented when being investigated by Parliament. They could thus be sued for matters that arose in their ministries in their capacity as Cabinet Secretaries. In addition to Cabinet Secretaries, the Constitution in article 155 placed the responsibility of administration of State departments in Principal Secretaries, who could thus be held accountable for any maladministration. Functional independence was also bestowed upon State Corporations by section 3 of the State Corporations Act.
  18. Statutory underpinning was given to the concept of accountability for expenditure of public funds under both the PPAD Act and the Public Finance Management Act (PFMA Act), which provided for and allocated responsibility in public expenditure to accounting officers. Accounting officers in National Government under the two Acts were appointed by the Cabinet Secretary in charge of Finance under section 67 of the PFMA Act, which also provided for the accounting officers for constitutional commissions or Independent Offices.
  19. A holistic interpretation of the Office of the Attorney General Act required that it was not applied in a manner that would inhibit the performance of constitutional and statutory duties conferred upon other governmental entities. Unlike the position that obtained in Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others, [2015] eKLR where the Salaries and Remuneration Commission had been given express powers that limited the powers of other constitutional commissions and governmental entities as regards the salaries and benefits that they could pay, no such powers were expressly granted to the respondent in the exercise of its legal advisory powers.
  20. The ultimate responsibility and accountability for decision making and performance of duties at the end of the day would lie with the repository of the applicable constitutional and statutory duties, as expressly recognized by the respondent in paragraph 30 of its guideline D of the Circular and those repositories could not therefore be prevented from performing their duties without a good and legal reason. Neither the Constitution, nor the Office of the Attorney General Act granted the respondent in the exercise of its advisory function, powers to prescribe or limit duties which were constitutionally and lawfully granted to other government entities, as was attempted by guideline D, H and L, and indeed any other guidelines which had that effect in the Circular.
  21. An ordinary interpretation of the function of the respondent in representing the National Government was that the respondent acted on behalf of National Government agencies in litigation. Therefore the respondent in that respect acted as an agent of the National Government entities upon instruction, and its functions of representing the National Government could not be interpreted to extend to being the originator of the instructions by National Government entities, and certainly did not include or involve procurement of legal services for the other National Government entities. Section 17(1) of the Office of the Attorney General Act had to also be read and interpreted in that context.
  22. The Chief Justice regulated remuneration of advocates by enacting the Advocates Remunerations Order pursuant to section 44 of the Advocates Act. Part IX of the Advocates Act also regulated agreements on remuneration as between advocates and clients, recovery actions for the said remuneration and the payment of fees in the absence of agreements, which was done by way of taxation of the costs by a taxing officer. In the context, guidelines H and L of the Circular were ultra vires to the extent that they sought to direct other bodies which were granted constitutional and statutory powers and independence in the manner they should act, went beyond the functions granted to the respondent under the Constitution and in relation to provision of legal services, and were made in excess of powers granted to the respondent in that regard. In addition, the said circulars were also contrary to provisions in the Constitution, the State Corporations Act, the Public Procurement and Asset Disposal Act, and the Advocates Act that regulate the procurement of, and payment for legal services.
  23. A public body when making a decision had to take into account all the factors which the legislation conferring the relevant function expressly or implicitly required it to have regard. The extent to which a public body inquired into a particular factor and the weight to be attached to a factor, were however matters to be decided by the public body, provided it acted reasonably. In addition, the considerations to be taken into account would also depend on the circumstances of each case.
  24. The respondent did not bring any evidence of consultation with any of the affected parties affected by the Circular, and in addition failed to comply with the provisions of its own statute which specifically required it to consult with the interested party on any matter affecting the legal profession under section 4 of the Office of the Attorney General Act. The respondent in making the impugned guidelines H and L was procedurally ultra vires tothe Office of the Attorney General Act and procedurally unfair.
  25. The Court could not make a finding that the impugned guidelines were unreasonable as the respondent provided its reasons for making the guidelines. Even though some of the reasons could have been erroneous and not supported by the law and in the absence of any other evidence by the interested party to demonstrate their unreasonableness, they could not be said to have been in defiance of logic and acceptable moral standards.
  26. The respondent made express representations as regards the exercise of its statutory functions in the impugned guidelines in the Circular. A legitimate expectation was thus created by the representations made in the impugned guidelines that the exercise of its functions as stated therein would be within the law. That expectation was however violated by the respondent when it acted in excess of its powers in making the impugned guidelines.

Application partly allowed, preliminary objection dismissed.

  1. An order of certiorari was issued to bring into the Court for the purposes of quashing the decision, paragraphs 18 to 24 of Guideline D, and Guidelines H and L in the respondent’s Circular reference number AG/Circular/2018 dated March 1, 2018 and titled “Guidelines on Provision of Legal Services by the Office of the Attorney General & Department of Justice”.
  2. An order of prohibition was issued to prohibit and/or restrain the respondent from in any manner implementing or seeking to enforce the implementation of, or further implementation of, paragraphs 18 to 24 of Guideline D and Guidelines H and L in the respondent’s Circular Reference Number AG/Circular/2018 dated March 1, 2018 titled “Guidelines on Provision of Legal Services by the Office of the Attorney General & Department of Justice”.
  3. The respondent to meet the ex parte applicant’s and interested party’s costs of the notice of motion dated October 26, 2018.

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