Weekly Newsletter 049/2019



Kenya Law

Weekly Newsletter


The sentence for gang rape or gang defilement for a term of not less than fifteen years which could be enhanced to life imprisonment vis-à-vis the sentence of life imprisonment for defilement is unreasonable for issuing a lighter sentence.
Francis Matonda Ogeto v Republic [2019] eKLR
Criminal Appeal 49 of 2017
High Court at Machakos
G V Odunga, J
October 3, 2019
Reported by Kakai Toili
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Criminal Law – sexual offences – gang rape or gang defilement under section 10 of the Sexual Offences Act – whether the sentence for gang rape or gang defilement for a term of not less than fifteen years which could be enhanced to life imprisonment vis-à-vis the sentence of life imprisonment for defilement was unreasonable for issuing a lighter sentence – Sexual Offences Act, sections 8(2) &10
Criminal Law - sexual offences – gang rape or gang defilement - ingredients for proving the offence of gang rape or gang defilement – association or common intention with others - where the accused did not defile the victim - whether committing defilement in association or with a common intention with others notwithstanding that the accused did not defile the victim amounted to gang rape or gang defilement - Sexual Offences Act, section 10
Criminal Law – sentences - minimum and maximum sentences – where a court opted for a maximum sentence but failed to give reasons - what was the effect of failure of a court to give a reason in opting for the maximum prescribed sentence where the law provided for a minimum and maximum sentence
Evidence Law evidence – medical evidence - where an accused was charged with a sexual offence - whether it was mandatory to subject accused persons to medical examinations to prove that they committed the alleged sexual offence where the complainant could identify the accused
Statutes – interpretation of statutes – interpretation of section 10 of the Sexual Offences Act - whether the use of the phrases “shall be liable” and “not less than” in section 10 of the Sexual Offences Act gave room for the exercise of judicial discretion - Sexual Offences Act, section 10

Brief Facts:
The appellant was charged at the trial court with the offence of gang defilement contrary to section 10 of the Sexual Offences Act. He was alternatively charged with the offence of indecent act contrary to section 11(1) of the Sexual Offences Act. The trial court found that the evidence adduced by the prosecution placed the appellant at the locus quo and hence the offence of gang defilement was committed and found the appellant guilty and convicted him. The trial court then sentenced the appellant to 15 years’ imprisonment. Aggrieved by the trial court’s decision the appellant filed the instant appeal.

Issues:
  1. Whether the sentence for gang rape or gang defilement for a term of not less than fifteen years which could be enhanced to life imprisonment vis-à-vis the sentence of life imprisonment for defilement was unreasonable for issuing a lighter sentence.
  2. Whether committing defilement in association or with a common intention with others notwithstanding that the accused did not defile the victim amounted to gang rape or gang defilement.
  3. What was the effect of failure of a court to give a reason in opting for the maximum prescribed sentence where the law provided for a minimum and maximum sentence?
  4. Whether it was mandatory to subject accused persons to medical examinations to prove that they committed the alleged sexual offence where the complainant could identify the accused.
  5. Whether the use of the phrases “shall be liable” and “not less than” in section 10 of the Sexual Offences Act gave room for the exercise of judicial discretion.

Relevant Provisions of the Law
Sexual Offences Act, No. 3 of 2006
Section 8

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
 

Section 10
any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who with common intention is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less the fifteen years but which may be enhanced to imprisonment to life.

Held:

  1. The instant court was a first appellate court; an appellant on a first appeal was entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court had to itself weigh conflicting evidence and draw its own conclusion.It was not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the trial court’s finding and conclusion; it had to make its own findings and draw its own conclusions. Only then could it decide whether the trial court’s findings should be supported. In doing so, it should make allowance for the fact that the trial court had had the advantage of hearing and seeing the witnesses.
  2. Under section 10 of the , the ingredients of gang rape were:
    1. Rape or defilement under the Act;
    2. committed in association with others; or
    3. committed in the company of another or others who commit the offence of rape or defilement with common intention.

    It was therefore clear that defilement which was committed in association with others or with common intention notwithstanding the fact that the accused could not have defiled the victim amounted to gang rape according to the section 10. It mattered not whether the offence was rape or defilement as long as the conditions under section 10 were found to exist.

  3. There was overwhelming evidence both oral and documentary that the complainant was 17 years old hence a child under the Children Act. Accordingly, the offence ingredient would be that of defilement. For the accused to be convicted of the offence of defilement, certain ingredients had to be proved:
    1. Whether there was penetration of the complainant’s genitalia;
    2. whether the complainant was a child; and finally,
    3. whether the penetration was by the appellant.
  4. There was no doubt about the age of the complainant which was proved both by oral and documentary evidence to have been 17 years at the time of the offence. The first encounter between the complainant and the assailants was at Utawala Bus Stage and it was during the day. The appellant himself in his evidence did not dispute the fact that the complainant knew him. The next encounter was at the gate of the place where the assault occurred. Accordingly, there was sufficient opportunity for the complainant to properly identify her assailants. It was evident that subjecting an accused to a medical examination to prove that he committed the offence was not a mandatory requirement of law.
  5. Both from the oral evidence and the documentary evidence it was clear that there was penetration of the complainant’s genital organs with a male genital organ since there was infection in her genitalia. From the evidence of the complainant, it did not come out clearly that the appellant penetrated the complainant. In the circumstances one could not conclusively find that there was penetration of the complainant’s genital organs by the appellant’s genital organs for the purposes of defilement.
  6. If the defilement of the complainant by the person who escaped was committed in association with the appellant or with common intention of both, the appellant would still be guilty of gang rape. In the instant case, while the other person was defiling the complainant, the appellant was guarding the place.It was clear that the appellant knew the intention of the other person and assisted and abetted the same. Considering the definition of gang rape, the appellant was properly convicted of the offence and the said conviction could not be faulted.
  7. Section 10 of the Sexual Offences Act stated that a person convicted of the offence of gang rape was liable to imprisonment for a term of not less the fifteen years but which could be enhanced to imprisonment to life. In the instant case, however, the relevant provisions used the phrases “shall be liable” and “not less than” in the same breath. As a result, the provision suffered from the malady of poor legal draftsmanship since the two phrases implied, in legal terms, diametrically opposed positions. In criminal law, where there was an ambiguity in phraseology of sentencing, the accused was entitled to the benefit of the least severe of the prescribed punishments for an offence. Section 10 had to be read as if the sentence provided was the maximum sentence. The use of the words “shall be liable to imprisonment” in section 10 gave room for the exercise of judicial discretion.
  8. Section 10 of the Sexual Offences Act under which the appellant was charged provided for prima facie mandatory minimum sentence. Under the constitutional dispensation, mandatory minimum sentences ought to be looked at in light of article 27 of the Constitution as read with clause 7 of the Such sentences did not permit the Court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the Court was deprived of the discretion to consider whether a lesser punishment would be more appropriate in the circumstances. Therefore, such provisions did not meet the constitutional dictates.
  9. The opinion of the Supreme with respect to mandatory sentences applied with equal force to minimum sentences or non-optional sentences. That was in fact supported by the Kenya Judiciary Sentencing Policy Guidelines where it was appreciated that: whereas mandatory and minimum sentences reduced sentencing disparities, they however fettered the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders. Therefore, the provisions of a legislation that was in force before the Constitution such as the Sexual Offences Act had to be construed with the said adaptations, qualifications and exceptions when it came to the mandatory minimum sentences and particularly where the said sentences did not take into account the dignity of the individuals as mandated under article 27 of the Constitution.
  10. There were several degrees of defilement; the itself recognised so in section 8 when it prescribed different sentences for each set of ages of the victims concerned. In doing so, the Act applied the principle of proportionality and gravity of the offences in prescribing the sentence. However, it failed to take into account the fact that even within a particular set, the gravity of the offences could not be same. Some offences of defilement were committed in very gruesome circumstances while others were committed after occasioning serious bodily injuries to the victim. Others were committed in the very site of other members of the victim’s family while others were committed by persons who were almost the age groups of the victims in circumstances that if the law did not presume lack of consent was such offences, it could well be concluded that there could have been connivance.
  11. The Court did not condone offences against minors and vulnerable persons. However, to treat offences as the same notwithstanding the aggravating circumstances, clearly violated the right to dignity as the offenders were thereby treated as a bunch rather than as individuals. That did not mean that the court ought not to mete out what appeared as prima facie mandatory minimum sentence. What it meant was simply that the circumstances of the offence had to be considered and having done so nothing barred the court from imposing such sentence.
  12. There was some unreasonableness in the sentencing under section 8(2) of the Sexual Offences Act vis-à-vis section 10 of the said Act. The unreasonableness was due to the fact that where a person who, for all intent and purposes committed an offence under section 8(2) could well get away with a lighter sentence simply because he was in the company of other persons. On the converse a lone ranger who committed an act which for all intent and purposes amounted to an offence under section 10 faced a prima facie mandatory life sentence. Such sentencing could well be challenged on the ground of unfairness.
  13. The appellant was a first offender. He was not the principal defiler of the complainant. He was sentenced to the maximum prescribed sentence. No reason was given for that option. Though the Sexual Offences Act permitted the court to enhance the sentence to imprisonment to life, in opting for the maximum prescribed sentence where the law provided for a minimum and maximum sentence, the court ought to give a reason for so doing. In the absence of such a reason such a sentence had to be deemed to have been arbitrarily meted.

Appeal partly allowed.

Order

Sentence set aside and substituted with ten (10) years imprisonment to run from the date of his sentence in the lower court. However, the said sentence would, be inclusive of the period when he was in custody pursuant to section 333(2) of the Criminal Procedure Code.

Kenya Law
Case Updates Issue 049/2019
Case Summaries

CONSTITUTIONAL LAW Court affirms that regulation 9(5) of the Council of Legal Education (Kenya School of Law Regulations), 2009, which provides that a candidate in the Advocates Training Programme has a maximum of five years within which to complete the entire course of study, is constitutional

Simon Mwangi Kamau & another v Council of Legal Education & another [2019] eKLR
Petition 485 of 2017
High Court at Nairobi
J A Makau, J
September 26, 2019
Reported by Chelimo Eunice

Download the Decision

Constitutional Law – constitutional petitions - petition for the enforcement of fundamental rights and freedoms - precision with respect to the nature and identity of the complaint, the rights said to have been violated and the manner in which they were violated or would be infringed – where it was claimed that refusal to register the petitioners for the November 2017 Bar examinations violated their rights to education, livelihood and legitimate expectation as guaranteed under the Constitution.
Administrative Law - doctrine of legitimate expectation – application of the doctrine of legitimate expectation - when does legitimate expectation arise – what were the requirements for successful reliance on the doctrine of legitimate expectation – whether there could be a legitimate expectation against clear legislative provisions - whether the doctrine of legitimate expectation would be upheld where the same went contrary to legislative provisions - where it was claimed that the Council of Legal Education vide a letter had informed the petitioner that he was within the statutory timeline for sitting for the Bar examinations - Council of Legal Education (Kenya School of Law Regulations), 2009, regulation 9(5).

Brief facts:
The petitioners were admitted at Kenya School of Law (KSL) in December 2011 for 2012/2013 academic year. By November 2016, they had not completed their Bar examination. Their attempt to defer the papers which they had not passed to November 2017 was rejected by the 1st respondent for not being within the five (5) year statutory timeline as per regulation 9(5) of the Council of Legal Education (Kenya School of Law Regulations) 2009 (the Regulations).
The petitioners sued the respondents seeking various reliefs, including a declaration that their refusal to register the petitioners for the November 2017 examinations violated their rights to education, livelihood and legitimate expectation as guaranteed under the Constitution thus null and void. They claimed that the impugned regulation relied on by the 1st respondent to deny them an opportunity to resit for the examination was, among others, unconstitutional and discriminatory as it treated the petitioners differently from other candidates admitted in different years.

Issue:

  1. Whether regulation 9(5) of the Council of Legal Education (Kenya School of Law Regulations), 2009 which provided that a candidate in the Advocates Training Programme would be allowed a maximum of five years within which to complete the entire course of study was unconstitutional.
  2. Whether in a constitutional petition, a petitioner has to state and identify the specific right that has been violated with precision.
  3. When did the five (5) year tenure within which to complete the Advocates Training Programme begin to run and whether the same was to be counted as calendar years or academic years.
  4. When could differentiation or inequality of treatment amount to discrimination?
  5. What were the requirements for successful reliance on the doctrine of legitimate expectation? Read More..

Relevant provisions of the Law
Council of Legal Education (Kenya School of Law Regulations), 2009;
Regulation 9(5);
Unless stated in the specific programme of study, a candidate shall be allowed a maximum of five examination sittings in each course of study, which shall be undertaken within a maximum period of three years.

Held:

  1. Regulation 9(5) of Council of Legal Education (Kenya School of Law Regulations) 2009 (the impugned regulation) provided that unless stated in the specific programme of study, a candidate was to be allowed a maximum of five examination sittings in each course of study, which examination sittings had to be undertaken within a maximum period of three years.
  2. The impugned regulation was unequivocal that for the Advocates Training Programme (ATP), a candidate would be allowed maximum of five years within which to complete the entire course of study. The net effect of the impugned regulation was clear that all candidates were allowed five (5) years within which to qualify from the programme beginning November 18, 2011 as per the 1st respondent. That implied that the five (5) year rule commenced as at the November examination series of the year in which the candidate was registered for the Bar examinations. The clock started ticking on registration and commencement of the course of study. The petitioners, having been admitted in December 2011, the time started running in 2012 and lapsed in November 2016 Bar examination.
  3. In constitutional petitions, a petitioner had to state and identify his rights which had been violated with precision and how the same had been or would be infringed in respect to him.
  4. The petitioners failed to identify how their rights had been infringed. Kenya School of Law (KSL) opposed petitioners’ application for deferral and informed them that they would not be exempted from the stipulated five (5) years school tenure from the date of registration. KSL clearly underlined the fact that the impugned regulation was concerned with programme as opposed to the Bar examination. The impugned regulation made it mandatory for candidates to complete the bar examination and pupillage within five (5) years of commencement. In view of the contents of the impugned regulation, the petitioners were barred from pleading legitimate expectation as the petitioners were duly informed of the meaning of the same well in advance.
  5. The doctrine of legitimate expectation protected the procedural expectation to be accorded a hearing as well as the substantive expectation that a regular practice giving some benefits, privilege or advantage would be continued or be retained. Legitimate expectation arose where a person responsible for taking a decision had induced in someone who would be affected by the decision, a reasonable expectation that he would receive or attain a benefit or that he would be granted a hearing before the decision was taken.
  6. The requirements for successful reliance on the doctrine of legitimate expectation were:
    1. there had to be an express, clear and unambiguous promise given by a public authority;
    2. the expectation itself had to be reasonable;
    3. the representation had to be one which was competent and lawful for the decision-maker to make; and
    4. there could not be a legitimate expectation against clear provisions of the law or the Constitution.
  7. Applying the legitimate expectation as pleaded by the petitioners would be contrary to clear provision of the impugned regulation since the said regulation had not been applied discriminatory but had been applied to all candidates in similar circumstances with the petitioners. The only persons who had been exempted from the said provisions were the candidates who had outstanding units by November 18, 2011 when the Regulations became operational as per General Notice No. 17 of 2011. The petitioners applied for deferment after 2012 when the Regulations were in operation. Consequently, the petitioners could not enjoy the exemption in the General Notice No.17 of 2016.
  8. Mere differentiation or inequality of treatment did not per se amount to discrimination. To amount to discrimination, it was necessary to show that the selection or differentiation was unreasonable or arbitrary, that it did not rest on any basis having regard to the objective the legislative had in view or which the Constitution had in view. Equal protection was not violated if the exception which was made was required to be made by some other provisions of the Constitution. It was not possible to exhaust the circumstances or criteria which would afford a reasonable basis for classification in all cases.
  9. The petitioners had not been discriminated against nor had they been able to demonstrate in their petition how their rights had been infringed by the respondents. The respondents had acted faithfully in executing their statutory duty and their duty in upholding the law and ensuring due compliance with the law and regulations governing the examination. The 1st respondent was mandated to supervise and control legal education in Kenya and was expected in doing so, to apply the Regulations to all candidates who undertake their studies at KSL as required and should not act contrary to the provisions conferred upon it by law.
  10. It was important for courts to avoid making decision or interpretation of statutory provision, rule or by-law which would result in rendering the system unworkable in practice or create a situation that would go against clear provisions of the law governing the subject matter in issue. The law and the Regulations in question were designed at maintaining, ensuring and assuring high professional standards and competence. The impugned regulation had good intentions and purposes of ensuring professionalism and the same was reasonable and valid. It was logically related to legitimate public expectations and concerns of maintaining high professional standards and ensuring competency in the legal profession. The Regulations gave serious and committed candidates sufficient opportunity to pursue their course and should not be relaxed to allow anybody to pursue their career at their own pace or whim.
  11. The petitioners were given equal opportunity with other candidates. They were aware of what was expected of them since the first day of their admission to KSL. The Regulations did not come to their knowledge as a surprise. The petitioners failed to demonstrate that the impugned regulation was unconstitutional.
  12. The impugned regulation was enacted in 2009, which predated the Constitution of Kenya, 2010. Accordingly, articles 10(2) and 118 of the Constitution could have been applied to the impugned regulation since the said articles were non-existent at the time of their enactment. Further, the impugned regulation was generated before enactment of Statutory Instrument Act, enacted in 2013 and as such that Act could not be applied to the impugned regulation.
  13. The petitioners failed to demonstrate a justifiable violation of their fundamental rights under article 26 of the Constitution which dealt with rights to life; article 27 which dealt with equality and freedom from discrimination, article 43(1) on economic and social rights and article 47 which dealt with fair administrative action. Therefore, the petitioners failed to demonstrate that the 1st respondent’s conduct constituted a violation and contravention of the Constitution.
  14. The impugned regulation was a necessary instrument of law to facilitate legal education and training in Kenya and passed the constitutional threshold of a valid statutory claw back of article 24 of the Constitution. It provided five (5) year tenure for applicants at KSL and sitting of the examination and was from the date of registration and in calendar years and not academic years. The timelines were from the date a student was admitted. Once a student was admitted, he became an admittee in an academic year, and where such a student resat the Bar examination, it was not counted as an academic year but a Bar examination writing session.
  15. A student who was admitted to one academic year had the right to write the Bar examination to a maximum of five (5) times, in a maximum period of five (5) calendar years. The petitioners were admitted in December 2011. The petitioners sat the examination and in 2017, they were not allowed to register for 2017 examination. The five (5) years for the petitioners expired in 2016 which meant they could not be eligible to sit for 2017 examination. The petitioners were outside the five (5) year tenure limited by the impugned regulations as the petition was filed on September 29, 2017.
  16. There was no justification for granting any orders in favour of the petitioners. The petitioners had failed to prove that their fundamental freedoms and rights had been denied, violated, infringed or threatened by the respondents.

Petition dismissed with each party bearing own costs.

JURISDICTION

Supreme Court has jurisdiction to determine an appeal matter involving the interpretation and application of the Constitution

Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 Others
Application 22 of 2019
Supreme Court of Kenya
D K Maraga; CJ &P, M K Ibrahim J, J B Ojwang J, Njoki Ndungu J, & S C Wanjala J
September 19, 2019
Reported by Kadzo Jally

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction -where an appeal from the Court of Appeal raised matters involving constitutional interpretation and application-whether the Supreme Court had the jurisdiction to determine an appeal involving the interpretation and application of the Constitution

Brief Facts:
The applicant sought an order of stay of execution of the Court of Appeal’s decision, where the court had set aside the judgment of the High Court in JR Misc. Application No. 78 of 2016. The judgment had granted, inter alia an order of certiorari, quashing a decision by prosecutorial agencies to institute criminal proceedings against the applicant and a reversal of the order of prohibition stopping the police authorities from pursuing criminal proceedings in respect of the relevant subject matter.
It was the applicant’s contention that the Court of Appeal’s decision had compromised his personal freedom by disregarding his rights to fair trial under article 50 (2) of the Constitution of Kenya, 2010 (the Constitution); overlooking his right to equal protection and to the benefit of the law under article 27 (1) of the Constitution and by not considering the long delays in prosecution of the matter.
The 1st, 2nd and 3rd respondents contended that the facts surrounding the property transaction in question disclosed fraudulent acts by the applicant and denied that any issues of constitutional rights were entailed in the instant matter, maintaining that the appeal was for the private benefit of the applicant.
The 5th, 6th and 7th respondents called for a termination of the main cause at the preliminary stage on the ground that no case of merit had come up, as compared to the foundations of the criminal case lodged against the applicant.

Issue:

Whether the Supreme Court had the jurisdiction to determine an appeal matter involving the interpretation and application of the Constitution.Read More...

Held:

  1. The Supreme Court’s jurisdiction was not sharply defined in certain cases, especially as regards claims of constitutional entitlements, the content of which stood to be ascertained individually, from one case to another. It had to be considered whether the circumstances in which the criminal case against the applicant was initiated, in any way stood to compromise rights as delineated in the Constitution.
  2. Trial issues, especially those involving the criminal law, had to invariably take into account the clear provisions of the Constitution, notably article 50 which related to fair hearing. In the instant case, it emerged that recent criminal processes rested upon old scenarios of fact, the boundaries of which could have lost clarity. Such earlier scenarios of fact tended to blur the boundaries between the criminal and the civil dockets. What was seen was such an amalgam of civil and criminal scenarios that also touch on the processes of the Constitution, and its prescribed rights and obligations.
  3. An appellate initiative before the Supreme Court, such as in the instant case, was substantially meritorious. The motions of the judicial process were sustained and the applicant’s case was entertained to provide the requisite opportunity for such an inquiry of constitutional nature.
  4. The notice of motion of July 24, 2019 was determined in favor of the applicant and stay of execution of the Appellate Court’s decision in Civil Appeal No. 43 of 2017 and No. 48 of 2018, of July19, 2019 was granted, pending the hearing and determination of the appeal.

Application allowed.

CONSTITUTIONAL LAW

Prescribing additional minimum qualifications outside the constitutional and legislative scope for vacant positions in public service is illegal

Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 others (Interested Parties) [2019] eKLR
Constitutional Petition 2 of 2019
High Court at Nairobi
G V Odunga, J.
September 26, 2019
Reported by Moses Rotich

Download the Decision

Constitution Law-values and principles of public service-recruitment in the public service-requirement for selection to be based on competence and suitability, or election in free and fair elections-where the advertisement for recruitment of the Registrar/Chief Executive Officer of the Pharmacy and Poisons Board provided for additional minimum qualifications to those statutorily provided-whether prescribing additional minimum qualifications for vacant positions in public service outside the constitutional and legislative scope was illegal-whether, in absence of constitutional guidelines for recruitment, an appointing authority, in recruiting into public office, was obliged to consider other relevant instruments including the Public Service Commission Code of Regulations- Constitution of Kenya, 2010, articles 10, 27, 73, and 232;Pharmacy and Poisons Board, section 5(1); Public Service Commission Code of Regulations (Human Resource Policies and Procedures Manual for the Public Service, May 2016, section B.4(1)
Administrative law-rationality test-test for determining whether an act of a public body or officer was rational and reasonable-where a public body provided additional stringent minimum qualifications over and above statutory qualifications-whether the respondent acted irrationally in prescribing additional qualifications outside those provided by statute in a vacant job advertisement

Brief facts:
The Pharmacy and Poisons Board (the respondent/the Board) advertised for a vacancy to fill the position of Registrar/Chief Executive Officer. The petitioner averred that the advertisement, as was drafted and released, was unlawful and unconstitutional on the grounds, inter alia, that it was for thirteen (13) days instead of the statutory minimum of twenty-one (21) days and that the qualifications stipulated therein were meant to favour the immediate Acting Registrar to the detriment of other potential applicants. The petitioner asserted that the ideal desirable qualifications over and above the statutorily prescribed mandatory qualifications or requirements were important in recruitment of an ideal candidate but ought to remain as added advantages and not minimum requirements. The petitioner cited articles 10, 27, 73 and 232 of the Constitution of Kenya, 2010 (the Constitution), section 5(1) of the Pharmacy and Poisons Act, and section 37(4)(e) of the Public Service Commission Act as some of the provisions violated by the respondent in the recruitment process.

Issues:

  1. What were the legal requirements for the recruitment of the Registrar/Chief Executive Officer of the Pharmacy and Poisons Board?
  2. Whether prescribing additional minimum qualifications for vacant positions in public service outside the constitutional and legislative scope was illegal.
  3. Whether the respondent acted irrationally in prescribing additional minimum qualifications outside those provided by statute in a vacant job advertisement.
  4. What was the test for determining rationality of a decision made by a public body or officer?
  5. Whether, in absence of constitutional guidelines for recruitment, an appointing authority, in recruiting into public office, was obliged to consider other relevant instruments including the Public Service Commission Code of Regulations. Read More...

Relevant provisions of the Law
The Constitution of Kenya, 2010
Article 10
National values and principles of governance
(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—

(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.

(2) The national values and principles of governance include—

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and,
(d) sustainable development.

Article 73(2)(a)
The guiding principles of leadership and integrity include –

(a)selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;

The Pharmacy and Poisons Act
Section 5(1)
There shall be a registrar of the Board who shall be the chief executive officer of the Board competitively recruited and appointed by the Board upon such terms and conditions of service as shall be determined by the Board upon the advice of the Salaries and Remuneration Commission.

Held:

  1. The applicable law relating to the recruitment of the Registrar/Chief Executive Officer of the Pharmacy and Poisons Board (the Board/respondent) was the Pharmacy and Poisons Act (the Act). The impugned advertisement was placed pursuant to section 5(1) of the Act which provided that the Chief Executive Officer should be competitively recruited and appointed by the Board upon such terms and conditions of service as would be determined by the Board upon the advice of the Salaries and Remuneration Commission.
  2. The law did not prescribe qualifications and competencies of the holder of the office of the Registrar/Chief Executive Officer to the Pharmacy and Poisons Board. The only requirement was that the recruitment should be competitive. That notwithstanding, the said recruitment ought to have complied with the provisions of the Constitution. Article 73(2)(a) of the Constitution provided that the guiding principles of leadership and integrity included selection based on personal integrity, competence and suitability, or election in free and fair elections. The Constitution, however, did not describe what amounted to competence and suitability.
  3. Article 232 of the Constitution provided for values and principles of public service. Therefore, in carrying out recruitment to public offices, the appointing authority was required, inter alia, to adhere to the twin principles of fair competition and merit. However, the Constitution did not define what amounted to fair competition.
  4. The apparent lacuna in the Constitution to define what constituted competence and suitability, fair competition and merit was by design and not by coincidence. There was a margin of discretion conferred by the law upon those who made decisions and the test of rationality ensured that any legislation or official act was confined within the purposes set by the law. It was the insistence that decisions ought to be rational that limited arbitrariness and not discretion by itself. What was required of the Court to determine was not whether or not the Board had discretion to prescribe what was required of the applicants in order for them to meet the constitutional threshold of recruitment to the position of the Registrar/Chief Executive Officer of the Board, but whether its prescription was rational or not.
  5. A decision was irrational in the strict sense of that term if it was unreasonable; if it was lacking ostensible logic or comprehensible justification. Instances of irrational decisions included those made in an arbitrary fashion perhaps by spinning a coin or consulting an astrologer or where the decision simply failed to add up, in other words there was an error of reasoning which robbed the decision of logic. Less extreme examples of the irrational decision included those in which there was an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons displayed no adequate justification for the decisions or where there was absence of evidence in support of the decision.
  6. The prescriptions by the respondent were so onerous as to permit only a few persons to apply for the vacant position. One did not understand why it was necessary to prescribe that an applicant ought to have a master’s degree when the parent legislation did not provide for the same. While such qualification could be considered at the stage of interview and in determining the suitability of the candidates, imposing such a requirement at inception was inimical to the requirement that the recruitment be competitive as it amounted to locking out prospective applicants and granting the opening to only a few individuals. It was a prescription that could be abused to pre-determine a person to recruit for the position.
  7. The requirement that one should have served for at least five (5) years in senior management or leadership position at the Board or in a similar organization was broad because what amounted to a similar organisation was not defined. That was so because the respondent did not refute the petitioner’s claim that there was no organization similar to the Pharmacy and Poisons Board nor did it give examples of the organizations it considered similar. To couch a requirement in such a broad and vague terms could only be termed as an irrational requirement. Such a requirement therefore failed to meet the requirements of article 10 of the Constitution which required that such a decision ought to pass the test of non-discrimination, transparency and accountability, among others. It also failed to satisfy the provisions of articles 27 and 232 of the Constitution.
  8. Prescribing conditions which ought to be complied with in order to meet the constitutional guidelines where such guidelines were not expressly prescribed, the appointing authority ought to take into account the policies expressed in the relevant instruments. It was unreasonable for the respondent to ignore the provisions of section B.4(1) of Public Service Commission Code of Regulations (Human Resource Policies and Procedures Manual for the Public Service, May 2016) which provided that Ministries/State departments would advertise all vacant posts in a manner that reached the widest pool of potential applicants and allowed for at least twenty-one (21) days before closing the advert.
  9. The impugned advertisement allowed for only thirteen (13) days, from January 25, 2019 until February 7, 2019. Therefore, the process of recruitment of the Registrar/CEO of the Pharmacy and Poisons Board failed to meet the constitutional threshold.

Petition allowed with costs to the petitioner and the 2nd interested party.
Order:-
An order of certiorari issued removing into the Court and quashing the respondent’s decision contained in the daily newspapers of January 25, 2019 of advertisement for the vacant position of Registrar/CEO of the Pharmacy and Poisons Board; and any other consequent attendant process or decision including final appointment of Registrar/CEO of the Pharmacy and Poisons Board.

CONSTITUTIONAL LAW

Statute Law (Miscellaneous Amendments) Act No 12 of 2012 declared unconstitutional for effecting substantive amendments to the law and for violating the principle of public participation

Law Society of Kenya v Attorney General & 2 others [2019] eKLR
Civil Appeal 96 of 2014
Court of Appeal at Nairobi
P N Waki, D K Musinga, & P O Kiage, JJA.
September 27, 2019
Reported by Moses Rotich

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Constitutional Law-national values and principles of governance-public participation-claim that the Statute Law (Miscellaneous Amendments) Act, 2012 was unconstitutional for lack of public participation-burden of proof of public participation-where the trial court held that it fell on the petitioner to prove that public participation did not take place-finding that once the petitioner had stated that there was no public participation, it fell on the respondent to prove that there was indeed public participation-who had the burden of proof to establish whether public participation was done-whether the Statute Law (Miscellaneous Amendments) Act, 2012 was unconstitutional for lack of public participation-Constitution of Kenya, 2010, articles 10 & 118; Statutory Instruments Act, section 5
Statutes-amendment of statutes - Statute Law Miscellaneous Amendment Acts-nature and scope of Miscellaneous Amendments Acts-what was the purpose of a Statute Law Miscellaneous Amendment Act-claim that the Statute Law (Miscellaneous Amendments) Act, 2012 was used to introduce substantive amendments contrary to the ordinary use and purpose of a Statute Law (Miscellaneous Amendments) Act-whether the amendments contained in the Statute Law Miscellaneous Amendments) Act, 2012, had the effect of introducing substantive amendments to the law in changing the Advocates Disciplinary Committee to Advocates Disciplinary Tribunal-Advocates Act, 2012, sections 13(1)(e), 32A, 32B, 55 & 57(1); Law Society of Kenya Act, section 2
Statutes-interpretation of statutes-interpretation of the Statute Law (Miscellaneous Amendment) Act No 12 of 2012-where the Statute Law Miscellaneous (Amendment) Act No of 2012 amended the Advocates Act by substituting the phrase “Advocates Disciplinary Committee” with AdvocatesDisciplinary Tribunal-whether the amendment introducing the change from Advocate Disciplinary Committee to Advocates Disciplinary Tribunal changed the statutory architecture and powers of the Tribunal previously constituted as a Committee-what was the distinction between a committee and a tribunal-Statute Law (Miscellaneous Amendments) Act No 12 of 2012, section 2 & schedule; Advocates Act, sections 13(1)(e), 32A, 32B, 55 & 57(1); Law Society of Kenya Act, section 2
Words and Phrases-committee-definition-an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it, in the expectation of their act being confirmed by the body they profess to represent or to act for-Stroud’s Judicial Dictionary of Words and Phrases, 6th Edition, Volume 1: A-F, page 449
Words and Phrases-minor-definition-having little importance, seriousness or significance- Concise Oxford English Dictionary, 12th Edition, page 911
Words and Phrases-substantive law-definition-the part of the law that creates, defines, and regulates the rights and duties, and powers of parties-Black’s Law Dictionary, 8th Edition, page 1470
Words and Phrases-tribunal-definition-a court or other adjudicatory body-the seat, bench, or place where a judge sits- Black’s Law Dictionary, 8th Edition, page 449

Brief facts:
The appellant lodged a petition in the High Court challenging amendments made in the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 on the grounds that the 1st respondent had purported to make substantive amendments to various Acts contrary to the ordinary usage of a Statute Law (Miscellaneous Amendments) Act. They argued that that a Statute Law (Miscellaneous Amendments) Bill was only used to make minor amendments to the Law, to consolidate various minor amendments to remove anomalies, or to repeal unnecessary enactments. The appellant urged the High Court to, inter alia, declarethe Statute Law (Miscellaneous Amendments) Act No 12 of 2012 unconstitutional. After considering the petition, the High Court found it unmeritorious and dismissed it, prompting the appellant to file the instant appeal.
The challenged amendments affected certain provisions of the Law Society of Kenya Act and the Advocates Act. In particular, sections 13(1)(e), 32A, 32B, 55 and 57(1) of the Advocates Act were amended. The effect of those amendments were to remove the responsibility of vetting magistrates from the Judges and Magistrates Board to the Judicial Service Commission; replace the Advocates’ Disciplinary Committee with an Advocates’ Disciplinary Tribunal; empower the Chief Justice to make recommendations on the remuneration of a category of lawyers known as in-house Counsel; and, permitted advocates practising within the East African community and the commonwealth to be admitted to practice law in Kenya.
The appellant argued that the trial court misdirected itself by, inter alia, failing to appreciate that the amendments contained in the Statute Law (Miscellaneous Amendment) Act, 2012, sought to introduce substantive amendments to the law, and the amendments ought to have been subjected to public participation prior to being passed into law.
The respondents opposed the appeal and maintained that the Statute Law (Miscellaneous Amendments) Act No 2012, did not bring any substantive amendments to the Acts mentioned therein and urged the Court to dismiss the appeal.

Issues:

  1. What was the nature and scope of a Statute Law Miscellaneous Amendment Bill?
  2. What was considered a substantive amendment of a law?
  3. Whether the amendments contained in the Statute Law (Miscellaneous Amendments) Act No 12 of 2012, substantively amended the Advocates Act and the Law Society of Kenya Act in;
    1. changing the Advocate Disciplinary Committee into Advocates Disciplinary Tribunal; and,
    2. allowing foreign advocates from the East African Community to practice in Kenya.
  4. What was the distinction between a committee and a tribunal?
  5. Whether the amendments made by Statute Law (Miscellaneous Amendments) Act No 12 of 2012 changing the Advocate Disciplinary Committee to Advocates Disciplinary Tribunal altered the statutory architecture and powers of the Tribunal previously constituted as a Committee.
  6. Whether the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 was unconstitutional for lack of public participation. Read More...

Held:

  1. A Statute Law (Miscellaneous Amendments) Bill was meant to be an Act of Parliament to make minor amendments to statute law. From ordinary use, the word minor meant something that was of less importance, insignificant even. Substantive law meant the part of the law that created, defined, and regulated the rights and duties, and powers of parties. As such, the amendments introduced by a Statute Law (Miscellaneous Amendments) Bill ought not to create, define, regulate or confer any powers to any parties, for if they did, they would not be said to be minor or inconsequential.
  2. A committee was defined as an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it, in the expectation of their act being confirmed by the body they profess to represent or to act for. On the other hand, a tribunal meant a court or other adjudicatory body. The term committee signified something part of and subordinate to a higher authority to which it reported. That was the case with the Advocates Disciplinary Committee’s relationship to the appellant. A tribunal had a more important, self-directive or autonomous adjudicative connotation to it. As such, the trial court erred in stating that the amendment was merely cosmetic and did not change the substance of the Advocates Act nor interfered with the powers of that body. That was more so when the role of the Attorney General in determining remuneration for the members of the established Tribunal was considered. The appellant’s apprehensions regarding the appearance of the Tribunal being beholden to the Attorney General were not idle.
  3. On the amendment to the Advocates Act which opened up the Kenyan market to foreign advocates, the trial court held that section 11 of the Advocates Act had already provided for the practice and regulation of foreign advocates. The High Court erred in not observing the finer details of the amendments and in not appreciating the text, context and effect that rendered them substantive. The amendments had an effect on the business of the appellant and its membership. Moreover, it undermined the independence of the appellant, something that the Court could not countenance.
  4. There was mischief in the 1st respondent’s argument that the State needed to have some level of control over the discipline of advocates. It already had the Advocates Complaints Commission under its control. That was enough state control. There was no legitimate purpose to be served by further control through legislative measures clearly cultivated to undermine the independence of the appellant.
  5. On the issue of public participation, the High Court failed to appreciate the mandatory provisions in section 5 of the Statutory Instruments Act which required consultations before making statutory instruments that had a direct or substantial indirect effect on business or restricted competition with persons who were likely to be affected by the proposed instrument. The High Court ought to have found in favour of the appellant based on the claim made on the lack of public participation.
  6. It was an error for the trial court to require the appellant to prove the negative–that there was no public participation, for once it stated there was no public participation, the burden shifted to the respondents to show that there was. Much weight had been placed on public participation because it was the only way to ensure that the legislature would make laws that were beneficial to the mwananchi, not those that adversely affected them. Additionally, the onus was on the Parliament to take the initiative to make appropriate consultations with the affected people. It was therefore misdirection for the High Court to hold that the appellant had the responsibility to prove that the consultations did not happen.
  7. The 1st respondent was not possessed of an unfettered or carte blanche leeway to table legislation that was detrimental to the people of Kenya or a section of the citizenry. It ought to follow due process which included consultation with stakeholders. The Constitution established that mechanism to enable the Legislature to make laws that were reasonable, having sought and obtained the views of the people. That was the essence of an accountable limited government and the shift from the supremacy of Parliament to the sovereignty of the people birthed by the Constitution.
  8. The Legislature overreached in passing substantive amendments in an un-procedural non-participatory manner, through the Statute Law (Miscellaneous Amendments) Act No of 2012. Parliament’s passing of the challenged amendments was not in keeping with the constitutional bounds of its power and the same ought to be struck down.
Appeal allowed with no order as to costs

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