BB - Issue 45

Issue 45
April - June 2019
High Court rules that Section 162 (a) (c) of the Penal Code on
unnatural offences and section 165 of the Penal Code on indecent
practices between males were constitutionally compliant and in
conformity with the principles of legality
Land acquired through compulsory acquisition does not revert back to its original owners if unutilized Pg 15
The Chief Justice Practice Directions cannot take away the High Court’s unlimited original jurisdiction
in criminal and civil matters. Pg 43
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CONTENTS
Advocates working in Public Service are

The threshold for determining unexplained entitled to a non-practising allowance or
assets in corruption cases Pg 25 prosecutorial allowance Pg 45
EDITORIAL TEAM 1. Editor’s Note 1

Editor /CEO 2. CJ’s Message 2
| Long’et Terer | 3. What they Said 5
Senior Assistant Editor/DCEO 4. Feature Case 7
| Janet Munywoki |
5. Cases 15
Editorial Assistant
| Linda Awuor | 6. Caseback 48
Contributors 7. Restating the Law 49
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legislative Updates 51
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. Legal Supplements 53
| Kevin Kakai | Christine Thiong’o |
| Patricia Nasumba |Musa Okumu| Lisper Njeru | 10. International Jurisprudence 59
Design and Layout 11. Law Reform Compilation 64
|Catherine Moni | Josephine Mutie | Cicilian Mburunga |
12. Pictorial 72
| Robert Basweti |
Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala |
Disclaimer:
While the National Council for Law Reporting has made every effort
to ensure both the accuracy and comprehensiveness of the information
contained in this publication, the Council makes no warranties or guarantees
in that respect and repudiates any liability for any loss or damage that may
arise from an inaccuracy or the omission of any information.
Members of the Council
for Kenya Law
The Hon. Mr Justice David K. Maraga, EGH

Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice Fatuma Sichale Mr Mwenda Njoka
Judge of the Court of Appeal of Kenya Government Printer (Ag), Government Press
(Represented by Ms Eva Kimeiywo, Principal
The Hon Justice Anthony Ndung’u Printer)
Judge of the High Court of Kenya
Ms Janet Kimeu
The Hon. Justice (Rtd) Paul Kihara Kariuki
Advocate, Law Society of Kenya
Attorney General
Alt - Ms Linda Murila, Chief State Counsel
Mr Michael Muchemi
Prof Kiarie Mwaura Advocate, Law Society of Kenya
Dean, School of Law, University of Nairobi
Mr Long’et Terer
Ms Jennifer Gitiri
Editor/CEO
Advocate & Public Officer,
Office of the Attorney General & DoJ
Members co-opted to serve in ad-hoc Advisory Capacity
Ms Anne Amadi Mr Michael Sialai, EBS

Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Amb Ukur Yatani Kanacho
Cabinet Secretary (Ag), National Treasury Ms Caroline Kigen
(Represented by Mr Jona Wala, Financial Expert, The Judiciary
Director, Accounting Services)
vi
BB Issue 45, April - June 2019
Editor’s Note
Long’et Terer
CEO/Editor
2
019 has been a great year so far at Kenya Law. This year, Kenya Law
scooped the “Public Sector Legal Department of the Year Award” at the
2019 Nairobi Legal Awards by the LSK, Nairobi Branch. The awards
sought to recognize excellence in legal practice and were meant to
promote bench-marking of best practice standards in the Kenyan legal
profession. Kenya Law was recognized for outstanding standards of practice
and legal service delivery in an effort towards encouraging excellence in
practice. This was no mean feat as Kenya Law beat other legal departments
in the public sector to become the first ever recipient of the award. We do
not take it for granted and as we seek to scale the heights of provision of
information, we promise you a diverse range of products and services that
will keep you legally informed.
As is the norm, this edition of the Bulletin delivers legal information on a

wide range of topics. One issue that has been gaining traction globally is the
criminalization of same-sex relations. In this edition, we highlight two cases
on criminalization of same-sex relations at different points of the spectrum
from Kenya and Botswana. The feature case in this issue is a decision where
the High Court of Kenya ruled that section 162 (a) (c) of the Penal Code on
unnatural offences and section 165 on indecent practices between males were
constitutionally compliant and in conformity with the principles of legality.
Further afield, within a span of a month, Botswana’s High Court while dealing
with a similar issue held that sections 164(a), (c) and 165 of the Botswana
Penal Code criminalizing homosexual acts between two adults in private were
unconstitutional as they violated the right to liberty, privacy, dignity and non-
discrimination; the reasoning of the judges in both decisions is captured in the
Bulletin for your information.
As always, Kenya Law stays true to its commitment to engage with its readers
and deliver a bulletin that continuously updates you on recent judicial and
legislative developments. Enjoy the read!
Long’et Terer
Long’et Terer
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Speech By Hon. David K. Maraga, Chief Justice and President of The

Supreme Court of Kenya During The Official Launch of the Third Cycle
Performance Management and Measurement Understandings Evaluation
Report On 17th May, 2019
I am delighted to welcome you all for the launch of the 3rd cycle Judiciary Performance
Management and Measurement Evaluation Report. This is an important occasion when we
in the Judiciary showcase our achievements at an institutional and individual level as we
strive to improve the delivery of services to the people of Kenya. Performance Management
was introduced in the Judiciary in 2015 with the aim of enhancing access to Justice;
improving Court User satisfaction; increasing public confidence in the Judiciary and, equally
important, increasing employee productivity and satisfaction. This is in line with my blue
print, “Sustaining Judiciary Transformation: A service Delivery Agenda” which shifted focus
away from institutional building and capacity enhancement to upscaling service delivery.
We have come a long way in the institutionalization of performance management in the
Judiciary and through the system, individual courts and administrative units now set clear
targets and commitments each financial year which are implemented and evaluated at the
end of each year.
This therefore is more than just a ceremony to receive a report; it is an opportunity to
evaluate and account to the Kenyan people about how we have fared in the execution of our
core mandate, using a number of variables that are key to the delivery of justice. For example,
one of the agreed targets to be achieved in Performance Understanding is Trial and Delivery
Date Certainty. According to the Report on Institutionalizing Performance Management in
the Judiciary, this indicator measures “… the certainty with which mentions, hearings and
delivery of judgments are held and scheduled”.
For there to be enhanced public confidence in judicial services, certainty that matters will
proceed on the date fixed for hearing is an absolute imperative. Equally important is the
date of delivery of judgments. Once a case is heard, a judgment must be delivered. Without
a judgment, the case remains unresolved, and continues to be a cause of the backlog. It also
becomes what is now commonly referred to as a “delayed judgment”, a phenomenon that as a
Judiciary we cannot condone.
Although there was a slight improvement in Trial and Delivery Date Certainty in the financial
year 2017/2018, I urge all judges, magistrates and judicial officers to strive for a higher score
as this remains a key concern for litigants and others who have to wait for an inordinately
long time for conclusion of their matters. We are all familiar with the old adage, Justice
delayed is Justice Denied.
The Sustaining Judiciary Transformation (SJT) blue print identified elimination of case
backlog as one of the key targets for the Judiciary. In January 2017, I gave a commitment that
the Judiciary would clear all cases that were five years and above by end of December 2018.
At that time, there were 170,186 cases which were more than five years old. By end of March
this year, a total of 154,184 cases, or 91 per cent of the back log, had already been resolved,
2
along with the hearing of other cases. Within the same time, some 45,000 cases transited
into the 5-year band, meaning that about 1,667 cases were transiting into 5 years backlog
every month. It took a lot of effort to achieve this - prioritizing cases over 5 years old in
cause listing, conducting service weeks; adhering to pre-trial rules and use of other dispute
resolution mechanisms. I thank you profoundly for a job well done.
Over the same period the results show that on average, the productivity of High Court judges
increased from 311 cases per judge to 446 cases, while in magistrates’ courts, productivity
increased from 646 cases to 745 cases per magistrate. Across the courts, resolved cases
increased from 304,166 in 2016/2017 to 370,449 cases in 2017/2018. This is an indication
that the performance of the Judiciary in the dispensation of justice is improving consistently
and soon we shall be seeing a situation where cases are resolved in real time.
These results provide a basis that can help us reflect on where we are, what challenges we
are facing, and what areas to improve or focus on. The main questions to ask at this point
are: is this the best we could do; the best service we could offer? How do our customers rate
us? Could we have done better? And what is holding us back? What resources do we need
and how will they be deployed effectively in order to drive our justice delivery indicators to
world-class levels?
In as far as infrastructure is concerned, we are continuing with our aggressive court
construction programme as a way of enhancing access to justice. We are constructing new
courts, renovating old ones and installing important facilities such as boreholes while also
upgrading the furniture as necessary. In this respect, there are more than 70 courts currently
under construction in various parts of the country, and we continue to launch new ones as
we have recently done in Ruiru and Msambweni. The construction and establishment of
these courts will ensure that justice is taken as close to the people as possible.
We, however, very well understand that the buildings on their own, no matter how magnificent
they might be, will not translate into effective delivery of services unless we put in place
mechanisms that make us more efficient, more people focused and more dedicated to the
ideals that our Judiciary stands for.
I am happy to note that our efforts to entrench performance management have been widely
recognized by other judiciaries and public institutions in many places. In November last year,
we received a delegation of a neighbouring country headed by the Deputy Chief Justice who
visited us to learn about our performance management system with the aim of introducing
a similar system in their country. This is a positive gesture and I am optimistic that if we
sustain this momentum we will soon be a point of reference globally.
Despite these achievements, we must continue improving in all aspects of our work. Through
the feedback we regularly receive from our stakeholders, we want to continually build and
sustain a robust performance management architecture, which provides a standardized
platform for assessing the performance of all courts and administrative units.
The Judiciary is facing various challenges despite the high performance being witnessed today
as highlighted in this report. Some of these challenges include inadequate infrastructure,
shortage of judges, magistrates and judicial staff, inadequate resources and inadequate
equipment and vehicles. We will continue to find solutions to these challenges.
Indeed, we are in the process of recruiting more judges, magistrates, other judicial officers
and staff in areas of critical shortfalls. To enhance productivity, there will be continuous
improvements in the working environment, tools and equipment in the courts. We still
emphasize the urgency in upgrading our uptake and deployment of ICT solutions in case
management to speed up case processing.
As I have already stated, today’s event is not merely about the launch of the 2017/18
performance evaluation report and recognition of best performing courts. It provides us
3
with the opportunity to re-affirm our commitment towards ensuring high performance
among all courts and administrative units. We need to demonstrate results daily so as to
reach high performance levels whereby any one can tell what a well performing court looks
like in practice even without going through the various metrics. In the wise words of William
Faulkner “…do not bother to be better than your contemporaries or predecessors. Try to be
better than yourself”.
With that, I appreciate the crucial role the judges, magistrates, other judicial officers and
staff are playing in the delivery of justice, sometimes under immense pressure and extremely
difficult circumstances. They are not always appreciated for the excellent work that they do.
But they must continue to selflessly serve our people and to deliver justice to all without
fear or favour. At this point I would like to thank all the stakeholders - the courts and the
administrative - units for their role in making this event a success. We must continue working
together to improve the services we offer to the public.
Allow me also to appreciate the Performance Management and Measurement Steering
Committee for successfully steering the process of institutionalization of performance
management in the judicially with the technical support of the Directorate of Planning and
Organizational Performance.
With those few remarks, I hereby officially launch the Third Cycle Performance Evaluation
Report, 2017/2018. Thank you.
Hon. David K. Maraga, EGH,
Chief Justice and President of the Supreme Court of Kenya
4
What they said

Supreme Court Judges - D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ in Town Council
of Awendo v Nelson O Onyango and 192 others - Petition 37 of 2014
“
Un-utilized portions of compulsorily acquired land may be used for a different public
purpose, or in furtherance of a different public interest, including the allocation of
such portions to private individuals or entities, at the market price, in furtherance of
such public interest.”
Court of Appeal Judges – P N Waki, S G Kairu & J Otieno-Odek JJA in Stanley Mombo Amuti v Kenya Anti-Corruption
Commission - Civil Appeal 184 of 2018
“
Sections 26 and 55 (2) of the Anti-Corruption and Economic Crimes Act do not violate
the right to property as enshrined in Article 40 of the Constitution. In any event,
constitutional protection of property does not extend to property that has unlawfully
been acquired.”
Court of Appeal Judges – P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike Makhandia, JJA in Non-
Governmental Organizations Co-Ordination Board v EG & 5 others - Civil Appeal 145 of 2015
“
Per P N Waki, JA Per M K Koome JA, (concurring with the Majority)
Like everyone else, LBGTIQ persons are subject to the law and will be subjected to
its sanctions if they contravene it. Convicting such persons before they contravene
the law would, in my humble view, be retrogressive. As it is, according to their stated
objectives, they intended to register the NGO to, among other things, conduct accurate
fact finding, urgent action, research and documentation, impartial reporting, effective
use of the media, strategic litigation and targeted advocacy in partnership with local human
rights groups on human rights issues relevant to the gay and lesbian communities living in
Kenya. On the face of it, there is nothing unlawful or criminal about such objectives.”
High Court Judge – M Thande, J in Shakeel Ahmed Khan & another v Republic & 4 others - Miscellaneous Criminal
Application 56 of 2019
“
The Chief Justice as head of the Judiciary has power under Section 16 of the High
Court (Organization and Administration) Act to establish sub-registries of the ACEC
Division and indeed full ACEC divisions outside Nairobi. The failure to do so has in
my view the net effect of stripping the High Court in stations outside Nairobi of the
jurisdiction conferred upon it by the Constitution.”
5
Per A Makhandia JA, (concurring with the majority decision )
“
Article 36 of the constitution extends to every person’s right to form an association
of any kind. This right can only be limited in terms of law to the extent that the
limitation is reasonable and justifiable in an open and democratic society as provided
for in Article 24(1) of the Constitution. Subject to the limitations, a person’s rights
under Article 36 extends to all human beings without discrimination, whatever their
ethnicity, religion, sex, place of origin or any other status such as age, disability, health
status, sexual orientation or gender identity. I agree with the High Court’s finding that
Article 36 extends to all individuals and juristic persons and that sexual orientation does not
in any way bar an individual from exercising his right under Article 36 of the constitution.”
Per M K Koome JA, (concurring with the Majority)
“
The issue of persons in the society who answer to the description lesbian, bisexual,
gay, transsexual, intersex and queer (LBGTIQ) is rarely discussed in public. The
reasons for such coyness vary. But it cannot be doubted that it is an emotive issue.
The extensive and passionate submissions made in this matter before the High Court,
and before us, is testimony to the deep rooted emotions that the issue can easily arouse.
It is possible for the country to close its eyes and hearts and pretend that it has no significant
share of the people described as LGBTIQ. But that would be living in denial. We are no
longer a closed society, but fast moving towards the ‘open and democratic society based on
human dignity, equality, equity, and freedom’ which the Constitution envisages. We must
therefore, as a nation, look at ourselves in the mirror. It will then become apparent that
the time has come for the peoples’ representatives in Parliament, the Executive, County
Assemblies, Religious Organizations, the media, and the general populace, to engage in
honest and open discussions over these human beings. In the meantime, I will not “.. be the
first to throw a stone at her [LGBTIQ]”.
High Court Judge – B Ongaya, J in Erastus K Gitonga & 4 others v National Environmental Management Authority
& another - Cause 547 of 2018
“
The Court considers that the circular of 09.10.2012 appears to apply to all lawyers
in the public service and for so long as the claimants established that they were in
public service with similar professional legal duties, it is the Court’s opinion that they
would be entitled to the allowance even without their being gazetted as prosecutors.
The Court has carefully revisited the circular and the wide ranging categories of the
officers it applies to and returns that use of “prosecutorial allowance” was meant to simply
designate the allowance and not to have it paid exclusively to those involved in criminal
prosecutions.”
Feature Case
Section 162 (a) (c) of the Penal Code on unnatural offences and section
165 of the Penal Code on indecent practices between males was
constitutionally compliant and in conformity with the principles of
legality
EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute &
another (Amicus Curiae)
Petition 150 & 234 of 2016
High Court at Nairobi
R Aburili, E C Mwita & J M Mativo, JJ
May 24, 2019
Reported by Long’et Terer
The consolidated petitions challenged the following rights of the petitioners:
constitutionality of sections 162(a) (c) and a. right to equality and freedom
165 of the Penal Code. Additionally, petition from discrimination under article
150 of 2016 attacked the said provisions 27
on grounds of vagueness and uncertainty. b. right to the highest attainable
Petition 234 of 2016 sought a declaration that standards of health under article
sexual and gender minorities were entitled to 43 of the Constitution.
the right to the highest attainable standards c. right to a fair trial under article
including the right to health care services as 50 of the Constitution.
guaranteed in article 43 of the Constitution. d. right to freedom and security of
the person protected under article
The petitioners also sought an order
29 of the Constitution
directing the State to develop policies and
e. right to freedom of conscience,
adopt practices prohibiting discrimination
religion, belief and opinion under
on grounds of sexual orientation and gender article 32 of the Constitution.
identity or expression in the health sector. f. right to human dignity and
In determining the matter, the court dealt privacy protected by articles 28
with, inter alia, the following issues: and 31 of the Constitution.
i. Whether failure by section 162 (a) In its ruling, the court reiterated that the
(c) of the penal to define the phrases, guiding principles in interpretation of the
“unnatural offences,” and “against Constitution and the social and historical
the order of nature” rendered the background of legislation ought to be
section vague, ambiguous, and thus considered during interpretation. It stated
unconstitutional. that the Constitution gave prominence to
ii. Whether the phrases “indecency national values and principles of governance
with another male person” and “any which included human dignity, equity,
act of gross indecency with another social justice, inclusiveness, equality,
male person” in section 165 of the human rights and rule of law, leadership
Penal Code was unclear, vague, and integrity, values and principles of
and ambiguous hence rendered the public service, entrenchment of exercise of
section unconstitutional. judicial authority in the Constitution and
iii. Whether differential treatment would
independence of the Judiciary and conferred
amount to unfair discrimination.
sovereignty to the people of Kenya to be
iv. Whether sections 162(a) and(c)
exercised on their behalf by State organs to
and 165 of the Penal Code were
unconstitutional for infringing the perform their functions in accordance with
7
the Constitution. meant that the Constitution had to be

interpreted in context. The court held
Article 259(1), the Court noted, obligated that this would be the contextual analysis
courts to promote the spirit, purposes, values of a constitutional provision, reading it
and principles of the Constitution, advance alongside and against other provisions, so as
the rule of law, and the human rights and to maintain a rational explication of what the
fundamental freedoms in the Bill of Rights, Constitution must be taken to mean in light
permit the development of the law and of its history, of the issues in dispute, and of
contribute to good governance. The court the prevailing circumstances. Such scheme
had a duty to adopt an interpretation that of interpretation, the court explained, did
conformed to article 259. Constitutional not mean an unbridled extrapolation of
provisions had to be construed purposively discrete constitutional provisions into each
and in a contextual manner. Accordingly, other, so as to arrive at a desired result. It
courts were constrained by the language was an elementary rule of constitutional
used. Courts might not impose a meaning construction that no one provision of the
that the text was not reasonably capable of Constitution was to be segregated from the
bearing. In other words, the interpretation others and to be considered alone, but that
should not be unduly strained but should all the provisions bearing upon a particular
avoid excessive peering at the language to subject were to be brought into view and be
be interpreted without sufficient attention interpreted so as to effectuate the greater
to the historical contextual scene, which purpose of the instrument.
included the political and constitutional
history leading up to the enactment of a According to the court, it was the duty of a
particular provision. court of law to try to determine how a statute
should be enforced. The court noted that
Further, it was noted that the enforcement there were numerous rules of interpreting
of penal statutes had an impact on a statute, but, and without demeaning the
constitutionally guaranteed rights. The others, the most important rule was the
litmus test was whether such limitation plain meaning rule. The starting point of
would pass constitutional muster. Penal interpreting a statute was the language itself.
statutes had to be understood purposively In the absence of an expressed legislative
because the Penal Code had to be umbilically intention to the contrary, the language had
linked to the Constitution. The court had to be ordinarily taken as conclusive. It was
to seek to promote the spirit, purpose and not the duty of the court either to enlarge
objects of the Constitution. It had to prefer the scope of the legislation or the intention
a generous construction over a merely of the legislature when the language of the
textual or legalistic one in order to afford provision was plain and unambiguous. In
the fullest possible constitutional meanings view of this, the Court noted that a court
and guarantees. In searching for the purpose, could not rewrite, recast or reframe the
it was legitimate for the court to seek to legislation for the very good reason that it
identify the mischief sought to be remedied. had no power to legislate. The court might
In part, that was why it was helpful, where not add words into a statute. Courts decided
appropriate, to pay due attention to the social what the law was and not what it should be.
and historical background of the legislation. The court of course adopted a construction
The court had to understand the provision which would carry out the obvious intention
within the context of the grid, if any, of of the legislature.
related provisions and of the Constitution
as a whole, including its underlying values. In interpreting the provisions of a statute,
Although the text was often the starting point the court provided that courts should apply
of any statutory construction, the meaning it the golden rule of construction. The plain
bore had to pay due regard to context. That meaning of the language in a statute was
was so even when the ordinary meaning of the safest guide to follow in construing the
the provision to be construed was clear and statute. According to the golden or general
unambiguous. rule of construction the words of a statute
had to be given their ordinary, literal and
A holistic interpretation of the Constitution grammatical meaning and if by so doing it
8
was ascertained that the words were clear arbitrary prosecutions. The doctrine of void
and unambiguous, then effect should be for vagueness established specific criteria
given to their ordinary meaning unless it that all laws or any legislation had to meet,
was apparent that such a literal construction to qualify as constitutional; the Law had to
fell within one of those exceptional cases in state explicitly what it mandated, and what
which it would be permissible for a court of was enforceable and provide definitions of
law to depart from such a literal construction; potentially vague terms. Vagueness was the
such as where it led to a manifest absurdity, imprecise or unclear use of language, which
inconsistency, hardship or a result contrary contrasted with clarity and specificity.
to the legislative intent.
According to the Court, the impugned phrases
The Court further held that courts generally were clearly defined in law dictionaries and in
assumed that the words of a statute meant a catena of judicial pronouncements; lack of
what an ordinary or reasonable person would definitions in the statute per se did not render
understand them to mean. If the words of a the impugned provisions vague, ambiguous
statute were clear and unambiguous, the or uncertain. The impugned provisions could
court need not inquire any further into not be declared unconstitutional on grounds
the meaning of the statute. Parliament of vagueness, uncertainty, ambiguity and
intended its legislation to be interpreted in a over broadness because:
meaningful and purposive way giving effect i the phrases used in the sections under
to the basic objectives of the legislation. challenge were clear as defined above;
The court, as an independent arbiter of ii the provisions disclose offences
disputes, had fidelity to the Constitution and known in law;
had to be guided by the letter and spirit of iii a person accused under the impugned
the Constitution. Similarly, in interpreting provisions would be informed of the
a statute, the court should give life to the nature, particulars and facts of the
intention of the lawmaker instead of stifling offence;
it. iv there was a real danger that in reading
down an overbroad statute, the High
The phrase “against the order of nature”, Court would simply substitute the
the court explained, had been judicially vice broadness with the equally fatal
defined as sexual intercourse. There had to infirmity of vagueness.
be penetration, however slight, and emission
The Court noted that indisputably,
of semen was not necessary. With particular
there existed a presumption as regards
reference to the offence of sodomy,
constitutionality of a statute. The rule of
penetration per se had to be proved. The
presumption in favour of constitutionality,
other party involved in the intercourse might
however, only shifted the burden of proof
be a man or a woman. It was the penetration
and rested it on the shoulders of the person
through the anus that made the intercourse
who attacked it. It was for that person to
“against the order of nature” and therefore
demonstrate that there had been a clear
provided the other element of the offence.
transgression of constitutional principles.
While dealing with the issue of vagueness, However, that rule was subject to the
the Court held that a statute was void for limitation that it was operative only until the
vagueness and unenforceable if it was too time it became clear and beyond reasonable
vague for the average citizen to understand. doubt that the legislature had crossed its
There were several reasons a statute might bounds. The guiding principles in a case
be considered vague. In general, a statute of such nature were that the court had to
might be called void for vagueness when establish;
an average citizen could not generally i whether the law differentiated
determine what persons were regulated, between different persons;
what conduct was prohibited, or what ii whether the differentiation amounted
punishment might be imposed. A statute to discrimination; and,
was also void for vagueness if a legislature’s iii whether the discrimination was
delegation of authority to administrators unfair.
was so extensive that it would lead to Discrimination meant treating differently,
9
without any objective and reasonable A natural and literal construction of those
justification, persons in similar situations. words left no doubt that the section did
When determining whether a claim based not target any particular group of persons.
on unfair discrimination should succeed, the Similarly, section 165 used the words “any
stages of inquiry were; male person.” A plain reading of the section
i Whether the provision differentiated revealed that it targeted male persons and
between people or categories of people. not a particular group with a particular
If so, whether the differentiation bore sexual orientation. The wording of that
a rational connection to a legitimate section left no doubt that in enacting that
purpose. If it did not, then there was provision, Parliament appreciated that the
a violation of the constitution. Even offence under the said section could only be
if it did bear a rational connection, committed by a male person. In fact, the short
it might nevertheless amount to title to the section read “indecent practices
discrimination. between males.” The operative words therein
ii Whether the differentiation
were “any male person” which clearly did not
amounted to unfair discrimination;
target male persons of a particular sexual
iii If it was on a specified ground, then
orientation.
discrimination had been established.
If it was not on a specified ground, The Court held that a party pleading
then whether or not there was violation of constitutional rights was at the
discrimination would depend upon very least expected to give credible evidence
whether, objectively, the ground was of the said violation and it was not enough
based on attributes and characteristics
to merely plead and particularize a violation.
which had the potential to impair
Even where a party cited articles of the
the fundamental human dignity of
Constitution alleging that they had been
persons as human beings or to affect
them adversely in a comparably violated, he or she was duty bound to adduce
serious manner. convincing evidence to prove the alleged
iv If it was found to have been on a violations. In the instant case, save for the
specified ground, then the unfairness allegations made in the petition and the
would be presumed. If on an affidavits, no tangible evidence was given to
unspecified ground, unfairness support the allegations. No iota of evidence
would have had to be established was tendered to establish any of the cited
by the complainant. The test of acts of discrimination. There was no basis
unfairness focused primarily on the at all upon which the court could uphold
impact of the discrimination on the any of the alleged violations. In the end, the
complainant and others in his or her petitioners had failed to establish that the
situation. If, at the end of that stage of impugned provisions were discriminatory.
the enquiry, the differentiation was
found not to be unfair, then there In the court’s view, constitutional analysis
would be no violation. under the Bill of Rights took place in two
v If the discrimination was found to be stages. First, the applicant was required to
unfair then a determination would demonstrate his or her ability to exercise a
have to be made as to whether the fundamental right had been infringed. If the
provision could be justified under the court found that the law, measure, conduct
limitations clause. or omission in question infringed the
vi Mere discrimination, in the sense of exercise of the fundamental right, or a right
unequal treatment or protection by guaranteed in the Bill of Rights, the analysis
the law in the absence of a legitimate might move to the second stage. In the
reason was a most reprehensible second phase, the party seeking to uphold
phenomenon. But where there was a the restriction or conduct would be required
legitimate reason, then, the conduct to demonstrate the infringement or conduct
or the law complained of could not was justifiable in a modern democratic state
amount to discrimination. and satisfied the article 24 test. Cases were
The Court noted that the language of section decided on the legal burden of proof being
162 was clear. It used the words “any person.” discharged (or not). The legal burden of
proof was consciously or unconsciously the
10
acid test applied when coming to a decision or persons on whose behalf the instant
in any particular case. The court’s decision petition was brought, had demonstrated that
in every case would depend on whether the they had been charged under the impugned
party concerned had satisfied the particular provisions before any court or had a pending
burden and standard of proof imposed on complaint against them before a police
them. station to warrant the invocation of article
50(2). Accordingly, the petitioners’ argument
Based on this, the Court found that no that their right to a fair trial had been denied,
evidence was placed before it to support violated, infringed or was threatened failed.
the allegations that the petitioners’ right to
health as stipulated in article 43(1) had been The Court held that article 29 combined
violated. None of the petitioners tendered the right to freedom and security of the
evidence to prove that they had been denied person with the right to be free from bodily
medical attention in any health facility in the and psychological harm. It was essentially
country, or were subjected to mistreatment intended to protect the physical integrity and
in the course of seeking medical attention. dignity of an individual. The right not to be
They merely made generalized statements subjected to torture in any manner or not to
without proof. Based on the analysis of the be treated or punished in a cruel or degrading
material placed before court, and the instant manner were components of the right to
matter being a constitutional petition, the freedom and security of the person. Those
impugned provisions did not infringe on the components were inviolable under article
petitioners’ right to the highest attainable 25(a) of the Constitution, and therefore, no
standards of health. Evidence obtained in law could stand if it sought to limit such
a manner that violated any right in the Bill right or freedom. Weighing the petitioners’
of Rights had to be excluded if its admission alleged infringements, violations and threat
would render the trial unfair or otherwise vis-à-vis article 29, the impugned provisions
detrimental to the administration of justice. did not apply exclusively to the petitioners.
None of the petitioners tendered evidence The petitioners in petition 234 of 2016 cited
to suggest that evidence had been illegally violation of article 32 which guaranteed the
procured from them and used against them right to freedom of conscience, religion,
in violation of their rights guaranteed in thought, belief and opinion. However, no
the Constitution. In any event, such a claim evidence was led or submission made in
would constitute a distinct cause of action. support of that allegation.
On the issue of the right to a fair trial, it was The Court noted that article 28 provided
held to be absolute, and under article 50 (2), for the right to inherent dignity and the
no one should be charged with an offence, right to have that dignity respected and
which was not an offence at the time of protected. The article did not define the
its commission. However, the offences in word “dignity.” The importance of dignity
question were provided for in the law. In as a founding value of the constitution
addition, no evidence was adduced to show could not be overemphasized. Recognizing
that any of the petitioners was charged with a right to dignity was an acknowledgment
an offence that was not in existence at the time of the intrinsic worth of human beings:
they were charged. Article 50 (2) guaranteed human beings were entitled to be treated
every accused person the right to fair trial, as worthy of respect and concern. The
a right that was non-derogable. However, right was therefore the foundation of many
in any criminal justice system, there was of the other rights that were specifically
a tension between public interest to bring entrenched in Chapter 4. Human dignity
criminals to justice on the one hand, and, the informed constitutional adjudication and
equally greater public interest in ensuring interpretation at a range of levels. It was
that justice was manifestly done to all. What a value that informed the interpretation
the Constitution demanded was that an of many, possibly all, other rights. Human
accused be given a fair trial. In that regard, dignity was also a constitutional value that
article 50(2) applied to accused persons was of central significance in the limitations
facing trial. None of the petitioners or the analysis. Dignity was not only a value
interested parties supporting the petition, fundamental to the Constitution; it was a
11
justiciable and enforceable right that had to because it showed how courts in other
be respected and protected. In many cases, jurisdictions have dealt with the issues
however where the value of human dignity before the court. However, the court opined
was offended, the primary constitutional that when developing local jurisprudence in
breach occasioned might be of a more matters that involved constitutional rights,
specific right such as the right to bodily the court should exercise caution in referring
integrity, the right to equality or the right not to foreign jurisprudence and develop its
to be subjected to slavery, servitude or forced common law in a manner that promotes
labour. So important was the right not to be the values and principles enshrined in the
subjected to cruel, inhuman or degrading Constitution. The court was of the view that
treatment or punishment that under article whereas citation and reliance on persuasive
25 of the Constitution, it was one of the non- foreign jurisprudence was valuable, foreign
derogable rights. experiences and aspirations of other countries
Article 31 on its part, the court explained, should rarely be invoked in interpreting the
guaranteed the right to privacy of the Kenya Constitution. The progressive needs
person, home or property not to be searched. of the Kenyan Constitution were different
It had been settled, insofar as privacy from those of other countries.
was concerned, that that right became In the instant matter the question was
more powerful and deserving of greater whether criminalization of sodomy between
protection, the more the intrusion it was into adults in private infringed the right to privacy
one’s intimate life. There was a connection and dignity. The court provided that section
between an individual’s right to privacy and 162 and 165 of the Penal Code prohibited
the right to dignity. Privacy fostered human unnatural offences in the form of carnal
dignity insofar as it protected an individual’s knowledge against the order of nature and
entitlement to a sphere of private intimacy indecent practices between males, whether
and autonomy. The right to equality and in public or in private. The petitioners’
dignity were closely related, as were the case was hinged on the interpretation of
rights of dignity and privacy. In that regard, articles 28 and 31 of the Constitution. The
the Constitution placed human dignity and court provided that Article 259(1) required
equality as the central theme to Kenya’s the courts to interpret the Constitution
constitutional order. The determination in a manner that promoted its purposes,
of whether an invasion of the common law values and principles; advances the rule of
right to privacy had taken place was a single law and the human rights and fundamental
enquiry. It essentially involved an assessment freedoms in the Bill of Rights; permitted the
as to whether the invasion was unlawful. development of the law; and contributed to
According to the Court, when it was good governance. The rights under articles
confronted with a claim of violation of a 28 and 31 were not absolute. Article 24(1) of
fundamental right, and a contention was the Constitution permitted limitation by law;
made that there was no violation or that the limitation should however be reasonable
the right was limited, it was important to and justifiable in an open and democratic
determine whether indeed there was an society. It was undeniable that the limitation
infringement, or a limitation, which was was by law. The question was whether the
justifiable under article 24. That was because limitation was reasonable and justifiable.
under article 165(3)(b)(d) as read with article The Court noted that the values and
23, the mandate of the court was to determine principles articulated in the preamble to the
the question whether a right or fundamental Constitution, article 10, 159 and 259 reflected
freedom in the Bill of Rights had been the historical, economic, social, cultural and
denied, violated, infringed or threatened, or, political realities and aspirations that were
whether any law was inconsistent with or in critical in building a robust, patriotic and
contravention of the Constitution. indigenous jurisprudence for Kenya. The
On the issue of foreign jurisprudence Constitution was the point of reference in
placed before the court, it was noted that any determination. The preamble to the
such jurisprudence was of persuasive value Constitution acknowledged ethnic, cultural
and religious diversity, the nurturing and
12
protecting the wellbeing of the individual, attention to the historical contextual

the family, communities and the nation, a scene, which included the political and
government based on the essential values of constitutional history leading up to the
human rights, equality, freedom, democracy, enactment of a particular provision.
social justice and the rule of law. Article 4(2)
provided that the Republic of Kenya was a The petitioners advanced the argument that
multi-party state founded on the national sexual orientation was innate, that they were
values and principles of governance in born that way and that was the way they
article 10. Accordingly, the court stated expressed themselves and therefore they
that this affirmed that the progress of the should be allowed to express themselves
Kenyan nation and the realization of the the way they knew best. However, it was
aspirations of its citizens were predicated the court’s view that the expert evidence
on the institutionalization and infusion of tendered by both sides was unanimous that
these values into all segments of the Kenyan there was no conclusive scientific proof that
society. In that regard, article 11 further LGBTIQ people were born that way. If the
recognized culture as the foundation of the petitioners were born that way, they had
nation and as the cumulative civilization of rights like everyone else.
the Kenyan people and the nation. Article On the issue of violation of the Constitution,
19 appreciated that the Bill of Rights was an the Court found that the impugned provisions
integral part of Kenya’s democratic state and had not violated the Constitution or the
was the framework of social, economic and petitioner’s rights to dignity and privacy. The
social policies. court held that if it was persuaded that the
The Court further noted that any petitioners’ rights were violated or threatened
interpretation regarding the petitioners’ on grounds of sexual orientation, it would be
rights would not exclude other values difficult to rationalize that argument with
recognized in the Constitution. A holistic the spirit, purpose and intention of article
reading of the Constitution, the Final 45(2) of Constitution. Article 45(2) only
Constitution of Kenya Review Commission recognized marriage between adult persons
(CKRC) and Committee of Experts (CoE) of the opposite sex. Based on this, the court
Reports left no doubt that those values and held that decriminalizing same sex on
principles informed the constitution making grounds that it was consensual and was done
process and ultimately the Constitution in private between adults, would contradict
which was endorsed by Kenyans in the the express provisions of article 45(2). In
referendum. It was common ground that the court’s view, the petitioners’ argument
during the Constitution making process, that they were not seeking to be allowed to
the issue of same sex marriage was one enter into same sex marriage was immaterial
of the issues that arose, discussed, and a given that if allowed, it would lead to same
recommendation was made outlawing sex persons living together as couples. Such
same sex marriage. The Final CKRC Report relationships, whether in private or not,
recommended the recognition of marriage formal or not would be in violation of the
only between individuals of the opposite sex tenor and spirit of the Constitution.
and the outlawing of same sex unions. Section 3(1) of the Marriage Act defined
It was the court’s view that deliberations marriage as the voluntary union of a man and
culminated in article 45 which provided that a woman. Even where there was no formal
the family was the natural and fundamental marriage, the Act recognized cohabitation
unit of society and the necessary basis for as an arrangement in which an unmarried
social order, and should enjoy the recognition couple lived together in a long-term
and protection of the State; and, that every relationship that resembled a marriage. The
adult had a right to marry a person of the constitutionality of that section had never
opposite sex, based on the free consent of the been challenged. Therefore, the court held,
parties. In interpreting the Constitution, the decriminalizing the impugned provisions
article should not be unduly strained and the would indirectly open the door for unions
court should avoid excessive peering at the among persons of the same sex. If that were
language to be interpreted without sufficient to be allowed, it would be in direct conflict
13
with article 45(2). Numerous decisions reflected in the Constitution. The views
from different foreign jurisdictions had of Kenyans could not be ignored given the
decriminalized provisions similar to Kenya’s. clear and unambiguous provisions in article
However persuasive those decisions could 45 (2). While courts could not be dictated
be, the court reiterated that they were not to by public opinion, they would still be
binding to the High Court. Courts across the loath to fly in the face of such opinion.
world were divided on the issue. Even where Where the will of the people was expressed
it had been allowed, the court noted, it had in the Constitution, it represented societal
not been unanimous. The court provided values, which had to always be a factor in
that a country that had a provision the considering constitutional validity of a
equivalent of Kenya’s article 45(2) and had particular enactment where such legislation
decriminalized similar provisions was not sought to regulate conduct, private or public.
found. In Kenya, those views were clearly expressed
in article 45(2).
All laws in existence as at August 27, 2010 had
to be construed with alterations, adaptations, The Court therefore ruled that looking at
qualifications and exceptions necessary so as the impugned provisions vis-à-vis article
to conform to the Constitution. Nonetheless, 45(2), the provisions had not offended the
the court held that the issue before it right to privacy and dignity espoused in
was alive during the constitution making articles 28 and 31 of the Constitution. The
process, and, therefore, if Kenyans desired court held that Articles 28 and 31 could not
to recognize and protect the right to same be read in isolation from article 45(2). Unless
sex relationships, nothing prevented them article 45(2) was amended to recognize same
from expressly doing so without offending sex unions, it was difficult to agree with the
the spirit of article 45. The Court also held petitioners’ argument, that, there could be
that inasmuch as the Court of Appeal in the safe nullification of the impugned provisions,
Non-Governmental Organizations Coordination whose effect would be to open the door
Board v EG & 5 others (2019) eKLR for same sex unions and without further
agreed with the High Court that sexual violating article 159 (2)(e) which enjoined the
orientation could be read into article 27(4) court to protect and promote the purpose
of the Constitution as one of the prohibited and principles of the Constitution.
grounds for discrimination, the Court was
emphatic that the reading in would depend In conclusion, the Court held that the
on the circumstances of each case. According petitioners’ attack on the constitutional
to the court, he circumstances of the instant validity of sections 162 and 165 of the
case did not permit the reading in because to Penal Code was not sustainable and that the
do so would defeat the purpose and spirit of impugned sections were not unconstitutional.
article 45(2) of the Constitution. Accordingly, the consolidated petitions had
no merit.
The Court held that the desire of Kenyans,
whether majoritarian or otherwise were Petition dismissed and each party to bear their
own costs.
Africans must reach out to its people and empower them to build the nation ― Lailah
Gifty Akita
Some rights reserved by Bernard DUPONT
14
Supreme Court
Land acquired through compulsory acquisition does not revert back to its
original owners if unutilized
Town Council of Awendo v Nelson O Onyango and 192 others[2019] KLR - SCK
Supreme Court of Kenya
Petition 37 of 2014
D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndung’u & I Lenaola, SCJJ
April 30, 2019
Reported by Ian Kiptoo
Land law - compulsory acquisition- rights of having extinguished upon completion of the
reversion- radicle title vis-à-vis fee simple title - process of compulsory acquisition by the
where the Government utilized a certain portion government; that the impugned judgment
of the land it compulsorily acquired-claim by by the 1st Appellate Court had the effect of
the original owners that they had reversionary divesting the third party allottees (interested
interests to the un-utilized portions – whether parties) of their property, including schools,
a proprietor whose land had been compulsorily hospitals, churches and financial institutions,
acquired retained some reversionary interest in breach of articles 40, 48 and 50 (2) of the
in or, pre-emptive rights over the un-utilized Constitution of Kenya, 2010 (Constitution)
portions - Constitution of Kenya, 2010, articles
Issues
40 and 68 (c) (ii); Constitution of Kenya, 1963
(Repealed), section 75; Land Acquisition Act i. Whether a proprietor whose land had
(repealed), sections, 6 and 19 (1) been compulsorily acquired retained
some reversionary interest in or, pre-
Land law - compulsory acquisition- public emptive rights over the unutilized
purpose – where compulsorily acquired land portions.
remained un-utilized – where the repealed ii. What amounted to unutilized land
Constitution and Land Acquisition Act (repealed) that had been compulsorily acquired?
remained silent on use of un-utilized compulsorily iii. How could land that had been
acquired land – guiding principles applicable compulsorily acquired but remained
to compulsorily acquired land -what amounted unutilized be used?
to un-utilized land that had been compulsorily iv. What was the distinction between
acquired - how could land that had been pre-emptive rights and reversionary
compulsorily acquired but remained unutilized be interest in regards to compulsorily
used - what were the guiding principles applicable acquired land?
to land compulsory acquired v. What were the guiding principles
Land law - compulsory acquisition - pre-emptive applicable to land compulsorily
rights vis-à-vis reversionary interests - where acquired?
compulsorily acquired land remained unutilized Held
- what was the distinction between pre-emptive
1. The suit land was compulsorily acquired
rights and reversionary interest in regards to
by the Government of Kenya, pursuant
compulsorily acquired land – Land Act, section
to the provisions of section 75 of the
110 (2)
Constitution of Kenya, 1963 (repealed)
Brief facts and section 6 (2) of the Land Acquisition
Act 1968, (repealed). Further, the
The instant matter was an appeal where
proprietors of the land, including the
the appellants urged that the Court of
1st to the 13th respondents, were fully
Appeal erred in fact in finding that the suit
compensated in accordance with
land was not acquired for purposes of the
the applicable law. The compulsory
expansion of the appellant; that it erred by
acquisition was actualized vide the two
reasserting the 1st to 13th respondents’ titles
Gazette Notices No. 2996 of October
over the suit land, despite the said titles
8, 1976 and No. 3737 of December 24,
15
1976. However, while it was clear that as beneficial owners.

the parcels of land were acquired for
5. A plain reading of Gazette Notice No.
a public purpose, what remained in
2996 clearly indicated that the intention
contention was the specific nature of the
of acquiring the land parcels was for
purpose for which some of the parcels
establishing the South Nyanza Sugar
were acquired.
Scheme. That had to be taken to refer
2. Both purposes for which the various to all that it entailed to establish such
land parcels were acquired fell within a scheme, including the factory, sugar
the rubric of public purpose, within the plantations, offices, plant and machinery
meaning of section 75 (1) of the repealed and all necessary infrastructure.
Constitution. Section 6 of the Land Towards that end, there was no dispute
Acquisition Act (repealed) replicated regarding the establishment of South
the above provisions of the repealed Nyanza Sugar Scheme. As for Gazette
Constitution. Therefore, on the face of Notice No. 3737, it was stated that the
the two Gazette Notices, the suit lands listed parcels were to be acquired for the
in question were acquired, on the one South Nyanza Sugar Scheme (Awendo
hand for town and county planning and Township Expansion) in South Nyanza
on the other hand, for the development District. The operative words were the
of, or utilization of the said lands so as to bracketed ones.
promote the public benefit.
6. The two Gazette Notices, although
3. The proper basis for determining linked in material particulars, could
the specific nature of the purpose for not have been referring to the same
which the suit lands were acquired, was purpose for the compulsory acquisition.
the language used in the two Gazette The inclusion of the words Awendo
Notices. Towards that end, Gazette Township Expansion had to be taken to
Notice No. 2996 stated that the specified mean that there was another purpose
parcels of land were to be acquired for other than, but related to, the actual
the South Nyanza Sugar Scheme while establishment of the South Nyanza
Gazette Notice No. 3737 stated that the Sugar Scheme. That other purpose was
specified parcels were to be acquired the expansion of the Awendo Township.
for the South Nyanza Sugar Scheme The establishment of the South Nyanza
(Awendo Township Expansion) in South Sugar Scheme within the vicinity of
Nyanza District. Awendo Township meant that the latter,
had to be expanded to accommodate the
4. The Gazette Notices were distinct and
functionality of the former. The need
referred to different parcels of land. Land
to expand the Township necessitated
title no. North Sakwa/Kamasonga/1193
the further acquisition of extra land, for
(Plot No. 1193) in respect of the 7th
that purpose, as was clearly stated in the
respondent was not on the list of parcels
brackets. The words Awendo Township
of land acquired by the two Gazette
Expansion had to surely be taken to
Notices. The tentative conclusion
mean something; otherwise they would
regarding the said title therefore was
not have been included in Gazette Notice
that it was never compulsorily acquired.
No. 3737.
In addition, land title No. North Sakwa/
Kamasonga/ 46 (Plot No. 46) in respect 7. The purpose for which all that land,
of the 1st respondent and Land Title No. comprised in Gazette Notice No. 2996,
North Sakwa/ Kamasonga /168 (Plot No. i.e., the establishment of South Nyanza
168) in respect of the 13th respondent Sugar Scheme in South Nyanza, had
were acquired vide Gazette Notice No. been fully accomplished by the time of
2996. A perusal of the record revealed the filing Civil Case No. 133 of 2005 at the
fact that some of the respondents, to wit, High Court. That being the case, there
the 3rd, 9th, 10th, 11th and 12th were not were no unutilized portions of land
the original proprietors of the parcels in the block to which the said Gazette
in question. However, they referred to Notice applied.
themselves in their supporting affidavits
16
8. A reversion was that interest in land 12. Land which had been compulsorily
that survived the expiry or extinction of acquired had to be used for the purpose
an estate in the said land. It was called for which it was acquired. If for example,
a reversion because upon the extinction after compulsorily acquiring land, the
of the estate, that interest reverted to the Government or any of its agencies
person or entity from whose superior proceeded to allocate the said land, to
title the estate was originally created. individuals or other entities, for their
An estate on the other hand, was a time own private benefit, in total disregard of
bound bundle of rights over land or the public purpose, such allocation would
stated at common law, an estate was a not confer good title to the allottees.
time in the land or a land for a time. Thus
13. Under the law as it then stood, the
a holder of a fee simple estate retained
original owners of compulsorily
interest in that land for as a long as there
acquired land had no reversionary
would be an heir to inherit the same.
rights in that land. In Niaz Mohammed
Where no heir remained to inherit the
v Commissioner for Lands & 4 Others
estate, then the land reverted to the State.
(1996) eKLR, it appeared to suggest
9. The State held a superior title to the land that such land would legally revert to
called the radical title. The fee simple the original owners through equity.
estate also became extinguished upon The fallback to equity was compelling,
a compulsory acquisition by the State given that what was involved was land,
in exercise of its powers of eminent a subject that unendingly continued to
domain. By the same token, in a landlord generate emotive disputes among all
and tenant relationship, the tenant held and sundry. Indeed, equity grew out of
the leasehold estate while the landlord the interstices of common law rigidity.
retained the reversion which, upon the The doctrines that had catapulted it
expiry of the leasehold, was surrendered into the cosmos of law were themselves
back to the landlord, since the latter held handmaidens of justice and fairness. But
a superior title from which the lease was even equity, in all its splendor, followed
created. the law, lest it be deformed, by judicial
caprice or whim. Therefore, in the
10. The respondents did not retain
face of clear constitutional and legal
any interests in the land, capable of
provisions, that extinguished private
protection or resuscitation by the law
title to compulsorily acquired land, not
as provided for in section 19 (1) of the
even equity could resuscitate such title
Land Acquisition Act (repealed). The
to unutilized portions thereof.
respondents did not have any reversion
in the acquired lands since whatever 14. The public purpose, for which the land
reversion that had existed, could only was compulsorily acquired, could have
have been a reversion in favour of the been spent, but the unutilized portions
State, and not vice versa. The suit lands thereof remained public land. Therefore,
all became vested in the Government of such land as remained unutilized could
Kenya. only be applied to a public purpose,
or be utilized to promote the public
11. For purposes of the Appeal, unutilized
interest, even if the said interest was not
land referred to any residual portion
such as had been originally envisaged.
of land which had been compulsorily
Unutilized portions of land, could in
acquired, but which remained unused
the instant case, be allocated to private
after the realization of the public purpose
entities, including those from whom the
for which it had been acquired. Neither
land was acquired, at a price, provided
the repealed Constitution, nor the Land
that, the land was to be put to such use as
Acquisition Act, provided any direction
would promote the public interest.
as to what should happen to land that
remained unutilized after the public 15. The provisions relating to the doctrine
purpose for which it was compulsorily of eminent domain as were enshrined
acquired became spent. in article 40 of the Constitution of
Kenya, 2010 (Constitution), and Part
17
VIII, of the Land Act (sections 107 to the public purpose had been realized, but
133), mirrored those of section 75 of the acquired land had not been utilized
the repealed Constitution, and section in full, leaving a portion thereof. In that
6 of the Land Acquisition Act (repealed) instance, neither the original owners,
with a few modifications. Article 68 (c) nor their successors in title had pre-
(ii) of the Constitution provided that emptive rights to re-acquire the un-
Parliament would enact legislation to utilized portions.
regulate the manner in which any land
19. On the basis of the analysis, the following
could be converted from one category to
guiding principles were issued:
the other.
a. where the Government, pursuant to
16. Section 110 (2) of the Land Act introduced the relevant constitutional and legal
the concept of pre-emptive rights over provisions, compulsorily acquires
compulsorily acquired land. Where land, such land, would only be used
the purpose justifying the compulsory for the purpose for which it was
acquisition failed or ceased, then the compulsorily acquired;
original owners or their successors in b. the allocation of compulsorily
title had the pre-emptive rights to re- acquired land, to private individuals
acquire the land upon payment of the or entities, for their private benefit,
full amount received as compensation. in total disregard of the public
However, a pre-emptive right was not purpose or interest for which it was
the same as a reversionary interest. compulsorily acquired, would be
The former arose, consequent upon incapable of conferring title to that
the failure or cessation of the purpose land in favour of the allottees;
justifying the compulsory acquisition; c. a person whose land had been
while the latter reposed in the holder of compulsorily acquired in accordance
a superior title and became exercisable with the relevant constitutional and
upon the expiry of an estate. legal provisions did not retain any
17. It could not be said that the land over reversionary interest in the said land;
which the pre-emptive right of re- and
acquisition arose upon failure or d. unutilized portions of compulsorily
cessation of the public purpose, was the acquired land could be used for
same as unutilized land or portion of land a different public purpose, or in
that remained once the public purpose furtherance of a different public
became spent. In the former case, there interest, including the allocation of
was a total failure of the public purpose, such portions to private individuals
meaning that the acquired land could or entities, at the market price, in
not be used as earlier envisaged. The furtherance of such public interest.
wording of section 110 (2) of the Land 20. Consequently, flowing from the analysis
Act was permissive (the Commission and guiding principles:
may offer) in the sense that the acquiring a. through the instrumentality of
authority, was not necessarily barred Gazette Notices Nos. 2996 and 3737
from applying the land to another public of 1976, all parcels of land whose land
purpose. However, should it decide to titles were listed respectively, were
abandon the land to private purchase, compulsorily acquired and vested in
then the original owners had the pre- the Government of Kenya;
emptive rights to re-acquire the land b. the appellant (or its successor in title)
upon restitution of the full sum that was held that land in trust for the residents
paid in compensation. of the area, and as the Implementing
18. The land to be re-acquired in the instant Agency of the public purpose for
case was the whole as opposed to a which the land was compulsorily
portion thereof. That explained why acquired;
the sum of money to be restituted by c. The letter written by the Land
the original owners was the full amount Registrar, directing the appellant to
paid in compensation. In the latter case, re-survey the land and allocate the
18
same to the original owners or their land comprised within Gazette Notice
successors in title had no legal basis; No. 3737, at a price, to the interested
d. the 1st and 13th respondents had no parties, for the establishment of
reversionary interest in the parcels of residential, commercial and other
land listed in the two Gazette Notices, amenities such as churches, etc., was
since titles thereto were extinguished in furtherance of the expansion of
through the compulsory acquisition Awendo Township; and
of the same; h. by purchasing the said plots, and using
e. the purpose for the acquisition of all them for residential, commercial
those lands listed in Gazette Notice and other purposes in consonance
No. 3737 of 1976 (the suit land) with the public interest, and in the
was for the expansion of Awendo absence of any proof of fraud on
Township in South Nyanza District. the part of the interested parties, the
Such expansion was necessitated by latter acquired valid title which could
the establishment of South Nyanza not be defeated by the claims of the
Sugar Scheme, through Gazette respondents.
Notice No. 2996; Petition of appeal allowed with no orders as to
f. the land comprised in Gazette Notice costs.
No. 3737 was not unutilized land
given the fact that the expansion of The 7th respondent would be fully compensated by
Awendo Township was an on-going the Government of Kenya for the loss of his Land
process; Title No. North Sakwa/Kamasonga/1193.
g. the allocation of various parcels of
Supreme Court overturns the acquittal of two Iranian nationals convicted

of terrorism related offences.
Republic v Ahmad Abolfathi Mohammed & another[2019] KLR - SCK
Petition 39 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, W N Ndungu & I Lenaola,
SCJJ
March 15, 2019
Reported by Mathenge Mukundi
Evidence Law-confession and admission- probative value of circumstantial evidence-claim

difference between an admission and a confession- that the finding of explosives in an open golf
information obtained from an accused person course, in which the accused persons were spotted,
during police interrogations-discovery of exhibits included an co-existing circumstances wherein
and further evidence from information offered any other person could have accessed the golf
to the police by an accused person-whether that course and placed the explosives there-whether
information was either a confession or admission, circumstantial evidence showed a complete chain
which had to be taken in accordance with the law of events which pointed to the guilt of the accused
for it to be admissible-Evidence Act (Cap 80), persons.
sections 17 & 25.
Brief Facts:
Evidence Law-production and effect of evidence-
The respondents were Iranian nationals
burden of proof-burden of proving circumstances
who came to Kenya on June 12, 2012 on a
which, included facts especially within the
tourist/business survey visa. During the
knowledge of an accused person, that entailed an
tour they stayed in a hotel in Mombasa for
exception, exemption or qualification in relation
five days, where they visited various places
to an offence-whether the burden of proving such
at the coast, they later travelled to Nairobi
circumstances was different or similar to the
and spent a few days. While on their way
making of a confession or an admission-Evidence
back to Iran, they were arrested by the Anti-
Act (Cap 80), sections 17, 25A & 111(1).
Terrorist Police Unit on allegations of being
Evidence Law-circumstantial evidence- in the country on a terrorism mission.
19
The respondents were later charged before iii. Whether there was an apparent
the Chief Magistrate’s Court, at Nairobi conflict between sections 25A and
with the following offences: committing 111(1) of the Evidence Act, with
an act intended to cause grievous harm respect to evidence obtained by the
contrary to section 231(f) of the Penal police from an accused person; and
Code, preparation to commit a felony iv. Whether the fact that any person other
contrary to section 308 (1) of the Penal than the accused persons had access
Code and being in possession of explosives to a crime scene where explosives
namely Cyclotrimethylenetrinitramine (RDX) were placed, broke the chain of the
contrary to section 29 of the Explosives Act. circumstantial evidence on record
The respondents pleaded not guilty to all the and meant that anyone else could have
charges but upon trial, they were convicted as committed the crime.
charged and sentenced to life imprisonment Held:
on the first offence, 10 and 15 years to the
second and third offences respectively. The 1. It was a common practice and standard
sentences were ordered to run concurrently. operating procedure in the criminal
investigations for the police to confront
Aggrieved by that conviction and the sentence the suspects with any report they
imposed upon them by the Magistrate’s received about the suspects’ commission
Court, the respondents appealed to the High or involvement in the commission of a
Court, as the first appellate court. Upon crime and demand an explanation. If the
re-evaluation of the evidence on record, explanation the suspect gave led to the
the High Court upheld the findings of the discovery of further evidence or exhibits,
trial Court on the respondents’ conviction. the evidence should be admitted though
It, however, allowed their appeal against with corroboration for a conviction to be
sentence holding that the respondents, sustained. Hence, the information that
having been charged with what essentially was volunteered by the 1st respondent
constituted inchoate offences in that their that led the police to the recovery of the
intentions were nipped in the bud, the RDX explosive was generally admissible
sentence of life imprisonment was excessive. without invoking section 25A or section
Consequently, the Judge set aside that 111(1) of the Evidence Act.
sentence and substituted it with a composite
term of fifteen years’ imprisonment. 2. Where there was a confession an
accused person would acknowledge
The respondents were still aggrieved by the commission of an offence and
the High Court’s findings and moved to the could be convicted on the basis of that
Court of Appeal on a second appeal. Before acknowledgement alone but in the case
that Court, they raised 19 grounds of appeal of an admission the accused person
which their counsel condensed into six would acknowledge a fact from which
broad grounds, the Court of Appeal allowed guilt could be inferred but additional
their appeal, quashed their conviction and evidence would be needed to prove the
set aside the sentence. It was that decision commission of an offence.
which provoked the Supreme Court appeal
by the State. 3. The Court of Appeal noted, quite aptly,
that it was never the appellant’s case
Issues: that the respondents had confessed to
i. Whether the information given to the committing the offences that they were
police by an accused person that led charged with. The Appellate Court
to the recovery of the RDX explosives therefore, could not rely on section
was admissible only under section 25A 25A of the Evidence Act because the
or also under the provisions of section respondents did not make a confession
111(1) of the Evidence Act; in terms of sections 25 and 25A of the
ii. Whether evidence emanating from a Evidence Act. Hence, the Court of
suspect leading to discovery of further Appeal erred in equating the information
evidence should be equated with a given by the 1st respondent that led
confession under section 25A of the to discovery of RDX explosives to a
Evidence Act. confession in terms of sections 25 and
20
25A of the Evidence Act. golfers at a spot where it was rare to

find members of the public at that time.
4. There was no apparent conflict between
Upon being asked by the golfers what
sections 25A (1) and 111(1) of the
they were doing there at that time, they
Evidence Act. The two sections related
casually stated that they were “looking”.
to different scenarios and would result
The golfers left them there at around
in different effects. Section 25A (1) of
6:30pm in the evening.
the Evidence Act was applicable only
to the information obtained by the 7. Although the golf course was not fenced
prosecution during the interview and or guarded and it was possible for any
interrogations of the suspects during member of the public to have entered
criminal investigations, whereas, section it and to place the RDX where it was
111 (1) of the Evidence Act dealt with found, that did not break the chain of
the burden of proof and only came into events. The respondents did not offer
play in the trial when the prosecution any plausible explanation for their
had proved, to the required standard three visits at the spot where the RDX
of beyond reasonable doubt, that the explosives were recovered or on how the
accused person had committed an 1st respondent obtained the information
offence and part of the prosecution case that he volunteered to the police and led
comprised of a situation only “within to the recovery of the explosives.
the knowledge” of the accused person so
8. The respondents vehemently dismissed
that if he did not offer an explanation, he
the alleged admission as a fairy tale
risked conviction.
concocted by the police to incriminate
5. Circumstantial evidence was like any them. However, upon consideration
other evidence. Though, its probative of the record, and particularly the
value should be reasonable, and not trial Court’s finding that there was
speculative, inferences ought to be no evidence on record to support the
drawn from the facts of a case. In accused’s claim that after his arrest he
contrast to direct testimonial evidence, was drugged and that he only came to
it was conceptualized in circumstances his senses while in Court, as well as the
surrounding the disputed questions of statement by the 2nd respondent that
fact. Circumstantial evidence should the police treated them well, the trial
never be given a derogatory tag. For Court and the first appellate court’s
a conviction to be sustained on the finding that the 1st respondent indeed
basis of circumstantial evidence, the led the police to the discovery of the
chain of events had to be so complete RDX explosives, was correct. The act of
that it established the culpability of the the 1st respondent that led the police to
respondents, and no one else, without where the RDX explosive was discovered
any reasonable doubt. was an admission of the respondents’
possession of that explosive. The police
6. There had to be no other co-existing
did not know the respondents. The
circumstances weakening the chain
police said that they acted on intelligence
of circumstances relied on and the
information. The use of intelligence or
circumstances from which the guilt
informers’ reports was standard and
inference was drawn had to be of
common practice and the police were
definite tendency and to precisely point
not obliged to disclose their informers
toward the guilt of the respondents. The
as that would hamper crime detection in
appellant proved that the respondents
the country.
visited the country on a tourist/business
survey visa and upon their short stay 9. All the aspects of the evidence on record
in the country they neither visited any corroborated the appellant’s case that
tourist destination nor met with any the 1st respondent led the police to
investor. The only place they visited the scene where the RDX explosives
thrice was where the RDX explosives were dug out. That considered alone
were recovered in a freshly dug hole, at precisely pointed to the respondents
which, they had been seen at dusk by as the people who planted the RDX
21
explosives at the scene where they that the Court had to consider whether
were found. There was no evidence of the exculpatory evidence adduced by the
anyone else having previously planted prosecution was inconsistent with the
anything in the Mombasa Golf Course innocence of the accused and pointed to
and more specifically in the vicinity of no one else other than the accused as the
Hole No. 9 where the RDX explosive was persons who committed the offence. The
discovered. The respondents visited that appellant established that it was the 1st
spot at least thrice, the last visit having respondent who escorted the police to
been a day before the recovery of the the specific spot at the golf course where
RDX explosive. Had the Court of Appeal the explosive substance was recovered.
considered all these factors, it would
3. In reaching at its decision, the High
have come to a different conclusion.
Court drew conclusions from the
10. The Court of Appeal erred in holding circumstantial evidence adduced by
that any admission made outside the prosecution and not the accused’s
section 25A of the Evidence Act was confession, for no confession was on
inadmissible. It also erred in holding record. The High Court concluded that
that the conviction in the case was based both direct and circumstantial evidence
solely on circumstantial evidence. The placed the respondent within the
1st respondent’s act of leading the police proximity of the area where the RDX
to Hole No. 9 on the Mombasa Golf was buried and later recovered.
Club course where the RDX explosive
4. The Court noted that the evidence of the
was dug out, was an admission of a
appellants’ possession of the RDX was
material fact which, coupled with the
purely circumstantial because no witness
circumstantial evidence on record
saw them in possession of the substance
sealed the respondents’ guilt. In the
or placing the same in the golf course. The
circumstances the appeal had merits.
evidence was emphatic that other than
Per M K Ibrahim, SCJ (dissenting) being at the golf course, the appellants
were not in physical possession of any
1. It was imperative that the rationale for
luggage or parcel. There was no other
the enactment of section 25A of the
circumstantial evidence tying or linking
Evidence Act was not lost. The reason
the appellants to the RDX, the easy
behind its enactment showed why it
accessibility, without let or hindrance,
was not in conflict with section 111 of
of the golf course entailed strong co-
the Evidence Act. The enactment was
existing circumstances that were capable
clearly prompted by the raging debate
of destroying the inference of guilt on
at the time of enactment which brought
the part of the appellants.
serious concerns as to the capability of
the police to extract confessions without 5. The evidence was purely circumstantial
resorting to means that led to gross and was not enough to prove the
miscarriage of justice and grave human case as against the respondents to the
rights violations. Generally, confessions required standard, which was proof
made by the accused person were not beyond reasonable doubt. It was also
admitted in evidence unless they were imperative to note that while the police
made strictly in accordance with the law. evidence was that the 1st respondent
was the one who led them to the spot at
2. The 1st respondent had special knowledge
Mombasa Golf Club where the RDX was
of where the substance was buried. The
discovered, that evidence was used to
substance was buried in a hidden place.
equally convict the 2nd respondent. That
The only inference that the court could
aspect was not picked up by either of the
draw from the evidence adduced by the
Superior Courts and was another reason
appellant was that it was the respondents
militating against the case against the
who had buried the said substance in
respondents. The prosecution evidence
the place where it was found. That
was never water-tight.
was circumstantial evidence. The law
regarding circumstantial evidence was 6. With respect to public interest, it was a
22
fact that the country had been a victim to 9. The Court of Appeal correctly found
several terrorist attacks, with the recent that the chain of circumstantial evidence
one being the ‘Dussit Hotel Complex was broken and the evidence on record
Attack’. As a result, public interest was not watertight or conclusive
and awareness in matters concerning enough to sustain a conviction of the
terrorism had increased. Any alleged two respondents. The fact that the Golf
association of individuals with acts of Course was an open area, was not fenced
terrorism was a matter that the public and was accessible to any member of
really frowned upon. Hence as expected, the public created a reasonable doubt
the matter attracted a lot of public as to the guilt of the two respondents in
interest and media coverage. To the respect of the offence in question.
public, the fact that the respondents were
S C Wanjala, SCJ (dissenting)
Iranians charged with acts of terrorism
was enough to have them convicted and 10. The High Court and Court of Appeal
sentenced. interpreted sections 25A and 111(1) of
the Evidence Act, as if they dealt with
7. The Court was required to strike a
the same genre of evidence; confessions
balance between the public’s interest
and admissions. The superior courts
and expectations on one hand, and the
perceived a conflict between the two,
constitutional principles applicable
in terms of the admissibility of certain
within the criminal justice system on the
evidence obtained from a suspect
other, the most fundamental principles
during investigations. However, the two
being the presumption of innocence and
sections of the Evidence Act did not deal
the Rule of Law. The public’s perception
with the same family of evidence. In fact,
on the seriousness of an offence should
they were so unrelated, that there could
never be a factor in determining the guilt
hardly be any conflict between them.
of an accused or his acquittal. There was
a paradox at the heart of all criminal 11. A correct reading of sections 25A and
procedure, in that the more serious the 111 of the Evidence Act clearly showed
crime and the greater the public interest that the two did not address similar, or
in securing convictions of the guilty, even related evidentiary issues. Section
the more important constitutional 25A of the Evidence Act dealt with the
protections of the accused persons process of searching for, collecting and
became. admissibility of evidence.The process
took place before a person was formally
8. The presumption of innocence served not
charged with a criminal offence, hence
only to protect a particular individual on
the requirement that a confession or
trial, but to maintain public confidence in
admission should be made before a
the enduring integrity and security of the
judge, a magistrate or a police officer not
legal system. Reference to the prevalence
being an investigating officer of the rank
and severity of a certain crime therefore
of Inspector. Once charged, then the
did not add anything new or special
question of whether his confession or
to the balancing exercise. Although,
admission of fact was admissible arose.
the public resented and abhorred the
Section 25A of the Evidence Act mainly
respondents’ acquittal by the Court of
regulated the investigative process.
Appeal, in determining the matter, the
Once a person was formally charged,
Court should only focus on issues that
he became an accused person, but the
were before the Court of Appeal and the
information he could have given, or a
law. The gravity of the offence and the
confession or admission he could have
public sensitivity of the issue(s) ought not
made during investigations, had to be
to be given emphasis to the exclusion of
subjected to the requirements of section
very important constitutional provisions
25A and any other related provisions of
and fundamental rights and freedoms,
the Evidence Act, dealing with questions
which the Constitution guaranteed to all
of admissibility of evidence, be it a
persons, especially within the criminal
confession or an admission.
justice system.
23
12. Section 111 (1) of the Evidence Act, did 14. It was no longer in question that for
not address the process of searching circumstantial evidence to justify the
for, collecting, or admissibility of inference of guilt, it had to be watertight,
evidence. The section dealt with the in that the exculpatory facts had to be
question of burden of proof in certain incompatible with the innocence of
circumstances. The opening words the accused. The circumstances taken
of the section read “when a person is cumulatively, should form a chain so
accused of any offence, the burden of complete that there was no escape from
proving….”. In other words, the section the conclusion that within all human
placed the burden of proving that an probability, the crime was committed by
accused person was exempted from, or the accused and none else. The burden
fell within an exception to the offence of proving the completeness of the chain
with which he was charged on him. always remained on the prosecution, it
For example, an accused person could never shifted to the accused.
have pleaded the defence of diplomatic
15. As the Court of Appeal observed, the
immunity, and consequently, that he was
evidence on record indicated that the
exempted from the criminal charge. It
golf course was not fenced or guarded
had nothing to do with a confession or
and that it was possible for any member
an admission of a fact, tending to the
of the public to have entered it and
guilt of an accused. It was actually the
placed the RDX where it was found. In
other way round, meaning facts that
the absence of any other circumstantial
would have brought an accused person
evidence tying or linking the appellants
within an exception, or qualification to,
to the RDX, the easy accessibility, without
or exemption from, the law creating that
let or hindrance, of the golf course was
charge.
strong co-existing circumstance that
13. Information provided by a suspect, which was capable of destroying the inference
led to the discovery of material evidence of guilt on the part of the appellants. All
did not fall within the provisions of that the Court ought to have done was
section 111 (1) of the Evidence Act. Such to satisfy itself whether, the evidence
information was of course relevant to the on record supported the finding of
process of collecting evidence. However, guilt beyond any reasonable doubt. The
if the information had the character of evidence relied upon by the prosecution
an admission or confession, it had to fall was not water-tight enough to prove the
under the provisions of section 25A of guilt of the accused beyond reasonable
the Evidence Act, for the latter, regulated doubt.
the admissibility of “a confession or any
Appeal allowed, the respondents were to serve
admission of a fact intending to the proof
the remainder of their imprisonment term after
of guilt…”
which they would be repatriated to their country
24
Court of Appeal
The threshold for determining unexplained assets in corruption cases
Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KLR - CAK
Civil Appeal 184 of 2018
Court of Appeal at Nairobi
P N Waki, S G Kairu & J Otieno-Odek JJA
May 10, 2019
Reported by Kakai Toili
Statutes - interpretation of statutes - a person was asked to explain the source of assets
interpretation of section 26 of the Anti- disproportionate to his/her legitimately known
Corruption and Economic Crimes Act - notice to sources of income - what was the nature of the
furnish the Kenya Anti-Corruption Commission right to property where a person was asked to
with a statement of a suspect’s property - what explain the source of assets disproportionate to
was the nature of the notice to furnish the Kenya his/her legitimately known sources of income
Anti-Corruption Commission with a statement of - Constitution of Kenya, 2010, article 40; Anti-
a suspect’s property - whether evidence recovered Corruption and Economic Crimes Act, 2003,
pursuant to a notice to furnish the Kenya Anti- sections 26 & 55(2)
Corruption Commission with a statement of
Brief Facts
a suspect’s property could be used in criminal
proceedings-Anti-Corruption and Economic The respondent issued a notice under section
Crimes Act, 2003, sections 26, 30 and 55 26 of the Anti-Corruption and Economic
Crimes Act, 2003 (ACECA) requiring the
Jurisdiction – jurisdiction of the Court of Appeal
appellant to furnish a statement of his
– appellate jurisdiction - jurisdiction to interfere
property. The respondent in the said notice
with the exercise of a trial court’s discretion -
claimed that the appellant’s various assets
what was the role of the Court of Appeal as a
were estimated at tens of millions of Kenya
first appellate court and when would the Court of
Shillings and were disproportionate to his
Appeal could interfere with a trial court’s exercise
salary. Considering that the appellant’s salary
of discretion
from employment in the public service was
Evidence Law - burden and standard of proof his only source of income during the period
- burden and standard of proof in determining within which he acquired the said assets,
unexplained assets - where a person was alleged to the respondent suspected the appellant
have assets disproportionate to his/her legitimate of engaging in corruption and economic
sources of income - who bore the burden of crimes. The appellant was required to explain
proof where a person was alleged to have assets the source of cash deposits made to his
disproportionate to his/her legitimate sources of accounts. The notice required the appellant
income - what was the threshold for determining to explain his wealth for 16 years being the
unexplained assets where a public servant had period 1992 to 2008. It was contended that
assets disproportionate to his/her legitimately the respondent unlawfully altered the period
known sources of income - Anti-Corruption and of investigation and inquiry to 10-months
Economic Crimes Act, 2003, sections 2 & 55; namely from September 2007 to June 2008.
Evidence Act, section 112
The appellant complied with the notice
Evidence Law – witnesses - calling of material and gave explanation for his wealth and
witnesses to testify - failure of calling material assets. Dissatisfied with the explanation, the
witnesses to testify - effect of - what was the effect respondent moved to the Trial Court seeking
of failure to call a material witness to testify in a orders for forfeiture of the unexplained assets.
corruption case - Anti-Corruption and Economic The Trial Court held that the appellant was in
Crimes Act, 2003, section 55; Evidence Act, possession of unexplained assets valued Ksh.
section 112 41,208,000/=. A decree was issued that the
appellant was liable to pay the Government
Constitutional Law - rights and fundamental
of Kenya the sum of Ksh. 41,208,000/=.
freedoms - right to property - nature of - where
Aggrieved by the Trial Court’s decision, the
25
appellant lodged the instant appeal. the concept was the theme, you failed to
satisfactorily explain the lawful source of
Issues
assets, you forfeited it.
i. What was the threshold for determining
unexplained assets where a public servant 3. A notice issued under section 26 of
had assets disproportionate to his/her ACECA was a civil investigatory tool
legitimately known sources of income? aimed at collecting information and data
ii. What was the nature of the notice to furnish from a person suspected of corruption
the Kenya Anti-Corruption Commission or economic crime. By virtue of section
with a statement of a suspect’s property 55 (9) of ACECA, the provisions of
under section 26 of Anti-Corruption and section 55 ACECA were retroactive and
Economic Crimes Act? a section 26 notice could issue regardless
iii. Whether evidence recovered pursuant of when the property was acquired. The
to a notice to furnish the Kenya Anti- notice could issue in relation to property
Corruption Commission with a statement acquired before ACECA came into force.
of a suspect’s property could be used in 4. Evidence recovered pursuant to section
criminal proceedings. 26 of the ACECA on unexplained assets
iv. What was the role of the Court of Appeal was for civil recovery only. Pursuant
as a first appellate court and when would to section 30 of ACECA, the material
the Court of Appeal interfere with a trial received pursuant to the notice could not
court’s exercise of discretion? be used in criminal proceedings against
v. What was the nature of the right to property the respondent (except in certain limited
where a person was asked to explain circumstances including prosecution for
the source of assets disproportionate to perjury, or on a prosecution for another
his/her legitimately known sources of offence where the respondent had
income? provided inconsistent evidence).
vi. Who bore the burden of proof where
a person was alleged to have assets 5. The Court’s primary role as a first
disproportionate to his/her legitimate appellate court was namely: to re-
sources of income? evaluate, re-assess and re-analyze
vii. What was the effect of failure to call a the evidence on the record and then
material witness to testify in a corruption determine whether the conclusions
case? reached by the trial court were to stand
or not and give reasons either way.
Held
6. The 10-month period from September
1. The scourge of money laundering,
2007 to June 2008 was within the 16-
economic crimes and corruption
year timeline of 1992 to June 2008 stated
was threatening the moral and social
in the notice dated July 9, 2008. The
fabric of society. In Kenya, one of the
notice required the appellant to furnish
legislative instruments designed to deal
details of the enumerated property and
with the scourge was the ACECA. In its
cash deposits for the 16-year period. The
preamble, ACECA sought to provide
greater period included the lesser period
for prevention, investigation and
and no fresh or new notice was required
punishment of corruption, economic
for the 10-months between September
crimes and related offences. ACECA
2007 and June 2008. That lesser period
established the Kenya Anti-Corruption
was already within the longer 16-year
Commission(respondent) as a body
time-frame. Further, the originating
corporate whose Chief Executive Officer
summons at paragraph 4 thereof and at
was the Secretary/Director to the
paragraph 10 of its supporting affidavit
Commission.
expressly identified and informed the
2. Entrenched in ACECA was the concept appellant the period under investigation
of unexplained assets which was a legal was September 2007 to June 2008.
innovation to combat the vice of doubtful
7. It was not the duty of the Trial Court
source of wealth, money laundering and
to identify the period of investigation.
suspicious corrupt practices. Underlying
Under section 26 of ACECA as read
26
with section 55 of the ACECA, it was undue prejudice to one party.

the duty of the respondent to identify 11. In the instant appeal, the appellant had
the period under investigation. The not demonstrated that the Trial Court
evidence on record identified the period in permitting the appellant to testify
of investigation to be September 2007 exercised its discretion under section
to June 2008. Accordingly, the ground 55 (5) and (6) of ACECA unreasonably,
and submission that the Trial Court whimsically or injudiciously or that an
erred in failing to identify the period injustice had occurred or violation of
of investigation had no merit. Likewise, any law had taken place. Accordingly,
the contestation that the originating there was no reason to interfere with
summons as filed was fatally defective the exercise of the discretion by the Trial
for being grounded on a 10-month Court.
period had no merit.
12. The threshold for determining
8. The appellant’s right to fair hearing unexplained assets was provided for
under article 50 of the Constitution in sections 2 and 55 (2) of the ACECA.
as well as his right to be accorded A reading of section 2 and 55 (2)
reasonable opportunity to explain established the threshold for existence
the source of the monies recovered as of unexplained assets to be:
required by section 55 (2) of the ACECA
a. there had to be set time period for
were not violated. The appellant was
the investigation of a person;
required to explain the source of cash
b. the person had to be reasonably
deposits in his various bank accounts
suspected of corruption or economic
for the period under investigation. It was
crime;
the appellant who identified the assets
c. the person had to have assets whose
in explanation of sources of cash flows
value was disproportionate to his
in his bank accounts. The appellant had
known sources of income at or
an opportunity to explain the source of
around the period of investigation,
those cash assets.
and
9. An appellate court should be very d. there was no satisfactory explanation
hesitant to assume jurisdiction in cases for the disproportionate asset.
where a litigant was challenging the 13. The evidence on record revealed that
exercise of discretion by another court. another offer was made by the appellant
In the instant matter, under section to sell the suit property which had
55 (5) and (6) of the ACECA, the Trial already been sold to another person; it
Court had discretion to decide if the was improbable that the appellant would
respondent had tendered evidence on knowingly sell the same property to two
balance of probability establishing the different persons. In contract law, when
appellant had unexplained assets. there was total failure of consideration,
10. The Trial Court had discretion to let refund of any monies paid under the
the appellant satisfactorily explain the contract was due and owing. In the
source of his assets. Interfering with instant matter, if at all the sale did not go
an exercise of discretion on the part of through, there was no evidence of refund
the trial court would be tantamount to by the appellant of the cash installments
directing a court on how to exercise paid as deposit. The two people who
its powers, in essence restraining its wanted to purchase the suit property
liberty. An appellate court could only were not called to testify and throw light
interfere with exercise of discretion if on the nature of the cash transactions
the appellant could show that in exercise with the appellant. The appellant neither
of its discretion: addressed nor contradicted the specific
reasons given by the Trial Court for
a. the court acted on a whim or that;
finding that the sale agreement was
b. its decision was unreasonable and
suspect and not authentic. There was no
c. it was made in violation of any law
reason to interfere with the evaluation of
or that;
evidence and findings of the Trial Court
d. it was plainly wrong and had caused
27
in relation to the sale agreement with the to his/her legitimately known sources of
two people who wanted to purchase the income. Section 55 (2) made provision
suit property. for evidentiary burden which was cast
upon the person under investigation
14. Section 362A of the United Kingdom’s
to provide satisfactory explanation to
Proceeds of Crime Act 2002 (POCA) on
establish the legitimate origin of his/her
unexplained wealth order was in pari
assets. That evidentiary burden was a
materia to section 55 (2) of the ACECA
dynamic burden of proof requiring one
which lay emphasis on assets being
who was better able to prove a fact to be
disproportionate to an individual’s
the one to prove it. Section 55 (2) was in
known legitimate sources of income.
sync with section 112 of the Evidence
Section 55 (2) embodied the concept
Act.
of income requirement guaranteed
whereby an individual’s assets should 18. Under section 55 (2) of ACECA, the
be proportionate to his/her legitimate theme in evidentiary burden in relation to
known source of income. unexplained assets was to prove it or lose
it. In other words, an individual had the
15. The protection of the right to property
evidentiary burden to offer satisfactory
had socio-political, moral, ethical,
explanation for legitimate acquisition
economic and legal underpinning. The
of the asset or forfeit such asset. The
right protected the sweat of the brow;
cornerstone for forfeiture proceedings
it did not protect property acquired
of unexplained assets was having assets
through larceny, money laundering
disproportionate to known legitimate
or proceeds of crime or any illegal
source of income. Tied to that was the
enterprise. There was no violation of
inability of an individual to satisfactorily
the right to property if an individual was
explain the disproportionate assets.
requested to explain the source of his
assets that was disproportionate to his 19. A forfeiture order under ACECA
legitimate source of income. was brought against unexplained
assets which was tainted property; if
16. In the instant matter, the provisions of
legitimate acquisition of such property
sections 26 and 55 (2) of the ACECA
was not satisfactorily explained, such
did not violate the right to property as
tainted property risked categorization
enshrined in article 40 of the Constitution.
as property that had been unlawfully
In any event, constitutional protection
acquired. The requirement to explain
of property did not extend to property
assets was not a requirement for one to
that had unlawfully been acquired. If it
explain his innocence. The presumption
were to be held that the requirement to
of innocence was a fundamental right
explain violated the right to property
that could not be displaced through a
under article 40 of the Constitution,
notice to explain how assets had been
enforcement of a notice issued under
acquired.
section 26 and the requirement to
explain the source of disproportionate 20. In the instant matter, the appellant
assets would be rendered nugatory. was given reasonable opportunity to
explain his disproportionate assets.
17. The concept of unexplained assets and
He gave evidence on oath and tabled
its forfeiture under sections 26 and 55
documentary evidence, however he
(2) of ACECA was neither founded on
did not discharge his evidential burden
criminal proceedings nor conviction for
to offer satisfactory explanation as
a criminal offence or economic crime.
required under section 55 (2) of the
Sections 26 and 55 were non-conviction
ACECA. A person with lawful income
based civil forfeiture provisions. The
had no trouble proving the legal origin
sections were activated as an action
of his or her assets. The law protected
in rem against the property itself. The
only the rights of those who acquired
sections required the respondent to
property by licit means. Those who
prove on balance of probability that an
acquired property unlawfully could not
individual had assets disproportionate
claim protection provided by the legal
28
system. It was in that context that article by a party to call a material witnesses
40 (6) of the Constitution provided that could be interpreted as an indication of
protection of the right to property did knowledge that his opponent’s evidence
not extend to property that had been was true, or at least that the tenor of the
unlawfully acquired. evidence withheld would be unfavorable
to his cause. An inference would not be
21. Whereas the appellant was under no
allowed if a party introduced evidence
obligation to call any witnesses to
explaining the reasons for his conduct
testify on his behalf, there were three
and reason for failure to call a witness
crucial individuals that he ought to have
and if the evidence was truly unavailable
called to testify. Those individuals were
or shown to be immaterial.
crucial to corroborate the appellant’s
testimony that the named individual 23. In the instant case, section 55 (4) of the
lawfully gave him cash in form of ACECA stipulated that the person whose
friendly loan or installment towards assets were in question had to be afforded
purchase of plot/houses.In civil as the opportunity to cross-examine any
in criminal proceedings, the plaintiff witness called and to challenge any
(prosecution) was solely responsible for evidence adduced by the respondent and,
deciding how to present its case and had to have and could exercise the rights
choosing which witnesses to call. In the usually afforded to a defendant in civil
instant case, the respondent alone bore proceedings. In the instant matter, the
the responsibility of deciding whether appellant did have opportunity to cross-
a person would be called as a witness examine the respondent’s witnesses.
in its case. A court could not ordinarily
24. The appellant did not offer satisfactory
direct a party to call any witness. Save in
explanation as to the source of admitted
exceptional circumstance, a trial court
sum of Ksh. 15.5 million from the alleged
could not call any witness. In the instant
Sudanese National; the source of Ksh.
case, the appellant’s contestation that
1,000,000/= allegedly for community
the respondent should have called the
electricity project; the source of Ksh.
three individuals as witnesses had no
10.9 million and the source of Ksh.
legal foundation. In law, the appellant
9.5 million for sale of properties. The
could not compel the respondent to
contestation that the Trial Court erred
call a witness to support or rebut the
in applying and interpreting sections
respondent’s case; all that the respondent
26 and 55 of ACECA had no merit. The
was obligated to do was call credible and
Trial Court did not err in holding that
material witnesses to prove its case to
the admitted cash monies received were
the required standard.
part of the appellant’s unexplained assets
22. The failure to call a particular witness that should be paid over to the Kenya
or voluntarily to produce documents Government.
or objects in one’s possession was
Appeal dismissed, no order as to costs.
conduct evidence. In principle, failure
Court of Appeal upholds High Court’s decision ordering the Non-
Governmental Organizations Co-ordination Board to Register Lesbian,
Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community
Rights Group
Non-Governmental Organizations Co-Ordination Board v EG & 5 others [2019] KLR - CAK
Civil Appeal 145 of 2015
Court of Appeal at Nairobi
P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike-Makhandia, JJA
March 22, 2019.
Reported by Kakai Toili
Constitutional Law-interpretation of lesbians, gays, bisexuals, trans genders, intersex
constitutional provisions-interpretation of article and queer community were ‘persons’ as used in
36 of the Constitution-whether members of the article 36 of the Constitution on the freedom of
29
association-Constitution of Kenya, 2010, article the findings of fact by the High Court
27(4), 36& 259
Brief Facts
Civil Practice and Procedure-suits-institution
The 1st respondent floated three names
of suits-where the Constitution or an Act of
under which he sought to register a non-
Parliament provided for a procedure of resolving
governmental organization (proposed NGO)
a dispute-whether one could file a suit in court
with the appellant, seeking to address human
where there was a procedure for redress presented
rights abuses and violations suffered by the
by the Constitution or an Act of Parliament
Lesbian, Gay, Bisexual, Transgender, Intersex
before exhausting the procedure provided- Fair
and Queer persons (LGBTIQ) in Kenya and
Administrative Actions Act, section 9 (4)
which request was rejected by the appellant’s
Constitutional Law-fundamental rights and Executive Director (Director) precipitating
freedoms- freedom of association –limitation of the 1st respondent to file a petition at the
freedom of association-where a person sought to High Court on the ground that his right to
register a non-governmental organization(NGO)- freedom of association, dignity, equality and
where the Executive Director of the Non- right not to be discriminated against had been
Governmental Organizations Co-ordination violated among other grounds. The High
Board refused to approve the reservation of Court allowed the petition and held that the
the name of a proposed NGO-where the Non- right to equality before the law would not
Governmental Organizations Co-ordination be advanced if people were denied the right
Board refused to register the said organization- not to be discriminated against based on
procedure to be followed an aggrieved party- their sexual orientation. The appellant was
whether an aggrieved party could appeal against aggrieved by the High Court’s decision and
a decision of the Executive Director of Non- thus filed the instant appeal.
Governmental Organizations Co-ordination
Issues
Board to refuse to approve a proposed name of
an NGO to the Minister in charge-Constitution i. Whether one could file a suit in court
of Kenya, 2010, article 24,27(4), 36 & 259; Non- where there was a procedure for redress
Governmental Organizations Co-ordination presented by the Constitution or an Act
Act, section 10, 14 & 19; Non-Governmental of Parliament before exhausting the
Organizations Coordination Regulations, procedure provided.
regulation 8 & 9 ii. What was the procedure to be followed
where a person was aggrieved by the
Constitutional Law-fundamental rights and decision of the Non-Governmental
freedoms-freedom of association–limitation of Organizations Co-ordination Board
freedom of association-under what circumstances not to register a non-governmental
could the right to form, join and participate in organization?
non-governmental organizations, associations iii. Whether an aggrieved party could appeal
or groups be limited-whether a person could be against a decision of the Executive
denied fundamental rights and freedoms based Director of Non-Governmental
on his or her sexual orientation-Constitution of Organizations Co-ordination Board to
Kenya, 2010, article 24,27(4), 36 & 259 refuse to approve a proposed name of a
Criminal Law–unnatural offences and indecent non-governmental organization to the
practices between males-elements-whether it was Minister in charge.
an offence for one to be a gay or a lesbian without iv. Whether members of the Lesbians
more action- Penal Code, section 162 & 165 Gays Bisexuals Transgender Intersex
Queer(LGBTIQ) community were
Constitutional Law-fundamental rights and ‘persons’ as used in article 36 of
freedoms-human dignity-concept of dignity- the Constitution on the freedom of
what was the nature of the concept of dignity in association.
human rights- Universal Declaration of Human v. Whether it was an offence for one to be
Rights, article 1 a gay or a lesbian without more action as
Jurisdiction–jurisdiction of the Court of Appeal – provided for in sections 162,163 and 165
jurisdiction to interfere with findings of fact made of the Penal Code.
by the High Court-what were the circumstances vi. Under what circumstances could the
in which the Court of Appeal could interfere with right to form, join and participate in non-
30
governmental organizations, associations and the realization of the potential of

or groups be limited? all human beings’. In articles 20 (3) and
vii. What was the nature of the concept of (4), it gave an edict to the courts as they
dignity in human rights? applied the Bill of Rights to develop
viii. Whether a person could be denied the law where it did not give effect to a
fundamental rights and freedoms based right; adopt the interpretation that most
on his or her sexual orientation. favoured the enforcement of a right
ix. What were the circumstances in which or fundamental freedom and promote
the Court of Appeal could interfere with the values that underlay an open and
the findings of fact by the High Court? democratic society based on human
Held dignity, equality, equity, freedom and the
spirit, purport and objects of the Bill of
Per P N Waki, JA (concurring) Rights.
1. The instant matter was not about 5. In article 259, the Constitution
the family unit, marriage or morals, commanded the manner in which it
legalization of same sex relationships, or should be interpreted. It also demanded
the constitutionality of sections 162, 163 that every provision of the Constitution
and 165 of the Penal Code. Indeed, the be construed according to the doctrine
latter issue was pending determination of interpretation that the law was always
before the High Court, and the less said speaking. The Constitution had to be
about it the better. interpreted in a manner that eschewed
2. The Constitution had ring-fenced its formalism, in favour of the purposive
purpose and the manner it ought to be approach and in a holistic manner within
construed. After declaring its supremacy its context and in its spirit.
in article 2, the Constitution proceeded 6. Where there was a procedure for redress
in article 10 to bind everyone who of any particular grievance presented by
applied and interpreted it or any other the Constitution or an Act of Parliament,
law or made public policy, to the national that procedure should be exhausted
values spelt out therein including: before resort could be had to the courts.
human dignity, equity, social justice, The Director was ex officio and had
inclusiveness, equality, human rights, no vote at any meeting of the Board.
non-discrimination and protection of The Board could make decisions on
the marginalized. cancellation of registration certificates
3. The principles of the rule of law, and on entry permits. On all the matters
participation of the people, equity, under part III of the Non-Governmental
inclusiveness, equality, human rights, Organizations Co-ordination Act (Act)
transparency and accountability were on registration of non-governmental
binding. The Constitution opened up organizations, where the Board made
further space for application of other a decision, an appeal by the aggrieved
principles and values obtaining in the organization went to the Minister under
general rules of international law and section 19 of the Act on appeals.
the international instruments Kenya 7. There was no application neither made
had ratified, such as, the Universal under part III of the Act on registration
Declaration on Human Rights, the of non-governmental organizations nor
International Covenant on Civil and was a decision made by the Board. The
Political Rights (ICCPR), and the Board as constituted under section 4
International Covenant on Economic, of the Act never met, the application as
Social and Political Rights (ICESCR). detailed in section 10 of the Act was never
4. The Constitution laid out an expansive submitted. Consequently, one could
Bill of Rights for the purpose of not talk about refusal of registration
recognizing and protecting human rights under section 14 of the Act on refusal
and fundamental freedoms in order to of registration which would attract the
preserve the dignity of individuals and procedure of appeal under section 19 of
communities, promote social justice the Act.
31
8. All that happened in the instant matter the interpretation of the High Court.
was an administrative procedure that was
12. The people in Kenya who answered to
provided for in the Non-Governmental
any of the descriptions in the acronym
Organizations Coordination
LBGTIQ, were persons. Article 36 of
Regulations, 1992 (Regulations),
the Constitution covered the persons in
which had to take place long before
that group. Like everyone else, they had
commencement of an application for
a right to freedom of association which
registration under part III of the Act.
included the right to form an association
The procedure was in regulation 8 of
of any kind. That was the literal wording
the Regulations and was referred to as
of article 36 (1) which had no hidden
approval of names. Without surmounting
meaning. Article 260 of the Constitution
that step, there would be no application
provided further clarity to the definition
for registration under section 10 (2) of
of person. Construing ‘person’ to refer
the Act, as provided for in regulation 9
only to the sane and law abiding people
on application for registration.
would be unduly stretching the ordinary
9. The application for approval of a name meaning of the words used in the
was made to the Director and it was Constitution.
the Director who made the decision to
13. The Penal Code did not criminalize the
reserve or not to reserve it. The Board
persons answering to the description
had nothing to do with that process and
LBGTIQ qua such persons. What it
the rules did not provide for an appeal
provided for were specific offences,
to the Board. The Board came in under
more specifically, unnatural offences,
part III of the Act which was covered in
attempts to commit unnatural offences,
regulation 9 of the Regulations. Without
and indecent practices between males.
a decision of the Board, there could be
Those were sections 162, 163 and
no appeal to the Minister.
165 of the Penal Code, respectively.
10. The decision in question was not the Like everyone else, LBGTIQ persons
decision contemplated in section 19 were subject to the law and would
of the Act, on which appeal lay to the be subjected to its sanctions if they
Minister. The intention of the law in contravened it. Convicting such persons
section 19 of the Act was for an appeal before they contravened the law would
to lie in respect of substantive decisions be retrogressive.
such as refusal of registration or
14. According to the proposed NGO’s
cancellation of registration. Section 19
objectives, the 1st respondent intended to
of the Act was clear that an appeal only
register the NGO to among other things
lay to the Minister when the Board had
conduct accurate fact finding, urgent
made a decision.
action, research and documentation,
11. As the Board did not make the decision impartial reporting, effective use of the
in terms of the Act, there was no media, strategic litigation and targeted
appeal provided for the 1st respondent. advocacy in partnership with local
Moreover, there was nothing in the human rights groups on human rights
Regulations that provided that an issues relevant to the gay and lesbian
aggrieved applicant could appeal a communities living in Kenya. On the
decision made in terms of the Regulations face of it, there was nothing unlawful or
to the Minister. As such, there was no criminal about such objectives. However,
statutory prescribed internal remedy, they never reached the stage of proper
which was prescribed or available to the consideration by the Board because the
1st respondent. The Court could not main gate to the boardroom was locked.
close its doors on the 1st respondent for
15. Article 36 of the Constitution granted
failure to exhaust an internal remedy that
every person the right to form
did not apply to his circumstances. The
an association of any kind. It also
grounds upon which the reservation of
provided that an application to form
name was rejected were top-heavy with
an association could only be refused on
constitutional questions which deserved
32
reasonable grounds and no person could intersex and queer (LBGTIQ) is rarely
be compelled to join an association. That discussed in public. The reasons for such
was the breadth of the right of freedom coyness vary. But it cannot be doubted
of association as provided for in the that it is an emotive issue. The extensive
Constitution. It covered every person and passionate submissions made in
and any kind of association. It could only this matter before the High Court,
be limited in terms of law and only to the and before us, is testimony to the deep
extent that the limitation was reasonable rooted emotions that the issue can easily
and justifiable in an open and democratic arouse. It is possible for the country to
society based on human dignity, equality close its eyes and hearts and pretend that
and freedom. An individual human it has no significant share of the people
being, regardless of his or her gender or described as LGBTIQ. But that would
sexual orientation, was a person for the be living in denial. We are no longer a
purposes of the Constitution. closed society, but fast moving towards
the ‘open and democratic society based
16. The Constitution extended the
on human dignity, equality, equity,
definition of ‘person’ from only the
and freedom’ which the Constitution
natural, biological human being to
envisages. We must therefore, as a
include legal persons. Neither article 36
nation, look at ourselves in the mirror. It
of the Constitution nor the definition
will then become apparent that the time
of “person” in article 260 of the
has come for the peoples’ representatives
Constitution created different classes
in Parliament, the Executive, County
of persons. There was nothing that
Assemblies, Religious Organizations,
indicated that the Constitution, when
the media, and the general populace, to
referring to ‘person’, intended to create
engage in honest and open discussions
different classes of persons in terms of
over these human beings. In the
article 36 based on sexual orientation.
meantime, I will not “.. be the first to throw
Moreover, articles 20(3) and (4) of the
a stone at her [LGBTIQ]”.
Constitution provided that a court adopt
the interpretation that most favoured the Per Koome, JA (concurring)
enforcement of a right or fundamental
19. Arguments on morality, religion, culture
freedom and promoted the values that
were none issues in the instant matter as
underlay an open and democratic society
they were based on assumptions that if
based on human dignity, equality, equity
the proposed NGO were to be registered,
and freedom and the spirit, purport and
it would run counter to religious,
objects of the Bill of Rights.
cultural and moral values of Kenya. The
17. Article 20 (1) of the Constitution provided Court did not wish to delve on matters
that the Bill of Rights applied to all of morality because what formed the
persons. Article 259 of the Constitution morality of Kenya was basically what
provided that the Constitution had to be was spelt out in various articles of the
interpreted in a manner that advanced Constitution especially article 10 of the
human rights and fundamental Constitution.
freedoms. The term “every person” in
20. The Act and the Regulations had not
article 36 of the Constitution properly
provided an internal appeal mechanism
construed did not exclude homosexual
for applicants to follow when a name
person and the 1st respondent therefore
was refused for reservation to register a
fell within the ambit of article 36 which
non-governmental organization(NGO).
guaranteed to all persons the right to
If certainly there existed a procedure,
freedom of association. The right to
the Board should have advised the 1st
freedom of association was also expressly
respondent to place an appeal before
recognised in international covenants to
the Board or the Minister; since the
which Kenya was a party.
procedure provided was for refusal of a
18. [Obiter Dicta] The issue of persons in the registration and not a name.
society who answer to the description
21. The Board having made up its mind that
lesbian, bisexual, gay, transsexual,
33
the proposed NGO did not meet the notwithstanding and to say it was only
test, sending the 1st respondent back to gays and lesbians who committed them
exhaust an appeal where the procedure was to subject them to differential
was not even set up, where the Board treatment.
had strongly expressed its prejudicial
25. Freedom of association where citizens
view against the proposed NGO would
were free to assemble and express their
be an exercise in futility. Courts were
opinions in politics, religion and art was
the ultimate bastion and custodian
universally accepted as vital for a pluralist
of the Constitution. The matters of
and open democratic society. The
LGBTIQ’s right to associate invoked
Board did not present any evidence to
the interpretation of the Constitution,
demonstrate that the evil that abound in
for determination by court. The matters
the society, from corruption, to murders,
raised transcended a mere administrative
rapes including within the families were
act and touched on constitutional
brought about by LGBTIQ. Nor did the
interpretation by court.
Board provide evidence to show persons
22. It was not an offence for one to be gay who committed offences under sections
or lesbian. What was detestable and 162, 163, and 165 of the Penal Code were
an offence was engaging in carnal LGBTIQ.
knowledge against the order of nature.
26. The institution of marriage could not
In other words even if somebody stood
be threatened by an association of
on a high platform and declared that
LGBTIQ; marriage was anchored in the
he or she was a gay or lesbian without
Constitution and it was an institution
more, they would not have committed
that one entered out of choice. Moreover
an offence contrary to the provisions
there were many people who entered
of section 162, 163 and 165 of the
it and left it, not because they were
Penal Code which criminalised carnal
LGBTIQ; others entered marriage and
knowledge against the order of nature.
choose not to procreate and others
23. Anybody was capable of committing did not enter marriage at all and they
unnatural offences; attempting to were not LGBTIQ. There were people
commit unnatural offences and indecent who were heterosexuals and they did
practices between males under section not engage in sex of any kind out of
162, 163 and 165 of the Penal Code choice, it was also possible there were
respectively. They could be gays, lesbians homosexuals or LGBTIQ people who
(LGBTIQ) and even heterosexuals. did not engage in sex also out of choice.
Reported cases abound where persons
27. As a defender of the human rights of the
who were not LGBTIQ had been
gay and lesbian community in Kenya, the
charged and convicted of heinous
1st respondent had a right, as stated in
offences of rape, defilement and other
the UN Declaration on Human Rights
sexual offences including beastiality. It
defenders and in accordance with the
was not fair to generalize and stigmatize
Constitution to form, join and participate
LGBTIQ persons as the only ones who
in non- governmental organizations,
were prone or predisposed to commit
associations or groups.
the said offences. Every offender should
be dwelt with as an individual. 28. It was arbitrary to speculate and
categorize LGBTIQ as persons who
24. If a homosexual person committed an
had the propensity to destroy a society
offence, he would be arrested and dealt
by contravening the provisions of the
with according to the law, so was a
Constitution or the Penal Code, or as
heterosexual. Section 162, 163 and 165
a group bent on ruining the institution
of the Penal Code were neither enacted
of marriage or culture. Overturning the
to criminalize homosexuality nor the
impugned judgment would undermine
state of being homosexual otherwise it
the gains made over the years in
would have stated so. Those offences
promoting, protecting and building
in the Penal Code could be committed
a culture of respect and tolerance of
by anybody their sexual orientation
34
differences that abound in the society. as opposed to part III of the Act that
dealt with the process and requirements
29. Allowing the appeal would be stereotyping
for registration of NGOs. That was
people and expecting everybody to be
because the 1st respondent did not get
the same size fits all. Kenyans were made
an opportunity to make an application
from the same cloth but cut in different
for registration of his proposed NGO
shapes and sizes. The Constitution was
to the Board. All he did was to apply to
the equalizer, it allowed everybody to be
reserve the name of his proposed NGO.
and if some people were sinners, God
would deal with them, no one could 34. The Board placed reliance on regulation
judge for Him. The Constitution was the 8(3)(b)(ii) of the Regulations and advised
ultimate guide and liberator from the the 1st respondent that the names sought
shackles of all kinds of discrimination. to be reserved for the registration of the
Its bold provisions also domesticated the proposed NGO were not acceptable in
international human rights law which the opinion of the Director. There was
could be called to aid in the event of a nothing in the Regulations that provided
gap within Kenya’s own indigenous and an aggrieved applicant a right to appeal a
rich jurisprudence. decision made in terms of regulation 8(3)
(b)(ii) for refusal of a name by which an
Per Asike-Makhandia, JA (concurring)
organization could be registered.
30. Article 1 of the Universal Declaration of
35. Article 165 of the Constitution provided
Human Rights (UDHR) was in the context
that the High Court had the jurisdiction
of the instant case apt. It recognized that
to interpret the Constitution and
all human beings were born free and
determine a claim for the enforcement
equal in dignity. Thus, stripping someone
of fundamental rights and freedoms.
of their dignity stripped off their essence
The appellant’s officers advised the 1st
of being a human being. Dignity since
respondent to seek the guidance of the
the beginning of the era of human rights
court on whether the appellant could
had become the foundation of all other
allow LGBTIQ associations to enjoy
rights. It amounted to the recognition
Government recognition on an equal
that the sole purpose for protecting,
basis with other associations through
promoting and fulfilling human rights
registration. The Minister did not have
was the acknowledgement that all human
the power to enforce the Constitution
beings had to be accorded respect.
or interpret whether any conduct was
31. The concept of dignity for all men and in violation of the Constitution. The
women involved the development of respondent, in any event, was entitled
opportunities which allowed people to seek remedy that was efficacious and
to realize full human potential within pursuing an appeal to the Minister would
positive social relationships. It was the not have afforded the 1st respondent
quest for dignity, equality and equal such remedy. Therefore the petition was
recognition and protection before the properly before the High Court.
law that made the 1st respondent to file
36. The instant appeal was not about sexual
the petition.
orientation and whether or not sexual
32. Pursuant to rule 29(1) of the Rules orientation was innate or not. The
of the Court, an appeal to the Court High Court did not get into that arena
from a trial by the High Court was by of determining whether or not being
way of a retrial except that the Court LGBTIQ was an innate attribute. The
had not had the opportunity of seeing instant Court did not propose to get in
and hearing the witnesses. Just like there as well.
in a retrial, the appellate court was
37. Article 36 of the Constitution
required to reconsider the evidence on
guaranteed freedom of association,
record, evaluate itself and draw its own
it extended to every person’s right to
independent conclusions.
form an association of any kind. That
33. The applicable provision was regulation right could only be limited in terms of
8 of the Regulations on approval of names
35
law to the extent that the limitation was basis for denying fundamental rights and
reasonable and justifiable in an open and obligations.
democratic society as provided for in
41. The decision of the appellant to refuse to
article 24(1) of the Constitution. Subject
accept the proposed names of the NGO,
to the limitations, a person’s rights under
amounted more to a statement of dislike
article 36 extended to all human beings
and disapproval of homosexuals rather
without discrimination, whatever their
than a tool to further any substantial
ethnicity, religion, sex, place of origin or
public interest. A constitution was to
any other status such as age, disability,
some extent founded on morals and
health status, sexual orientation or
convictions of a people, however a
gender identity.
constitution was not founded on division
38. Article 36 extended to all individuals and and exclusion.
juristic persons and sexual orientation
42. The instant case did not concern in any
did not in any way bar an individual
way article 45 of the Constitution. It had
from exercising his right under article
to be understood that the 1st respondent
36 of the Constitution. The State had
only sought to exercise his freedom to
an obligation to refrain from interfering
associate in an organization recognised
with the formation of associations
by law.
and there had to be mechanisms that
allowed citizens to join without State 43. In any democratic society, there would
interference in associations to enable always be a marginalized group incapable
them attain various ends. of protecting their rights through the
democratic process. Once a society
39. By refusing to accept the names for
understood there were people, whose
the proposed NGO, the appellant
sexual orientation was different from the
violated the 1st respondent’s freedom of
norm and human rights belonged to all
association. It did not matter the views
persons by virtue of them being human
of the appellant that the name of the
beings, it would be easier to respect their
association was not desirable. In a society
fundamental rights and freedoms.
as diverse as Kenya, there was need for
tolerance. The preambular provisions 44. The Bill of Rights was not meant to
in the Constitution acknowledged the protect only the individuals that were
supremacy of the Almighty God of all liked and left unprotected those found
creation. morally objectionable or reprehensible.
In any case, article 10 of the Constitution
40. The Constitution recognized the
obliged the Court to protect the
right of persons to profess religious
marginalized.
beliefs and to articulate such beliefs
including the belief that homosexuality 45. The appellant had not been able to prove
was a taboo that violated the religious that the alleged objects of the proposed
teachings. However, the Constitution NGO were not in accordance with the
did not permit the people who held law. Accordingly, the 1st respondent’s
such beliefs to trod on those who did right to form an association could only be
not or subscribed to a different way limited within the parameters provided
of life. They too had the right not to for in article 24 of the Constitution. The
hold such religious beliefs. It could not provisions of section 162 and 165 of the
therefore be proper to limit the freedom Penal Code did not criminalize the state
of association on the basis of popular of being homosexual but sexual acts that
opinion based on certain religious beliefs were against the order of nature. Section
that the Board believed amounted to 162 and 165 of the Penal Code did not
moral and religious convictions of most prevent people to form an association
Kenyans. The Bible and Quran verses based on their sexual orientation.
as well as the studies on homosexuality 46. The appellants had misapprehended the
relied on by the appellant would not help law in determining that sections 162
its case. Religious texts were neither a and 165 of the Penal Code criminalised
source of law in Kenya nor formed the gays and lesbians’ liaisons and therefore
36
should not allow such persons to it had to down its tools. Jurisdiction was
register an association. There was donated either by a charter, constitution
no connection between the activities or legislation. Therefore, parties had
prohibited by section 162 and 165 and no mandate to confer jurisdiction on a
the request by the 1st respondent to court where non-existed.
register an LGBTIQ organization that
3. Section 14 of the Act was the
would promote the rights of people
substantive provision governing refusal
who belonged to that community. There
of registration of an NGO. It only talked
was no law that limited the freedom of
of three instances when the Board could
association. Therefore there was no need
refuse registration. Regulation 8(3) of
to undertake an inquiry on the remaining
the Regulations dealing with refusal of
criteria established under article 24 of
registration of an NGO under the Act
the Constitution.
was the one whose applicability was
47. Article 27 (4) of the Constitution did not interrogated by the Board. There was no
include sexual orientation as a prohibited other provision donating power to the
ground of discrimination. The word Director to act under section 14.
‘including’ in article 27(4) was not
4. Absence of a specific provision in
exhaustive of the grounds listed there.
the Act donating distinct functions
Article 259(4) (b) of the Constitution
to the Director as opposed to those
defined the word ‘including’ as meaning
mandated to the Board on the one hand,
included, but was not limited to. In the
and absence of regulation(s) under
circumstances, the High Court was not
which the Board, could discharge its
guided by the South African Constitution
functions under section 14 of the Act,
that included sexual orientation as
independently of that donated to the
a prohibited ground. A purposive
Director under regulation 8(3) of the
interpretation of the grounds listed in
Regulations, the only plausible inference
article 27(4) was to the effect that they
that could be drawn was that, the action
were not exhaustive. The Court would
of the Director under regulation 8(3) fell
therefore have to determine on a case to
under section 14 of the Act. They were
case basis other grounds that could form
therefore functions discharged under
part of article 27(4) whenever called
section 5 of the Act on behalf of the
upon to.
Board by the Director in his capacity as
Per Nambuye, JA (dissenting) the executive officer of the Board. They
were therefore amenable to the section
1. The mandate of the Court was to re-
19(1) (2) & (3) of the Act procedures.
appraise; re-assess and re-analyze the
evidence on record and arrive at its 5. The words ‘any organization’ in section
own conclusions on the matter and 19 of the Act referred to organizations
give reasons either way. The Court that fell for registration under the Act
should be slow in moving to interfere namely NGOs. What was on record
with a finding of fact by a trial court was the 1st respondents request for the
unless it was satisfied that it was not registration of an NGO, that therefore
based on evidence, or it was based on a fell into the definition in section 2 of
misapprehension of the evidence or the the Act. What were in contest were the
trial court had been shown demonstrably names and objectives of the proposed
to have acted on a wrong principle in NGO. There was therefore nothing
reaching the finding it did. constitutional in issue as at that point
in time. The constitutional issues
2. Jurisdiction was everything; without
only arose in the petition after the 1st
jurisdiction, a court had no mandate to
respondent’s request for the registration
proceed further with the determination
of the proposed NGO was turned down
of any matter before it. Where the issue
severally by the appellant.
of jurisdiction was raised, it had to be
determined first and once a court came to 6. The genesis of the 1st respondent’s
the conclusion that it had no jurisdiction, petition was a purely administrative
37
action executed by the Director on behalf 10. Articles 20 of the UDHR and 22 of the
of the Board declining registration of ICCPR were properly applied to the
the 1st respondent’s proposed NGO proceedings pursuant to the provision of
with no constitutional underpinnings article 2(5) and 2(6) of the Constitution
at that point in time. It was therefore as Kenya had ratified both of them. The
amenable to section 19 of the Act which construction and application of those
procedures ought to have been invoked provisions as carried out by the High
and exhausted before seeking the Court was in order as those instruments
court’s intervention, notwithstanding, also provided that they applied to all
the undisputed constitutional mandate persons. The word “person” used in the
bestowed on the High Court. It was said instrument carried the meaning
therefore tainted and had the High Court ascribed to it in article 260 of the
properly construed and applied the cited Constitution. The right to associate was
provisions, it would have downed its not selective and it applied to everyone,
tools on account of the petition being save that the enjoyment of the same was
premature, rerouted the 1st respondent subject to the limitation provided for in
to exhaust the procedures under section the law of the land.
19 of the Act before seeking a judicial
11. The duty of the Board was to act in
pronouncement on the constitutional
accordance with the constitutional
issues raised in the petition.
mandate bestowed upon it; what the
7. The issue of the appellant’s failure to 1st respondent sought to champion
notify the 1st respondent of a right of through the proposed NGO was the
appeal upon rejection of his request for right to associate and not the right to
registration of the proposed NGO did champion criminal activities. The High
not arise as none was provided for either Court ought to have made a definitive
in the Act or in the Regulations. determination as to whether the acts
provided for in sections 162,163 and
8. The High Court bore in mind the
165 of the Penal Code fell into the sexual
correct threshold in the interpretation
orientation category or not because
of the constitutional provisions they
that had been the borne throughout the
were called upon to interpret. Issues as
proceeding both before the High Court
to whether being an LGBTIQ was innate
and the Court.
or otherwise was never interrogated
by the High Court, therefore the Court 12. Kenya as a society, if it were to recognize
steered clear of it. However, the meaning that LGBTIQ persons were human
to be ascribed to the word “person” beings. However, reprehensible the
should be as defined in article 260 of Board found their sexual orientation,
the Constitution. All human beings, it would be obligated to accord them
subject to the Kenyan constitutional human rights which were guaranteed by
prescriptions were entitled to protection the Constitution by virtue of their being
of the constitutional guarantees human beings in order to protect their
enshrined therein but subject to dignity. Such according of human rights
limitations provided for under the law. had to be within the limits permitted
for either by the Constitution itself for
9. Article 36 of the Constitution enshrined
the law. Such a protection fell for rights
the right to freedom of association; the
either crystalized or entrenched in the
same was guaranteed to every person. It
Constitution or laws made thereunder.
was a right to form, join and participate
in the activities of an association of 13. The right of association guaranteed to
any kind whose registration could not the 1st respondent under article 36 of
constitutionally be refused, rejected or the Constitution was not absolute, it
withheld arbitrarily or unreasonably, could be limited. The test for limitation
save that such withdrawal or withholding being;
of registration was subject to the right of a. that the limitation was by law,
fair hearing. b. that such limitation though by law had
to be reasonable and justifiable in an
38
open and democratic society based on into the category of conduct against the
human dignity, equality and freedom, order of nature legislated against in the
c. that such limitations had to take into aforesaid Penal Code provisions.
consideration all the relevant factors
15. The High Court failed to distill the values
namely the nature of the right, purpose
of the freedom of religion guaranteed in
of the limitation and the nature and
article 32 of the Constitution and how
extent of the limitation,
those were either distinct or interfaced
d. the need to ensure that the enjoyment
with those enshrined in article 10 of the
of rights and fundamental freedoms
Constitution before discounting their
by an individual did not prejudice the
application to the issues in controversy.
right and fundamental freedoms of
others, 16. The High Court laid basis that the
e. the need to examine closely the provision on the interpretation of
relation between the limitation and the Constitution, advocated for an
its purpose, and whether there were interpretation that favoured the
less restrictive means of achieving that enjoyment of the right or fundamental
purpose, freedom sought to be protected or
f. in the case of the limitation by statute, enforced. It was however, necessary for
there had to be an express intention the High Court to provide a basis for
to limit that right or fundamental holding that the persons whose rights
freedom and the nature and extent the 1st respondent sought to champion
of the limitation. There was also the through the proposed NGO, fell into
need for the provision to be clear the category of the vulnerable within
and specific about the right and or the context of the Kenyan society. In
freedom to be limited and the nature the absence of such demonstration, the
and extent of such limitation. Further appellant could not be faulted for holding
such limitation had to ensure that the view that the LGBTIQ group did not
there was no derogation from the core fall into the category of the vulnerable in
and essential content of the legislation. the context of the Kenyan society, but in
There was also an obligation placed on the context of persons whose attributes
the party wishing to limit the right to were outlawed under the Penal Code.
sufficiently demonstrate to the court 17. The right of non-discrimination
or tribunal or some other authority enshrined in article 27(4) of the
that the requirement of article 24 of Constitution applied to everyone and
the Constitution had been complied although sexual orientation was not
with. explicitly indicated therein as a ground
14. Sexual orientation was not one of for non-discrimination, it could be read
the exceptions to limitation of rights into those other categories by applying
under article 27(4) of the Constitution. the word ‘includes’.
Although, the guiding principle on
18. The word “includes”, in article 27(4) of
interpretation was that it should
the Constitution could be construed and
favour the enjoyment of the right, such
applied to include sexual orientation
enjoyment had to be within the limits
as one of the categories for non-
permissible in law. That meant that non-
discrimination; save that, that was
discrimination on account of sexual
subject to the High Court making a
orientation could only be accorded and
definitive finding that sexual orientation,
enjoyed on condition that what sexual
on the basis of which they had crystalized
orientation meant and what people who
the right of association in favour of the
believed in it, practiced, did not fall within
LGBTIQ persons in Kenya, through a
the acts prohibited in sections 162, 163
judicial pronouncement as one of the
and 165 of the Penal Code. Enjoyment
elements for non-discrimination under
of the right of non-discrimination on
article 27(4) did not fall into the category
account of sexual orientation, would
of acts prohibited under sections 162,
only be dependent on a clear definition
163 and 165 of the Penal Code, namely,
as to whether sexual orientation fell
39
conduct against the order of nature. of the Act required any person aggrieved
by a Board decision under part III of
19. Protection of a right or fundamental
the Act, which was about registration
freedom was dependent on either an
and licensing of NGOs, to appeal to the
entrenchment of such a right in the
Minister. Part III of the Act had to be read
Constitution or through legislation.
together with part III of the Regulations
The Constitution itself had provided
which also dealt with registration and
for methods for such an entrenchment.
exemption from registration of NGOs.
Articles 255 (2) of the Constitution
made provision for an amendment to 22. Regulations and statutory rules, which
the Constitution through a referendum, were part of statutory instruments
article 256 of the Constitution through as defined under section 2 of the
legislation and article 257 of the Statutory Instruments Act, 2013,
Constitution through popular initiative. were the most common form of
None of those covered a judicial delegated legislation. Regulations
pronouncement. The issue as to whether and/or statutory rules contained
sexual orientation fell into the elements many administrative details that were
for non-discrimination enshrined in necessary for operationalisation of an
article 27(4) of the Constitution had to Act of Parliament. The Interpretation
be put to the Kenyan people through and General Provisions Act required all
any of the stated methods with a view statutory instruments to conform to the
to entrenching it in the Constitution Act in regard to construction, application
in order for it to crystalize the right and interpretation. Therefore, the
accorded to the 1st respondent by the High Court erred in holding that the
impugned judgment. Short of that, it 1st respondent could not appeal to the
only amounted to an aspirational right. Minister since the Regulations did not
prescribe any internal remedy.
Per D K Musinga, JA(dissenting)
23. There was no evidence that the Board
20. The rejection of the proposed name
ever advised the 1st respondent to
was not purely administrative and was
move to court to challenge its decision,
a Board decision contemplated under
instead of appealing to the Minister. The
part III, section 19(1) of the Act, against
1st respondent stated that it was a legal
which an appeal lay to the Minister. Part
officer, who suggested that he should
III of the Act dealt with registration
seek guidance from the court on the
and licensing of NGOs. Part III of the
issue of registration. But even if it was the
Regulations under which regulation
Board that had so advised, such advice
8(3)(b) fell dealt with registration and
could not contravene the provisions of
exemption from registration of NGOs.
the Act or confer jurisdiction upon the
The first step towards registration of an
High Court, until the prescribed internal
NGO was submission of its proposed
dispute resolution mechanisms had been
name to the Director who was a member
exhausted.
of the Board and by virtue of section 5(1)
of the Act was responsible for the day to 24. In the matter that was before the High
day management of the business of the Court, the 1st respondent did not seek
Board. In rejecting the proposed name any exemption from the requirement
the Director did so for and on behalf of to first exhaust the internal dispute
the Board. That was why the Board was resolution mechanism provided under
sued. the Act. The High Court, without any
application, assumed jurisdiction on the
21. Section 10(2) of the Act, which fell under
basis that the issues raised in the petition
part III, stipulated that applications
were of significant public importance
for registration of proposed NGOs be
requiring authoritative judicial guidance.
submitted to the Director, also known
That could as well have been the case,
as the executive director of the Bureau,
but it did not mean that the statutory
which was defined as the executive
provisions for challenging the Board’s
directorate of the Board. Section 19(1)
decision could be disregarded with
40
impunity. in Parliament, which manifested the

diversity of the nation and represented
25. To the extent that the 1st respondent was
the will of the people and exercised their
well aware of, but did not comply with the
sovereignty.
mandatory provisions of section 19(1) of
the Act which required him to appeal the 29. The appellant did not discriminate
Board’s decision to the Minister, whose against the gay and lesbian community in
decision was then appealable to the High rejecting the proposed names. Freedom
Court as stipulated under section 19(3) of association that was guaranteed under
of the Act, the High Court should have article 36 of the Constitution was not
directed the applicant to first exhaust absolute. It could be limited in terms of
the statutory remedy. In that regard, article 24(1) of the Constitution.
the High Court had no jurisdiction to
30. Sexual orientation simply referred
entertain the petition. A decision arrived
to a person’s sexual identity or self-
at by a court that lacked jurisdiction
identification; in other words, the
was a nullity, even if the court would
inclination of an individual with respect
have arrived at the same decision had it
to heterosexual, homosexual and bisexual
determined the dispute procedurally and
behaviour. There was scientific literature
at the right time.
that showed that sexual orientation, as
26. Section 162 of the Penal Code addressed opposed to a person’s gender, was not
itself to unnatural offences and fixed but fluid. Sections 162, 163 and
prescribed lengthy custodial sentences 165 of the Penal Code referred to acts or
to any person who committed such offences that were committed by persons
an offence. Section 163 of the Penal out of their preferred unnatural sexual
Code criminalized attempts to commit orientation, and that was why they were
unnatural offences while section 165 referred to as unnatural offences.
of the Penal Code prohibited indecent
31. Article 27(4) of the Constitution
practices between males. The appellant’s
prohibited discrimination on the basis
rejection of the proposed names was for
of a person’s sex (gender), not sexual
the reason that the proposed names were
orientation. There was a reason for
inconsistent with the written law. Unless
the distinction. Other than gay and
and until the said sections of the law
lesbian liaisons, there were other sexual
were finally declared unconstitutional
orientations that were not permitted by
they remained part of Kenya’s penal laws
Kenya’s law, for example paedophilia,
and had to be observed accordingly.
that was, sexual attraction towards
27. For as long as sections of Kenya’s children.
penal law outlawed homosexuality and
32. The definition of sexual orientation
lesbianism, it would be unlawful to
according to Yogyakarta principles
promote and give succor to any process
was quite different and unacceptable
or registration of any organization
in Kenya. The Yogyakarta principles,
that could undermine the law. The law
a set of principles relating to sexual
granted discretionary power to the
orientation and gender identity, defined
Director to accept or reject a proposed
sexual orientation as being understood
name, it was not demonstrated that the
to refer to each person‘s capacity for
Director exercised that jurisdiction in an
profound emotional, affectional and
injudicious manner.
sexual attraction to, and intimate and
28. Whether sodomy and lesbianism should sexual relations with, individuals of a
be decriminalized or not was a very different gender or the same gender or
emotive issue that conjured deep seated more than one gender.
constitutional, moral and religious
33. Kenya’s law did not permit homosexual
ideologies. They were issues that at best,
and lesbian sexual practices, just as it
ought to be left to the people to decide,
outlawed sexual escapades between adults
either directly through a referendum
and children. It would be unthinkable,
or through their elected representatives
for example, for paedophiles to argue
41
that they were entitled to freedom of laws. The appellant was not obliged to
association without discrimination on accept a name that it truly believed was
the basis of their sexual preferences and repugnant to or inconsistent with the
therefore demand registration of, for law. The proposed NGO had to have
example a paedophiles human rights objectives that were not illegal according
protection association. The appellant to any law.
would not be right if it were to permit
37. The Kenyan Constitution protected
registration of such NGO.
family and Kenyan culture. There was
34. The freedom of association of gays a lot of pressure exerted from within
and lesbians in Kenya could lawfully and without to disregard some of
be limited by rejecting registration of a Kenya’s constitutional, moral, religious
proposed NGO, as long as Kenya’s laws and cultural values and embrace
did not permit their sexual practices. practices that were seen as more trendy,
There were instances where the law progressive and modern, all in the name
permitted positive constitutional or of protecting constitutional liberties.
statutory discrimination, for example, There was a danger in so doing. As a
prohibition of child adoption by sovereign nation, the Constitution came
homosexual couples. Gender identity after many years of agitating for it and
and sexual orientation were two different was subjected to a referendum. The
concepts. values and principles that it espoused
had to be respected.
35. Just like the freedom from discrimination
and other constitutional rights, all 38. The Judiciary should act very
rights or fundamental freedom, circumspectively whenever it was called
including freedom of association, were upon to pronounce itself on an issue that
subject to the extent authorized by the was argued, debated and eventually voted
Constitution or other written law. A upon by millions of Kenyans. One such
democratic society was governed by issue was that of the family, which was
laws. Kenya’s laws were based on the covered by article 45 of the Constitution.
moral principles of Kenya’s society and The Constitution recognized the family
had to be respected. It could not be right as the natural and fundamental unit of
that every person, including persons society and the necessary basis for social
whose practices were not permitted order. It was therefore recognized and
by Kenya’s laws, had unbridled right to protected by the State. The Constitution
form an association of whatever nature. further recognized the right to marry
a person of the opposite sex. By
36. The words every person in article 36
implication, any association that did not
of the Constitution in their proper
promote family values went against the
context had to be taken to mean the
spirit of article 45 and it was appropriate
right of any sane, law-abiding adult to
for the appellant to reject its registration.
form, join or participate in the activities
of a lawful association that accorded Appeal dismissed, each party to bear own costs.
with Kenya’s Constitution and other
42
High Court
The Chief Justice Practice Directions cannot take away the High Court’s
unlimited original jurisdiction in criminal and civil matters.
Shakeel Ahmed Khan & another v Republic & 4 others [2019] KLR - HCK
Miscellaneous Criminal Application 56 of 2019
High Court at Mombasa
M Thande, J
May 3, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Constitutional Law- fundamental rights and seeking anticipatory bail/bond pending

freedoms-enforcement of fundamental rights arrest and/or charges in relation to any
and freedoms-rights to fair trial and access to allegations concerning the acquisition and/
justice-transfer of a suit from one station to or compensation in respect of a parcel of
another-claim that transport and accommodation land. The applicants also sought that the
expenses would be unbearable if the suit was to be respondents be restrained from arresting,
transferred from Mombasa to Nairobi-whether in detaining, harassing and intimidating them.
the transfer of the suit from Mombasa to Nairobi
The application for bail/bond was opposed
there would be violations of the applicants’ rights
by the respondents. Additionally, the 4th
to a fair trial and access to justice-Constitution of
respondent made an application seeking the
Kenya, 2010, articles 25(c) & 48.
transfer of the suit to the Anti-Corruption
Constitutional Law-interpretation of and Economic Crimes Division (ACEC
constitutional provisions-interpretation of Division) established in the High Court
article 79 of the Constitution-establishment of Kenya at Nairobi. The application was
of an independent ethics and anti-corruption premised on the ground that the Chief Justice
commission-whether the word ‘independent’ made the Practice. According to the Practice
had to be part of the name of the commission Directions, it was in the interest of justice and
established under article 79 of the Constitution- consistency in the administration of justice
Constitution of Kenya 2010, article 79. and expediency that the application be heard
and determined by the Anti-Corruption
Statutes-subsidiary legislation-interpretation of
and Economic Crimes Division (ACEC) in
direction 2 of the Chief Justice Practice Directions
Nairobi.
2016-where the subsidiary legislation was couched
in mandatory terms and required anti-corruption In support of their application for bail/
and economic crimes suits to be filed in Nairobi- bond, the applicants contended that the
whether subsidiary legislation could take away Ethics and Anti-Corruption Authority was
the High Court’s unlimited original jurisdiction not established as per the requirements of
in criminal and civil matters-Constitution of article 79 of the Constitution as the word
Kenya, 2010, article 165 (3), Chief Justice Practice ‘independent was missing in its name.
Directions, 2016, direction 2. According to the applicants the commission
as established could not exercise power or
Jurisdiction-jurisdiction of the High Court-bail
authority. The applicants stated that the
and bond-anticipatory bail/bond-application for
transfer of the suit to Nairobi would violate
anticipatory bail/bond pending arrests-whether
their rights of access to justice and fair trial.
the High Court could grant anticipatory bail/
bond where the applicants were charged in a Issues
different (ACEC) division of the High Court in i. Whether the Chief Justice Practice
Nairobi-Constitution of Kenya (Protection of Directions took away the High Court’s
Rights and Fundamental Freedoms) Practice and unlimited original jurisdiction in
Procedure Rules, 2013, rule 8. criminal and civil matters by stating
Brief facts in mandatory terms that Anti-
Corruption and Economic Crimes
The applicants filed the application suits should be filed in Nairobi.
43
ii. Whether the Ethics and Anti- “the” preceding the name, and provided
Corruption Commission was that Parliament should enact legislation
rendered inoperative by the legislative to establish the Independent Ethics and
amendment which removed the word Anti-Corruption Commission. Then
“independent” from its name. Parliament would have had no discretion
iii. Whether in enacting the Ethics and or option but to name it as such.
Anti-Corruption Commission Act, 3. Parliament clothed the Ethics and
2011 Parliament failed to comply Anti-Corruption Commission with
with article 79 of the Constitution independence from any person or
which required Parliament to authority. Section 28 of the Ethics and
enact legislation to establish an Anti-Corruption Commission Act, 2011
Independent Ethics and Anti- provided that the Commission should, in
Corruption Commission. the performance of its functions, not be
iv. Whether in the transfer of the suit subject to the direction or control of any
from Mombasa High Court to the person or authority except as provided
Anti-Corruption and Economic in the Constitution and the Act.
Crimes division in Nairobi the
4. Direction 6 of the 2016 Practice
applicant’s rights of access to justice
Directions listed the matters that should
and fair hearing would be violated.
be heard by the ACEC Division. It
Held included cases relating to corruption
1. The Chief Justice had no authority and economic crimes filed under
whatsoever to take away jurisdiction the Anti-Corruption and Economic
from any court or to confer jurisdiction Crimes Act, 2011. The matter herein
to any court. The Chief Justice as related to corruption and economic
head of the Judiciary had the powers crimes. Direction 2 of the 2016 Practice
under section 16 of the High Court Directions required that all cases such as
(Organization and Administration) the instant which involved corruption
Act to establish sub-registries of the and economic crimes should be filed in
ACEC Division and indeed full ACEC Nairobi.
Divisions outside Nairobi. The failure to 5. The 2016 Practice Directions were
do so had the net effect of stripping the amended vide Kenya Gazette Notice No.
High Court in stations outside Nairobi 7262 of 2018 being the 2018 Practice
of the jurisdiction conferred upon it by Directions. Direction 3 thereof provided
the Constitution. that the Chief Justice would establish
2. Article 79 of the Constitution required additional sub-registries outside
the Parliament to enact legislation to Nairobi. Regrettably, no sub-registry
establish an independent ethics and was established in Mombasa.
anti-corruption commission. It had to 6. Direction 4 of the Practice Directions
be noted that the indefinite article “an” laid down the overriding objective of
preceded the commission referred to. the Practice Directions which was the
It meant that the commission to be just, expeditious, proportionate and
established in the legislation to be enacted accessible adjudication of disputes
by Parliament did not necessarily have related to corruption and economic
to be named the Independent Ethics crimes. To direct that the matter be
and Anti-Corruption Commission. The transferred to the ACEC Division in
Commission did not also have to have the Nairobi would delay the hearing of
word “independent” as part of its name. the same. The intention of the Practice
Indeed, Parliament could have called Directions to facilitate the efficient and
the commission “Tume ya Maadili na timely disposal of the matter would be
kupambana na Ufisadi” or any other name defeated. As long as sub-registries or
it deemed fit and still be in compliance divisions were not established outside
with the requirement in article 79 of Nairobi, the Practice Directions would
the Constitution. If article 79 of the not enhance the overriding objective but
Constitution had the definite article would do the exact opposite including
44
increasing the costs of justice. The just, expeditious, proportionate and

Practice Directions would also fly in the accessible adjudication of disputes
face of the constitutional imperative that related to corruption and economic
justice should not be delayed. crimes.
7. Allowing the application would militate Application for the transfer of the suit dismissed.
against the overriding objective of Costs would be in the cause.
the very Practice Directions of the
Advocates working in Public Service are entitled to a non-practising
allowance or prosecutorial allowance
Erastus K Gitonga & 4 others v National Environmental Management Authority & another
[2019] KLR - HCK
Cause 547 of 2018
Employment and Labour Relations Court at Nairobi
B Ongaya, J
April 10, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Employment Law-discrimination in and prosecutorial allowances which they

employment-what amounts to discrimination alleged to be entitled to after having worked
in employment-effect of pay of different wages as legal officers and public prosecutors for
for equal work or work of equal value-whether the respondent.
the denial of the non-practising allowance Issues:
and prosecutorial allowance by the respondent i. Whether advocates working in public
amounted to discrimination and unfair labour service were entitled to non-practising
practices-Employment Act, 2007, section 5. allowances and prosecutorial allowances.
Employment Law-contract of service- ii. Whether an employer in public service
particulars of a contract of service-job description was bound to comply with the law,
and remuneration-criterion to be used where an regulations, and policies issued or
employee claimed an allowance and other benefits emanating from the Public Service
that were not in the written contract of service- Commission in the exercise of its
whether advocates working in Public Service constitutional public service functions
were entitled to a grading equivalent to those and powers.
working at State Law Agencies when computing iii. What was the criterion to be used where
the non-practising allowances and prosecutorial an employee claimed an allowance and
allowances- Employment Act, 2007, section 10. other benefits that were not contained in
Employment Law-contract of service-terms in a the written contract of service?
contract of service-claim that a contract of service iv. Whether the advocates were entitled to
included a term that allowed for certain employees a grading equivalent to those working
to be paid non-practising allowances-party that at State Law Agencies when computing
bore the burden of proving or disproving an the non-practising allowances and
alleged term of employment-Employment Act, prosecutorial allowances.
2007, section 10 (7). v. Whether the denial of the non-practising
allowances and prosecutorial allowances
Brief Facts:
amounted to discrimination and unfair
The claimants were advocates of the High labour practices.
Court of Kenya employed by the respondent
Held:
as legal officers on a full-time basis, and
on permanent and pensionable terms of 1. The respondent was not one of the
service. After working for some time they entities excluded from the Commission’s
were appointed and gazetted as public constitutional functions and powers.
prosecutors by the Director of Public Although, the respondent was a body
Prosecutions for purposes of cases arising corporate established under the
under the Environmental Management and Environmental Management and Co-
Co-ordination Act. The claimants were ordination Act, in exercise of its statutory
claiming both non-practising allowances functions and powers particularly
45
recruiting, appointing, promoting, if the respondent failed to specifically

disciplining, removing public officers provide for the terms of the circular in
and any other human resource function, the claimants’ contracts of service, the
it was strictly bound to comply with the Court had jurisdiction to correct the
law, regulations and policies as would be unjustified omission.
in force and as issued or promulgated by 6. Under section 10(1) of the Employment
the Commission. Act, 2007 particulars of a written
2. The respondent’s exercise of human contract of service included job
resource or employment functions description and remuneration. The
and powers, as envisaged in section ranks, grades or job groups were clearly
16 and other provisions of the part of the job description and applicable
Environmental Management and Co- remuneration like in the instant case
ordination Act, had to be construed where the allowances were pegged on
and brought to conformity with the the grading by the circulars. Section
constitutional functions and powers 10 (7) of the Employment Act, 2007
of the Public Service Commission provided that if in any legal proceedings
as amplified in the provisions of the an employer failed to produce a written
Public Service Commission Act, 2017. contract or the written particulars
The respondent and other public prescribed in subsection (1) the burden
bodies or authorities falling under the of proving or disproving an alleged
Commission’s constitutional authority term of employment stipulated in the
were bound to undertake their human contract should be on the employer.
resource functions in accordance with The respondent failed to discharge
the provisions of the Public Service the statutory burden to disprove the
Commission Act, 2017 and the public equivalency of the job groups or ranks as
service regulations and policies as would urged by the claimants. The allowances
be put in place by the Commission from as claimed applied to the claimants’
time to time. contract of service and the respondent
3. Where an employer in public service failed to include the equivalency of its
experienced difficulties in implementing grading structure in consonance with the
general public service regulations, grading in the circulars so as to confer
policies, decisions, and directives as the claimants the two allowances in the
had been issued by the Commission, issue. In absence of any other material
the employer should seek and obtain before the Court on the equivalency of
from the Commission, the variation the grades, the claimants’ established
or clarifications and alterations being that on a balance of probability, the
sought. equivalency of grades as urged were
applicable.
4. The circular on payment of non-
practising allowance to employees in 7. Every person had the right to fair
the legal subsector of the public service labour practices as per article 41 (1) of
applied to the claimants’ service because the Constitution. Article 41 (2) of the
it clearly applied to the entire public Constitution enumerated the rights of
service. It appeared to apply to all every worker which included the right
lawyers in the public service and for so to fair remuneration. Articles 27(4)
long as the claimants established that and (5) of the Constitution prohibited
they were in public service with similar discrimination by the state or by any
professional legal duties, they would be person. Section 5 of the Employment
entitled to the allowance even without Act, 2007 provided that an employer
being gazetted as prosecutors. should promote equal opportunity in
employment and strive to eliminate
5. From the circular, the use of prosecutorial
discrimination in any employment
allowance was meant to simply
policy or practice. No employer should
designate the allowance and not to have
discriminate directly or indirectly,
it paid exclusively to those involved
against an employee or prospective
in criminal prosecutions. The circular
employee or harass an employee or
was binding upon the respondent and
46
prospective employee. An employer had upon arbitrary or unreasonable grounds.

to pay his employees equal remuneration The respondent failed to show that the
for work of equal value. circulars were not intended to apply
8. The Public Service Commission Human to the claimants. The intention in the
Resource Policy, 2016 provided for circular was that the allowances applied
non-discrimination in employment and to all in the legal subsector towards
that the Government should promote harmonisation of their terms of service.
equality of opportunity in employment Application allowed.
and would not discriminate directly or
Orders:-
indirectly against an employee on any
ground. Article 2 of the International i. The declaration that the respondent subjected
Labour Organisation Discrimination the claimants to unequal treatment amounted
(Employment and Occupation) to discrimination and unlawful labour
Convention, 1958 provided that each practice by denying them a non-practice
Member for which the Convention allowance and prosecutorial allowance.
undertook to declare and pursue a ii. The declaration that the respondent’s action
national policy designed to promote, of not paying the 1st to 5th claimants a non-
by methods appropriate to national practicing allowance and prosecutorial
conditions and practice, equality of allowance was unlawful, wrongful and
opportunity and treatment in respect unfair.
of employment and occupation, with a iii. The respondent to pay non-practising
view to eliminating any discrimination allowance accruing to the claimants from the
in respect thereof. date of filing the claim and for the duration
of service of the claimants. The rate of the
9. The failure to pay the claimants the
allowance should be as issued by applicable
two allowances amounted to adverse
government circulars or otherwise as would
or disadvantageous treatment that was
be set by a lawful competent authority.
not equal to the other public officers
iv. The claimants should serve the judgment
holding similar offices. The respondent
upon the Public Service Commission, within
had subjected them to unequal pay
7 days from the date of the judgment, towards
by denying them the two allowances
the Commission’s consideration of issuing
because persons holding similar
the relevant Gazette Notice under section 98
positions in the public service continued
of the Public Service Commission Act, 2017
to enjoy the allowances. The principle
to harmonize prevailing grading levels and to
that equal work should receive equal pay
provide for equivalency of job groups, grades,
in its true form would be extended to an
and ranks applicable in the public service or
analogous situation, namely, that work
bodies under its constitutional and statutory
of equal value should receive equal pay.
functions and powers, the Commission to
Those premises had not been enshrined
consider publishing the Gazette Notice not
as principles of law in the unfair labour
later than January 2, 2020.
practice definition. They were principles
v. The respondent to pay the claimants’ costs of
of justice, equity, and logic which would
the suit.
be taken into account in considering
whether an unfair labour practice had
been committed. For example, the
payment of unequal pay for equal work
or work of equal value in the context of
unfair discrimination.
10. The respondent denied the claimants
the two allowances that were payable
to others in public service performing
similar work or work of equal value as
was performed by the claimants. The
denial of the two allowances amounted
to unequal treatment and therefore
unfair discrimination that was founded
47
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Well received, thanks.

Hon. Justice Fred A It is always a pleasure to know that you have been
Ochieng re-affirmed.
High Court of Kenya
But even when your decision is upset, it is important
at Nairobi
to know, so that you can make the necessary
adjustments.
Hon. Christopher
Thank you for the feedback.
Yalwala - DR
High Court of Kenya at
Bungoma
Hon. Barbara Ojoo -

PM Received with thanks.
Kibera law Courts
Hon. Justice Byram

Ongaya
High court of Kenya at Thank you for the information.
Nairobi
48
Restating the Law

MAXIMS OF EQUITY
 Equity considers that done what ought to be done
 Equity will not suffer a wrong to be without a remedy
 Equity delights in equality/Equality is equity (Aequalitus est quasi equitas)
 One who seeks equity must do equity
 Equity aids the vigilant not the indolent
 Equity imputes an intent to fulfill an obligation
 Equity acts in personam (i.e. on persons rather than on objects)
 Equity abhors a forfeiture
 Equity does not require an idle gesture
 He who comes into equity must come with clean hands
 Equity delights to do justice and not by halves
 Equity will take jurisdiction to avoid a multiplicity of suits
 Equity follows the law
 Equity will not assist a volunteer
 Equity will not complete an imperfect gift
 Where equities are equal, the law will prevail
 Between equal equities the first in order of time shall prevail
 Equity will not allow a statute to be used as a cloak for fraud
 Equity will not allow a trust to fail for want of a trustee
 Equity regards the beneficiary as the true owner
49
Legislative Updates
By Christine Thiong’o & Rachel Muriithi, Laws of Kenya Department
T
his article presents a summary of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers the period between
5th April, 2019 and 8th May, 2019.
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
5th April, 2019 11 Engineers Rules, These Rules are made by the Engineers Board
2019 of Kenya, with the approval of the Cabi-
net Secretary for Transport, Infrastructure,
(L.N 18/2019) Housing, Urban Development and Public
Works, in exercise of the powers conferred by
section 58 of the Engineers Act, 2011.
The Rules provide for:
i. Registration of Engineers;
ii. Complaints and Discipline by
the Board;
iii. Training and Continuous Pro-
fessional Development; and
iv. General Provisions.
The Engineers Registration Regulations,
1971 (L.N. 196/1971) and Gazette Notices
5720/2004 and 5721/2004 are hereby re-
voked.
3rd May, 2019 17 Judiciary Fund The Chief Justice makes these Regulations in
Regulations, 2019 exercise of the powers conferred by section
14 of the Judiciary Fund Act, 2016 (No. 16 of
(L.N. 33/2019) 2016).
These Regulations shall apply to all matters
relating to the financial management of the
Fund. The administration of the Fund is
vested in the Chief Registrar.
The Regulations apply to a judicial officer or
Judiciary staff in exercise of any powers and
functions relating to the administration of
the Fund whether in exercise of delegated
authority or otherwise.
The Regulations address the following
matters:
i. Budget Preparation;
ii. Utilization of the Fund;
iii. Expenditure in Relation to
Human Resources;
iv. Imprest Management;
v. Accounts And Reporting;
vi. Internal Audit and Risk
Management; and
vii. Miscellaneous Provisions.
51
8th May, 2019 19 University of Embu This Charter is certified by the Cabinet
Charter, 2016 Secretary Ministry of Education, Science
and Technology in exercise of the powers
(L.N. 64/2019) conferred by section 19 of the Universities
Act 2012 (No. 42 of 2012).
The Charter establishes the University of
Embu, which shall be a body corporate with
perpetual succession and a common seal.
The University is the successor of Embu
University College constituted under the
Embu University College Order, 2011 (L.N.
No. 65 of 2011), which is now repealed.
The Charter also lays out the following:
i. Membership and Governance of
the University of Embu;
ii. Management of the University
of Embu;
iii. Financial Provisions; and
iv. Miscellaneous Provisions.
31st May, 2019 23 Description of This Notice is issued by the Central Bank of
New Issue of Fifty, Kenya in exercise of the power conferred by
One Hundred, Article 231 (2) of the Constitution of Kenya,
Two Hundred, Five 2010 and section 22 (2) of the Central Bank of
Hundred and One Kenya Act (Cap. 491).
Thousand Shillings It determines and notifies the denominations,
Kenya Currency inscriptions, forms, material and
Notes characteristics of the new fifty shillings, one
hundred shillings, two hundred shillings, five
(L.N. 72/2019) hundred shillings and one thousand shillings
currency notes to be issued by the Central
Bank of Kenya.
The front of all currency notes shall-
a. bear the image of Kenyatta
International Convention Centre,
a skyline image of Nairobi, a rising
sun, the Coat of Arms and a dove;
and
b. bear the signatures of the Governor
of the Central Bank of Kenya, and
of the Principal Secretary to the
National Treasury.
Further, this Legal Notice details the primary
themes, reverse images and note sizes of the
listed currency; including the main colours
and features of each currency.
The new banknotes shall circulate alongside
those previously issued and not withdrawn.
52
Legal Supplements
LEGISLATIVE UPDATE: SUMMARY OF LEGISLATION ENACTED BY PARLIAMENT
By Christine Thiong’o & Rachel Muriithi, Laws of Kenya Department
This is a synopsis of legislation in the form of Bills and Acts of Parliament that have been
enacted in the period between March-May, 2019.
A. ACTS OF PARLIAMENT
ACT PETROLEUM ACT, 2019

Act No. No. 2 of 2019
Commencement 28th March 2019
Objective This Act provides for a framework for the contracting, exploration, development
and production of petroleum; cessation of upstream petroleum operations: to give
effect to relevant articles of the Constitution in so far as they apply to upstream
petroleum operations, regulation of midstream and downstream petroleum opera-
tions.
The Act repeals the Petroleum (Exploration and Production) Act (Cap 308).
ACT URBAN AREAS AND CITIES (AMENDMENT) ACT, 2019

Commencement 28th March 2019
Objective The Act amends the Urban Areas and Cities Act, 2011 (No. 13 of 2011) in order to
review the criteria provided for classifying an area as a city, municipality, town or
market centre.
ACT ASSUMPTION OF THE OFFICE OF GOVERNOR ACT, 2019

Commencement 31st May, 2019
Objective This Act provides for the procedure and ceremony for the assumption of the Office
of Governor by the Governor-elect; and for connected purposes.
The Act further amends the:
i. County Governments Act (No. 17 of 2012); and
ii. Elections Act (No. 24 of 2011).
B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY NATIONAL COHESION AND INTEGRATION (AMENDMENT) BILL, 2019
BILL
Dated 13th March, 2019
Objective This Bill seeks to amend the National Cohesion and Integration Act, 2008 (No. 12
of 2008) in order to align it with the Constitution. It amends the procedure for
appointing Commissioners under the Act. This follows the judgment by the High
Court to the effect that section 17 of the Act is unconstitutional. There is, therefore,
need to amend the Act to align it with the Constitution.
The Bill also seeks to provide for matters incidental to the review of the Act includ-
ing providing certain clarifications relating to the qualification for appointment as
a member of the Commission and their term of office.
Sponsor Maina Kamanda, Member of Parliament, National Assembly.
53
NATIONAL ASSEMBLY PUBLIC ORDER (AMENDMENT) BILL, 2019

BILL
Objective The principal object for this Bill is to amend the Public Order Act (Cap. 56) to make
provision for organizers of public meetings or public procession leading to loss
of property, life or earnings to take responsibility for the loss and compensate the
affected persons.
Sponsor Simon King’ara, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY EMPLOYMENT (AMENDMENT) BILL, 2019.

BILL
Objective The Principal objective of this Bill to amend the Employment Act, 2007 (No. 11 of
2007) in order to afford pre-adoptive leave to parents who apply for the adoption
of children who are not their natural children born to them by birth.
Sponsor Martha Wangari, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY PUBLIC SERVICE (VALUES AND PRINCIPLES) (AMENDMENT) BILL, 2019
BILL
Objective The objective of this Bill is to amend the Public Service (Services and Principles)
Act (No. 1A of 2015) to require all state organs in the national and county govern-
ments and state corporations to submit annual reports on details of the human
resource in constitutional Commissions, independent offices and County Public
Service Boards and County Assembly Service Board. The reports should contain
details outlining the total number of employees and highlighting their gender, age,
county of birth and county of residence.
Sponsor Andrew Mwadime, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY KENYA INFORMATION AND COMMUNICATIONS (AMENDMENT) BILL,

BILL 2019
Objective The principal object of this Bill is to amend the Kenya Information and Commu-
nications Act (Cap. 411A) to enable persons operating a telecommunication sys-
tem or providing a telecommunication service to engage in any other business and
provide for the separation of such other businesses from the telecommunication
business. The amendments will provide for a regulation framework for such busi-
nesses as the proposed amendment provides for reporting by the Communications
Authority on compliance with the proposed provision and penalty for non-com-
pliance. The amendment will further aid in control of anti-competitive practices
by the large industries in the sector.
The Bill further seeks to amend provisions of the Kenya Information and Commu-
nications Act to make provision for quality of service to consumers making calls
by compelling licensees in the telecommunications industry to invest in infrastruc-
ture that will guarantee quality of service for consumers making calls.
Sponsor Elisha Odhiambo, Member of Parliament, National Assembly.
54
NATIONAL ASSEMBLY STATUTE LAW (MISCELLANEOUS AMENDMENT) BILL, 2019

BILL
Objective The Statute Law (Amendment) Bill, 2019 seeks to make various amendments to the
following statutes:
(i) Districts and Provinces Act, 1992 (No. 5 of 1992)
(ii) Microfinance Act, 2006 (No. 19 of 2006)
(iii) Merchant Shipping Act, 2009 (No. 4 of 2009)
(iv) Alcoholic Drinks Control Act, 2010 (No. 4 of 2010)
(v) Tourism Act, 2011 (No. 28 of 2011)
(vi) Public Finance Management Act, 2012 (No. 18 of 2012)
(vii) Kenya School of Law Act, 2012 (No. 26 of 2012)
(viii) Legal Education Act, 2012 (No. 27 of 2012)
(ix) Prevention of Terrorism Act, 2012 (No. 30 of 2012)
(x) Kenya Law Reform Commission Act, 2013 (No. 19 of 2013)
(xi) Value Added Tax Act, 2013 (No. 35 of 2013)
(xii) Wildlife Conservation and Management Act, 2013 (No. 47 of 2013)
(xiii) Companies Act, 2015 (No. 17 of 2015)
(xiv) Insolvency Act, 2015 (No. 18 of 2015)
(xv) Court of Appeal (Organization and Administration) Act, 2015 (No. 28 of
2015)
Sponsor Aden Duale, Leader of Majority Party, National Assembly.
NATIONAL ASSEMBLY SECTIONAL PROPERTIES BILL, 2019

BILL
Objective The principal objective of this Bill is to provide for the division of buildings into
units to be owned by individual proprietors and common property to be owned by
proprietors of the units as tenants in common.
It also provides for the use and management of the units and common property
and addresses the contemporary challenges associated with ownership of property
in a sectional property environment.
The Bill proposes to repeal the Sectional Properties Act (No. 21 of 1987).
Sponsor Aden Duale, Leader of Majority, National Assembly.
NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

BILL MENT) BILL, 2019
Objective The principal object of this Bill is to amend the First Schedule to the Independent
Electoral and Boundaries Commission Act, 2011 (No. 9 of 2011) in order to pro-
vide for a mechanism of appointing members of the Independent Electoral and
Boundaries Commission.
Sponsor Jude Njomo, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY NATIONAL DROUGHT MANAGEMENT AUTHORITY (AMENDMENT) BILL,

BILL 2019
Dated 5th April, 2019
Objective The principal object of the Bill is to amend the National Drought Management Au-
thority Act, 2016 (No. 4 of 2016) by amending the sections providing for the estab-
lishment of the coordinating committees and establishment of the management of
the National Drought Emergency Fund in the Act in order to enable the enactment
of the National Drought Emergency Fund, Regulations under the Public Finance
Management Act, 2012 (No. 18 of 2012).
Sponsor Aden Duale, Leader of Majority, National Assembly.
55
NATIONAL ASSEMBLY PUBLIC SERVICE COMMISSION (AMENDMENT) BILL, 2019

BILL
Objective This Bill seeks to amend the Public Service Commission Act, 2017 (No. 10 of 2017)
to prescribe the mandatory retirement age of sixty years in the Act, without any
exceptions. The amendments are meant to increase the job vacancies available to
Kenya Citizens below the age of sixty years.
The Bill also intends to address the issue of an officer acting in a position for more
than six months. The period of six months prescribed should provide adequate
time for an organisation to recruit and substantively fill the position. Failure to
comply with this provision will result in the officer not earning any acting allow-
ances.
Sponsor Benjamin Gathiru Mwangi, Member of Parliament, National Assembly.
Objective TRAFFIC (AMENDMENT) BILL, 2019

Objective The principal object of this Bill is to amend the Traffic Act (Cap 403) to make pro-
vision for the standardization of the use of all roads classified as superhighways.
Sponsor Jude Njomo, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY COUNTY GOVERNMENTS’ RETIREMENT SCHEME BILL, 2019

BILL
Objective The principal object of this Bill is to establish the County Governments’ Retire-
ment Scheme as a mandatory Scheme for all County Government Officers; pro-
vide for the establishment of the Scheme’s Board of Trustees and provide for the
Scheme’s management and administration. The Bill proposes to have the scheme
offer lump sum payments as provident, periodic payments as pensions and income
drawdowns. The proposed Scheme will provide one universal scheme for all the
forty seven county governments besides being open to other person approved by
the Board.
Sponsor Chachu Ganya, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

BILL MENT) (NO. 2) BILL, 2019
Objective This Bill seeks to amend the Independent Electoral and Boundaries Commission
Act (No. 9 of 2011) to address two issues. First, to address the lacuna in the law in
terms of the appointment of commissioners when a vacancy arises since paragraph
(2) of the First Schedule to the Independent Electoral and Boundaries Commission
Act does not provide for the subsequent appointment of commissioners. Secondly,
the Bill seeks to amend the Fifth Schedule that is already spent after the first review
relating to the delimitation of boundaries of constituencies and wards.
Sponsor Jeremiah Kioni, Chairperson, Constitutional Implementation Oversight Committee, Na-
tional Assembly.
NATIONAL ASSEMBLY KENYA FOOD AND DRUGS AUTHORITY BILL, 2019

BILL
Objective The objective of this Bill is to establish the Kenya Food and Drugs Authority within
National Government. The Bill provides for the regulation and management of
food, drugs, chemical substances, medical devices and other health technologies.
The Bill also proposes to repeal the Pharmacy and Poisons Board Act (Cap 244) and
the Food, Drugs and Scheduled Substances Act (Cap. 254).
Sponsor Robert Pukose, Member of Parliament, National Assembly.
56
NATIONAL ASSEMBLY CROPS (AMENDMENT) (NO. 2) BILL, 2019

BILL
Objective This Bill seeks to amend the Crops Act, (No. 16 of 2013) to ensure that for the
purposes of a favorable balance of trade and balance of payment, coffee shall not be
exported from Kenya in its raw form.
Sponsor Moses Kuria, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY KENYA INSTITUTE OF CURRICULUM DEVELOPMENT (AMENDMENT)

BILL BILL, 2019
Objective This Bill aims to amend the Kenya Institute of Curriculum Development Act (No.
4 of 2013) to enhance disaster risk reduction (DRR) in learning institutions. This is
owing to the fact the school curricula do not provide the learners with education
on safety, particularly on how to conduct security drills, evacuation, first aid, how
to locate explosives, how to sense danger, among other safety-related things.
Sponsor Joyce Emanikor, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2019

BILL
Objective This Bill seeks to regulate rights and obligations relating to assisted reproductive
technology. It aims to regulate the use of assisted reproductive technologies to aid
individuals or couples that have challenges conceiving due to factors associated
with infertility. Furthermore, the Bill aims to regulate the qualifications of health
practitioners who administer assisted reproductive technology in order to protect
recipients of the services.
The Bill contains provisions that define rights touching on, among others, issues
relating to consents preceding assisted reproduction; handling of embryos result-
ing from assisted reproductive technology; protection of the identity, status and
welfare of children borne out of assisted reproduction; and duties of persons who
undergo assisted reproduction and their legal status as parents.
The Bill establishes an Assisted Reproductive Technology Authority to regulate the
processes, licensing, standards, research and infrastructure relating to assisted re-
productive technology.
Sponsor Millie Odhiambo Mabona, Member of Parliament, National Assembly.
NATIONAL ASSEMBLY GAMING BILL, 2019

BILL
Dated 27th May, 2019
Objective The objective of this Bill is to establish an Act of Parliament to provide for the
control and licensing of betting, casinos and other forms of gaming; authorization
of prize competitions and public lotteries, for the establishment of the National
Lottery and the imposition of a tax on gaming.
Sponsor Victor Munyaka, Chairperson, Departmental Committee on Sports, Tourism and Culture,
National Assembly.
C. SENATE BILLS
SENATE BILL PUBLIC FINANCE MANAGEMENT (AMENDMENT) BILL, 2019
Objective The principal object of this Bill is to amend the Public Finance Management Act (No. 18 of
2012) to establish a collaborative framework for collection of revenues by the county gov-
ernments and the National Treasury together with the Kenya Revenue Authority.
Sponsor Agnes Zani, Senator.
57
SENATE BILL CONTROL OF STRAY DOGS BILL, 2019

Objective The principal object of this Bill is to repeal and replace the Rabies Act (Cap. 365) in order
to effectively deal with stray dogs which pose serious human health, dog health and welfare
problems. The Bill also seeks to provide for the power to seize, detain or destroy stray dogs
or stray cats and regulations in case of outbreak or expected outbreak of disease.
The Rabies Act enacted in 1932 was last amended in 1962 and has become outdated. It is
has become necessary to overhaul the Act in order to, among other things, take into account
the provisions of the Fourth Schedule to the Constitution on the functions of county govern-
ments.
Sponsor Mary Seneta, Senator.
SENATE BILL COUNTY TOURISM BILL, 2019

Objective The objective of this Bill is to amend the Tourism Act (No. 28 of 2011) in order to make pro-
visions for local tourism and involve counties in the development, management, marketing
and regulation of local tourism. The Bill also provides for the development, management,
marketing, promotion and licensing of local tourism by county governments.
Sponsor Agnes P. Zani, Senator.
SENATE BILL COMMISSION ON ADMINISTRATIVE JUSTICE (AMENDMENT) BILL, 2019

Objective The principal object of this Bill is to amend the Commission on Administrative Justice Act
(No. 23 of 2011) to provide for the decentralization of the office of the Commission on Ad-
ministrative Justice.
The Bill seeks to ensure that the Commission establishes satellite offices in all counties to
bring its services closer to the people. Under the Bill, all the counties shall have a branch of
the office of the Commission on Administrative Justice which shall ensure that the members
of the counties have easy access to the offices to report their grievances.
The Bill also seeks to repeal the sunset clause on the possible merger of the Commission on
Administrative Justice and the Kenya National Commission on Human Rights as it there is
still need for a body that performs the functions of an Ombudsman in the public sector.
Sponsor Petronila W. Lokorio, Senator.
SENATE BILL NATIONAL MUSEUMS AND HERITAGE (AMENDMENT) BILL, 2019

Objective The principal objective of this Bill is to amend the National Museums and Heritage Act (No.
6 of 2006).
The Bill seeks to give effect to the Fourth Schedule of the Constitution on distribution of
functions between the National Government and the County Governments.
Sponsor Alice Milgo, Senator.
SENATE BILL COUNTY ALLOCATION OF REVENUE BILL, 2019

Objective The principal objective of this Bill is to provide for the equitable allocation of revenue raised
nationally among the county governments for the 2019/2020 financial year and the responsi-
bilities of national and county governments pursuant to such allocation.
Sponsor Mohamed M. Mahamud, Chairperson, Committee on Finance and Budget, Senate.
58
International
Jurisprudence
Botswana High Court declares sections 164(a), (c) and 165 of the Botswana
Penal Code criminalizing homosexual acts between two adults in private as
unconstitutional as they violated the right to liberty, privacy, dignity and non-
discrimination
Letsweletse Motshidiemang v Attorney General; LEGABIBO (Amicus Curiae)
MAHGB-000591-16
High Court of Botswana at Gaborone
M Leburu, A B Tafa, J Dube, JJ
June 11, 2019
Reported by Linda Awuor & Faith Wanjiku
Constitutional Law- fundamental rights nature”

and freedoms-right to liberty, privacy, dignity
and non-discrimination– sexual orientation- Brief Facts
consensual sex between adult same-sex couples The applicant was a 24 year old student of the
in private-whether sections 164(a); 164(c) and University of Botswana and a homosexual.
165 of the Penal Code on unnatural offences According to him, being homosexual was
were ultra vires the Constitution, in that they not something new in his life but that it
violated the right to liberty, privacy, dignity and was something that he had learnt to live
non-discrimination -Constitution of Botswana, with whilst growing up since the age of ten.
sections 3, 9 and 15; Penal Code, sections 164 (a); Whilst growing up, he knew that he was
(c) and 165 different and such difference had long been
Constitutional Law- fundamental rights and recognized by his parents.
freedoms- right to privacy-sexual orientation- The applicant was taunted and called
consensual sex between adult same-sex couples degrading names because of his disposition.
in private -unconstitutionality of private It was at junior school, after he had managed
indecency- where a court could severe a provision to summon his guts and courage that he
so as to remedy its unconstitutionality-nature expressed his feelings to another boy and
and scope of the doctrine of severability-whether informed him that he loved him. As an adult
section 167 of the Penal Code, which sought to now, it was the applicant’s averment that
regulate conduct deemed grossly indecent, done nothing had changed, he still loved men and
in private was a violation of one’s privacy or he was sexually attracted to men. Currently,
liberty and ought to be severed to remedy its he was in a sexually intimate relationship
unconstitutionality with a man.
Statutes- interpretation of statutes- interpretation The impugned sections 164(a),(c) and 165 of
of sections 164 (a); (c) and 165 of the Penal the Penal Code of Botswana (Penal Code),
Code-unnatural offences- where the provisions according to the applicant, proscribed and
of sections 164 (a);(c) and 165 were contested prohibited him from exercising, enjoying
for being vague - presumption of validity or and engaging in sexual intercourse with a
constitutionality of a provision of an Act- nature man per anum; which as a homosexual was
and scope of the doctrine of vagueness-whether his only mode of sexual intercourse. He also
section 164(a), section 164(c) and section 165 of alleged that they violated his right to privacy,
the Penal Code should be struck down for being liberty, dignity and non-discrimination.
unconstitutional due to the vagueness of the said
sections; particularly with respect to the meaning Issues
of “carnal knowledge” “against the order of i Whether sections 164(a); 164(c) and
59
165 of the Penal Code on unnatural notions of heteronormativity regulate

offences were ultra vires the constitutional liberties based on sexual
Constitution, in that they violated the orientation. Privacy recognised that
right to liberty, privacy, dignity and everyone had a right to a sphere of private
non-discrimination. intimacy and autonomy which allowed
ii Whether section 167 of the Penal everyone to establish and nurture human
Code, which sought to regulate relationships without interference from
conduct deemed grossly indecent, outside the community. The way in
done in private was a violation which everyone gave expression to their
of one’s privacy or liberty and sexuality was at the core of the area of
ought to be severed to remedy its private intimacy. If, in expressing their
unconstitutionality. sexuality, they acted consensually and
iii Whether section 164(a), section 164(c) without harming one another, invasion
and section 165 of the Penal Code of that precinct would be a breach of
should be struck down for being everyone’s privacy.
unconstitutional due to the vagueness
of the said sections; particularly with 4. Sexuality was a wonderful gift from God.
respect to the meaning of “carnal It was more than genital behavior. It’s the
knowledge” “against the order of way everyone embodied and expressed
nature”. themselves in the world. But all could not
love another person intimately without
Held embodying that love; without using
their bodies to love. And that did involve
1. The Penal Code did not define what
genital behavior. Sexual love was for the
carnal knowledge and the order of nature
purpose of giving and receiving pleasure
were. As a matter of general proposition,
with one’s most intimate partner. It was
it was prudent and logical that words
a means of deepening and strengthening
used in an enactment, should be defined
the intimate union that existed. That
in the same piece of legislation. Where
could only be healthy and good if
there were no definitions, the court as
everyone’s behavior was consistent with
final arbiter, could provide a definition.
who they were and with whom they
The importance of a court-given
loved, and when they were true to their
definition could not be ignored because
own sexuality and orientation.
courts were sources of law.
5. Anal sexual penetration and any attempt
2. In the case of Gaolete v State [1991] carnal
thereof were prohibited and criminalised
knowledge was defined by the court
by sections 164(a), (c) and 165 of the
as sexual intercourse, and the order
Penal Code. Effectively, the applicant’s
of nature was defined as anal sexual
right to choose a sexual intimate partner
penetration. The same definitions were
was abridged. His only mode of sexual
embraced by the highest court of the
expression was anal penetration; but
land in Kanane v the State [2003] (Kanane
the impugned provisions forced him
case) and the instant court was thus
to engage in private sexual expression
bound by such definition. On that basis,
not according to his orientation; but
the provisions of section 164 (a) and (c)
according to statutory dictates. Without
were not vague, having regard to the
any equivocation, his liberty had been
definition accorded thereto.
emasculated and abridged.
3. The choice of a partner, the desire for
6. Sexual intercourse was not just for
personal intimacy, and the yearning
purposes of procreation. It constituted
to find love and fulfilment in human
an expression of love and intimacy. The
relationships had universal appeal,
impugned sections denied the applicant
straddling age and time. In protecting
the right to sexual expression in the only
consensual intimacies, the Constitution
way available to him. Such a denial and
adopted a simple principle: the State
criminalization went to the core of his
had no business to intrude into those
worth as a human being. Put differently,
personal matters. Nor could societal
60
it violated his inherent dignity and self- decriminalise homosexuals’ practices.

worth. All human beings were born free With the greatest of respect and
and equal in dignity. Dignity acted as a deference, the instant court said, dies
core of a diverse but interrelated body venit, or simply put, time had come that
of inalienable rights. Human dignity private same sexual intimacy between
referred to the minimum dignity and adults had to be decriminalised, as it was
belonged to every human being qua thereby proclaimed. The retention of the
human. It did not admit of any degrees. sodomy provisions in the Penal Code,
It was equal for all humans. imposed unconstitutional burden on the
applicant’s fundamental rights of privacy,
7. Criminalising consensual same sex in dignity, liberty and equal protection
private, between adults was not in the of the law; taking into account that the
public interest. Such criminalisation, it applicant’s only available sexual avenue,
had been shown by evidence availed by was per annum.
the amicus, disproportionally impacted
on the lives and dignity of LGBT persons. 10. The constitutional ethos of liberty,
It perpetuated stigma and shame against equality and dignity were paramount. The
homosexuals and rendered them recluse Constitution was a dynamic, enduring
and outcasts. There was no victim within and a living charter of progressive rights;
consensual same sex intercourse inter se which reflected the values of pluralism,
adults. There was no compelling state tolerance and inclusivity. Minorities,
interest that was there, necessitating who were perceived by the majority
such laws. Private places and bedrooms as deviants or outcasts were not to be
should not be manned by sheriffs to excluded and ostracized. Discrimination
police what was happening therein. Such had no place in the world. All human
penal provisions exceeded the proper beings were born equal. According
ambit and function of criminal law in to Nelson Mandela, a paragon and
that they penalised consensual same epitome of humility, dignity, sagacity
sex, between adults, in private, where and tolerance, in response to some
there was no conceivable victim and divergent views that homosexuality was
complainant. un-African he stated that homosexuality
was just another form of sexuality that
8. The impugned penal provisions had been suppressed for years. It was
oppressed a minority and then targeted something that was being lived with.
and marked them for an innate attribute
that they had no control over and which 11. There had to remain a realm of private
they were singularly unable to change. morality and immorality, which
Consensual sex conduct, per anus, was should not be the province of the law,
merely a variety of human sexuality. particularly where there was no victim
Even if the respondent’s public interest or complainant and when such conduct
or morality justification was to be was consensual. In the event that there
subjected to the criterion of reasonable could be indecency with a minor and/
and justifiable in an open democratic or an adult, without the consent of the
society, such justification did not pass said adult, but done in private, there
constitutional muster. The test of what were adequate penal provisions to deal
was reasonably justifiable in a democratic with such infraction. No justification
society was an objective one. There was had been given by the respondent as
nothing reasonable and justifiable by to why a person’s right to privacy and
discriminating against fellow members autonomy ought to be curtailed, relating
of a diversified society. The state had to consensual acts done in private. In any
failed to single out the objective that was event, such curtailment of fundamental
intended to be satisfied by the impugned rights could not be justified within the
provisions. democratic dispensation, nor did such
abridgment satisfy the proportionality
9. In the Kanane case, the Court of Appeal, test. It was accordingly ordered that
in 2003, said time had not yet arrived to the word “private” be and was thereby
61
severed and excised from section 167 of public or private, is guilty of a felony and is
the Penal Code. liable to imprisonment for five years.
Application allowed; costs to the applicant; no Article 1 of the Universal Declaration of
order as to costs in relation to the amicus curiae- Human Rights, 1948 provides that all human
LEGABIBO. beings are born free and equal in dignity
and rights. Article 2 provides that everyone
Orders: is entitled to all the rights and freedoms
(a) Sections 164(a), 164(c) and 165 of set forth in this Declaration, without
the Penal Code (Cap 08:01), Laws of distinction of any kind which includes sex.
Botswana be and were thereby declared Article 7 provides that all persons are equal
ultra vires sections 3, 9 and 15 of the before the law and are entitled without any
Constitution and were accordingly struck discrimination to equal protection of the law.
down;
(b) The word “private” in section 167 There has been case law in Kenya pertaining
of the Penal Code was severed and to issues to do with same sex adult couples.
excised therefrom and the section to be In Eric Gitari v Non- Governmental
accordingly amended. Organisations Co-ordination Board & 4
others [2015] eKLR, the petitioner sought to
Relevance to the Kenyan Situation register an NGO on protection of the human
The Constitution of Kenya, 2010 provides rights of those who belong to the LGBTIQ
for the national values and principles of community. His application was made to the
governance in article 10 (2) (b) to include NGO Co-ordination Board which declined it
human dignity, non-discrimination and contending that the Penal Code criminalized
equality. gay and lesbian liaisons as they went against
the order of nature.
Article 27 provides for equality and freedom
from discrimination and that every person The Court however held that the Constitution
is equal before the law and has the right to of Kenya, 2010 in article 36 granted every
equal protection and equal benefit of the law. person the right to form an association of
Sub-article 4 provides further that the state any kind and that an application to form
shall not discriminate directly or indirectly an association could only be refused on
against any person on any ground, including reasonable grounds. It went on further to
sex. Article 28 provides for human dignity state that the fact that the State did not set
and that every person has inherent dignity out to prosecute people who confessed to
and the right to have that dignity respected be lesbians and homosexuals in the country
and protected. Article 31 provides that was a clear manifestation that such sexual
everyone has the right to privacy which orientation was not necessarily criminalized.
includes the right not to have their person, More importantly, the Penal Code did not
home or property searched. criminalize the right of association of people
based on their sexual orientation, and did
The Penal Code Cap 63 Laws of Kenya not contain any provision that limited the
provides in section 162 that any person freedom of association of persons based on
who has carnal knowledge of any person their sexual orientation.
or permits a male person to have carnal
knowledge of him or her against the order The same case was followed by an appeal
of nature, is guilty of a felony and is liable to at the Court of Appeal by the respondents
imprisonment for fourteen years. in Non-Governmental Organizations
Co-Ordination Board v EG & 5 others
Section 165 provides that any male person [2019] eKLR. The Court of Appeal upheld
who, whether in public or private, commits the High Court’s decision in a majority
any act of gross indecency with another male decision and held that the Constitution
person, or procures another male person to extended the definition of ‘person’ from
commit any act of gross indecency with him, only the natural, biological human being
or attempts to procure the commission of to include legal persons. Neither article 36
any such act by any male person with himself of the Constitution nor the definition of
or with another male person, whether in “person” in article 260 of the Constitution
62
created different classes of persons based another (Amicus Curiae) and the three
on sexual orientation. It further held that judge bench ruled that section 162 (a) (c) of
it was arbitrary to speculate and categorize the Penal Code on unnatural offences and
LGBTIQ as persons who had the propensity section 165 of the Penal Code on indecent
to destroy a society by contravening the practices between males was constitutionally
provisions of the Constitution or the Penal compliant and in conformity with the
Code, or as a group bent on ruining the principles of legality. The High Court further
institution of marriage or culture. held that unless article 45(2) was amended to
recognize same sex unions, it was difficult
In Eric Gitari v Attorney General & another to agree with the petitioners’ argument,
[2016] eKLR, the petitioner brought a petition that, there could be safe nullification of the
before the High Court seeking inter-alia a impugned provisions, whose effect would
declaration of sections 162 and 165 of the be to open the door for same sex unions
Penal Code, Cap 63 to be unconstitutional, and without further violating article 159 (2)
and accordingly void and invalid to the (e) which enjoined the court to protect and
extent that they purport to criminalise promote the purpose and principles of the
private consensual sexual conduct between Constitution.
adult persons of the same sex, as mandated by
articles 2 (4), and 23 (3) (d) of the Constitution Matters of the LGBTIQ are sensitive
of Kenya, 2010. The Court held that the emerging issues currently globally and
matters raised in the Petition were weighty various international jurisdictions are
and had important consequences and raised decriminalizing homosexuality with
substantial questions of law under article Botswana, an African country, being the
165 (3) (d) of the Constitution that deserved latest. The case will therefore serve as an
the constitution of a bench of Judges by the important precedent should Kenya decide to
Chief Justice for hearing and determination. also decriminalize homosexuality or when
there are pending matters to be determined
The bench was constituted in EG & 7 others in courts on the rights of the LGBTIQ
v Attorney General; DKM & 9 others community.
(Interested Parties); Katiba Institute &
Some rights reserved by Dennis Jarvis
It takes an influential leader to excellently raise up leaders of influence ―

Anyaele Sam Chiyson
63
Law Reform
Compilation April - May, 2019
Compiled by Linda Awuor & Faith Wanjiku
LAW REFORM ISSUE BRIEF FACTS & METADATA OF HOLDINGS PERTINENT TO LAW REFORM
JUDGMENT
A. Non-Governmental Organizations 1. The Constitution had ring-fenced its purpose and the
The failure to register the Co-Ordination Board v EG & 5 manner it ought to be construed. After declaring its supremacy in
article 2, the Constitution proceeded in article 10 to bind everyone
Lesbian, Gay, Bisexual, others [2019] eKLR
who applied and interpreted it or any other law or made public
Transgender, Intersex Court of Appeal at Nairobi policy, to the national values spelt out therein including: human
and Queer (LGBTIQ) Civil Appeal No. 145 of 2015 dignity, equity, social justice, inclusiveness, equality, human rights,
Community Rights P N Waki, M K Koome, R N non-discrimination and protection of the marginalized.
Group as an NGO by Nambuye, D K Musinga & M S 2. The principles of the rule of law, participation of the
people, equity, inclusiveness, equality, human rights, transparency
the Non-Governmental Asike Makhandia, JJA
and accountability were binding. The Constitution opened
Organizations March 22, 2019 up further space for application of other principles and values
Board held to be The 1st respondent floated three obtaining in the general rules of international law and the
unconstitutional names under which he sought international instruments Kenya had ratified, such as, the Universal
to register a non-governmental Declaration on Human Rights, the International Covenant on Civil
and Political Rights (ICCPR), and the International Covenant on
organization (proposed NGO) with
Economic, Social and Political Rights (ICESCR).
the appellant, seeking to address 3. The Constitution laid out an expansive Bill of Rights
human rights abuses and violations for the purpose of recognizing and protecting human rights
suffered by the Lesbian, Gay, and fundamental freedoms in order to preserve the dignity of
Bisexual, Transgender, Intersex individuals and communities, promote social justice and the
realization of the potential of all human beings’. In articles 20 (3)
and Queer persons (LGBTIQ)
and (4), it gave an edict to the courts as they applied the Bill of
in Kenya and which request was Rights to develop the law where it did not give effect to a right;
rejected by the appellant’s Executive adopt the interpretation that most favoured the enforcement
Director(Director) precipitating the of a right or fundamental freedom and promote the values that
1st respondent to file a petition at underlay an open and democratic society based on human dignity,
equality, equity, freedom and the spirit, purport and objects of the
the High Court on the ground that
Bill of Rights.
his right to freedom of association, 4. In article 259, the Constitution commanded the manner
dignity, equality and right not to in which it should be interpreted. It also demanded that every
be discriminated against had been provision of the Constitution be construed according to the
violated among other grounds. The doctrine of interpretation that the law was always speaking. The
Constitution had to be interpreted in a manner that eschewed
High Court allowed the petition and
formalism, in favour of the purposive approach and in a holistic
held that the right to equality before manner within its context and in its spirit.
the law would not be advanced if 5. The people in Kenya who answered to any of the
people were denied the right not descriptions in the acronym LGBTIQ, were persons. Article 36 of
to be discriminated against based the Constitution covered the persons in that group. Like everyone
else, they had a right to freedom of association which included
on their sexual orientation. The
the right to form an association of any kind. That was the literal
appellant was aggrieved by the High wording of article 36 (1) which had no hidden meaning. Article
Court’s decision and thus filed the 260 of the Constitution provided further clarity to the definition
instant appeal. of person. Construing ‘person’ to refer only to the sane and law
abiding people would be unduly stretching the ordinary meaning
of the words used in the Constitution.
6. The Penal Code did not criminalize the persons answering
to the description LGBTIQ qua such persons. What it provided
for were specific offences, more specifically, unnatural offences,
attempts to commit unnatural offences, and indecent practices
between males. Those were sections 162, 163 and 165 of the Penal
Code, respectively. Like everyone else, LGBTIQ persons were
subject to the law and would be subjected to its sanctions if they
contravened it. Convicting such persons before they contravened
the law would be retrogressive.
64
7. According to the proposed NGO’s objectives, the

1st respondent intended to register the NGO to among other
things conduct accurate fact finding, urgent action, research and
documentation, impartial reporting, effective use of the media,
strategic litigation and targeted advocacy in partnership with local
human rights groups on human rights issues relevant to the gay
and lesbian communities living in Kenya. On the face of it, there
was nothing unlawful or criminal about such objectives. However,
they never reached the stage of proper consideration by the Board
because the main gate to the boardroom was locked.
8. Article 36 of the Constitution granted every person
the right to form an association of any kind. It also provided that
an application to form an association could only be refused on
reasonable grounds and no person could be compelled to join
an association. That was the breadth of the right of freedom of
association as provided for in the Constitution. It covered every
person and any kind of association. It could only be limited in terms
of law and only to the extent that the limitation was reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom. An individual human being,
regardless of his or her gender or sexual orientation, was a person
for the purposes of the Constitution.
9. The Constitution extended the definition of ‘person’
from only the natural, biological human being to include legal
persons. Neither article 36 of the Constitution nor the definition of
“person” in article 260 of the Constitution created different classes
of persons. There was nothing that indicated that the Constitution,
when referring to ‘person’, intended to create different classes
of persons in terms of article 36 based on sexual orientation.
Moreover, articles 20(3) and (4) of the Constitution provided that a
court adopt the interpretation that most favoured the enforcement
of a right or fundamental freedom and promoted the values that
underlay an open and democratic society based on human dignity,
equality, equity and freedom and the spirit, purport and objects of
the Bill of Rights.
10. Article 20 (1) of the Constitution provided that the Bill
of Rights applied to all persons. Article 259 of the Constitution
provided that the Constitution had to be interpreted in a manner
that advanced human rights and fundamental freedoms. The term
“every person” in article 36 of the Constitution properly construed
did not exclude homosexual person and the 1st respondent
therefore fell within the ambit of article 36 which guaranteed to all
persons the right to freedom of association. The right to freedom
of association was also expressly recognised in international
covenants to which Kenya was a party.
11. [OBITER DICTA] The issue of persons in the society
who answer to the description lesbian, bisexual, gay, transsexual,
intersex and queer (LGBTIQ) is rarely discussed in public. The
reasons for such coyness vary. But it cannot be doubted that it is an
emotive issue. The extensive and passionate submissions made in
this matter before the High Court, and before us, is testimony to the
deep rooted emotions that the issue can easily arouse. It is possible
for the country to close its eyes and hearts and pretend that it has
no significant share of the people described as LGBTIQ. But that
would be living in denial. We are no longer a closed society, but fast
moving towards the ‘open and democratic society based on human
dignity, equality, equity, and freedom’ which the Constitution
envisages. We must therefore, as a nation, look at ourselves in the
mirror. It will then become apparent that the time has come for
the peoples’ representatives in Parliament, the Executive, County
Assemblies, Religious Organizations, the media, and the general
populace, to engage in honest and open discussions over these
human beings. In the meantime, I will not “.. be the first to throw a
stone at her [LGBTIQ]”.
65
B. Eliud Waweru Wambui v Republic 1. As the appeal was a second appeal, the Court’s jurisdiction
Court of Appeal Court of Appeal at Nairobi was confined to a consideration of questions of law only by dint of
section 361(a) of the Criminal Procedure Code. The memorandum
recommends review of Criminal Appeal No 102 of 2016
of appeal framed raised questions of law. The Court’s interaction
age of sexual consent R N Nambuye, D K Musinga & P O with those grounds could of course involve, as in the complaint
under the Sexual Kiage, JJA that the Trial Court did not re-evaluate the evidence, a reference
Offences Act March 22, 2019 to the facts as they emerged from the evidence that was tendered
The appellant was arrested nearly before the Trial Court. Such reference was not the same as hearing
an appeal on a matter of fact which the Court was statutorily
a decade ago, arraigned before the
debarred to do.
Chief Magistrate’s Court at Thika 2. The appellant’s complaint that the first Appellate Court
on a charge of defilement contrary did not subject the evidence to fresh scrutiny, analysis and re-
to section 8(1)(4) ,an alternative evaluation was not an idle one. A first appeal always proceeded by
charge of indecent act contrary to way of re-hearing based on the evidence on record and an appellant
was therefore entitled to expect that the first Appellate Court would
section 11(1) of the Sexual Offences
go beyond a mere rehearsing of what was on record or a repetition
Act, No. 3 of 2006 (Act). He was of the findings of the Trial Court.
found guilty and sentenced to 15 3. The High Court was required to, and had to be seen to
years’ imprisonment. The appellant have consciously and deliberately subjected the entire evidence to
relied on the following grounds; thorough scrutiny so as to arrive at its own independent conclusions
on the factual issues in contention, and to determine on its own, the
that the 1st appellate court erred
guilt or otherwise of the appellant. The only limitation to its task
in law and fact by failing to notice being a remembrance that it was without the advantage, enjoyed
that essential ingredients/elements by the Trial Court, of seeing and observing the witnesses as they
of the offence as charged were not testified, for which it had to make due allowance.
proved; that the 1st appellate Court 4. The importance of proving the age of a victim of
defilement under the Sexual Offences Act by cogent evidence could
erred in law by failing to notice that
not be gainsaid. It was not in doubt that the age of the victim was
the appellant reasonably believed an essential ingredient of the offence of defilement and formed an
that the complainant had granted important part of the charge because the prescribed sentence was
her consent and that she had dependent on the age of the victim.
capacity to grant the said consent 5. A Photostat copy of the alleged birth certificate produced,
which copy was not certified as required by section 66 of the
and he believed she was full of age
Evidence Act when permitting the production of secondary
and capacity to contract a marriage. evidence if primary evidence, which was the document itself, was
not produced for the inspection of the Court and the contents of
the document were sought to be proved by secondary evidence, was
not a document that could be relied on in proof of the complainant’s
age. Further, the document itself purported to have been issued
before the birth of the complainant, evidence of which it purported
to be, was a logical impossibility. Therefore, the document as was,
was of no probative value.
6. There was no age assessment as such that was done on the
complainant whereas the P3 Form that was produced indicated 17
years as the approximate age of the person examined, namely the
complainant. The other evidence of age was that of the complainant
herself which, other than being hearsay in character, was no more
illuminating. The complainant stated that on November 14, 2009,
she got married to the appellant and she was about 17 years having
been born on October 3, 1991. Simple arithmetic showed that
as at that date she would have been 18 years and one month old.
She further stated that she conceived in May 2009 which would
place her age at 17 years and 6 months at the time but, one could
not speak competently on her date of birth as she could not have
witnessed it and the only document that was produced of the same
was of no probative value.
66
7. The totality of the evidence on age was that it did not

possess the consistency and certainty that would have proved the
exact date of the complainant’s birth beyond reasonable doubt.
Therefore, had the Trial Court gone into an analysis of the evidence
with the thoroughness that was required of it, it would probably
have arrived at a different conclusion. In failing to engage in that
exhaustive re-evaluation, it fell into error and the lingering doubts
had to be resolved in favour of the complainant.
8. The conduct of the police raised doubts as to the bona
fides of the prosecution which was made worse by the admitted
demand by the complainant’s father, in a meeting at the Chief’s
office, attended by two elders no less, for the sum of Kshs 80,000
from the appellant who, incidentally, had been his tenant. During
cross examination PW2 stated that the Kshs 80,000 “was to take
care of the education expenses” he had used on the complainant and
not dowry, but the critical point was the admission that had it been
paid the matter would have rested.
9. The picture that emerged was of a father righteously
indignant that his daughter had been seduced and put in the family
way, and who would have the culprit prosecuted unless he would
pay some kind of compensation. That too, raised questions as to
whether the prosecution was for the proper purpose of enforcing
the law or settling a score. At any rate, the effect was to whittle the
reprobate value of the father’s evidence and to lend credence to the
appellant’s contention that both the father and chief did know that
the girl was of age.
10. A witness in a criminal case upon whose evidence it
was proposed to rely should not create an impression in the mind
of the Court that he was not a straightforward person, or raise a
suspicion about his trustworthiness, or do (or say) something which
indicated that he was a person of doubtful integrity, and therefore
an unreliable witness which made it unsafe to accept his evidence.
The evidence of PW2, properly evaluated, would have been in the
category of an unreliable witness.
11. Section 8 (5) of the Sexual Offences Act stated that it was
a defence to a charge of defilement if the child deceived the accused
person into believing that she was over the age of 18 years and the
accused reasonably believed that she was over 18 years. Subsection
(5) was a curious provision in so far as it was set in conjunctive as
opposed to disjunctive terms which would seem to be more logical.
Once a person had actually been deceived into believing a certain
state of things, it added little to require that his belief be reasonably
held.
12. A reading of section 8 (6) of the Sexual Offences Act
seemed to add a qualification to subsection (5) (b) that separated
it from the belief proceeding from deception in subsection (5) (a).
Therefore, the elements constituting the defence should be read
disjunctively if the two sub-sections were to make sense. Further,
it stood to reason that a person was more likely to be deceived into
believing that a child was over the age of 18 years if the said child
was in the age bracket of 16 to 18 years old, and that the closer to
18 years the child was, the more likely the deception, and the more
likely the belief that he or she was over the age of 18 years.
13. The burden of proving that deception or belief fell upon
the appellant, but the burden was on a balance of probabilities to be
assessed on the basis of the appellant’s subjective view of the facts.
Thus, whereas indeed the complainant was still in school in Form
4, that alone would not rule out a reasonable belief that she would
be over 18 years old. It was also germane to point out that a child
need not deceive by way of actively telling a lie that she was over
the age of 18 years. Had the two Lower Courts properly directed
their minds to the appellant’s defence and the totality of the
circumstances of the case, they would in all likelihood have arrived
at a different conclusion on it. It was a non-direction that they did
not do so, rendering the conviction unsafe.
14. [Obiter] “We need to add as we dispose of this appeal
that the Act does cry out for a serious re-examination in a sober,
pragmatic manner. Many other jurisdictions criminalize only sexual
conduct with children of a younger age than 16 years. We think it
is rather unrealistic to assume that teenagers and maturing adults
in the sense employed by the English House of Lords in Gillick v
West Norfolk And Wisbech Area Health Authority [1985] 3 ALL ER
402, do not engage in, and often seek sexual activity with their eyes
67
fully open. They may not have attained the age of maturity but
they may well have reached the age of discretion and are able to
make intelligent and informed decisions about their lives and their
bodies. That is the mystery of growing up, which is a process, and
not a series of disjointed leaps.”
15. [Obiter] “Where to draw the line for what is elsewhere
referred to as statutory rape is a matter that calls for serious and
open discussion. In England, for instance, only sex with persons
less than the age of 16, which is the age of consent, is criminalized
and even then the sentences are much less stiff at a maximum of 2
years for children between 14 to 16 years of age. The same goes for
a great many other jurisdictions. A candid national conversation
on this sensitive yet important issue implicating the challenges
of maturing, morality, autonomy, protection of children and the
need for proportionality is long overdue. Our prisons are teeming
with young men serving lengthy sentences for having had sexual
intercourse with adolescent girls whose consent has been held to
be immaterial because they were under 18 years. The wisdom and
justice of this unfolding tragedy calls for serious interrogation.”
C. SNN v Republic 1. It was not contested that the victim was 6 years of age
The High Court High Court at Nyeri and according to section 14 (1) of the Penal Code she could not be
recommends a review Criminal Revision 104 of 2018 criminally liable. Therefore, she could not be charged alongside the
of the Sexual Offences TM Matheka, J applicant and leaving her out could not be said to be discriminative.
Act to create a section January 25, 2019 There was no express or implied requirement that when two
to deal with consensual/ The accused person was facing the children were involved in sexual activity with each other, both of
mutual sexual activities charge of attempted defilement with them should be charged with the offence of defilement. However,
among children and a the alternative charge of committing there was no legal bar to the prosecution preferring criminal
special system to handle an indecent act with a child. charges against both children. In effect, if the prosecution had
such cases. According to the attached certificate reasonable cause to charge both minors, they could do so.
of birth the subject was 16 years old 2. The intentions of the Sexual Offences Act were to protect
at the time of the alleged offence everyone from sexual violence and in particular the vulnerable
while the victim was 6 years of age. members of the society who included children. However, the
The applicant’s counsel argued that Act appeared to have overlooked the fact that children could
since both the accused person and involve themselves in various forms of sexual activity at different
the victim were minors, bringing developmental stages, and that there was a need to provide for that.
the charges against the accused 3. Every sexual infraction that was committed by children
amounted to discrimination on the and whose facts brought it within the Sexual Offences Act was dealt
basis of sex contrary to article 27 (4) within the ambits of criminal law. Courts had struggled with efforts
of the Constitution and article 2(5) to have children who were of same age group and who indulged in
of the United Nations Convention consensual sexual activity treated as children in need of care and
on the Rights of the Child which protection. The question as to whether sexual crimes committed
prohibited discrimination on the by children should be dealt with in the same way as sexual crimes
basis of sex. That any continued committed by adults needed to be dealt with through substantive
prosecution of the accused person review of the Sexual Offences Act to create a section that spoke
was discriminatory and denied him to sexual activities among children who had to be protected from
the equal protection of the law. others and from themselves as well.
4. The charge sheet indicated the apparent age of the accused
as juvenile and the lower Court throughout the proceedings had
been treating the accused as a minor and even ordered for his
custody at a juvenile home. On January 12, 2018, the lower Court
noted that the accused was a student and gave him a personal bond
of Kshs. 50,000/-. On February 26, 2018 when the matter came up
for hearing, the prosecution indicated that the accused was a minor
and sought for directions on him being represented by counsel.
The Court consequently allowed a counsel to come on record for
the accused. The entire conduct of the trial Court in relation to the
applicant indicated that the lower Court was actually persuaded
that the applicant was a minor. The record however did not indicate
that the accused’s age was determined. The non-compliance with
section 143 (1) of the Children Act did not occasion injustice to
the minor.
68
5. The revisionary powers of a High Court were very wide.

Such powers were intended to be used by the High Court to decide
all questions as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed by a subordinate
criminal court and even as to the regularity of any proceeding
of any subordinate court. The object of conferring such powers
on the High Court was to clothe the court with a jurisdiction of
general supervision and superintendence in order to correct grave
failure or miscarriage of justice arising from erroneous or defective
orders. Section 364 (1) (a) of the Criminal Procedure Code
conferred on the High Court with all the powers of an appellate
court. The revisionary powers were entirely discretionary and
there was no a vested right of revision in the same sense as there
was a vested right of appeal. The sections did not create any right
in the litigant, but only conserved the powers of the High Court to
see that justice was done in accordance with the recognized rules
of criminal jurisprudence and that subordinate criminal courts did
not exceed their jurisdiction, or abuse the powers vested in them by
the Criminal Procedure Code.
6. In the instant revision, the proceedings were at a
preliminary stage as only one hearing had taken place. The Court
would allow the proceedings at the lower Court to continue subject
to the lower Court conducting an inquiry on the age of the accused
before the hearing starts. The objections to the charges facing the
applicant were unsustainable and there was nothing to revise at
that stage. The matter was to be returned to the lower Court for
hearing and determination.
69
D. Midland Energy Limited v George 1. The devise of administration as an alternative to

The makers of the Muiruri t/a Leakeys Auctioneers & insolvency was a new feature in insolvency laws, provided for
Insolvency Regulations another under part VIII of the Insolvency Act, 2015 (the Act). The instant
should make it a High Court at Nairobi proceedings demonstrated tensions that could arise between
requirement that a Insolvency Notice No. E.014 of creditors of a company under administration.
notice of appointment 2018 2. The design of the insolvency laws was to give a second
of an administrator be F Tuiyott, J chance to financially distressed companies. A break from the past
lodged with the Registrar February 19, 2019 where the fate of an ailing company would invariably be a winding
of Companies too so Midland Energy Limited (Midland) up or liquidation order. Administration was one of the alternatives
that a with search on the was granted credit facilities by to liquidation. The objectives of administration were set out in
company it can be found African Banking Corporation section 522 of the Act. To achieve those objectives, the company
out whether or not it is Limited (ABC Bank). As security had to be insulated from aggressive creditors who could cause a run
in administration. for those facilities, a fixed, floating of the company assets. The statute contemplated that upon such
and a supplementary debenture protection, the company would not be distracted from precipitate
was registered in favour of ABC action and so the administrator would be able to perform his
Bank. Synergy Industrial Credit function in the interest of all of the company’s creditors.
Limited (Synergy) also advanced 3. The insulation of the company was provided by way of
hire purchase facilities to Midland a moratorium from other legal processes as provided for under
to assist it purchase 3 new motor sections 560 and 561(4) of the Act.
vehicles. A term and condition of 4. As to when the appointment of an administrator was
the Hire Purchase Agreement was deemed to take effect would depend on the nature of appointment
that 5 motor vehicles which were of the administrator. In the instant matter, ABC Bank appointed the
already under various Hire Purchase joint administrators in its capacity as a holder of a floating charge.
Agreements between the two would The power to make that appointment was drawn from section 534
be held as additional security for the of the Act. The Court did not venture into the procedure in which
credit facilities advanced. the joint administrators were appointed because that had not been
Midland defaulted in its obligations challenged.
to both ABC Bank and Synergy. 5. Under the provisions of section 538 of the Act, the
The creditors took different paths appointment of an administrator by a holder of a floating charge
in seeking relief for the default. took effect when the requirements of section 537 of the Act were
Synergy repossessed the vehicles satisfied. Reading sections 534 and 537 of the Act, it meant that the
under Hire Purchase on December appointment of an administrator took effect upon the appointer
20, 2018. ABC Bank on the other lodging with the Court a notice of appointment which was in
hand appointed 2 persons as compliant with the provisions of section 537 of the Act. The notice
joint administrators to Midland. of appointment was lodged with the Court on November 19, 2018
Through a notice dated November and that was the day when the administrator’s appointment was
16, 2018 and filed on November 19, deemed to take effect.
2018, ABC Bank gave notice of the 6. There was an obligation placed on the holder of the floating
said appointment. On November charge to give notice of the appointment to the administrators and
21, 2018, the joint administrators other persons set out in the Insolvency Regulations as provided for
advertised the administration in a in section 539 of the Act. The need to give that notice promptly was
notice published in the classified informed by the fact that certain legal implications flowed from the
page of the Star newspaper and appointment of the administrator and so the persons prescribed
published on November 23, 2018, in the Regulations and who had an interest in the company
a notice of their joint appointment would need to know of the appointment as soon as it happened.
in the Kenya Gazette. Via a letter The persons to whom the notice would be given as prescribed by
dated November 22, 2018, they regulation 109 were the Court, official receiver, the directors of the
notified all creditors of Midland of company, contributory of the company and the company creditors.
the administration.
70
Aggrieved by the state of affairs, 7. By dint of regulation 108, the announcement of the
Midland filed the instant application administrators’ appointment should be published in the Kenya
seeking restraining orders against Gazette and one or more newspapers that were widely circulated
both creditors and the release of the within Kenya. ABC bank published the announcement in the
attached vehicles. ABC Bank argued Star publication of November 21, 2018 and Kenya Gazette of
that by dint of section 560(1)(b) of November 23, 2018. Since the Court was not told that the Star
the Insolvency Act, there could be newspaper did not widely circulate within Kenya, the Court took
no repossession and/or transaction it that it satisfied the criteria set out in regulation 108. Thus,
in the property of a company under the appointment of the administrator took effect on November
administration other than with the 19, 2018 and Synergy was deemed to have had notice of the
consent of the administrator or the appointment on November 21, 2018 and at the very least on
approval of the Court. Synergy on November 23, 2018.
the other hand argued that Midland 8. Once the appointment of the joint administrators took
breached the terms of the Hire effect, then Synergy was barred by the provisions of section 560 of
Purchase Agreements and it was the Act from repossessing the vehicles without the consent of the
entitled to act as it did and that of administrators or approval of the Court and the repossession that
the 4 vehicles attached, 3 were sold happened on December 20, 2018 was therefore contra statute.
on December 29, 2018 and were If, however, Synergy was to be excused for lack of knowledge
in the possession of the third party because the notice of appointment came on November 21, 2018
purchasers. and November 23, 2018, the sale of the vehicles could not be
excused because that happened on December 29, 2018. Synergy
could not plead lack of knowledge because the notice was
published as required by the law and Synergy was deemed to have
been duly notified.
9. Sections 560 and 561 of the Act were explicit that the
moratorium barred the repossession of goods in a company’s
possession over a credit purchase transaction and/or hire
purchase agreement. Under section 2 of the Act, a Credit Purchase
Transaction meant a hire-purchase agreement, a conditional sale
agreement, a chattel leasing agreement or a retention of title
agreement. Synergy being the owner under the Hire Purchase
Agreement did not have any special privilege over the other
creditors of Midland.
10. If administration as an alternative remedy to insolvency
was to be efficacious, then property of a company under
administration ought to be protected as robustly provided in
statute. So as to strike a blow for the new devise in insolvency laws,
the Court would be making an order that either the possession of
the 3 vehicles that had been sold and were in possession of the
purchasers be restored to Midland or all monies received upon
their sale be paid to Midland. However, before making those final
orders, the Court thought it fit to hear the purchasers of the 3
vehicles.
11. [Obiter] “Before I turn to make the orders herein,
I need to make an observation. Many people do not read the
Kenya Gazette or classified pages of the newspapers and can
run the risk of dealing with the property of a company under
administration in a manner that is contrary to the law because
of lack of knowledge that the company has been placed under
administration. The makers of the Insolvency Regulations may
wish to make it a requirement that a notice of appointment of an
administrator be lodged with the Registrar of Companies. In this
way, anyone who wishes to deal with a company’s property can
simply do a search on the company so as to find out whether or
not it is in administration.”
71
Kenya Law declared, the Best Public Sector Legal

Department 2019’ at the Nairobi Legal Awards
By Emily Nakhungu
K
enya Law won the ‘Public Sector Legal Department of the Year 2019’ at the Nairobi Legal
Awards held on 30th May 2019 in Nairobi. The Awards are an initiative of the Law Society
of Kenya, Nairobi Branch which seeks to recognize excellence in legal practice and are
meant to promote bench-marking of best practice standards in the Kenyan legal profession.
Kenya Law was honoured for its outstanding contribution to the development of law and legal
practice through the execution of its unique mandate of Monitoring and Reporting on the
development of Kenya’s jurisprudence through publication of the Kenya Law Reports; Revising,
Consolidating and Publishing the Laws of Kenya.
Excellent Financial management and Kenya Law’s compliance with relevant statutory
and regulatory
requirements,
leadership structures
including human
resource policies,
training and
mentorship of
interns, pupils and
young lawyers were
also underscored at
the awards.
It was also noted
that Kenya Law had
demonstrated high standards

of legal services, and surpassed
the jury’s expectation as far as
corporate social responsibility
as well as policy reform and law
development were concerned.
Kenya Law CEO/Editor Mr.
Long’et Terer, in his address to
the staff, noted that the award
would not have been possible
without the hard work and
contribution they make on a
daily basis.
“We thank you for this and
encourage you to continue to
support the organisation in
every way.” He said.
Kenya Law, is the first ever
recipient of the Public Sector
Legal Department Award.
Hongera Kenya Law!
Kenya Law CEO Mr. Long’et Terer (Second left)and Deputy CEO Ms. Janet Munywoki are joined by
Kenya Law Management team for a picture after winning the Best Public Sector Legal Department 2019’
Award at the Nairobi Legal Awards on 30th June 2019.
72
Kenya Law Awards the Winners of The African Regional Round of the 17th
John H Jackson Moot Court Competition
The John H Jackson Moot Court
Competition on WTO Law
is a student-run moot court
competition organised annually
by the European Law Students’
Association (ELSA) in co-
operation with the World Trade
Organization (WTO).
The African Regional Round of
the 17th John H Jackson Moot
Court Competition on WTO
Law was hosted by Kenya School
of Law from 23th – 27th April
2019. The National Council of
Law Reporting partnered with the
Kenya School of Law and other Kenya Law’s Legal Researcher John Ribia (Second right) presents an award
bodies to sponsor the competition. to winners of the African Regional Round of the 17th John H Jackson Moot
Court Competition on WTO Law at Kenya School of Law on 27th April 2019.
National Council for Law Reporting (Kenya

Law) awarded the top 4 teams of the African Regional Round of the John H Jackson Moot
Court Competition gift hampers comprising of Law Reports, Kenya Law Review Journals, a
variety of Legal Digests and Bench Bulletins.
Kenya Law exhibit’s at the 4th Annual Legislative Summit, Kisumu City
from 13th to 17th April 2019
The purpose of the summit was to strengthen inter
and intra-governmental relations for effective
implementation of devolution as well as identify the
gaps and challenges in the legislation that impedes
devolution and develop measures to address them.
The summit was themed “Accelerating devolution;

assessing the achievements and addressing the gaps in
policy and legislation” and sought to build on the gains
of the first three legislative summits.
Kenya Law donated the Bench Bulletins and other legal

publications to over 4,000 delegates in attendance.
Team leader, Sales Marketing and Customer care Ms. Emily Nakhungu speaks to delegates at the
Kenya Law stand during the 4th Annual Legislative Summit in Kisumu City. The conference ran from
13th to 17th April 2019.
Kenya Law showcases the new Laws of Kenya

compendiums at the Kenya Magistrates and Judges
Association (KMJA) held a Special General Meeting
on 18th May 2019 at the Sarova Stanley Hotel,
Nairobi.
Ms. Ivy Njoki interacts with a guest at the Kenya Judges and Magistrates Association during the association’s
special general meeting 18th May 2019 at a the Sarova Stanley Hotel, Nairobi.
73
Kenya Law visits Thogoto home for the aged in Kikuyu as part of the
Corporate Social Responsibility programme organized by Kenya Law
welfare group.
Senior citizens of Thogoto home for the aged in Kikuyu had a reason to smile when Kenya
Law staff paid them a visit, cooked, cleaned and donated mobility aids on 5th April 2019
A simple smile is indeed the start of opening hearts and being compassionate to others.....
Kenya Law senior Law Reporter Mr. Nelson Tunoi makes Chapati Kenya Law staff prepare a meal for the Senior citizens of Thogoto home for
for the Senior citizens of Thogoto home for the aged in Kikuyu the aged in Kikuyu during a CSR activity organized by the Kenya Law Welfare
during a CSR activity organized by the Kenya Law Welfare group group on 5th April 2019.
on 5th April 2019.
74
Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309

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Issue 45

April - June 2019

Advocates working in Public Service are

EDITORIAL TEAM 1. Editor’s Note 1

The Hon. Mr Justice David K. Maraga, EGH

Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi Mr Michael Sialai, EBS

As is the norm, this edition of the Bulletin delivers legal information on a

Speech By Hon. David K. Maraga, Chief Justice and President of The

Hon. David K. Maraga, EGH,

Chief Justice and President of the Supreme Court of Kenya

What they said

Per M K Koome JA, (concurring with the Majority)

the Constitution. meant that the Constitution had to be

protecting the wellbeing of the individual, attention to the historical contextual

Some rights reserved by Bernard DUPONT

1976. However, while it was clear that as beneficial owners.

Supreme Court overturns the acquittal of two Iranian nationals convicted

Evidence Law-confession and admission- probative value of circumstantial evidence-claim

25A of the Evidence Act. golfers at a spot where it was rare to

with section 55 of the ACECA, it was undue prejudice to one party.

governmental organizations, associations and the realization of the potential of

impunity. in Parliament, which manifested the

Constitutional Law- fundamental rights and seeking anticipatory bail/bond pending

increasing the costs of justice. The just, expeditious, proportionate and

Employment Law-discrimination in and prosecutorial allowances which they

recruiting, appointing, promoting, if the respondent failed to specifically

prospective employee. An employer had upon arbitrary or unreasonable grounds.

Feedback For Caseback Service

Well received, thanks.

Hon. Barbara Ojoo -

Hon. Justice Byram

Restating the Law

DATE OF LEGISLATIVE CITATION PREFACE

ACT PETROLEUM ACT, 2019

ACT URBAN AREAS AND CITIES (AMENDMENT) ACT, 2019

ACT ASSUMPTION OF THE OFFICE OF GOVERNOR ACT, 2019

B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY PUBLIC ORDER (AMENDMENT) BILL, 2019

NATIONAL ASSEMBLY EMPLOYMENT (AMENDMENT) BILL, 2019.

NATIONAL ASSEMBLY KENYA INFORMATION AND COMMUNICATIONS (AMENDMENT) BILL,

NATIONAL ASSEMBLY STATUTE LAW (MISCELLANEOUS AMENDMENT) BILL, 2019

NATIONAL ASSEMBLY SECTIONAL PROPERTIES BILL, 2019

NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

NATIONAL ASSEMBLY NATIONAL DROUGHT MANAGEMENT AUTHORITY (AMENDMENT) BILL,

Sponsor Aden Duale, Leader of Majority, National Assembly.

NATIONAL ASSEMBLY PUBLIC SERVICE COMMISSION (AMENDMENT) BILL, 2019

Objective TRAFFIC (AMENDMENT) BILL, 2019

NATIONAL ASSEMBLY COUNTY GOVERNMENTS’ RETIREMENT SCHEME BILL, 2019

NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

NATIONAL ASSEMBLY KENYA FOOD AND DRUGS AUTHORITY BILL, 2019

NATIONAL ASSEMBLY CROPS (AMENDMENT) (NO. 2) BILL, 2019

NATIONAL ASSEMBLY KENYA INSTITUTE OF CURRICULUM DEVELOPMENT (AMENDMENT)

NATIONAL ASSEMBLY ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2019

NATIONAL ASSEMBLY GAMING BILL, 2019

SENATE BILL CONTROL OF STRAY DOGS BILL, 2019

SENATE BILL COUNTY TOURISM BILL, 2019

SENATE BILL COMMISSION ON ADMINISTRATIVE JUSTICE (AMENDMENT) BILL, 2019

SENATE BILL NATIONAL MUSEUMS AND HERITAGE (AMENDMENT) BILL, 2019