Bench Bulletin Issue 52

Issue 52
January - March 2021
Whether lands claimed to be ancestral lands dispossessed during

colonial era would be returned to original native occupants or their
descendants
Imposition of VAT on exported services amounts to double imposition of VAT

and is contrary to the neutral application of VAT in International Trade law. Pg 36
Employment and Labour Relations Court awards Kshs 1 (Kshs one) to a

principal secretary found to be a beneficiary of proceeds of crime. Pg 44
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CONTENTS
Failure to investigate and prosecute sexual and Rules and guidelines governing sustainable
gender based violence related crimes is a violation harvesting of sand. Pg 49
of the rights to life; the prohibition of torture,
inhuman and degrading treatment; and the
security of the person. Pg 26
EDITORIAL TEAM
1. Editors Note 1
Editor /CEO
2. CJ’s Message 2
| Long’et Terer |
3. What they Said 4
Senior Assistant Editor/DCEO
| Janet Munywoki | 4. Feature Case 6
Editorial Assistant 5. Cases 9
| Andrew Halonyere |
6. Caseback 5o
Contributors
7. Legislative Updates 51
| Njeri Githan’ga | Wambui Kamau | Nelson Tunoi |
| Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
8. Legal Supplements 55
| John Ribia | Eunice Chelimo | Faith Wanjiku |
| Kevin Kakai | Patricia Nasumba |Musa Okumu|
9. International Jurisprudence 59
| Lisper Njeru |
10. Law Reform Compilation 70
Design and Layout
| Catherine Moni | Josephine Mutie | Cicilian Mburunga |
| 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.
KLR 1995
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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 Justice James Rika Mr Mwenda Njoka
Judge of the High Court of Kenya Government Printer (Ag), Government Press
(Represented by Ms Eva Kimeiywo, Principal
The Hon. Justice (Rtd) Kihara Kariuki Printer)
Attorney General
Alt - Ms Linda Murila, Chief State Counsel Ms Janet Kimeu
Advocate, Law Society of Kenya
Prof Kiarie Mwaura
Dean, School of Law, University of Nairobi
Mr Michael Muchemi
Ms Jennifer Gitiri Advocate, Law Society of Kenya
Advocate & Public Officer,
Office of the Attorney General & DoJ Mr Long’et Terer
Editor/CEO
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
(Represented by Mr Jona Wala,
Director, Accounting Services)
vi
BB Issue 52, January - March 2021
Editor’s Note
Long’et Terer
CEO/Editor
T
he Bench Bulletin is the definitive intelligence briefing for Kenya’s judicial officers, the practitioners,
managers and the business fraternity. It is a quarterly magazine of recent developments in law,
particularly case law, law reform issues, international comparative analysis on case law, new legislation
in the form of Acts of Parliament, rules and regulations, pending legislations contained in Bills tabled
before Parliament and selected Legal Notices and Gazette Notices.
This edition of the Bench Bulletin highlights a significant range of ground breaking jurisprudence from the superior
courts of record in Kenya and also from international jurisdiction.
From the Supreme Court we highlight the precedent in the case of Henry Wambega & 733 others v Attorney
General & 9 others [2020]eKLR .The appeal before the Supreme Court dealt with the issue whether lands claimed
to be ancestral lands dispossessed during colonial era would be returned to original native occupants or their
descendants and what were the solutions to historical land injustices in Kenya. The Supreme Court held that the
Constitution respected title to private land. If one had title to land, the Constitution protected that title. The
petitioners could not therefore claim that their rights were any superior to the constitutionally protected rights
of the title holders and that the solution to the land problem would not necessarily lie in giving out land. Other
avenues of mitigating the effects needed to be looked at.
From the High Court segment we highlight the case of Joseph Enock Aura v Cabinet Secretary, Ministry of
Education, Science & Technology & 3 others; Teachers Service Commission & 6 others (Interested Parties) [2020]
eKLR where the High Court in determining the question whether the closure of schools following a directive
issued by the President of the Republic of Kenya in a State of the National Address as part of the measures put
in place to combat the COVID – 19 pandemic was unconstitutional. The High Court sitting in Nairobi ruled
that the presidential state of the nation address directing the indefinite closure of schools was unconstitutional for
causing psychological harm to school-enrolled children and was against the best interests of the child. The Court
also stated that the best interest of any child was to be in school in-person as there was more control, guidance
and provision of health safe measures in the school than leaving the children roaming in the villages or shanties or
towns without observing any Covid-19 Health Protocols.
From the same segment we highlight an important decision in Coalition on Violence Against Women & 11 others
v Attorney General of the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party);
Kenya National Commission on Human Rights &3 others(Amicus Curiae) [2020] eKLR. The court ruled that the
failure to conduct independent and effective investigations and prosecutions of sexual and gender based violence
related crimes during the 2007 post-election violence was a violation of the positive obligation on the Kenyan
State to investigate and prosecute violations of the rights to life; the prohibition of torture, inhuman and degrading
treatment; and the security of the victims.
From the International Jurisprudence segment we highlight a decision from the East African Court of Justice
First Instance Division in Martha Wangari Karua v The Attorney General of the Republic of Kenya and Hon.
Anne Mumbi Waiguru & Hon. Peter Ndambiri (Interveners), where the court in determining the question of
whether the Kenyan state through the acts and/ or omissions of its judicial organs violated its commitments to
the fundamental and operational principles of the EAC Treaty, especially the right to access to justice and a fair
trial. The court held that the Supreme Court of Kenya’s decision to dismiss the applicant’s petition fell short of its
constitutional duty and curtailed the applicant’s right to access to justice. It contravened the rule of law principle
enshrined in articles 6(d) and 7(2) of the Treaty. The court ultimately awarded USD $ 25,000 to the applicant.
These are just but a few excerpts of the exciting and insightful decisions from our superior courts of record. It is our
hope that you find the Bench Bulletin informative.
Long’et Terer
Editor/CEO
1
CJ’s Message
VALEDICTORY MESSAGE BY HON. JUSTICE DAVID K. MARAGA, EGH CHIEF

JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA ON 11th
JANUARY, 2021
I stand here today full of gratitude and appreciation as I say goodbye to the Judiciary after about 18
years of service to the people of Kenya. During this time, I have served first as a Judge of the High
Court, Judge of the Court of Appeal and finally as the Chief Justice of the Republic of Kenya. The
time to say goodbye has come.
I want to start by thanking God for the opportunity He gave me to serve and the guidance He
provided as I carried out my duties.
In my interview for the position of Chief Justice, given the fact that the Supreme Court must hear
and determine Presidential Election petitions within 14 days, I was asked whether I would sit on
a Saturday, my Sabbath day. I understood the question to require of me to make a choice between
getting the job of Chief Justice and living out my faith. I determined to live out my faith and said
I would not sit on Saturday. Thereafter, in accordance with His steadfast promises, God took over.
The rest is history. He gave me the job and fought all my battles throughout my term as the Chief
Justice. I don’t know how to express my gratitude to Him for considering me worthy of His grace
and favours.
A special Thank You goes to my dear wife and our children, as well as my extended family. Through
your prayers and support, you have been to me what Harun was to Moses. I don’t take that for
granted. I sincerely thank you. I also want to thank you, the people of Kenya, for your unwavering
confidence in and support for me. Your solidarity in moments of great adversity and peril, and your
steadfast defence in moments of trials and tribulations, only strengthened my resolve and enabled
me to serve you. Thank you too my dear colleagues, starting with the Deputy Chief Justice, my
brother and sister Judges with whom I had the distinct pleasure of serving in the Supreme Court,
the Court of Appeal and the High Court. My deep sense of gratitude also goes to all the other
Judges, Magistrates, Kadhis, Judicial Officers and Staff of the Judiciary whose valuable support
enabled me to satisfactorily discharge my duties. The milestones we have achieved in moving the
Judiciary transformation to where it is today is our collective achievement, and from which I draw
enormous pride.
I would also like to thank the Judicial Service Commission, the Commissioners, the Chief Registrar
and all the Commission Staff. I know I pushed you very hard and made you sit for very long hours
many times. Thank you for bearing with me. A special
2
Thank You also goes to the legal fraternity, through the Law Society of Kenya and the Justice
Sector, in particular the National Council on the Administration of Justice. Your dedication to the
rule of law and your unflinching demand for efficiency and equity in the administration of justice
have been a source of motivation and inspiration to me.
Let me also thank the Executive and the Legislature for the work we have been able to accomplish
as co-equal arms of Government in the service of the Kenyan public. I urge you to continue living
by the constitutional edict of robust independence and constructive interdependence, which the
Judiciary has embraced as a key philosophical and operational principle.
A special Thank You also goes to our Development Partners. Without your support, many of the
Judiciary programs would have ground to a halt. Please continue supporting the Judiciary which,
as you are well aware, is the beacon of hope for the people of this great country.
Today, I leave behind me a strong Judiciary, a professional and enthusiastic corps of Judges and
Judicial Officers as well as staff who are deeply committed to the administration of justice, and an
increasingly enlightened public whose confidence in and demand for our services grows by the day.
I urge you all to continue giving them your unwavering support, and to keep praying for them so
that justice and the rule of law can continue flourishing in our beloved country. We must continue
to invest in a strong, independent, fair, and effective Judiciary bearing in mind that sustained
economic prosperity and the long-term political stability of this nation can only be guaranteed if
the rule of law reigns.
Thank you very much, and may God Bless You All.
HON. JUSTICE D.K. MARAGA, FCIArb, EGH  CHIEF JUSTICE & PRESIDENT OFTHE
SUPREME COURT OF KENYA
3
What they said

Supreme Court Judges - DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ, in
Alnashir Popat & 7 others v Capital Markets Authority [2020] eKLR
“Narrow interests such as fostering investor confidence in the securities market could not be used as an excuse to deprive the
directors of their constitutional right to a fair hearing of the allegations against them.Despite the legality of the duality of the
respondent’s mandate under section 11(3) (cc) (h) of the Capital Markets Act, in any matter that could be classified as judicial
or quasi-judicial, or one where, in the view of a reasonable man conversant with the matter, there was likely to be bias or a
reasonable apprehension of bias, the authority ought to have been impartial.”
Supreme Court Judges- DK Maraga, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & NS Ndungu,
SCJJ, in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in
Africa (Amicus Curiae) [2021] eKLR
“An illegal occupation of private land would not create prescriptive rights over that land in favour of the occupants but the
same could not be said of an “illegal occupation” of public land. To the contrary, where the landless occupied public land and
established homes thereon, they did not acquire title to the land but they had a protectable right to housing over the same. The
Constitution of Kenya 2010, radically transformed land tenure in the country by declaring that all land in Kenya belonged
the people of Kenya collectively as a nation, communities and individuals. It also created a specific category of land known as
public land. Therefore, every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable,
however unrecognizable, or however transient, in public land.
Faced with an eviction on grounds of public interest, potential evictees that occupied public land, had a right to petition the
court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting
the occupants, given the fact that the eviction may be entirely justifiable in the public interest.”
High Court Judges- J W Lesiit, E C Mwita & L M Njuguna, JJ in Katiba Institute & another v Attorney General
& another [2020] eKLR
Constitutional Petition 331 of 2016
“Public service was the collectivity of all individuals, other than state officers, performing a function within a state organ,
while state organ was either a commission, office, agency or other body established under the Constitution. That meant that the
collectivity of the individuals had to be performing a function within a state organ established under the Constitution. Offices
in state corporations and parastatals were not commissions, offices, agencies or other bodies established under the Constitution.
They were, therefore, not state organs within the meaning of the Constitution. Consequently, positions of chairpersons and
members of boards of state corporations and parastatals were not offices in the public service.”
4
High Court Judge - W. Korir in Coalition on Violence Against Women & 11 others v Attorney General of
the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party); Kenya National
Commission on Human Rights & 3 others(Amicus Curiae) [2020] eKLR
“The State had a duty to maintain law and order including the protection of life and property. However, as a general rule,
that duty was owed generally to the public at large and not specifically to any particular person within Kenya. For a person
to succeed in a claim for alleged violation of constitutional rights, it had to be demonstrated that there existed a special
relationship between the victim and the police on the basis of which there was assurance of police protection, or where, for
instance the police had prior information or warning of the likelihood of violence taking place in a particular area or against
specific homes but failed to offer the required protection. In such cases, therefore the State could be held liable where violations
of the rights protected and guaranteed in the Bill of Rights were proved even when those violations were occasioned by non-
State actors provided that the duty of care was properly activated.”
High Court Judges- P Nyamweya, W Korir & J Mativo, JJ, in Salaries and Remuneration Commission & another
v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties) [2020] eKLR
“Regularity meant compliance with the Constitution and the governing statute including obtaining required consents/approvals
from the relevant bodies including the SRC. PSC’s failure to seek SRC’s consent or approval as the only body constitutionally
mandated to set and pay salaries and remuneration of State officers contravened several statutory provisions including articles
230(4), 206 (4) and 259(11) of the Constitution. Accounting officers of independent bodies were obligated by law to comply
with regularity and propriety and the need for efficiency, economy, effectiveness and prudence in the administration and
use of public resources and to secure value for public money. Therefore, the accounting officers for the PSC and Parliament
were culpable for failing to undertake their obligations under the Public Finance Management Act in that regard. The said
accounting officers therefore broke the law and it was upon them to recover the money paid to the MPs”.
Employment and Labour Relations Court Judge- B Ongaya, in Chama Cha Mawakili (CCM) v Chairperson
Independent Electoral and Boundaries Commission & 2 others [2020] eKLR - Petition No. 104 of 2019
“The petitioner had established that the 2nd respondent had violated section 10(1) and 27 of the IEBC Act and the national
values and principles of governance in article 10 of the Constitution. The violated provisions provided for recruitment of the
commission secretary through an open, transparent, and competitive process and appointment of a suitably qualified person.
The evidence showed that the 2nd respondent made a decision to undertake the recruitment process through an independent
consultant and thereafter decided to undertake the recruitment by itself. The shifting of the decisions as was done and without
notifying the public cast a shadow of doubt on the integrity of the process.”
Employment and Labour Relations Court Judge- M Onyango, in Bernard Odero Okello & another v Cabinet
Secretary for Industrialization, Trade and Enterprise Development & another; Cyprian Mugambi Ngutari & 7
others (Interested Parties)- Petition 100 of 2020
“Appointments to public office had to be done through a process that was open, merit-based, inclusive and competitive. Those
appointed to the Business Premises Rent Tribunal did not apply, were not shortlisted, and were never interviewed for the posi-
tions. Public interest favoured respect for the Constitution and the law. Public interest could not be used to justify the violation
of a statute or the Constitution. Approval given for the impugned appointments by the Judicial Service Commission could not
regularize that which was not legal. Section 10 of the Public Service (Values and Principles) Act provided for competition and
merit-based appointments. In making the appointments, the Cabinet Secretary did not comply with the requirements of the
said section 10.”
5
Feature Case
Whether lands claimed to be ancestral lands dispossessed during colonial era
would be returned to original native occupants or their descendants
Henry Wambega & 733 others v Attorney General & 9 others [2020] eKLR
Constitutional Petition No. 2 of 2018
Environment and Land Court at Mombasa
S Munyao, J
October 22, 2020
Reported by Long’et Terer
The petitioners claimed that they, or their forefathers, jurisdiction to hear claims even those based on historical
were the original inhabitants of various parcels of land land injustices. However, just because a court was vested
measuring over 800 acres (suit lands) owned by the 2nd – with jurisdiction did not mean that in all cases, it would
7th and 9th respondents and asserted a right to be settled proceed to exercise that jurisdiction, especially where
therein. They claimed that they, or their forefathers, were there was another body that also had capacity to hear
violently evicted from the suit lands. They also pleaded that dispute. Depending on the facts and circumstances
that being descendants of the original occupiers of the surrounding the case, the court could defer jurisdiction to
suit lands, their right to property had crystallized through another body, or decline to take up the matter altogether,
the doctrine of ancestral domain or alternatively, through and that would not be because it had no jurisdiction, but
an implied inter-generational trust. They stated that their because given the surrounding circumstances, it would be
problems stemmed from the issuance of titles to the then best for the court not to exercise its jurisdiction.
registered owners without due regard to their occupation.
They thus sought, among others, a declaration that the With regard to historical injustices and the NLC, the
suit lands were ancestral lands and a declaration that they ELC noted that article 67(2)(e) of the Constitution
were entitled to have the suit lands declared trust land by provided that one of the functions of the NLC was to
virtue of the history of the land. initiate investigations into present or historical injustices
and recommend appropriate redress. The function was
The respondents opposed the petition with the National embodied in section 15 of the National Land Commission
Land Commission (NLC) arguing that the issues raised in Act. NLC had wide jurisdiction on historical injustices.
the petition were of the nature of historical land injustice When it came to the choice of filing a claim before
hence the appropriate avenue for seeking redress was by the NLC or before the ELC, one needed to make an
lodging a claim of historical injustice with the NLC for assessment of what task was required.
admission and subsequent investigation. That the issues
raised in the petition were therefore prematurely before If the facts were contested, with elaborate number
the court. of persons and not easy to verify them, and where a
thorough investigative process was going to be needed,
The issues for determination were: whether the then probably the ELC would not be the best forum and
Environment and Land Court had jurisdiction to hear it would be best that the NLC handled the matter. If a
claims of historical land injustices; what were the situations person filed such suit in ELC, the court, on being moved,
in which the Environment and Land Court could refer a or on its own volition, could refer the matter to the NLC
matter to the NLC instead of determining it; what was for determination, rather than dismissing it outright.
the meaning and basis of the ancestral domain concept; However, where facts were clear, the issues uncontested,
whether the concept of ancestral domain was applicable and what was needed was for the court to determine the
in Kenya; whether lands claimed to be ancestral lands rights violated and the nature of redress, or the legal rights
dispossessed during colonial era would be returned to of the parties, then the court was at liberty to entertain
original native occupants or their descendants and what the suit and determine it on its merits. In the instant
were the solutions to historical land injustices in Kenya? case, the petitioners had opted to come to court and the
court had admitted the petition and thus, it proceeded to
The Environment and Land Court (ELC) found that it had determine it on merits.
6
The ELC found that there was no evidence that any of the hands of their forefathers, the ELC found. It had
the forefathers of the petitioners ever resided on the suit some support in some jurisdictions, especially those with
lands. One could not tell with precision and finality, a minority population that was marginalized owing to
which forefather of which petitioner resided in which colonialism or occupation by foreigners. Australia for
land, and what sort of occupation such person had. Some instance enacted the Native Title Act, 1993, so as to inter
of the petitioners appeared to have roots in Kwale and not alia appreciate that Australia was not terra nullius (land
within the site of the disputed lands. There was a claim that was legally deemed to be unoccupied or uninhabited)
of dispossession, but absolutely no evidence of who was at the advent of European occupation and to make
dispossessed, by whom, and when exactly that occurred. amends to the native population that was dispossessed
of land. The statute followed Australian High Court
The ELC held that the petitioners had not demonstrated decision where the court pronounced itself on the native
any historical connection to the suit lands. When one was title, recognizing that there existed native title to land,
presenting a constitutional petition, then he had to back the foundation of which was the traditional connection
it up with cogent evidence. The petitioners needed to do by the natives.
more than just state that their forefathers were displaced
and tortured. They ought to have provided cogent The court held that land issues were complex and were
evidence of that, and there was none, save for hearsays unique to each country. It followed that each country
which could not be proved. Some of the claims of the enacted laws that suited its circumstances. We could not
petitioners sounded like folklore. Slave trade was not impose what had been held in one jurisdiction into the
there in the 1940s or 1950s in Kenya, and if there was country for Kenya’s circumstances could be different.
any drawing and selling of blood, that would be criminal, Australia had a large population of European origin with
even under the colonial laws. the native Aboriginals and Torres Strait Islander people
representing only 3.3% of the population. It would
The petitioners did not give the ELC any generational follow, therefore, that there would be reason in ensuring
tree to identify their ancestry and demonstrate that it the protection of that minority group. The situation in
was actually their forefathers who were occupying the Kenya was radically different, with the native inhabitants
suit lands. There was no evidence that any of the claims being the overwhelming majority.
of torture occurred. Neither was there any evidence of
imprisonment. It was impossible to hold that any of The court also noted that the proposition that government
the events that were claimed by the petitioners actually had not done its bit in enacting legislation to address
occurred. historical land injustices was incorrect. The provisions of
the Constitution at article 67(e) and section 15 of the
The ELC noted it was impossible to connect the petitioners NLC Act were some of the response of the government
in any way to the suit lands. They had claimed that there in addressing historical land injustices. In making those
were graves on the land, which was contested. But even provisions, the people of Kenya had to balance the
assuming that there were graves on the land, there was interests of those who were adversely affected by historical
no evidence that such and such grave was for the father land injustices, and the interests of those that had title to
or grandfather of any of the petitioners. Those could be land and expected the same to be protected.
graves of any person. Site notes of a judicial officer who
visited the suit lands and her conclusion showed that none The ELC appreciated that article 40 of the Constitution,
of the petitioners were on the land. What she observed thus, protected the right to property, and among the
were developments made by the current proprietors of the rights noted therein, was that the state was not to deprive
land. a person of property without prompt payment in full,
of just compensation. The Constitution also categorized
The ELC appreciated that there was a strong probability land into private, public, and community land. Article
that some persons were indeed displaced by the colonialists 64 of the Constitution on the other hand defined what
on the suit lands, but nothing before the court showed consisted of private land. The right to own property in a
that the persons so displaced were the forefathers of the private capacity was, thus, protected. Such property could
petitioners. not be taken away without good reason and without just
At the outset, the petitioners had hopelessly failed to compensation.
tender any evidence of displacement, or any evidence of As for the court, there was no backing in the Constitution
torture, either upon themselves or upon their forefathers. or in any law that would entitle the petitioners to the
With that finding, there was no substratum in the petition lands that were privately held by the 2nd - 7th and 9th
and the same had to be dismissed. respondents, even assuming that the lands were originally
The ancestral domain claim would mean that a generation settled by the forefathers of the petitioners. There was no
had a historical right to own land that was previously in law that said that a person had to be settled in land that
7
was previously owned by his/her forefather, irrespective of historical injustices. With a good case being presented,
whether that land was privately owned. There was power either before the ELC or before the NLC, there could
to recommend restitution or compensation, if deemed be avenue for redress, but that avenue would not
appropriate, when dealing with historical injustices, necessarily be an order for resettlement in the very land
but that was not to be construed to mean that a person that was owned by the forefathers of such claimant/s.
had a right to be settled in land that belonged to his/her Redress certainly did not include the invasion of privately
forefather who was dispossessed from it. owned land and did not involve harassing persons who
innocently purchased land. Title had to be respected even
The ELC acknowledged that there was agitation for as historical injustices were being looked at.
land from people who claimed to have faced historical
injustices. The agitation was most intense in the coastal The court respected that the Constitution respected title
region. There was certainly injustice caused by colonialism to private land. If one had title to land, the Constitution
and people were displaced and their lives destabilized. protected that title. The petitioners could not claim that
But that did not just occur in the coastal region, it was their rights were any superior to the constitutionally
countrywide. Persons were displaced in Central Kenya protected rights of the title holders. One problem could
and Rift Valley, where the colonialists established the so not be solved by digging one hole to fill another. The
called white highlands. The Maasai were also displaced solution to the land problem would not necessarily lie in
from a huge swathe of what would otherwise comprise giving out land. Other avenues of mitigating the effects
their native land. So too the Nandi in Uasin Gishu, the needed to be looked at.
Kipsigis in Kericho, and even the Taita at the Coast.
Almost every community that had good land in the eyes The ELC held that there was no law that gave an
of the colonial settlers was dispossessed to pave way for individual a right to own land that was previously owned
colonial occupation. There were native reserves dotted by his/her forefather. Kenyans did not deem it fit to
all over the country where displaced indigenous persons introduce such a law and that had been after considering
were concentrated while the colonialists hogged all the the circumstances prevailing in the country. It had not
prime land. That was unjust and unfair. been shown that there was any illegality in the manner
in which all the suit lands were acquired. It had not been
The court noted that almost every other person in Kenya shown that the respondents violated any rights. No right
had been affected by the historical accident of colonial entitling the petitioners to settle or to be settled on the
occupation. If all asserted that they had a right to be suit lands had been shown. The court was unable to
settled in the land that was originally occupied by their order the respondents to surrender the suit lands to the
forefathers, it would open a pandora’s box and create petitioners, nor order the government to purchase the suit
an even bigger problem, for there would be a massive lands and settle the petitioners in it.
displacement of persons which would be catastrophic.
Even Nairobi itself, with its Maasai origin, would be The court found that the petitioners had gripe against
overrun. How to move on from the dark colonial past did the NLC, but that bile was misplaced. The petitioners
not lie, in the circumstances of the country, by making did lodge a complaint before the NLC. There was a
an order for people to cede their land so that the original resolution, vide which the squatters on the land were
native occupants, or their descendants, be settled in it. settled. In relation to land owned by the 2nd respondent,
Neither did the solution lie in invading land that one the NLC had received a complaint by members of
believed belonged to his ancestor, for that would be a Buguluni community. There was also another complaint
total negation of the constitutional right to property. in relation to the land parcel owned by the 9th respondent.
It had not been shown that the NLC had failed to act.
It was observed by the court that time to recognize that Just because the NLC had not found it fit to order a
the solution to the land problem in Kenya, considering resettlement of the petitioners in the land of the 2nd – 7th
the country’s unique history and prevailing circumstances, and 9th respondents did not mean that they had failed
did not lie in land invasion, or in asserting that land to act. There had not been a violation of the petitioners’
belonging to one’s forefather be given, as of right, to a constitutional rights or any violation of the international
descendant. Doing so would mean bearing the brunt on instruments that the petitioners had mentioned.
very innocent people, and that would lead to even more
unfairness. Most of the lands in question was purchased Orders: -
through hard earned money, or loans. They were investors Petition dismissed with costs payable jointly and/or severally
and they had made sacrifices in order to invest. They were by the petitioners.
also Kenyans and they had a right to own land in any part
of the country.
The Constitution was alive to the fact that there were
8
Supreme Court
The investigatory and enforcement mandates of the Capital Markets Authority were
constitutional despite being held by the same institution.
Alnashir Popat & 7 others v Capital Markets Authority [2020] eKLR
Supreme Court of Kenya
DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
December 11, 2020
Reported by Beryl Ikamari & George Kariuki
Constitutional Law – Bill of Rights – right to fair running into billions of shillings and the board reported
administrative action – right to a fair hearing – whether a the same to Central Bank (CBK) who in turn placed
tribunal could act as both investigator and judge in its own the bank under receivership and appointed the Kenya
case – whether the investigatory and enforcement mandate Deposit Insurance Corporation its Receiver/Manager for
of the Capital Markets Authority were constitutional - a period of twelve (12) months. The appointment also
Constitution of Kenya 2010, articles 25(C), 35, 47(1) and included a declaration of a moratorium on the bank.
50(1); Capital Markets Act (cap 485A), section 11(3)(cc) On the same day, the respondent, on its part, instructed
and 11(3)(h) the Nairobi Stock Exchange (NSE) not to proceed with
the listing of the bank’s bond issue on the Fixed Income
Administrative Law – natural justice – impartiality of the Securities Market Segment until further notice.
decision-maker – legality of the Capital Markets Authority’s
investigatory and enforcement – whether actual bias or an Circumstances surrounding the issuance of the bond were
appearance of bias was the likely result of having the Capital brought to the fore by the respondent. In exercise of its
Markets Authority serve as an investigator and an enforcer statutory authority, it served the petitioners with notices
in the cases of infractions of the provisions of the Capital to show cause and required them to respond, within
Markets Act and the regulations made thereunder. 14 days, to allegations of negligence in the discharge of
their mandate as directors of the bank. No hearing took
Brief facts place on the designated day. However, the respondent-
The petitioners non-executive directors of Imperial Bank appellants claimed that an inquisitorial hearing presided
Limited (the bank) which was under receivership. The by CMA’s chair took place and a summary ruling entered
respondent, a statutory regulatory authority established against the bank’s directors.
under section 5 of the Capital Markets Act is charged with The petitioners appealed against that decision at the High
promoting, regulating and facilitating the development of Court citing conflict of interest. They said that the CMA
orderly, fair and efficient capital markets in Kenya. had acted as licensee, investigator and judge in the issue of
In August 2015, the respondent approved the bank’s the bond. Additionally, they contended that the authority
application to issue to the general public a corporate bond had acted as juror in its own case. The same officials who
of Kshs. 2 Billion. Only the bank’s Managing Director and had greenlighted the issuance of the bond had gone ahead
the Chief Finance Officer were privy to that application. to rule against its regularity and legality.
In September 2015, the managing director passed on At the High Court, the notices sent to the petitioners to
and the former head of credit was appointed acting MD show cause were quashed. The court’s reasoning was that
and deputized the former CFO. In September, the two there existed a real possibility of bias. By acting in both
caught wind of an array of illegal transactions authorized inquisitorial and enforcement mandate, the authority was
by the late Managing Director and reported the same likely to be biased. It therefore ought to have delegated its
to the chair of the non- executive directors. The latter functions to an independent body.
in turn contracted FTI consulting group, to carry out At the Court of Appeal, the authority’s decision was
a forensic audit of the bank’s financial affairs and report upheld. The CMA expressly authorized the overlapping
on its accurate financial position. It also resolved not to inquisitorial and enforcement functions of the
utilize the approved bond issue pending the outcome of respondent. Therefore, the respondent was expected
the investigations by the consultant. to make unprejudiced judgement on matters it had
It was found that the former MD had indeed been running investigated.
a scheme of fraudulent disbursements resulting in losses As a last resort, the appellants called upon the Supreme
9
Court to consider the propriety of the dual statutory 5. Where a statute authorized a tribunal to perform
mandate granted to the respondent as the sole investigator tripartite functions, disqualification on the ground
and enforcer of capital markets infractions in Kenya. of bias ought to have been founded upon some act
of the tribunal going beyond the performance of the
Issues duties imposed upon it by the enactment pursuant
i. Whether the overlapping investigatory and to which investigations were being conducted.
enforcement roles vested in the CMA constituted a 6. Mere advance information as to the nature of the
violation of the rights to fair administrative action complaint and the grounds for it was not sufficient
and fair hearing as recognized in articles 47(1) and to disqualify a tribunal from completing its task.
50(1) (as read with article 25(c)) of the Constitution. 7. Where it was clear from an empowering legislation
ii. Whether section 11(3) (cc) and 11(3)(h) of that certain activities which would otherwise be
the Capital Markets Act which authorized the considered “biased” formed an integral part of its
overlapping investigatory and enforcement mandate operations and the tribunal had not acted outside
of the CMA was unconstitutional. its statutory authority, the doctrine of “reasonable
iii. Whether the CMA’s attempted enforcement apprehension of bias” could not be sustained. A
proceedings after conduct of its investigatory role tribunal’s structure and responsibilities as well as the
with the bank were biased or likely to be biased manner of the discharge of its mandate ought to be
against the bank. considered.
Held: 8. Administrative tribunals were not necessarily
supposed to operate like courts of law. That was
1. Prior to the enactment of the Capital Markets Act, why they were allowed to be masters of their own
the capital market in Kenya faced multiple challenges procedure albeit having to act fairly.
running from illicit intermediaries to lack of a proper
9. For purposes of efficiency and in the carrying out of
legislative guide hence the need for a firm regulatory
the objectives of the Capital Markets Act, especially
regime. Sections 5 and 11(cc) of the Capital
in the expeditious disposal of disputes that arose in
Markets Act established the CMA with a mandate to
the operations of the capital markets, the functions
remove impediments, promote wider performance
set out in section 11(3) (cc) and 11(3)(h) could not
of the general public in the securities commodities
be performed by separate bodies.
market and derivatives and for protection of investor
interests. To achieve the objectives, section 13 of the 10. Section 11(3)(cc) and 11(3)(h) of the Capital
Capital Markets Act granted the authority power Markets Act were not unconstitutional. The
to discipline errant members and to regulate and overlapping mandate did not render those
facilitate the development of an orderly, fair and sections unconstitutional. What would have been
efficient capital market. unconstitutional would have been the discharge of
that dual mandate.
2. The CMA power to inquire, either on its own
motion or at the request of any other person, into 11. It was important to determine whether the authority’s
the affairs of any person which the authority had discharge of a dual mandate in the petitioner’s case
approved or to which it had granted a license and any was itself likely to be unconstitutional under a critical
public company the securities of which were publicly balancing of articles 47(1) and 50(1).
offered or traded on an approved securities exchange 12. Among the canons of statutory interpretation was
or on an over the counter market. that the historical background of legislation ought to
3. Tenets of natural justice decreed that, no person be considered. However, in the promotion of public
should be allowed to be a judge in his or her own policy and efficient administration of the securities
cause or in a cause they had an interest in the market in Kenya, the right to a fair administrative
outcome including situations where one desired or action could not be sacrificed at the altar of efficiency
was keen on obtaining a given result. A prosecutor, or public interest.
for example, had an interest in the conviction of a 13. Individual rights to be duly notified of a hearing,
suspect he hauled into court. given adequate prior information and to be granted a
4. There were exceptions to every general rule. The fair hearing were so fundamental that they could not
exception to the tenets of natural justice set out be limited by public interest.
under article 25(c) as read with article 47 of the 14. The CMA could not be allowed to ride roughshod
Constitution was enunciated in the Canadian case over the non-derogable constitutional rights of
of Re W. D. Latimer Co. and Attorney-General for investors. It would be counterproductive by scaring
Ontario (1973), 2 O.R. (2d) 391 and affirmed in Re away the very prospective investors it sought to
W. D. Latimer Co. and Bray (1974). entice.
10
15. Narrow interests such as fostering investor confidence whether or not they were likely to adversely affect
in the securities market could not be used as an the rights of persons or bodies under investigation.
excuse to deprive the directors of their constitutional 21. The nature of the enforcement proceedings that
right to a fair hearing of the allegations against them. the authority sought to enforce against the directors
16. Despite the legality of the duality of the respondent’s for non-appearance bespoke a quasi-judicial process
mandate under section 11(3) (cc) (h) of the Capital because, based on the material evidence placed
Markets Act, in any matter that could be classified as before it, the CMA would have had to determine the
judicial or quasi-judicial, or one where, in the view of culpability or otherwise of the directors.
a reasonable man conversant with the matter, there 22. Had the directors been found culpable pursuant to
was likely to be bias or a reasonable apprehension of section 11(3) (cc) of the Capital Markets Act, the
bias, the authority ought to have been impartial. authority would have imposed sanctions on them,
17. A reasonable apprehension of bias was the key including financial penalties.
test in determining whether a tribunal had acted 23. There was a real possibility of bias in the petitioners’
impartially. A tribunal was required to observe case. The authority had appraised and approved the
and accord persons under investigations (and or bank’s application. The same authority also initiated
any person) likely to be adversely affected by their and conducted preliminary investigations into
decision a fair process and in particular, it was the bank’s conduct in relation to the application
required to adhere to the principles of natural justice and upon satisfying itself that the bank could have
and comply with the provisions of articles 50 (1) and violated the relevant provisions of the Act and
47 of the Constitution. the Regulations, it made a decision to charge the
18. Enforcement proceedings were not necessarily petitioners and went ahead to formulate the requisite
administrative merely because the enforcement charges. It was the same Board of the CMA that
body was an administrative one. Focus of the also purported to preside over the hearing of the
enquiry was not whether a particular conduct was director’s cases. That obviously led to an inescapable
an ‘administrative action’, but on the nature of the appearance of partiality on the Authority’s part.
power being exercised.
Orders: -
19. An act would be judicial when there was opportunity
to be heard and for production and weighing of i. The petitioners’ appeal was allowed to the extent that
evidence and a decision was rendered. the respondent would proceed with the enforcement
proceedings against the petitioners through its delegated
20. In the discharge of their statutory mandates, tribunals
authority under section 11A (1) and/or section 14(1) of
ought to always first determine whether or not their
the Capital Markets Act.
acts or decisions were judicial or quasi-judicial and
ii. Each party was ordered to bear its own costs.
Structural interdicts are part of the remedies that a court could fashion to remedy a
violation of fundamental rights and freedoms.
Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in
Africa (Amicus Curiae) [2021] eKLR
Petition 3 of 2018
Supreme Court of Kenya
DK Maraga, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & NS Ndungu, SCJJ
January 11, 2021
Reported by Beryl Ikamari
Constitution Law - fundamental rights and freedoms - General Comment No. 7 were part of the laws of Kenya and
enforcement of fundamental rights and freedoms - remedies were of binding effect either under article 2(5) or article 2(6)
in human rights litigation - structural interdicts - whether of the Constitution - Constitution of Kenya 2010, article
structural interdicts were part of the remedies that the court 2(5) and 2(6).
could fashion as an appropriate relief for a violation of
fundamental rights and freedoms - Constitution of Kenya Constitution Law - fundamental rights and freedoms
2010, article 23(3). - enforcement of fundamental rights and freedom - socio-
economic rights - right to housing - principles related to the
International Law - applicability of international law in enforcement of socio-economic rights - when would the right
Kenya - effect of articles 2(5) and 2(6) of the Constitution to housing accrue - Constitution of Kenya 2010, article
on how international law would take effect in a domestic 43(1)(b).
court in Kenya - whether the U.N Guidelines on Evictions;
11
Brief facts In response to the High Court judgment, the 1st

respondent filed an appeal at the Court of appeal. The
The petitioner was a registered society comprised of Court of Appeal made various findings to the following
residents of Mitumba Village. Mitumba Village and effect -
the Mitumba Village Primary School were situated near
Wilson Airport. A notice published in the newspapers a) Pamoja Trust was wrongfully given a role reserved
on September 15, 2011 by the Attorney General gave for the court, when it was asked to be involved in
the residents of Mitumba Village 7 days in which to ascertaining eviction terms and the creation of
vacate the premises. Despite the fact that the petitioner eviction guidelines because Pamoja Trust had no
obtained conservatory orders from the High Court to constitutional mandate of resolving disputes;
restrain the demolition of Mitumba Village, the premises b) the concept of partial judgment or interim judgment
were demolished on November 19, 2011. The petitioner was unknown to Kenyan law; a court had to finally
sought various declaratory reliefs including those that determine all the issues before it and it would then
asserted their ownership of the premises and also stating become functus officio;
that the forceful eviction and demolition without a c) allowing parties to file affidavits and reports after the
relocation option was illegal, oppressive and violative of judgment introduced secondary litigation of issues
the petitioner’s rights. that were not raised in the original pleadings;
The respondent explained that Mitumba Village was d) the security and safety of the flight paths was a
situate in property belonging to the Kenya Airports limitation on enjoyment of the rights and freedoms
Authority and that Authority was under a statutory duty in the Bill of Rights as permitted under article 24 of
to ensure air safety by removing any informal settlement the Constitution;
which was on a flight path. The respondents explained e) there was no legislation in Kenya meant to regulate
that given the ongoing war in Somalia, the village posed forcible eviction and resettlement of persons
a threat. occupying public or private land and before the
enactment of such legislation courts had to interpret
At the High Court, the findings of the court were that and apply the law as it was;
the petitioner (appellants) did not own the suit premises.
f ) The 1st respondent (Kenya Airports Authority) had
The newspaper notice which was said to be a reminder
no mandate to provide policies and programs on
notice was found by the High Court to be unreasonable,
provision of shelter and access to housing as directed
unconscionable and unconstitutional as there was no
by the High Court;
other notice preceding it and it required vacation of the
suit premises within 7 days. The High Court noted that g) the trial Court erred in law in issuing orders and
there was no legislation or guidelines developed in Kenya directions on un-pleaded issues.
for the eviction of persons occupying land that they were h) the court should not act in vain or issue orders it
not legally entitled to occupy. could not implement and policy formulation was
not within the mandate of the courts;
The High Court made the determination that the right to
i) the enforcement and implementation of socio-
property included the protection of goods and personal
economic rights could not confer propriety rights in
property and it extended to goods and building material
the land of another and that the realization of socio-
that had been destroyed during the demolition. The High
economic rights did not override the provisions of
Court also found that the eviction and demolition of the
the Limitation of Actions Act;
premises pursuant to a 7 - day notice and the failure to
provide alternative accommodation was a violation of the A second appeal was filed by the appellants at the Supreme
appellant’s rights to housing and other socio-economic Court. They obtained certification that the matter raised
rights recognized under the Constitution. Further, the issues of general public importance under article 163(4)
High Court found that evictions could be necessary but (b) of the Constitution.
due process had to be followed. Due process included
the issuance of reasonable notice and the conduct of Issues
consultations among those affected by the eviction. i. Whether structural interdicts were recognized
Additionally, the High determined that the demolition reliefs in human rights litigation under the
which left other nearby multi-storied buildings intact Constitution of Kenya, 2010.
was discriminatory. The High Court noted that the
demolitions included the demolition of a school and ii. What was the effect of article 2(5) and 2(6) of
there was no evidence that measures were put in place the Constitution regarding the applicability of
to protect the needs of vulnerable groups particularly international law in general and international
children and that children’s rights were violated. human rights in particular?
12
iii. Whether U.N Guidelines on Evictions; General courts, had to be specific, appropriate, clear, effective,
Comment No. 7 were part of the laws of Kenya and directed at the parties to the suit or any other
and were of binding effect either under article state agency vested with a Constitutional or statutory
2(5) or article 2(6) of the Constitution. mandate to enforce the order. Most importantly, the
court in issuing such orders, had to be realistic, and
iv. When would the right to housing under article avoid the temptation of judicial overreach, especially
43 (1) (b) of the Constitution accrue? in policy matters. When issuing interim orders the
Held court could indicate that the orders were interim in
nature and that the final judgment had to await the
1. The trial court issued interim orders requiring the crystallization of certain actions.
respondents to furnish the court with information
7. Article 2(5) of the Constitution provided that the
about policies and programmes on provision of
general rules of international law formed part of the
shelter and access to housing. However, the Court of
laws of Kenya while article 2(6) of the Constitution
Appeal was of the view that the trial court could not
provided that any treaty or convention ratified by
reserve for itself any outstanding issue as it became
Kenya formed part of the laws of Kenya under the
functus officio after the delivery of the judgment.
Constitution. However, there were divergent views
Therefore, the two superior courts held diametrically
on the meaning of the provisions. One school of
opposed views regarding structural interdicts or
thought was that article 2(6) of the Constitution
interim orders.
transformed Kenya from a dualist to a monist nation
2. Article 23(1) and 23(3) of the Constitution were meaning that Kenya did not have to incorporate
the launching pad of any analysis into the place and (domesticate) an international treaty into its domestic
scope of interim orders in Kenya’s human rights law before the treaty could take effect. The second
enforcement architecture. Article 23(3) provided school of thought was of the view that international
that for a violation of the Bill of Rights the court law was subordinate to the Constitution and could
could grant any appropriate relief including, a only take effect subject to the supreme law of the
declaration of rights, an injunction, a conservatory land. The proponents of the school of thought were
order, a declaration of legal invalidity of any law that not supporters of the view that Kenya was a monist
denied, violated, infringed or threatened a right or state.
fundamental freedom in the Bill of Rights that was
8. The meaning to be attributed to the phrase “shall
not justified under article 24 of the Constitution,
form part of the law of Kenya” in articles 2(5) and
an order for compensation and an order for judicial
2(6) of the Constitution was that in determining
review. The list of appropriate reliefs that the court
a dispute, a domestic court of law had to take
could grant were not exhaustive.
cognizance of rules of international law to the extent
3. The Court of Appeal failed to consider Supreme that the same were relevant and not in conflict with
Court decisions concerning interim reliefs that a court the Constitution, statutes or a final pronouncement.
could issue to address the violation of a fundamental
9. Articles 2(5) and 2(6) of the Constitution were both
right. The appellate court appeared to shut the door
inward looking and outward looking. They were
on the use of interim reliefs or structural interdicts
outward looking in the sense that they committed
in human rights and other constitutional litigation.
Kenya to conduct its international relations in
4. Article 23 (3) of the Constitution empowered the accordance with its obligations under international
High Court to fashion appropriate reliefs, even of an law. On the other hand, they were inward looking
interim nature, in specific cases, so as to redress the because they required Kenyan courts of law to apply
violation of a fundamental right. international law in resolving disputes before them
5. The doctrine of functus officio retained validity and as long as the same were relevant, and not in conflict
vitality in both criminal and civil cases but in certain with, the Constitution, local statutes, or a final
situations the doctrine ought to give way. Subjecting judicial pronouncement. International law could
article 23 of the Constitution, on the court’s power be applied to fill a lacuna in domestic law in the
to fashion appropriate reliefs for human rights context of a dispute before a domestic court because
violations, to the limitation of the Civil Procedure international law was part of the laws of Kenya.
Act’s provisions on the court becoming functus officio 10. Articles 2(5) and 2(6) of the Constitution had
after judgment, would stifle the development of nothing or little significance to do with the monist-
court-sanctioned enforcement of human rights as dualist categorization. Most importantly, the
envisaged in the Bill of Rights. expression “shall form part of the law of Kenya” as
6. Interim reliefs, structural interdicts, supervisory used in the articles did not transform Kenya from a
orders or any other orders that could be issued by the dualist to a monist state.
13
11. Article 2(5) of the Constitution referred to general 16. Article 43 (1) (b) of the Constitution provided that
rules of international law and that did not refer only every person had the right to accessible and adequate
to peremptory norms of international law or jus housing and to reasonable standards of sanitation.
cogens. The two main sources of international law Further under article 21(1) of the Constitution
were treaties and international customs. Jus cogens the State and State organs had the duty to observe,
was a technical term given to those norms of general respect, protect, promote, and fulfill the rights
international law which were of peremptory force and fundamental freedoms in the Bill of Rights.
and as a consequence no derogation was allowed. Jus Under article 21(2) of the Constitution, the State
cogens accounted for only a tiny corpus of the general had to take legislative, policy and other measures,
rules of international law. The suggestion by the including the setting of standards in order to achieve
Court of Appeal that the use of the phrase “general progressive realization of the rights guaranteed
rules of international law” in the Constitution was under article 43 of the Constitution. Therefore, as a
limited to the evolving concept of jus cogens was socio-economic right, the right to housing had to be
inconceivable. realized progressively.
12. The U.N Guidelines on Evictions; General 17. The expression “progressive realization” was neither a
Comment No. 7, at best constituted what was stand-alone nor a technical phrase. It simply referred
known as international jurisprudence or soft law. to the gradual or phased-out attainment of a goal-a
UN Resolutions, Declarations, Comments and human rights goal which by its very nature, could
Guidelines did not ordinarily amount to norms of not be achieved on its own, unless first, a certain set
international law. However, certain UN General of supportive measures were taken by the State. The
Assembly Declarations and Resolutions could ripen exact shape of such measures would vary, depending
into a norm or norms of international law depending on the nature of the right in question, as well as the
on their nature and history leading to their adoption. prevailing social, economic, cultural and political
13. The U.N Guidelines, General Comment No. 7 environment. Such supportive measures could
did not qualify as general rules of international involve legislative, policy or programme initiatives
law, which had a binding effect on members of the including affirmative action.
international community. However, the Guidelines 18. Under article 20(5) of the Constitution, the principles
were intended to breathe life into the right to dignity that should guide a court in the enforcement of rights
and the right to housing under the International provided for under article 43 of the Constitution,
Covenant on Civil and Political Rights (ICCPR) where the state claimed that it did not have resources
and the International Covenant on Civil Economic to implement the right were the following: -
Social and Cultural Rights (ICESCR) respectively. a) it was the responsibility of the State to show that
They therefore constituted soft law in the language the resources were not available;
of international jurisprudence. The trial court could
b) in allocating resources the State had to give
refer to the Guidelines but they could not be elevated
priority to ensuring the widest possible
to the status of general rules of international law
enjoyment of the right or fundamental freedom
under article 2(5) of the Constitution.
having regard to prevailing circumstances,
14. The U.N Guidelines in question were issued including the vulnerability of particular groups
pursuant to article 21 of the International Covenant or individuals and
on Economic Social and Cultural Rights (ICESCR).
c) the court, tribunal or other authority could
Strictly speaking therefore, they could only be
not interfere with a decision by a state organ
considered under article 2(6) of the Constitution,
concerning the allocation of available resources,
which referred to international treaties and
solely, on the basis that it would have reached a
conventions ratified by Kenya. The Guidelines
different conclusion.
could not be regarded as being part of the treaty
under which they were issued. They were tools or 19. The court would exercise its powers under article
aids directed to State parties to help the latter in 20(5) of the Constitution by issuing interim orders
implementing the treaty or better fulfilment of their whose effect was to demand evidence that would
obligations thereunder. exonerate the State from liability. The orders had
to be directed at the State organ responsible for the
15. The Guidelines were not “binding” upon the states
requisite progressive realization measures. That was
parties, nor were they part of the law of Kenya in
what the trial court appeared to have done when
the language and meaning of article 2(6) of the
issuing the interim orders.
Constitution, unless they had ripened into a norm
of customary international law, as evidenced by 20. The question as to when the right to housing accrued
widespread usage. depended upon its progressive realization. In turn,
14
its realization depended upon the availability of land such as compensation, the requirement of adequate
and other material resources. notice before eviction, the observance of humane
21. An illegal occupation of private land would not create conditions during eviction (U.N Guidelines), the
prescriptive rights over that land in favour of the provision of alternative land for settlement, etc.
occupants but the same could not be said of an “illegal 23. The trial court’s orders for the respondents to
occupation” of public land. To the contrary, where furnish the trial court with existing state policies and
the landless occupied public land and established programmes on provision of shelter and access to
homes thereon, they did not acquire title to the land housing were not of remedial benefit to the appellant.
but they had a protectable right to housing over the The trial court ought not to have included non-state
same. The Constitution of Kenya 2010, radically actors, who were not parties to the suit in its orders.
transformed land tenure in the country by declaring 24. The evictions that the appellant complained of were
that all land in Kenya belonged the people of Kenya undertaken in breach of a court order. In the eviction,
collectively as a nation, communities and individuals. houses and other property were destroyed. Actions
It also created a specific category of land known as by state organs, carried out in flagrant disregard of
public land. Therefore, every individual as part of court orders, undermined the constitutional order,
the collectivity of the Kenyan nation had an interest, more so, if they resulted in the violation of citizens’
however indescribable, however unrecognizable, or rights.
however transient, in public land.
Orders: -
22. Faced with an eviction on grounds of public interest,
potential evictees that occupied public land, had i. The appeal dated February 5, 2018 was partially
a right to petition the court for protection. The allowed.
protection, need not necessarily be in the form of an ii. The proceedings were remitted to the trial court,
order restraining the State agency from evicting the with instructions that appropriate reliefs be crafted
occupants, given the fact that the eviction may be and granted in accordance with the Supreme Court
entirely justifiable in the public interest. However, judgment and the pleadings at the High Court.
under article 23(3) of the Constitution, the court iii. No orders as to costs.
could craft orders aimed at protecting that right,
KLR 2013 Vol 1, 2 and 3

Apart from offering great insights
about Constitutional Law in Kenya
after the transition to the new
Constitution of Kenya 2010, the
KLR 2013 series also provides
insights on criminal law, labour law,
tax law and tort law.
The KLR 2013 series is a must
have in your Library!
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15
High Court
The presidential “state of the nation address” directing the indefinite closure of
schools declared unconstitutional for causing psychological harm to school-enrolled
children and for being against the best interests of the child.
Joseph Enock Aura v Cabinet Secretary, Ministry of Education, Science & Technology & 3 others;
Teachers Service Commission & 6 others (Interested Parties) [2020] eKLR
High Court at Nairobi
JA Makau, J
November 19, 2020
Constitutional Law - fundamental rights and freedoms - Nation Address” by the President on March 15, 2020 that
right to education - whether closure of schools for purposes directed the indefinite closure of schools on the basis of the
of combating the COVID - 19 pandemic was constitutional novel COVID-19 pandemic among other measures. The
and whether it exposed children to psychological harm - petitioner brought the petition on behalf of his children:
articles 10(2)(a), 10(2)(b), 22, 23, 53, 131 (2) (e), and JLA (aged 21 years), JMA (aged 18), and DTA (aged 16
135; Children Act, No 8 of 2001, sections 4 32(2) and 22; years) for compensation for the psychological suffering
Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 inflicted on them by the Government of Kenya’s closure
and 70; Public Health Act, (cap 242) section 32. of in-person learning since March 16, 2020, in breach
of their rights against such freedom from psychological
Constitutional Law - constitutionality of subsidiary torture and right to human dignity. The petition was also
legislation - enactment relating to closure of schools in order brought on behalf of millions of such other school going
to combat the COVID - 19 pandemic - role of the Cabinet children.
Secretary for Health and the role of the Cabinet Secretary for
Education, Science and Technology - whether the enactment The petitioner also contended that the Executive
met constitutional and statutory thresholds including through the Ministry of Education and the Ministry
provisions on the best interests of the child as a paramount of Health failed to provide the basis for the unilateral
consideration - Constitution of Kenya 2010, article 53(2) closure of schools without consultation with National
and Children Act, No 8 of 2001, sectiosn 4 32(2) and 22; and County Education Boards even after being probed
Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 by the petitioner. Those administrative actions were
and 70; Public Health Act, (cap 242) section 32. contended to be ultra vires the best interests of the child
as constitutionally founded.
Constitutional Law - office of the Attorney General - the
Attorney General as an advisor to the Executive - whether Lastly, the petition opposed the community based
the Attorney General failed to advise the Executive on how learning enacted by the Ministry of Education as a
to comply with the law when undertaking a closure of schools remedial measure for arresting the effects of COVID-19
due to the COVID - 19 pandemic. on Education. The petitioners contended that the policy
had no underpinning under the law.
Constitutional Law – constitutional litigation – drafting
of petitions - precision in drafting petitions - whether a Issues
petition had been drafted in a manner that sufficiently and i. Whether the closure of schools following a directive
precisely set out a claim so as to enable parties to respond to it issued by the President of the Republic of Kenya
and the court to make a determination. in a “State of the National Address” as part of the
measures put in place to combat the COVID – 19
Constitutional Law - national values and principles of pandemic was unconstitutional
governance - public participation - whether the process of the
ii. Whether the closure of schools as part of the
enactment of the community based learning program failed
measures put in place to combat the COVID – 19
to meet public participation requirements and was therefore
pandemic caused psychological harm to school-
unconstitutional - Constitution of Kenya 2010, article 10.
enrolled children
Brief facts iii. What was the role of the Cabinet Secretary for
Health in the enactments of legislative measures
The petition was brought in response to the “State of the
about COVID-19 pandemic
16
iv. Whether enactments related to the COVID- 19 indefinite closure of schools would permanently
pandemic met legal and constitutional thresholds alter the lives of children caught in the apex of the
with respect to the right to education of school COVID-19 pandemic.
enrolled-children 7. Evidence was adequately adduced to the effect that
v. Whether the Cabinet Secretary for Education, children who faced acute deprivation in nutrition,
Science and Technology discharged its mandate protection or stimulation, or periods of prolonged
under article 53(2) of the Constitution as read exposure to toxic stress, during the critical window of
together with section 32(2) of the Children’s Act, in early childhood development were likely to develop
the face of the open-ended closure of schools over the lifelong challenges as their neurological development
COVID – 19 Pandemic and whether it was in ‘the would be impaired.
best interest of the child’ to re-open schools 8. Children who dropped out of school would not only
vi. Whether the Attorney-General was liable for his face a higher risk of child marriage, child labour,
failure to advice the Executive to adhere to the and teenage pregnancies, they would also see their
relevant statutory requirements when closing schools lifetime earning potential precipitously fall. Children
due to the COVID – 19 Pandemic who experienced family breakdowns during the
vii. Whether the amended Petition was sufficiently and period of heightened stress risk would lose the sense
precisely pleaded or it was based on conjecture of support and security on which children’s wellbeing
depended.
viii. Whether the community based learning program as
enacted was legal 9. Constitutionally, information required by any
person ought to have at first been requested for the
Held:
enforcement or protection of another right and been
1. In exercise of executive authority, the President was denied before a violation of the right to information
bound to promote service to the people for their could be alleged. The petitioner failed to prove the
well-being and benefit. In doing so, the President was allegation against provision of information to the
required to consult with the County and National required standard of proof.
Executive Boards.
10. The benefit of the petitioner’s school going children
2. According to rules of practice, petitioners and other school children attending school in-person
approaching the constitutional court were required out-weighed the risks of COVID – 19 as urged by the
to disclose in their petition a brief statement of facts respondent as long as the respondents ensured that
with reference to exhibits, attached to the petition, COVID – 19 measures and safety protocols were put
issues arising for determination and a concise in place and fully complied with in each and every
statement of argument on each issue incorporating school by both the learners and the teachers.
the relevant authorities referred to.
11. The best interest of any child was to be in school
3. The petitioner failed to specifically plead the breach in-person as there was more control, guidance and
allegedly committed in the President’s address. In provision of health safe measures in the school
that regard, the court had inherent jurisdiction to than leaving the children roaming in the villages or
prevent an abuse of its process and it therefore had shanties or towns without observing any COVID-19
a duty to intervene and stop such proceedings to Health Protocols.
prevent abuse of the court process.
12. It was important for school-going children to have
4. In issuance of the “State of the Nation Address” the social interaction and academic development
pursuant to article 10 of the Constitution, the that could be reaped only from in-person learning.
President was entitled to address the nation on any Therefore, the school going children would
issue of national concern, as it arose anywhere. The reasonably be safe in school given that health
closure of schools following a directive issued by conditions that would place children at health risk
the President of Republic of Kenya in a “State of the were given priority.
Nation Address” was therefore constitutional and did
13. The acts of default alleged against the Attorney
not violate the Constitution of Kenya in any way.
General were not particularized or specifically
5. Injuries suffered as a result of discrimination, pleaded and there was no demonstration from the
harassment or inhuman and degrading treatments petitioner that any such impugned acts were done.
were no less real because they did not possess There was no demonstration on part of the petitioner
tangible physical or financial consequences. The that the impugned acts were done in bad faith for
difficulty in assessing the amount of compensation executing the functions, power’s or duties of the
for that type of injury ought not to deter the court commission so as to render the Attorney General
from recognizing its potential. liable to any action, claim or demand whatsoever.
6. There was genuine prospect that the effects of the
17
There was therefore no basis in the petitioners’ and reopening program of schools in Kenya at any time
allegation that the Attorney General failed to advise conducted without involving the National Education
the Executive. Board, the respective County Education Boards, the
14. The petition was drawn in accordance with guidelines County Parent’s Associations from school through a
statutorily set out for drawing constitutional delegate system as mandated in the Third Schedule to
petitions. The petition was therefore not an abuse of the Basic Education Act was null and void.
the court process as the relevant articles were clearly iii. A declaratory order was issued declaring that, in
stated as were the particulars. prolonging the open-ended closure of schools and learning
15. Evidence was sufficiently adduced to the effect institutions in Kenya from March 16, 2020 to date
that the interest of justice as regards the welfare of without any consultations with the parents, guardian
children would be better served when the children of school-enrolled children, affected learners in diverse
were at school than when out of school without learning institutions, in conjunct with the National
any control as regard person-to-person contact. The Education Board and respective County Education
respondents could have given directions when most Boards, the 1st respondent’s (Cabinet Secretary, in
of the children were at school. charge of Education’s) action was ultra vires Section 4
(I) and Section 70 of the Basic Education Act.
16. The Executive stepped beyond what the law and
the Constitution permitted. They could therefore iv. A declaratory order issued declaring that the “community-
not seek refuge in illegality and hide under the twin based” learning project announced by the 1st respondent
doctrines of parliamentary privilege and separation on July 30, 2020 in conjunct with the 1st Interested
of powers to escape judicial scrutiny. Party, (Teachers Service Commission) was null and
void for want of public participation and consultation
17. The respondents did not rebut the petitioner’s
with the National Education Board, respective County
contention that the community Based Learning
boards across Kenya, and the petitioner via his cited
program was unilaterally commenced, that there
children’s school, and like parents of school-enrolled
were no consultations with the stakeholders and that
children across Kenya.
they were not on relevant provisions of the Basic
Education Act. v. An order of injunction was issued to restrain the 1st
respondent by himself, his assistants and partners, agents,
18. There was a sixteen-member Committee appointed
servants, or otherwise howsoever, together with the
by the Minister but there was no evidence that
1st interested party, Teacher Service Commission from
the committee made any report on Community
undertaking, or further executing the “community-based
Based Learning Program and even if they did so,
learning” project in schools and learning institutions
it was not supported by any provisions of the Basic
across Kenya as announced by the 1st respondent on July
Education Act. The project was ultra vires the Act
30, 2020.
and was therefore null and void for all purposes and
intentions. vi. An order of mandamus was issued to compel the
1st respondent to immediately direct the re-opening
Orders:-
of in-person learning institutions and schools in
i. A declaratory Order was issued declaring that each of the Kenya, observing the health and safety guidelines and
petitioner’s school-going children subject of this petition, considering a safe environment, commencing forthwith
JLA (aged 21 years), JMA (aged 18), and DTA (aged and not later than 60 days of the order for learning
16 years) and all equally implicated Kenyan school- institutions and schools across the Republic of Kenya so
going children and learner’s fundamental rights and as to have all the learners in learning institutions and
freedoms in relation to their education as enumerated schools enjoying in-person learning.
in the petition were contravened and grossly violated by
vii. An order of certiorari by way of judicial review was
the respondents as enumerated in the petition.
issued to bring into the court for purposes of quashing,
ii. An order was issued declaring that pursuant to article the 1st respondent’s decision made on July 30, 2020
10 (2) (a) and 10 (2) (b) of the Constitution of Kenya, purporting to declare and execute “community-based
the 1st respondent was bound by the principles of learning” program in schools, learning institutions,
patriotism, public participation, transparency, fairness, churches and places of worship across Kenya, for lacking
human rights, and good governance in the execution of of public participation and being ultra vires Section 42
the terms of his portfolio and duties appurtenant to the (1) of the Basic Education Act, Act No. 14 of 2013.
education sector in Kenya as spelt out in the applicable
viii. Each party was directed to bear their own costs in the
statutory regimes, and any recommendations by any
petition.
person or entity to the 1st respondent on the closure
18
State corporations and parastatals were not offices in the public service
Katiba Institute & another v Attorney General & another [2020] eKLR
Constitutional Petition 331 of 2016
J W Lesiit, E C Mwita & L M Njuguna, JJ
December 4, 2020
Reported by Chelimo Eunice
Constitutional Law – interpretation of the constitution the Public Service Commission Act conformed with the
- principles applicable in constitutional interpretation - definition provided for by the Constitution – who was a
holistic interpretation of the Constitution – meaning of public officer – who was a public office - test for determining
holistic interpretation of the Constitution – constitutionality whether an office was a public office - whether state
of statutes - principles for determining constitutional validity corporations and parastatals were offices in the public service
of a statute – constitutionality of statutory provisions – whether positions of chairpersons and members of boards
which conferred discretion on the President and his cabinet of state corporations and parastatals were offices in the public
secretaries to make appointments in a manner other than service - Constitution of Kenya, 2010, article 260; Public
as contemplated by Constitution and applicable values and Officer Ethics Act, section 2; Public Service Commission Act,
principles, in that they did not require the appointments section 2.
to be open, transparent or competitive - construing statutes
enacted prior to the 2010 Constitution - Constitution of Constitutional Law – public finance – public money - what
Kenya, 2010, articles 232, 259, sixth schedule, section 7; was meant by public money - public funds – consolidated
Public Officer Ethics Act, section 22; Public Service (Values fund – management of the consolidated fund – whether state
and Principles) Act, section 10. corporations and parastatals were funded using public money
- whether remuneration and benefits of state corporations
Constitutional Law – constitutional commissions – and parastatals were drawn from the consolidated fund -
Public Service Commission (PSC) – establishment of the Constitution of Kenya, 2010, article 206; Exchequer and
Public Service Commission – functions and mandate of the Audit Act, section 2; Public Finance and Management Act,
Public Service Commission – whether the Public Service section 2; State Corporations Act, sections 10 and 11.
Commission had the mandate to appoint chairpersons and
members of boards of state corporations and parastatals - Brief facts
Constitution of Kenya, 2010, articles 233 and 234. The petition challenged the selection and appointment
Constitutional Law – national values and principles by the President and members of his cabinet, of persons
of governance – values and principles of public service to the positions of chairpersons and members of boards
– requirement that national values and principles of to various state corporations and parastatals. They sought
governance bound all state organs, state officers and public to have all appointments made by the President or
officers – requirement that values and principles of public cabinet secretaries gazetted in Gazette Notice volumes;
service applied to public service in all state organs in both CXVIII – No. 23, CXVIII – No. 28, CXVIII-No. 62,
levels of government and all state corporations – requirement CXVIII – No. 66, CXVIII – No. 70 and CXVII – No.72
for fair competition and merit as the basis of appointments (impugned appointments) invalidated. The basis for that
and promotions in the public service – whether it was challenge was that the mandate to select and appoint
mandatory to comply with the constitutional principles persons to those positions ought to be exercised by the
of good governance and values and principles of public 2nd respondent, and in accordance with the values and
service or they could be realized progressively – whether the principles in articles 10 and 232 of the Constitution.
appointment of various chairpersons and members of boards They also sought to nullify provisions in various statutes
of state corporations and parastatals either by the President that purported to give power to the President and his
or respective cabinet secretaries met the constitutional test of cabinet secretaries to make such appointments (impugned
transparency, openness, meritocracy and competitiveness - provisions).
Constitution of Kenya, 2010, articles 10 and 232; Public The petitioners further sought a declaration that any
Service (Values and Principles) Act, section 10. selection and appointment of persons as chairpersons
Statutes – interpretation of statutory provisions – Public and members of boards of state corporations and
Officer Ethics Act, Public Service Commission Act - parastatals had to be based on the principles including
interpretation of section 2 of the Public Officer Ethics Act fair competition and merit and that the process had to
and section 2 of the Public Service Commission Act on be transparent and accountable. They argued that such
definition of public officer – whether the definition of public positions were public offices in the public service, and
officer in section 2 of both the Public Officer Ethics Act and that those appointed to those positions were public
19
officers and were, therefore, subject to the constitutional disciplining its government. The spirit and tenor
provisions applicable to public service. of the Constitution had to preside and permeate
the process of judicial interpretation and judicial
The respondents opposed the petition arguing, among discretion.
others, that state corporations and parastatals were not
3. The Constitution was an organic instrument.
offices in the national or county governments or public
Although it was enacted in the form of a statute,
service, that most of the impugned provisions were in
it was sui generis. It had to be interpreted broadly,
existence before the 2010 Constitution, and that the
liberally and purposively so as to avoid the austerity
Constitution provided a solution where such Acts were
of tabulated legalism and to enable it to continue to
found not to be in conformity with it.
play a creative and dynamic role in the expression
Issues and the achievement of the ideals and aspirations of
the nation. Constitutional provisions had to be read
i. Who was a public officer and what constituted a
to give values and aspirations of the people. Courts
public office?
had to appreciate throughout that the Constitution,
ii. Whether state corporations and parastatals were of necessity, had principles and values embodied
offices in the public service. in it. That the Constitution was a living piece of
iii. Whether remuneration and benefits payable to state legislation, it was a living document.
corporations and parastatals were drawn from the 4. Holistic interpretation of the Constitution was
consolidated fund or money directly provided by advocated for. Holistic interpretation meant
parliament. interpreting the Constitution in context. It was
iv. Whether positions of chairpersons and members contextual analysis of a constitutional provision,
of boards of state corporations and parastatals were reading it alongside and against other provisions,
offices in the public service. so as to maintain a rational explication of what the
v. What principles applied in constitutional Constitution meant in light of its history, of the issues
interpretation? in dispute and of the prevailing circumstances. Such
scheme of interpretation did not mean an unbridled
vi. What principles were applicable in determining
extrapolation of discrete constitutional provisions in
constitutional validity of a statute?
each other, so as to arrive at a desired result.
vii. Whether statutory provisions which provided for
5. The Constitution established various commissions
appointment of chairpersons and members of boards
and independent offices. Article 233 of the
of state corporations and parastatals in a manner
Constitution established the 2nd respondent
other than as contemplated by Constitution and
(Public Service commission). Article 234(2) of
applicable values and principles were constitutional.
the Constitution as read with the Public Service
viii. How were statutes enacted prior to the 2010 Commission Act (PSC Act) provided for the
Constitution, construed? functions and mandate of the 2nd respondent.
ix. Whether the Public Service Commission had the According to the PSC Act, the functions of the 2nd
mandate to appoint chairpersons and members of respondent included, establishing and abolishing
boards of state corporations and parastatals. offices in the public service, appointing persons to
x. Whether constitutional principles of good governance hold or act in those offices and promoting values and
and values and principles of public service could be principles in articles 10 and 232 of the Constitution
realized progressively. throughout the public service. Article 232(2) of the
Constitution set out the principles of public service
Held
and stated that the values and principles applied to
1. Article 259(1) of the Constitution enjoined courts to public service in all state organs in both levels of
interpret the Constitution in a manner that promoted government and all state corporations.
its purposes, values and principles, advanced the rule 6. Different statutes defined what was meant by a
of law, human rights and fundamental freedoms in public officer. They included section 2 of the Public
the Bill of Rights, permitted the development of the Officer Ethics Act and section 2 of the PSC Act. The
law and contributed to good governance. Leadership and Integrity Act, and Public Service
2. The Constitution was not simply a statute which (Values and Principles) Act adopted the definition
mechanically defined the structures of government of public officer assigned by article 260 of the
and the relationship between government and the Constitution. The definitions in the statutes had to
governed. It was a mirror reflecting the national soul, be considered alongside that in the Constitution.
the identification of ideas and aspirations of a nation, Article 260 of the Constitution defined public officer
the articulation of the values bonding its people and to mean any state officer or any person, other than a
20
state officer, who held a public office. of their revenue and expenditure for the following
7. The Public Officer Ethics Act, PSC Act and Public financial year, accompanied by proposals for funding
Service (Values and Principles) Act did not define of the projects to be undertaken. That was testimony
public office but adopted the meaning of public to the fact that state corporations and parastatals
officer in article 260 of the Constitution. On the generated their own revenue for expenditure and
other hand, the Leadership and Integrity Act did not their funding was not necessarily wholly provided
define public office, but defined public entity. for by parliament.
8. According to article 260 of the Constitution, 13. State corporations and parastatals, therefore, were
determination of whether an office was a public office not offices in public service, state organs or bodies
depended on two tests. The first test being whether established under the Constitution. Remuneration
it was an office in the national government, county and benefits of chairpersons and members of boards
government or public service. The second test was if of those bodies were not drawn from the consolidated
the remuneration thereof was from the consolidated fund. They were, however, funded by public money
fund or money directly provided by parliament. from the treasury through line ministries. That
funding notwithstanding, and not being state organs
9. On the first test, state corporations and parastatals
or bodies established under the Constitution, they
were not offices in the public service because they
did not qualify as offices in the public service.
were neither offices in the national government nor
county government as defined by the Constitution. 14. Public service was the collectivity of all individuals,
The Constitution was also clear that to be a other than state officers, performing a function
public service, there had to be the collectivity of within a state organ, while state organ was either a
individuals who were performing a function within a commission, office, agency or other body established
commission, office, agency or other body established under the Constitution. That meant that the
under the Constitution, except state officers. More collectivity of the individuals had to be performing
importantly, state corporations and parastatals were a function within a state organ established under
not offices established under the Constitution. the Constitution. Offices in state corporations and
On the second test, even if state corporations and parastatals were not commissions, offices, agencies
parastatals were to be deemed to be offices in the or other bodies established under the Constitution.
public service, they would still not pass the test, if They were, therefore, not state organs within
remuneration and benefits thereof were not payable the meaning of the Constitution. Consequently,
directly from the consolidated fund or out of money positions of chairpersons and members of boards of
provided by parliament. state corporations and parastatals were not offices in
the public service.
10. Article 206 of the Constitution established the
consolidated fund and its management. The 15. Since positions in state corporations and parastatals
consolidated fund was the main bank account of the were not positions in the public service, the argument
national government into which all money raised by that the impugned appointments ought to have
it or received on its behalf was paid. Money from that been made by the 2nd respondent was untenable.
account could only be withdrawn with the authority Whereas the 2nd respondent was the institution
of parliament and such withdrawal approved by responsible for establishing and abolishing offices in
the Controller of Budget. In that regard, there was the public service and appointing persons to hold
no submission before court that remuneration and or act in those offices, appointments to positions in
benefits of state corporations and parastatals were state corporations and parastatals could only be made
either drawn or not from the consolidated fund. pursuant to provisions in the statutes establishing
those bodies.
11. Section 2 of both the Exchequer and Audit Act and
the Public Finance and Management Act, 2012 16. The Constitution in article 132(4)(a) conferred on
defined what is meant by public money. It followed, the President powers to perform any other executive
therefore, that public money was any money in the function provided for in the Constitution or in
possession of the national government, either raised national legislation. The impugned provisions were
on its behalf or held by it in trust for third parties. national legislations which gave the President power
to appoint persons to positions of chairpersons or
12. According to sections 10 and 11 of the State
members of boards in respective state corporations
Corporations Act and the definition of public
and parastatals. Where national legislation provided
money, state corporations were funded using public
that an appointment be made by the President, the
funds by the treasury through line ministries. That
appointment could only be made as provided for.
funding though was not exclusive since they also
generated their own money from other sources. That 17. The constitutional architecture created room under
was borne by the fact that they submitted estimates article 132 for the President to perform some duties
21
as a Head of State, which was a noble thing in a compliance with that mandate, parliament enacted
constitutional democracy. One of the noble tasks Public Service (Values and Principles) Act. Section
given to the President was to make state and public 10 of the Public Service (Values and Principles) Act
appointments even where he had no other role to provided that the public service, a public institution
play in the process of appointment. or an authorized officer, ought to ensure that public
18. The argument that cabinet secretaries could officers were appointed and promoted on basis of
not make the impugned appointments was also fair competition and merit. That, however, was
untenable. The appointments were made pursuant subject to affirmative action as demanded by both
to statutory provisions in statutes establishing those the Constitution and the Public Service (Values
state corporations and parastatals. In that regard, the and Principles) Act. Section 10(3) of the Public
accusation leveled against the 2nd respondent, of its Service (Values and Principles) Act required each
inaction or omission, to appoint chairpersons and public institution or authorized officer to develop a
board members to state corporations and parastatals system for the provision of relevant information that
was unjustified. The 2nd respondent could not be promoted fairness and merit in appointments and
blamed for not appointing persons to those positions, promotions.
given that the laws in place were clear on the 22. The respondents did not show at all that the
appointing authorities. There was no justifiable cause impugned appointments were made transparently,
to accuse the 2nd respondent as having committed openly and competitively. There was no attempt
dereliction of duty. The 2nd respondent could not at all to ensure compliance with the constitutional
purport to act where the law dictated otherwise principles of public service, which applied to state
which would result into unwarranted antagonism. corporations and parastatals.
There was no fault on the part of the 2nd respondent 23. Kenya’s constitutional scheme did not require
in that regard. The President and cabinet secretaries deliberate or progressive reforms. It was the supreme
had the statutory mandate to make the impugned law and bound all persons, state and public officers.
appointments. Compliance with constitutional principles of public
19. In the preamble to the Constitution, the people service entailed putting in place mechanisms that
aspired a government based on the essential values guaranteed enforcement of those requirements.
of human rights, equality, freedom, democracy, When the Constitution spoke of transparency,
social justice and the rule of law. According to article fair competition and merit, it meant just that. The
4(2) of the Constitution, Kenya was a multi-party constitutional principles of public service were not
democratic state founded on the national values and mere suggestions. They were commands that had to
principles of governance. The national values and be complied with and obeyed without exception.
principles of governance which bound all state organs 24. The Constitution also required appointments to
in article 10 of the Constitution included the rule be subject to affirmative action. The marginalized,
of law, democracy and participation of the people, gender and persons with disabilities were to be
transparency and accountability. The supremacy of considered and adequately represented. That
the Constitution was emphasized in article 2(1) of conferred a guaranteed right to those groups,
Constitution. which right was protected by the Constitution.
20. Article 10 (2) of the Constitution was on national The constitutional theme was maximization and
values and principles of governance, while article not minimization, expansion not constriction,
232 of the Constitution was on values and principles when it came to enjoyment and concomitant
of public service. Article 232 of the Constitution facilitation and interpretation. Public institution
provided that fair competition and merit was the or authorized officer concerned had to ensure that
basis of appointments and promotions in the public public officers were appointed and promoted on the
service. That was subject to ensuring representation basis of fair competition and merit and demonstrable
of Kenya’s diverse communities and affording transparency, subject to affirmative action. The 1st
adequate and equal opportunities for appointment, respondent was required to demonstrate that there
training and advancement, at all levels of the public was indeed an open and transparent process, leading
service of men and women, members of all ethnic to the impugned appointments, in compliance with
groups and persons with disabilities. Values and the constitutional command.
principles of public service applied to public service 25. The respondents did not discharge their noble
in all state organs in both levels of government and duty. The Constitution provided for compliance
all state corporations. with the principles of good governance and values
21. Parliament was mandated to enact legislation to and principles of public service. It did not provide
give full effect to article 232 of the Constitution. In that those principles be progressively realized.
22
The respondents had an obligation to show, to the the Constitution, the court had to go further and
satisfaction of the court, that the appointments were examine the effect of its implementation. If either
made as demanded by the Constitution and not its purpose or the effect of its implementation
otherwise. infringed a right guaranteed by the Constitution,
26. The argument that the court could not invalidate the impugned statute or section, thereof, would be
the appointments because that would amount to declared unconstitutional. The object and purpose
making adverse orders against persons who were not could be discerned from the intention expressed in
parties to the petition would not stand in the face the statute itself.
of clear constitutional provisions. The petitioners 30. The common denominator in all the impugned
had not challenged the competence of the persons provisions, save for, the Tourism Act, The National
whose appointments had been questioned. What Youth Service Act, 2018 and the National Youth
was challenged was the process through which the Council Act, was that they conferred discretion on
appointments were made. Even if those persons the President and his cabinet secretaries to appoint
were made parties to the petition, they could not chairpersons and members of boards of state
argue that their appointments complied with the corporations and parastatals, in a manner other than
Constitution. Moreover, some were joined in the as contemplated by the Constitution and Public
petition but did not attend at the hearing. Their Service (Values and Principles) Act, in that they did
failure to participate in the petition could not in any not require the appointments to be open, transparent
way affect the outcome of the petition. or competitive.
27. The people of Kenya desired that appointments to be 31. Section 22 of the Public Officer Ethics Act provided
made in an open, transparent and inclusive manner that a public officer ought to practice and promote
taking into account, the marginalized and people the principle that public officers were to be selected
with disabilities. They deserved no less. They were on the basis of integrity, competence and suitability,
entitled to their wish as a matter of right and not or elected in fair elections. On the other hand,
privilege. It was a constitutional compulsion. Thus, section 10(1) of the Public Service (Values and
the impugned appointments did not comply with Principles) Act, a normative derivative of article 232
constitutional values and principles in articles 10 of the Constitution, provided that the public service,
and 232 of the Constitution and the Public Service institutions or authorized officers were to ensure that
(Values and Principles) Act. public officers were appointed and promoted on
28. Article 2(4) of the Constitution provided that any the basis of fair competition and merit, subject to
law that was inconsistent with the Constitution was affirmative action.
void to the extent of the inconsistency, and any act 32. Some of the impugned provisions did not require
or omission in contravention of the Constitution that appointments be made in a transparent
was invalid. Courts had developed general principles and competitive manner. The provisions simply
on which to test constitutionality of statutes. First, conferred discretion on the appointing authorities to
there was a general but rebuttable presumption that make such appointments as they deemed fit. Most
a statute or statutory provision was constitutional of the provisions did not require that vacancies be
and the burden was on the person alleging advertised, that applicants be subjected to interviews
unconstitutionality to prove the invalidity. It had and that only the best would be appointed. Some
to be assumed that the legislature understood and of the provisions merely laid down qualifications
appreciated the needs of the people and that the laws without demanding that there be transparency, and
it enacted were directed to the problems which were that appointments be based on fair competition and
made manifest by experience and that the elected merit. They conferred discretion on the President
representatives assembled in a legislature, enacted and his cabinet to make appointments without
laws which they considered to be reasonable for the regard to the Constitution and applicable values
purpose for which they were enacted. Presumption and principles. That violated the founding values of
was, therefore, in favour of constitutionality of an transparency and accountability in articles 10 of the
enactment. Constitution and the values and principles of public
29. The second principle for determining constitutional service in article 232(1) of the Constitution, which
validity of a statute was by examining its purpose were also emphasized in section 10 of the Public
or effect. The purpose of enacting a legislation, Service (Values and Principles) Act.
or the effect of its implementation, would lead 33. Ordinarily, a statute or its provision ought to be
to nullification of the statute or its provision, if declared constitutionally invalid for going against
found to be inconsistent with the Constitution. If the Constitution. However, the challenge was
its purpose did not infringe a right guaranteed by directed to statutes, some of which were enacted
23
prior to the 2010 Constitution. Section 7 of the in conformity with articles 10 and 232 of the
sixth schedule of the Constitution demanded that Constitution, as read with section 10 of the Public
laws enacted prior to 2010, be construed with the Service (Values and Principles) Act. The appointments
alterations, adaptations, qualifications and exceptions had to, however, be transparent, accountable,
necessary to bring them into conformity with the competitive and merit based, subject to affirmative
Constitution. That was, the impugned provisions action. In order to achieve that, parliament had a
on appointment ought to be read as requiring that duty to ensure that legislations were aligned with
the appointments be made as required by article the Constitution and Public Service (Values and
232 of the Constitution, as amplified in sections 10 Principles) Act, when it came to appointments in
and 22 of the Public Service (Values and Principles) state corporations and parastatals. The court was,
Act and Public Officer Ethics Act, respectively. That thus, unable to declare the impugned provisions
was the bare minimum institutions and authorized unconstitutional. It, however, emphasized that all
officers had to meet when making appointments to appointments to state corporations and parastatals
state corporations and parastatals, not only those of had to comply with the principles in article 10 and
chairpersons and members of boards, but also all 232 of the Constitution and Public Service (Values
appointments within those institutions. and Principles) Act.
34. Even though some of the post 2010 statutes did Petition partly allowed, with each party bearing own costs.
not expressly state that appointments be made in
an open, transparent, and based on fair competition Orders
and merit, the institutions and authorized officers i. A declaration issued that all appointments made by the
responsible for making the appointments, had no President or cabinet secretaries on; March 11, 2016
excuse for not complying with the Constitution and and gazetted in Gazette Notice Vol. CXVIII – No. 23;
the law. Any appointments whether made under March 18, 2016 and gazetted in Gazette Vol. CXVIII –
the pre or post 2010 statutes, had to be in tandem No. 28; June 10, 2016 and gazetted in Gazette No. Vol
with the Public Service (Values and Principles) Act, CXVIII-No. 62; June 17, 2016 under Gazette Notice
2015, which Act was enacted to give effect to the Vol. CXVIII – No. 66; June 24, 2016, Gazette Notice
provisions of article 232 of the Constitution. That Vol. CXVIII – No. 70; and July 1, 2016 vide Gazette
was the best way to read the impugned provisions, so Notice Vol. CXVII– No. 72, were unconstitutional for
as to be in conformity with the Constitution, rather violating articles 10 and 232 of the Constitution and
than invalidating them. A law or regulation ought the Public Service (Values and Principles) Act, and
to, as much as possible, be read to be consistent and therefore invalid.
be declared unconstitutional or void, only where it
ii. An order issued quashing the appointments made on
was impossible to rationalize or reconcile it with the
March 11, 2016 and gazetted in Gazette Notice Vol.
Constitution or the Act. It was the duty of a judicial
CXVIII – No. 23; March 18, 2016 and gazetted in
officer to interpret legislation in conformity with the
Gazette Vol. CXVIII – No. 28; June 10, 2016 and
Constitution, so far as that was reasonably possible,
gazetted in Gazette No. Vol CXVIII-No. 62; June 17,
while on the other hand, the legislature was under a
2016 under Gazette Notice Vol. CXVIII – No. 66; June
duty to pass legislation that was reasonably clear.
24, 2016, Gazette Notice Vol. CXVIII – No. 70; and
35. It was not prudent to invalidate the impugned July 1, 2016 vide Gazette Notice Vol. CXVII– No. 72.
provisions when the appointments could be made
24
Failure to investigate and prosecute sexual and gender based violence related crimes
is a violation of the rights to life; the prohibition of torture, inhuman and degrading
treatment; and the security of the person
Coalition on Violence Against Women & 11 others v Attorney General of the Republic of Kenya & 5
others; Kenya Human Rights Commission(Interested Party); Kenya National Commission on Human
Rights &3 others(Amicus Curiae) [2020] eKLR
Petition No. 122 of 2013
W Korir, J
December 10, 2020
Reported by Kakai Toili
Constitutional Law – fundamental rights and freedoms a case was res judicata.
– enforcement of fundamental rights and freedoms - right
to life, right to freedom and security of the person, freedom Brief facts
from torture and cruel, inhuman or degrading treatment or Following the announcement of results of the December
punishment and the right to appropriate remedy – claim 2007 general election, widespread violence and
that the police failed to investigate rape reports and also demonstrations ensued. During that period of unrest
failed to make arrests during the 2007/2008 post-election several women, men and children were subjected to
violence period - factors to consider in determining a claim forms of sexual and gender based violence (SGBV).
for violation of constitutional rights - factors to consider in The petitioners brought the instant petition against the
determining whether the Government was liable for civil respondents for their failure to anticipate and prepare
disorder - whether the failure to investigate and make arrests adequate and lawful policing responses to the anticipated
amounted to a violation of the victims constitutional rights civil unrest that contributed to the SGBV, and the failure
– Constitution of Kenya, 2010, articles 23, 156, 157 and to provide effective remedies to the victims of SGBV
165; Constitution of Kenya (Repealed) sections 70, 71 and which violated the fundamental rights of the 5th to 12th
74; Convention against Torture and Other Cruel, Inhuman petitioners and other victims. The rights alleged to have
or Degrading Treatment or Punishment, 1984, article 16; been violated included; the right to life; the prohibition
International Covenant on Civil and Political Rights, 1966, of torture, inhuman and degrading treatment; the right
articles 6, 7 and 9; Universal Declaration of Human Rights, to security of the person; the right to protection of the
1948, articles 3 and 5; African Charter on Human and law; the right to equality before the law and freedom from
People’s Rights, 1981, articles 4, 5 and 6; Protocol to the discrimination; the right to information; and the right to
African Charter on Human and People’s Right on the Rights remedy and rehabilitation.
of Women in Africa, 2003, article 4.
The petitioners brought the instant action against the
Constitutional law – application of the Constitution – 1st and 4th respondents for among others the failure
retrospective application of the Constitution - whether article to train State security agents (police) in lawful methods
22 of the Constitution on the right to institute public interest of conducting law enforcement operations to prevent
litigation could apply retrospectively – whether the right to the commission of crimes by the police; failure to take
information under the Constitution of Kenya, 2010, could adequate security measures, particularly the failure to
be applied to requests to information on the 2007/2008 plan and prepare law enforcement operations during PEV
post-election violence which predated the Constitution - to protect victims from SGBV; and failure to supervise
Constitution of Kenya, 2010, article 22 and 35; Constitution police and to prevent and punish crimes committed by
of Kenya (Repealed) section 84. police. It was claimed that the 5th and 6th respondents’
Constitutional Law – fundamental rights and freedoms staff and or employees failed to provide emergency
– freedom from torture and cruel, inhuman or degrading medical services, particularly where the perpetrators were
treatment or punishment - elements and the nature of torture public officials such as police officers.
- whether forced circumcision amounted to rape. The petitioners contended that the 1st, 2nd, 3rd and 4th
Constitutional Law – fundamental rights and freedoms respondents had failed to investigate or take meaningful
– right to information - what were the factors to consider steps towards ensuring the redressing of gross human
in determining a violation of the right to information – rights violations perpetrated against the victims. The
Constitution of Kenya, 2010, article 35. petitioners therefore sought among others; a declaratory
order to the effect that the right to life, the prohibition of
Civil Practice and Procedure – res judicata – elements of torture, inhuman and degrading treatment, the right to
res judicata - what were the elements required to prove that security of the person, the right to protection of the law,
25
the right to equality and freedom from discrimination, Held

the right to information, and the right to remedy were
1. There was no equivalent of article 22 of the
violated in relation to the petitioners 5 to 12 (both
Constitution of Kenya, 2010 (Constitution), under
inclusive) and other victims of SGBV during the PEV,
the repealed Constitution and according to section
as a result of the failure of the Government of Kenya to
84 of that Constitution; proceedings could only be
protect those rights;
instituted for the violation of rights on behalf of a
Issues detained person. Moreover, the words used in article
22(1) did not contain suggestions of retrospectivity.
i. Whether article 22 of the Constitution of Kenya, The right to institute public interest litigation only
2010, on the right to institute public interest existed in the context of the Bill of Rights of the
litigation could apply retrospectively. Constitution. Therefore, article 22 and the right
ii. What were the elements required to prove that a case to institute proceedings on behalf of all victims of
was res judicata? SGBV could not apply retrospectively.
iii. What were the elements and the nature of torture 2. The elements required to prove that a case was res
and whether forced circumcision amounted to rape? judicata were:
iv. What were the factors to consider in determining a a. The suit or issue was directly and substantially
claim for violation of constitutional rights to life and in issue in the former suit.
property by the Government? b. The former suit was between the same parties
v. What were the factors to be considered in or parties under whom they or any of them
determining whether the Government was liable for claimed.
civil disorder? c. The parties were litigating under the same title.
vi. Whether the failure by the police to investigate a rape d. The issue was heard and finally determined in
report and make arrests amounted to a violation of the former suit.
the right to life, security of the person and protection
e. The court that formerly heard and determined
from torture, inhuman and degrading treatment or
the issue was competent to try the subsequent
punishment and right to appropriate remedy.
suit or the suit in which the issue was raised.
vii. Whether the right to information under the
3. From a perusal of the pleadings in Petition No. 273
Constitution of Kenya, 2010, (Constitution) could
of 2011, the International Commission of Jurists-
be applied to requests to information on PEV which
Kenya Chapter was a petitioner in the matter and
predated the Constitution.
the 1st respondent in the instant case was the 1st
viii. What were the factors to consider in determining respondent therein. The interested party in the
violation of the right to information? instant case was also the petitioner in that matter,
Relevant provisions of the law hence it was not litigating under the same title.
4. There was no similarity of parties in the previous
Constitution of Kenya, 2010
suit and the instant suit. The court was alive to the
Article 22(1) principle that parties could not evade the application
of the doctrine of res judicata to their case by litigating
Every person has the right to institute court proceedings under different names.
claiming the right or fundamental freedom in the Bill of 5. Beyond the issue of parties, res judicata was concerned
Rights has been denied, violated or infringed, or is threatened. with direct and substantive issues. Although the issue
Article 35 of SGBV was also pursued in the previous matter, it
did not form the crux of the petition as it did in the
1. Every citizen has the right of access to— instant petition. Furthermore, the subject matters of
the two petitions differed since the previous petition
(a) information held by the State; and
was exclusively concerned with persons living in IDP
(b) information held by another person and camps, whereas the instant matter concerned persons
required for the exercise or protection of who were generally victims of SGBV which occurred
any right or fundamental freedom. during PEV. The respondents had not averred nor
proved that the claims specific to the 5th to 12th
2. …. petitioners had been previously addressed by a court
of competent jurisdiction. The instant matter was
3. The State shall publish and publicise any important
not res judicata and even though two of the parties
information affecting the nation.
were litigating under the same title, the issues in the
instant petition were not directly or substantively in
26
issue in the previous petition. acts of sexual violence against the citizenry, and
6. The right to life, the right to protection from torture were directly responsible for the violations of their
and right to security of the person were guaranteed rights. The State could not escape liability, there
under sections 70, 71 and 74 of the repealed was a violation of the right to life, protection from
Constitution, and were also protected by articles 3 torture, inhuman and degrading treatment and right
and 5 of the Universal Declaration of Human Rights to security of the person of the 5th, 6th and 9th
(UDHR); articles 6, 7 and 9 of the International petitioners.
Covenant on Civil and Political Rights (ICCPR); 12. The 7th, 8th, 10th, 11th and 12th petitioners who were
articles 4, 5 and 6 of the African Charter on Human assaulted by members of the public had unfortunately
and People’s Rights (Banjul Charter); and article 4 not provided evidence to the effect that the persons
of the Protocol to the African Charter on Human who assaulted them did so with the instigation,
and People’s Right on the Rights of Women in Africa consent or acquiescence of a public official or other
(Maputo Protocol). person acting in an official capacity.
7. According to the Human Rights Committee’s General 13. The police relinquished their responsibility to
Comment No. 31 on the ICCPR at paragraph 8, the investigate the 8th petitioner’s report fully and arrest
State had an obligation to prevent violations by State all the three men who had raped her. That was a
actors and non-State actors. In other words, the State prime example of how the State could be liable
had to protect citizens from threats to their rights. for the violation of right by third parties as once
8. The State had to respect the right to life by refraining the petitioner reported the rape, the police had a
to engage in conduct which would arbitrarily deprive duty to investigate her claim and protect her from
the right. Sexual violence was recognised as an further harm. There was no averment by any of the
infringement on the right to life under article 4 of respondents that the Director of Public Prosecutions
the Maputo Protocol as it expressly stated that States, (DPP) made a determination that the evidence
in protecting and realising the right of women to provided to the police by the 8th petitioner was
life, and the integrity and security of their person, insufficient to mount a prosecution against the two
should enact and enforce laws to prohibit all forms suspects who were not arrested by the Police.
of violence against women including unwanted or 14. The State had a duty to maintain law and order
forced sex. including the protection of life and property.
9. Rape had elements of torture which were: the However, as a general rule, that duty was owed
severe infliction of pain or suffering for a number of generally to the public at large and not specifically
purposes including intimidation or discrimination. to any particular person within Kenya. For a
However, torture was perpetrated by State actors or person to succeed in a claim for alleged violation
with their acquiescence, consent or instigation. The of constitutional rights, it had to be demonstrated
UN Committee on the Elimination of All Forms that there existed a special relationship between the
of Discrimination against Women (CEDAW) in its victim and the police on the basis of which there was
General Recommendation No. 19 acknowledged assurance of police protection, or where, for instance
that gender-based violence violated the right to life, the police had prior information or warning of the
the right not to be subjected to torture or to cruel, likelihood of violence taking place in a particular
inhuman or degrading treatment or punishment and area or against specific homes but failed to offer the
the right to liberty and security of person. required protection. In such cases, therefore the State
could be held liable where violations of the rights
10. There was no reason why the definition of
protected and guaranteed in the Bill of Rights were
torture should not be extended to cases of forced
proved even when those violations were occasioned
circumcision. The elements of inhuman and
by non-State actors provided that the duty of care
degrading treatment or punishment described in
was properly activated.
article 16 of the Convention of Torture were present
in such a case. 15. For the Government to be liable for civil disorder;-
11. Article 9 of the ICCPR placed an obligation on the a. the victim had to prove that the Government
State to protect the right to security of the person owed him a specific duty of care;
of non-detained persons. The 6th, 5th and 9th b. that the police ignored impeccable information
petitioners testified to having been raped by GSU of an impending attack against specific
officers. The 5th and 9th petitioners did not report person(s);
the incidents to the police. However, they were c. that the police negligently or deliberately failed
certain that they identified their violators as GSU to offer protection to the victims and their
officers due to their uniform. Their testimonies property;
demonstrated that State actors were involved in
27
d. that the police or other Government agencies for violating their right to appropriate remedy which
played a part in the creation of state of insecurity in such cases would include compensation.
or did some acts that rendered the victims more 22. The State was liable for the violation of the rights
vulnerable or increased their danger. of the 8th petitioner who was violated by non-State
16. As evidenced by the statements of the victim- actors, and the State failed to investigate her claim
petitioners, the State did indeed take into account any even though she identified her assailants. Therefore,
intelligence that it could have received on impending the 8th petitioner was entitled to appropriate
violence and put in place police officers to maintain reparations from the State including compensation.
peace. The true magnitude of the 2007-2008 PEV Other victims of post-election violence were
could not have been foreseen or avoided, due to its compensated without necessarily seeking court
sudden and drawn-out nature. It was impossible to orders. For instance, those who lost their homes were
have a police officer protect every Kenyan citizen resettled. There was no reason why those who suffered
from harm, particularly due to the low ratio of police sexual violence and could establish that they were
officers to the population of Kenya. As such, the State indeed violated could not as well be compensated.
and the police did what they could to protect the 23. The 7th, 10th, 11th and 12th petitioners were
population at large, even if the petitioners themselves assaulted by civilians and did not report their assaults
did not benefit from that protection. to the police. The police could not be faulted for
17. Regarding the 5th, 6th, and 9th petitioners who failing to investigate and prosecute cases of violence
were assaulted by State actors, their rights to life, which they did not know of.
the security of the person, and protection from 24. The State owed a duty to the victims of 2007-2008
torture were infringed by the actions of the State PEV to investigate the violations of their rights,
actors which, in line with national, regional and prosecute the perpetrators, and provide appropriate
international law, were regarded as actions by the remedies to the victims. The State fulfilled its
State itself. Additionally, the 8th petitioner who was obligations to some victims of PEV by investigating
assaulted by non-State actors was owed a duty of their claims and compensating them for their losses.
care by the police to investigate her report and make However, for some of the victim-petitioners who
arrests, and when they failed to do so they in effect were equally victims of PEV, their claims were not
violated her rights to life; security of the person; and investigated fully and no prosecutions (where there
protection from torture, inhuman and degrading was evidence) were carried out. There had been
treatment or punishment. discrimination towards the 5th, 6th, 8th and 9th
18. The 7th, 10th, 11th, and 12th petitioners who were petitioners as they were owed a duty of care by the
assaulted by non-State actors failed to show that the State to not only refrain from causing harm to them
police failed to exercise reasonable diligence in the but also to pursue those whose acts or omissions
circumstances of their individual cases. caused them harm, and to compensate them
19. The UDHR and ICCPR provided for the right to appropriately.
protection of the law in articles 6 and 16 respectively. 25. The right to information, although protected under
The right to remedy from the High Court was the Constitution of Kenya, 2010, and international
guaranteed under section 84 of the repealed human rights law, was not guaranteed under the
Constitution. That right was also protected under repealed Constitution. The events of the 2007-2008
article 8 of the UDHR, article 3 of the ICCPR, and PEV pre-dated the promulgation of the Constitution
article 25 of the Maputo Protocol. of Kenya, 2010, and therefore its provisions could not
20. The petitioners had failed to put forward any evidence be applied retrospectively. Requests for information,
to the effect that they were denied or precluded if any, could have occurred after the coming into
from accessing and benefiting from medical and force of the Constitution of Kenya, 2010, hence
psychological rehabilitative services provided by making its provisions applicable.
the respondents. The Government had not failed to 26. None of the witnesses had raised any complaints
provide the appropriate medical and psychological against the State or Mbagathi District Hospital
services to the petitioners. Where there was alleged regarding the alleged denial of treatment records.
denial of treatment by one public institution, the The individual witnesses had not made any claim
same was quickly availed by another public facility. that they attempted to access information or medical
21. To determine whether the petitioners’ right to remedy documents from Mbagathi District Hospital and
was violated, one had to look at their individual cases. were not provided with their documents. In the
Because the 5th, 6th and 9th petitioners were violated absence of any proof that any Government medical
by police officers and no investigations, arrests or facility withheld medical records from the 5th to
prosecutions had been initiated, the State was liable 12th petitioners, there had not been a violation of
28
the right to information. and 157 of the Constitution, and were not subject
27. Article 35(1) and (3) of the Constitution provided to the direction or control of any other person or
for the right to information. Additionally, article authority. The 4th respondent was only subject to
232(1)(f ) of the Constitution listed transparency the instructions of the DPP. Although the court
and provision to the public of timely and accurate was granted jurisdiction under article 23 of the
information as part of the values and principles of Constitution to enforce and uphold the Bill of
public service. There existed a right to information Rights through the issuance of appropriate remedies,
which was protected under the Constitution and that jurisdiction should be exercised in compliance
regarded as an integral principle and value of public with the other provisions of the Constitution. The
service. court was also alive to its jurisdiction under article
165 of the Constitution.
28. The petitioners had not claimed nor produced
evidence to the effect that they requested the 34. It had not been established that the respondents had
Government to release any information or reports failed to discharge their constitutional and statutory
on the cases of SGBV during PEV. For that claim mandates to the other SGBV victims of PEV who
to succeed it would have been necessary for the were not before the court to warrant issuance of
petitioners to have made a request to the respondents orders directing the respondents to perform their
for such information, and that the request was duties in a given manner. The remedies that would be
ignored or refused. provided to the successful victim-petitioners would
be sufficient in the circumstances of the instant case.
29. According to the Joint Declaration on Access to
Information by the UN Special Rapporteur on 35. On the issue of the compensation for economic
Freedom of Opinion and Expression, the OSCE losses, the petitioners had failed to explain how they
Representative on Freedom of the Media and the arrived at the figure presented, or any proof of their
OAS Special Rapporteur on Freedom of Expression earnings before the PEV. Without any reference to
(2004), States were required to pro-actively publish how the petitioners had computed that amount, the
a range of information which was in the public’s claim could not succeed. The same position applied
interest in the absence of a request. Additionally, to the prayer for future medical treatment. No
according to paragraph 4 of the Intern-American evidence was adduced to support the claim.
Juridical Committee’s Principles on the Right of 36. The general trend was to avoid award of exemplary
Access to Information, public bodies were required or punitive damages in public law claims. That
to proactively and routinely disseminate information principle was grounded on two reasons namely that
on their functions and activities including on the State had improved in its respect of human rights
activities which would affect the public. Those and that the taxpayer should not be burdened with
instruments provided an interesting perspective on heavy awards in claims touching on the public purse.
the matter. They appeared to breathe life into the The court therefore declined to award the estate of
provisions of article 232(1)(f ) of the Constitution. the deceased exemplary or aggravated damages.
30. The petitioners failed to provide proof that they Petition partly allowed.
sought information from the respondents and that Orders
their requests were denied or ignored. Therefore, they
i. A declaratory order was issued to the effect that the failure
had not proven that their right to information was
to conduct independent and effective investigations
infringed by the acts or omissions of the respondents.
and prosecutions of SGBV-related crimes during the
31. In the absence of any complaints made to the 3rd post-election violence was a violation of the positive
respondent by the victim-petitioners, and given the obligation on the Kenyan State to investigate and
short period the 3rd respondent had to investigate prosecute violations of the rights to life; the prohibition
those violations before the instant proceedings of torture, inhuman and degrading treatment; and
precluded it from doing so, the 3rd respondent had the security of the person of the 5th, 6th, 8th and 9th
not failed to undertake investigations into claims of petitioners.
violation of human rights by police officers during
ii. A declaratory order was issued to the effect that the
the 2007-2008 PEV.
right to life; the prohibition of torture, inhuman and
32. Sexual violation just like any other violation of degrading treatment; the right to security of the person;
human rights and freedoms should be compensated. the right to protection of the law; the right to equality
Sexual violence carried with it both physical and and freedom from discrimination; and the right to
mental pain. remedy were violated in relation to the 5th, 6th, 8th
33. The 1st and 2nd respondents were independent and 9th petitioners during the 2007-2008 post-election
offices respectively established under articles 156 violence, as a result of the failure of the Government of
29
Kenya to protect those rights. iv. The 5th, 6th, 8th and 9th petitioners were awarded costs
iii. The 5th, 6th, 8th and 9th petitioners were each awarded of the suit against the 1st and 4th respondents. The other
Kshs. 4 million as general damages for the violation of parties were to meet their own costs of the proceedings.
their constitutional rights.
The Parliamentary Service Commission’s unilateral decision to determine and

operationalize a housing allowance for Members of Parliament without consulting
Salaries Remuneration Commission declared ultra vires and unconstitutional
Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others;
Parliament & 4 others (Interested Parties) [2020] eKLR
Constitutional Petition No. 208 of 2019 Consolidated With
Petition Numbers 185 and 339 of 2019
P Nyamweya, W Korir & J Mativo, JJ
December 10, 2020
Constitutional Law - Parliamentary Service Commission PSC secretly resolved to pay a monthly house allowance
(PSC) – powers and functions of the PSC – whether of Kshs. 250,000/= to each of the 418 MPs backdated to
the PSC had the mandate to set and make payments August 2018. Consequently, PSC paid backdated house
for accommodation or housing allowance for Members allowances of Kshs. 2.25 million in April 2018 to each
of Parliament (MPs) - Constitution of Kenya 2010, MP.
article127(6)(a); Parliamentary Service Commission Act,
No 13 of 2012, section 18. Aggrieved by this turn of events, two independent
petitions were lodged before the constitutional court;
Constitutional Law - Salaries and Remuneration namely Petition 185 of 2019 and Petition 208 of 2019.
Commission (SRC) - powers and functions - whether the
SRC had the mandate to reduce sitting allowances for The gist of the two petitions was that not only was
parliamentary committee meetings and to also cap the number the housing allowance benefits paid to MPs already
of meetings -whether the SRC had the exclusive mandate to contemplated in their gross pay but they also received a
set the amount, that would be paid as accommodation or housing mortgage of Kshs. 20 million per term to cater
housing allowance to Members of Parliament - Constitution for their housing needs. Additionally, MPs could not
of Kenya 2010, article 230(4); Salaries and Remuneration purport to compare themselves to deputy governors,
Act, No 10 of 2011. governors, the deputy president, the president among
other senior state officers whose job descriptions required
Constitutional Law - fundamental rights and freedoms special housing such as hosting state delegations at their
- equality and freedom from discrimination - legality of official residences.
differential treatment - whether the SRC discriminated
against MPs when it failed to set accommodation or housing Additionally, PSC had sought SRC’s approval to pay MPs a
allowance for MPs while doing the same for governors, housing allowance, which approval was declined. Despite
deputy governors, the President and the Deputy President - the provisions of article 259(11) of the Constitution, PSC
Constitution of Kenya 2010, article 27. went ahead and authorized payment of the allowances.
Constitutional Law - institution of a constitutional petition The two petitioner’s case was that PSC’s unilateral
- joinder of parties - whether members of independent decision had resulted in the loss of public funds in excess
constitutional commissions could be sued in their personal of Kshs 99,500,000/= per month and Kshs. 1.194 billion
capacities for acts or omissions of the commissions - when annually.
would a commissioner bear personal responsibility for loss of In response PSC lodged a cross petition (Petition 339
public funds - Constitution of Kenya 2010, article 250(9); of 2019). PSC’s case was that on March 1, 2013 and
Public Finance Management Act, No 18 of 2012, section March 8, 2013, the SRC published the remuneration
66. and benefits for state officers serving in Parliament, the
Brief facts Executive, constitutional commissions, independent
offices and county governments. Further, that the MPs’
This consolidated petition arose from actions of the PSC remuneration was reduced from Kshs. 851,000/= to
to unilaterally prescribe to MPs housing allowances in Kshs. 532,500/= a 37.4% reduction. Dissatisfied with
lieu of the mandate constitutionally granted to the SRC. this demotion of allowances and benefits, PSC began
30
negotiations with SRC to resolve such issues as ‘facilities Members of Parliament) was incompetent as they
and benefits’ which negotiations hit a brick wall. were sued in their personal capacities.
Further, SRC on July 7, 2017 abolished the Kshs. 5 Held:

million car grants that had been prescribed to MPs, 1. In determining whether the decision by the PSC to
reduced the sitting allowance for committee meetings make a payment to MPs for their accommodation
and limited the meetings to a maximum of 16 meetings was ultra vires and unconstitutional, it was important
per month. SRC also reduced the number of children to strike a balance between SRC’s mandate under
that could be covered by the medical cover from 5 to 4 article 230 (4) of the Constitution of setting
children, without providing any reasons, and abolished remuneration and benefits for all state officers and
medical ex-gratia assistance to MPs and their families who PSC’s mandate of provision of housing allowance or
exceeded their medical cover entitlement. Lastly, SRC housing benefit to MPs under the ambit of “services
reduced housing mortgage for MPs from Kshs. 35 million and facilities” as under article 127 (6) (a) of the
down to Kshs. 20 million. Constitution to ensure the efficient and effective
functioning of Parliament.
PSC’s case was that the SRC had interfered with the
independence of Parliament by purporting to limit 2. Despite being premised on the doctrine of
parliamentary business (by limiting the number of constitutional supremacy, principles of constitutional
committee meetings per month). PSC also made a case interpretation called upon courts to reconcile two
for discrimination against MPs by the SRC seeing that conflicting constitutional goals: one, to establish
the SRC had failed to prescribe a housing allowance for a state system with enough power to govern, and
MPs as it had for other state officers. two, to find ways of constraining and regulating
such power so that it was not abused. Therefore,
PSC further contended that it was a body corporate that the rule of law, and the related principles of legality
could sue and be sued in its own name. Therefore, the and accountability were the central constitutional
enjoinment of its members as respondents in the petitions doctrines governing the exercise of public power.
was irregular since they had discharged their mandate in 3. To demarcate the powers and functions of the two
their official capacities as members of PSC and in good independent commissions, it was necessary to consider
faith. the input and meaning of “salary and remuneration”
The three petitions were consolidated as they raised and “salaries and benefits” as provided under the
similar and related issues. Constitution as well as the subsidiary legislations
governing the two bodies. According to the Salaries
Issues and Remuneration Act, “salary and remuneration”
included the ordinary, basic or minimum wage or
i. Whether the decision by the PSC to make a payment
pay and any additional emoluments and benefits
to MPs for their accommodation was ultra vires and
whatsoever payable, directly or indirectly, whether in
unconstitutional.
cash or in kind, by an employer to an employee and
ii. Who between the PSC and the SRC had the arising out of the employment of that employee. The
legal mandate to make the payment for the Act did not define the word “benefit”. On the other
accommodation of MPs? hand, the Parliamentary Service Commission Act
iii. Whether the SRC interfered with the constitutional defined “services and facilities” to include all means
mandate and independence of the PSC and by which members of the National Assembly were
Parliament when it adjusted the remuneration and officially assisted in performing their parliamentary
benefits payable to MPs. duties. Just as the Salaries and Remuneration Act
iv. What legal instruments regulated the remuneration failed to define the phrase “services and facilities.”,
and benefits payable to MPs? the Parliamentary Service Commission Act did not
v. Whether the SRC failed to set a house allowance for define the words “remuneration and benefits.”
MPs and if so, whether it amounted to discrimination 4. The argument by PSC that it was empowered to
against MPs. determine certain benefits for MPs to facilitate
vi. Whether the SRC acted ultra vires its constitutional proper functioning of parliamentary business failed
and statutory mandate in capping the number of on several fronts, namely: -
remunerable meetings the MPs and PSC could hold a) In PSC’s letter to SRC dated February 22, 2019
in one month. PSC alluded to a request for “housing allowance”
vii. Whether the suit against the 3rd to 12th respondents as opposed to the impugned “housing benefits.
(members of an independent constitutional There was no mention of a “facilitative
commission) and the 2nd Interested Party (individual allowance.” In fact, the phrases “service”,
31
“benefits” and facilities” and “facilitative was made even clearer by the provisions of
allowance” were only introduced in Petition No sections 19 and 20 of the Parliamentary Service
339 of 2019 after the impugned payment was Commission Act which demonstrated the
challenged in the other two petitions. services and facilities envisaged under article
b) The operative words in articles 127 (6) (a) of 127(6) (a) of the Constitution to assist the MPs
the Constitution– powers and functions of in the performance of their duties were physical
the PSC and 230 (4) (a) of the Constitution – and logistical in nature, and not in the nature of
powers and functions of the SRC, were “services payment of funds.
and facilities” and “remuneration and benefits” h) A faithful reading of article 127 and the
respectively. In searching for the meaning of Parliamentary Service Commission Act
the said words, it was inevitable to consult therefore showed that PSC could not sustain the
dictionaries, judicial pronouncements and a impugned meaning of “services and facilities” as
consideration of their statutory context. extending to “facilitative housing allowance” for
c) The Black’s law dictionary defined the MPs.
“remuneration” to mean payment, i) Additionally, even if PSC’s argument that
compensation, the act of paying or “services and facilities” ought to have been
compensating. On the other hand, it defined construed to mean “facilitative house allowance,”
“a benefit” as an advantage or privilege. It it would amount to suggesting the existence of
also defined “fringe benefit” to mean a benefit a contradiction between articles 127(6) (a) and
(other than direct salary or compensation) 230 (4) (a) of the Constitution.
received by an employee from an employer, j) A reading of several judicial precedents on
such as insurance, a company car, or a tuition ambiguity between general versus specific
allowance. provisions showed that general provision would
d) Judicial interpretation of the terms defined the not normally prevail over the specific and
terms “salary” and “remuneration” as follows: unambiguous provisions. The specific provision
“salary” meant a recompense or consideration ought to have been construed as limiting the
made to a person for his pains, industry or scope of the application of the more general
work for another person, wages, allowances or provision. Therefore, if a general provision was
other remuneration for work or service; while capable of more than one interpretation and one
“remuneration” ordinarily meant “reward, of the interpretations resulted in that provision
recompense, pay, wages or salary for service applying to a special field which was dealt with
rendered”. by a specific provision, in the absence of clear
e) Taken in that context, therefore, remuneration language to the contrary, the specific provision
meant payment for services rendered or work ought to prevail should there be a conflict.
done (salary) while benefit meant the allowance 5. The payment made to MPs was a remunerative
paid by the State to State officers and public allowance and not a provision of a service and
officers. Consequently, a house allowance was a facility within the meaning of article 127 (6) (a) of
specific allowance payable as part of employees’ the Constitution.
remuneration to cater for their housing 6. SRC’s mandate, codified under article 230 of the
costs. Therefore, whether it was named as Constitution and section 11 of the Salaries and
accommodation allowance, a house allowance Remuneration Act was to set and regularly review
or a facilitative allowance, the cross-cutting and the remuneration and benefits of all State officers
relevant feature for those purposes was that the and to advise the national and county governments
payment made in the instant case was meant to on the remuneration and benefits of all other public
for cater the MPs accommodation during the officers without regard to whether such a decision
performance of their official duties. was unpalatable to those whose remunerations
f ) The words “services and facilities” referred to and benefits were subject to the mandate of SRC.
the amenities, offices and equipment which Additionally, any advice or directive from the
were necessary for the MPs to perform their SRC had legal force on any person or institution
duties and therefore the function contemplated addressed, including the PSC.
to PSC under article 127 of the Constitution 7. The mandate of PSC as provided under article
and section 18 of the Parliamentary Service 127 of the Constitution and section 11 of the
Commission Act. Parliamentary Service Commission Act was merely
g) The distinction between allowances on one to provide services and facilities to ensure the efficient
hand and services and facilities on the other, and effective functioning of Parliament. PSC erred in
32
law by purporting to determine and operationalize articles 230(4), 206 (4) and 259(11) of the
housing allowances for MPs. Its argument that Constitution.
article 127 (6) (a) of the Constitution vested in it 14. Accounting officers of independent bodies were
the mandate to set and provide a housing benefit to obligated by law to comply with regularity and
MPs was erroneous. PSC’s decision was therefore propriety and the need for efficiency, economy,
ultra vires its constitutional mandate and offended effectiveness and prudence in the administration
the principle of legality which required that decisions and use of public resources and to secure value for
by public bodies flow from a legal rule/the law. public money. Therefore, the accounting officers for
8. The mandate to determine and set a housing the PSC and Parliament were culpable for failing to
or accommodation allowance, was a function undertake their obligations under the Public Finance
exclusively and constitutionally vested in the SRC Management Act in that regard. The said accounting
by article 230 (4) (a) of the Constitution and the officers therefore broke the law and it was upon them
Salaries and Remuneration Act. to recover the money paid to the MPs.
9. Only the SRC was clothed with the requisite power 15. MPs could not purport to compare themselves to
and authority to determine allowances and benefits deputy governors, governors, the deputy president,
payable to state officers including Members of the president among other senior state officers whose
Parliament. job descriptions required special housing such as
10. The Salaries and Remuneration Commission hosting state delegations at their official residences. It
(Remuneration and Benefits of State and Public was lawful to accord different treatment to different
Officers) Regulations, 2013 was rendered void categories of persons if the circumstances so dictated.
by virtue of Statutory Instruments Act, as was 16. The differential treatment between MPs and other
the reasoning in the case of Parliamentary Service superior state officers did not necessarily amount to
Commission v Salaries Remuneration Commission; discrimination. Anyone purporting to rely on article
Attorney General & 3 others (Interested Parties), High 27 of the Constitution was required to establish
Court JR No. 686 of 2017; [2018] eKLR. The repeal that because of the distinction made between the
of the regulations meant that any remuneration claimant and others, the claimant was denied equal
of the MPs of the 11th Parliament and any other protection or benefit of the law. It did not necessarily
consequent Parliament coming into existence mean that differential treatment or inequality would
(the existing Parliament included) could only be per se amount to discrimination and a violation of
determined by the SRC. the constitution.
11. Accounting officers of constitutional commissions, 17. A three-step test was established to determine
including the PSC, were expected to monitor, discrimination due to differential treatment. The first
evaluate and oversee the management of public step was to establish whether the impugned decision
finances in the commission as per section 66 of the differentiated between different persons. The second
Public Finance Management Act. step entailed establishing whether that differentiation
12. Article 226 (5) of the Constitution addressed the amounted to discrimination. The third step involved
issue of recovery of lost public funds and stated determining whether the discrimination was unfair.
that where the holder of a public office, including a 18. PSC failed to prove how the differential treatment
political office, directed or approved the use of public amounted to a constitutional violation.
funds contrary to law or instructions, the person 19. The mandate to set and determine remuneration
was liable for any loss arising from that use and was including allowances, was a function constitutionally
required to make good the loss, whether the person vested in the SRC by article 230 (4) (a) of the
remained the holder of the office or not. It was the Constitution and the Salaries and Remuneration Act.
responsibility of the accounting officers in the PSC No ground was established by the PSC to merit this
to ensure that public finances were used lawfully court’s interference in the manner in which the SRC
and in a prudent manner. Fundamental to the set and determined the number of MPs remunerable
use of public finance was regularity and propriety. meetings.
Regularity meant compliance with the Constitution
20. Members of the PSC who had been sued in their
and the governing statute including obtaining
personal capacities had objected their enjoinment in
required consents/approvals from the relevant bodies
the suit. Article 250 (9) of the Constitution provided
including the SRC.
that a member of a commission, or the holder of an
13. PSC’s failure to seek SRC’s consent or approval as independent office, was not liable for anything done
the only body constitutionally mandated to set in good faith in the performance of a function of
and pay salaries and remuneration of State officers office. Therefore, 3rd to 12th respondents enjoyed
contravened several statutory provisions including
33
immunity for actions performed in good faith in the Remuneration Commission, and without the
performance of their duties. approval of the Salaries and Remuneration was in
21. The petitioners did not endeavour to establish bad violation of the provisions of article 259(11) of the
faith on the part of the 3rd to 12th respondents. Constitution that required the prior approval of
Therefore, the suit against the 3rd to the 12th Salaries and Remuneration Commission.
respondents in their personal capacities offended e) A declaration that the decision of the Parliamentary
article 250(9) of the Constitution, and was therefore Service Commission to set, and approve the
unsustainable. payment of an accommodation or house allowance
22. Members of Parliament enjoined in the suit were to Members of Parliament contrary to the structure
however found to have been bona fide parties to of remuneration and benefits of all state officers
the petition. They had an identifiable stake or legal in Parliament that was set and communicated
interest/duty in the proceedings in the constitutional by the Salaries and Remuneration Commission,
petition. The named MPs were the beneficiaries of and without the approval of the Salaries and
the impugned payments set and facilitated by the Remuneration Commission was an exercise of state
PSC, and would be directly affected by the decision authority not authorised by the Constitution and
of the court on the said payment, particularly because in violation of the provisions of article 2(2) of the
it had adverse effects. Constitution
f ) A declaration that the decision of the Parliamentary
Orders:-
Service Commission to set, and approve the
I. The prayers sought in petition No. 339 of 2019 by payment of an accommodation or house allowance
the SRC were declined, and the petition dismissed to Members of Parliament contrary to the
with no order as to costs. structure remuneration and benefits of all state
II. Petition No. 208 of 2019 and Petition No. 185 of officers in Parliament as set and communicated
2019 filed by the 1st and 2nd petitioners respectively by the Salaries and Remuneration Commission,
were found to be meritocratic and the following and without the approval of the Salaries and
orders granted: Remuneration Commission the functions was in
a) A declaration that the setting and approval of the violation of the provisions of article 73(1) of the
payment of an accommodation or house allowance Constitution - that any State authority assigned
to MPs was a function exclusively vested in the to a state officer was a public trust that ought to
Salaries and Remuneration Commission by Article have be exercised in a manner consistent with the
230 (4) and (5) of the Constitution. purposes and objects of the Constitution.
b) A declaration that the decision of the Parliamentary g) A declaration that the decision of the Parliamentary
Service Commission to set and approve the Service Commission to set, and approve the
payment of an accommodation or house allowance payment of an accommodation or house allowance
to Members of Parliament contrary to the structure to Members of Parliament contrary to the structure
of remuneration and benefits of all state officers of Remuneration and Benefits of all State Officers
in Parliament that was set and communicated by in Parliament that was set and communicated
the Salaries and Remuneration Commission, and by the Salaries and Remuneration Commission,
without the approval of the SRC was in violation and without the approval of the Salaries and
of article 230 (4) and (5) of the Constitution. Remuneration Commission the functions that
are exclusively vested to the SRC was in violation
c) A declaration that the decision of the Parliamentary
of the binding national values and principles
Service Commission to set and approve the
of governance prescribed in article 10 of the
payment of an accommodation or house allowance
Constitution on the rule of law, transparency and
to MPs contrary to the structure of remuneration
accountability.
and benefits of all state officers in Parliament
as set out and communicated by the SRC, and h) An order of certiorari to bring into court and
without its approval was ultra vires the prescribed remove (quash) the decision of the Parliamentary
constitutional powers of PSC contained in article Service Commission to set, and approve the
127(6) of the constitution. payment of an accommodation or house allowance
to Members of Parliament contrary to the structure
d) A declaration that the decision of the Parliamentary
of remuneration and benefits of all state officers in
parliament as set and communicated by the Salaries
payment of an accommodation or house allowance
and Remuneration Commission, and without
to Members of Parliament contrary to remuneration
the approval of the Salaries and Remuneration
and benefits of all state officers in parliament that
Commission in disregard of article 230(4) (a) of
was set and communicated by the Salaries and
34
the Constitution. payment of an accommodation or house allowance

i) An order of mandamus directing the clerk of the to Members of Parliament contrary to the structure
Senate and the clerk of the National Assembly of remuneration and benefits of all state officers
to, within a period of twelve calendar months in parliament as set and communicated by
from the date of order, recover in full from the the Salaries and Remuneration Commission,
salaries and allowances of each Member of and without the approval of the Salaries and
Parliament the entire amount of monies paid as Remuneration Commission.
accommodation and/or house allowance to the j) Each party was ordered to bear their respective
Members of Parliament, pursuant to the illegal costs in the two petitions.
and unconstitutional decision of the Parliamentary
Imposition of VAT on exported services amounts to double imposition of VAT and is

contrary to the neutral application of VAT in International Trade law.
Coca-Cola Central East and West Africa Limited v Commissioner of Domestic Taxes [2020] eKLR
Income Tax Appeal 19 of 2013
F. Tuiyott, J
November 23, 2020
Tax Law – Value Added Tax (VAT) – impact (original or Contention arose between Coca Cola Africa (appellant)
initial burden for the payment of tax) and instance (the and the Commissioner of Domestic Taxes (respondent)
settlement of the tax burden on the ultimate tax payer) of VAT on the instance and impact of Value Added Tax on Coca-
– tax evasion – tax minimization – the destination principle Cola products being advertised in Kenya but meant for
– whether was VAT levied at the point of consumption or at foreign market consumption. On one hand, Coca-Cola
the point of use - Value Added Tax Act, (cap 476) (repealed), Africa postulated that the benefit of the marketing and
sections 2 and 32; OECD International Guidelines on promotion services accrued outside Kenya and that
Value Added Tax, regulation 20(1) (a); Value Added Tax therefore, it should be treated as ‘exported services’ as per
Regulations, regulation 2. provisions of the VAT Act (Cap 476) (repealed). On the
other hand, the respondent put forward an argument that
Brief facts marketing and promotion services provided by Coca-Cola
The appellant, Coca-Cola Central East and West Africa Africa were consumed locally as the target audience was
(Coca Cola Africa), provided marketing and promotional Kenya and they therefore ought to be treated as services
services for all of Coca-Cola’s world famous brands. locally consumed in Kenya.
Coca-Cola Africa operated as a subsidiary of the parent At the Tax Tribunal, it was held that the marketing and
company (which owned and controlled the Coca-Cola promotional services were heard, seen, enjoyed and
trademark) and was located in United States of America. perceived by persons and households resident in Kenya
Coca-Cola and its subsidiaries manufactured and sold and therefore physically consumed in Kenya, thus leaving
proprietary concentrates used to prepare Coca-Cola no place for an interpretation of section 2 of the VAT
beverage products with one such subsidiary being Act, cap 476 (repealed). Therefore, VAT ought to have
Coca-Cola Export which manufactured concentrates in been charged at point of consumption since the same was
various locations around the world but not in Kenya. a destination-based tax levied on commercial activities on
The concentrates were sold to authorized bottlers who the consumer as opposed to a charge on the business.
purchased, imported and in turn used the concentrates in Aggrieved by that finding, the appellants lodged an appeal
preparing and packaging beverage products that bore the at the Commercial and Tax Division of the High Court.
Coca-Cola trademarks. Value Added Tax was in turn paid
for the concentrates by the bottlers at the point of import. Issues
The chief purpose of the marketing and promotional I. Whether the Kenyan Bottlers benefited directly from
services was to maintain, increase and grow the image, the promotional services carried out by Coca-Cola
value and importance of the brands. It enhanced and Africa on behalf of Coca-Cola Exporters;
encouraged sales of Coca-Cola Export and its subsidiaries II. Whether the business model adopted by Coca-Cola
to the Bottlers. Export Corporation (Coca-Cola Export) resulted
in the evasion or minimization of Value Added Tax
35
(VAT) payable in Kenya; Cola drink was the consumer of the marketing and
III. What was the nexus between the marketing and promotional services. In that regard, Coca-Cola
promotional services provided by Coca-Cola Africa Africa supplied the marketing and promotional
and the activities of the Kenyan Bottlers? services to Coca-Cola Export at a fee by the latter.
9. Coca-Cola Africa did not receive any compensation
Held:
for the performance of the promotional services from
1. The targe audience for Coca-Cola Africa’s local independent bottlers who were the consumers
promotional activities was the Kenyan public who of the services.
were either existing or potential buyers of the Coca- 10. The Bottlers, whilst not paying for the promotional
Cola drinks. However, that did not out rightly services, were a major beneficiary of the marketing
make them the consumers of the promotional and and promotional services as it could lead to an
marketing services. increase in sales of the Coca-Cola brands. That was in
2. A person became a user or consumer of Coca-Cola line with an objective listed in the agreement which
Africa’s services only when, at the instigation or was to seek an increase in brand awareness resulting
encouragement of the services, he consumed the in increased consumption of Coca-Cola soft drinks.
Coca-Cola products. 11. No evidence was put forward to debunk Coca-
3. Persons who saw, enjoyed, heard, perceived or even Cola Africa’s own admission that the mandate of
enjoyed an advertisement but failed to act on it could marketing and promotion of the Coca-Cola brand
not be said to have used or consumed the products. in Kenya was very substantially, if not solely, its own.
4. A promotion or marketing activity did necessarily If Coca-Cola Africa did not provide marketing and
lead to a sale or consumption of the promoted or promotional services, then the bottlers would have to
marketed product. Consumption of the soft drink undertake them. Payment for those marketing and
therefore ought not to have been confused with promotional services would have attracted VAT in
consumption of the promotional and marketing Kenya and that would have been passed to the final
services. consumer.
5. “Consumption” was defined as the act of destroying 12. The Commissioner failed to prove that that there was
a thing by using it or the use of a thing in a way that a leak in tax from Kenya and further that the business
exhausted it. arrangement entered into led to unintentional
6. The marketing and promotional agreement entered non-taxation given that no tax similar to VAT was
into between Coca-Cola Africa and Coca-Cola imposed on the services in the State where Coca-
Exporters was to increase brand awareness resulting Cola Export was domiciled.
in increased consumption of Coca-Cola soft drinks 13. The business model adopted by Coca-Coca Africa
which translated to increased sales and profits for and Coca-Cola Exporters did not therefore lead to
Coca-Cola Exporters. an avoidance or minimization of VAT.
7. The marketing and promotional services were not Orders:-
provided so that members of the target audience
i. The Appeal was allowed.
could merely hear, see, enjoy, feel or perceive them.
They were not provided for the sake of it but in the ii. The decision of the VAT Tribunal dated 26th November
hope that it would trigger a purchase or a desire to 2013 was departed from and set aside.
purchase a Coca-Cola product. iii. Costs of the application were awarded to the appellant.
8. For VAT purposes, the final consumer of the Coca-
36
The recruitment process of the Secretary to the Independent Electoral and

Boundaries Commission declared unconstitutional for being in violation of the
applicable law
Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2
others [2020] eKLR
Employment and Labour Relations Court at Nairobi
B Ongaya, J
October 16, 2020
Reported by Kakai Toili Constitutional Law – fundamental rights and freedoms

– right of access to information – timelines for receiving
Labour Law – employment – recruitment process –
information after making a request for information –
recruitment process through the use of an independent
where a suit was filed a day after requesting for access to
contractor – where the Independent Electoral and Boundaries
information – where the Access to information Act provided
Commission (IEBC) engaged an independent consultant
that access to information was to be allowed within 21 days
for the recruitment of its commission secretary – where the
from receipt of the request to access information - what were
IEBC thereafter decided to undertake the recruitment process
the circumstances in which a person who had requested for
without informing the public -whether it was mandatory for
information would move to court before exhausting statutory
the IEBC to engage an independent consultant to undertake
procedure on access to information - Access to Information
the recruitment process of its commission secretary - whether
Act, 2016, section 9(1).
the IEBC had the responsibility, accountability and liability
of the appointment process – what was the effect of IEBC Brief facts
engaging an independent consultant to recruit its commission
secretary and thereafter deciding to undertake the recruitment The petitioner filed the instant petition seeking among
process without informing the public - Constitution of Kenya, others a declaration that the recruitment process
2010, article 10; Independent Electoral and Boundaries ensuing from the vacancy notice for the position of
Commission Act, 2011, sections 10(1) and 27. commission secretary/chief executive officer, Independent
Electoral and Boundaries Commission (IEBC) was
Labour Law – employment – recruitment process – unconstitutional and an order of judicial review in the
recruitment process of the Independent Electoral and nature of certiorari to quash all or any recruitment process
Boundaries Commission’s (IEBC) commission secretary ensuing from the vacancy notice. The petitioner’s case was
– where the qualifications for the position of commission that the recruitment of the 2nd respondent’s commission
secretary for the IEBC were provided for in the Independent secretary had to be in strict adherence to articles 10 and
Electoral and Boundaries Commission Act – where the 35 of the Constitution of Kenya, 2010, (Constitution)
IEBC knocked out candidates who had the prescribed sections 10 and 27 of the Independent Electoral and
statutory requirements while shortlisting others who had Boundaries Commission Act, 2011 (IEBC Act) as well
qualifications described as added advantage - whether it was as the 2nd respondent’s own human resource recruitment
lawful for the IEBC to knock out candidates who had the policy.
prescribed statutory requirements while shortlisting others
who had qualifications described as added advantage - what The petitioner claimed that the recruitment process for the
were the factors to be considered in determining whether the commission secretary had breached the cited provisions.
recruitment process was done in accordance with the relevant The petitioner submitted that the respondent was
statutory and constitutional provisions - Constitution of conducting the recruitment process in a secretive manner
Kenya, 2010, articles 10, 73 and 232; Independent Electoral and the public had not been informed about the progress
and Boundaries Commission Act, 2011, section 10(2). despite the 1st respondent promising to inform the public
accordingly. It was further argued that the process was
Jurisdiction – jurisdiction of the Employment and in breach of article 10(2) of the Constitution because it
Labour Relations Court - jurisdiction to determine a was not participatory, consensus oriented, accountable,
dispute on the appointment of the commission secretary for transparent, responsive, effective and efficient, equitable
the Independent Electoral and Boundaries Commission - and inclusive and had not followed the rule of law.
whether the Employment and Labour Relations Court had Further it claimed that the recruitment process was being
the jurisdiction to determine a dispute on the appointment conducted in secrecy and mystery.
of the commission secretary of the Independent Electoral and
Boundaries Commission - Constitution of Kenya, 2010, Issues
articles 162(2) and 165(5)(b); Employment and Labour i. What was the effect of the Independent Electoral and
Relations Court Act, 2011, sections 12(1) and (2). Boundaries Commission engaging an independent
37
consultant to recruit its commission secretary and process.

thereafter deciding to undertake the recruitment 3. The 2nd respondent was entitled to appoint its
process without informing the public? secretary and chief executive officer but in strict
ii. Whether the Independent Electoral and Boundaries compliance with the constitutional and statutory
Commission had the responsibility, accountability provisions on principles and values applicable to
and liability of the appointment process where they recruitment, selection and appointment of public
involved a consultant to recruit its staff. and State officers. The 2nd respondent would in
iii. Whether it was mandatory for the Independent addition be expected and required to adhere to
Electoral and Boundaries Commission to engage an provisions of section 10(2) of the IEBC Act setting
independent consultant to undertake the recruitment out the qualifications for a person to be appointed as
process of its commission secretary. its secretary and chief executive officer. There was no
constitutional and statutory provision that the 2nd
iv. Whether it was lawful for the Independent Electoral
respondent had to engage an independent consultant
and Boundaries Commission to knock out candidates
to recruit its chief executive officer.
who had the prescribed statutory requirements while
shortlisting others who had qualifications described 4. Even where the option to involve an independent
as an added advantage. consultant was exercised, the responsibility,
accountability and any liability of the appointment
v. What were the factors to be considered in
process remained with the 2nd respondent as the
determining whether the recruitment process
principal. Further, where an independent consultant
for the position of commission secretary for the
had been hired, subject to any applicable statutory
Independent Electoral and Boundaries Commission
or contractual provision, the 2nd respondent could
was done in accordance with the relevant statutory
by itself discontinue the consultancy and continue
and constitutional provisions?
the recruitment, selection and appointment process
vi. Whether the Employment and Labour Relations as the 2nd respondent could consider reasonable in
Court had the jurisdiction to determine a dispute on the circumstances.
the appointment of the commission secretary of the
5. Throughout the recruitment, selection and
Independent Electoral and Boundaries Commission.
appointment process the 2nd respondent remained
vii. What were the circumstances in which a person who obligated to uphold the cited and applicable
had requested for information would move to court constitutional and statutory provisions. It was
before exhausting statutory procedures on access to misconceived to urge that it was mandatory for the
information? 2nd respondent to engage a consultant to undertake
Held the process. It could be that hiring an independent
consultant was desirable to enhance the recruitment,
1. The petitioner had established that the 2nd
selection and appointment methodologies and
respondent had violated section 10(1) and 27 of the
efficiency or to remove unnecessary burdens that
IEBC Act and the national values and principles of
could conveniently be outsourced or to deal with
governance in article 10 of the Constitution. The
likely situations of conflict of interest when done
violated provisions provided for recruitment of the
internally by the 2nd respondent but it was not
commission secretary through an open, transparent,
mandatory for the respondent to hire a consultant.
and competitive process and appointment of a
suitably qualified person. The evidence showed that 6. It was most desirable for the 2nd respondent to engage
the 2nd respondent made a decision to undertake an independent consultant for the recruitment and
the recruitment process through an independent selection of its secretary and chief executive officer
consultant and thereafter decided to undertake the in view of the highest professionalism, transparency,
recruitment by itself. The shifting of the decisions accountability and management of any instances
as was done and without notifying the public cast a of conflict of interest which could not be easily
shadow of doubt on the integrity of the process. achieved through an exclusively internal recruitment,
selection, and appointment process.
2. It was only by the replying affidavit that the 2nd
respondent disclosed that the independent consultant 7. Whereas the 2nd respondent’s replying affidavit
engaged had declined to sign the contract forcing had set out the considerations that were taken in
the respondent to decide to undertake the process shortlisting the 10 successful candidates, there was
by itself. The recruitment process as undertaken by no documented criterion which was predetermined
the 2nd respondent by itself was marred by conflict to guide the shortlisting process. Similarly there
of interest. The breach of the constitutional and was no predetermined criterion that would guide
statutory provisions was blended with impairment of the interviews as was scheduled to take place. The
the outcome of the otherwise continuing recruitment development of such score sheets that were objective
38
and took into account the considerations in articles that was consistent with the relevant statutory and
232(1)(g), (h) and (i) and article 73(2)(a) of the constitutional provisions. It could not be said that
Constitution and section 10(2) of the IEBC Act the recruitment, selection, and appointment process
was a highly professional engagement which then as challenged was continuing in accordance with the
made it desirable that the 2nd respondent engage a law.
professional and independent consultant. 12. The court enjoyed the relevant jurisdiction to hear
8. It was not sufficiently convincing that all candidates and determine the petition. The dispute was about
who had a recognised university degree per section the appointment of the commission secretary. The
10(2) of the IEBC Act were automatically knocked court’s jurisdiction flowed from article 162(2)(a),
out in priority to a master’s degree and which was 165(5)(b) of the Constitution and the provisions of
never a statutory requirement but introduced by the Employment and Labour Relations Court Act,
the shortlisting committee without any explanation. 2011. Appointment of the commission secretary was
The kind of experience that was required and scored a human resource function and falling under the
accordingly in knocking out some candidates was not jurisdiction of the court.
disclosed at all. It was not explained why the master’s 13. Section 12(1) of the Employment and Labour
degree which was not a statutory requirement was Relations Court Act, 2011 was clear that the court
invoked to knock out many candidates with the had exclusive original and appellate jurisdiction
minimum statutory requirement of first degree to hear and determine disputes referred to it in
and who could have possessed the best and suitable accordance with article 162(2) of the Constitution
experience. and the provisions of the Act or any other written
9. It was not lawful for the 2nd respondent to law. Section 12(2) of the Act further provided that an
knock out candidates who had all the prescribed application, claim or complaint could be lodged with
statutory requirements while shortlisting others the court by or against an employee, an employer, a
upon qualifications described as added advantage trade union, an employer’s organisation, a federation,
and which were not prescribed in the statute at the Registrar of Trade Unions, the Cabinet Secretary
all. An objective and predetermined score sheet or any office established under any written law for
taking into account the qualifications in section such purpose. By that provision, the petitioner had
10(2) of the IEBC Act was crucial and mandatory. lodged a complaint against an employer, the 2nd
Similarly, it was mandatory to have an objective and respondent.
predetermined score sheet for the interview process 14. By reason of section 12(2) of the Employment and
or other method invoked to recruit and select the Labour Relations Court Act the proceedings were
most suitable candidate on headings contemplated not limited to parties listed in section 12(1) but the
in articles 232(1) (g), (h) and (i) and article 73(2)(a) jurisdiction spread to disputes about employment
of the Constitution and section 10(2) of the IEBC even by and against persons not being employees or
Act so as to demonstrate fairness and transparency employers or parties to the contract of service. That
and other values and principles in articles 10, 232, was the position especially in view of article 162(2)
and 73 of the Constitution. as read with article 165(5)(b) of the Constitution.
10. The score sheet had to be completed for the candidates 15. The request for information was made on June 20,
who had the basic prescribed qualifications at 2019, the request was received on June 21, 2019
the shortlisting stage and then for each candidate and the following day the petition was filed. Section
progressing to the subsequent steps such as oral or 9(1) of the Access to Information Act required the
written interviews. The 2nd respondent enjoyed 2nd respondent to avail the requested information as
the discretion on the weight of scoring under any soon as possible but in any event not more than 21
such headings in the score sheet but had to show days of receipt of the application and, section 9(3)
it was predetermined and objectively applied to all allowed for a further extension of 21 days.
applicants.
16. The petitioner did not pray that the information
11. Individual scores were held in confidence to be be provided but wanted the impugned recruitment
disclosed to the concerned individual as he or process arrested. Thus while the regime on access to
she could request – but the score sheets and the information was set out in the law, it was obvious
related documentation guiding the process had to the court that the petitioner would have suffered
to be available for ascertaining the compliance prejudice if it did not move to court promptly for
in the recruitment process. In absence of such want of exhaustion of the statutory procedure on
documentation of scores upon predetermined and access to information. Further, after full disclosure
objective criteria, it was difficult to make a finding in the replying affidavit filed by the 1st respondent,
of a recruitment, selection and appointment process it had been established that the petitioner’s fears,
39
concerns and claims were valid because the ensuing from the vacancy notice called “Vacancy in
recruitment process had been established to have the position of Commission Secretary/Chief Executive
been proceeding contrary to law and with manifest Officer, Independent Electoral and Boundaries
conflict of interest. Commission Ref. No. IEBC/C/CEO/1/2019” dated
17. The independent consultant hired declined the May 21, 2019 was unconstitutional and in violation
engagement with the result that the recruitment of the law.
process was continuing without informing the ii. An order of judicial review of certiorari was issued to
public the milestones therein as required by law, with bring into the court for purposes of quashing all and
manifest conflict of interest and without the due any recruitment process ensuing from the vacancy
role of the required human resource expertise and notice called “Vacancy in the position of Commission
professionalism that was lost when the independent Secretary/Chief Executive Officer, Independent Electoral
consultant avoided the scene. Thus, the petitioner’s and Boundaries Commission Ref. No. IEBC/C/
failure to exhaust the statutory procedure on access CEO/1/2019” dated May 21, 2019.
of information did not impair the petition at all. iii. In alternative to order(ii), the order of judicial review
The recruitment process was proceeding contrary to of prohibition was issued prohibiting the respondents
statutory and constitutional provisions. from carrying on the process of recruitment ensuing
18. In view of the functions of the 3rd respondent in from the vacancy notice called “Vacancy in the position
article 156(4) of the Constitution as the principal of Commission Secretary/Chief Executive Officer,
legal adviser to the Government, the 3rd respondent Independent Electoral and Boundaries Commission
was a proper party to the suit. Ref. No. IEBC/C/CEO/1/2019” dated May 21, 2019.
Petition allowed; the 2nd respondent to pay the petitioner’s iv. A declaration was issued that the recruitment process of
costs; all the respondents to bear own costs of the proceedings. the Secretary to the Commission or CEO be commenced
afresh by the 2nd respondent and in strict compliance
Orders; with the applicable law.
i. A declaration was issued that the recruitment process
Appointments of the Chairperson and members to the Business Premises Rent

Tribunal declared unconstitutional on grounds that the appointment process was not
competitive and merit-based.
Bernard Odero Okello & another v Cabinet Secretary for Industrialization, Trade and Enterprise
Development & another; Cyprian Mugambi Ngutari & 7 others (Interested Parties)
Petition 100 of 2020
(Consolidated with Petition 99 of 2020)
M Onyango, J
October 30, 2020
Reported by Beryl Ikamari
Constitutional Law - judiciary - definition of judicial Constitutional Law - values and principles of public
officers - members of local tribunals - whether the chairperson service - appointment to public office - equal opportunity
and members of the Business Premises Rent Tribunal were for appointment, fair competition and merit as the basis
judicial officers - Constitution of Kenya 2010, article 260; for appointment - whether an appointment process where
Judicial Service Act, (cap 185B), section 2. candidates were not informed of the vacancy, applications,
shortlisting and interviews conducted, was constitutional -
Constitutional Law - judiciary - tribunals - appointment Constitution of Kenya 2010, articles 10, 47 and 232; Public
of the chairperson and members of a tribunal - role of the Service (Values and Principles) Act, No 1A of 2015, section
Judicial Service Commission - whether the Cabinet Secretary 10.
in the Ministry of Industrialisation, Trade and Enterprise
Development had powers to appoint the chairperson Constitutional Law - fundamental rights and freedoms
and members of the Business Premises Rent Tribunal - - equality and freedom from discrimination - two thirds
Constitution of Kenya 2010, article 172(1)(c); Judicial gender principle - whether the appointment of only one
Service Act, (cap 185B), section 32; Landlord and Tenant woman and four men to Business Premises Rent Tribunal
(Shops, Hotels and Business Establishments) Act, (cap 301), violated the two thirds gender principle - Constitution of
section 11. Kenya 2010, article 27.
40
Constitutional Law - constitutionality of statutes - Industrialisation, Trade and Enterprise Development

transitional and consequential provisions of the Constitution had powers to appoint the chairperson and members
- establishment of tribunals by means of appointment by of the Business Premises Rent Tribunal.
the relevant Minister under section 11 of the Landlord iii. Whether appointments made to the Business
and Tenant (Shops, Hotels and Business Establishments) Premises Rent Tribunal without following a process
Act - role of the Judicial Service Commission in making that was open and competitive, in that there were
such appointments under the Constitution - whether the no applications made or interviews done, was
assignment of the role of making such appointments to the constitutional.
Minister under the Landlord and Tenant (Shops, Hotels
iv. Whether the appointment of one woman and four
and Business Establishments) Act was unconstitutional
men to Business Premises Rent Tribunal violated the
- Constitution of Kenya 2010, Sixth Schedule, section
two thirds gender principle.
7; Landlord and Tenant (Shops, Hotels and Business
Establishments) Act, (cap 301), section 11. v. Whether section 11 of the Landlord and Tenant
(Shops, Hotels and Business Establishments) Act,
Brief facts which provided for the establishment of tribunals by
means of appointment by the relevant Minister, was
Via Gazette Notice No. 4244 published in the special unconstitutional.
issue of the Kenya Gazette on June 26, 2020, the Cabinet
Secretary in the Ministry of Industrialisation, Trade and Held
Enterprise Development (the 1st Respondent) made 1. The term judicial officer was defined in article 260
appointments to the Business Premises Rent Tribunal of the Constitution to mean a registrar, deputy
(the Tribunal). The Chairperson and Vice-Chairpersons/ registrar, magistrate, Kadhi or the presiding officer
members of the Tribunal were the 1st to 5th Interested of a court established under article 169 (1) (d) of the
Parties. Constitution. A further definition under section 2 of
the Judicial Service Act provided that a judicial officer
The petitioners challenged the appointments. They
included a registrar, deputy registrar, magistrate,
contended that the appointments were made in excess
Kadhi or the presiding officer of any other court
of power or without power and were contrary to section
or local tribunal as may be established by an Act of
11(1) of the Landlord and Tenant (Shops, Hotels and
Parliament, other than the courts established to hear
Catering Establishments) Act as read with rules 2 and 21
and determine disputes relating to employment and
of the Landlord and Tenant (Shops, Hotels and Catering
labour relations and the environment and the use
Establishment) (Tribunal) (Forms and Procedures)
and occupation of, and title to, land.
Regulations, 1966. They added that the appointments
were not made through a process where there was 2. The term “local tribunal” as utilised in article 169(1)
fair competition and merit and that as such they were (d) of the Constitution was intended to distinguish
contrary to the Constitution. They said that they were that term from the term “international tribunal.”
also discriminatory as a fair opportunity to apply for the Under the Constitution, where the term “tribunal”
appointments was not afforded to all members of the was used, it referred to tribunals established under
public and only one woman was appointed. local legislation. Under the definition provided in
article 260 of the Constitution, local tribunals were
It was also contended by the petitioner that the members a form of subordinate courts and persons presiding
of the Tribunal were judicial officers and it was only the in such local tribunals were judicial officers. The
Judicial Service Commission that could appoint them. Chairperson and members of the Tribunal in
He argued that the principle of separation of powers was question were therefore judicial officers.
violated when powers of the Judicial Service Commission 3. The legislation contemplated under article 169(2) of
to appoint judicial officers was exercised by a Cabinet the Constitution had not been enacted. The Tribunals
Secretary. Therefore, the Cabinet Secretary acted in excess Bill 2015 had not been enacted. In the absence of
of her powers when she made the appointments. It was such legislation, the Judicial Service Act remained
further argued by the petitioner, that the appointments the primary legislation in respect of appointments to
which had only one woman appointee out of five local tribunals.
appointees discriminated against women.
4. Article 172(1)(c) of the Constitution as read with
Issues section 32 of the Judicial Service Act were the
relevant provisions with respect to appointment of
i. Whether the Chairperson and members of the
presiding officers of local tribunals. Therefore, the
Business Premises Rent Tribunal were judicial
appointment of the 1st to 5th interested parties by the
officers.
1st respondent under section 11 of the Landlord and
ii. Whether the Cabinet Secretary in the Ministry of Tenant (Shops, Hotels and Business Establishments)
41
Act was illegal. The issue was not with the legislation but with its
5. Appointments to public office had to be done through application and that application was addressed in
a process that was open, merit-based, inclusive section 7 of the Sixth Schedule to the Constitution.
and competitive. The nomination of the 1st to 5th 12. Article 27 of the Constitution provided for equality
Interested Parties was discriminatory and lacked the and freedom from discrimination. It also provided
transparency and openness necessary to uphold the for the gender rule to the effect that not more than
rule of law and promote fair administrative action. two thirds of elective or appointive positions would
Those appointed to the Business Premises Rent be of the same gender. No valid reason had been given
Tribunal did not apply, were not shortlisted, and by the respondents for failure to appoint at least one
were never interviewed for the positions. third of women to the Tribunal. The legal fraternity
6. The 1st to 5th interested parties contended that the was awash with women who met the qualifications
challenge to the legality of their appointment would that the respondents alleged they were looking for.
lead to administrative chaos which would not be in All they needed to do was to advertise publicly for
public interest. Public interest favoured respect for those qualified to apply.
the Constitution and the law. Public interest could 13. The 1st respondent was in breach of not only article
not be used to justify the violation of a statute or the 27 of the Constitution but also article 232(1)(i)
Constitution. of the Constitution by selecting only one woman
7. The doctrine of separation of powers only applied appointee out of five appointees.
within the confines of the Constitution and the law. 14. Section 11(1) of the Landlord and Tenant (Shops,
The rule of law was supreme and no justification was Hotels and Business Establishment) Act did not
valid if it offended the rule of law. Expediently, costs, prescribe the minimum or maximum number of
convenience and legitimate expectation could never members of the Tribunal. Therefore, the appointing
be valid justifications unless they were within the authority had discretion on the number of members
confines of the law. to the Tribunal.
8. Approval given for the impugned appointments by Orders: -
the Judicial Service Commission could not regularize
that which was not legal. i. A declaration that the appointment of the 1st to 5th
interested parties was in violation of articles 2, 10, 27,
9. Section 10 of the Public Service (Values and
47, 169(1)(d), 172(1), 232(1)(f ) & (g) and 259 of the
Principles) Act provided for competition and merit-
Constitution of Kenya, article 2 of CEDAW, article 2 of
based appointments. In making the appointments,
Maputo Protocol, section 32 of the Judicial Service Act
the Cabinet Secretary did not comply with the
together with section 10 of the Public Service (Values
requirements of the said section 10. Applications for
and Principles) Act.
appointment could not be made in abstract. There
had to be an announcement of a vacancy and a ii. An order of certiorari quashing Gazette Notice No. 4244
statement on the minimum qualifications, followed dated June 22, 2020 issued by the Cabinet Secretary for
by shortlisting and interviews. Industrialization Trade and Enterprise Development
and any consequential actions arising therefrom.
10. Section 11 of the Landlord and Tenant (Shops,
Hotels and Business Establishment) Act provided iii. Each party was to bear their own costs in both petitions
for the establishment of tribunals by means of
appointment by the Minister. Inter alia, section 7
of the Sixth Schedule to the Constitution provided
that where a constitutional provision assigned a
responsibility to a different state organ or public
officer, other than the one that would otherwise be
responsible for it, the Constitution would prevail
to the extent of the conflict. Therefore, in view of
an apparent conflict between section 7 of the Sixth
Schedule to the Constitution and section 11 of the
Landlord and Tenant Act, the Constitution would
prevail.
11. The solution to the constitutional non-conformity
in section 11 of the Business Premises Rent Tribunal
Act had been provided for under the Constitution
and the legislation was not unconstitutional per se.
42
Employment and Labour Relations Court awards Kshs 1 (Kshs one) to a principal
secretary found to be a beneficiary of proceeds of crime
Lillian W. Mbogo-Omollo v Cabinet Secretary Ministry of Public Service and Gender & another [2020]
eKLR
Radido Stephen, J
October 21, 2020
Reported by Kakai Toili
Labour Law – employment – disciplinary proceedings – of all withheld salary and allowances for the years under
commencement and continuation of internal disciplinary suspension; general damages and compensation for the
proceedings against an employee -where an employee facing unlawful revocation of her appointment.
criminal charges before a court was dismissed - whether
an employer had to wait for the conclusion of the criminal Issues
proceedings before dismissing an employee or commencing i. Whether an employer was obligated to wait
or continuing internal disciplinary proceedings against the for the conclusion of any criminal proceedings
employee – when would courts interfere with an employer’s before dismissing an employee or commencing or
internal disciplinary proceedings against an employee facing continuing internal disciplinary proceedings against
criminal charges in court - Constitution of Kenya, 2010, the employee.
article 50(2)(a); Anti-Corruption and Economic Crimes ii. When would courts interfere with an employer’s
Act, 2003, section 62(3). internal disciplinary proceedings against an employee
Constitutional Law – Executive – principal secretaries facing criminal charges in court?
– appointment and dismissal of principal secretaries – iii. Whether the President had the power to dismiss a
procedure to be followed - whether the President could dismiss principal secretary at will.
a principal secretary at will - Constitution of Kenya, 2010, iv. What was the procedure for the appointment and
articles 132(2)(d), 135, 155, 236 and 259. dismissal of a Principal Secretary?
Labour Law – employment – unfair dismissaal - claim v. What was the effect of an employee being found to
that an employee was unfairly dismissed from employment – be a beneficiary of proceeds of crime in a suit for
claim that the employee had been found to be a beneficiary of compensation for unfair dismissal?
proceeds of crime and had not appealed against that decision Held
- what was the effect of an employee being found to be a
1. The petitioner was serving as a Principal Secretary
beneficiary of proceeds of crime in a suit for compensation for
appointed in terms of articles 132 and 155 of
unfair dismissal.
the Constitution. In terms of article 260 of the
Brief facts Constitution, the office of a Principal Secretary was
designated as a State office and therefore being a State
In 2017, the President nominated and appointed the office holder, the petitioner was a State officer and a
petitioner as Principal Secretary. In May 2018, the public officer as envisaged under the Constitution.
petitioner stepped aside to allow investigations into However, not all public officers were State officers
alleged mishandling of funds and upon completion of while all State officers were ipso facto public officers.
the investigations, the petitioner was charged before the
2. Suspension did not take away the right of the
Magistrates Court with corruption-related offences. As
person so suspended to be presumed innocent, and
a result of the criminal charges, the Cabinet Secretary,
the burden lay on the prosecution to prove his or
Public Service, wrote to the petitioner to inform her that
her guilt beyond reasonable doubt. Indeed, under
her appointment had lapsed with the appointment of
section 62(3) of the Anti-Corruption and Economic
another person to the said office of Principal Secretary.
Crimes Act (ACECA), should one be acquitted or
Aggrieved, the petitioner moved the court alleging for any reason the proceedings against him or her
that the decision violated articles 10, 41 and 236 of terminated, the public officer ceased to be suspended.
the Constitution of Kenya, 2010 (Constitution), and Therefore, section 62 did not violate the petitioner’s
sought for among other orders that; a declaration that rights under article 50(2)(a) of the Constitution.
the revocation of her appointment was unconstitutional; 3. Article 50(2)(a) of the Constitution preserved an
service gratuity at the rate of 31% of the basic accused person’s right to be presumed innocent
remuneration package for the term served; restoration within the criminal trial process and did not constrain
43
the hands of parties to a contractual relationship. 2010 required the Public Service Commission to
4. An employer did not need to wait for the conclusion recommend persons for appointment (appointment
of any criminal proceedings before dismissing an of Cabinet Secretaries followed a different process
employee or commencing or continuing internal solely at the hand and discretion of the President).
disciplinary proceedings, and courts only intervened 9. It was in the public domain that before the Public
if the employee could show that the continuation of Service Commission so recommended a person
the disciplinary proceedings gave rise to a real danger for appointment as a Principal Secretary, it called
(not just a theoretical danger) that there would be a for applications and conducted an evaluation or
miscarriage of justice in the criminal proceedings if appraisal of the candidates to ensure they met the
the court did not intervene. Therefore, the petitioner’s constitutional integrity test among other criteria.
right to be presumed innocent was not violated when Once a person had been appointed as a Principal
she was placed under suspension. Secretary, he or she became a public officer. As such
5. Article 132(2)(d) of the Constitution gave the public officer, the Principal Secretary became entitled
President the discretion to dismiss a Principal to the protections assured to all public officers by
Secretary in accordance with article 155 of the article 236 of the Constitution.
Constitution. Article 259 of the Constitution 10. The due process protection in article 236 of the
introduced a new approach to the interpretation Constitution suggested that public officers had a
of the Constitution. It obliged courts to promote; legitimate expectation that being public officers,
the spirit, purport, values and principles of the due process as envisaged under article 236 would be
Constitution, advance the rule of Law, Human observed in the process of their removal from office.
Rights and fundamental freedoms in the Bill of The power to remove a Principal Secretary was placed
Rights and contribute to good governance. The duty upon the President. Article 135 of the Constitution
to adopt an interpretation that conformed to article required such decisions to be made and reasons given
259 was mandatory. under the hand of the President.
6. Constitutional provisions had to be construed 11. The petitioner was not subjected to due process, nor
purposively and in a contextual manner. Courts were was she given reasons for the removal from office
constrained by the language used. Courts could not under the hand of the President. She was ingeniously
impose a meaning that the text was not reasonably notified that her tenure had ended because a
capable of bearing. In other words, interpretation replacement had been appointed. The removal of
should not be unduly strained, it should avoid the petitioner in the manner it was conducted was
excessive peering at the language to be interpreted. unconstitutional.
7. Articles 132(2)(d) and 155 of the Constitution 12. The petitioner was found by the High Court to
should not be applied and/or interpreted in isolation be the beneficiary of proceeds of crime. The court
from other provisions and more so article 236 of the was not informed whether the decision had been
Constitution which assured public officers of certain appealed against.
protections. There was no intention, given a holistic
Petition partly allowed; each party to bear its own costs.
and contextual approach that articles 132(2)(d)
and 155 of the Constitution intended to establish a Orders
limitation and/or derogation from the protection of
i. A declaration was issued that a Principal Secretary was
due process assured to public officers in article 236.
entitled to the protections assured to public officers by
8. Unlike under the repealed Constitution under which article 236 of the Constitution.
the President could appoint and dismiss a Permanent
ii. The petitioner was awarded a nominal Kshs 1 (Kshs
Secretary at will, the Constitution of Kenya,
one) for the violation of her right to due process.
44
Rules and guidelines governing sustainable harvesting of sand

John Muthui & 19 others v County Government of Kitui & 7 others [2020] eKLR
ELC Petition No. E06 of 2020
Environment and Land Court at Machakos
O A Angote, J
November 27, 2020
Reported by Chelimo Eunice
Jurisdiction – jurisdiction of the Environment and Land Harvesting Guidelines of 2007 – purpose of the National
Court - jurisdiction of the National Environmental Tribunal Sand Harvesting Guidelines – requirement for every county
(NET) - jurisdiction of the Environment and Land Court vis- where sand harvesting activities took place to establish a
à-vis jurisdiction of the National Environmental Tribunal Technical Sand Harvesting Committee – mandate of the
(NET) – whether the Environment and Land Court had Technical Sand Harvesting Committee – where relevant
the unlimited jurisdiction to resolve disputes relating to authorities failed to provide evidence to show that the
land and the environment – whether the Environment and National Sand Harvesting Guidelines had been complied
Land Court had jurisdiction to resolve a dispute alleging – whether in the circumstances, sand harvesting was being
infringement of constitutional right to a clean and healthy carried out in a sustainable manner - National Sand
environment – Constitution of Kenya, 2010, articles 129, Harvesting Guidelines, 2007.
162 and 165.
Civil Practice and Procedure – constitutional petitions
Civil Practice and Procedure – institution of court – rules governing constitutional petitions – whether Civil
proceedings – locus standi – locus standi to institute court Practice and Procedure Rules, 2010 applied to constitutional
proceedings claiming infringement of a right or fundamental petitions - whether a petitioner was required to give notice to
freedom in the Bill of Rights – claim alleging infringement the affected parties before filing a representative constitutional
of constitutional right to a clean and healthy environment petition - Constitution of Kenya (Protection of Rights and
– who had the locus standi to commence proceedings for the Fundamental Freedoms) Practice and Procedure Rules,
enforcement of the right to a clean and healthy environment 2013, rule 4.
– whether it was necessary for a litigant to demonstrate
personal interest or to have suffered loss or injury in order to Constitutional Law – rights and fundamental freedoms –
institute a suit relating to the protection of the environment right to a clean and healthy environment – components of
– reliefs that courts could grant on claims of infringement the right to a clean and healthy environment - Constitution
of constitutional right to a clean and healthy environment of Kenya, 2010, articles 42, 69 and 70.
- Constitution of Kenya, 2010, articles 22, 42 and 70; Brief facts
Environmental Management and Co-ordination Act, section
3. The petitioners filed an application seeking conservatory
orders to restrain the respondents from licensing or
Environmental Law – environmental disputes – principles allowing exploitation of resources more particularly sand
guiding courts when resolving environmental disputes harvesting from a river known as Tiva River (the river)
– sustainable development, intergenerational equity until hearing and determination of the petition. They
and precautionary principle – meaning of sustainable brought the suit on their own behalf and on behalf of the
development – elements comprising the principle of residents of Kitui County and beyond, who in one way
sustainable development - principle of intergenerational or the other depended on, used and derived benefits from
equity – meaning of intergenerational equity – what the river. They argued that the 1st to 6th respondents
informed the development of the principle of intergenerational had permitted, allowed, licensed and let the 7th and 8th
equity – difference between intra-generational equity and respondents and other persons under the umbrella of the
inter-generation - precautionary principle – meaning of 8th respondent to harvest sand from the river without
precautionary principle - what informed the development of following the regulations laid down by the 4th respondent
the precautionary principle - Constitution of Kenya, 2010, for such activities and that as a result, the environment
article 69; Environment and Land Court Act, section 18; in and around the river had been degraded causing the
Environmental Management and Co-ordination Act, section river to dry up and as a consequence, put the lives of
3(5); Rio Declaration on Environment and Development, the petitioners and those of their future generations into
principle 15. uncertainty.
Environmental Law – protection of environment - laws In opposing, the 1st and 2nd respondents’ averred,
meant to protect the environment – rules and guidelines among others, that the petition and the application were
governing sustainable sand harvesting – the National Sand brought prematurely before the court, that the petition
45
ought to have been filed in the National Environmental jurisdiction emanated from the provisions of article
Tribunal (the NET), that the petitioners had no capacity 162(2) (b) of the Constitution and section 13 of
to institute the suit; that the harvesting and excavation the Environment and Land Court Act (ELC Act).
of sand from the river was controlled, that there were Parliament enacted the ELC Act in compliance
in place strict laws governing and regulating sustainable with the provisions of article 162(3). Article 165(5)
use of the said resource and that the harvesting of sand of the Constitution divested the High Court the
by the 7th and 8th respondents was limited to internal jurisdiction in respect of matters falling within the
use within the County Government of Kitui and local jurisdiction of the courts contemplated under article
consumption only and that the Constitution allowed for 162(2) of the Constitution.
sustainable exploitation of natural resource. 2. The reading of the Constitution and the ELC Act
showed that it was the ELC that had the unlimited
Issues
jurisdiction to resolve disputes relating to land and
i. Whether the Environment and Land Court had the environment. However, the ELC’s jurisdiction
unlimited jurisdiction to resolve disputes relating to was subject to the jurisdiction donated to the
land and the environment. subordinate court and tribunals by statutes, whose
ii. Whether the Environment and Land Court had decisions were appealable to the ELC. One such
jurisdiction to resolve a dispute alleging infringement tribunal was the National Environmental Tribunal
of the constitutional right to a clean and healthy (NET). The jurisdiction of NET, which was a
environment. creature of the Environmental Management and Co-
iii. Who had the locus standi to commence proceedings ordination Act (EMCA) was found at section 129
for the enforcement of the right to a clean and of EMCA.
healthy environment? 3. The petitioners were not appealing against the
iv. Whether it was necessary for a litigant to demonstrate decision of the National Environment Management
personal interest or to have suffered loss or injury in Authority (4th respondent) either in issuing a licence
order to institute a suit relating to the protection of or otherwise in respect of the harvesting of sand from
the environment. the river by the respondents. Also, in view of the
prayers sought in the petition, which were confined
v. What reliefs could be granted by courts on claims of
to the alleged infringement of the petitioners’ rights,
infringement of the constitutional right to a clean
NET did not have the requisite jurisdiction to
and healthy environment?
deal with the petition. ELC had the jurisdiction to
vi. What principles guided courts when resolving deal with the issues raised in the petition and the
environmental disputes? application.
vii. What elements comprised the principle of sustainable 4. Article 22(1) of the Constitution guaranteed the
development? right of every person to institute court proceedings
viii. What was the meaning and purpose of the principle claiming that a right or fundamental freedom in the
of intergenerational equity? Bill of Rights had been denied, violated or infringed,
ix. What was the meaning and purpose of precautionary or was threatened. That meant that every person
principle? had a right of ensuring that their rights in relation
to the environment were not violated or threatened
x. Whether a petitioner was required to give notice
by way of litigation. The Constitution gave any
to the affected parties before filing a representative
person alleging infringement of a right to a clean
constitutional petition.
and healthy environment recognized and protected
xi. What were the components of the right to a clean under article 42 of the Constitution, the right to
and healthy environment? apply to the court for redress, in addition to any
xii. Which rules and guidelines governed sustainable other legal remedies that were available in respect to
sand harvesting? the same matter.
xiii. Whether failure to comply with the National Sand 5. Courts were empowered to make any order, or give any
Harvesting Guidelines implied that sand harvesting directions, it considered appropriate to prevent, stop
was being carried out in a sustainable manner. or discontinue any act or omission that was harmful
Held to the environment, to compel any public officer to
take measures to prevent or discontinue any act or
1. The requirement that a court or tribunal could only omission that was harmful to the environment or to
deal with a dispute in respect of which it had the provide compensation for any victim of a violation of
requisite jurisdiction could not be overemphasized. the right to a clean and healthy environment. Article
The Environment and Land Court’s (ELC) 70 of the Constitution granted any person the right
46
to commence proceedings for the enforcement of the interest for infringement of right or fundamental
right to a clean and healthy environment. freedom provided for in the Constitution. Such
6. One needed not to have a personal interest or a petitioner was not required to give a notice to
suffered any injury before filing a petition alleging the affected parties before filing the petition. The
the infringement of the right to a clean and healthy petitioners herein were acting on their own behalf,
environment. Article 70 of the Constitution and and in the public interest of the people of Kitui
section 3(4) of the EMCA permitted any person County.
to institute a suit relating to the protection of the 12. Article 42 of the Constitution provided that every
environment without the necessity of demonstrating person had the right and was entitled to a clean and
personal loss or injury. Litigation aimed at protecting healthy environment. That right included the right
the environment could not be shackled by the narrow to have the environment protected for the benefit of
application of the locus standi rule, both under the the present and future generations through legislative
Constitution and statute, and in principle. and other measures particularly those contemplated
7. The principle behind the law permitting any person in article 69 of the Constitution. The right extended
to institute a suit relating to the protection of the to having the obligations relating to the environment
environment without the necessity of demonstrating under article 70 of the Constitution fulfilled. It was
personal loss or injury was because the protection of bestowed on every person and had been considered
the environment was not only for the benefit of the to be essential for the existence of mankind.
present generation, but also for the future generation. 13. Unlike the other rights in the Bill of Rights which
The preamble to the Constitution recognized the were guaranteed for enjoyment by individuals
importance of protecting the environment for the during their lifetime, the right to a clean and healthy
benefit of the future generation. environment was an entitlement of present and
8. Section 18 of ELC Act and section 3(5) of EMCA future generations and it was to be enjoyed by every
provided that the ELC ought to be guided by the person with the obligation to conserve and protect
principle of intergenerational equity while resolving the environment. It had three components, the right
environmental disputes. The quality of life for itself, the right to have unrestricted access to the
the future generation depended on the present courts to seek redress where a person alleged that the
generation’s decisions. The need for change in human right had been infringed or was threatened and the
development for them to lead happy lives had been right to have the court make any order or give any
debated for decades. directions it considered appropriate to either prevent
or discontinue the act harmful to the environment.
9. The idea that members of the present generation held
The court could also compel any public officer to take
the earth in trust for the future generations informed
measures to prevent or discontinue the act that was
the development of the principle of intergenerational
harmful to the environment or award compensation
equity. Therefore, any person could move the court
to any victim of a violation of the right to a clean and
with a view of protecting the environment, not
healthy environment.
only for his benefit, but for the benefit of the future
generations. It was for that reason that in principle, 14. The Constitution under article 69 obligated
the locus standi to file suits challenging the violation all persons to protect and ensure a clean and
of the right to a clean and healthy environment was healthy environment, which included but was not
given to all and sundry. limited to elimination of processes and activities
that were likely to endanger the environment
10. The petitioners, whether they hailed from Kitui
as well as establish systems of environmental
County or not, and whether the harvesting of the
impact assessment and environmental audit and
sand from the river affected them directly or not, had
monitoring of the environment. Article 69 (1) (a)
the locus to prosecute the petition which was premised
of the Constitution demanded the state, to which
on the ground that the respondents had infringed on
the 1st to 5th respondents belonged, to ensure
their right to a clean and healthy environment. That
sustainable exploitation, utilization, management
right was applicable not only to them, but also the
and conservation of the environment and natural
future generations. The petitioners had the requisite
resources and equitable sharing of the accruing
locus standi.
benefits. Article 69(1)(d) of the Constitution
11. Constitutional petitions were governed by the required the state to encourage public participation
Constitution of Kenya (Protection of Rights and in the management, protection and conservation of
Fundamental Freedoms) Practice and Procedure the environment.
Rules, 2013 (Mutunga Rules). Rule 4 of the Mutunga
15. Rivers all over the world were under immense
Rules allowed a petitioner to file a suit on his behalf
pressure due to various kinds of anthropogenic
and on behalf of a class of persons or in the public
47
activities, among them indiscriminate extraction of from the river or at all. There was no evidence to
sand and gravel which was disastrous as the activity show that the 1st respondent had put in place a
threatened the river ecosystem. Sand harvesting TSHC which was responsible for the proper and
activities affected the environment by causing sustainable management of sand harvesting within
land degradation, loss of agricultural lands, low the county.
availability of water and poor quality of water in the 20. In the absence of a TSHC as required under the
affected rivers. Bed degradation of rivers due to sand Guidelines, and in the absence of any evidence
harvesting undermined bridge support, and would to show compliance with all the Guidelines, or a
change the morphology of a river, which constituted law passed by the 3rd respondent to regulate sand
aquatic habitat. The loss of that ecosystem affected harvesting, the court found that the harvesting of
the environment in many and far reaching ways. To sand in the river was not, prima facie, being exploited
address the issue of sustainable harvesting of sand, the and utilized in a sustainable manner, contrary to the
4th respondent had come up with the National Sand provision of article 69 (1) (a) of the Constitution.
Harvesting Guidelines of 2007 (the Guidelines). Although the respondents argued that the harvesting
16. Under the Guidelines, the Technical Sand Harvesting of the sand from the river was for the development
Committee (TSHC) was supposed to be established of the county, and that the local community had
by every county where sand harvesting activities immensely benefited from the said harvest, they
took place. TSHC had been given the mandate to ought to be aware that environmental considerations
ensure that sand dams gabions were constructed in had to be at the center stage of all developments.
designated sand harvesting sites, lorries were using 21. Sustainable development was one of the
designated access roads only to sand harvesting national values and principles of governance in
sites and designated sand harvesting sites were the Constitution that bound all state organs, state
rehabilitated appropriately by Riparian Resource officers, public officers and all persons. Sustainable
Management Association (RRMA), County Council was development that met the needs of the present
(County Governments) and approved dealers under without compromising the ability of future
close monitoring and supervision by the TSHC in generations to meet their own needs. Essentially,
compliance with EMCA. sustainable development sought to address intra-
17. The Guidelines restricted sand harvesting to riverbeds generational equity, that was equity among the
with no harvesting allowed on river banks in order present generation and inter-generation equity,
to prevent the widening of rivers. No person was that was equity between generations. Sustainable
allowed to harvest sand from any area not designated development reaffirmed the need for both
as a sand harvesting site by the TSHC and the site development and environmental protection, and
had to have an environmental management plan to neither could be neglected at the expense of the
guide in the rehabilitation of the sites. In addition, other.
harvesting of sand was not to exceed six (6) feet in 22. The four (4) recurring elements that comprised the
depth, designated sand collection sites ought to be principle of sustainable development were;
at least 50 meters from the riverbanks or dyke and
a) the need to preserve natural resources for the
harvesting of sand was to be done concurrently with
benefit of future generations (the principle of
the restoration of areas previously harvested.
intergenerational equity).
18. Sand harvesting was to be strictly open-cast
b) exploiting natural resources in a manner which
harvesting. In case of underground tunneling or
was sustainable, prudent, rational, wise or
extraction of sand, appropriate technology was to
appropriate (the principle of sustainable use).
be used to safeguard human safety, and river sand
harvesting had to be done in a way that ensured that c) the equitable use of natural resources.
adequate reserve of the sand was retained to ensure d) the need to ensure that environmental
water retention. Sand harvesting was not allowed considerations were integrated into economic
on river banks and within 100 meters of either side and other development plans, programmes and
of physical infrastructure including bridges, roads, projects (the principle of integration).
railway line and dyke. Any person who sold sand 23. The principle of sustainable development sought
would be required to issue a receipt to the purchaser to limit environmental damage arising from
and keep records of such for periodic inspection by anthropogenic activities and lessen the depletion of
the relevant authorities. natural resources and pollution of the environment.
19. The respondents did not provide to the court any It was a principle with a normative value, demanding
evidence to show that the Guidelines had been a balance between development and environmental
complied with in respect to the harvesting of sand protection, and as a principle of reconciliation in
48
the context of conflicting human rights, that was the caused by the fact that information required to
right to development and the right to protecting the prove a proposition would be in the hands of the
environment. party causing or threatening the damage to the
24. Sustainable use of natural resources was recognized environment.
under article 69 of the Constitution, where the 29. Waiting for scientific proof regarding the impact of
state, including the 1st respondent, was obliged to sand harvesting on the river could result in irreversible
ensure sustainable exploitation of sand in the river. damage to the environment and in human suffering.
The sustainable harvesting of sand from the river The short term economic stagnation that would
could only be accomplished if the guidelines were result due to the conservatory orders of the court did
complied with fully, and legislation was passed by the not outweigh the environmental imperatives of the
3rd respondent in compliance with article 42 of the river.
Constitution. 30. The respondents had the responsibility of abiding
25. Although the 1st respondent had stated that it by the guidelines and EMCA, and enacting a law
had published a Gazette Notice banning the or regulations to ensure that there was sustainable
transportation of sand outside the county, the said exploitation of sand from the river.
Gazette Notice did not create any offence that was 31. The respondents had failed, prima facie, to comply
punishable in court. It did not amount to a law or a with the laws and guidelines pertaining to harvesting
regulation to regulate how sand was to be harvested of sand from the river. The 3rd respondent had also
by the local community. failed to pass laws and regulations which would
26. Criminal enforcement of environmental law was criminalize the exploitation of sand from the river
necessary to protect the integrity of the regulatory in an unsustainable manner. That being so, the
system, prevent harm to the environment and to petitioners had established a prima facie case with
punish the violators. It was for that reason that article chances of success.
42 of the Constitution obligated the state, including
Application allowed.
the 1st respondent, to protect the right to a clean and
healthy environment through legislative measures, Orders
which the 1st and 3rd respondents had not done.
i. Conservatory orders issued retraining the respondents
27. Although the respondents argued that they had either by themselves or through their agents, servants,
been relying on an environmental impact assessment employees, proxies or any other person from licensing,
report (report) that was prepared by the 7th and permitting, allowing or in any other way exploiting
8th respondents, the report was never submitted resources more particularly sand harvesting from Tiva
to the 4th respondent for approval pursuant to the River in areas or sites near Ndumoni, Tanganyika,
provisions of sections 58 of EMCA. According to the Nyanyaa and Tiva in Kitui County until hearing and
second schedule of EMCA, the report was supposed determination of the petition.
to be submitted to the 4th respondent for all activities
ii. The costs of the application ordered to be met by the 1st
involving sand harvesting, where after, a license was
respondent.
issued. The respondents had not complied with the
law. Where the procedures for the protection of the
environment were not followed, then an assumption
would be drawn that the right to a clean and healthy
environment was under threat.
28. When determining environmental issues, the court
was guided by certain principles, one of them being the
precautionary principle. The principle was based on
principle 15 of the Rio Declaration on Environment
and Development, which Kenya was a signatory. The
principle implied that where there were threats of
serious or irreversible damage, lack of full scientific
certainty ought not be used as a reason for postponing
cost-effective measures to prevent environmental
degradation. Central to the precautionary principle
was the element of anticipation, reflecting a need for
effective environmental measures to be based upon
actions which take a longer-term approach. The
principle evolved to meet the evidentiary difficulty
49
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
As always, I reiterate that it is vital to get

Fred A. Ochieng updates on the results of an appeal arising from
Presiding Judge, the Judgement rendered by us.
High Court, Kisumu. If the Judgement is affirmed, you are encouraged.
If the Judgement is overturned, you learn from it.
Thanks team Kenya Law for your continued

Hon. Charles Obulutsa support in sending us judgments on appeal. It
Chief Magistrate
Nyahururu Law Courts. enriches our jurisprudence.
Hon. Martha Akoth

Opanga Thank you for case back. I’m now well informed on
Senior Resident the subject matter.
Magistrate
Kangundo Law Courts.
Hon. Bernard Kasavuli

Principal Magistrate Thanks for the feedback
Mavoko Law Courts.
50
Legislative Updates
By Brian Kulei & Christian Ateka, Laws of Kenya Department
This is a synopsis of Acts of Parliament and Bills introduced in both the National Assembly and the Senate. This
legislative update covers the period between November, 2020 and February, 2021.
A. ACTS OF PARLIAMENT
ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2020

Act No. No. 20 of 2020
Commencement 11th December, 2020
Objective This Act amends the following laws:
1. Interpretation and General Provisions Act (Cap. 2)
2. Records Disposal Act (Cap. 14)
3. Penal Code (Cap. 63)
4. Public Holidays Act (Cap. 109)
5. Firearms Act - (Cap. 114)
6. Official Secrets Act - (Cap. 187)
7. Kenya Roads Board Act, 1999 (No. 7 of 1999)
8. Statistics Act, 2006 (No. 4 of 2006)
9. Employment Act, 2007 (No. 11 of 2007)
10. Accountants Act, 2008 (No. 15 of 2008)
11. Judicial Service Act, 2011 (No. 1 of 2011)
12. Kenya National Commission on Human Rights Act, 2011 (No.14 of 2011)
13. Employment and Labour Relations Court Act, 2011 (No. 20 of 2011)
14. Ethics and Anti-Corruption Commission Act, 2011 (No. 22 of 2011)
15. National Police Service Commission Act, 2011 (No. 30 of 2011)
16. Public Appointments (Parliamentary Approval) Act, 2011 (No. 33 of 2011)
17. Universities Act, 2012 (No. 42 of 2012)
18. Kenya Law Reform Commission Act, 2013 (No. 19 of 2013)
19. Investment and Financial Analysts Act, 2015 (No. 13 of 2015)
20. Witness Protection Act, 2016 (No. 16 of 2016)
ACT SECTIONAL PROPERTIES ACT, 2020

Commencement 28th December, 2020
Objective This Act provides 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. The Act
also provides for the use and management of the units and common property.
ACT TAX LAWS (AMENDMENT)(NO. 2) ACT, 2020

Commencement 1st January, 2021
Objective An Act of Parliament to make amendments to the following tax-related laws:
• Income Tax Act (Cap. 470)
• Value Added Tax Act, 2013 (No. 35 of 2013)
ACT TEA ACT, 2020

Commencement 11th January, 2021
Objective This Act provides for the regulation, development and promotion of the tea industry in Kenya.
51
ACT ANTI-DOPING (AMENDMENT) ACT, 2020

Commencement 1st January, 2021
Objective This is an Act of Parliament to amend the Anti-Doping Act (No. 5 of 2016) to comply with the
2021 World Anti-Doping Code and to put in place an enhanced results management system for
anti-doping rule violations.
B. NATIONAL ASSEMBLY BILLS
NATIONAL ASSEMBLY CHILDREN (AMENDMENT) BILL, 2020

BILL
Dated 20th November, 2020
Objective The principal object of this Bill is to amend the Children Act, 2001 (No. 8 of 2001) to be in con-
formity with the Constitution of Kenya. The Bill seeks to vest equal responsibility for parental
care and protection of a child in both the mother and the father whether they are married to each
other or not. The Bill further provides that neither the father nor the mother of the child shall
have a superior right or claim against the other in the exercise of such parental responsibility.
Sponsor George Peter Kaluma
Member of Parliament, National Assembly
NATIONAL ASSEMBLY CRIMINAL PROCEDURE CODE (AMENDMENT) BILL, 2020

BILL
Objective The principal object of this Bill is to amend the Criminal Procedure Code (Cap. 75) to make
provision for the mandatory execution of bond for offences other than murder, treason, robbery
with violence and attempted robbery with violence for persons arrested without warrant.
Sponsor Nelson Koech
NATIONAL ASSEMBLY NATIONAL CONSTRUCTION AUTHORITY (AMENDMENT) BILL, 2020

BILL
Objective The principal object of this Bill is to amend the National Construction Authority Act (No. 41
of 2011) to ensure women, youth and persons living with disabilities with startup businesses
who apply to be registered as contractors under category six, seven and eight are exempted from
paying the prescribed fee. The amendment seeks to recognize women, youth and persons living
with disabilities as marginalized groups and to cushion them from the burden of paying registra-
tion fees.
Sponsor David Gikaria
NATIONAL ASSEMBLY ANTI-DOPING (AMENDMENT) BILL, 2020

BILL
Dated 7th December, 2020
Objective The principal object of this Bill is to amend the Anti-Doping Act, 2016 (No. 5 of 2016) to
harmonize the legislative framework with the 2021 World Anti-Doping Code and Regulations.
Sponsor Amos Kimunya
Leader of Majority Party, National Assembly
52
NATIONAL ASSEMBLY PUBLIC PROCUREMENT AND ASSET DISPOSAL (AMENDMENT)(NO. 3) BILL,
BILL 2020
Objective The principal object of this Bill is to amend the Public Procurement and Asset Disposal Act,
2015 (No. 35 of 2015) to enhance the amount for tenders where Kenya citizens are given exclu-
sive preference from the sum of five hundred million shillings to twenty billion shillings. This is
to protect the Kenyan traders from foreign competitors.
Sponsor Benjamin Gathiru Mwangi
NATIONAL ASSEMBLY BUSINESS LAWS (AMENDMENT) (NO. 2) BILL, 2020

BILL
Objective The Business Laws (Amendment) Bill (No. 2 ), 2020 seeks to make various amendments to the
following statutes:
1. Law of Contract (Cap. 23)
2. Industrial Training Act (Cap. 237)
3. Stamp Duty (Cap. 480)
4. National Hospital Insurance Fund Act (No. 9 of 1998)
5. National Construction Authority Act (No. 41 of 2011)
6. Land Registration Act (No. 3 of 2012)
7. National Social Security Fund (No. 45 of 2013)
8. Companies Act (No. 17 of 2015)
9. Insolvency Act (No. 18 of 2015)
10. Small Claims Court Act (No. 2 of 2016)
NATIONAL ASSEMBLY LANDLORD AND TENANT BILL, 2021

BILL
Dated 12th February, 2021
Objective The principal object of the Bill is to repeal the Distress for Rent Act (Cap. 293) Rent Restriction
Act (Cap. 296) and the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
(Cap. 301). The Bill seeks to introduce a legal framework which balances the interests of land-
lords and tenants in a free market economy by ensuring that landlords earn reasonable income
from their investment in housing and also protects the tenant. The Bill provides for consolida-
tion of the laws relating to the renting of business and residential premises and seeks to regulate
the relationship between the landlord and tenant.
C. SENATE BILLS
SENATE BILL CARE AND PROTECTION OF OLDER MEMBERS OF SOCIETY BILL, 2020
Objective The principal object of the Bill is to give effect to Article 57 of the Constitution of Kenya on the
right of older persons to—
a) fully participate in the affairs of society;
b) pursue their personal development;
c) live in dignity and respect and be free from abuse; and
d) receive reasonable care and assistance from family and the State.
The Bill provides a framework through which the rights articulated under Article 57 of the
Constitution can be realized. This Bill provides the necessary framework through which county
governments are to put in place mechanisms for the implementation of policies and programmes
necessary for the realization of the rights of older members of society under the Constitution of
Kenya.
Sponsor Aaron Cheruiyot
Senator
53
SENATE BILL WILDLIFE CONSERVATION AND MANAGEMENT (AMENDMENT) BILL, 2020

Objective The Bill seeks to amend the Wildlife Conservation and Management Act, 2013 (No. 47 of 2013),
in order to make further provision for the allocation of adequate facilities to County Wildlife
Conservation and Compensation Committees established under the Act. The Bill provides for
a timeline of twelve months for the compensation for human death, human injury or crop and
property damage caused by wildlife in accordance with the Act. The Bill makes further provision
for the payment of compensation and other entitlements due to local communities affected by
wildlife in accordance with the Act.
Sponsor Johnes Mwaruma
Senator
SENATE BILL COUNTY LICENSING (UNIFORM PROCEDURES) BILL, 2020

Objective The principal objective of this Bill is to put in place uniform procedures for licensing of various
activities by counties. This Bill seeks to establish uniform procedures for licensing to ensure cer-
tainty in the process and ultimately encourage private sector players to do business in the counties.
Sponsor Mercy Chebeni
Senator
SENATE BILL STARTUP BILL, 2021

Dated 3rd February, 2021
Objective The objectives of the Bill inter alia include:
• To see to the establishment of Incubation Programmes and to provide for matters related to
the role of the National and County Governments in relation to startups;
• To mandate the national and county governments to put in place a national and county
incubation policy framework for the development of the business incubation sector and
startup system;
• To mandate the Kenya National Innovation Agency established under the Science, Technology
and Innovation Act, 2013 and county executive committee members responsible for matters
relating to science, technology and innovation to establish incubation programmes and
regulations on relationship between incubators and startups;
• To provide for the registration of Startups by the Kenya National Innovation Agency and
admission into an Incubation Programmes;
• To provide for Certification of Incubators and issuance of incentives for Startups;
• To expand the membership of the Board of Trustees of the National Research Fund and ;
• To amend the Science, Technology and Innovation Act, 2013 by mandating the Kenya
National Innovation Agency and the National Research Fund to financially support
technological innovations.
Sponsor Johnson Arthur Sakaja
Senator
54
Legal Supplements
Digest of Recent Legislative Supplements on Matters of General Public Importance
By Brian Kulei, Laws of Kenya Department
This part provides a summary of Legislative Supplements published in the Kenya Gazette on matters of general public
importance for the period between August, 2020 to December, 2020
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
14th August, 2020 88 Competition Act The Competition Authority of Kenya, in the
(Proposed Acquisition of exercise of the powers conferred by section 42
all the issued share capital (1) of the Competition Act, 2010, excludes
of Superior Homes at the proposed acquisition of all the issued share
Vipingo Limited by capital of Superior Homes (Kenya) PLC for the
Superior Homes (Kenya) following reasons-
PLC) Rules, 2020 a. the merger will not affect competition
negatively, and
b. although the combined turnover/assets of
(L.N. 140/2020) the parties was above KShs. 1, 000, 000,
000 for the preceding year, 2018,the assets
of the target were valued at as KShs. 450,
000, 000 which is below KShs 500 million
and therefore it meets the prescribed
thresholds.
(Proposed Acquisition exercise of the powers conferred by section 42
of Assets and Shares in (1) of the Competition Act, 2010, excludes
Radiotelle Limited by the proposed acquisition of assets and shares
Alpha Vision CMA Ke- in Radiotelle Limited by Alpha Vision CMA
nya Limited) Exclusion, Kenya Limited for the following reasons-
2020. a. the merger will not affect competition
negatively, and
b. the acquirer turnover for the preceding
year, 2018 was KShs. 1,000 000 while the
(L.N. 141/2020) value of target was KShs. 40, 000, 000,
and therefore, the combined turnover
transaction of KShs. 41, 000, 000, meets
the threshold for exclusion as provided in
the Competition (General) Rules 2019.
(Proposed Acquisi- exercise of the powers conferred by section 42
tion of Sole Control (1) of the Competition Act, 2010, excludes
of Overdrive Holdings the proposed acquisition of sole control of
Inc by Aragorn Parent Overdrive Holdings INC by Aragon Parent
Corporation) Exclusion, Corporation for the following reasons-
2020 a. the merger will not affect competition
negatively,
b. the combined turnover of the parties was
above KShs. 1 billion value for the year
(L.N. 142/2020) 2018, while the target was KShs. 282,
800, which is below KShs. 500 million
and therefore the transaction meets the
threshold for exclusion as provided in the
Competition (General) Rules 2019
55
14th August, 2020 88 Competition Act The Competition Authority of Kenya in the
of 50% of the Share (1) of the Competition Act, 2010, excludes the
capital in Securex proposed acquisition of 50% of the share capital
Investment Limited by Securex Investment Limited by Balvinder
Balvinder Kishori Lai Kishori Lai Sahni for the following reasons-
Sahni) Exclusion, 2020 a. the merger will not affect competition
negatively,
b. the acquirer had no assets or turnover for
(L.N. 143/2020) the preceding year, 2018 while the target
of asset valued at KShs. 757,655,987,
therefore the transaction meets the
Competition (General) Rules, 2019.
(Proposed Acquisition exercise of the powers conferred by section
of the entire issued 42 (1) of the Competition Act 2010, the
share capital of Livewire Competition Authority of Kenya excludes the
Limited by Star Bright proposed acquisition of the entire issued share
Holdings Limited) capital of Livewire by Star Bright Holdings
Exclusion, 2020 Limited for the following reasons-
a. the merger will not affect competition
negatively,
(L.N. 144/2020) b. the combined turnover of the parties was
more than 1 billion for the preceding year
2018, while the target was KShs. 378,656,
620 which is below KShs. 500 million
and therefore the transaction meets the
threshold for exclusion as provided the
Competition (General) Rules 2019.
(Proposed Acquisition exercise of the powers conferred by section
of 98% Share Holdings 42 ( 1) of the Competition Act 2010 the
in Mybucks S A by Competition Authority of Kenya excludes the
Finclusion Africa proposed acquisition of 98% of the shareholding
Holdings Limited and Mybucks S A by Finclusion Africa Holdings
Growth State Holdings Proprietary Limited for the following reasons-
Proprietary Limited) a. the merger will not affect competition
Exclusion, 2020 negatively,
b. the acquirer had no turnover for the
preceding year, 2019, while the value of
target was KShs. 723, 833,181, therefore
(L.N. 145/2020) the transaction meets the threshold for
exclusion as provided in the Competition
(General) Rules 2019, under the Merger
Threshold Guidelines.
56
of control of Life Care (1) of the Competition Act, 2010, excludes the
Holdings Limited by proposed acquisition of control of Life Care
Oxford Medical Center Holdings Limited by Oxford Medical Center
LLC) Exclusion, 2020 LLC from the provisions of Part IV of the Act
for the following reasons-
negatively, and
(L.N. 146/2020) b. the acquirer had no turnover for the
preceding year, 2018 while the target
turnover was KShs. 371,690,468,
therefore the transaction meets the
Merger Threshold Guidelines.
14th August, 2020 88 Competition Act The Competition Authority of Kenya in the
of 87, 603 Preference (1) of the Competition Act, 2010, excludes
shares in Tulaa Hold- the proposed acquisition of 87, 603 preference
ings Limited by Acumen shares in Tulaa Holdings Limited by Acumen
Fund INC) Exclusion, Fund INC from the provisions of Part IV of the
2020 Act for the reasons that-
negatively,
b. the acquirer’s turnover for the preceding
(L.N. 147/2020) year, 2018, was KShs. 403,156,170, while
the target was KShs. 3,631,953, and
c. the combined turnover of KShs. 406, 788,
123 meets the threshold for exclusion as
provided under the Merger Threshold
Guidelines.
(Proposed Acquisi- exercise of the powers conferred by section 42
tion of control of AKS (1) of the Competition Act, 2010, excludes
Nominees Limited by the proposed acquisition of control of AKS
Nairobi Securities Ex- Nominees Limited by Nairobi Securities
change PLC) Exclusion, Exchange PLC , from the provisions of Part IV
2020 of the Act for the reasons that-
negatively,
b. the acquirer had a turnover of KShs. 782,
(LN. 148/2020) 137, 000 for the preceding year, 2018,
while the target turnover was KShs. 2,160
000 therefore, the combined turnover of
KShs. 784,297, 000 meets the threshold
for exclusion as provided under the Merger
threshold Guidelines.
57
of the business of Gina (1) of the Competition Act, 2010, excludes the
Din Corporate Com- proposed acquisition of the business of Gina
munications Limited by Din Corporate
Edelman Kenya Lim- Communication Limited by Edelman Kenya
ited) Exclusion, 2020 Limited from the provisions of Part IV of the
Act for the reasons that—
negatively,
(LN.149/2020) b. the acquirer is newly incorporated and
did not have turnover or assets in the
preceding year 2018, while the target was
KShs. 70,089,484, and
c. the transaction meets the threshold for
exclusion as provided under the Merger
Threshold Guidelines.
of the business assets of (1) of the Competition Act, 2010, excludes the
Organic Growers and proposed acquisition of the business assets of
Packers (EPZ) Limited Organic Growers and Packers (EPZ) Limited
(under administration) (under administration) by Fresh Pick Processors
by Fresh Pick Proces- Limited for the reasons that—
sors Limited) Exclusion, a. the merger will not affect competition
2020 negatively,
b. the acquirer is newly incorporated and
had no turnover nor assets while the target
assets were valued at KShs 548,648,760
(LN.150/2020) for the preceding year 2017 therefore,
the transaction meets the thresholds
for exclusion as provided for in the
Competition (General) Rules, 2019.
6th November, 2020 112 Protection Against The Chief Justice makes the following Rules in
Domestic Violence Act exercise of the powers conferred by section 34
(Protection Against of the Protection Against Domestic Violence
Domestic Violence Act, 2015, to guide on the protection against
Rules), 2020 domestic violence and for connected purposes.
(L.N. 200/2020)
13 November, 2020
th
113 Traffic Act The Cabinet Secretary for Transport,
Traffic (Registration Infrastructure, Housing, Urban Development
Plates) (Amendment) and Public Works in the exercise of the powers
Rules, 2020 conferred by section 119 (g) of the Traffic Act
, makes the following Rules to guide in the
registration of plates.
(L.N. 201/2020)
18 December, 2020
th
121 Traffic Act The Cabinet Secretary for Transport
(Exemption), 2020 Infrastructure Housing Urban Development
and Public Works in the exercise of the powers
conferred by section 120 of the Traffic Act
exempts the vehicles described by reference to
Chassis Number Make and Type as shown the
(L.N. 210/2020) Schedule from the provisions of section 55(2)
of the Traffic Act with effect from the 18th
November 2020.
58
International
Jurisprudence
Repossession of a vehicle subject of a hire purchase agreement if done in accordance
with its terms and conditions does not constitute deficiency in service
M/s Magma Fincorp Ltd v Rajesh Kumar Tiwari
Civil Appeal No 5622 of 2019
Supreme Court of India
D Y Chandrachud & I Banerjee, SCJJ
October 1, 2020
Reported by Faith Wanjiku
Commercial Law – hire purchase – hire purchase agreements bearing the Registration No. UP-42-T/1163 (vehicle).
– default in payment – where a purchaser defaulted in The complainant defaulted through post-dated cheques
payment and upon repossession merely gave assurances to clear which were, according to the financier, dishonoured. In
outstanding balances – whether the financier was obliged the circumstances, the financier took re-possession of the
to accept – whether repossession of a vehicle by a financier vehicle allegedly upon notice to the complainant, and
constituted deficiency in service – Consumer Protection Act, in accordance with the conditions of the hire-purchase
1986, section 2(1)(g). agreement and sold it.
Consumer Protection – consumer complaint – hire Exactly two years after the financier took possession of
purchase agreement - failure to produce a copy of the hire the vehicle, the complainant filed the complaint under
purchase agreement before the District Consumer Disputes section 12 of the Consumer Protection Act, 1986,
Redressal Forum – whether adverse inference could be drawn admitting that he had paid only 7 complete instalments.
against a financier for failure to produce a hire purchase The District Forum allowed the complaint and directed
agreement – Consumer Protection Act 1986, section 13(4) the financier to pay Rs.2,23,335/- to the complainant,
(iii). along with simple interest at 10% per annum from the
date of filing of the complaint till payment, Rs.10,000
Consumer Protection – consumer complaint – hire towards damages for physical and mental agony and
purchase agreement of a vehicle – repossession of vehicle by Rs.1000/- as litigation expenses, within 45 days from the
financier due to default in payment – plea of purchaser taking date of the order.
possession without pre-sale notice – whether a financier was
obliged to divulge details of sale of vehicle to the complainant Aggrieved, the financier appealed to the State Commission
where all instalments had not been paid – what was the contending that the vehicle had to be sold since the
effect of error in address of the complainant in notice for complainant had not paid an outstanding amount of
repossession – whether repossession of a vehicle subject of hire Rs.2,80,132/-. His appeal was dismissed which then led
purchase by the financier could amount to theft – Consumer to the instant appeal.
Protection Act 1986, sections 11, 17 & 21(b).
Issues
Commercial Law – hire purchase – damages for breach of
i. Whether there could be any impediment to the
hire purchase agreements – taking repossession of a vehicle by financier taking repossession of the vehicle when the
financier where the complainant was admittedly in default hirer did not make payment of instalments in terms
– whether depreciation of the vehicle could be considered of the hire purchase agreement.
where the complainant had been given free use of vehicle for
ii. Whether the service of proper notice on the hirer was
a considerable period of time – whether a court could award
necessary for repossession of a vehicle which was the
a complainant damages for an error in notice of repossession
subject of a hire purchase agreement, and if so, what
without considering the prejudice caused to him and without was the consequence of non-service of proper notice.
making any assessment of loss – Consumer Protection Act
iii. What amounted to a valid complaint under the
1986, sections 11, 14(1)(c), 14(d), 17 & 21(b).
Consumer Protection Act, 1986?
Brief facts iv. What was the purpose of a notice required to be
issued to hirer before taking possession of a vehicle
The dispute arose from a hire-purchase agreement subject of a hire purchase agreement?
between the financier and the complainant over the
hire purchase of a Mahindra Marshal Economic Jeep
59
Held vehicle remained with the financier.

1. The Consumer Protection Act, 1986 (the Act) was 4. The hire purchase agreement enabled the financier to
enacted to protect the interests of consumers, by take possession of the vehicle, on default in payment
making provisions for the establishment of Consumer of any of the instalments. There was no term in the
Councils and other fora for speedy redressal of hire purchase agreement, that required the financier
consumer disputes and for matters connected to give notice to the complainant before terminating
therewith. As per its statement of objects and reasons the hire purchase agreement, upon breach of any term
placed before Parliament, it was enacted to promote thereof, or before taking possession of the vehicle.
and protect the rights of consumers such as the right On the other hand, clause 15 of the hire purchase
to be protected against marketing of goods which agreement expressly provided for determination
were hazardous to life and property; the right to be of the hire purchase agreement without notice to
heard and to be assured that consumers’ interests the complainant, upon default in hire instalments.
will receive due consideration at appropriate forums; Clause 15 enabled the financier and/or its agent
and the right to seek redressal against unfair trade to enter the premises of the complainant, where
practices or unscrupulous exploitation of consumers. the vehicle under hire may be lying, and to take
possession of the same.
2. The fora constituted under the Consumer Protection
Act were quasi-judicial bodies, required to observe 5. The repossession of a vehicle under hire, in
the principles of natural justice and to award relief of accordance with the terms and conditions of a hire
a specific nature and to award wherever appropriate, purchase agreement, upon default in payment of hire
compensation to consumers. Section 11 of the Act instalments and refusal to release the same on mere
conferred jurisdiction on the District Forum, having assurance of the complainant to clear outstanding
territorial jurisdiction, to entertain a complaint, arrears of hire instalments, and pay future instalments
subject to the pecuniary limit of the value of the in time, did not constitute ‘deficiency’ in service.
goods or services and/or the compensation claimed. 6. The financier claimed to have issued notice to the
In the instant case, the territorial or the pecuniary complainant before taking possession of the vehicle
jurisdiction of the District Forum, to entertain the and also a pre-sale notice. Unfortunately, there was
complaint, was not in dispute. There could also be an error in the address of the complainant in the
no dispute that the complainant was a consumer of notice purported to be issued to the complainant
services provided by the financier. The question was before taking possession. It could thus, reasonably
whether the complaint filed by the complainant was be assumed that an obligation to give notice to
a complaint within the meaning of section 11, read the complainant was implicit in the hire purchase
with Section 2(1)(c) of the Act. The ingredients of agreement between the parties. The financier also
a complaint were provided in sections 2(1)(c) (ii), construed the hire purchase agreement to contain an
(iv), (v) and (vi) of the Act. Further, there had to be a implicit requirement to give notice to a hirer before
deficiency in the services availed by the complainant taking possession of the vehicle covered by the hire
from the financier, within the meaning of section purchase agreement. The question thus, was whether
2(1)(g) of the Act. The financier, as a service provider, the financier could have been directed to return the
had to have adopted any unfair trade practice within entire amount paid by the complainant, by way of
the meaning of section 2(1)(r) of the Act. instalments or otherwise, including Rs.1,04,000/-
3. In the instant case, the complainant only made paid by the complainant directly to the dealer, and
a vague assertion that the action of the financier also to pay damages of Rs.10,000 for physical and
in taking possession of the vehicle, admittedly mental suffering, only because of an error in the
for default in payment of instalments, and in not address of the complainant, in the notice sent by
releasing the vehicle to the complainant, in spite the financier, and that too, without even considering
of the complainant’s assurance to the financier how the timely complainant was prejudiced by the
to clear outstanding instalments and pay timely error, when the vehicle had been taken away for non-
future instalments, amounted to an act of unfair payment of hire instalments and sold after about
trade practice and constituted deficiency of service. four months.
Deficiency was defined in section 2(1)(g) of the 7. The object of a notice before taking possession of
Act as any fault, imperfection or shortcoming or a vehicle on hire under a hire purchase agreement,
inadequacy in the quality, nature or manner of was to enable the hirer, to make a written request to
performance which was required to be maintained the financier to revive the hire purchase agreement
by or under any law, for the time being in force, or in terms of clause 12 of the said agreement, upon
undertaken to be performed by a person, in pursuance payment of all outstanding dues together with
of a contract or otherwise, in relation to any service. damages, as might be mutually agreed upon.
Under the terms and conditions of the hire purchase 8. A notice also drew the attention of the hirer to the
agreement, the ownership of the vehicle was to stand alleged breaches of agreement on the part of the
transferred to the complainant from the financier, hirer, on the basis of which, the financier claimed
upon payment of all the 35 instalments and other to be entitled to take possession. Such notice gave
dues, if any. Until then, the ownership was to be the hirer an opportunity to show that the hirer had
with the financier. As all the 35 instalments had not not, in fact, committed any breach of agreement. For
been paid by the complainant, the ownership of the example, the hirer could be able to show that the
60
financier had erroneously omitted to give credit to to its notice by the complainant and the service
the hirer for payments made, or had not presented provider. Irrespective of whether the service provider
a cheque in its possession for payment, even though adduced evidence or not, the decision of the District
there were sufficient funds in the concerned bank Forum had to be based on evidence relied upon
account of the hirer, to honour the cheque. by the complainant. The onus of proof was on the
9. Many self-employed hirers, operated vehicles taken complainant making the allegation. Section 27 of
on hire, to earn a livelihood. Such vehicles were often the Consumer Protection Act required the District
driven over long distances. A notice ensured that the Forum, the State Commission or the National
hirer was not taken by surprise and had time to stop Commission to dismiss frivolous complaints with
operating the vehicle, so that third persons using costs not exceeding Rs.10,000/-.
the vehicle on payment of charges were not put to 14. The evidence to which the complainant drew the
sudden inconvenience by reason of re-possession of attention of the District Forum was apparent from
the vehicle. its judgment and order. The complainant produced
10. On the face of the averments in the complaint, a delivery receipt in respect of the vehicle, some
the complainant had approached the financier after payment receipts, Insurance papers in respect of
possession of the vehicle was taken, to be told that the vehicle, an FIR unconnected with the financier
the financier had taken possession of the vehicle, and/or copies thereof and some documents relating
as the complainant had defaulted in payment of to the filing of the complaint and payment of court
instalments. The financier had not agreed to release fees etc., none of which established any deficiency
the vehicle, on the assurance of the complainant of service or unfair trade practice on the part of the
to clear outstanding instalments and to pay future financier.
instalments in time. 15. The District Forum drew adverse inference against
11. A District Forum constituted under the Consumer the financier for not producing the hire purchase
Protection Act, 1963, derived its power to grant agreement and assumed that there was no provision
relief from its section 14. If the District Forum in the hire purchase agreement for taking the vehicle
was satisfied that the allegations contained in the back or selling it to a third party. Significantly,
complaint about the services were proved, it could it was not even the case of the complainant in his
direct the service provider to; complaint, that the hire purchase agreement, which
a) return the charges paid by the complainant the complainant had signed, did not authorize the
[section 14(1)(c)]; financier to take possession of the vehicle upon
default, or to sell the same to a third party. No
b) to pay such an amount, as could be awarded
adverse inference could have been drawn against
by District Forum as compensation to the
the financier for not producing the hire purchase
consumer for any loss or injury suffered by the
agreement before the District Forum, when there
complainant/consumer, due to the negligence
was no allegation in the complaint of breach by the
of the service provider [section 14(1)(d)];
financier of the hire purchase agreement, in taking
c) to pay punitive damages in such circumstances possession of the vehicle. The District Forum did
as the District Forum deemed fit [proviso to not exercise its power under section 13(4)(ii) of the
section [14(1)(d)]; Act to call upon the financier to produce the hire
d) to remove the deficiencies in the service in purchase agreement. Even otherwise, the District
question [section 14(1)(a)]; and, Forum did not direct the financier to produce the
e) to discontinue the unfair trade practice [section hire purchase agreement.
14(1)(f )]. 16. In the complaint, a copy of which was annexed to the
12. Before a District Forum could grant relief to the Paper Book, there was not a whisper of application
consumer of a service, it had to be satisfied that the of any force in taking possession of the vehicle.
allegations in the complaint, and or the allegations The finding of the District Forum, of the vehicle
which constituted a valid complaint were proved, i.e; having been lifted forcefully or snatched was, with
the greatest of respect, contrary to the complainant’s
a) allegations of unfair or restrictive trade practice
own case made out in the complaint, and therefore
adopted by the service provider; or
perverse. A new case could not be made out by way
b) the allegations of deficiency in the service of evidence, when there were no pleadings to support
hired, or availed of or agreed to be availed of by the same.
the complainant from the service provider; or,
17. The District Forum concluded that “snatching”
c) the allegations of the service provider charging the vehicle, without notice, was in breach of the
a price in excess of the price fixed for the hire purchase agreement and was a deficiency in
service, under any law, for the time being in service. The State Commission dismissed the appeal
force or agreed between the parties; or, of the financier on the ground of delay and also on
d) allegations of offering spurious services or merits, on the ground of non-service of notice at
services hazardous to life or safety. the correct address of the complainant. The State
13. Section 13(2)(b) of the Consumer Protection Act, Commission assumed that the error in the address
1986 obligated the District Forum to decide a of the complainant in the notice despatched by the
complaint on the basis of the evidence brought financier was deliberate, in order to sell the vehicle
61
without the knowledge of the complainant. Such sent to the correct address of the Complainant,
assumption was not based on any materials on record as recorded in the hire purchase agreement. The
but patently conjectural. The State Commission question which arose then was whether repossession
observed that the complainant had been deprived of the vehicle without proper notice, for admitted
of the opportunity to deposit the amount, due from default in payment of hire instalments, warranted
him to the financier, which again was contrary to the the order passed by the District Forum, which was
complainant’s own pleadings in his complaint. subsequently affirmed by the State Commission and
18. The State Commission further found that there was the National Commission.
no mention of the amount due to be paid by the 22. By directing the financier to pay to the complainant,
complainant to the financier in the written statement the entire amount paid by the complainant to the
filed by the financier before the District Forum. financier from the inception, including the amount
There was also no mention in that written statement paid to the dealer directly, along with interest at the
of when the vehicle had been sold and the amount rate of 10% per annum, damages of Rs.10,000/- and
for which the vehicle had been sold, whether such litigation costs, the tribunals below gave a defaulting
amount was more than or less than the amount due hirer the benefit of free use of the vehicle of the value
from the complainant to the financier. Observing of Rs.4,21,121/- for almost twelve months, plus
that the silence on the part of the financier in not damages, oblivious to the depreciation in the value of
divulging anything about the sale rendered the sale the vehicle by reason of wear and tear, due to use by
dubious, the State Commission concluded that the the hirer, including an admitted accident for which
financier had surreptitiously sold the vehicle, without the vehicle laid seized by the police for some time.
the knowledge of the Complainant, without notice 23. The Consumer Protection Act, 1986 created fora
to the complainant, and without disclosing the for quick adjudication of consumer disputes. The
details of the sale. That observation overlooked the Act protected consumers from defective goods,
terms and conditions of the hire purchase agreement deficient services, unfair or restrictive trade practices,
and did not consider the law governing hire purchase or spurious goods or services. The Act also protected
agreements. consumers of goods and services from being charged
19. A financier remained the owner of the vehicle taken a price, in excess of the price fixed by or under any
by the complainant on hire, on condition of option law in force, the price agreed between the parties,
to purchase, upon payment of all hire instalments. or the price declared by the service provider or the
The hire instalments were charges for use of the supplier of the goods inter alia by display, and/or
vehicle as also for the exercise of option to purchase representation. The Act was not in derogation of any
the vehicle in future. The financier being the owner law in existence but in addition thereto, as provided
of the vehicle, had no obligation to divulge details in section 3. The Act protected consumers of services
of the sale of that vehicle, and that too on its own, from being charged a price in excess of the price fixed
without being called upon to do so. Moreover, the for the service under any law or the price agreed
finding of the State Commission that the financier between the parties and also redressal of deficiency in
sold the vehicle without the knowledge of the the services availed by the consumer and/or against
complainant was contrary to the complainant’s own restrictive or unfair trade practices, and/or spurious
case in his complaint before the District Forum. services. The Consumer Protection Act, 1986 did
20. The complainant had established that there was not override the Contract Act, 1872, and other
a discrepancy and/or error in the address of the enactments in force, applicable to the service availed
complainant in the notice for repossession, from by the consumer from the service provider.
which all the three fora under the Consumer 24. The protection, to which the consumer of a service
Protection Act, 1986, i.e.; the District Forum, the was entitled under the Consumer Protection Act,
State Commission, and the National Commission, was against loss of money, by reason of being denied
had concluded that the vehicle was taken without service, of a quality agreed upon expressly or by
notice. However, it was the case of the complainant necessary implication, inter alia, in view of the
that the vehicle was sold without his knowledge or applicable law, for which the consumer had paid, or
notice. had agreed to pay a consideration. The said Act also
21. The error and or discrepancy in the address was protected consumers from being overcharged for any
minor and there were no materials on the basis of service obtained and/or agreed to be obtained.
which the State Commission concluded that the error 25. The consumer of a service could be entitled to
was deliberate. The finding of the State Commission, damages for any loss suffered by the consumer, by
of the error in the address being deliberate, was reason of denial or deficiency in service for which the
thus unsubstantiated. Be that as it were, it was consumer had paid or agreed to pay (if the parties
prudent to proceed on the basis of the concurrent had agreed to deferred payment), charges or price for
factual findings of the District Forum, the State the service. In cases of breach of contract, liquidated
Commission and the National Commission that; damages could be imposed on the party in breach, if
the financier took possession of the vehicle without the agreement provided for liquidated damages that
notice. Thus, since the financier deemed it necessary were a fixed amount by way of damages. Where the
to issue notice to the complainant, and accordingly parties to an agreement had not agreed to liquidated
dispatched a notice, the notice should have been damages, the party in breach of agreement could be
62
directed to pay unliquidated damages which were permitted the financier to take possession of a vehicle,
compensatory. Such compensatory damages were there was no legal impediment to the financier doing
not meant to punish the party in breach, but to so. When possession of the vehicle was taken, the
compensate the aggrieved party for losses suffered as financier could not be said to have committed theft.
a result of the breach. Where, however, the damages Whether the transaction between a financier and a
caused by the breach were severe and extensive, the purchaser/hirer was a hire purchase transaction or
party in breach could be required to pay to the party a loan transaction, could be determined from the
not in breach such damages as would restore the terms of the agreement, considered in the light of
position of the party not in breach to the position surrounding circumstances. However, even a loan
before the breach occurred. transaction, secured by right of seizure of a financed
26. Apart from compensatory damages, an adjudicating vehicle, conferred licence to the financier to seize the
authority could impose, on the party in breach, vehicle.
punitive damages or nominal damages. Punitive 31. The agreement executed by and between the financier
damages were awarded where the party in breach and the complainant was a hire purchase agreement
of agreement had behaved in a manner, which was as would appear from the terms and conditions
reprehensible and called for punishment. Nominal thereof. In any event, the fora under the Consumer
damages were awarded where there was no real harm Protection Act had not arrived at any specific finding
done, by reason of the breach of the contract. to the contrary. The agreement clearly permitted
27. Section 14 of the Consumer Protection Act, the financier to take possession of the vehicle upon
1986 empowered the District Forum to award default in payment of instalments.
compensation to the party not in breach by directing 32. Whether the service of proper notice on the hirer
the party in breach to return the price or the charges would be necessary for repossession of a vehicle,
as could have been paid by the complainant. That which was the subject matter of a hire purchase
provision also enabled the District Forum to award agreement, depended on the terms and conditions
compensatory damages to the consumer for loss or of the hire purchase agreement, some of which could
injury suffered by the consumer due to negligence of stand modified by the course of conduct of the
the party in breach. The Forum could direct removal parties. If the hire purchase agreement provided for
of the deficiency in service, if the deficiency could notice on the hirer before repossession, such notice
be removed and it could direct discontinuation of would be mandatory. Notice could also be necessary
unfair trade practices or restrictive practices. if a requirement to give notice was implicit in the
28. The proviso to section 14(1)(d) of the Consumer agreement from the course of conduct of the parties.
Protection Act, 1986 empowered the District Forum 33. If the hirer committed breaches of the conditions
to grant punitive damages in such circumstances as of a hire purchase agreement which expressly
it deemed fit. Punitive damages were not generally provided for immediate repossession of a vehicle
awarded in cases of breach of contract unless the act without further notice to the hirer in case of default
was so reprehensible that it called for punishment in payment of hire charges and/or hire instalments,
of the party in breach. Compensation which was repossession would not be vitiated for want of
compensatory, had to be assessed taking into notice. In the instant case, a duty to give notice to
account relevant factors, such as the loss incurred by the complainant before repossession was implicit
the claimant, through some amount of guess work/ in the hire purchase agreement. The hire purchase
estimation. agreement was a stereotype agreement in a standard
29. The District Forum did not even undertake the form, prepared by the financier. The same kind of
exercise of assessment of the loss/damages, if any, agreements, containing, identical terms, except for
suffered by the complainant by reason of non- minor modifications were executed by all hirers of
service of notice before taking possession of the vehicles, equipment, machinery and other goods,
vehicle. The District Forum, the State Commission who entered into hire purchase agreements with the
and the National Commission did not consider the financier. The financier, who set down the terms and
law relating to hire purchases as enunciated by the conditions of the hire purchase, construed the hire
instant court in a plethora of past judgments. The purchase agreement to contain an implied term for
law emerging from those precedents was that; goods service of notice and accordingly despatched a notice,
were let out on hire under a hire purchase agreement, but did not address it to the correct address of the
with an option to purchase, in accordance with the complainant as given in the hire purchase agreement.
terms and conditions of the hire purchase agreement. 34. In a case where the requirement to serve notice
The hirer simply paid for the use of the goods and for before repossession was implicit in the hire purchase
the option to purchase them. agreement, non-service of proper notice would be
30. The financier continued to remain the owner of a tantamount to deficiency of service for breach of
vehicle covered by a hire purchase agreement until the hire purchase agreement giving rise to a claim
all the hire instalments were paid and the hirer in damages. The complainant consumer would be
exercised the option to purchase. Thus, upon default entitled to compensatory damages, based on an
by the hirer in payment of instalments, the financier assessment of the loss caused to the complainant by
could take re-possession of the vehicle. When the reason of the omission to give notice. Where there
agreement between the financier and the hirer was no evidence of any loss to the hirer by reason of
63
omission to give notice, nominal damages could be notionally assess the depreciation in the value of the
awarded. vehicle.
35. A forum constituted under the Consumer 38. The District Forum was not justified in directing
Protection Act had the power to award punitive the financier to pay the complainant Rs.2,23,335/-
damages. However, punitive damages were granted being the entire amount paid by the complainant
only in exceptional circumstances, where the to the financier from the inception as well as the
action of the financier was so reprehensible that payment of Rs.1,04,000/- made by the complainant
punishment was warranted. For instance, where a to the dealer along with damage of Rs.10,000/- and
financier erroneously and/or wrongfully invoked litigation costs of Rs.1,000/- after the complainant
the power to repossess without notice to the hirer, had held and used the vehicle for almost a year. The
causing extensive pecuniary loss to the hirer or loss complainant, admittedly a defaulter, had in effect
of goodwill and repute, a forum constituted under been allowed free use of the vehicle for about a year
the Consumer Protection Act could award punitive plus damages for an error in the notice of repossession
damages. without considering the prejudice, if any, caused
36. There was no evidence of any loss suffered by the to the complainant by the error and consequential
complainant by reason of non-receipt of notice. no receipt of the notice. Moreover, that award was
Admittedly, several instalments remained unpaid. made without making any assessment of the loss,
After repossession, the complainant contacted if at all, to the complainant by reason of the error/
the financier and was informed of the reasons for omission. Thus, the impugned orders of the National
the repossession. He only made an offer to pay Commission, the State Commission and the District
outstanding instalments and gave an assurance to Forum, could be sustained and the same ought to be
pay future instalments in time. If the financier was set aside.
not agreeable to accept the offer, it was within his Appeal allowed.
rights under the hire purchase agreement. That was
not a case where payment had been tendered by the Order
hirer but not accepted by the financier/lender. The
complainant had not tendered payment. The Financier was ordered to pay a composite sum of
37. The financier admittedly paid Rs.3,15,000/- for Rs.15,000/- to the complainant towards damages for
acquisition of the vehicle, out of which the financier ‘deficiency’ in service and costs for omission to give the
had been able to realize Rs.1,19,000/- inclusive of complainant a proper notice before taking repossession of the
all charges. There was depreciation in the value of vehicle.
the vehicle by reason of usage by the complainant
for about a year. The District Forum did not even
Relevance to Kenya’s legal system

In Kenya hire purchase transactions are governed by Hire whether in pursuance of the agreement or of a judgment
Purchase Act, cap 507 of Laws of Kenya. Section 3(1) of or otherwise. It is specific that under such circumstances,
the Hire Purchase Act provides that the Act applies to and the owner of the goods shall not enforce any right to
in respect of all hire-purchase agreements which the hire recover possession of the goods from the hirer other
purchase price does not exceed the sum of four million than by a suit. That is the position of the law as held by
shillings. The amount may only be varied by the relevant the High Court in Civil Appeal No 24 of 2013 David
cabinet secretary after taking into account market forces Karobia Kiiru v Laverage Company Ltd [2017] eKLR.
from time to time prevailing except for the case of a hire Section 15 (ii) further states if an owner retakes possession
purchase agreement in which the hirer is a body corporate. of the goods in contravention of subsection (1), the Hire
Purchase agreement if not previously terminated shall
Hire purchase agreements are agreements whereby, an
terminate and the hirer shall be released from all liability
owner of goods allows a person, known as the hirer, to
under the agreement and shall be entitled to recover from
hire goods from him or her for a period of time by paying
the owner by suit all sums paid by the hirer under the
instalments. The hirer has an option to buy the goods
agreement or under any security given by him in respect
at the end of the agreement if all instalments are being
thereof.
paid. However, it is not a contract of sale but contract
of bailment as the hirer merely has an option to buy the Therefore, if the owner breaches provisions under section
goods and although the hirer has the right of using the of the Hire Purchase Act, then the agreement is treated
goods, he is not the legal owner during the term of the as terminated and the hirer is released from liability and
agreement, the ownership of the goods remains with the can recover all payments made under the Agreement as
owner. was so found in David Karobia Kiiru v Laverage Company
Ltd [2017] eKLR. Upon hearing the request for an order
Section 15 of the Hire Purchase Act prohibits repossession
to repossess the goods, the court can either order for the
of goods under a Hire Purchase Agreement when two
specific delivery of the goods to the owner or part thereof
thirds (2/3) of the Hire Purchase price has been paid
and to the hirer title to the remaining goods or suspect
64
repossession on condition the hirer pays the balance. payments, nor did it deny the respondent its right to
repossess the motor vehicle. It was evident that the
Further to the above, the Constitution of Kenya, 2010
agreement provided the respondent the right to repossess
in article 46 (1) provides that consumers have the right
the motor vehicle as long as there was default in payment
to the information necessary for them to gain full benefit
of the monthly instalments.
from goods and services and also to compensation for loss
or injury arising from defects in goods or services. It is evident from the above two judgments that the
court is willing to enforce consumer rights in hire
There is the Consumer Protection Act No. 46 of 2012
purchase agreements and protect consumers from unfair
which is an Act enacted by Parliament for protection of
trade practices as long as there is proof of violation
the consumer and prevention of unfair trade practices
when consumers have fulfilled their obligations to the
in consumer transactions. Section 5 provides that under
agreements.
the quality of goods and services; the supplier is deemed
to warrant that the goods or services supplied under a In Simon Muiruri Wanjohi v Resma Commercial Agencies
consumer agreement are of a reasonably merchantable Nakuru HCA No. 91 of 2002 the 1st respondent took the
quality and that the implied conditions and warranties law into his own hands and unlawfully took possession of
applying to the sale of goods under the Sale of Goods the said motor vehicle from the appellant. In the event of
Act shall apply with necessary modifications to goods breach of the agreement the 1st respondent was required
that are leased, traded or otherwise supplied under a to seek the intervention of the law and not use the law
consumer agreement. Section 12 provides that it is an of the jungle to take away the appellant’s property; the
unfair practice for a person to make a false, misleading or 1st respondent robbed the appellant of his motor vehicle.
deceptive representation in relation to contracted goods
In Pals Car Ltd v CMC Motors Ltd & 2 Others Nakuru
or services. Section 16 (1) goes ahead to provide that any
HCCC No.171 of 2005 the court held that if there was
agreement, whether written, oral or implied, entered into
breach of the agreement, the defendant ought to have
by a consumer after or while a person has engaged in an
filed a suit to obtain and enforce the agreement, and
unfair practice may be rescinded by the consumer and the
obtain an order to repossess, and therefore repossession
consumer is entitled to any remedy that is available in law,
without a court order was unlawful.
including damages.
The court is also ready to enforce the rights of the owner
In Athman Mustafa Mohammed v Ecobank Kenya Limited
of the property, as long as they seek intervention of the law
& 2 others [2015] eKLR, the court held that repossession
where there are breaches in the hire purchase agreements.
of a motor vehicle without notice was legal as the only
interest which defendant had in the vehicle was that it There is also the Consumer Federation of Kenya
was the security for the financial facility which the bank (COFEK) which was registered on March 26, 2010.
gave to plaintiff. Provided the plaintiff was paying the COFEK is a founder Chair of the Government-run
monthly instalments, and doing so within time, the Kenya Consumer Protection Advisory Committee
defendant would have had no reason to take possession of (Kecopac) and its mandate is to defend, promote, develop
the vehicle unless the plaintiff violated any other term of and pursue consumer rights as guided by Article 46 of the
the agreement between them. It is the defendant who had Constitution of Kenya 2010, the Consumer Protection
taken steps to dispose of the vehicle. They had done so, Act, 2012 and the Competition Act, Cap 504 and make
according to the plaintiff, without first giving him Notice it possible for the consumers to get value for money.
or any Demand Letter. Even assuming that Notice was
The above Indian case holds that repossession of goods
not issued by the defendant to the plaintiff, that would
under hire purchaser by the financier (owner) may be
not, on a prima facie basis, have rendered unlawful
done in accordance with the terms and conditions of the
or irregular the proposed sale. The Chattels Mortgage
hire purchase. Thus, where the hire purchase agreement
expressly stipulated that the power to take possession of
requires the financier to issue a presale notice to the
the vehicle and to dispose of it accrued immediately to the
complainant (hirer), the financier is obligated to do so.
defendant, when there was a default; and that it accrued
Failure to do so would render repossession illegal and the
without any previous or further notice or concurrence on
court may, after accessing the prejudice and loss, if any,
the part of the grantor.
caused by that failure to issue presale notice, award the
In Joseph Chege Gitau v CFC Bank Limited [2008] complainant damages for deficiency in service. Unlike in
eKLR where it was held that from the pleadings and Kenya, the financier does not need to obtain a court order
the evidence adduced before the trial court, it was not in order to repossess the hired goods once the hirer has
disputed that the appellant defaulted in the repayment of defaulted or breached the agreement.
the hire instalments for the motor vehicle. The appellant
blamed the respondent for repossessing the motor vehicle
without taking into account that the appellant was unable
to pay the rental instalments because the motor vehicle
had mechanical problems and the appellant could not
therefore generate any income. However, the fact that the
motor vehicle had mechanical problems did not absolve
the appellant from his obligation to make the monthly
65
Inclusion of Legal Services as Essential Services during the Covid-19 Pandemic;

Comparison between Kenya and India
India
Supreme Court of India brings to an end the extension of limitation period for legal services by including them
as essential services
(Suo Motu Writ Petition (Civil) No.3 of 2020 (In Re: Cognizance for Extension of Limitation)
In India, due to the onset of COVID-19 pandemic (curfew order), imposed by Kenyan government as one
the Supreme Court took suo motu cognizance of the of the measures meant to halt or slow the spread of the
situation arising from difficulties that might be faced coronavirus (COVID-19) in Kenya. They termed it as
by the litigants across the country in filing petitions/ unconstitutional and illegal, and that it did not comply
applications/suits/appeals/all other proceedings within with the provisions of section 8 of the POA by failing
the period of limitation prescribed under the general law to provide the period of the curfew. One of their main
of limitation or under any special laws (both Central or prayers was that advocates of the High Court ought to
State). be included in the list of services, personnel or workers
exempted from the operation of the Public Order (State
The Supreme Court also took cognizance of the fact
Curfew) Order, 2020.
that the lockdown had been lifted and the country
was returning to normalcy. Almost all the Courts and The High Court held that the government could not
Tribunals were functioning either physically or by virtual be faulted for enforcing precautionary and restrictive
mode. The Court was of the opinion that the order dated measures in order to slow the spread of a novel disease in
March 15, 2020 prescribing the limitation period had line with the precautionary principle. The use of a curfew
served its purpose and in view of the changing scenario order to restrict the contact between persons as advised
relating to the pandemic, the extension of limitation by the Ministry of Health was a legitimate action. The 2nd
should come to an end. respondent had ameliorated the effects of the curfew by
changing the working hours in order to make it possible
The Court through Suo Motu Writ Petition (Civil) No.3
for the workers to comply with the curfew.
of 2020 (In Re: Cognizance for Extension of Limitation)
on March 8, 2021 then ordered the Government of The court also held that although the curfew order met
India to amend the guidelines for containment zones, the constitutional and statutory parameters, there was a
to state that regulated movement would be allowed for strong case for the retooling and remodeling of the legal
medical emergencies, provision of essential goods and instrument so that it could achieve its objectives with
services, and other necessary functions, such as, time reduced impacts on the rights and fundamental freedoms
bound applications, including for legal purposes, and of Kenyans.
educational and job-related requirements.
Further, the High Court found that curfew order had not
As can be seen in the Supreme Court of India’s writ closed courts. The curfew did not affect the right to fair
petition, legal services have now been considered as hearing under article 50 of the Constitution. However,
essential services and thus they do not have restricted the work of advocates was not limited to court work. They
movement in filing petitions/applications/suits/appeals/ also attended to persons arrested by the police. Therefore,
all other proceedings. The order when implemented will petitioner’s members ought to have been exempted from
thus make it easier for litigants to access legal services in the operations of the curfew order so that they could
the country without difficulties. assist in the protection of the rights guaranteed by article
49 of the Constitution whenever called upon to do so.
Kenya The petitioner’s concern became more important when
In Kenya, the courts went ahead and gave an order to the the manner in which the curfew had been enforced was
on April 16, 2020 to Fred Matiangi, Cabinet Secretary taken into account.
for Interior and Coordination of National Government The High Court finally gave the order compelling the
to include the Law Society of Kenya and its members in 2nd respondent (Fred Matiangi, Cabinet Secretary for
the list of services, personnel or workers exempted from Interior and Coordination of National Government) to
the provisions of the Public Order (State Curfew) Order, amend, within five days from the date of the judgment,
2020. the Schedule to the Public Order (State Curfew) Order,
This was seen in the case of Law Society of Kenya v 2020 so as to include the 3rd Interested Party (IPOA)
Hillary Mutyambai, Inspector General National Police and the members of the petitioner in the list of “services,
Service & 4 others; Kenya National Commission personnel or workers” exempted from the provisions of
on Human Rights & 3 others (Interested Parties) the Public Order (State Curfew) Order, 2020.
[2020] eKLR where the petitioner challenged the night The Current Status in Kenya
curfew published under the Public Order Act (POA)
The current status in Kenya shows that action has been
66
taken to include legal services as essential services. will remain in effect for a period of 6o days thereof.
This is after issuance of Legal Notice No. 46 on The
Public Order (State Curfew) Order, No. 2 of 2021 Conclusion
by Fred Matiangi, Cabinet Secretary for Interior and As can be seen in both countries, India and Kenya,
Coordination of National Government. The Legal Notice their courts issued compelling orders to their respective
applies to the entire territory of the Republic of Kenya Executive organs to include legal services as essential
except Nairobi City, Kajiado, Machakos, Kiambu and services to ease the difficulties litigants are faced with in
Nakuru counties. The legal notice adds advocates of the filing all types of matters and proceedings. Kenya has
High Court of Kenya to the list of essential services with now seen the importance and effected its court orders
effect from March 29, 2021 and will remain in effect for showing the respect to the Judiciary by the Executive. It
a period of 6o days thereof. is therefore clear that judicial organs of various countries
There is also Legal Notice No. 47 on The Public have realized and seen the need of having legal services
Order (Nairobi City, Kajiado, Machakos, Kiambu as essential services operating beyond the restrictions in
and Nakuru Counties Curfew) Order, 2021 issued place during the COVID-19 Pandemic as justice delayed
by Fred Matiangi, Cabinet Secretary for Interior and is justice denied. Litigants in countries where these orders
Coordination of National Government. The Legal Notice are implemented will thus have a reprieve and it can only
applies to Nairobi City, Kajiado, Machakos, Kiambu be hoped that more Executive organs will see the need to
and Nakuru counties. The legal notice adds advocates of also be a driving force during the COVID-19 Pandemic
the High Court of Kenya in the 5 counties to the list of of ensuring justice is continually served by implementing
essential services with effect from March 29, 2021 and those orders.
East African Court of Justice awards $25000 USD in damages for violation of the
right to access to justice by the Kenyan Supreme Court.
Martha Wangari Karua v The Attorney General of the Republic of Kenya and Hon. Anne Mumbi Waiguru &
Hon. Peter Ndambiri (Interveners)
Reference No 20 of 2019
The East African Court of Justice First Instance Division
M Mugenyi, C Nyawello, C Nyachae, JJ
November 27, 2020
Reported by Faith Wanjiku & Ian Otenyo
International Law – regional integration – East African 7(2) of the Treaty for the Establishment of the East African
Community – organs of the East African Community – the Community (the Treaty) - Whether the Kenyan Supreme
East African Court of Justice – suit challenging the acts and Court violated the applicant’s right to access to justice as
omissions of the Kenyan judicial system at the East African provided by the Kenyan Constitution by dismissing her
Court of Justice – claim challenging Kenya’s commitments to petition – Constitution of Kenya, article 50, 159 and 259;
the fundamental and operational principles of the Treaty for Treaty for the Establishment of the East African Community,
the Establishment of the East African Community, especially articles 6(d) and 7(2), Constitution of Kenya, article 50,
the right to access to justice and a fair trial - whether the 159 and 259.
Kenyan Supreme Court violated the applicant’s right to Brief facts
access to justice as provided by the Kenyan Constitution
The applicant participated in the respondent’s general
by dismissing her petition - Treaty for the Establishment
elections as a gubernatorial candidate for Kirinyaga
of the East African Community, articles 6(d) and 7(2),
County, and lost to the first Intervener. Dissatisfied with
Constitution of Kenya, article 50, 159 and 259.
the outcome, the applicant petitioned against the election
Constitutional law – interpretation of provisions of the results at the high court. The petition was dismissed and
Constitution of Kenya, 2010 – articles 50, 159 and 259 of the applicant successfully appealed to the court of appeal.
the Constitution of Kenya, 2010 – interpreting the Kenyan The appellate court ordered the case to be remitted back
Constitution in a manner that promoted the purpose and to the High Court for determination on merits. The High
principles therein – where no time was explicitly allotted Court then dismissed the applicant’s petition which the
for the hearing of matters that were remitted – Whether applicant appealed to the Court of Appeal. The Court of
the Kenyan Supreme Court violated the applicant’s right to Appeal held that the High Court lacked the jurisdiction
access to justice as provided by the Kenyan Constitution by to entertain the petition after the lapse of the six months
dismissing her petition – Constitution of Kenya, article 50, period for hearing petitions as prescribed by statute. The
159 and 259 applicant approached the respondent’s Supreme Court
Constitutional Law – fundamental rights and freedoms – which upheld the Court of Appeal’s decision.
right to fair trial – right of access to justice - claim alleging It is from that background that the applicant contended
that the actions of the Supreme Court of Kenya in dismissing that the respondent’s judicial organs through its acts and
the applicant’s electoral petition violated her rights to or omissions failed to abide by the fundamental principles
access to justice and a fair hearing & thereby violating the encapsulated in articles 6(d) and 7(2) of the Treaty for
fundamental principles encapsulated in articles 6(d) and the Establishment of the East African Community
67
(the Treaty). The applicant faulted the decision of the a) promotes its purposes, values and principles.
Supreme Court of Kenya for its failure to uphold the rule b) advances the rule of law, and the human
of law and violating her right to access to justice and a rights and fundamental freedoms in the Bill
fair hearing. of Rights.
Issues c) permits the development of the law.
d) contributes to good governance.
i. Whether the reference was time barred due to the 2. If a particular time is not prescribed by this
two month limit set under article 30 of the East Constitution for performing a required act, the act
African Community Treaty. shall be done without unreasonable delay.
Held
ii. Whether the reference raised a cause of action against
the respondent. 1. The instant court had to consider whether to
compute time from the date the Kenyan High Court
iii. Whether the Kenyan Supreme Court violated the passed its judgement or the time when the Supreme
applicant’s right to access to justice as provided by Court passed its judgement. Article 30(2) of the
the Kenyan Constitution by dismissing her petition. Treaty prescribed a two-month limitation period
iv. Whether the respondent state through the acts within which a reference may be instituted in the
and/ or omissions of its judicial organs violated its instant court. The instant court would compute
commitments to the fundamental and operational time from the starting date of an act complained of
principles of the EAC Treaty, especially the right to and not the day the act ended which was when the
access to justice and a fair trial. Supreme Court rendered its judgement. As such, the
reference was not time barred.
Relevant provisions of the law 2. The reference raised the question of access to justice
Treaty for the Establishment of the East African which the applicant contended was denied by
Community, 2000 the Supreme Court. The right of access to justice
Article 6 – Fundamental Principles of the Community was enshrined under article 30 of the East African
The fundamental principles that shall govern the achievement Community Treaty and bound all member states
of the objectives of the Community by the Partner States shall of the East African Community. As such, the court
include: affirmed that the reference raised a cause of action
a) good governance including adherence to against the respondent.
the principles of democracy, the rule of law, 3. The respondent’s judicial branch was obliged to
accountability, transparency, social justice, interpret the Kenyan Constitution, 2010, in a
equal opportunities, gender equality, as well as manner that promoted the purpose and principles
the recognition, promotion and protection of of the respondent’s Constitution. Where the
human and peoples rights in accordance with the respondent’s actions were inconsistent with the local
provisions of the African Charter on Human and law and a breach of its obligation under the Treaty
Peoples’ Rights; to observe the principle of the rule of law, it was
Article 7 (2) – Operational Principles of the the instant court’s inescapable duty to consider the
Community internal laws of such partner state in determining
The Partner States undertake to abide by the principles of whether the conduct complained of amounted to a
good governance, including adherence to the principles of violation or contravention of the Treaty.
democracy, the rule of law, social justice and the maintenance 4. Section 75(1) of the respondent’s Elections Act
of universally accepted standards of human rights. granted parties the right to contest alleged electoral
Constitution of Kenya, 2010 malpractices in the High Court of Kenya. It was not
Article 50 – Fair hearing in dispute that section 85A of the same Act conferred
1) Every person has the right to have any dispute that a right of appeal to the Court of Appeal. On the other
can be resolved by the application of law decided hand, article 163(4)(a) of the Constitution of Kenya,
in a fair and public hearing before a court or, if 2010, though not conferring a typical second appeal
appropriate, another independent and impartial from the Court of Appeal in respect of electoral
tribunal or body. matters, provided for an appeal to the Supreme
Article 159 – Judicial authority Court on matters of constitutional interpretation.
2) In exercising judicial authority, the courts 5. Whereas section 75(2) of the Elections Act fixed
and tribunals shall be guided by the following the hearing and determination of election petitions
principles— in the High Court to six months from the date
b) justice shall not be delayed; of filing, it was silent on whether that time frame
c) justice shall be administered without undue regard included the time spent on appeals from High Court
to procedural technicalities; and decisions (interlocutory or otherwise), or the time
d) the purpose and principles of this Constitution within which cases on remission by an appellate
shall be protected and promoted. court could be determined. Ordinarily, an election
Article 259 - Construing this Constitution (1) and (8) petition brought under section 75(1) should be
1. This Constitution shall be interpreted in a manner heard and determined within the six-month period
that— stipulated under section 75(2), and should it go
68
on appeal, it would be determined within the six 2010 provided an appropriate legal framework for
months delineated in section 85A(1)(b). It should the solution to the unjust situation the applicant
be settled on how local courts ought to approach found herself.
a matter where the appellate court determined an 9. In the promotion of access to justice, human
appeal by remitting it back to the trial court. dignity, equity and social justice, any court sitting
6. Access to justice meant that citizens were able to in interpretation of the Kenyan Constitution, 2010
use justice institutions to obtain solutions to their where a particular time frame was not prescribed by
common justice problems. For access to justice to the Constitution, was urged to construe and remedy
exist, justice institutions had to function effectively the lacuna in such a manner as would ensure that
to provide fair solutions to citizens’ justice problems. justice should be done without unreasonable delay.
7. It was extremely troubling that the Supreme Court There was a duty upon the Supreme Court to redress
held that the Court of Appeal should have decided the identified lacuna in the law so as to engender
to terminate the matter before remitting it since it equity and social justice in the adjudication process.
was well aware that any substantive determination of That would not have been tantamount to usurping
the petition by the High Court would have been an the legislative role of parliament, but rather might
exercise in futility. The apex court clearly suggested be approached on a case by case basis to ensure that
that the applicant’s right to be heard and access to Kenyan law was never silent but always speaking.
justice, including exhausting her right of appeal, 10. The impugned Supreme Court decision fell short
were unimportant. It alluded to a recommendation on the said judicial organ’s constitutional duty and
for a court to disregard its duty to administer justice curtailed the applicant’s right to access to justice. It
purely because in its estimation, to do so would have contravened the rule of law principle enshrined in
been an exercise in futility. articles 6(d) and 7(2) of the Treaty.
8. The matter before the Supreme Court was no longer Application allowed.
an electoral matter but a search for a constitutional Orders
solution to a legal problem. The Supreme Court
would be the judicial organ mandated to provide i. An award of USD $ 25,000 to the applicant.
a fair solution to the identified procedural debacle, ii. Simple interest on damages awarded at 6% per annum
where no time was explicitly allotted for the hearing from the date of the instant judgment until full payment.
of matters on remission. The Kenyan Constitution, iii. Costs awarded to the applicant.
69
LAW REFORM ISSUES

Compiled by Faith Wanjiku
LAW REFORM ISSUE BRIEF FACTS & METADATA OF HOLDINGS PERTINENT TO LAW
JUDGMENT REFORM
A Royal Media Services Ltd v Valentine 1. The multiple-publication rule, as its name
The multiple publication Mugure Maina and another suggested, allowed for a new and separate cause
rule in defamation is not Civil Appeal No.19 of 2018 of action each time a defamatory statement was
applicable in Kenya as a bar High Court at Nyeri published. In the off-line world, that meant
to the limitation period set in October 18, 2019 that each copy of a book or a newspaper was
section 4(2) of the Limitation Ngaah J, J a separate, actionable case of defamation with
its own limitation period. It did not necessarily
of Actions Act and thus policy Brief facts follow that the same litigant could take multiple
makers through the legislative The instant matter was an appeal from actions arising from the same defamatory
arm of the Government need the ruling and order in Nyeri Chief statement; it only meant that in the case where
to take appropriate steps to Magistrates Court that held that every the rule applied, any limitation period would
mitigate the deficiencies. visit to the site where defamatory words run from the date of the last publication as
was published constituted a fresh cause opposed to the first.
of action notwithstanding the date the
2. The 1st respondent had not demonstrated that
words were first published. That as long
the multiple publication rule was applicable
as the offensive words remained on the
to Kenya. The English court decisions cited
appellant’s website and were accessible
by the 1st respondent were of persuasive
to all and sundry, there was a continued
authority and not binding on Kenyan courts;
publication constituting a cause of
but more importantly, the English themselves
action.
had abandoned the multiple publication rule
The appellant’s grounds for appeal
upon which those decisions were based. It
were that: the trial court erred in not
would be foolhardy for Kenya to follow those
holding that the suit before it concerned
decisions when their very basis had been found
an action for libel which could not be
wanting to such an extent that a legislative
brought after the end of 12 months
intervention in the form of section 8 of the
from such date which the cause of action
English Defamation Act 2013 had been found
accrued as provided for by section 4(2)
necessary.
of the Limitation of Actions Act; that
each individual publication gave rise to 3. There were technological achievements in
a separate cause of action subject to its media communication the prominent of which
own limitation period. was, invariably, the internet, and which by their
very nature had some bearing on such torts as
slander and libel in a way that could not have
been foreseen. No doubt it was necessary that
the law should be equally dynamic and keep
pace with those advancements as need arose. It
was the policy makers that needed to take the
initiative and act accordingly; the most courts
could do was to point out the deficiencies in
the law hoping that the legislative arm of the
Government would rise to occasion and take
appropriate steps to mitigate those deficiencies.
In the absence of legislative acts, courts could
do nothing more than apply the law as it was.
4. Section 4(2) was couched in such terms that
the trial court was left with discretion to extend
the time within which a claimant could file suit
for damages in defamation claims. It could be
that the claimant was under disability of some
sort and therefore he could not, for that reason,
file the claim within the statutory period. It
could also be equitable that the action should
be allowed to proceed if the statutory time limit
prejudiced the plaintiff. Either way, the court
had also to be cautious that the defendant was
not prejudiced by its order.
70
B Charles Henry Nyaoke v Cabinet 1. Other than the statutory requirements under
Initiation of murder trials at Secretary, Ministry of Interior and Co- the CPC, majority having been repealed, it
the High Court instead of at ordination of National Government & was apparent that the trial of murder charges
4 others [2020] eKLR before the High Court was a historical
the Magistrates’ Courts limits Petition No. 7 of 2018
an accused person’s right to fair accident. The necessity of trying murder
High Court at Kisumu
trial J C Lesiit, L K Kimaru & K Kimondo, charges before the High Court was imposed
JJ by colonial expediency which spilled over to
November 27, 2020 post independence Kenya. Despite trials by
Brief facts jury being abolished in 1963, trial of those
The petitioner and two other persons charged with murder continued to be at the
were charged at Kisumu High Court for High Court with the aid of assessors. The
murder contrary to section 203 as read fact that those charged with murder were still
with section 204 of the Penal Code. being tried in the High Court was a historical
The petitioner challenged various laws, accident without any legal justification or
including sections 3 and 5 and the first logic.
schedule of the Criminal Procedure
Code and sections 211 and 212 of the 2. There were 125 Magistrates’ Courts stations
Penal Code (impugned provisions), to which were decentralized and devolved
the extent that they provided for trial throughout the counties. There were 447
of offences set out in the Penal Code magistrates compared to only 82 judges of
to commence before the High Court. the High Court. Initiating murder trials at
The petitioner contended that persons
charged with the offence of murder the Magistrates’ Courts would significantly
suffered discrimination and unequal lower the costs of the trial, reduce the distance
treatment before the law, which violated to court and expedite delivery of justice. That
their right to equal protection and equal would result in better realization of access
benefit of the law, as well as freedom to justice which was a fundamental right
from discrimination. That origination of guaranteed by articles 48, 50 and 159(2)(a)
murder trial at the High Court denied a and (b) of the Constitution.
convicted person one level of appeal. That
the delay occasioned by the time taken to 3. Origination of murder trial at the High
try cases before the High Court compared Court discriminated or deprived accused
to trials held before Magistrates’ Courts persons their rights to equal protection
amounted to denial of access to justice. of the law as enshrined under article 27 of
The 1st, 2nd and 5th respondents the Constitution. It also deprived persons
opposed the petition arguing that the convicted in the Magistrates’ Court the right
commencement of murder trials before to approach the High Court for a re-trial
the High Court was not discriminatory.
They urged that the impugned provisions under article 50 (6) of the Constitution.
which gave a differentiation in the 4. The mere origination of the murder trial at
courts handling criminal cases, did not the High Court, however, was not unlawful.
offend the provisions of article 27 of the Under article 165 of the Constitution, the
Constitution for providing for murder
and treason to be tried before the High High Court had original and appellate
Court and that only unfair discrimination jurisdiction in both civil and criminal matters,
was disallowed by the law. They submitted even though appeals could be limited by law.
that the petition was res judicata and was Initiating a murder trial in the High Court
subject to judgment in rem. That the compromised an essential element of the
issues raised were determined and finally right to a fair trial. Thus, under the hierarchy
settled in Peter Kariuki Muibau & 11 of courts provided by articles 162 and 169
others vs the Attorney General & another, of the Constitution, a murder convict was
[2018] eKLR (Muibau case) where the denied a vital step in the appellate chain.
court held that the organization of
courts to hear different types of cases was
necessary to ensure specialization of court
personnel at each level, and to ensure
each court understood the specific needs
of the parties coming before it.
The 3rd respondent on its part opposed
the petition arguing that it purported to
question the validity of the Constitution
on unlimited jurisdiction of the High
Court in criminal matters, and more
particularly murder cases, contrary
to the provision of article 2 (3) of the
Constitution which prohibited the
challenging of the validity and or legality
of the Constitution.
71
C Law Society of Kenya v Anne Kananu 1. The effect of not holding the by-election within
There is a lacuna in the law Mwenda & 5 others; I.E.B.C. the 60 days’ window in the unique circumstances
as to what happens to a legal (Interested Party) [2021] eKLR of the instant matter meant that the tenure of the
process for the nomination Speaker acting as a Governor under article 182(5)
Petition No. E019 of of the Constitution was constitutionally hinged
of a Deputy Governor which 2021(Consolidated with Petition to only 60 days. In other words, the Speaker
is in situ by the time the Nos. E433 of 2020, E005 of 2021, could not continue acting as the Governor past
Governor leaves office. the 60th day. In the event the Speaker left office
E009 of 2021, E011 of 2021, E012
of 2021, E13 of 2021, E015 of 2021 after the 60 days and without an acting governor,
a governor or a deputy governor in office, then
and E021 of 2021) what would follow would be a constitutional
High Court at Nairobi crisis. That was because after 60 days from the
AC Mrima, J day the Speaker took over as the acting Governor
February 9, 2021 and there being no by-election held (since the
Brief facts parties were not for the by-election), Nairobi
County would not have had any person acting
The instant petition was filed as a governor, it would have no substantive
challenging, inter alia, the 1st governor and no deputy governor, as well.
respondent’s ascension to the office of 2. In the absence of an acting governor, a governor
the Governor of Nairobi City County. or a deputy governor in office, many questions
The Nairobi City County Governor calling for answers arose. They included;
a. how the County Government of Nairobi and by
was impeached by the Senate and by extension the County Assembly would run;
that time the Governor did not have a b. how the thousands of workers, who had families
deputy governor. Therefore, the Speaker and some who would be servicing loans, would
of the Nairobi City County Assembly be paid;
assumed the position of Acting c. how the health department would, in particular,
endeavour to fight the dreaded corona virus in
Governor by operation of law. Prior to the county; and
the impeachment, the then Governor d. the length of time Nairobi County would be held
had nominated the 1st respondent in such a limbo;
for the position of deputy governor e. how such a constitutional crisis would be undone
and the process towards the vetting given that constitutional timelines could not be
extended among other questions.
of the nominee had been initiated. 3. A court had to, as a primary duty and in public
The County Assembly then took steps interest, uphold the Constitution. A court
towards the vetting of the nominee. It should not in any manner whatsoever create a
was at that point that the consolidated constitutional crisis. It remained the cardinal
petitions challenging the nomination duty of a court to foresee such a crisis and take
steps to avoid it. As the parties were not for the
of the 1st respondent as the Deputy holding of the by-election and given that the 60
Governor and her ascension into the days’ period was running out, the court had only
office of Governor were filed. one option in upholding public interest and to
Upon hearing the two applications in avoid a constitutional crisis: to allow the vetting
the consolidated petitions the court process to proceed, at least to see whether the
County could have a deputy governor, if the
disallowed them. As a result, the 1st nominee was approved. The court, therefore, in
respondent was vetted, approved and allowing the vetting process to continue acted in
eventually sworn in as the Deputy the best interest of the Nairobi City County and
Governor. The instant petition was of Kenya at large and in public interest.
filed challenging, inter alia, the 1st 4. Article 182 of the Constitution dealt with
vacancy in the office of county governor and
respondent’s ascension to the office of mainly focused on the absence of a governor
the Governor of Nairobi City County. and the deputy governor and that a by-election
The petitioner sought among others followed thereafter. The law was silent on what
the suspension of the decision of happened to a legal process for the nomination
the County Assembly approving the of a deputy governor which was in situ by the
time the Governor left office. The Constitution
nomination of the 1st respondent as the did not contemplate such a situation and as a
deputy governor. result there was no provision on the way forward.
That was a constitutional lacuna.
5. Whereas the law was silent on what happened to
a legal process for the nomination of a Deputy
Governor which was in situ by the time the
Governor left office, and acting in public interest,
the court asserted its inherent jurisdiction in
finding a way forward. The only way to deal with
the lacuna and in public interest was to allow
the nomination process which had been legally
initiated to proceed.
72
D John Mbaabu & another v Kenya 1. Under sections 44 of the Tax Procedure Act,
There is a lacuna in law in Revenue Authority [2020] eKLR 2015, the Commissioner General of the
Section 44 of Tax Procedures Petition No. 6 of 2019 Kenya Revenue Authority (Commissioner)
High Court at Chuka was allowed and mandated by law to seize
Act and Section 15 of Excise RK Limo, J
Duty Act 2015 which provides any goods for which excise duty had not
June 17, 2020
that activities requiring a licence been paid. The respondent had an obligation
Brief facts to the seize of excisable goods (liquor)
do not apply to transporters.
transported by the petitioners. The owner of
The petitioners claimed that their the goods had not gone to the respondent’s
Regulations 32 and 33 of vehicles were seized by the respondent premise to claim the goods or dispute the
Excisable Goods Management in June 2019 and that despite repeated
demands for the release of the detained tax obligations to the tax collector. Section
System Regulations, 2017, 44 however applied only to excisable goods
motor vehicles, the respondent had
which allowed the seizure of a ignored, refused and/or neglected to not the vessels ferrying the goods.
person’s vehicle without being release the motor vehicles and that as a 2. Section 2 of Excise Duty Act, 2015, gave
given a chance to be heard are result of the seizures, they had suffered what constituted excisable goods and the list
unconstitutional for infringing and continued to suffer loss of use of
the vehicles. The petitioners claimed provided under the First Schedule of that Act
on the right to be heard. included alcoholic drinks. From regulation
that at the time of the seizure of the
motor vehicles, the offices/agents of the 32 of Excise Duty (Excisable Goods
respondent failed to serve them with Management System) Regulations 2017, the
any notice and that no reason had been respondent had some legal backing to justify
given by the respondent for the seizures the seizures of the petitioner’s motor vehicle.
and detention of the motor vehicles.
3. The petitioners’ motor vehicles were seized
The petitioners submitted that the seizure and they were not given a chance to be
and detention of their motor vehicles heard courtesy of regulations 32 and 33
was an infringement and violation of of Excisable Goods Management System
their right to acquire and own property. Regulations, 2017, that did not provide for
They further contended that their rights a chance to be heard. Any provisions of law
for a fair trial were infringed stating that
they had a right to be informed of any that allowed or gave power to an entity, a
charge against them with sufficient detail State officer or any public officer to take
to answer. The petitioners prayed for adverse action or steps without according
among others orders that; a declaration the concerned/affected person a chance/
be issued that their constitutional rights opportunity to be heard was draconian and
of having their property not arbitrary unconstitutional. Such a provision flew in
seized had been violated and infringed the face of the tenets of natural justice which
by the respondent; and a declaration were entrenched in the Constitution.
that the petitioners’ constitutional
right to acquire and own property had 4. A right to a fair trial under article 25 of
been infringed and or violated by the the Constitution could not be limited by
respondents. the impugned regulations 32 and 33 of
Excisable Goods Management System
Regulations and to the extent that the
provisions breached the right to be heard, it
was inconsistent with articles 25, 47 and 50
of the Constitution and to that extent the
provisions were a nullity and void.
5. The dispute raised had nothing to do
with tax obligation by the Respondents in
respect to transportation of goods. Section
44 of Tax Procedures Act did not apply
to transporters. Furthermore, section 15
of Excise Duty Act, 2015, which dealt
with activities requiring a licence did not
include transportation of excisable goods.
That lacuna in law needed to be addressed
through legislative interventions before the
respondent contemplated future actions.
73
E Tatu Kamau v Attorney General 1. FGM, female circumcision and female cut referred to all
The Attorney General & 2 others; Equality Now & procedures involving partial or total removal of the external
should forward proposals 9 others (Interested Parties); female genitalia or other injury to the female genital organs
Katiba Institute & another or any harmful procedure to the female genitalia for non-
to the National Assembly (Amicus Curiae) [2021] eKLR
to consider amendments medical reasons. The Act defined FGM to comprise all
Constitutional Petition No. 244 procedures involving partial or total removal of the female
to section 19 of the of 2019
High Court at Nairobi genitalia or other injury to the female genital organs, or
Prohibition of Female
LA Achode, K Kimondo & MW any harmful procedure to the female genitalia, for non-
Genital Mutilation Act (No. medical reasons.
Muigai JJ
32 of 2011) with a view March 17, 2021
to prohibiting all harmful 2. The WHO included FGM Type IV which was unclassified
practices of FGM or any other procedure involving, genital pricking,
Brief facts piercing (and to adorn with jewelry or other decorations),
The petitioner challenged the
constitutionality of the Prohibition scraping, cauterizing, incising and stretching of the clitoris
of Female Genital Mutilation Act or labia (with tongs or scissors including razor blades).
(No. 32 of 2011) and the Anti- 3. The Penal Code defined harm as bodily hurt, disease
Female Genital Mutilation Board or disorder whether permanent or temporary, while
formed thereunder (the impugned
Act and the Board respectively). The grievous harm meant any harm which amounted to a
petitioner pleaded that sections 2, maim or dangerous harm, or seriously or permanently
5, 19, 20 and 21 of the impugned injured health, or which was likely so to injure health, or
Act contravened articles 19, 27, which extended to permanent disfigurement, or to any
32 and 44 of the Constitution of permanent or serious injury to any external or internal
Kenya, 2010, (Constitution) by organ, membrane or sense. It also defined dangerous harm
limiting women’s choice and right as harm endangering life.
to uphold and respect their culture;
ethnic identity; religion; beliefs; 4. FGM/C was harmful to girls and women due to the removal
and, by discriminating between of healthy genital parts. The FGM/C caused immediate,
men and women. short term and long term physical and psychological
The petitioner contended that adverse effects. The purposes of FGM/C were community
section 19(1) of the impugned culture-centered and not individual benefit centered. The
Act expressly forbade a qualified culture custodians in communities were clan/elders who
medical practitioner from determined when, where, how and for what FGM/C was
performing female circumcision,
thereby denying adult women conducted within the specific community.
access to the highest attainable 5. The preamble to the Constitution recognized the culture
standard of health, including the and customs of the Kenyan people. Articles 21 and 27(6)
right to healthcare. The petition of the Constitution directed the State to take legislative
sought among others orders that a measures to redress the disadvantages suffered by
declaration be issued that sections 5,
19, 20, 21 and 24 of the impugned individuals or groups due to past discrimination. Articles
Act were unconstitutional and thus 27, 28, 43, 53 and 55 of the Constitution protected all
invalid. persons from all forms of discrimination and shielded the
youth and children from harmful cultural practices. They
also guaranteed the right to dignity and the right to the
highest attainable standard of health and reproductive
health.
6. Section 2 of the impugned Act defined FGM/C Type I, II
and III but excluded Type IV which the WHO included
as unclassified. The latter included any other procedure
involving, genital pricking, piercing with tongs or scissors
including razor blades, incising and stretching of the
clitoris/labia.
7. Section 19 of the impugned Act criminalized FGM/C
except where it was a surgical operation for a person’s
physical and mental health or at any stage of labour or
birth. It further provided that culture, religion, custom or
practice or consent would not be a defence.
8. From the stand point of criminal law there was a lacuna
created that hampered the effective enforcement of the
impugned Act. The criminalization of the three types of
FGM/C and not Type IV, which was unclassified, made
it difficult to effectively enforce the Act. There seemed
to be no objective or professional process to distinguish
between the various types of FGM/C during investigation
or prosecution.
74
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Issue 52

January - March 2021

Whether lands claimed to be ancestral lands dispossessed during

Imposition of VAT on exported services amounts to double imposition of VAT

Employment and Labour Relations Court awards Kshs 1 (Kshs one) to a

LAWS OF KENYA VOLUMES

These volumes have been

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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

VALEDICTORY MESSAGE BY HON. JUSTICE DAVID K. MARAGA, EGH CHIEF

What they said

The Constitution was alive to the fact that there were

Brief facts In response to the High Court judgment, the 1st

KLR 2013 Vol 1, 2 and 3

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the right to equality and freedom from discrimination, Held

The Parliamentary Service Commission’s unilateral decision to determine and

Further, SRC on July 7, 2017 abolished the Kshs. 5 Held:

the Constitution. payment of an accommodation or house allowance

Imposition of VAT on exported services amounts to double imposition of VAT and is

The recruitment process of the Secretary to the Independent Electoral and

Reported by Kakai Toili Constitutional Law – fundamental rights and freedoms

consultant to recruit its commission secretary and process.

Appointments of the Chairperson and members to the Business Premises Rent

Constitutional Law - constitutionality of statutes - Industrialisation, Trade and Enterprise Development

Rules and guidelines governing sustainable harvesting of sand

Feedback For Caseback Service

As always, I reiterate that it is vital to get

Thanks team Kenya Law for your continued

Hon. Martha Akoth

Hon. Bernard Kasavuli

ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2020

ACT SECTIONAL PROPERTIES ACT, 2020

ACT TAX LAWS (AMENDMENT)(NO. 2) ACT, 2020

ACT TEA ACT, 2020

ACT ANTI-DOPING (AMENDMENT) ACT, 2020

B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY CHILDREN (AMENDMENT) BILL, 2020

NATIONAL ASSEMBLY CRIMINAL PROCEDURE CODE (AMENDMENT) BILL, 2020

NATIONAL ASSEMBLY NATIONAL CONSTRUCTION AUTHORITY (AMENDMENT) BILL, 2020

NATIONAL ASSEMBLY ANTI-DOPING (AMENDMENT) BILL, 2020

NATIONAL ASSEMBLY BUSINESS LAWS (AMENDMENT) (NO. 2) BILL, 2020

NATIONAL ASSEMBLY LANDLORD AND TENANT BILL, 2021

SENATE BILL WILDLIFE CONSERVATION AND MANAGEMENT (AMENDMENT) BILL, 2020

SENATE BILL COUNTY LICENSING (UNIFORM PROCEDURES) BILL, 2020

SENATE BILL STARTUP BILL, 2021

DATE OF LEGISLATIVE CITATION PREFACE

Held vehicle remained with the financier.

Relevance to Kenya’s legal system

Inclusion of Legal Services as Essential Services during the Covid-19 Pandemic;

LAW REFORM ISSUES

The National Council for Law Reporting (Kenya Law) is

In pursuit of this commitment, Kenya Law shall comply

Kenya Law’s top Management shall on an annual basis review

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