Weekly Newsletter 045/2019



Kenya Law

Weekly Newsletter


Section 66(1) of the Marriage Act on petition for separation or dissolution of civil marriages only after three years declared unconstitutional for being discriminatory and violating the right to human dignity and access to justice
Tukero ole Kina v Attorney General & another [2019] eKLR
Petition 6 of 2018
High Court at Malindi
R Nyakundi, J
September 23, 2019
Reported by Kakai Toili
Download the Decision
 
Statutes – interpretation of statues – interpretation of section 66(1) of the Marriage Act – where section 66(1) of the Marriage Act limited parties to a civil marriage to a three year waiting period before any of them could petition for separation or dissolution of the marriage -whether section 66(1) of the Marriage Act was discriminatory and violated the right to human dignity and access to justice – Constitution of Kenya, 2010, articles 27, 28 & 48; Marriage Act, 2014, section 66
Statutes – interpretation of statutes – interpretation of legislative provisions alleged to have infringed on constitutional rights - what was the proper way of interpreting a legislative provision alleged to have infringed on constitutional rights - Constitution of Kenya, 2010, articles 23(1), 159 (e) & 165
Constitutional Law – constitutionality of statutes - presumption of constitutionality of statutes – rebuttal of the presumption of constitutionality of statutes - under what circumstances could the presumption of constitutionality of statutes be rebutted
Constitutional Law – separation of powers - doctrine of separation of powers – rationale – where a legislative provision was alleged to have infringed on constitutional rights - what was the role of the High Court in interpreting a legislative provision alleged to have infringed on constitutional rights and whether it amounted to usurpation of Parliament’s legislative mandate
Constitutional Law – fundamental rights and freedoms –right to equality and freedom from discrimination – determination of discrimination - guiding principles - what were the factors to be considered in determining whether discrimination was unfair - Constitution of Kenya, 2010, article 27

Brief Facts:
The petitioner filed the instant petition seeking a declaration that section 66(1) of the Marriage Act, 2014 (the Act) was unconstitutional, null and void for running afoul of among other attendant rights and freedoms such as article 27 of the Constitution of Kenya, 2010 (the Constitution) on the right to equality and freedom from discrimination. Section 66 (1) of the Act provided that a party to a civil marriage could not petition the court for the separation of the parties or for the dissolution of the marriage unless three years had elapsed since the celebration of the marriage.

Issues:
  1. Whether section 66(1) of the Marriage Act, which limited parties to a civil marriage to a three year waiting period before any of them could petition for separation or dissolution of marriage was discriminatory and violated the right to human dignity and access to justice.
  2. What was the proper way of interpreting a legislative provision alleged to have infringed on constitutional rights?
  3. Under what circumstances could the presumption of constitutionality of statutes be rebutted?
  4. What was the rationale for the doctrine of separation of powers?
  5. What was the role of the High Court in interpreting a legislative provision alleged to have infringed on constitutional rights and whether it amounted to usurpation of Parliament’s legislative mandate?
  6. What were the guiding principles in determining whether there was discrimination and what were the factors to be considered in determining whether discrimination was unfair?

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 27

1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

 

Article 28 - Human dignity
Every person has inherent dignity and the right to have that dignity respected and protected.


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.

Marriage Act, 2014
Section 66

(1) A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.
 

Held:

  1. The Court was constitutionally mandated under article 23(1) of the Constitution of Kenya, 2010 (the Constitution) to hear and determine applications for redress of a denial, violation or threat to a right or fundamental freedom in accordance with article 165 of the Constitution. When the violation or threat stemmed from a clause contained in a statute, it behooved the court to lay side by side the impugned provision of statute and articles of the Constitution it was alleged to have offended and see whether the former squared with the latter.
  2. Article 2 of the Constitution ordained the Constitution as the supreme law of the land and further avowed that any law that failed to resonate with the Constitution was invalid to the extent of its inconsistency. Article 10 of the Constitution on the other hand was premised on the basis that the national values and principles were binding to all and ought to be considered when enacting, applying and interpreting any law. Those principles, especially as they related to the instant petition included
  3. The spirit and tenor of the Constitution ought to reverberate throughout the approach towards the interpretation of the Constitution in relation to the question at hand. In addition, the interpretation ought to be holistic rather than restrictive. In construing the impugned provisions, the Court was enjoined to go further than avoiding an interpretation that clashed with the constitutional values, purposes and principles. The Court had to also seek a meaning of the provisions that promoted constitutional purposes, values, principles, and which advanced rule of law, human rights and fundamental freedoms in the Bill of Rights. The interpretation ought to permit development of the law and contribute to good governance. The purposes and principles of the Constitution as required by the provisions of article 159 (e) of the Constitution had to be promoted and protected.
  4. There was a very heavy burden cast on any person challenging the validity of any piece of legislation since there was a presumption that the legislature understood and correctly appreciated the needs of the people and that its laws were directed to problems made manifest by experience. The court would only declare a statute invalid if it conflicted with the Constitution and so the onus was on anyone seeking to impugn a statute to show that in the circumstances which existed at the time it was passed, the legislation violated rights enshrined in the Constitution.
  5. The presumption of constitutionality of a statute was rebuttable. Parliament could not evade a constitutional restriction by a colourable device. In order to rebut the presumption, the court would have to be satisfied that Parliament in so declaring was either acting in bad faith or had misinterpreted the provisions of the Constitution under which it purported to act.
  6. The principle of separation of powers developed as a political idea and was intended to enhance liberty and restrict tyranny by ensuring that all power in a governance system was not concentrated in the same person or group of persons. According to the classical doctrine of the separation of powers, the power of enacting laws (legislative power) should be separated from the power of administering the State (executive power) and the power of interpreting and applying the laws to particular cases (judicial power). However, constitutions adhering to that doctrine such as Kenya do not typically keep the branches of Government entirely separate. The doctrine allowed for each of the three branches of Government to have some involvement in, or control over, the acts of the other two. That partial mixture of mutually controlling powers was known as a system of checks and balances.
  7. The doctrine of proportionality stated that all laws enacted by the legislature and all actions taken by any arm of the State, which impacted a constitutional right, ought to go no further than was necessary to achieve the objective in view. The test of proportionality stipulated that the nature and extent of the State’s interference with the exercise of the right had to be proportionate to the goal it sought to achieve. Put differently, proportionality involved the court taking into consideration both the purpose and effect of the legislation.
  8. Both purpose and effect were relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect could invalidate legislation. All legislation was animated by an object the legislature intended to achieve. That object was realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislation’s object and thus the validity.
  9. It was the duty of the Court to scrutinize allegations of rights infringement, that duty was germane to the edicts of constitutional interpretation and was no way a usurpation of the mandate of Parliament. Where the purpose or the effect of an impugned provision went against the grain of the Constitution, or where there was no discernible link between the legislation and the purpose, then the Court could not shirk its constitutional fiat to call the offending provision into question.
  10. In determining discrimination, the guiding principles were clear:
    1. The first step was to establish whether the law differentiated between different persons.
    2. The second step entailed establishing whether that differentiation amounted to discrimination.
    3. The third step involved determining whether the discrimination was unfair.

    Section 66(1) of the Act denied parties desirous of dissolving their union under the umbrella of civil marriage the opportunity to do so unless and until a three year period had lapsed since the celebration of that union. That was prima facie discriminatory.

  11. Whether or not the discrimination was unfair could be assessed by considering the following:
    1. Whether the provision differentiated between people or categories of people. If so, whether the differentiation could stand a rational connection to a legitimate purpose. If it did not then there was a violation of the Constitution. Even if it bore a rational connection, it could nevertheless amount to discrimination.
    2. Whether the differentiation amounted to unfair discrimination, that required a two-stage analysis: -
      1. Firstly, whether the differentiation amounted to discrimination. If it was on a specified ground, then discrimination would have been established. If it was not on a specified ground, then whether or not there was discrimination would depend upon whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
      2. If the differentiation amounted to discrimination, whether it amounted to unfair discrimination, if it had been found to have been on a specified ground, then the unfairness would be presumed. If on an unspecified ground, unfairness would have to be established by the complainant. The test of unfairness focused primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of that stage of the enquiry, the differentiation was found not to be unfair, then there would be no violation.
      3. If the discrimination was found to be unfair then a determination would have to be made as to whether the provision could be justified under the limitations clause of the Constitution.
  12. The discrimination in the instant case was on an unspecified ground, it was upon the complainant to establish the same. The test for that focused primarily on the impact of the discrimination on the situation of the complainant. The policy argument fronted by the respondents as a basis for the differential treatment of persons desirous of dissolving a marriage fell short, a cursory observation of the underpinnings of that argument revealed that the same was wholly based on the position in England. Further reliance was placed on the position in Singapore. However, scarce effort was expended by the respondents to prove that in passing the impugned provision, the drafters of the Act paid any mind to public policy. If the imposition of the three year limitation was indeed a public policy consideration, all the parliamentary draughts men had to do was to express their said intention uniformly across all the regimes of marriage contemplated under the Act. After all, it was provided in section 3 (3) of the Act that all marriages had the same legal status. None of the following questions were answered to the Court’s satisfaction or answered at all by the respondents:
    1. Why there was no such limit imposed on the four other regimes of marriage envisioned under the Act.
    2. What informed the decision to pick three years and not two or four?
    3. The reasoning that was used to arrive at the conclusion that the three year period was sufficient enough to make a fledgling marital union stable.
  13. The position of civil marriage as one of the five regimes recognised in Kenya could not be understated. Christian Marriages as per section 17 of the Act were restricted to parties that professed the Christian faith. Per section 43(1) of the Act, customary marriage was entered into in observance of the customs of the communities of one or both of the parties. Respectively, sections 46 and 48 of the Act dictated that only parties that professed the Hindu or Islamic faith could enter into such unions. Inverse to the foregoing was the position of civil marriages, there was no limitation as to creed or community. All that was required was the intention of consenting adults. The umbrella of civil marriages sheltered not only the persons that did not fit the specific restrictions of faith and community but also persons that though having those options, for one reason or the other chose to celebrate a civil marriage.
  14. It was clear that not only did the three year limit affect a wide classification of people but also that the respondents’ notion that, that wide category could simply resort to the other available regimes of marriage recognised under the law was patently false. The only logical conclusion left to draw was that the decision to limit the presentation of petitions for separation and dissolution of civil marriages until after the lapse of three years since the celebration of the union was arbitrary and with no backing whatsoever. Section 66(1) of the Act was discriminatory and in violation of article 27(4) of the Constitution to the extent that it arbitrarily limited parties that had celebrated a union under the auspices of a civil marriage to a three year wait period before such a union could be dissolved.
  15. The right to form a marriage union should not be subjected to such restrictions as could be presented by law that infringed on the fundamental rights and freedoms. A look at the provisions of section 66(1) of the Act as enacted by the Legislature and assented to, read together with other relevant provisions on forms of systems of marriage the aforesaid provision attaching a three year limit amounted to discrimination and a violation to the right on equality in terms of article 27 of the Constitution.
  16. By imposing the three year limitation, the impugned section had the effect of forcefully keeping parties in a situation they no longer wished to be part; so that while section 66 (2) of the Act contemplated cruelty and exceptional depravity as a ground for dissolution of marriage, a petition could not be entertained until the time limit was reached. That prima facie was a case of an affront to a person’s human dignity preserved by article 28 of the Constitution.
  17. By parties being unreasonably proscribed from enjoying the right to petition for a divorce before the lapse of three years, their right to access to justice guaranteed under article 48 of the Constitution was infringed upon.
  18. The petitioner had amply rebutted the presumption of constitutionality of the Act. From scanning the length and breadth of the Hansard Reports and the material presented by the respondents, there was no evidence of a discussion on the effect of section 66(1) of the Act and neither was there any evidence on efforts to seek out stakeholders views and comments from the public at large who were affected by the imposition of the three year limit. In view of the impact of section 66(1) on the public, it was prudent for the National Assembly to actively engage the public. Had such an exercise been undertaken, the likelihood of the impugned provision being retained would have been minimal.
  19. The only part of section 66(1) of the Act that was unconstitutional was the three year period pre-requisite. It would have been possible for section 66(1) to be enacted without the offending requirement. Striking it down would not be a disservice to the operation of the entire section 66 of the Act and neither would it jeopardise the application of the rest of the Act.
Petition allowed; no order as to costs

Order

Section 66(1) of the Marriage Act, 2014 was unconstitutional, null and void to the extent that it limited the presentation of a petition for separation or divorce in a civil marriage until the expiry of three years.

Kenya Law
Case Updates Issue 045/2019
Case Summaries

JURISDICTION The Supreme Court does not have jurisdiction to entertain appeals on rulings from the Court of Appeal made in exercise of its discretion

Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & another [2019] eKLR
Petition (Application) 3 of 2017
Supreme Court of Kenya
P M Mwilu, DCJ & V-P; M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ
July 23, 2019.
Reported by Kakai Toili

Download the Decision

Jurisdiction – jurisdiction of the Supreme Court - jurisdiction to entertain appeals on rulings from the Court of Appeal – where the ruling was made in exercise of discretion by the Court of Appeal - whether the Supreme Court had jurisdiction to entertain appeals on rulings from the Court of Appeal made in exercise of its discretion – Court of Appeal Rules, rule 5(2)(b)

Brief Facts:
The petitioner filed a judicial review application challenging the decision of the 1st respondent to register the 2nd respondent as a trade union. The judicial review application was allowed by the trial court and the 1st respondent was ordered to deregister the 2nd respondent through gazettement.  The 2nd respondent was aggrieved by the trial court’s decision and filed a notice of appeal at the Court of Appeal. It subsequently filed two applications, one at the trial court and the other one at the Court of Appeal, both seeking stay of execution of the judgment.
In compliance with the decision of the trial court the 1st respondent deregistered the 2nd respondent. The Court of Appeal allowed the application for stay pending the hearing and determination of the intended appeal to be filed before it. Aggrieved by the Court of Appeal’s ruling the petitioner filed the petition seeking among others that the ruling and orders of the Court of Appeal be set aside. Contemporaneous with the petition, the petitioner filed the instant application and sought among others a stay of execution of the entire ruling and orders of the Court of Appeal.

Issue:

  1. Whether the Supreme Court had jurisdiction to entertain appeals on rulings from the Court of Appeal made in exercise of its discretion. Read More..

Held:

  1. A jurisdiction challenge whenever raised had to be determined in limine as it went to the core of the case for where a court found that it had no jurisdiction, it could not make a further step. The 2nd respondent had filed and served the record of appeal upon the applicant and the 1st respondent; hence there was a substantive appeal before the Court of Appeal pending determination.
  2.  The Court was replete with decisions on the nature of the Court of Appeal decisions under rule 5(2)(b) of the Court of Appeal Rules(Rules) as being decisions rendered in exercise of a discretion and the same not being appealable before the Court as of right. Decisions of the Court ought to be predictable, consistent and reliable.
  3. The fundamental principle that Court of Appeal rulings under rule 5(2)(b) of the Rules were made in exercise of a discretion and hence were not appealable to the Court as of right stood as good law. The substantive justice of the subject matter lay before the Court of Appeal which was yet to hear the substantive appeal. Fundamentally, the Court of Appeal itself was cognizant of the fact that the said de-registration had already been gazetted when it stated: the de-gazettement of the 2nd respondent was merely a process of execution, which was not final until and unless the applicant’s undoubted right of appeal had been exhausted. Hence, it considered the prevailing circumstances in making the decision it made.
  4. Courts sought to do justice, it could not be that fully aware of the circumstances, the Court of Appeal out rightly made a decision to defeat the intended appeal before it. To the extent that the petition of appeal, on which the instant application was predicated, emanated from a ruling of the Court of Appeal on an application under rule 5(2)(b) of the Rules, the same was fatal for want of jurisdiction. As nothing could stand on an illegality, it followed that equally, the instant application was also fatally defective and if for striking out.
  5.  When the instant application first came before a single judge of the Court, a consent was recorded by the parties. Jurisdiction was a fundamental legal question and the same could even be raised by a court suo motu. Jurisdiction of a court flowed from either the Constitution or legislation or both. A court could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. Where a court had no jurisdiction, parties could not consent to clothe the Court with jurisdiction. Consequently, the parties’ earlier consent in the instant matter was not a bar to the holding that the Court lacked jurisdiction. Parties could only consent to factual issues as between/among them and not on fundamental legal issues like jurisdiction of a court.
  6. Earlier proceedings before the single judge did not in any way waive the consideration of the question of jurisdiction for at that preliminary stage of the proceedings the jurisdictional question was not up for consideration by the judge.

Notice of Preliminary Objection allowed; Notice of Motion Application dismissed for want of jurisdiction. Petition of appeal struck out. Costs to the petitioner.

JURISDICTION

The jurisdiction of the Court of Appeal under section 66 of the International Crimes Act to review directions issued by the High Court

Walter Osapiri Barasa v Cabinet Secretary Ministry of Interior and National Co-ordination & 6 others
Civil Appeal 121 of 2014
Court of Appeal at Nairobi
W Ouko (P), W Karanja & S ole Kantai, JJA
August 26, 2019
Reported by Beryl Ikamari

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Jurisdiction-jurisdiction of the Court of Appeal-appellate jurisdiction in relation to warrants of arrest issued by the ICC (International Criminal Court)-whether the Court of Appeal could entertain an appeal filed against directions made at the case management stage by the High Court, in a case concerning a warrant of arrest and surrender issued by the ICC -International Crimes Act, No 16 of 2008, section 66.
Appeals-appeals against discretionary orders-issuance of directions by the High Court-circumstances under which the Court of Appeal would interfere with the High Court's discretionary orders-whether the Court of Appeal could interfere with directions issued by the High Court at the case management stage.
Statutes-enactment-regulations -failure to enact regulations-applicable law-effect of failure by the relevant Cabinet Secretary to make regulations to provide for the procedure related to the issuance of warrants of arrest and surrender by the ICC-whether the High Court could give directions which would have the effect of filling in the lacuna-International Crimes Act, No 16 of 2008, section 172(a); Criminal Procedure Code (Cap 75), section 89.

Brief facts:
A warrant was issued by the International Criminal Court (ICC) for the arrest and surrender of the appellant, a former intermediary between the ICC office of the Prosecutor and Kenyan witnesses of the 2007/2008 post-election violence. The appellant was accused of corruptly influencing witnesses and attempting to corruptly influence witnesses. The request for the appellant's arrest was transmitted to the 1st respondent. The 1st respondent forwarded it together with the accompanying documents and a cover letter to the Principal Judge of the High Court of Kenya.
Against the request for his arrest, the appellant filed Petition No.488 of 2013 at the High Court. He also filed two applications. In one application he sought to stay the request for his arrest and to prohibit any action undertaken by the respondents in furtherance of the request. That application also sought orders for the Inspector General of Police to provide security for purposes of preventing the appellant's arrest. The second application sought orders for the appellant to be furnished with copies of the warrant and all relevant documents issued by the ICC and an order staying the 1st respondent's decision to ask the High Court to issue a warrant of arrest.
Certain directions were issued by the High Court and the appellant filed an appeal against the directions at the High Court on four grounds, namely;

  1. that the regulations provided for under section 172(a) of the International Crimes Act, for purposes of prescribing the procedure or steps to be taken upon the issuance of a notice and request, had not been made by the 1st respondent and in attempting to fill the lacuna, the High Court violated the principle of separation of powers;
  2. that in applying articles 22(3), 22(4) and 159(2)(d) of the Constitution to remedy the absence of procedural regulations applicable to the matter and holding that there was no harm in commencing proceedings under part IV of the International Crimes Act in the same file as the appellant's petition, the High Court was in error;
  3. that in directing that the notification and request should be filed in the form of a complaint under section 89 of the Criminal Procedure Code while containing matters set out in section 29 of the International Crimes Act, the High Court was in error as section 89 of the Criminal Procedure Code was inapplicable to the proceedings; and,
  4. the two applications filed by the appellant were heard together despite the fact that under articles 20, 21, 22, 23, 35 and 50 of the Constitution the appellant was entitled to have the two applications heard and determined separately.

Issues:

  1. Whether an appeal against directions issued by the High Court could be entertained by the Court of Appeal under section 66 of the International Crimes Act, which provided for the Court of Appeal's appellate jurisdiction.
  2. Under what circumstances would the Court of Appeal interfere with the High Court's exercise of discretion in issuing directions at the case management stage?
  3. What was the effect of the failure to make the regulations envisaged under section 172(a) of the International Crimes Act, for purposes of prescribing the procedure or steps to be taken upon the issuance of a notice and request, in court proceedings related to the issuance of a warrant of arrest and surrender by the ICC?. Read More...

Held:

  1. The Court of Appeal's power in appeals from the High Court under the International Crimes Act was set out in section 66 of the International Crimes Act. In such appeals, the Court of Appeal's powers included the power to reverse, confirm, or amend the determination in respect of which the case had been stated and to make any order in relation to the determination that it deemed fit. The points of law that could arise from the directions in issue were doubtful and it was questionable whether the appeal was within the terms of section 66 of the International Crimes Act.
  2. Directions issued by a court at the case management stage were discretionary in nature. The exercise of discretion to issue directions ought not to be interfered with unless it was shown that the Court misdirected itself in some matter and as a result it arrived at a wrong decision or that it was manifest that the Court was wrong in the exercise of its discretion and had thereby occasioned injustice.
  3. In issuing the directions on how the questions raised in the petition, the application and the letter would be tried, the Court was merely complying with the established practice that guided courts in achieving a just and fair resolution and determination of matters in the most cost effective manner. Those were procedural matters that did not go to the root of the dispute.
  4. The appellant did not demonstrate that he would suffer prejudice as a result of the concurrent hearing of the matters. When the directions were made no steps had been taken to give effect to the notice and request for arrest and all that had been done was the appointment of a judge.
  5. Lack of regulations from the 1st respondent did not bar the Court from giving directions. The question on the applicability of section 89 of the Criminal Procedure Code to the matter was pending determination in Civil Appeal No. 136 of 2014 and the Court could not determine it.
  6. The High Court properly exercised its discretion and no prejudice or hardship was occasioned by directing that the proceedings be commenced as a miscellaneous application under the same file as the constitutional petition. That was merely a matter of procedure with no direct consequence on the main issue; the warrant of arrest.
  7. The appeal was filed prematurely and it had been overtaken by the conclusion of Petition No. 488 of 2013.

Appeal dismissed.

JURISDICTION Court grants a conservatory order suspending the gazette notice that appointed members to the Communication Authority of Kenya’s Board for not adhering to appointment procedure

Okiya Omtata Okoiti v Cabinet Secretary for Information, Communication and Technology and 2 others; Mahmoud Mohamed Noor and 6 others (Interested Parties)
Petition 138 of 2019
Employment and Labour Relations Court at Nairobi
M Onyango, J
 August 16, 2019
Reported by Ian Kiptoo

Download the Decision

Jurisdiction – jurisdiction of the Employment and Labour Relations Court – jurisdiction to determine constitutional violations – where Public Service Commission appointed members to the Board of Communications Authority of Kenya (CAK) –  where dispute involved appointment of members of the Board of the CAK – where issue touched on constitutionality of the appointments – whether the Employment and Labour Relations Court had jurisdiction to determine the constitutionality of appointments of members to the Board of the Communications Authority of Kenya – Constitution of Kenya, 2010, articles 162 (2) (a), (22)(2) (c), and 258(2) (c); Employment and labour Relations Court Act, section 12(1) (a)
Civil Practice and Procedure – orders – conservatory orders – principles for grant of conservatory orders – where applicant sought conservatory orders suspending a gazette notice appointing members to the CAK Board – where ruling ordering status quo to be maintained was not adhered t0 –  whether the Court could grant a conservatory order suspending the gazette notice that appointed members to the Communication Authority of Kenya’s Board for not adhering to appointments procedure under section 6B of the Kenya Information and Communications Act (Repealed)- Constitution of Kenya, 2010, articles 34 (5) (a); Kenya Information and Communication Act (Repealed), section 6B

Brief Facts:
Through Gazette Notice No. 6657, the 1st respondent announced that he had appointed the 1st, 2nd, 3rd and 4th interested parties to be members of the Board of the Communications Authority of Kenya (CAK), for a period of 3 years, effective immediately. The positions were not advertised and there was no public participation in their appointment which was contrary to the ruling that directed the 1st respondent to be guided by section 6B of the Kenya Information and Communications Act. (Repealed)
The applicant being aggrieved by the 1st respondent’s actions and decision filed the instant application seeking orders that: an interim order be issued suspending Gazette Notice No. 6657; and a temporary order of injunction prohibiting the respondents and their agents and any persons howsoever acting from giving effect to Gazette Notice No. 6657.
The application was opposed by the respondents and the 5th interested party on grounds that: the matter was res judicata as the issue had already been canvassed where the 2nd respondent was allowed to appoint members to the 5th interested party’s Board; that the appointments reflected the interests of all sections of society and adhered to the 2/3 gender rule; that the Court lacked the jurisdiction to entertain the matter as the petition did not fit into the list outlined in section 12 of the Employment and Labour Relations Act; and that the applicant had not met the threshold for granting conservatory orders.

Issues:

  1. Whether the Employment and Labour Relations Court had jurisdiction to determine the constitutionality of appointments of members to the Board of the Communications Authority of Kenya.
  2. Whether the Court could grant a conservatory order suspending the gazette notice that appointed members to the Communication Authority of Kenya’s Board for not adhering to appointments procedure under section 6B of the Kenya Information and Communications Act. (Repealed)Read More...

Relevant Provisions of the Law
Civil Procedure Act
Section 7
 “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

Held:

  1. Under article 162(2)(a) of the Constitution of Kenya, 2010 (Constitution), Parliament was empowered to establish a court with the same status as the High Court to hear and determine disputes relating to employment and labour relations. Consequently, the court was established under the Employment and Labour Relations Court Act. Section 12 (1) (a) of the Act granted the court exclusive original and appellate jurisdiction to hear and determine all disputes relating to or arising out of employment between an employer and an employee.
  2. Under articles 22(2) (c) and 258(2) (c) of the Constitution, court proceedings could be instituted by a person acting in the public interest where a person’s right or fundamental freedom in the Bill of Rights had been violated or denied or where the Constitution had been contravened or threatened with contravention. The Court had the jurisdiction to hear and determine the application whether the issues arising related to employment law, policy or individual public officer’s grievances, the jurisdiction of the court would properly be available in that regard.
  3. A perusal of the ruling delivered in HC Petition 163 of 2019 revealed that the parties in the suit and the prayers sought were substantially different from those in the application. The applicant correctly distinguished the instant petition with HC Petition 163 of 2019: the instant court had been moved to determine the constitutionality of the appointment of the 1st to 4th interested parties while the court in Petition 163 of 2019 had been moved to determine the constitutionality of section 6(1) (e) of the Kenya Information and Communications Act (Act). As such, the matter had not met the threshold that would qualify it as res judicata.
  4. The principles for grant of conservatory orders were:
    1. the need for the applicant to demonstrate an arguable prima facie case with a likelihood of success and to show in the absence of the conservatory orders, he was likely to suffer prejudice;
    2. whether the grant or denial of the conservatory relief would enhance the constitutional values and objects of a specific right or freedom in the bill of rights;
    3. the court should consider whether, if an interim conservatory order was not granted, the petition or its substratum would be rendered nugatory; and
    4. whether public interest would be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
    The applicant had established a prima facie case for the grant of the conservatory orders. Ordinarily, determining the constitutionality and legality of the appointments would be treading on very dangerous ground as it would be tantamount to an indirect determination of the constitutionality and validity of the amendments made by the Statute Law (Miscellaneous Amendments) Act 2018 to sections 6 (1) (a) & (e) and 6B of the Kenya Information and Communications Act. Something the Court had to be cautious about.
  5. The 1st respondent was required to adhere to the provisions of the repealed Act in making his appointments. Section 6B of the Act had outlined a detailed procedure to be followed in making the appointments which was not followed. The 1st respondent only issued a gazette notice of 4 appointed Board Members. No advertisement or interviews were done, the appointee’s qualifications were unknown and the criteria used to select them also unknown. Additionally, orders directing the parties to maintain the status quo as of July 26, 2019 with respect to performance of duties of persons as appointed in the Gazette Notice. However, that was not adhered to. At the hearing of the application, the applicant revealed that a board meeting had been scheduled, a fact which was not disputed by the 5th interested party.
  6. The impending disobedience of the Court order confirmed the applicant’s fears that decisions contrary to public interest were likely to be made. Pursuant to article 34(5)(a) of the Constitution, the 5th interested party was required to be independent of control by government, political or commercial interests, reflect the interests of all sections of the society and set, regulate and monitor compliance of standards. To achieve that, there had to be clear checks and balances to ensure that the Executive did not interfere with the Board of Authority. The procedure for appointment of the 1st to 4th interested parties was not transparent making it difficult to determine whether there had been such interference.
  7. In light of the 5th interested party’s conduct, the applicant had proved that the grant of conservatory orders would enhance the constitutional values and objects of the freedom of the media through checks and balances, public participation, transparency and inclusiveness, among others. If the conservatory orders were not granted, the petition or its substratum would be rendered nugatory as there was a likelihood that the Board could act or make decisions contrary to public interest and which the Court would not be able to reverse. Further, there was a possibility that 1st respondent could appoint the 3 board members in the same manner the current Board members were appointed.

Petition allowed with costs in the cause. Gazette Notice No. 6657 of July 18, 2019 was suspended and a temporary injunction issued prohibiting the respondents and their agents and any persons howsoever acting from giving effect to Gazette Notice No. 6657.

CONSTITUTIONAL LAW Section 56(1) of ACECA providing that preservation orders can be granted or issued ex-parte does not violate the rights to fair hearing and fair administrative action

Ethics and Anti-Corruption Commission v Moses Kasaine Lenokulal and another
Miscellaneous Application No. 15 of 2019
High Court of at Nairobi
Anti-Corruption and Economic Crimes Division
J N Onyiego, J
 August 14, 2019
Reported by Ian Kiptoo

Download the Decision

Constitutional Law – constitutionality of statutes – constitutionality of section 56 (1) of the Anti-Corruption And Economic Crimes Act (ACECA) – where section 56(1) of ACECA provided that preservation orders could be granted ex-parte – claim that section 56(1) of ACECA violated the right to fair administrative action and right to fair hearing – whether section 56(1) of ACECA violated the right to fair hearing and fair administrative action by providing that preservation orders could be granted or issued ex-parte – Constitution of Kenya, 2010, articles 47 and 50; ACECA, sections 56(1), (4) and (5)
Public Officer – code of conduct and ethics - conflict of interest – where public officer was a governor of a county – where public officer traded with the county government through a business name – where there was no distinction between public officer and the business – whether a public officer transacting business with a county or national government where he/she was employed amounted to conflict of interest – Public Officer Ethics Act, section 12
Civil Practice and Procedure – orders – preservation orders – where the Ethics and Anti-Corruption Commission sought preservation orders against suspected bank accounts – where accounts also had money from legitimate sources of income - whether a court could grant an order for preservation where suspected accounts also had legitimate sources of income - ACECA, section 56

Brief Facts:
The applicant sought orders that: an order prohibition be issued prohibiting the respondents by themselves, their agents, servants or any other persons from withdrawing, transferring or in any other manner dealing with the funds in accounts held at Kenya Commercial Bank Ltd pending conclusion of investigation and or institution of recovery proceedings. 
The application was premised upon the grounds that several companies that tendered and were awarded high value contracts by the County Government of Samburu to provide goods and services were associated or owned by employees of the County Government of Samburu. That as a consequence, and owing to conflict of interest as defined under section 2 of the Public Officer Ethics Act, the County Government of Samburu lost 673 million. Further, that several contractors to the County Government of Samburu gave huge bribes to county officials to the tune of 86 million to influence tender awards in their favour.
The applicants/respondents argued that: he was not served with the application before the preservation order was issued which was against the tenets of the Constitution under article 50 (1) of the Constitution of Kenya, 2010 (Constitution) which underpinned the right to a fair hearing; that ACECA having been enacted before the 2010 Constitution, the interpretation of section 56 of ACECA had to be construed with necessary modification, adaptation and or alterations so as to be in conformity with the Constitution.

Issues:

  1. Whether a public officer transacting business with a county or national government where he/she was employed amounted to conflict of interest.
  2. Whether a court could grant an order for preservation where suspected accounts also had legitimate sources of income.
  3. Whether section 56(1) of ACECA violated the right to fair hearing and fair administrative action by providing that preservation orders could be granted or issued ex-parte. Read More...

Relevant Provisions of the Law
Anti-Corruption and Economic Crimes Act
Section 56 (1);
“on an exparte application by the commission, the High Court may make an order prohibiting transfer or disposal of or order dealing with property if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct”.

Section 56 (4)
“A person served with such an order under this section may within 15 days after being served apply to the court to discharge or vary the order and the court may after hearing the parties, discharge or vary the order or dismiss the application”.   

Public Officer Ethics Act
Section 12
(1)  “A Public Officer shall use his best efforts to avoid being in a position in which his personal interest conflict with his official duties”.
(3) “A Public Officer whose personal interests conflict with his official duties shall -

 (a) declare the personal interests to his superior or other appropriate body and comply with any directions to avoid the conflict; and
 (b) refrain from participating in any deliberations with respect to the matter.

Held:

  1. The ex-parte orders the subject of the proceedings were issued pursuant to section 56 (1) of ACECA. After being served with the orders, the respondent was given an opportunity to discharge those orders within 15 days from the date of service. Under section 56 (5) of ACECA, such orders could be varied or discharged only if the court was satisfied that the property in respect of which the order was discharged or varied was not acquired as a result of corrupt conduct.
  2. The only statutory duty imposed upon the Commission was to prove to the court that the property in question was reasonably suspected to have been obtained through illegitimate means or corrupt conduct. That sounded like quite a lenient condition by all standards. However, the court was also duty bound to examine and interrogate the materials placed before it and to be satisfied that indeed there was a prima facie case established to warrant exercise of its discretion before issuing an ex-parte order. Once a court had issued the order(s), the burden automatically shifted to the person accused of being in possession or handled property obtained through corrupt conduct.
  3. Section 12 (4) of the Public Officer Ethics Act provided that notwithstanding any directions to the contrary under sub-section 3 (c), a public officer would not award a contract, or influence the award of a contract to-
    1. himself;
    2. a spouse or relative or;
    3. a business associate or;
    4. a corporation, partnership or other body in which the officer had an interest.
  4. It was not controverted that the 2nd respondent was not a legal person as it was a mere business name. It was also not in dispute that the 1st respondent was the owner and operator of that business name. It was not in contention that the 1st applicant was at the material time the governor of Samburu and that he did trade with the County Government by supplying petroleum products. There was no law or requirement that barred a public officer from transacting business with any government be it national or county except where there was conflict of interest.    
  5. The applicant only needed to prove that there was every reason to believe that the amount earned through the 2nd respondent was as a result of conflict of interest which would be proved on a balance of probability should the main suit be filed. There was evidence that the County Government of Samburu did pay the 2nd respondent huge sums of money for the period August 22, 2014 to May 29, 2018. There was no distinction between the 2nd respondent and the 1st respondent. They were one and the same thing. The money that the 2nd respondent received was indirectly money paid to the 1st respondent hence suspected to have been obtained through corrupt conduct given the element of conflict of interest alleged.
  6. Although the 2nd respondent was not a legal person, its misjoinder was not prejudicial to the case. The anomaly was curable under order 1 rule 9 of the Civil Procedure Rules and article 159 (2) (d) of the Constitution.
  7. Section 56 of ACECA was concerned with illegitimate wealth or property. It was not concerned with any other money the targeted person could have earned through other legitimate means. There had to be a causal link between the money in question and a corrupt conduct. In the instant case, there was a nexus in respect to some accounts.  That was clear from the monies received by the 2nd respondent from the County Government of Samburu which was evidenced by Ifimis payment records, payment vouchers and some money transfer from the 2nd respondent accounts to some accounts held by the 1st respondent.
  8. There was a link between money transferred from the 2nd respondent bank account to the 1st applicant’s bank accounts. Since there was already suspicion in the manner in which the award for the supply of petroleum products was made in favour of the 1st respondent, there was reasonable suspicion that the money could have been obtained through illegitimate means hence the justification in issuing freezing orders in respect of the bank accounts. The fact that such money was mixed with some legitimate sources of income like salaries did not mean that the account could not be frozen. At the stage, preservation was necessary pending further proceedings when the two could be severed.
  9. There were no bank statements or documents relating to the account numbers and no proof that there was any money in those accounts suspected to be out of illegitimate means. The only money associated with the 1st respondent’s corrupt conduct was money obtained from the County Government of Samburu. The Commission had to on a prima facie basis establish a link between the money in those accounts and money illegally obtained from Samburu county Government or that the money was generally suspected to be obtained through suspected illegal means. In the instant case, the Commission was specific on the connection between the money in question and the illegitimate source being the illegal contract between the 1st respondent and the Government.
  10. The Commission could not be allowed to casually walk into court with scanty information or evidence and seek to generally attach anything and everything in the name of a suspect under investigation based on a single suspicious financial transaction or deal. Kenyans had a right to invest and any particular transaction which was in question should be treated in isolation from other legitimate transactions. Section 56 of ACECA should not be used to generally ground a person’s legitimate investment or affairs. It should strictly be used to target ill-gotten property and not an open cheque to launch an assault on everything owned by a person under investigation regardless of the source of income.
  11. There was no link between the money obtained from the County Government of Samburu to the account numbers nor was there money transferred between those two accounts and the 2nd respondent accounts. Section 56 of ACECA could not be used to achieve a mareva injunction through the back door thereby attaching all accounts of a litigant in anticipation of entry of a judgment where there was no substantive suit. There was no evidence adduced to justify freezing orders in respect of the two accounts aforesaid.
  12. Unlike an injunction under order 40 of the Civil Procedure Rules which had a provision for inter-partes hearing, ex-parte orders under ACECA had a definite lifespan of 6 months subject to extension by the court if convinced. Section 56 (1) of ACECA had no provision for neither service before hearing nor did it have a provision for inter-partes hearing.
  13. In constitutional or statutory construction, there was a rebuttable presumption that all statutes were constitutional unless and until declared invalid or unconstitutional. There was no substantive prayer before the court for a declaratory order that section 56 of ACECA was unconstitutional.
  14. The right to be heard under article 50 of the Constitution had to go hand in hand with the right to fair hearing which was enshrined under article 24 of the Constitution. However, section 56 (4) of ACECA had created room for a party aggrieved to challenge such orders within 15 days which the applicants had done.
  15. Preservation of property was not synonymous to deprivation of property under article 40 of the Constitution. The process was merely intended to support forfeiture proceedings and not to punish anybody. The law had provided a proper mechanism for anybody affected by the orders to challenge them. The orders were not cast in stone. The opportunity given to challenge ex-parte orders was nothing but a right to fair hearing.  Section 56 was self-contained and inbuilt.  It took care of article 47 and 50 of the Constitution.
  16. When Parliament passed ACECA, it was definitely aware of the constitutional requirement even under the old constitutional regime that no one was supposed to be condemned unheard. To be condemned unheard presupposed orders made with finality without any room left for challenging the orders or the process. The section was intended in public interest to preserve property suspected to have been acquired illegally or irregularly from concealment or disposal before recovery process could commence. Therefore, section 56 (1) of ACECA was not in violation of articles 47 and 50 of the Constitution.
  17.  The respondent had not proved that the lifting of orders in his favour outweighed the advantages or benefits in retaining them. In case of any inconvenience on the respondent’s part, he could open new accounts and continue with his legitimate business as well as access his salary. He would not suffer any inconvenience in his daily operations and his money was safe until investigations were over.

Application partly allowed with each party to bear own costs.
Orders:

  1. The freezing orders affecting KCB account Nos [xxxx] and [xxxx] were lifted.
  2. The freezing orders in respect of KCB bank accounts Nos [xxxx] and [xxxx] would remain in force.

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