Weekly Newsletter 002/2020



Kenya Law

Weekly Newsletter


An appeal on a decision on an arbitral award can only lie to the Court of Appeal where the High Court, in setting aside the award, steps outside the grounds set out in section 35 of the Arbitration Act
 
Synergy Industrial Credit Limited v Cape Holdings Limited
Petition No. 2 of 2017
Supreme Court of Kenya

DK Maraga; CJ & P; MK Ibrahim, SC Wanjala, N Njoki & I Lenaola, SCJJ
December 6, 2019
Reported by Faith Wanjiku and Ian Kiptoo
Download the Decision


 
Alternative Dispute Resolution - arbitration - arbitral awards – appealing of arbitral awards  - extent of court intervention - recourse to the High Court - right to appeal to the Court of Appeal and Supreme Court under section 35 of the Arbitration Act - whether the general right of appeal was available to arbitration proceedings - whether there was a right of appeal to the Court of Appeal following a decision by the High Court under section 35 of the Act on recourse to High Court against an arbitral award - Constitution of Kenya, 2010, article 164 (3); Arbitration Act, sections 10 and 35

Alternative Dispute Resolution - arbitration - arbitral awards - finality of arbitral awards - where recourse of an arbitration award was only to the High Court and other courts were restricted to intervene in matters governed by the Arbitration Act -what was the scope of the principle of finality in arbitration

Brief Facts:
The parties before the court entered into a partly oral and partly written sale agreement approximately 10 years, whereby the petitioner offered to purchase office blocks and parking spaces from the respondent. Later on, a dispute arose and according to the terms of the agreement, a sole arbitrator was to be appointed to resolve it. By the time the dispute arose, the petitioner had disbursed a significant amount of money to the respondent, even though the said office blocks and parking spaces were still undergoing construction.
By an award dated January 30, 2015, the arbitrator ordered the respondent to pay the petitioner a sum of Kshs.1,666,118,183.00 being the amount of money advanced to the respondent, accruing interest, loss of income opportunity, exchange fluctuations and costs.  Dissatisfied by the award, the respondent filed an application at the High Court under section 35(1), 5(2)(a)(iv) & (b)(i) & (ii) of the Arbitration Act (the Act) seeking to set aside the award. The petitioner on its part filed an application at the High Court seeking to enforce the award.
 Upon considering the matter, the High Court by a ruling found that all the issues addressed by the arbitrator fell outside the scope of the reference of the arbitrator and so it set aside the award in its entirety and dismissed the petitioner’s application for the enforcement of the award. Dissatisfied by the High Court decision, the petitioner filed an appeal at the Court of Appeal. In response, the respondent sought to strike out the petitioner’s notice of appeal as well as the record of appeal on the grounds that there was no right of appeal from a decision of the High Court arising under sections 10, 35, 36 and 37 of the Act.
The Court of Appeal upheld the respondent’s application and struck out the notice of appeal and the record of appeal. It specifically held that save for what was provided in section 39, there was no right of appeal from decisions of the High Court made pursuant to section 35 of the Act. Aggrieved by that finding, the petitioner filed the instant petition of appeal.


Issues:
  1. Whether there was a right of appeal to the Court of Appeal following a decision by the High Court under section 35 of the Act on recourse to High Court against an arbitral award.
  2. Whether the general right of appeal implied in article 164(3) of the Constitution was restricted in arbitration proceedings.
  3. What was the scope of the principle of finality in arbitration?

Relevant provisions of the Law
Arbitration Act, No 4 of 1995
Section 10-Extent of court intervention

Except as provided in this Act, no court shall intervene in matters governed by this Act.

Section 35-Application for setting aside arbitral award
(1) Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3).
(2) An arbitral award may be set aside by the High Court only if—

(a) the party making the application furnishes proof—

(i) that a party to the arbitration agreement was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or
 (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or
(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption;

(b) the High Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
(ii) the award is in conflict with the public policy of Kenya…

Section 39-Questions of law arising in domestic arbitration
… (3) Notwithstanding sections 10 and 35 an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2)—

(a) if the parties have so agreed that an appeal shall lie prior to the delivery of the arbitral award; or
(b) the Court of Appeal, being of the opinion that a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties, grants leave to appeal, and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2).

Held:

  1. The question whether the Court of Appeal had jurisdiction to hear appeals arising from section 35 of the Act remained unsettled.
  2. With regard to setting aside of an arbitral award, the UNCITRAL Model Law (Model Law) provided that a party could approach the court seeking to set aside an arbitral award on any of the specified grounds. That provision was similar to section 35 of the Act. The explanatory notes by the UNCITRAL Secretariat with regard to recourse to court for setting aside an award stated that the purpose of the provision was to provide only one way of attacking an award and that was through an application for setting aside. In addition, the explanatory notes also stated that, a party was not precluded from appealing to an arbitral tribunal of second instance if the parties had agreed on such a possibility (as was common in certain commodity trades). To that extent it could be said therefore that the Model Law appreciated the possibility of a further appeal against a decision of setting aside an award but limited to a situation where the parties to it had so agreed.
  3. Article 5 of the Model Law was enacted for purposes of protecting the arbitral process from unpredictable or disruptive court interference against parties who chose arbitration especially foreign parties. Section 10 of the Act just like article 5 was meant to ensure that the judicial process would only be resorted to where the Act so provided and only within the parameters provided. Neither article 5 of the Model Law nor section 10 of the Act answered the question whether a further appeal could lie from a decision of the High Court under section 35. The explanatory notes on the Model Law however acknowledged that such appeals could lie to a second instance tribunal on limited circumstances as could be determined by each State within its legislative processes as had been done in section 39 of the Act.
  4. In interpreting the arbitration law, one should never lose sight of the purpose of the enactment of the Act and in addition, the fact that the Constitution under article 159(2)(c) on judicial authority enjoined courts to be guided by the principles of alternative forms of dispute resolution such as arbitration. Arbitration was an attractive way of settling commercial disputes by virtue of the perceived advantages it brought beyond what was generally offered by the normal court processes, which were often characterised by formalities and delays. In addition, arbitration regime was meant to ensure that there was a process, distinct from the courts, of effectively and efficiently solving commercial disputes, the law also recognised that such a process was not absolutely immune from courts’ intervention. Courts of law remained the ultimate guardians and protectors of justice and hence, they could not be completely shut off from any process of seeking justice.
  5. Allegations of violations of the Bill of Rights fell in a completely different legal regime separate from what was before the court. By way of example, article 163(4)(a) of the Constitution provided that the Supreme Court had jurisdiction to hear appeals as of right in any case involving the interpretation or application of the Constitution. Appeals involving violations of the Bill of Rights would impact on the interpretation or application of the Constitution and such appeals would have arisen through the normal judicial hierarchy of courts meaning that the Court of Appeal would have an unrestricted right of appeals for the Supreme Court to be able to exercise such an interpretative jurisdiction. Such an approach would have been the context within which article 164(3) was interpreted. There was no unrestricted right of appeal under article 164(3) of the Constitution in all instances.
  6. That was not to suggest that, by dint of article 164(3) of the Constitution all and sundry decisions of the High Court were appealable to the Court of Appeal. A holistic and purposive reading of the Constitution, particularly the right to access justice (article 48) the right to fair hearing (article 50), judicial authority (article 159) and article 164(3) itself would accommodate limitation of what was appealable, if the limitation satisfied the requirements of article 24 of the Constitution.
  7. The jurisdiction of the Court of Appeal under section 39 was very specific on when it could be invoked, that was, determination of questions of law arising in the cause of arbitration proceedings. Section 39, did not prescribe or affect the jurisdiction of any other court as provided in any of the other provisions of the Act. The purpose was to ensure that determination of a question of law particularly where issues of general public importance arose, were subject to appeals. And even though section 35 provided that recourse to the High Court against an award could be made only by an application for setting aside, section 39 provided further circumstances when an award could be set aside either by the High Court or the Court of Appeal hence the use of the term notwithstanding section 10 and 35. Section 39 could not be justifiably interpreted so as to oust the jurisdiction of the Court of Appeal, if at all, in any other section of the Act.
  8. Once parties agreed to settle their disputes through arbitration, the arbitral tribunal should be the core determinant of their dispute. Once an award was issued, an aggrieved party could only approach the High Court for setting aside the award, only on the specified grounds. And hence, the purpose of section 35 of the Act was to ensure that courts were able to correct specific errors of law, which if left alone would lead to a miscarriage of justice. Therefore, even in promoting the core tenet of arbitration which was a quicker and efficient way of settling commercial disputes that should not be at the expense of real and substantive justice. In the interest of safeguarding the integrity of the administration of justice and particularly in the absence of an express bar the Court of Appeal should have residual jurisdiction but only in exceptional and limited circumstances.
  9. Not every decision of the High Court under section 35 was appealable to the Court of Appeal. An intended appeal, which was not anchored upon the four corners of section 35 of the Act, should not be admitted. An intended appellant had to demonstrate or had to be contending that in arriving at its decision, the High Court went beyond the grounds set out in section 35 of the Act for interfering with an arbitral award.
  10. In applying the above criteria, it would be expected that the Court of Appeal would jealously guard the purpose and essence of arbitration under article 159(3)(d) of the Constitution on judicial authority so that floodgates were not opened for all and sundry to access the appellate mechanism. Similarly, it would be expected that a leave mechanism would be introduced into the laws by the Legislature to sieve frivolous appeals and not create backlogs in the determination of appeals from setting aside of award decisions by the High Court.
  11. The dispute at hand could be traced to events that took place over 10 years. Whereas the parties started as friends, they had turned against each other and the existing conflict between them remained unsolved. It had thus been submitted that the High Court decision gave no further directions as to whether fresh arbitration proceedings should commence or not, and hence, it was urged that the petitioner was left, so to speak, in limbo. That was after the High Court had set aside the award in its entirety. There seemed to be a consensus, as could also be perceived from the pleadings, that some substantial amount of money had been advanced to the respondent by the petitioner. With the setting aside of the award, the fate of the said moneys advanced to the respondent remained unknown.
  12. In the circumstances, various questions would necessarily arise; would a judgment that left a party in such a precarious position be said to create confidence in the administration of justice? Would the principle of minimal courts’ intervention in arbitration matters supersede the need to correct an injustice? Where allegations of such manifest unfairness had been made, they should not be left incapable of a higher Court’s review. The Court of Appeal should have assumed jurisdiction to hear the petitioner’s appeal arising from the decision of the High Court under section 35 of the Act limited to the relevant consideration as expressed.
  13. There was no sufficient material before the court to enable it make any substantive determination on the issue of staying proceedings in a matter pending before the High Court, i.e. ELC No. 440 of 2011, concerning the property which was the subject matter of the dispute.
Per DK Maraga, CJ & P; SCJ (dissenting)
  1. The entire Constitution had to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other and without subordination of any one provision to the other. Articles 159(2)(c) and 164(3) of the Constitution did not contradict each other. While article 159(2)(c) entrenched arbitration in Kenya as an alternative dispute resolution mechanism, article 164(3) on the other hand provided for the appellate jurisdiction of the Court of Appeal. The two were thus harmonized.
  2. The explanatory notes on the Model Law acknowledged that appeals could lie to a higher court against decisions on arbitral proceedings in limited circumstances as could be determined by each State in its adaptive legislation. Under the Act, appeals were allowed only under section 39 of the Act and by the consent of the parties.
  3. None of the arbitration legislations of the countries mentioned in the majority’s judgment was in exact pari materia with the Act. The English, Canadian and Singaporean Arbitration Acts permitted appeals, albeit with leave, against High Court decisions setting or declining to set aside arbitral awards. For instance section 67 of the English Arbitration Act which, like section 35, provided for the setting aside of an arbitral awardif, inter alia, the arbitrator acted without jurisdiction, allowed appeals from decisions made thereunder. Section 69(1) and (2) of that Act provided that with the agreement of all the other parties to the proceedings, or with the leave of the court, a party to arbitral proceedings could appeal to the court on a question of law arising out of an award made in the proceedings. Section 69(8) allowed further appeals with leave of the court considered that the question was one of general importance or was one which for some other special reason should be considered by the Court of Appeal.
  4. Section 49 of the Singaporean International Commercial Arbitration Act was more or less the same as section 69 of the English Arbitration Act. It permitted an appeal with leave against a High Court decision to set aside an award made under section 24 of that Act and article 34 of the Model Law. Under the Canadian Arbitration Act of 1996, challenges to arbitral awards were by way of appeal. It also permitted further appeals (with leave granted under section 31(2) of that Act) from the High Court decisions setting aside an award on, inter alia, points of law of public importance.
  5. In arbitral proceedings governed by the Arbitration Act, an appeal lay to the Court of Appeal only under section 39(3). In the instant matter, the parties never consented on the issue of appeal. The court was dealing with the issue of whether there was a right of appeal, not against the High Court decision made under section 39(2), but from the High Court decision on an application made under section 35 of the Act. Contrary to the contention of counsel for the appellant, section 39 of the Act had no relevance to the issues at hand.
  6. Every statute had to be interpreted on the basis of its own language. Where the words or phrases of a provision were clear and un-ambiguous, they had to be given their primary, ordinary and natural meaning irrespective of its consequences. When there was a conflict between a plain statute and a previous decision the statute had to prevail. The words of sections 10 and 32A of the Act were plain and unambiguous. They left no doubt whatsoever that court intervention in arbitral proceedings had to be as expressly stated in that Act.
  7. The principle of finality in arbitral proceedings, and in particular the caution in the failure to uphold it, had attracted considerable scholarly comments. If an arbitral process was treated as if it merely added one layer to the hierarchy of potential decision-making then the system was self-defeating. If courts were free to intervene more liberally in the arbitration process, the advantage of a speedy and less costly resolution of disputes by private arbitration mechanisms would certainly disappear.
  8. Awards should be impervious to court intervention as a matter of public policy. Unwarranted judicial review of arbitral proceedings would simply defeat the object of the Act. The role of courts should therefore be merely facilitative otherwise excessive judicial interference with awards would not only be a paralyzing blow to the healthy functioning of arbitration in the country but would also be a clear negation of the legislative intent of the Act.
  9. In commercial transactions, disputes were often about money, and more often than not, large sums of money. Where money was concerned there were not many good losers. In an adversarial system as Kenya’s, to open unwarranted doors to court intervention in arbitral proceedings, would lead to appeals on literally all issues disguised and presented as challenges to process failures during the arbitration. Arbitral awards or decisions on them would be subject to court challenges on every issue. Arbitration would therefore be an extra cog in the gears of access to justice through litigation or a precursor to litigation. By the time the court determined the issue, the matter would have dragged in court for years. Arbitrations would thus prolong dispute resolution and be self-defeating. In such a scenario, it would be more efficacious to abandon arbitration altogether and litigate all disputes in courts of law.
  10. Timelines in the performance of contracts and speed in the disposal of disputes were the hallmarks of the current competitive commercial environment. The importance of arbitration as an alternative dispute resolution mechanism could not be over-emphasized. Parties entered into arbitration agreements for the very reason that they did not want their disputes to end up in court. The common thread that ran through most arbitration statutes based on the Model Law was the restriction of court intervention except where necessary and in line with the provisions of the Acts of various jurisdictions.
 Petition allowed with each party would bear its own costs. 
Orders:
  1. The ruling of the Court of Appeal dated December 20, 2016 was set aside.
  2. The petitioner’s notice of appeal dated March 15, 2016, and the record of appeal dated April 22, 2016 filed in the Court of Appeal in Civil Appeal No. 81 of 2016 were re-instated.
  3. An order was issued directed at the Court of Appeal to expeditiously and on a priority basis determine on merits the petitioner’s appeal in Civil Appeal No. 81 of 2016.
Kenya Law
Case Updates Issue 004/2020
Case Summaries

CIVIL PRACTICE AND PROCEDURE Lack of previous engagements in litigation would not prevent an applicant from being admitted as a friend of the court

Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA) [2019] eKLR
Petition 3 of 2018
Supreme Court of Kenya
D K Maraga, CJ & P; M Ibrahim, J B Ojwang, S Wanjala & I Lenaola, SCJJ
November 29, 2019
Reported by Moses Rotich

Download the Decision

Civil Practice and Procedure – parties – parties to a suit- amicus curiae (friend of the court) – criteria for admission of an amicus curiae – whether an applicant who had no previous legal engagement in litigation could be admitted as an amicus curiae – Supreme Court Rules, 2012, rule 54

Brief facts:
The applicant was a non-governmental organization established in the year 2014 and based in Johannesburg, South Africa. It averred that it was founded to, inter alia, promote and protect women’s human rights in the African domestic and regional courts. It sought to be admitted as amicus curiae so as to make submissions on the meaning of the right to remedy in the context of human rights’ violation, demonstrate how remedies in human rights had evolved and to present comparative jurisprudence on the subject.
The petitioner did not contest the application. However, the 1st respondent argued that the applicant had not demonstrated any expertise in the matters to be addressed at the hearing, did not raise any novel point of law separate from what the petitioner had raised, was not a neutral party and did not file its application timeously.

Issues:

  1. What were the criteria to be met by an applicant seeking to be admitted as amicus curiae before the Supreme Court?
  2. Whether an applicant who had no previous legal engagement in litigation could be admitted as amicus curiae.Read More..

Relevant provisions of the law
Supreme Court Rules, 2012
Rule 54
(1)  The Court may –

(a)  in any matter allow amicus curiae;
(b)  appoint a legal expert to assist the Court in legal admissions;
(c)   at the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter;

(2)  The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest or any other relevant factor.

Held:

  1. Rule 54 of the Supreme Court Rules, 2012, provided that the court could allow an amicus curiae (friend of the court) in any matter before it. However, before allowing an amicus curiae, the court ought to consider the expertise, independence and impartiality of that applicant. The court was also required to take into account the public interest involved or any other relevant factor.
  2. In its past decisions, the court had expounded on the criteria for admission of an amicus curiae;
    1. an amicus brief should be limited to legal arguments;
    2. the relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality and fidelity to the law; and,
    3. an amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that would aid the development of the law.
  3. The applicant had addressed its expertise and filed an amicus brief limiting itself to the grounds of its intended participation in the hearing of the petition of appeal. Although only 5 years old since its inception, the applicant claimed to have had extensive experience in human rights litigation particularly in the protection of the rights of women but failed to cite a case where that expertise had been applied. Nonetheless, the applicant had in its brief limited itself to legal arguments.
  4. With regard to neutrality, there was nothing in the amicus brief which pointed to lack of impartiality on the part of the applicant. Nothing existed on the record as to whether the applicant had any special relationship with the petitioner or that its brief was deliberately skewed towards the petitioner. In the circumstances, and despite lack of evidence of previous engagements in litigation by the applicant, its amicus brief was detailed enough and useful to the court.

Application allowed with no order as to costs.

CONSTITUTIONAL LAW

Failure to include two nominated members by the Non-Governmental Organisations (NGO) Council in the selection panel to recruit the chairperson and members of the National Land Commission (NLC) does not render the entire recruitment process invalid

Okiya Omtatah Okoiti v Selection Panel for the National Land Commission and 4 others; Gershom Otachi Bw’omanwa and 10 others (interested parties)
Employment and Labour Relations Court at Nairobi
 Petition 162 of 2019
H Wasilwa, J
November 14, 2019
Reported by Ian Kiptoo

Download the Decision

Constitutional Law – commissions and independent offices – National Land Commission (NLC) – chairperson and members of the National Land Commission – recruitment and appointment – selection panel – claim that selection panel was not properly constituted – where NGO Council did not submit members due to internal leadership wrangles - whether failure to include two nominated members by the Non-Governmental Organisations (NGO) Council in the selection panel to recruit the chairperson and members of the National Land Commission (NLC) constituted an improper panel and thus the entire recruitment process was invalid - First Schedule to the National Land Commission Act, paragraph 1

Constitutional Law – commissions and independent offices – National Land Commission – chairperson and members of the National Land Commission – recruitment and appointment – where results of interviews and successful candidates were not published – claim that the recruitment process was fatal - whether failure to publish the results of interviews and names of successful candidates by a selection panel was fatal to the recruitment process of the chairperson and members of the NLC - First Schedule to the National Land Commission Act, paragraph 4

Constitutional Law – public service – recruitment in the public service – regional balance requirement - whether the requirement for regional balance in the recruitment process in the public service implied tribal balance – Constitution of Kenya, 2010, article 10

Constitutional Law – commissions and independent offices – National Land Commission – chairperson and members of the National Land Commission – recruitment and appointment – where persons who were not shortlisted to be members were appointed as members of NLC – where shortlisting was for the position of chairperson - whether the appointment of persons to be a member of the NLC, who were not shortlisted for the position of member but of chairperson, was unconstitutional – Constitution of Kenya, 2010, article 232

Brief Facts:
The petition before the court challenged the process, constitutionality and legality of the selection and appointment of the chairperson and members of the National Land Commission (NLC). The petitioners grounds were that the 1st respondent did not have capacity to recruit the chairperson and members of the NLC because it was improperly constituted, the 1st respondent did not publish the results of the interviews, indicating how the candidates had scored at the interviews, that the 1st respondent did not publish the names of the 16 candidates it recommended to the president for appointment as members of the NLC and that the President appointed the 8th and 9th interested parties to be members of the commission yet they were never shortlisted or interviewed for the position of member.

Issues:

  1. Whether failure to include two nominated members by the Non-Governmental Organisations (NGO) Council in the selection panel to recruit the chairperson and members of the National Land Commission (NLC) constituted an improper panel and thus the entire recruitment process was invalid.
  2. Whether failure to publish the results of interviews and names of successful candidates by a selection panel was fatal to the recruitment process of the chairperson and members of the NLC.
  3. Whether the requirement for regional balance in the recruitment process in the public service implied tribal balance.
  4. Whether the appointment of persons to be members of the NLC, who were not shortlisted for the position of member but of chairperson, was unconstitutional. Read More...

Relevant Provisions of the Law
National Land Commission Act
First Schedule
Paragraph 4
 “The selection panel shall within twenty-one days after the expiry of the deadline for receipt of applications under paragraph (3):-

 a)  consider the applications received under paragraph (3) to determine their compliance with the provisions of the Constitution and this Act;
 b)  short list the applicants;
 c)  publish the names of the shortlisted applicants and the qualified applicants in at least two daily newspapers of nationwide circulation;
 d)  conduct interviews of the shortlisted persons in public;
 e)  shortlist two qualified applicants for the position of chairperson;
 f)  shortlist sixteen qualified applicants for the position of the members; and
 g)  forward the names of the qualified persons to the President.

Held:

  1. The Office of the President through the Head of Public Service wrote to the Chairperson of the Non-Governmental Organisations (NGO) Council on October 18, 2018. The letter requested the Council to nominate 2 members for inclusion in the selection panel for appointment of chairperson and members of the NLC. The Council was expected to submit the nominees by October 26, 2018. It appeared that the Council did not nominate the representatives as expected because on October 30, 2018, the chairman of the NGO Co-ordination Board responded to the letter from the Office of the President and admitted that they were unable to nominate members to serve in the selection panel because the Council was still under leadership of different factions that had culminated into litigation and the matter was still pending in court awaiting determination.
  2. There was no indication that the NGO Council wrote to the Office of the President to indicate that they had resolved their internal problems and sought to be included in the selection panel. There was also no indication that the Attorney General was part of the case involving the NGO Council and was aware when the Council resolved its internal problems. In the circumstances, the onus of showing that the Council was well constituted and able to discharge its mandate in the Selection Panel lay with the NGO Council itself and the Office of the President could not be faulted for proceeding to set up the panel without inclusion of the members of the NGO Council. In terms of the fact that the panel was constituted without key members as provided by the law, the panel was improperly constituted.
  3. Though the panel was improperly constituted, the omission to have all eligible members included had been explained. The fact that the selection panel proceeded to act and discharge its mandate in the absence of other expected members of the panel did not render the entire recruitment and appointment process it undertook invalid, null and void ab initio by that very reason.
  4. Under paragraph 4 of the First Schedule to the NLC Act, there was no obligation on the selection panel to publish results of the interviews. Therefore, the omission in not publishing the said results could not be fatal. In addition, there was also no mandatory requirement to publish names of the successful candidates before forwarding to the President. In the circumstances, the omission was not fatal to the recruitment process.
  5. Kenya was a country with diverse ethnic groups. The Constitution of Kenya, 2010 (Constitution) mandated appointments in the public service to be open and transparent and to follow values and principles stated at article 10 of the Constitution. When dealing with 45 tribes, and in attempting to fill up 9 vacancies, regional balance could not be tribal balance. Courts should not be swayed into making assumptions as to ethnic and regional origins of Kenyans based on the names of the nominees and thereby falling into the deep pit of negative ethnicity. Therefore, without any clear evidence or analysis as to lack of regional balance in the process. It would be indecisive to the entire process for the court to delve into negative ethnicity.
  6. The 8th and 9th interested parties both applied for the position of chairperson and member of NLC. The two were also shortlisted for the position of chairperson of the NLC as per the list filed by the 2nd petitioner on August 30, 2018 as appendix A003. The two were never shortlisted for the position of member of the NLC. An employment process started from the advertisement process to the shortlisting onto the interview and finally selection process. The processes had to therefore be above board.
  7. The process of shortlisting was as important as the process of interviewing and it defeated logic to imagine that a candidate could apply for two positions and be shortlisted for one of such positions and be appointed to an altogether different position. The interested parties were qualified for both positions. They were however shortlisted for one position and not both. They could not have been appointed to a position for which they were never shortlisted for.
  8. The position of chairperson and that of member was distinct and separate and there could be no situation where one submitted for interview for one position and got hired for a different position. That would be tantamount to abuse of office and flouting regulation that governed the hiring process. The nomination of the 8th and 9th interested parties as members of NLC was unconstitutional flouting principles of appointment in the public service as provided under article 232 of the Constitution.
  9. Due to the doctrine of separation of powers, the job for the judiciary was cut out and so was that of the National Assembly. None of the two organs could load on each other. In exercise of the court’s jurisdiction as mandated by the Constitution, it was excess of its power for Parliament to bend back and ask a nominee to go and get documents to qualify her for nomination when the duty of parliament was to find out her suitability for nomination as presented before her. That was indeed improper exercise of parliamentary power, which should be exercised without regard to matters beyond its mandate to vet the nominees.
  10. The 9th interested party did not have a tax compliance certificate and also having found that she was nominated for a position she could not have been interviewed for; parliament should not have proceeded to vet her as suitable for appointment. Therefore, parliament acted in excess of its mandate in the circumstance.

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

  1. The selection panel as constituted was incompetent but that did not affect the outcome of its entire process.
  2. The nomination of the 8th and the 9th interested parties was quashed.
  3. The vetting process by parliament of the 8th and 9th interested parties was done in excess of parliamentary powers.
CIVIL PRACTICE AND PROCEDURE

Infringement of intellectual property rights in goods and services amounts to counterfeiting under the Anti-Counterfeit Act

Republic V Anti-Counterfeit Agency Ex-Parte Caroline Mangala T/A Hair WorksSaloon [2019] eKLR
Judicial Review No. 325 of 2018
High Court at Nairobi
Mativo J, J
November 20, 2019
Reported by Ian Kiptoo

Download the Decision

Tort Law – passing off – protection from misrepresentation of goods and services – elements needed to be satisfied – what were the differences between the common law passing off and statutory law on trademarks in intellectual property enforcement where a complainant had not registered a trademark - what were the three elements that a complainant had to satisfy a court in order to prove the tort of passing off

Intellectual Property Law – trademarks – enforcement of unregistered trademarks – claim that complainant had no locus standi – where the complainant had not registered a trademark – where Anti- Counterfeit Act provided a definition of counterfeit to include violation of intellectual property rights - whether infringement of intellectual property rights in goods and services amounted to counterfeiting under the Anti-Counterfeit Act - whether failure to register a trademark was a bar against enforcement of an intellectual property right

Statutes – interpretation of statutes – purposive interpretation of statutes – factors to be considered - what were the factors to be considered when conducting a purposive interpretation of a statutory provision

Judicial Review – judicial review applications – grounds for application – relevant considerations – claim that the respondent’s officers failed to consider relevant consideration - where goods seized were inspected and certified by the Kenya Bureau of Standards to be genuine – where goods were seized by the Anti-Counterfeit Agency - whether the testing and certification of goods to be genuine by the Kenya Bureau of Standards was a relevant consideration that ought to be factored before seizure of goods by the Anti- Counterfeit Agency

Judicial Review – judicial review applications – grounds for application – bad faith – where seizure of goods was based on reasonable suspicion by respondent’s officers – claim that seizure of goods was based on bad faith - whether reasonable suspicion by an officer that led to the seizure of goods believed to be counterfeit goods amounted to action in bad faith

Judicial Review – judicial review remedies – prerogative orders - whether an applicant, who did not prove that a process was unlawful, was entitled to the judicial review remedies sought

Brief facts:
The respondent’s officers raided the applicant’s shop and seized products on suspicion that she was dealing, trading and selling counterfeit beauty products by the brand Makari De Suisse. The applicant sought judicial review remedies on the grounds that the same products were submitted to the Kenya Bureau of Standards (KEBS) to ascertain whether they were counterfeit or not which met the standards set by KEBS, hence, they were not counterfeit as alleged by the respondent. Further, that seizure was unreasonable, based on non-existent considerations or ulterior motive or purpose calculated to prejudice the applicant’s business.
The respondents on the other hand contended that its mandate was strictly confined to abuse of intellectual property rights which in the instant case was a trademark and did not extend to matters to do with standards.

Issue:

  1. What was the role of courts in evaluating whether a decision by a public administrative body was illegal?
  2. What were the factors to be considered when conducting a purposive interpretation of a statutory provision?
  3. Whether failure to register a trademark was a bar against enforcement of an intellectual property right.
  4. What were the differences between the common law passing off and statutory law on trademarks in intellectual property enforcement?
  5. What were the three elements that a complainant had to satisfy a court in order to prove the tort of passing off?
  6. Whether infringement of intellectual property rights in goods and services amounted to counterfeiting under the Anti-Counterfeit Act.
  7. Whether reasonable suspicion by an officer that led to the seizure of goods believed to be counterfeit goods amounted to action in bad faith.
  8. Whether the testing and certification of goods to be genuine by the Kenya Bureau of Standards was a relevant consideration that ought to be factored before seizure of goods by the Anti- Counterfeit Agency.
  9. Whether an applicant, who did not prove that a process was unlawful, was entitled to the judicial review remedies sought. Read More...

Relevant Provisions of the Law
Anti-Counterfeit Act
Section 5
5. Functions of the Authority
  The functions of the Authority shall be to—

 a) enlighten and inform the public on matters relating to counterfeiting;
 b) combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with this Act;
 c) devise and promote training programmes on combating counterfeiting;
 d) co-ordinate with national, regional or international organizations involved in combating counterfeiting;
 (da) advise the government through the Cabinet Secretary on policies and measures concerning the necessary support, promotion and protection of intellectual property rights as well as the extent of counterfeiting;
 (db) to carry out inquiries, studies and research into matters relating to counterfeiting and the protection of intellectual property rights.
 e) carry out any other functions prescribed for it under any of the provisions of this Act or under any other written law; and
 (f) perform any other duty that may directly or indirectly contribute to the attainment of the foregoing.

Held:

  1. Public bodies, no matter how well intentioned, could only do what the law empowered them to do. That was the essence of the principle of legality, the bedrock of Kenya’s constitutional dispensation, which was enshrined in Kenya’s Constitution. For the impugned seizure to be allowed to stand, it had to be demonstrated that it was grounded on law. The respondents’ actions had to conform to the doctrine of legality. A failure to exercise that power where the exigencies of a particular case required it, would amount to undermining the legality principle, which, was inextricably linked to the rule of law.
  2. The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The courts when exercising the power of construction were enforcing the rule of law, by requiring public bodies to act within the four corners of their powers or duties. They were also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power was in accordance with the scope and purpose of Parliament’s enactments. Where discretion was conferred on the decision-maker, the courts also had to determine the scope of that discretion and therefore need to construe the statute purposefully. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
  3. When the legality of a decision, act or omission was challenged, a court ought first to determine whether, through the application of all legitimate interpretive aids, the impugned decision, act or omission was capable of being read in a manner that complied with the mandate conferred by the enabling statute. The Constitution required a purposive approach to statutory interpretation. The purpose of a statute played an important role in establishing a context that clarified the scope and intended effect of a law.
  4. A contextual or purposive reading of a statute had to remain faithful to the actual wording of the statute. Context was everything in law, and obviously one needed to examine the particular statute and all the facts that gave rise to it. All public power had to be sourced in law. The purpose of a statute played an important role in establishing a context that clarified the scope and intended effect of a law. A contextual interpretation of a statute had to be sufficiently clear to accord with the rule of law.
  5. Guidelines for the factors to be considered when conducting a purposive interpretation of a statutory provision were:-
    1. a look at the preamble of the Act or at the other express indications in the Act as to the object that had to be achieved;
    2. study the various sections where the purpose could be found;
    3. look at what led to the enactment (not to show the meaning, but also to show the mischief the enactment was intended to deal with); and
    4. draw logical inferences from the context of the enactment.
  6. The respondent’s functions were outlined at section 5 of the Anti-Counterfeit Act (Act). The powers of inspectors appointed under section 22 of the Act were provided under section 23 of the Act. In addition, the duty of an inspector upon seizing any goods suspected to be counterfeit goods in accordance with section 23 was provided for under section 25 of the Act. Section 33 of the Act provided the manner in which a complaint could be laid by the holder of an intellectual property right. The applicant’s argument was anchored on the fact the complainant had not registered the Trademark and to confirm her position, she exhibited a search showing that the complainant’s application for registration was pending. The applicant’s argument was legally frail.
  7. The applicant’s argument ignored what was described as a common law trademark. In common law, passing off was a common law tort which could be used to enforce unregistered trademark rights. The tort of passing off protected the goodwill of a trader from misrepresentation. It prevented one trader from misrepresenting goods or services as being the goods and services of another, and also prevented a trader from holding out his or her goods or services as having some association or connection with another when it was not true.
  8. Passing off consisted in a representation by one person that his business (or merchandise, as the case could be) was that of another, or that it was associated with that of another, and, in order to determine whether a representation amounted to a passing off, one enquired whether there was a reasonable likelihood that members of the public could be confused into believing that the business of the one was, or was connected with, that of another.
  9. A cause of action for passing off was a form of intellectual property enforcement against the unauthorised use of a get-up (the whole external appearance or look-and-feel of a product, including any marks or other indicia used) which was considered to be similar to that of another party’s product, including any registered or unregistered trademarks. Passing off was a common law cause of action, whereas statutory law such as the Trade Marks Act provided for enforcement of registered trademarks through infringement proceedings.
  10. Passing off and the law of registered trademarks dealt with overlapping factual situations, but dealt with them in different ways. Passing off did not confer monopoly rights to any names, marks, get-up or other indicia. It did not recognize them as property in its own right. Instead, the law of passing off was designed to prevent misrepresentation in the course of trade to the public, for example, that there was some sort of association between the businesses of two traders.
  11.  There were three elements, often referred to as the classic trinity, in the tort of passing off which had to be fulfilled:
    1. one had to establish a goodwill or reputation attached to the goods or services which he supplied in the mind of the purchasing public by association with the identifying "get-up" (whether it consisted simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services were offered to the public, such that the get-up was recognised by the public as distinctive specifically of the plaintiff’s goods or services.
    2. One had to demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him were the goods or services of the plaintiff.
    3. One had to demonstrate that he suffered or that he was likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services was the same as the source of those offered by the plaintiff.
    The three part test (reputation and goodwill, misrepresentation, and damage) extinguished the applicant’s argument suggesting that the fact that the trademark was unregistered was sufficient to render the complainant’s complaint incompetent for lack of locus standi.
  12. The Act showed the scope and purpose of the enactment. The preamble to the Act read that it was an Act of Parliament to prohibit trade in counterfeit goods, to establish the Anti-Counterfeit Authority, and for connected purposes. Furthermore, the Act provided a definition of counterfeiting. The aspect of manufacturing and producing related to patent. The packing, re-packing and using marks that could confuse the public as to the identity of the product amounted to a trademark infringement and the definition relating to violation of an author’s rights referred to copyright infringement. Therefore, in Kenya, counterfeiting meant infringement of intellectual property rights. It followed that the distinction created by the applicant by hanging on the alleged non registration of the trademark could not stand. That was because, as the foregoing analysis of the definition showed, counterfeiting was wide enough to cover infringement of intellectual property rights.
  13. The applicant only got stuck in one statute, namely, the Trade Mark Act and forgot that in identifying the anti-counterfeit laws in Kenya, it was vital to consider the intellectual property doctrines. That was for the simple reason that counterfeiting was considered as infringement of intellectual property in Kenya, thus the laws that protected the intellectual property rights could be considered as anti-counterfeit laws. The intellectual property doctrines which were relevant to combating counterfeit trade included: patent, trade secrets, trademark and copyright.
  14. Under section 7 of the Fair Administrative Action Act, a decision or administrative action could be judicially reviewed if, among other things, the decision was taken in bad faith or arbitrarily or capriciously, or the decision was not rational or was otherwise unconstitutional or unlawful. Fundamental to the legitimacy of public decision-making was the principle that official decisions should not be infected with improper motives such as fraud or dishonesty, malice or personal self-interest. Those motives, which had the effect of distorting or unfairly biasing the decision-maker’s approach to the subject of the decision, automatically caused the decision to be taken for an improper purpose and thus took it outside the permissible parameters of the power.
  15. A power was exercised fraudulently if its repository intended for an improper purpose, for example dishonestly, to achieve an object other than that which he claimed to be seeking. The intention could be to promote another public interest or private interests. A power was exercised maliciously if its repository was motivated by personal animosity towards those who were directly affected by its exercise.
  16. Even though bad faith had not been given a precise definition, it had been frequently associated with actions involving malice, fraud, collusion, illegal conduct, dishonesty, abuse of power, discrimination, unreasonable conduct, ill-motivated conduct or procedural unfairness. A decision maker must not seek to achieve a purpose other than the purpose for which the power to make the decision had been granted by Parliament. Bad faith could be inferred where there was a deliberate breach of due process or where the decision maker appeared to have been influenced by irrelevant considerations.
  17. The greatest defence to allegations of bad faith was that the act had to have been performed in good faith. The act complained of had to have been done in the performance or intended performance of a duty or authority under the enabling act or by-law passed under it. The words good faith had to be read in the context of the act. When one spoke of good faith in the performance of a duty or statutory authority, one had to look to the nature of the duty or statutory authority to determine what was reasonable and what was not.
  18. The contextual approach could lead to very subjective judgments. If there was clear evidence of an intention to act illegally or outside the scope of authority, dishonestly or with malice, in other words, a blatantly dishonest exercise of power, then a party could not rely on the good faith defence. However, to lose the immunity of good faith involved more than negligence or an error in judgment. If there was an honest attempt to give effect to the law, the good faith defence should prevail.
  19. The law permitted the inspectors to act upon receiving a complaint or upon reasonable suspicion. That was provided for in section 23 of the Act. The test for determining the existence of a reasonable suspicion was an objective one, which was, the grounds of suspicion had to be those which would induce a reasonable person to have the suspicion. It was, therefore, not whether an officer believed that he had reason to suspect, but whether on an objective approach, he in fact had reasonable grounds for his suspicion.
  20. What was required was that the police officer had to take account of all the information available to him/her at the time and base the decision to arrest on such information. What constituted reasonable grounds for suspicion had to be judged against what was known or reasonably capable of being known at the relevant time. A belief or suspicion was capable of being reasonable even though founded on a mistake of law. The officer in question need not be convinced that the information in his/her possession was sufficient to commit for trial or convict, or to establish a prima facie case for conviction, before making the arrest. The applicant had not demonstrated that the motive of the decision was tainted by bad faith or malice.
  21. If, in the exercise of its discretion, an authority took into account considerations, which the courts consider not to be proper, then in the eyes of the law it had not exercised its discretion legally. On the other hand, considerations that were relevant to a public authority’s decision were of two kinds. Those were mandatory relevant considerations (that was, considerations that the statute empowering the authority expressly or impliedly identified as those that had to be taken into account), and discretionary relevant considerations (those which the authority could take into account if it regards them as appropriate). If a decision-maker had determined that a particular consideration was relevant to its decision, it was entitled to attribute to it whatever weight it thought fit, and the courts would not interfere unless it had acted in a Wednesbury-unreasonable manner.
  22. The duty of the court was to determine whether it had been established that in reaching its decision, an administrative body directed itself properly in law; and, had in consequence taken into consideration the matters which upon the true construction of the act it ought to have considered and excluded from its consideration matters that were irrelevant to what he had to consider. When determining if a decision-maker had failed to take into account mandatory relevant considerations, the courts tended to inquire into the manner in which the decision-maker balanced the considerations. However, once the decision-maker had taken into account the relevant considerations, the courts were reluctant to scrutinize the manner in which the decision-maker balanced the considerations.
  23. The argument that since the goods were tested by KEBS and certified as being genuine was a sufficient ground for the respondent’s officers to decline the complaint ignored the wide definition of what constituted counterfeiting and counterfeit goods in the Act. It also ignored the wide definition assigned to Intellectual property under the Act which included— any right protected under the Copyright Act; any plant breeders’ right granted under the Seeds and Plant Varieties Act; any right protected under the Trade Marks Act; and any right protected under the Industrial Property Act. Simply put, even genuine products could be counterfeit depending on how they hit the market
  24. A reading of the Act showed that it afforded protection to intellectual property owners who had registered trademarks, unregistered well-known trademarks, copyright works (provided that the subsistence of copyright in the work was proven); and prohibited marks under the Trade Marks Act. It was also important to bear in mind what constituted dealing in counterfeit goods which included possession of infringing goods in the course of business; or manufacturing, making or producing infringing goods for non-private or domestic use; or selling, hiring or exchanging infringing goods; or exhibiting infringing goods for the purposes of trade; or distributing infringing goods for the purposes of trade, or any other activity or action that could prejudice the rights of an intellectual property owner; or importing infringing goods.
  25. So long as there was reasonable belief that the seized goods fell within the statutory definition of counterfeit goods, the seizure was properly founded on the enabling provisions of the Act. The alleged certificate by KEBS did not and could not remove the goods from the ambit of the above definitions. The final nail to the applicant’s argument lay in the fact that even genuine goods could be counterfeit and counterfeit goods could be genuine.
  26. Judicial review was about the decision making process, not the decision itself. The role of the court in judicial review was supervisory. It was not an appeal and the court should not attempt to adopt the forbidden appellate approach. Judicial review was the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action was unauthorized or invalid. It was referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who held it to ensure that it had been lawfully exercised.
  27. Judicial review was a means to hold those who exercised public power accountable for the manner of its exercise. The primary role of the courts was to uphold the fundamental and enduring values that constituted the Rule of Law. As with any other form of governmental authority, discretionary exercise of public power was subject to the courts supervision in order to ensure the paramountcy of the law. Judicial review was more concerned with the manner in which a decision was made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker were proper, and the decision was within the confines of the law, a court would not interfere. Broadly, in order to succeed, an applicant would need to show either:-
    1. the person or body was under a legal duty to act or make a decision in  certain  way and was unlawfully refusing or failing to do so; or
    2. a decision or action that had been taken was beyond the powers; (ultra vires) of the person or body responsible for it.
  28. An administrative decision was flawed if it was illegal. A decision was illegal if it: -
    1. contravened or exceeded the terms of the power which authorized the making of the decision;
    2. pursued an objective other than that for which the power to make the decision was conferred; and
    3. was not authorized by any power; and
    4. contravened or failed to implement a public duty.
    Statutes did not exist in a vacuum. They were located in the context of Kenya’s contemporary democracy. The rule of law and other fundamental principles of democratic constitutionalism should be presumed to inform the exercise of all official powers unless Parliament expressly excluded them. The courts should therefore strive to interpret powers in accordance with those principles.
  29. Judicial Review remedies were meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the rule of law. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation, which was to combat counterfeiting as defined in the act and for connected purposes.
  30. The court could not stop a lawful process. It could only intervene if was shown to be an abuse of the process, illegal or baseless or if it was prompted by ulterior motives or any such other motives other than furtherance of the statutory mandate. The applicant had not proved malice or illegal process. The allegations made did not disclose breach of rights, nor had any breach been proved at all in the circumstances of the case.
  31. An administrative decision could only be challenged for illegality, irrationality and procedural impropriety. A close look at the material presented before the court did not demonstrate any of the above. The decision had not been shown to be illegal or ultra vires and outside the functions of the 1st respondent. It was legal because it was premised on the four corners of the enabling statute.
  32. The grant of the orders of certiorari, mandamus and prohibition was discretionary. The court was entitled to take into account the nature of the process against which judicial review was sought and satisfy itself that there was reasonable basis to justify the orders sought. The applicant had not established any grounds for the court to grant any of the judicial review orders sought.

Application dismissed with costs to the respondent.

CONSTITUTIONAL LAW

A person nominated/appointed to be a state officer, possessing dual citizenship, ought to renounce their foreign citizenship in order to hold state office

Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs and 2 others
Petition No 367 of 2019
High Court Nairobi
J A Makau, J
November 14, 2019
Reported by Ian Kiptoo

Download the Decision

Constitutional Law – state officers - appointment – dual citizenship - ambassadors and/or high commissioners – requirements – renunciation of foreign citizenship – where one was nominated to be a an ambassador whilst having dual citizenship – where condition for appointment was the renunciation of foreign citizenship – whether a person nominated/appointed to be a state officer, possessing dual citizenship, ought to renounce their foreign citizenship in order to hold state office – Constitution of Kenya, 2010, articles 78(1) & (2), 78(3)(b) and 260; Leadership and Integrity Act, sections 31 and 52

Constitutional Law – state officers – appointment - ambassadors and/or high commissioners –– role of the arms or government in appointment – what were the steps/stages in the appointment of Kenya’s ambassadors/high commissioners – what was the role of the executive vis-à-vis the legislature in the appointment of ambassadors/high commissioners– Constitution of Kenya, article 132(2)

Constitutional Law – state office – ambassadors and high commissioners – claim that the office of the ambassador was not a state office – where there was no enactment by parliament providing that office of the ambassador was a state office - whether the Office of an Ambassador fell within the definition of a state office – Constitution of Kenya, 2010 article 260

Constitutional Law – state officers – appointment of – presidential nominees – powers of the national assembly - whether the national Assembly had power of advice and consent in the appointment of presidential nominees to state office - Constitution of Kenya, article 132(2)(e); Public Appointments (Parliamentary Approval) Act, section 8

Jurisdiction – jurisdiction of the High court – dispute involving appointment of ambassador and high commissioner – where the ambassador or high commissioner had not been appointed – whether High Court had the jurisdiction to determine a matter where the cause of action had not arisen - whether High Court had the jurisdiction to issue an order of mandamus to compel the Ministry of Foreign affairs and the National Assembly to appoint an ambassador or a high commissioner where the ambassador had not been officially appointed by  the President

Words and Phrases - approve – definition of - to give formal sanction to; to confirm authoritatively. Parliamentary law. to adopt - Black’s Law Dictionary, 10th Edition, page 123

Words and Phrases - consent – definition of - consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the profession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting and a serious, determined and free use of these powers - Black’s Law Dictionary, 10th Edition, page 65

Brief Facts:
The petitioner was challenging the decision of the National Assembly Departmental Committee on Defence and Foreign Relations recommending her appointment to the position of Ambassador of Kenya to the Republic of Korea on condition that she renounces her American citizenship. The petitioner contended that the conditional approval of the 3rd respondent was illegal, that the petitioner’s citizenship was acquired by birth and therefore she could not opt out of it and that the condition that the petitioner renounce her American citizenship was discriminatory and offended the provisions of article 27 of the Constitution of Kenya 2010 (Constitution).
On the other hand, the respondents argued that when a dual citizen was nominated to state or public office, they ought to renounce their foreign nationality to take up the position because the drafters of the Constitution precluded state officers from holding dual citizenship solely because of national interest which include the country’s security interests.

Issues:

  1. Whether High Court Had jurisdiction to interfere with the appointment of ambassadors and/or high commissioners.
  2. What were the steps/stages in the appointment of Kenya’s ambassadors and high commissioners?
  3. What was the role of the executive vis-à-vis the legislature in the appointment of ambassadors/high commissioners
  4. Whether High Court had the jurisdiction to issue an order of mandamus to compel the Ministry of Foreign affairs and the National Assembly to appoint an ambassador or a high commissioner where the ambassador/ high commissioner had not been officially appointed by the President.
  5. Whether High Court had the jurisdiction to determine a matter where the cause of action had not arisen.
  6. Whether the Office of an Ambassador fell within the definition of a state office.
  7. Whether a person nominated/appointed to be a state officer, possessing dual citizenship, had to renounce their foreign citizenship in order to hold state office.
  8. Whether the National Assembly had power of advice and consent in the appointment of presidential nominees to state office. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 132(2)
"(2) The President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss—
 (a)  The Cabinet Secretaries, in accordance with Article 152;
 (b) The Attorney-General, in accordance with Article 156;
 (c)  The Secretary to the Cabinet in accordance with Article 154;
 (d)  Principal Secretaries in accordance with Article 155;
 (e)  High commissioners, ambassadors and diplomatic and consular representatives; and
 (f) In accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss."
Leadership and Integrity Act
Section 31
31. Citizenship
“(1) Subject to Article 78(3) of the Constitution, a State officer who acquires dual citizenship shall lose his or her position as a State officer.
 2) A person who holds dual citizenship shall, upon election or appointment to a State office, not take office before officially renouncing their other citizenship in accordance with the provisions of the Kenya Citizenship and Immigration Act, 2011, (No. 12 of 2011.)”

Section 52
 52. Application of Chapter Six of the Constitution and this Act to public officers generally
“ (1) Pursuant to Article 80 (c) of the Constitution, the provisions of Chapter Six of the Constitution and Part II of this Act except section 18 shall apply to all public officers as if they were State officers
 (2) For the purposes of subsection (1), the relevant public entity recognized or established pursuant to section 3 of the Public Officer Ethics Act, 2003 (No. 4 of 2003) shall enforce the provisions of this Act as if they were provided for under the Public Officer Ethics Act, 2003 (No. 4 of 2003)"

Held:

  1. Article 259(1) of the Constitution of Kenya, 2010 (Constitution) enjoined the court to interpret the Constitution in a manner that promoted its purpose and principles; advanced the rule of law and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law and contributed to good governance. Further, the Constitution should be given a purposive, liberal and flexible interpretation.
  2. A Constitution was a living instrument with several provisions that should be read as an integrated whole, reading one provision alongside others so that they were seen as supporting one another and not contradicting or destroying each other.
  3. Under article 132 of the Constitution, the President’s mandate was first to nominate, and with approval of the National Assembly, appoint and  also dismiss. It should be understood that in diplomatic parlance "ambassador-designate" was an official who had been nominated to be an ambassador, but who had not yet taken the oath of office. It therefore followed the petitioner’s alleged appointment was premature. The appointment to the position of ambassador was not a one day event, but was intricate and involved processes between two sovereign states.
  4. In Kenya the process was in the exclusive domain of the Executive arm of government and the Legislature from the clear reading of article 132(2) of the Constitution. Accordingly the doctrine of separation of powers and deferences obliged the court not to interfere with appointment process and decision making process. Under article 132(2) of the Constitution, the appointment to the position of ambassador or high commissioner was a process and not an event, there were stages to be covered sequentially as followed:
    1. the President had to nominate a Kenyan under article 132 of the Constitution;
    2. the Ministry of Foreign Affairs, the 1st respondent, wrote to the country where the nominee was to serve as Ambassador or High Commissioner seeking their concurrence which was given in the form of agreement that the nominee had been accepted to serve;
    3. concurrently the Head of Public Service requested the National Assembly to vet the nominee;
    4. the National Assembly selected the date, time and place of the vetting process which was then communicated to the nominee through the Principal Secretary of the 1st respondent and an advertisement was placed in the media for general public;
    5. the National Assembly notified the appointing authority through the Head of Public Service of its determination on the nominee;
    6. where the nominee was successful the Head of Public Service conveyed the substantive appointment that elaborated the terms of service. That letter formed the basis of concluding the contract with the nominee.
    7. That [f above] triggered the final process including the letter of appointment, draft letters of credencecredentials for signature by the appointing authority for presentation by the appointee to the Head of State of the receiving State.
    The President and the National Assembly legitimately carried their role in the process of nomination and approval of the petitioner as a Kenyan ambassador to Korea and setting out certain conditions. The mandate having been executed, it would not be correct for the court to concern itself with the wisdom or efficacious of the Executive and legislative in the process in question.
  5. Under article 132(2) of the Constitution, the President, with approval of Parliament, appointed and could dismiss, amongst others, the high commissioners, ambassadors, diplomatic and consular representatives. There was no doubt, that it was the exclusive role of the President and Parliament to appoint and approve respectively the ambassadors. From article 132(2), it was clear, that there had to be concurrence between the President and the National Assembly on the qualification and suitability of the nominee before appointment.
  6. The President first and foremost nominated the individual appointee then forwarded the name to the National Assembly for vetting and approval, after approval the President performed the final acts of appointment.  It therefore followed should the National Assembly decline to clear the President’s nominee, the process collapsed. The petitioner could not circumvent the parliamentary approval and the vetting contemplated under article 132(2) by involving court’s jurisdiction.
  7. The petitioner’s prayers seemed to ignore the laid down procedure for an appointment of an ambassador. What the petitioner was seeking was not only contrary to article 132 of the Constitution of Kenya 2010 but was tantamount to circumventing a necessary constitutional safeguard in appointing an ambassador and usurping the authority of the 3rd respondent and the appointing authority. The court could not take over the role of the 3rd respondent as it lacked jurisdiction and even necessary tools to do vetting and further lacked the constitutional and statutory mandate to exercise such jurisdiction.
  8. If the court granted such orders and declaration as sought, its action would amount to sitting in the position of the National Assembly in the vetting/approval exercise and also undertaking the final act of appointment, which by law vested with the President of the Republic of Kenya. The court lacked judicial power to grant the orders and the appropriate thing to do was to decline to exercise jurisdiction on the prayers.
  9. The justifiability doctrine required that court’s and tribunals, at the earliest opportunity, should consider whether a set of facts placed before them espoused proper question for determination.  It required that courts should only decide cases which invite real earnest and vital controversy. The instant petition was based on issues that were purely within the jurisdiction of the Executive and the National Assembly. It concerned a process, that was incomplete and pending and lastly the controversy was political. Therefore, the petition was non-justiciable and it did not present a controversy requiring the intervention of the court.
  10. To grant the orders and declarations sought in the instant petition, whose aim was likely to condemn and veto the outcome of the vetting process of the petitioner, would be tantamount to revisiting, reconsidering, reevaluating, reassessing, monitoring and reviewing the proceedings leading to adoption of the conditional approval of the nomination of the petitioner. If the court was to do so, it would be overstepping its judicial mandate and would be playing a role of an appellate forum for mandate, already executed and being a preserve of the constitution and statute for other arms of government.  The instant petition was a suitable case where the court should involve the doctrine of separation of powers and deference and decline to grant the orders.
  11. Article 260 of the Constitution of Kenya provided the meaning of state office. Article 78 of the Constitution barred persons who held dual citizenship from occupying state offices or being members of the defence forces of Kenya. The aim of the Constitution was to avoid the potential conflict of interest that could arise which would affect the well-being of the country involving the security interest of the State.
  12. Though there was no specific legislation establishing the office of ambassador as a state office, article 80(c) of the Constitution gave Parliament the power to enact legislation to operationalize Chapter Six of the Constitution. Further, the office of the ambassador was a public office, the appointing authority being the President. The provisions of article 80(c) of the Constitution led to enactment of the Leadership and Integrity Act. Under section 52, it provided that it bound state officers and public officers. The office of ambassador though not a state office, but a public office, was bound by the provision, of section 31 of the Leadership and Integrity Act by dint of section 52 of the Leadership and Integrity Act.
  13. Parliament interpreted article 78(2) of the Constitution to mean that a dual citizen was eligible to stand for election but upon election he could not hold office unless and until he voluntarily and officially renounced the citizenship of the other country according to the law. Although the Immigration and Citizenship Act had no specific provision for renunciation of citizenship of another country by a dual citizen, section 20 which applied to voluntary renunciation of citizenship by a foreign national upon application for registration as a citizen of Kenya presumably applied to dual citizenship as the marginal note to the section implied. Such a person was required to avail to the Cabinet Secretary evidence of renunciation of citizenship of the other country.
  14. A state officer who acquired dual citizenship would lose his or her position as a state officer. A state officer or a member of the defence forces would not hold a dual citizenship, however clauses (1) and (2) of article 78 of the Constitution did not apply to judges and members of a commission or any person who had been made a citizen of another country by operation of that country’s law without ability to opt out.
  15. The petitioner was born in The United States of America (USA) and only became an American citizen by virtue of the American laws. She grew up and schooled in Kenya. She was a Kenyan and only claimed her USA citizenship by operation of the law. From the reading of article 78(3)(b) of the Constitution, it appeared that the petitioner was protected by the article from the requirement to renounce her American citizenship in order to hold a public office. The USA was her place of birth; her mother was an American citizen and she could not opt out of her place of birth and opt out of her birth right.
  16. No one chose the parents or the place of birth. That was beyond anyone’s control.  It seemed like article 78(3) (b) of the constitution would only be applicable to people who opted in by applying for citizenship and renunciation would be the process of opting out. Section 349 of the Immigration and Naturalization Act (IWA) of the United States of America provided that a United States citizen could lose his or her citizenship or could be "expatriated" under various circumstances including: - voluntary renunciation of the citizenship; applying for the citizenship of another country and thereafter being naturalized in that country and serving in a foreign government office, in a position that required the taking of an oath of allegiance.
  17. Section 349 of the Immigration and Naturalization Act (IWA) of the USA governing the right of a United States citizen to renounce abroad his/her U.S citizenship was clear that the same should be done voluntarily and no one should be forced to do so. In addition, various case laws from the USA emphasized the fact that an American citizen by birth could not lose her citizenship by acquiring that of another country unless they had been deprived of it through the operation of a treaty or congressional enactment or by their voluntary action in conformity with applicable legal principles. Parliament therefore could not force or demand that the petitioner renounce her U.S citizenship unless she voluntarily decided to do so.
  18.  The National Assembly exercised vetting and/or approval mandate on behalf of the people of the Republic of Kenya and pursuant to laid down constitutional and statutory principles (Parliamentary Approval Act 2011).  They did not exercise the mandate suo moto, but upon receipt of a written notification from the appointing authority, which said notification had to be lodged with the office of the clerk of the National Assembly. From section 3 of the Public Appointment (parliamentary approvals) Act, it was clear that the National Assembly had to approve the appointment of an individual where the Constitution clearly required for valid appointment to take place.
  19. The Public Appointments (Parliament Approvals) Act under section 6 provided for factors that the committee had to consider in a candidate during approval hearing which were listed under the schedule under paragraph 11 to include questions of nationality. Under the schedule, paragraph 26 provided what the committee would consider.
  20. In the instant petition, the petitioner appeared before the National Assembly Committee of Defence and Foreign Affairs where she was interviewed taking into account the considerations under section 7 of the Public Appointment (Parliamentary Approvals) Act. The petitioner satisfied the committee on qualification; however she indicated that she was a dual citizen of the USA and Kenya. That was a concern for the committee which after hearing her submissions on the issue, deliberated and made a conditional approval that she renounce her US citizenship before appointment. The issue was deliberated upon by the National Assembly which also took issue with the conflict of interest which the nominee would face while holding the public office of Ambassador of Kenya while at the same time being a citizen of the United States of America.
  21. Section 8 of the Public Appointments (Parliamentary Approval) Act gave the National Assembly power/discretion to make recommendations in the Report after the approval hearings on a candidate’s suitability. The office of the ambassador was no ordinary office as it involved representing the international and national interest of Kenya. It was mostly likely in discharge of the duties of an ambassador, the applicant would face serious conflict of interest in advancing the interest of Kenya as against those of the USA, a country where she was a citizen. It was the prerogative of the National Assembly to approve or reject the petitioner’s nomination in accordance with article 132(2) of the Constitution and section 3 of the Public Appointments (Parliamentary Approval) Act and standing order 216(5)(f) of the National Assembly standing orders, and that included granting a conditional approval.
  22. In the United States, "advice and consent" was a power of the United States Senate to be consulted on and approve treaties signed and appointments made by the President of the United States to public positions, including cabinet secretaries, federal judges, United States attorneys, and ambassadors. That power was also held by several State Senates, which were consulted on and approved various appointments made by the state’s chief executive, such as some statewide officials, state departmental heads in the governor’s cabinet, and state judges (in some states).
  23. In Kenya, the power to ‘advice and consent’ was replicated in the Kenyan laws in article 132(2)(e) of the Constitution as well as the Public Appointments (Parliamentary Approval) Act. Section 8 of the Act gave the National Assembly the discretion to advice the President on his nominees. In the instant case, the National Assembly did so by making the resolution that the nominee be appointed only after she renounced her US Citizenship for purposes of loyalty and to avoid conflict of interest in her duties. The power to approve was similar to the power to consent and advice.
  24. An ambassador/high commissioner should only owe allegiance to the sending state and only represent the interest of the sending state. Kenya was a party to the Vienna Convention on Diplomatic Relation that provided the functions of a diplomatic mission. The role of a diplomat was to represent the interest of the sending state including national security and any individual who owed allegiance to another state, unless they had been made a citizen of another country by operation of that country’s law without ability to opt out under provisions of article 78(3) (b) of the Constitution of Kenya 2010, ought not be an ambassador unless he/she renounced the citizenship of the foreign state.
  25. The risk of a dual citizenship could jeopardize the national interest of the Republic of Kenya against the interest of the foreign state. Therefore, the 3rd respondent had demonstrated that in the process of vetting and approval of the petitioner, the same was conducted fairly and within the law.
  26. In granting orders and declaration sought in any petition, the court was required to carefully examine the nature of the challenge vis-à-vis the wider public interest. There were circumstances in which public interest had to be raised over and above the interest of a private individual; to the safety of general public. The private/individual interest of the petitioner, stated to be a violation of her rights, should be considered in light of protecting the public from private interest. The court had ultimate power in the interest of justice to safeguard the interest of public, where there was reasonable grounds to protect and preserve the interest of the public. The individual interest of a party was narrow and subservient to the wider public interest of protecting the constitutional mandate of the Executive and the National Assembly under article 132 of the Constitution, which had been properly executed.
  27. The petitioner was not being denied an opportunity to work for the Republic of Kenya by pending posting as the process had not been completed and the appointing authority was yet to appoint her as was awaiting the approval from the National Assembly. Furthermore, there were no propriety rights in public office as public office was not property in which an office holder had a vested property interest.
  28. The public interest strongly militated against the exercise of the court’s determination of the issues raised in the petition as the current process of approval, return of the approval to the appointing authority and appointment was not complete and thus the process should be allowed to be completed. Under article 132(2) of the Constitution, the President nominated the petitioner, and was awaiting the approval of the National Assembly. The National Assembly approved the petitioner’s nomination with a condition that she ceded her US citizenship. The petitioner did not await the President’s appointment or dismissal but proceeded to file the instant petition.
  29. As the President of the Republic of Kenya was yet to make the appointment formally on the advice of the National Assembly, the petition was not ripe for determination and therefore the petition was premature.

Petition dismissed with each party to bear own costs.

Long'et Terer - CEO and Editor

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t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

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