Weekly Newsletter 033/2019



Kenya Law

Weekly Newsletter


The remedies listed under section 49 of the Employment Act are available at the discretion of the Court in all situations of unfair or wrongful termination.
Kenfreight (EA) Limited v Benson K Nguti
Petition 37 of 2018
Supreme Court of Kenya at Nairobi
P M Mwilu, DCJ & DP, M K Ibrahim, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
July 23, 2019
Reported by Beryl Ikamari
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Employment Law-termination of an employment contract-termination in accordance with contractual terms as compared to statutory termination-termination via payment in lieu of notice-remedies for wrongful termination-whether the remedies listed under section 49 of the Employment Act would apply to a claimant whose employment contract was terminated by the making of payment in lieu of notice as per the terms of the contract-Employment Act 2007, sections 35, 36 & 49.


Brief facts :

The respondent's employment contract was terminated by the appellant with effect from December 1, 2010. The respondent filed Cause No 146 of 2013 in which he contended that his termination, which had the purpose of replacing him with a Belgian national, was wrongful. He stated that there were no justifiable reasons for his termination and that he was not afforded a hearing before being terminated. He added that the terminal dues he was paid were grossly below what was payable under the existing practice in the appellant company. He sought court orders, inter alia, to declare his termination unlawful and to reinstate him. The trial court declared the termination unlawful and awarded a total of Kshs. 8,116,344/= with costs and interest as compensation.
The appellant lodged an appeal at the Court of Appeal. It asserted that the trial court made an erroneous finding to the effect that the termination was unlawful. It explained that the respondent was terminated in exercise of the appellant's contract right to give one month's notice of termination. It urged that the right to terminate the contract existed independently of the statutory right of termination under which valid reasons had to be given for the termination and an employee had to be given a hearing with strict adherence to procedural requirements being necessary. The appellant said that there were reasons for the termination which could have allowed for the invocation of the statutory procedure but it elected to terminate the respondent by making payment in lieu of notice. The Court of Appeal dismissed the appeal and made the finding that the termination was unfair in spite of the payment made in lieu of notice.
At the Supreme Court, the appellant filed an appeal based on various grounds. It asserted that even if the termination was unfair, under section 46 of the Employment Act the maximum damages that could be awarded were equivalent to pay for the notice period and that section 43(a) and 47(5) of the Employment Act were inapplicable for a termination effected in accordance with mutually agreed contractual terms.


Issue:

Whether the remedies listed under section 49 of the Employment Act would apply to an employee who was terminated via the making of payment in lieu of notice in accordance with the terms of an employment contract.


Relevant provisions of the law.
Employment Act, 2007
Section 49
;

49. Remedies for wrongful dismissal and unfair termination
(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following—

(a) the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
(b) where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract;
(c) or (c) the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.

(2) Any payments made by the employer under this section shall be subject to statutory deductions.
(3) Where in the opinion of a labour officer an employee’s summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to—

(a) reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
(b) re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.

(4) A labour officer shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following—

(a) the wishes of the employee;
(b) the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and
(c) the practicability of recommending reinstatement or re-engagement;
(d) the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
(e) the employee’s length of service with the employer;
(f) the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
(g) the opportunities available to the employee for securing comparable or suitable employment with another employer;
(h) the value of any severance payable by law;
(i) the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
(j) any expenses reasonably incurred by the employee as a consequence of the termination;
(k) any conduct of the employee which to any extent caused or contributed to the termination;
(l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and
(m) any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.

Held:

  1. One of the ways in which an employment contract could be terminated was the issuance of notice under section 35 of the Employment Act. There was a right under section 35 as read with section 46 of the Employment Act for an employee terminated via notice to dispute the lawfulness of the termination. Further, under section 36 of the Employment Act, either party to an employment contract to which section 35(5) applied could terminate the contract without issuing notice while paying remuneration which would have been paid during the notice period.
  2. Section 49 of the Employment Act provided for remedies for unfair termination of an employment contract. When giving an award, the Court had discretion to determine what was fair under the circumstances. However, the Court's discretion was to be based on the set parameters including the limiting of the award to a maximum of the equivalent of 12 months' salary.
  3. The Court of Appeal's decision could not be said to be inconsistent with the decision of the same court in CMC Aviation Limited v Mohammed Noor, Civil Appeal No. 199 of 2013, [2015] eKLR. The facts in that case were different from the facts in the instant case. The respondent in that case was summarily dismissed while the respondent in the instant case was dismissed via payment in lieu of notice.
  4. In CMC Aviation Limited v Mohammed Noor, Civil Appeal No. 199 of 2013 the Court of Appeal found that the respondent was only entitled to an award of one month’s salary, the equivalent of the notice period as per the employment contract, as compensation. However, that finding did not mean that the remedy available for summary dismissal was limited to one month's salary. That was how the Court exercised its discretion in that instance.
  5. The decision as to what would constitute an appropriate remedy was at the discretion of the Court. Section 49 of the Employment Act listed several remedies that could be granted for unfair termination and it was up to the Court to decide on whether to grant any or all of the remedies. It did not matter how the termination was done, section 49 of the Employment Act would apply for purposes of determining the nature of the appropriate relief.
  6. The Court of Appeal’s finding on whether or not the amount of Kshs. 3, 258, 245/= formed ex gratia payment or any other payment to be subjected to section 49(4)(m) of the Employment Act was an exercise of discretion. The appellant did not demonstrate how that exercise of discretion was wrongful. Therefore, there was no reason to interfere with the Court of Appeal's finding on that issue.
Petition of appeal dismissed with costs.
Kenya Law
Case Updates Issue 034/2019
Case Summaries

CONSTITUTIONAL LAW The directive banning outdoor advertisement of gambling was tainted with illegality, irrationality, unreasonableness and procedural impropriety and thus invalid

Republic v Betting Control and Licensing Board and another ex parte Outdoor Advertising Association of Kenya
Miscellaneous Civil Application 142 of 2019
High Court at Nairobi
J M Mativo, J
May 28, 2019
Reported by Ian Kiptoo

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Constitutional Law – fundamental rights and freedoms – right to fair administrative action – enforcement of the right to fair administrative action – claim that banning outdoor advertisement without giving the advertisers a right to be heard or participate violated their right to fair administrative action - whether the impugned decision violated the rights of outdoor advertisers to fair administrative action by not affording outdoor advertisers the right to be heard and participate – Constitution of Kenya, 2010, article 47
Judicial Review - certiorari and prohibition – grounds for judicial review – illegality – where Betting, Control and Licensing Board issued a directive banning outdoor advertising of gambling – where the Constitution provided that powers and functions of the county included betting, casinos and other forms of gambling - whether the impugned decisions were illegal for being ultra vires as the Cabinet Secretary of the Ministry of Interior and Coordination of National Government acted outside his powers in banning outdoor advertising – Constitution of Kenya, 2010, article 186 (1); Sixth Schedule to the Constitution, section 4; Betting, Lotteries and Gaming Act, section 70
Statutes – statutory instruments – directive – where communication banning outdoor advertising on gambling was through a letter and press statement – where communication was referred to as regulations - whether the letter dated April 30, 2019 and press statement of May 2, 2019 from the Betting, licensing and Control Board was a directive as defined in section 2 of the Statutory Instruments Act from the Betting, licensing and Control Board was a directive as defined in section 2 of the Statutory Instruments Act – Statutory Instruments Act, section 2
Statutes – statutory instruments – regulations – what were the considerations a committee established under section 13 of the Statutory Instruments Act considered for a statutory instrument to be valid - Statutory Instruments Act, sections 13 and 15(2)
Judicial Review - certiorari and prohibition – grounds for judicial review – unreasonableness and irrationality – Wednesbury reasonableness test - claim that the impugned decisions were unreasonable and irrational - whether the impugned decision was unreasonable and irrational for: prescribing the manner of placement of outdoor advertisements without justifying the reasons for the same; and banning outdoor advertising with immediate effect yet inviting views from stakeholders of the outdoor advertising industry - Fair Administrative Action Act, section 7(2) (i) and (k)

Brief Facts:
The 1st respondent issued a directive to the effect that: it had banned outdoor advertising of gambling, advertising of gambling on all social media platforms, advertising gambling between 6am and 10pm and endorsement of gambling operations by celebrities. In addition, the 1st respondent directed that it had to approve any form of advertisement, and decreed that, any such advertisement had to contain a warning message about the consequences of gambling and its addictiveness, which had to constitute a third of the actual advertisement and be of the same font. Furthermore, it directed that the requirement was to be complied with on or before May 30, 2019.
The ex parte applicant sought orders of certiorari and prohibition on the grounds that: the 1st respondent did not have powers under the Act to control, regulate or ban outdoor advertising of gambling, which power was expressly donated to County Governments under part 2(3) of the Fourth Schedule to the Constitution; and that the 1st respondent, an administrative body, had to exercise its powers within the four corners of the enabling statute.

Issues:

  1. Whether the letter dated April 30, 2019 and press statement of May 2, 2019 (impugned decisions) banning outdoor advertising of gambling, were illegal for being ultra vires as the Cabinet Secretary of the Ministry of Interior and Coordination of National Government acted outside his powers in banning outdoor advertising.
  2. Whether the letter dated April 30, 2019 and press statement of May 2, 2019 from the Betting, licensing and Control Board was a directive as defined in section 2 of the Statutory Instruments Act.
  3. What were the considerations a committee established under section 13 of the Statutory Instruments Act considered for a statutory instrument to be valid?
  4. Whether the impugned decision was unreasonable and irrational for:
    1. prescribing the manner of placement of outdoor advertisements without justifying the reasons for the same; and
    2. banning outdoor advertising with immediate effect yet inviting views from stakeholders of the outdoor advertising industry.
  5. Whether the impugned decision violated the rights of outdoor advertisers to fair administrative action by not affording outdoor advertisers the right to be heard and participate. Read More...

Relevant Provisions of the Law
Betting, Lotteries and Gaming Act
Section 70
70. Regulations
The Minister may, after consultation with the Board, make regulations generally for the better carrying out of the purposes and provisions of this Act, and, without prejudice to the foregoing generality, any such regulations may provide for—

a. the procedure to be followed by the Board in exercising any powers conferred upon it by this Act;
b. the procedure to be followed in the making of an application for the issue, renewal or variation of a licence or permit issued under this Act;
c. the advertisement of an application for a licence or permit under this Act and of proceedings of the Board to consider and determine any such application;
d. the right of a person interested to object to an application for the issue, renewal or variation of a licence or permit under this Act, and for the form and manner of any such objection;
e. the form and manner in which returns or statements of accounts shall be furnished to the Board;
f. securing the payment of any fee.

Statutory Instruments Act
Section 2
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 is expressly authorized to be issued.

Fair Administrative Action Act
Section 7(2) (i)
A court or tribunal under subsection (1) may review an administrative action or decision, if- (i) the administrative action or decision is not rationally connected to- a) the purpose for which it was taken; (b) the purpose of the empowering provision;(c) the information before the administrator; or (d) the reasons given for it by the administrator.”

Held:

  1. Public bodies, no matter how well intentioned, could only do what the law empowered them to do. That was the essence of the principle of legality, the bedrock of Kenya’s constitutional dispensation, which was enshrined in the Constitution of Kenya, 2010 (Constitution). It followed that for the impugned decisions to stand; it had to be grounded on the law. As such, the respondent’s actions had to conform to the doctrine of legality. Put differently, a failure to exercise that power where the exigencies of a particular case required it, would amount to undermining the legality principle, which, was inextricably linked to the rule of law. The concomitant obligation to uphold the rule of law and, with it, the doctrine of legality, was self-evident. In that regard, the 1st respondent was constrained by that doctrine to enforce the law by ensuring that its decisions conformed to the enabling provisions of the law.
  2. Article 186(1) of the Constitution provided that except as otherwise provided by the Constitution, the functions and powers of the national government and the county governments, respectively, were as set out in the fourth schedule. Section 4, part 2 of the fourth schedule to the Constitution provided that the functions and powers of the county were- Cultural activities, public entertainment and amenities including- betting, casinos and other forms of gambling. Section 4 expressly conferred betting, casinos and other forms of gambling to the County governments. A clear reading of the provision left no doubt that the function in question had not been conferred upon the Ministry of Interior and Co-ordination of National Government.
  3. Section 70 of the Betting, Lotteries and Gaming Act (Act) conferred powers to the Minister to make regulations. Two consequences flowed from the provisions of the sixth schedule to the Constitution and section 70 of the Act:
    1. the Constitution conferred the function in question upon the County Governments. Differently stated, it was a devolved function; and
    2. section 70 of the Act did not provide for outdoor advertisements of gambling, or advertisements in the social media nor did it provide for the form or manner of advertising.

    The only relevant provision was section 70 (c) of the Act, which provided for the advertisement of an application for a licence or permit under the Act and of proceedings of the Board to consider and determine any such application. As the provision suggested, it only related to advertisement of an application for a license or permit under the Act.

  1. An administrative decision was flawed if it was illegal. A decision was illegal if it: -
    1. contravened or exceeded the terms of the power which authorized the making of the decision;
    2. pursued an objective other than that for which the power to make the decision was conferred;
    3. was not authorized by any power; and
    4. contravened or failed to implement a public duty.

    The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker.

  1. The instrument would normally be a statute or regulations. The courts when exercising the power of construction were enforcing the rule of law, by requiring administrative bodies and tribunals to act within the four corners of their powers or duties. They were also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power was in accordance with the scope and purpose of Parliament’s enactments. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
  2. Safeguarding legality was the most important purpose for the judicial review of administrative actions. Thus, in most administrative law systems, a person seeking judicial review of an administrative decision had to be able to persuade the court that there were grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there had to always be the premise of want of legality. That was because any administrative decision-making process involved the exercise of legally conferred powers and the observation of legally prescribed procedures.
  3. The most basic rules of administrative law were: first, that decision makers could exercise only those powers, which were conferred on them by law and, second, that they could exercise those powers only after compliance with such procedural prerequisites as existed. So long as administrators complied with those two rules, their decisions were safe. From the perspective of administrators and statutory bodies, the fundamental principle generally required that the exercise of powers of administrators and statutory bodies had to strictly comply with the law both substantively and procedurally. It followed, therefore, that the legality of an administrative decision or decisions rendered by government ministers could be judicially challenged on grounds that the administrative decision did not comply with the basic requirements of legality.
  4. The most obvious example of illegality was where a body acted beyond the powers which were prescribed for it. In other words, it acted ultra vires. Decisions taken for improper purposes could also be illegal. Illegality also extended to circumstances where the decision-maker misdirected itself in law. When exercising a discretionary power, a decision-maker could take into account a range of lawful considerations. If the exercise of the discretionary power had been influenced by considerations that could not lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court would normally find that the power had been exercised illegally. The decision-maker had to understand correctly the law that regulated his decision-making power and give effect to it.
  5. The second issue that could be argued under illegality was fettering discretion. That heading for judicial review entailed considering whether an administrative body actually exercised the power it had, or whether because of some policy it had adopted, it had in effect failed to exercise its powers as required. In general terms the courts accepted that it was legitimate for public authorities to formulate policies that were legally relevant of their powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust. An illegality could also occur where a body exercised a power, which was within its functions but exceeded the scope of power that was legally conferred to it. Also relevant was the concept error of law that was mainly concerned with the erroneous applications of the law.
  6. The power of the court to review an administrative action was extraordinary. It was exercised sparingly, in exceptional circumstances where illegality, irrationality or procedural impropriety had been proved. The action or decision complained of had to conform to the statutory provisions and pass the constitutional muster. A clear reading of the provisions of section 4 of the sixth schedule, and the entire section 70 the Act left no doubt that the function in question was vested upon the 2nd respondent and not the Ministry. It followed that the impugned decision(s) contained in the letter dated April 30, 2019 and the communication dated Thursday May 2, 2019 lacked legal basis, hence, it was ultra vires and therefore null and void. It was tainted with illegality and could not stand court scrutiny.
  7. Section 2 of the Statutory Instruments Act and the Standing Orders of both houses of Parliament defined a statutory instrument. The letter dated April 30, 2019 was a directive as the last sentence suggested. The first paragraph of the letter confirmed that the Board was a regulator. Simply put, the communication was a regulation. In addition, the press release dated May 2, 2019 referred to regulations. It was evident that the impugned decision communicated in the said documents fell squarely within the definition; hence, it was a statutory instrument.
  8. Statutory instruments were prepared by the Cabinet Secretary, or a body with powers to make them, e.g. a commission, authority or a board. The law was that statutory instruments had to conform to the Constitution, Interpretation and General Provisions Act, the Parent Act and the Statutory Instruments Act. The Statutory Instruments Act required:-
    1. consultation with stakeholders; and
    2. preparation of regulatory Impact Statement, preparation of explanation memorandum, tabling of statutory instrument in the House, consideration of the statutory instrument by the National Assembly, Committee on Delegated Legislation.
  1. Section 13 of the Statutory Instruments Act provided for guidelines for the committee that focused on the principles of good governance and the rule of law. The Committee considered whether the statutory instrument conformed to the Constitution, the parent Act or other written laws. It considered whether it infringed the Bill of Rights or contained a matter that ought to be dealt with by an act of Parliament. It also considered whether it contained taxation, directly or indirectly barred the jurisdiction of the courts.
  2. The Committee also considered whether the instrument gave retrospective effect to any of the provisions in respect of which the Constitution or the Act did not expressly give any such power. It was required to consider whether it involved expenditure from the Consolidated Fund or other public revenues. The Committee had to consider whether the instrument was defective in its drafting or for any reason the form or purport of the statutory instrument called for any elucidation or appeared to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it was made.
  3. The Committee considered whether the instrument appeared to have had unjustifiable delay in its publication, or laying before Parliament. It also considered whether it made rights, liberties or obligations unduly dependent upon non-reviewable decisions; or made rights liberties or obligations unduly dependent insufficiently defined administrative powers. It also considered whether it inappropriately delegated legislative powers; or imposed a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation. Further, the Committee was required to consider if it appeared for any reason to infringe on the rule of law; inadequately subjected the exercise of legislative power to parliamentary scrutiny; and accorded to any other reason that the Committee considered fit to examine. The criteria set out in section 13 of the Statutory Instruments Act was replicated in Parliamentary Standing Order number 210 (3) on the procedure for considering statutory instruments.
  4. Section 15 (2) of the Statutory Instruments Act provided that where the Committee of Delegated Legislation did not table its report within 28 days following the date of referral of the statutory instrument or such other period as the House could, by a resolution approve, the statutory instrument would be deemed to have fully met the relevant considerations referred to in section 13.
  5. A regulation had to conform to the Constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting regulations rendered the decision invalid. Courts had the power to declare such regulations invalid. The Court not only had a right but also a duty to ensure that the law-making process prescribed by the Constitution was observed. In addition, if the conditions for law-making processes had not been complied with, it was the duty of the court to say so and declare the resulting statute, regulations, or rules invalid.
  6. The impugned decision was adopted in a manner inconsistent with the constitutional and statutory requirements. The moment violation of the Constitution or breach of a statutory requirement became evident as in the instant case, the rebuttable presumption of constitutionality of a statute or a regulation ceased to operate.
  7. Fundamental to the legitimacy of public decision-making was the principle that official decisions should not be infected with improper motives such as fraud or dishonesty, malice or personal self-interest. Those motives, which had the effect of distorting or unfairly biasing the decision-maker’s approach to the subject of the decision, automatically caused the decision to be taken for an improper purpose and thus took it outside the permissible parameters of the power.
  8. A power was exercised fraudulently if its repository intended for an improper purpose, for example dishonesty, to achieve an object other than that which he claimed to be seeking. The intention could be to promote another public interest or private interests. A power was exercised maliciously if its repository was motivated by personal animosity towards those who were directly affected by its exercise.
  9. Reasonableness, within the context of administrative law could not be imbued with a single meaning. Rationality meant that evidence and information had to support a decision an administrator took. It was common ground that unreasonableness and irrationality were grounds for Judicial Review. Rationality and reasonableness as grounds for the review of an administrative action were dealt with in section 7(2) (i) and (k) of the Fair Administrative Action Act. In the application of that rationality test, the reviewing court would ask whether there was a rational objective basis justifying the connection made by the administrative decision-maker between the material made available and the conclusion arrived at.
  10. A court or tribunal had the power to review an administrative action if the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, was so unreasonable that no reasonable person could have so exercised the power or performed the function. The simple test used throughout was whether the decision in question was one, which a reasonable authority could reach.
  11. The test of Wednesbury unreasonablenesshad been stated to be that the impugned decision had to be objectively so devoid of any plausible justification that no reasonable body of persons could have reached it and that the impugned decision had to be verging on absurdity in order for it to be vitiated. Review by a court of the reasonableness of decision made by another repository of power was concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also with whether the decision fell within a range of possible, acceptable outcomes which were defensible with respect to the facts and law.
  12. If a statute which conferred a decision-making power was silent on the topic of reasonableness, that statute should be construed so that it was an essential condition of the exercise of the powers that it be exercised reasonably. The legal standard of reasonableness had to be the standard indicated by the true construction of the statute. It was necessary to construe the statute because the question to which the standard of reasonableness was addressed was whether the statutory power had been abused.
  13. Legal unreasonableness comprised any or all of the following, namely; specific errors of relevancy or purpose; reasoning illogically or irrationally; reaching a decision which lacked an evident and intelligible justification such that an inference of unreasonableness could be drawn, even where a particular error in reasoning could not be identified; or giving disproportionate or excessive weight — in the sense of more than was reasonably necessary — to some factors and insufficient weight to others.
  14. Judicial intervention in judicial review matters was limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose, or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference, or where the decision maker failed to apply his mind to the matter. Contextualizing the impugned decision with the circumstances under which it was made, the instant case was a proper case for judicial interference.
  15. A decision suffered from procedural impropriety if in the process of its making, the procedures prescribed by statute were not followed or if the rules of natural justice were not adhered to. Decision makers had to act fairly in reaching their decisions. The principle applied solely to matters of procedure, as opposed to considering the substance of the decision reached.
  16. There were three broad bases on which a decision maker could owe a duty to exercise its functions in accordance with fair procedures. First, legislation or another legal instrument which gave a decision making power could impose a duty to follow specific procedures. The requirements relating to procedure contained in the statute or other instrument had to be complied with. However, failure to comply with required procedures did not automatically mean that the decision which followed was invalid. The courts took a range of factors into account in deciding whether or not to nullify a decision.
  17. Procedural impropriety generally encompassed two things: procedural ultra vires, where administrative decisions were challenged because a decision-maker had overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. The common law rules of natural justice consisted of two pillars: impartiality (the rule against bias, or nemo judex in causa sua – no one should be a judge in his own cause) and fair hearing (the right to be heard, or audi alteram partem – hear the other side).
  18. The rule against bias divided bias into three categories: actual bias, imputed bias and apparent bias. More recent case law from the UK tended to refer to a duty of public authorities to act fairly rather than to natural justice. One aspect of such a duty was the obligation on authorities in some cases to give effect to procedural legitimate expectations. Those were underpinned by the notion that a party that was or would be affected by a decision could expect that he or she would be consulted by the decision-maker before the decision was taken.
  19. In recent years, the common law relating to judicial review of administrative action based on procedural impropriety had undergone a rather remarkable transformation. The courts, using the language of natural justice and, more recently and more dramatically, fairness, had brought about a situation in which a broad range of statutory authorities were subject to the observance of at least a modicum of procedural decency. That a decision was against natural justice did not mean merely that it was against evidence or wrong in law; it meant that the decision was such that the person appealing had not had his case properly considered by the decision maker.
  20. Article 47 of the Constitution codified every person's right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Further, there was a right to be given reasons for any person who had been or was likely to be adversely affected by administrative action. Each of those prescriptions fit the recognized grounds for judicial review of administrative action. The Constitution recognized a duty to accord a person procedural fairness when a decision was made that affected a person’s rights, interests or legitimate expectations.
  21. Procedural fairness contemplated by article 47 of the Constitution and the Fair Administrative Action Act demanded a right to be heard before a decision affecting ones right was made. Whether or not a person was given a fair hearing of his case would depend on the circumstances and the type of the decision to be made. The minimum requirement was that the person got the chance to present his case. Applying the legal principles to the facts and circumstances of the case, the impugned decision was adopted in a manner that was procedurally unfair.
  22. The grant of the orders of certiorari, mandamus and prohibition was discretionary. The Court was entitled to take into account the nature of the process against which judicial review was sought and satisfy itself that there was reasonable basis to justify the orders sought. Certiorari was used to bring up into the High Court the decision of some inferior tribunal or authority in order that it could be investigated. If the decision did not pass the test, it was quashed – that was to say, it was declared invalid. The underlying policy was that all inferior courts and authorities had only limited jurisdiction or powers, and, had to be kept within their legal bounds.
  23. The writ of prohibition arrested the proceedings of any tribunal, corporation, board or person, when such proceedings were without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order was similar to a quashing order in that it prevented a tribunal or authority from acting beyond the scope of its powers. The key difference was that a prohibiting order acted prospectively by telling an authority not to do something in contemplation. Applying the above tests to the facts and circumstances of the case, the ex parte applicant had satisfied the conditions for granting the orders of certiorari and prohibition sought.

Application allowed
Orders

  1. A declaration was issued declaring that the 1st respondent’s directive dated April 30, 2019 and the communication made on May 2, 2019 were null and void on grounds that they were tainted with illegality, irrationality, unreasonableness and procedural impropriety.
  2. A declaration was issued that the Regulations and or policy communicated in the 1st respondent’s letter dated April 30, 2019 and the communication made on May 2, 2019 were null and void on grounds that the purported Regulations and or policy were adopted and or promulgated in a manner that was inconsistent with the Constitution and the Statutory Instruments Act.
  3. An order of certiorari was issued quashing the 1st respondent’s directive made on April 30, 2019 and the communication made on May 2, 2019 banning outdoor advertising of gambling, and, stating it had to approve form of advertisement of gambling; and, that, such an advertisement had to contain a warning message about the consequence of gambling, and, its addictiveness, which had to constitute a third of the actual advertisement and be of the same font.
  4. An order of prohibition, was issued prohibiting the implementation of the 1st respondent’s directive made on April 30, 2019 and the communication made on May 2, 2019 to the effect that the 1st respondent had banned outdoor advertising of gambling and that any form of advertisement of gambling had to contain a warning message about the consequences of gambling and its addictiveness, which had to constitute a third of the actual advertisement and be of the same font.
  5. Costs of the application.
CONSTITUTIONAL LAW High Court declares section 2 of the Community Land Act vague in defining community land and thus unconstitutional

Kelly Malenya v Attorney General and another; Council of Governors (Interested Party) [2019] Eklr
Petition 32 of 2017
High Court at Nairobi
E C Mwita, J
June 7, 2019

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Constitutional Law – constitutionality of statutes – constitutional interpretation of section 2 of the Community Land Act defining Land – where section 2 of the Act used the words means and included in defining community land - whether the use of the words means and includes in section 2 of the Community Land Act in defining community land was vague and thus unconstitutional - Constitution of Kenya, articles 63(2) and 259(4); Community Land Act, section 2
Constitutional Law – constitutionality of statutes – constitutional interpretation of sections 8(4), 9, 11, 15, 21, and 38 of the Community Land Act – claim that the sections were unconstitutional - whether section 8 (4) of the Community land Act was unconstitutional for giving power to the Cabinet secretary to survey, demarcate and register community land to the exclusion of the County Government - whether section 9 of the Community Land Act was unconstitutional for providing that the Chief Land Registrar would designate a qualified registrar to the Community land Registrar - whether section 15 of the Community Land Act was unconstitutional for creating a body known as the community assembly as the Constitution did not provide details of community land administration – Constitution of Kenya, 2010, articles 63 (5) and 66 (1); Fourth Schedule to the Constitution of Kenya, 2010, section 8; Land Registration Act, 2012, section 8(1)
Constitutional Law – constitutionality of statutes – constitutionality of section 48 of the Community Land Act – where section 48 provided that Cabinet Secretary had the role of making regulations for the management of registered community land – claim that role was reserved for county governments – where legislation was a national legislation - whether section 48 of the Community Land Act, being a national legislation as opposed to a county legislation, which provided the Cabinet Secretary had the role of making regulations for the management of registered community land as opposed to the county governments was unconstitutional – Constitution of Kenya, 2010, article 63; Community Land Act , section 48

Brief facts:
The petitioner challenged the constitutionality of certain provisions of the Community Land Act (Act) stating that: section 2 of the Community Land Act defining community land extended beyond that given by the Constitution; that section 8(4) of the Act which provided that the Cabinet Secretary would issue a public notice of intention to survey, demarcate and register community land left out the county governments; that section 9 placed a function that fell under the county governments under the control of the central government through the Chief Land Registrar who appointed a registrar for community land without involving the county government.
The petitioner further stated that section 15 of the Act failed the constitutional muster of validity as it created an amorphous body known as the community assembly without providing how the assembly would be identified; that under section 21 of the Act, community land could be converted into some other forms of land, a role exercised by the assembly; that sections 38 failed constitutionally for introducing other criteria for qualifying and limiting the right to property for communities other than as contemplated by articles 24 and 40 of the Constitution of Kenya, 2010 (Constitution). Finally, there was a challenge to the constitutionality of section 48 of the Act as it gave the Cabinet Secretary mandate to formulate regulations which was a role of the county governments.
The petitioner sought reliefs that: a declaration or order that sections 2 and/or 6 and 8(4) (6) and/or 9 and/or 11 and/or 15 and/or 21 and/or 38 and/or 48 of the Community Land Act were unconstitutional; and an order of suspension of sections 2 and or 6 and or 8(4) (6) and/or 9 and /or 15 and/or 38 and/or 48 of the Community Land Act.
The respondents on the other hand contended that the provisions of the Act were constitutional; that the petition had not met the threshold of constitutional petitions for failing to set out with reasonable degree of precision the provisions infringed and the manner of infringement.

Issues:

  1. Whether the impugned provisions of the Community Land Act were unconstitutional:
  2. for being vague in the use of the words means and includes in section 2 of the Community Land Act in defining community land;
  3. for giving power to the Cabinet secretary under section 8 (4) of the Community Land Act to survey, demarcate and register community land to the exclusion of the County Government;
  4. for providing that the Chief Land Registrar would designate a qualified registrar to the Community Land Registrar under section 9 of the Community Land Act;
  5. in creating a body known as the community assembly under section 15 of the Community Land Act as the Constitution did not provide details of community land administration; and
  6. for limiting a communities’ right to property as it introduced other criteria for management of resources under section 38
  7. Whether section 48 of the Community Land Act, being a national legislation as opposed to a county legislation, which provided the Cabinet Secretary had the role of making regulations for the management of registered community land as opposed to the county governments was unconstitutional. Read More...

Relevant provisions of the Law
Constitution of Kenya, 2010
Article 63
(2) Community land consists of-

(a)land lawfully registered in the name of groups representatives under the provisions of any law;
(b)land lawfully transferred to a specific community by any process of law;
(c)any other land declared to be community land by an Act of Parliament; and
(d)land that is-

(i) lawfully held, managed or used by specific communities as community forests, grazing areas or Shrines;
(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities or
(iii) lawfully held as trust land by the county government.

Community Land Act
Section 38
(1) Pursuant to Article 66 of the Constitution, the State shall have the power to regulate the use of any land, or interest in or right over land, in the interest of defence, public safety, public order, public morality, public health or land use planning.
(2) Despite the provisions of Part 1 and pursuant to section 22 of the Fourth Schedule to the Constitution, the management of community land shall be subject to national and county government laws and policies relating to-

(a) fishing, hunting and gathering
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic engineering and safety of dams;
(d) forestry;
(e) environmental laws;
(f energy policy; and
(g) exploitation of minerals and natural resources.
Land Registration Act

Land Registration Act
Section 8 (1)
Subject to the legislation on community land made pursuant to Article 63 of the Constitution, there shall be maintained in each registration unit, a community land register in which shall be kept—

(a) a cadastral map showing the extent of the community land and identified areas of common interest;
(b) the name of the community identified in accordance with Article 63(1) of the Constitution and any other law relating to community land;
(c) a register of members of the community;
(d) the user of the land;
(e) the identity of those members registered as group representatives;
(f) the names and identity of the members of the group; and
(g) any other requirement as shall be required under the law relating to community land.

Held:

  1. The petition challenged constitutionality of sections 2, 8(4), 9, 15, 21, 38 and 48 of the Community land Act (Act). Although the reliefs also sought invalidation of sections 6 and 11 of the Act, neither the petition nor the supporting affidavit explained why those sections were unconstitutional.
  2. When a statute or a statutory provision was challenged on grounds of unconstitutionality, the court had an obligation to embark on a discourse to determine whether or not a petitioner’s concerns were true. In doing so, the court took into account the principles applicable in determining the constitutional validity of a statute or statutory provision.
  3. There was a general but rebuttable presumption that a statute or provision was constitutional and that the person alleging unconstitutionality bore the burden to prove that the claim of unconstitutionality. That principle presumed that the legislature being the peoples’ representative understood the problems legislation was intended to solve.
  4. The court should also consider whether the purpose or effect of the impugned provision was unconstitutional. The purpose of enacting legislation or the effect of its implementation could lead to an unconstitutional purpose or effect which would render the provision constitutionally invalid.
  5. Section 2 of the Act in so far as was relevant to the petition, provided that Community land included:
    1. land declared as such under article 63(2) of the Constitution of Kenya, 2010 (Constitution); and
    2. land converted into community land under any law.

    Section 2 had two ways of defining community land, namely; land as defined in article 63(2) of the Constitution or land converted into community land under any law. From the definition, community land was land that fell within the categories mentioned in article 63(2), was held and used by communities, and or trust land held by the county governments.

  1. From the definition in section 2 of the Community Land Act, it could not be said that the definition in section 2 was inconsistent with the one in article 63 (2) of the Constitution. The Constitution defined community land broadly and section 2 merely stated that community land was that land declared as under article 63(2) and land converted into community land under any law. A proper reading of section 2 showed that the definition repeated the words in the Constitution. The addition of (b), land converted into community land under any law, did not add or change anything. It was at best superfluous since it fell under any other land declared to be community land by an Act of Parliament.
  2. Section 2 of the Act used the words means and includes in defining community land. The Constitution used the word consists which was close to means. The Constitution did not use the words includes which was infinitive. Article 259(4) (b) was clear that when the word includes was used in the Constitution, it meant; includes but not limited to. By using two words means and includes, section 2 rendered the definition of community land vague. It was not clear whether community land meant the land as defined in the Constitution or it included some other land apart from that defined in the Constitution. The Act could not use both words in the definition section as doing so created confusion.
  3. A provision was vague if it was capable of two interpretations. In the context of section 2 of the Act, it was not clear whether the definition of community land meant land declared as such under article 63(2) of the constitution; or included land declared as such under article 63(2) of the constitution. The two words could not be used at the same time or interchangeably. That made the provision vague and therefore unconstitutional to that extent.
  4. Section 8 of the Fourth Schedule to the Constitution placed planning and development including land survey and mapping under the county governments. On the other hand, section 8 of the Act talked about procedure for recognition, adjudication and registration of community land. Community land was land found in the counties, held in any form and communally used.
  5. Adjudication of community land included surveying and mapping, a function that was reposed on the two levels of government, national and county governments. Section 21 of Part 1 of the Fourth Schedule to the Constitution placed general principles of land planning and the coordination of planning by the counties in the national government. On the other hand, section 8 gave counties planning and development including land survey and mapping. That was a shared function between the two levels of government.
  6. In order to determine the meaning including constitutionality of a provision, the whole provision had to be read. Meaning could not be attributed to a provision by reading only a portion of it. Such a discourse could lead to distortion. The statute or its provision had to also be looked at both textually and contextually, for both were important in statutory construction.
  7. The petitioner argued that the impugned section 8(4) of the Act did not involve county governments in any way during the survey exercise and referred to section 8(4) only. He did not make reference to subsection (1) which stated that the cabinet Secretary should act in consultation with county governments. Similarly he did not refer to subsection (2) which provided that the Cabinet Secretary would, in consultation with the county governments ensure that the process of documenting, mapping and developing of the inventory of community land would be transparent, cost effective and participatory. One could not read subsection (4) in isolation of subsections (1), (2) and (3) and argue that the subsection was unconstitutional. A holistic reading of section 8(4) did not reveal any constitutional invalidity when section 8 was read as a whole.
  8. Section 9 of the Act provided that the Chief Land Registrar would designate a qualified registrar to be the Community Land Registrar responsible for registration of community land. Section 9 merely required the Chief Land Registrar to designate a qualified registrar to be registrar of community land. There was no constitutional invalidity in that provision. Once community land was identified and registered, all the registrar should do was maintain a register of the community land and be responsible for the community land.
  9. The registrar was merely an administrator who kept the record that county governments had access to, given that they were consulted and that way involved in the process of identification, adjudication mapping and registration of the community land. The section did not appear to confer on the registrar of community land any other powers save those of registration and maintaining the register.
  10. Section 15 of the Act provided that a registered community would have a community assembly consisting of all adult members of that community. The quorum of the assembly would not be less the two thirds of the assembly and that the assembly was to elect between seven and fifteen members to constitute land management committee. The section went on to provide for the functions of the land management committee.
  11. Section 15 was clear that the assembly was that of the registered community. That was the community registered to be owner of the community land. That community would have known members. The adult members would form the assembly and elect a management committee of between seven and fifteen members. Those were people known within the community and would be responsible for the management of their land. The Constitution was not expected to give details of the community land administration. Therefore, section 15 had given the manner in which the assembly was to be identified and the committee would be elected and its quorum. Thus, the section was not inconsistent with the Constitution to render it constitutionally invalid.
  12. Section 21 required that the history of the land be documented possibly for reference. Subsection (2) made it mandatory that community land could only be converted into any other category of land with majority of the assembly in a meeting called only for that purpose. That was to ensure that a decision to convert a registered community land into any other category should not be done easily. It was a form of insurance that community land was not available for conversion as matter of course. Secondly, the meeting would only be called for that purpose to avoid taking members by surprise. In that regard, there was no unconstitutional purpose of enacting or effect of implementing section 21 of the Act.
  13. Section 38 (1) of the Act reproduced provisions of article 66(1) of the Constitution. There could not be anything unconstitutional about it and it did not limit the right to property guaranteed under article 40 of the Constitution. The two articles had to be read as supporting each other but not destroying one another. On the other hand, subsection (2) recognized the role of the two levels of government, the national and county governments in so far as management of resources was concerned. Therefore, section 38 of the Act was not limiting the right to property either.
  14. Section 48 of the Act provided that: (1) The Cabinet Secretary, ensuring public participation could make regulations generally for the better carrying into effect of the Act; that (2) Without prejudice to the generality of subsection (1), the Cabinet secretary, ensuring public participation could make Regulations prescribing- (a) the procedures of recognition and registration of all parcels of community land rights; and (b) procedure for settlement of disputes arising from the community land registration process.
  15. The Community Land Act was a national legislation. The Constitution defined community land while article 63(5) of the Constitution required the National Assembly to enact legislation for giving effect to article 63 with regard to community land for purposes of identifying, registration and administration of community land. That being a national legislation, only the Cabinet Secretary could formulate regulations for its implementation. Therefore, there was no constitutional invalidity in section 48 of the Act.

Petition partly allowed with no order as to costs.
Orders:

  1. A declaration was issued that section 2 of the Community Land Act was unconstitutional in its definition of community land for vagueness.
  2. Declaration of invalidity was suspended for twelve months to enable the National Assembly take steps to resolve the ambiguity. In default, the declaration of unconstitutionality would take effect after twelve months.
  3. Rest of the prayers were dismissed
JURISDICTION Supreme Court dismisses an application for extension of time where the applicants did not account sufficiently for the nearly 3 months delay

Damaris Njeri Mwangi and 2 others (as the Administrators of the Estate of Kenneth K Mwangi (Deceased) v City County of Nairobi and another; Fidelity Commercial Bank (Interested Party) [2019] eKLR
Miscellaneous Application 18 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 Ian Kiptoo

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Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court to grant extension of time to file an appeal – discretionary power of the Supreme Court - where delay was occasioned by receiving typed and certified copies of the proceedings of the Court of Appeal late – where there was 3 months delay – whether the Supreme Court could allow an application for extension of time where the delay in filing an appeal was occasioned by receiving typed and certified copies of proceedings of the Court of Appeal late - Constitution of Kenya, 2010, article 163(8); Supreme Court Rules, rules 31 and 53
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court – where an applicant invoked the civil procedure rules – where civil procedure rules were used to invoke High Court’s instructions - whether the Civil Procedure Rules to the Civil Procedure Act could be used to invoke the jurisdiction of the Supreme Court

Brief Facts:
The application before the Court was for extension of time to file an appeal against the judgment and orders of the Court of Appeal. The applicants submitted that the delay in filing the appeal was occasioned by the delay in receiving the typed and certified copy of the proceedings in the Court of Appeal, having only received the certified proceedings once the time for lodging the petition to the Supreme Court had lapsed; that the delay of less than three months could not be considered inordinate; and that there would be no prejudice suffered by the respondents as they would be able to challenge the petition when presented in Court;
On the other hand, the 2nd respondent contended that the Court had no jurisdiction to determine the matter and that the applicants had failed to obtain a certification in respect of the intended appeal as required by the Supreme Court Rules, 2012.

Issues:

  1. Whether the Supreme Court could allow an application for extension of time where the delay in filing an appeal was occasioned by receiving typed and certified copies of proceedings of the Court of Appeal late.
  2. Whether the Civil Procedure Rules to the Civil Procedure Act could be used to invoke the jurisdiction of the Supreme Court. Read More...

Held:

  1. As provided under rule 53 of the Supreme Court Rules, 2012, the Court could give further directions and extend the time limited under the Rules upon consideration of prevailing circumstances. The Court had previously held that the discretionary power provided for under rule 53 would not be exercised where one had not acted equitably since the extension of time itself was a creature of equity. Furthermore, the Court had previously found that a delay of 4 months in obtaining the typed proceedings was sufficient reason to justify the delay in filing a petition.
  2. The applicants did not account sufficiently for the nearly 3 months delay, from the date when the typed proceedings were ready for collection, in filing the instant application other than to state that they made repeated inquires to follow up on the status of the typed proceedings.
  3. The question of prejudice had not been addressed by the respondents who would be best placed to state what prejudice they would suffer should the application be granted. That fact notwithstanding and while the delay had not been satisfactorily explained, on the face of it, no prejudice would be suffered by them.
  4. The question of jurisdiction to extend time to file a notice of appeal to the Supreme Court was not an issue subject to controversy. The notice of appeal was provided by rule 31 of the Supreme Court, Rules 2012. Further, the power to extend time was provided for by rule 53 of the same Court Rules. Those Supreme Court Rules were enforced by the Supreme Court as provided by article 163(8) of the Constitution of Kenya, 2010 (Constitution).
  5. The Court’s alleged lack of jurisdiction raised by the 2nd respondent in regards to the lack of certification and/or there being no matters of constitutional interpretation and application in the intended appeal was premature and could only be properly determined when there was a petition before the Court routing specific issues that could raise jurisdictional questions. At the instant stage, there was nothing before the Court to point to that issue.
  6. The applicants partly invoked the jurisdiction of the Court by citing rules applicable in the High Court being the Civil Procedure Rules. Those procedural rules were not applicable before the Court.

Application dismissed with no orders as to cost.

CONSTITUTIONAL LAW Failure to follow the legal procedure in regards to trial, conviction and sentencing of an accused person, who was a minor both at commission and trial of an offence, is unlawful and unconstitutional

P K V Republic
Criminal Appeal 7 of 2014
High Court at Nakuru
June 6, 2019
J Ngugi, J
Reported by Ian Kiptoo

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Constitutional Law – fundamental rights and freedoms – rights of a child – enforcement of – best interests of a child – where accused person was a minor during commission of offence and trial – where accused person was not afforded legal representation – where accused person was detained in a facility with adults during remand – where accused person was granted prohibitive bail conditions - whether the trial, conviction and sentencing of an accused person, who was a minor both at commission and trial of the offence was unconstitutional and unlawful – Constitution of Kenya, 2010, articles 53 (1) (f) and 53 (2); Children Act, sections 143, 186 and 191
Criminal Law – re-trial – acquittal - re-trial vis-à-vis acquittal – where a trial was found to be unlawful at appeal – where appellant was a minor – where appellant was without legal representation; detained with adults and without the advice of a children’s officer - whether a trial that was unlawful ought to be remanded for re-trial or the accused person acquitted

Brief Facts:
The appellant was arraigned before the Chief Magistrate’s Court and charged with a single count of defilement contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act; he was convicted and sentenced to life imprisonment as mandatorily required under section 8(2) of the Sexual Offences Act.
The appellant’s ground for appeal was that the trial court erred by not taking into consideration that the appellant was a minor and therefore ended up presiding over an unfair trial whose conviction could not stand. The State conceded that with the establishment of the age of the appellant, the conviction could not stand. However, the State was of the opinion that the appropriate thing to do in the in the circumstances would be to declare a mistrial and remand the case back for re-trial.

Issues:

  1. Whether the trial, conviction and sentencing of an accused person, who was a minor both at commission and trial of the offence, was unlawful and unconstitutional for:
    1. detaining a minor in a remand facility with adults;
    2. not affording the minor with legal representation or any assistance in his defence;
    3. the court giving prohibitory bail despite the accused being a minor; and
  2. the court not giving consideration to section 191 of the Children Act on the sentencing of children.
  3. Whether a trial that was unlawful for not following the legal procedure regarding the trial, conviction and sentencing of a minor should be remanded for re-trial or the accused person acquitted. Read More...

Relevant Provisions of the Law
Children Act
Section 186
186. Guarantees to a child accused of an offence
Every child accused of having infringed any law shall—

(a) be informed promptly and directly of the charges against him;
(b) if he is unable to obtain legal assistance, be provided by the Government with assistance in the preparation and presentation of his defence;
(c) have the matter determined without delay;
(d) not be compelled to give testimony or to confess guilt;
(e) have free assistance of an interpreter if the child cannot understand or speak the language used;
(f) if found guilty, have the decisions and any measures imposed in consequence thereof reviewed by a higher court;
(g) have his privacy fully respected at all the proceedings;
(h) if he is disabled, be given special care and be treated with the same dignity as a child with no disability.

Section 191
(1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) By discharging the offender under section 35(1) of the Penal Code (Cap. 63);
(b) by discharging the offender on his entering into a recognisance, with or without sureties;
(c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);
(d) by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;
(e) if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;
(f) by ordering the offender to pay a fine, compensation or costs, or any or all of them;
(g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;
(h) by placing the offender under the care of a qualified counsellor;
(i) by ordering him to be placed in an educational institution or a vocational training programme;
(j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);
(k) by making a community service order; or
(l) in any other lawful manner.

Held:

  1. An inquiry of the appellant’s age revealed that he was 23 years old. Noting that the alleged offence, according to the charge sheet was committed on November 17, 2012, it appeared to the Court that the appellant might have been a minor at the time of the commission of the crime and during trial.
  2. Based on the witness evidence and the provisions of section 143 of the Children Act, the appellant’s date of birth was November 10, 1995. That made the appellant exactly seventeen years (and seven days) at the time of the alleged commission of the offence. He was, therefore, a minor at the time. He was still a minor during most of his trial and had barely turned eighteen at the time he was sentenced.
  3. Both the Constitution of Kenya, 2010 (Constitution) and the Children Act had explicit provisions for the protection of children especially when they came into contact with the law. Every child who came into contact with the law was deemed to be in need of protection and care. Article 21(3) of the Constitution placed a categorical duty on all public officers who were carrying out their duties and exercising authority under the Constitution, to specifically address the needs of children (among other vulnerable groups) as they carried out their duties.
  4. It was incumbent upon the police officers who made the arrest of the appellant; the prosecutor who made the charging decision; the trial court who took plea as well as the one who conducted the trial; and the prison’s authorities who held the appellant in remand to have addressed the needs of the minor who was alleged to be in conflict with the law. That did not happen: none of the organs and public officers who dealt with the case even realized that the appellant was a minor.
  5. Article 53 of the Constitution contained three important directives:
    1. the prime directive when children came into contact with the law and the legal system. That was article 53(2) of the Constitution: A child’s best interests were of paramount importance in every matter concerning the child;
    2. the second one was in article 53(1)(f): Every child had a right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and
    3. the third one was also found in article 53(1)(f): Every child had a right, when detained, to be held separate from adults and in conditions that took account of the child’s sex and age.

    In addition, section 186 of the Children Act contained certain guarantees for children who were alleged to be in conflict with the law.

  1. It was in obedience of section 186 of the Children Act, which was in keeping with the International Convention on the Rights of the Child, to which Kenya was a treaty member, that courts always ensured that a child facing a criminal offence was represented by an advocate; and further that the trial took place in camera so as to protect the privacy of the child. Section 191 of the Children Act also had provisions on sentencing children.
  2. Looking at the four sets of legal provisions which guided the treatment of children in the criminal justice system and the trial court record in its entirety as a first appellate Court was required to do. It was readily obvious that once it was conceded that the appellant was a minor at the time of the trial, one had to come to the conclusion that the appellant’s trial fell afoul the fair standards guaranteed in the Constitution and statute.
  3. There would be no cure for the wrong suffered by the appellant if the instant matter was sent back for re-trial. The appellant was already past the age of majority. He had to spend the past seven years in a facility with adults – that included one year of what was supposed to be innocent years of his life. He went through a trial which, by law, was unfair. When an appellant had gone through an unfair trial in circumstances such as the instant case, an order for re-trial inherently compounded the unfairness. The right course of action was to acquit. A child who was in need of care and protection was hauled through the criminal justice system; alone and scared – without legal counsel or even the benefit of the advice of a children’s officer; and then detained with adults. That was enough suffering for that individual.
  4. [Obiter] ‘Our Trial Courts are often overwhelmed by the sheer number of cases they have to deal with especially during plea-taking. It is quite understandable that the Presiding Officer may not realize that the person before them is a minor. It may not be practical to make that specific inquiry during plea. However, Learned Magistrates should assume that specific duty more robustly in cases where Accused Persons are charged with serious criminal offences. Even if the Court taking plea inadvertently fails to make that inquiry during plea taking, it is incumbent upon the Court that conducts the trial to do so during the pre-trial conference or, in any event, before the trial commences. This is, indeed, one of the virtues of conducting pre-trial conferences in criminal cases. This is good practice in all cases so as to be faithful to the constitutional duty provided in article 21(3) of the Constitution. However, it is required by the law in the cases of persons who appear to be minors. That duty is stipulated in section 143 of the Children Act.”

Appeal allowed, conviction quashed and sentence set aside. The appellant would be set at liberty unless otherwise lawfully held in custody.

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