Bench Bulletin Issue 20

The Bench Bulletin
A Publication of The National Council for Law Reporting

A service state corporation in the Judiciary.
The Bench Bulletin is the denitive intelligence brieng for Kenyas judicial ofcers, the law practitioner, managers and the business people. It is a quarterly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices.
THE REPUBLIC OF KENYA
THE OFFICICIAL LAW REPORTS OF
Issue 20: July - December 2012
Happy Holidays
BENCH BENC BE B ENC CH H MARKING MARKIN M NG wi with w th one on ne e of of the th the BEST; NATIONAL AT ONAL A NAL N AL COUNCIL CO C OU OUN OUNC OUNCIL O UN NC CI CIL C IL I L FOR FO LAW LA L REPORTING REPO REPO ORTING ORTI RTIN NG G tours tour tou urs rs LEXIS LE LEX LEXIS NEXIS EXIS IS S PUBL PUBLISHERS, PUBLISHE BLISHERS BLISHERS, LISHERS, SOUTH AFRICA AFRIC AFRI
pg9 pg74
Download free QR Readers from the web and scan this QR(Quick Response) code with your smart phone to view our products and free accessibility to legal information.
The Bench Bulletin

A Publication of The National Council for Law Reporting
The Bench Bulletin is the denitive intelligence brieng for Kenyas judicial ofcers, the law practitioner, managers and the business people. It is a quarterly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices.
Transforming Legal Information into Public Knowledge
Issue 19: April - June 2012
Address by the Chief Justice at the Launch of the Judiciary Transformation Framework on May 31, 2012 at KICC Grounds
Pg 77
Pg 11
Pg 82
............and much more........
Thanks to all Our Partners
THE KENYA LAW REPORTS BENCH BULLETIN
The Hon. Dr. W.M. Mutunga, D.Jur., S.C., E.G.H. Chief Justice of the Republic of Kenya, President of the Supreme Court & Chairman, National Council for Law Reporting.
THE NATIONAL COUNCIL FOR LAW REPORTING THE BOARD OF THE COUNCIL The Hon. Justice (Dr.) W.M. Mutunga, D.Jur., S.C., E.G.H Chief Justice, President of the Supreme Court & Chairman, National Council for Law Reporting.
The Hon Mr Justice P. K. Tunoi
Judge of the Supreme Court

The Hon Lady Justice J. W. Lesiit
Ms Florence Muoti Mwangangi
Law Society of Kenya

Mrs. Flora Mutua, Snr. Management Analyst Directorate of Personnel Management, Ministry of State for Public Service Mr. Christopher Ombega,
Judge of the High Court

Mrs. Gladys Boss Shollei
Chief Registrar, Judiciary of Kenya

Prof. J. Otieno Odek
Dean, School of Law, University of Nairobi

Mr. Antony Otengo Ombwayo
Senior Assistant Inspector General Inspectorate of State Corporations

Mr. Jeremiah M. Nyegenye ,
Attorney-Generals Representative
Mr. P. Sang
Goverment Printer's Representative

Mr. Evans Monari
Head, Office of Legal Counsel The Office of the Clerk of the Kenya National Assembly
Mr. M.M. Murungi
Law Society of Kenya
Editor/C.E.O
(As from January 1, 2012) 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. Issue 20 | July - December 2012 1
Issue15: April-June 2011
Regulars

Bench Bulletin July - December 2012 Issue 20
1 NCLR Board members 2 Editors Note 4 Chief Justice Speech 7 Citizen Jane 8 What they said
Features
9 Keynote Speech by the Chief Justice, Hon.
Dr. Willy Mutunga, at the Commencement of the Judicial Marches Week Countrywide On August 21, 2012. Challenge of University, State, Society Relations Bench
12 Kenyas Constitutional Transition: The
16 The Interface between Academia and the
C o n t e n t s
18 The High Court as the Model Superior Court:

Design and Challenges
21 Interim Report of the Judiciary Working

Committee on Election Preparations
22 Pre-Election Dispute Management:
74
between Judicial and Administrative Dispute Management Mechanisms and the Role of the Social Partners
30 The Re-Constituted Industrial Court of Kenya 37 Guidelines for Judgement Drafting 42 The Judges Ultimate task: Formulating The
Judgment
52 Case back service 53 Feed back klr case updates 56 Feed back klr caseback service updates 74 NCLR takes its Corporate Social
Responsibility a notch higher.
Departmental Reports
45 Strategic Planning Quality 58 Laws of Kenya Depatment 71 Marketing Department
Assurance and Performance Department
58
Cases
82
Feature Case Editor Michael Murungi Editorial Assistant Cornelius W. Lupao Contributors Michael Murungi |Esther Nyaiyaki |Anne Asugha | Monica Achode | Cornelius W. Lupao Andrew Halonyere | Njeri Githanga | Emma Kinya| Wambui Kamau| Nelson K. Tunoi | Wanjala Sikuta | Phoebe Ayaya |Yvonne Kirina |Lydia Midecha | Sylvie Nyamunga Naomi Mutunga | Dorcas Kaveke | Design and Layout Catherine Moni | John Muriuki | Geoffrey Andare Proofreaders Phoebe Ayaya | Innocent Ngulu
84 Supreme court 97 Court of Appeal 104 High Court

appellate division at Arusha
192 In the East African Court of Justice 195 In the Constitutional Court of South
Africa
196
The Supreme Court of the United Kingdom
Issue 20 | July - December 2012
Editors Note
Our Esteemed Readers

2012 has drawn to a close and 2013 is upon us. It has been a busy and eventful year as a far as the work of the Judiciary and the National Council for Law Reporting is concerned. Most importantly, both because of the fact that Kenya is operating under a new constitutional order and that the number of judges in the superior courts, particularly the Court of Appeal and the High Court, has been increased, there has been a marked increase in the number of judicial opinions and necessarily, in developments in jurisprudence. Perhaps nothing would attest to this more than the size of this edition.
ungi Michael M. Mur Editor/C.E.O
We have had to innovate and re-engineer our workflows and processes to accommodate the challenges that come with this new order. A key product of this re-engineering is the KLR Case Updates summaries of the latest precedent-setting judicial opinions with links to the full text of the decisions, delivered to you at least once a week as a free email service. The summaries have been re-designed to focus more on the issues of jurisprudence and less on the facts of the case and the service is delivered via email and on our website to cut down on the lead time. Effectively, since we have now retired the KLR Monthly and substituted it with this new service, we have reduced the cycle of law reporting from one month to one week. With our new CaseBack service, we are now providing judicial officers whose decisions have been considered on appeal, review or revision by a higher court with the text of the judicial opinion of the higher court. This service provides a vital feedback loop that has been lacking in the development of jurisprudence and it has been received with complements by judicial officers. During the year, we have also broken new ground in our corporate social responsibility (creating shared value), media and publicity, put our shoulders to the wheel in working on new and improved databases for the Laws of Kenya and Case Search and also undertaken various initiatives across all our departments that serve to consolidate our individual and institutional strengths in effectively fulfilling our mandate. Standby for the news of the launch of the services that will be the output of these initiatives in the early part of 2013. I convey to you the best wishes of the NCLR Family for the holiday season and the new year.
Speech by the The Hon. Dr. Willy Mutunga, D.Jur.,SC, EGH, Chief Justice and President of the Supreme Court of Kenya on the occasion of the Inaugural State of the Judiciary and the Administration of Justice Report, on October 19, 2012 at the Supreme Court Grounds, Nairobi
of the Republic of Kenya. In it, I gave a transparent account of the reality we found, highlighting the successes and failures of diverse reform initiatives carried out over the previous two decades. The Progress Report further provided a foretaste of the strategies the Judiciary would adopt in order to deliver on its constitutional mandate. These directional intentions were subsequently coded in the Judiciary Transformation Framework (2012-2016), which is our overarching blueprint for reclaiming, reforming and repositioning the Judiciary as an effective and independent arm of government. This is the Inaugural Report of the State of the Judiciary and the provisions of Section 5 (2) (b) of the Judicial Service Act, which states, inter alia, that [T]he Chief Justice shall give an annual report to the nation on the state of the Judiciary and the administration of justice; and cause the report to be published in the Gazette, and a copy thereof sent, under the hand of the Chief Justice, to each of the two Clerks of the two Houses of Parliament for it to be placed before the respective Houses for debate and adoption. This Report draws attention to the initiatives undertaken since made towards becoming an institution internally capable of to engage other agencies in the administration of justice. It further chronicles the journey of its organizational and managerial reorientation, and features the movement towards public engagement and service delivery. It must be pointed out that, due to the poor data collection and management culture in the Judiciary, it has taken considerable effort to prepare this Report. We have, nevertheless, done our best to provide data that is indicative of the state of our
Hon. Dr. Willy Mutunga, D. Jur, SC, EGH, Chief Justice and President of the Supreme Court of Kenya Republic of Kenya
xactly one year ago, I presented to the nation the Progress
Report on the First 120 Days of my tenure as Chief Justice
institution. And whereas the reporting period is for July 2011 June that have taken place between June and October, 2012, as we project into the future. The Report is divided into eight chapters. Chapter One is the Introduction and Overview. Chapter Two focuses on the Court Structure and Case Load while Chapter Three examines Access to Justice. In Chapter Four, the Report maps out the Physical Five surveys the Governance and Management dimensions of the Judiciary while Chapter Six presents its Finance and Resource situation. Chapter Seven exhibits the functioning of the assembly line of justice through the National Council on the Administration of Justice (NCAJ) while Chapter Eight gives an account of the work and performance of the National Council for Law Reporting (NCLR). The administration of justice will only succeed if the principles of coordination, cooperation, and complementarity guide interagency relations. The entire assembly line of justice must operate at the NCAJ must be strengthened and institutionalized. Overall, I am happy to state, as will be evident in the pages of this Report, that the Judiciary has done extremely well over the past year. However, the ruinous nature in which we found it leaves no doubt in my mind that a lot more still needs to be done in order to meet the aspirations of the people of Kenya, in whose service and professional investment still needs to be made to enable the of the rich promise of democracy. The Judiciary takes this opportunity to express its appreciation to extended to the institution and its leadership. We would also like to acknowledge the two other arms of Government -- the Legislature and the Executive -- for their strong support in the past one year. In the coming year, we look forward to furthering our productive collaboration in the execution of our constitutional mandates for
immense gratitude to the Judicial Service Commission (JSC) for its diligence and extremely hard work in the past year, and to the staff of the Judiciary for its dedication in achieving these results, the uncertainties and challenges of transition notwithstanding. The Judiciary remains committed to delivering on its constitutional mission in the interest and service of the people of Kenya. The transformation of the Judiciary has only just begun -- and it is an enduring, long-term undertaking. I would like to invite the people of Kenya, the Legislature, the Executive and other stakeholders initial iin nitial ia r ns so on n their e investment. v n
Thank Th ha ank k you. yo Hon. Dr. Willy Mutunga, D.Jur, SC, EGH Chief Justice and President of the Supreme Court of Kenya Republic of Kenya October 19, 2012
Editors Note
CITYZEN Nenkai
ungi Michael M. Mur Editor/C.E.O
C M, Murungi. illustration: E. Obare
What they saidWHAT THEY SAID
'' With the support and advice of its leadership and membership, the National Council for Law Reporting continues to adopt strategies to re-engineer its editorial approach to ensure that it extracts the essence of juristic thought and to lay it out as one of the beacons for the legal path for conflict resolution in the advancement of civilized society. NCLR keeps abreast of technological advances and regularly generates new and innovative services such as the KLR Case Updates, which provide a weekly synopsis of Kenyan jurisprudence, CaseBack, a service that informs a judicial officer once his or her decision has been considered on appeal, review or otherwise by another court; and Wakilishare, an open online forum for public discourse with and feedback from the Judiciary community. In securing Kenyas judicial heritage, the Council has engaged a consultant to support the reclaiming of lost jurisprudence past judicial opinions of great value in the development and heritage of law but which have been omitted from previous reports.'' The Hon. Justice (Dr.) W.M Mutunga, Chief Justice, President of the Supreme Court and Chairman of the National Council for Law Reporting, in the State of the Judiciary Report, 2011-2012
'' If the court were to allow the applicants quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment. This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-colored religious attires of all shapes and sizes which the school administrators will not be in a position to resist if the Muslim students are allowed to wear a hijab. The result of these turn of events would be that students will be turning up in school dressed in a mosaic of colors and consequently, the concept of equality and harmonization brought about by the school uniform would come to an abrupt end..'' By C. W. Githua J in Republic v Head Teacher, Kenya High School & another exparte SMY (a minor suing through her mother and next friend AB) [2012]eKLR, September 18, 2012, while dismissing an application by a student of Kenya High School seeking to be allowed to wear hijab while in school.
'' This judgment also failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review.''..by Koome J A, in Attorney General v Mohamud Mohammed Hashi & 8 others [2012]eKLR ,October 2012, while reversing the High Court decision that had ruled that Kenyan Courts did not have jurisdiction to try offences of piracy committed in the High Seas.
The Kenya Law Reports Bench Bulletin
KEYNOTE SPEECH BY THE CHIEF JUSTICE, HON. DR. WILLY MUTUNGA, AT THE COMMENCEMENT OF THE JUDICIAL MARCHES WEEK COUNTRYWIDE ON AUGUST 21, 2012
ellow citizens, colleagues, people. friends, ladies and gentlemen: Judiciary staff are marching, Today is a day of great joy for Ke- proud of the fact that they are nya and the Judiciary. It is a mo- in the service of the public, and ment for us who are privileged appreciative of the fact that it to serve in the Judiciary to open is this public that pays our salaup to the public; explain to them ries, pays our allowances, and how we work; and get feedback buys our cars. And they do this from the people on how to im- despite the fact that 50 per cent prove our services. of the Kenyan people live below the poverty line. We are bonded The Constitution of Kenya has to serve. Kenyans foot the bill for created a new country. It bids justice and we have a duty to exthe Judiciary, and the Kenyan plain ourselves to them. society as a whole, to transform. We have embarked on an elabo- The conversation about acrate programme to transform the countability must begin in earJudiciary by making it people- nest. A conversation between centred and service-oriented. one arm of government and the Indeed, this is the first pillar of the citizenry -- a conversation about Judiciary Transformation Frame- our processes and procedures; work, launched a little over two a conversation about the role of months ago. the public in upholding the rule of law; a conversation about a The new Judiciary is becoming Judiciary so confident about itmore open, accessible, modern, self and its decisions that it does efficient and effective. not consider coming to the people as a denigration of its authorWe are launching the Judicial ity but rather as its affirmation. Marches Week, an event to be held once every year around the Marching is an unprecedented country, as part of our transfor- action in the customs and tradimation programme. Through the tions of Kenyas public service. Judicial Marches Week, we seek But it symbolises the kind of radinot only to make the Judiciary cal change required of us to more accessible to the public, make the institution more acbut also to remind ourselves of cessible and responsive to the the constitutional edict that ju- public. For a long time, holding dicial authority comes from the a public march was associated
with protest -- and even violence -- because the rights to assembly and demonstration were viewed with such official suspicion as to create doubt about their very legitimacy. The Constitution requires a recreation of public institutions, so that they become responsive to public need, and, continuously accountable in the execution of their mandate. This is part of the mental shift that public institutions and servants need to make as part of Kenyas new constitutional dispensation. Custom and tradition in Kenya, and elsewhere, have especially muzzled judges and magistrates, so that courts of law only speak through their judgments. Yet, numerous times, the ineloquence of the courts has created an artificial silence even when it was self-evident that justice was being undermined and truth was being muted. Rather than bring honour and cultivate respect as intended, this silence and the appearance of aloofness have alienated many people from our courts and other institutions. Although one can understand the reticence of judges to explain themselves in forums outside the courtroom, account-
ability through judgments alone is insufficient in an environment where, constitutionally, judicial authority has been determined to derive from the people. Judges in well developed democracies now have to routinely explain their judgments in forums outside the courtrooms -- such as public lectures in universities, addresses to professional organisations and even in the media. It would appear that a modern judge is one who is confident to make pronouncements of law in court, and never shy to explain them in the court of public opinion. Ladies and gentlemen, we live in an age where power must be accountable including judicial power. So we, as the Judiciary, are marching as part of this accountability. And here is why. We, as State officers, are assigned the authority we exercise as a public trust. This authority must only be exercised in a manner that is consistent with the purposes and objects of the Constitution. The actions of all State officers must demonstrate respect for the people. One cannot serve the public by offending it. Public service is not an entitlement.
lems as part of our transformation, to make the Judiciary a forum of choice for dispute resolution. However, we are also aware that the Constitution requires us to promote alternative dispute resolution mechanisms.
their work. The result has sometimes been the public placing blame on the Judiciary for shortcomings that are not of its own making. For many Kenyans, being arrested and being held in police custody, for instance, is seen in the same light as being sent to jail by a court. We have a lot of explaining to do. So, we would like to start.
Our actions must promote public as we do this, we wish to confidence in the integrity of the make them a publicly offices we hold. Our decisions accessible space where must be objective and impartial meaning that they must be free people can come to seek from the influences of nepotism, justice, as well as the tribalism, corruption and other affirmation of their rights. narrow interests. They must bring honour to the nation, and dignity to the office. Innumerable times, the Judiciary defends and protects the right to Our courts have employed pro- be heard, but rarely is this right cesses that appear remote and granted to it. The conversation mystical, which have not made we are beginning should provide them approachable or user- an avenue for judicial officers friendly. Many Kenyans also be- to tell the public the difficulties lieve that the Judiciary is corrupt. they face as they do their jobs. This has resulted in bewilderment Judges, magistrates and Kadhis and alienation, and in some cas- do not address public barazas, es, blatant miscarriage of justice. and hardly ever take part in pubWe are dealing with these prob- lic debates in the media about
But such mechanisms must never contravene the Bill of Rights, be repugnant to justice and morality or be inconsistent with the Constitution or any written law. We have a duty to ensure that when Kenyans choose other forums to We wish to start today by marchpursue justice, they do not sub- ing and holding discussions with the public on the work we do and vert the Constitution. get feedback on how to make it Until now, the authority of the better. Judges, magistrates, Kadcourts has been vested in sym- his and other judicial officers will bolic wigs and robes. We may un- this week be in bus parks, marketderstand the appeal of the sym- places, schools, colleges, prisons bolism, but are more persuaded and other public places to start a by the allure of the substance in conversation about how we shall our judicial practice. We would relate with our clients. like to reconnect with reality and earn our authority and the pub- In the next couple of months, I lics respect through service, rig- shall be joining colleagues and orous judicial practice and juris- the public in areas long marginprudence, efficiency in the way alised to be a part of this converwe work, and our integrity. No sation. No place is too remote symbolism however attractive, for the reach of justice. The Judiand however old, can substitute ciary is for all Kenyans. There are none more favoured and none for quality service and integrity. discriminated against. When we talk about equitable access to We want to remove the justice, we mean that justice will court process from the be available to all, regardless of your status. realm of mysticism. And We are encouraged by the participation in the events of this week of the police, the directorate of public prosecutions, the prisons service and other agencies. The Judiciary will continue to engage the entire justice chain in partnerships that deliver access to justice equitably and expeditiously.
The establishment of the National Council for the Administration of Justice, of which the Chief Justice is the chairperson, presents a great opportunity to formalise collaboration between various actors in the administration of justice.
10
We are establishing Court Users Committees at the national, county and court station level, which give all the actors in the justice chain from the prosecutions directorate, the Attorney General, the police to the prisons to civil society organisations a forum to work together to resolve issues that prevent them from delivering on their mandates. We desire to create a relationship with the public, nurtured by dialogue that seeks to find solutions to the challenges Kenya faces as a society. The Court Users Committees continue to present a great platform for the Judiciary to learn about the changing needs of the society, and to adjust to them accordingly. If there is still any doubt, let me be clear: Justice is no longer for sale. Ours is a spirit of service and responsiveness. I encourage all Kenyans wherever they may be to make use of the Office of Judiciary Ombudsperson by sending in complaints through the SMS number 5834, through email, servicedesk@judiciary.go.ke or by visiting a court station and asking to speak to the ombudsperson. This is the only way to
transform this institution into the We want to explain to the public that we share Judiciary you wish to see in Kethe responsibility for nya. the administration and delivery of justice with Let me reiterate our main aims in other partners -- such as undertaking the Judicial Marchthe police, the directorate es: of prosecutions and the prisons service with We a r e h o l d i n g t h e whom we have a working Judicial Marches Week relationship. to demonstrate the radical shift required by Fellow Kenyans, every citizen has constitution in recognising a duty to respect, uphold and the judicial authority defend the Constitution and all comes from the people. its 18 Chapters and 264 Articles. We want to signal to the For those who seek to subvert Kenyan people that the the Constitution, we must remind authority of the courts is not them that it is our only defence to be found in mysticism, against lawlessness and disorbut rather in the quality of der. Unless we obey the law of their decisions. which court orders are a part, we We want to encourage the cannot expect others, be they public to use alternative government agencies, private dispute resolution interests or individuals, to be held mechanisms, including to that standard. This is what the traditional ones, as long rule of law is about. as they do not offend the Constitution. Not all the decisions the courts As State officers, judiciary make will be popular. Power is staff want to lead the not granted to do what is popuway in living up to the lar, but to do what is right. As long expectations of the as the decisions of the courts reConstitution to be main within the parameters of accountable to the public the Constitution, which Kenyans by providing information voted for overwhelmingly, and and responding to advance the rule of law, the Juquestions. diciary will have done its duty. Finally, as we approach the General Election, the most complex ever, I reiterate my pledge that the Judiciary will be true to every Article in the Constitution. In return, I call upon all Kenyans to commit to a free, fair and peaceful election by being lawabiding in the exercise of their rights. I appeal to all Kenyans to support the transformation of the Kenyan Judiciary.
Thank you. Dr Willy Mutunga, D.Jur., S.C., E.G.H., Chief Justice/ President of the Supreme Court of Kenya
11
KENYAS CONSTITUTIONAL TRANSITION: THE CHALLENGE OF UNIVERSITY, STATE, SOCIETY RELATIONS

A Public Lecture Delivered at Taifa Hall, University of Nairobi, on August 21, 2012, as Part of the Judicial Marches Week Dr Willy Mutunga, D.Jur., S.C., E.G.H., Chief Justice/ President of the Supreme Court of Kenya
hank you for your warm welcome. I feel greatly honoured to be back at the University of Nairobi, and at Taifa Hall a place with a rich history for intellectual debate.
have launched in the Judiciary to explain how we work, and to receive feedback on how we can make our work better. We are able to do this because the Constitution not only enables us to, but also because it requires It is difficult to forget the debates it. The Constitution has radically of the Historical Association of recreated the Kenyan Republic. Kenya on the reinterpretation of the role of Mau Mau in the Few have internalised this realliberation of Kenya; the Nairobi ity and, even many more, have Debate in the Department of yet to make the necessary menEnglish on the place of language tal shift that this is a new order. in the post-colonial State; the Ke- Vestiges of the old republic are nya Debate, in the Department actively resisting the new Conof Political Science, grappling stitution. Having been socialized with the question of indigenous in and benefitted from a retrocapital accumulation vis-a-vis gressive culture, they lack the the State and international capi- skill, appetite and inclination to tal; the robust debate at the Insti- live and thrive in this new envitute for Development Studies on ronment. It is terra incognita for Sessional Paper No 10 on African a political class not used to acSocialism and its Application to countability, and bureaucratic Planning, which sought to inter- elite accustomed to patronage rogate and settle the ideological and insularity. choices of a new Republic. The remaking of the Kenyan The Free Traveling Theatre incu- state and society, that the new bated the culture of revolution- Constitution has engendered, reary theatre and culture; and the quires a new approach and culFaculty of Law debated how law ture to power and authority. The was to be researched, taught Constitution has reset the power and practised. It was a debate at relations between the State and once ideological and political, as the society in favour of the latrecorded in the book,Teaching ter. In Article 1, it has made an Law in the Faculty of Law, edited unambiguous declaration that by Kibwana, Nderitu and Ruk- sovereign power reposes in the waro. This was a university in its people. natural and normal state trying to give intellectual leadership on As we approach the second anthe key issues of the day, and re- niversary of the promulgation of sponsibly interrogating received the Constitution, I wish to pay wisdom. tribute to the role that this university and its intellectuals as well It is for this reason that I have de- as other universities played in cided to give this public lecture creating the present moment. here today. This is part of a public engagement programme we Slightly over 30 years ago, my
teaching career at this university came to an abrupt and unceremonious end. I was arrested and subsequently charged with possession of a seditious document. The document in question would be read in court for two months before the State gave up on pursuing a trial and instead sent me into political detention without trial for 16 months. My return to teaching thereafter was made conditional upon me issuing an apology to then President Daniel arap Moi, which I was and still am unable to give. Teaching at the university, as I remember it, was extremely difficult. You could not read what you wanted to read. And you could not teach what you wanted to teach. We had Special Branch officers posing as students. We had lecturers who were State agents. I am glad that there are many police and intelligence officers who are now legitimately pursuing courses in our universities, rather than eavesdropping on lectures in order to write nottoo-intelligent intelligence reports. The political persecution of thought was vile and vicious. Thinking, in this environment, was a very risky enterprise. This is what drove many intellectuals to become activists. For the questions would linger: what is a university without freedom freedom to think freedom to read and to seek ideas freedom to speak and to debate? Concerns such as these forcefully thrust the academic community lecturers and students alike to the forefront of the quest for academic freedom, freedom of
12
assembly, and freedom of the press. Spaces for self expression had been closing since independence, and because of its privileged and respected reputation as a hearth for new ideas, the university became a natural centre for dissent. This was the incubator for the Constitution. Indeed, when the universities were finally silenced between 1982 and 1992, Kenya slid down the slippery rope of dictatorship, and debate in public spaces almost ended. I suspect that the universities in Kenya and the intellectuals in them never quite recovered from the traumatic crackdown on dissent in the 1980s and 1990s. For the past 20 years, the universities have been bystanders as the country has engaged in a vigorous debate on constitutionmaking. The rich debates of the 1960s and 1970s that I mentioned at the beginning of this lecture disappeared. The IDS Discussion Papers on developmental issues evaporated. Notwithstanding the interregnum, there is a new Constitution. And it is not just part of the universities past. It defines their present and their future. The Constitution, in Article 11, recognises culture as the foundation of the nation, and the cumulative civilisation of the Kenyan people. It requires the State to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The State must recognise the role of science and indigenous technologies in the development of the nation, and promote the intellectual property rights of the people of Kenya.
I am throwing down this challenge because universities have not been able to reclaim their true heritage as sites for the contestation of ideas and thoughts. It is, for instance, difficult to recall the voice that the faculties of law, or the departments of political science made in the debate on presidential and parliamentary systems of government or devolution. I know Prof Chrispin Odhiambo-Mbai, then Chairman of the Department of Political Science, lost his life while serving as the chairman of the Devolution Committee at the Bomas Constitutional Conference. But his participation there was out of individual drive rather than institutional effort. There are many others who have made similar private interventions. Even now, it is very surprising that as debate rages on what should constitute our laws on integrity and leadership, those who study ethics, philosophy, law and political science have not yet organised a forum to discuss these issues. Academics must remember that peasants disposed of their property, sold their cows and land to fund their education so that they can provide leadership in thought. We have taken leave of our historical mission, completely bewildered and displaced by notions of popular participation. Indeed, when we attain our professorial status, we are all too keen to be anointed as elders by our fellow villagers, instead of giving inaugural addresses before our peers!
Chicago School, which was the incubator of this World Bank ideology, was just another university. Ngugi wa Thiongo attempted, in his book, Moving the Centre, to find a new ideological positioning following the collapse of the Soviet Union. I hardly heard a squeak from the departments of Economics, Institute for Development Studies or Political Science in challenging this orthodoxy with cogent and clear proposals, even as the effect of Structural Adjustment Programmes led to an exponential rise in poverty levels in this country. I never heard any robust reposte to Francis Fukuyamas End of History and the Last Man. May be the trauma from the legacies of the 1980s still lingered, but it is time to reclaim territory. We have privatised research through consultancies to the point of intellectual surrender, with the consequence that our body of knowledge remains thin and our broad understanding of society is inadequate. Kenyas development, politics, and jurisprudence pay a heavy price for these epistemological gaps. This point speaks to another critical issue: financing of university education. Unfortunately, State funding for university education, particularly for this university, has declined considerably. A sustainable production of knowledge in the manner that I describe here requires a secure funding base. The budget deficits have seen the rapid commercialisation of university education, with costly consequences. We are risking a university education policy that is revenue rather than knowledge driven. The State needs to restock even as the university explores more imaginative models of raising finance, but which do not compromise on quality. The State can no longer shirk its responsibility to fund research and education because the Constitution requires it to invest in the social sector. On the other hand, if Kenyas indigenous capital was more enlightened, they would
The question that goes begging is, how do we enrich the countrys jurisprudence, or even policy outlook, if the people who have been commanded to think Besides this special consider- and paid to think, are reluctant ation, which the Constitution to think? gives to the enterprise of producing knowledge and trafficking The rise of neo-liberalism in the in it, universities have another second half of 1980s saw the inrole as crucibles for moulding a tellectual surrender of our acaresponsible citizenry and leader- demics to the orthodoxy of the World Bank. We forgot that the ship for the country.
13
have seen the sense in investing in the production of knowledge, both for self interest and for public good. I note that the space we are using today is part of the famed Gandhi Wing, constructed with funds from social justice philanthropists and private entrepreneurs. It is many years since any individual or organisation came forward to fund the construction of a public university hall or other facility. Though several firms and individuals have endowed annual awards for top students, the business sector has not been sufficiently enlightened to forge partnerships with universities that enable them to create wealth and grow knowledge. I would like to challenge individuals and organisations to make endowments for scholarships and chairs for the study of specialisations at the university not only to secure the future of the academy, but also to demonstrate that their accumulation was not of a primitive character. The university needs to forcefully reinsert itself in the world of theory building and the pursuit of knowledge. Kenyas new constitutional moment presents an opportunity to chart new directions. The Judiciary will be a willing partner and beneficiary of the stock of knowledge that this great institution will generate. I would now like to address myself to the students who are gathered here today, and the young generation in this country who may be watching. It was Frantz Fanon who said that every generation must discover its mission, fulfil it or betray it. My generation has done its bit in delivering a new constitutional dispensation. It is now the duty of the next generation to nurture this Constitution and bring it to life. Youth is the time of hopes and dreams. In our times, students were the conscience of the nation. This conscience has since
been corroded and student politics, sadly, just as our national politics, is driven by ethnic calculations and loyalties. It is bereft of any clear ideological content, and fuelled by considerations of personal benefit and private gain. I invite all of you to think back to the crisis in 2007 and 2008, and how confusing it must have been for you. The wages of sectarianism is violence and conflict. That is why I urge young people to shun violence and to embrace this Constitution in order to reap all that it promises. The rule of law means that no one is above the law whether it is the government, private corporations or individual citizens. Student leadership, particularly, SONU, played a big role in opening up the democratic space in this country. There was progressive leadership on the one hand, and a divisive, thieving and opportunistic one on the other. In most cases, the institution played a pivotal role by either denting the progressives through oppression, supported by the State or corrupting the leadership through goodies, promises of jobs and status and creating a student leadership in the image of the corrupt elite. My message to you students is that you must be the change the Constitution decrees you to be. And to the university leadership, I remind you, like all of us State officers, that we must uphold the values of the Constitution and nurture student leadership that abides by those values. The university used to expel students and faculty members because they agitated for transformation within the university and in the country. Bread and butter are important, but they fit into wider issues that affect the whole society. That is why many of us are nostalgic about the staff and student unions that were part of the struggles of a new Kenya. And for good measure, there is evidence in the wider Kenyan society that this was an important training ground for national leadership. Now it is time to
glorify such agitation and implement the Constitution within the university and the country. The university is not an island away from the freedoms and values the Constitution proclaims. The constitutional guarantees for equality have shattered the cultural and traditional barriers on the participation of young people, women, the disabled and other previously marginalised groups in the countrys public affairs. Specific seats have been secured for young people in the National Assembly, the Senate and the County Assemblies. More should follow as the implementation of the Constitution gathers pace. The standards for public leadership are very high and are now greatly contested but that is probably because Kenya is trying to recast individuals who are already set in their character and orientation. Kenya has opened a door for a fresh breed of leaders who may not have had the opportunity to make the mistakes of their elders. The country is searching for a new citizenship and a new leadership that respects the rule of law, is tolerant of difference, encourages the full participation of hitherto marginalised groups in public affairs, and eschews the manipulation of ethnic divisions. The architecture of government places great emphasis on equity in the distribution of resources, and devolution. The forced migration of people from the fringes to the centre, out of a desperate search for labour and other economic opportunities, has robbed many regions of intellectual, human and economic capital. It no longer has to continue. The expansion of universities does not have to follow the metropolis. The university is the metropolis. The Constitution lists sustainable development as one of the national values to guarantee intergenerational equity. Resources must be used in a manner that
14
benefits the present generation, as well as generations to come. Article 201 (c), on Public Finance, requires that the burdens and benefit of the use of resources and public borrowing shall be shared equitably between present and future generations. Finally, the guarantee of socioeconomic rights expands opportunities for young people and protects their health and economic needs. The inclusion of socio-economic rights in the Constitution is revolutionary as it moves education, housing and health from the territory of privileges to the column of rights accruing to every citizen. That is why it is in your interests to respect, uphold and defend this Constitution. This is revolutionary. It is the manifestation of the socio-democratic character of our Constitution a constitution alive to the fact that the excesses of the market need to be tamed by a Bill of Rights. What the original civil and political rights sought to do to excess political power is what the socioeconomic Bill of Rights seeks to do to the excesses of the market. And as with the politico-civil rights, there will always be contestation. As we implement the Constitution, we expect that numerous times, many of these issues will come to the Judiciary for adjudication. The Constitution establishes the Supreme Court, which has a responsibility to develop a robust, indigenous, patriotic and progressive jurisprudence. We are keen to turn the Judiciary into a learning and knowledgebased institution. Indeed, during the inauguration of the Supreme Court, I stated that the Court would establish a vibrant relationship with the academy as a necessary step in the enrichment of the jurisprudence that will be emerging from it. Through the use of expert witnesses and amici curiae, the Court is already nurturing a productive intellectual relationship with the academy.
The Judiciary Training Institute, which is the nerve centre of our learning activities, is working to establish contact with universities and other institutions of higher learning. It co-ordinates the Judiciarys academic networks and the training programmes run in conjunction with scholars and other jurisdictions. Training is important to equip the Judiciary to breathe life into our Constitution. The jurisprudence that the courts produce cannot be entirely dependent on law. It must emanate from multi-disciplinary approaches, sources and expertise. Thus, experts in economics, science, politics, the arts, information technology and other disciplines will train judicial officers to give them a global outlook. It is for this reason that the Supreme Court has decided to employ Law Clerks that have qualifications from other disciplines. Indeed, learnedness that is discipline-singular is a contradiction of terms.
to come back to a university that is intellectually active one where when I walk along its faculty corridors, I can see numerous notices of seminars on notice boards rather than those of car boot sales of vegetables! You may choose to be conservative or progressive but for heavens sake let us have an ideological orientation. The university is not just a fountain of knowledge but also a spring for progressive politics. In order to live up to the commands of the Constitution, we need to go back recognising the role of the university in democratic development.
The stated Mission of this university is to seek to embody the aspirations of the Kenyan people and the global community. I hope that the university is conscious of the fact that the aspirations of the Kenyan people are codified in the Constitution. These are the aspirations you must protect. You must speak out when they are under threat. And you must assist We are keen to create this inin the pursuit of their realisation. tersection between justice and knowledge, and invite the com- Thank you. munity of scholars to rise up this challenge. There is need for a robust partnership between the Judiciary and scholars as commentators, critics and experts. The judgments the courts make need to be subjected to critique. I also see great opportunities for collaboration on research and publication on the Constitution and the laws issuing from it. It is the only way we can take full advantage of the knowledge that is our collective wisdom. Friends, I have contemplated life when my term as Chief Justice ends. I have given thought to making a return to this university to teach. I would like to come back to a university that is a ferment of ideological contestation, not an institution that still finds pleasure in victimising students and faculty for expressing divergent opinions on academic and national issues. I would like
15
THE INTERFACE BETWEEN ACADEMIA AND THE BENCH

Remarks made on the occasion of the Inaugural Chief Justices Legal Scholarship Dinner, Nairobi, July 9, 2012 By The Hon. Justice (Prof.) J.B. Ojwang, Judge of the Supreme Court of Kenya
Content 1. Academia and Bench, Two Sides of the Same Coin: Introduction 2. Academia and Bench The Functional Link 3. Evolving Jurisprudence under New Governance Trends 4. Records of Common Interest: Bench and Academia 5. Conclusion
some special element in the upon being moved: moved by functioning of a public or private an aggrieved party, afflicted by dispute that may involve (i) institution. a private citizen or private citiIn effect, the primary task of legal zens; (ii) a private citizen or priacademia is to generate law- vate citizens vis--vis the Execurelated information and knowl- tive Branch; (iii) a private citizen edge, for the purpose of lighting- or private citizens vis--vis the up important processes of the Legislative Branch; (iv) a private society; and the outcome is in citizen or private citizens vis--vis the first place intended for ped- any autonomous constitutional agogy. The recipient intended, organ; or (v) contests among therefore, is a captive one, not such public bodies, or concerning any of them. a choosing one.
1. Academia and Bench, Two The scholars contribution in this Thus, the precise grievance or regard is important, because the contest falling to the mandate Sides of the Same Coin: trends of history have shown that of the Bench is, in every respect, Introduction
lthough legal academia and the Bench belong to one fraternity, that of law, the two mostly approach this discipline from different sides. For legal academia, there is a shared platform with most specializations of research and learning: the platform of inquiring into, discovering, and propounding information and ideas. The academic takes up legal phenomena, probes them, and relates them to the broader institutional scenario to the intent that the role of law in society be better understood. That end by itself, fulfils the legal scholars mission, except where he or she is specifically asked to illuminate
good governance in all spheres, public and private, ought to be based on beacons defined by law and legality. It is thus of no consequence, that no supplicant may have moved legal academia to generate some particular body of knowledge: the mere availing of such knowledge, and its incorporation into pedagogy, is a positive input into functions of governance at large. The immediate concern of the Bench, by contrast, is not such an open-ended focus on legal ideas. Instead, the Bench acts by the defined constitutional mandate, to be performed only
contingent. However, such grievances or contests though unforeseen, are destined to happen, and, as experience from time immemorial shows, may be profound, and even fateful, in terms of good governance and civil order. This is the reason why the Constitution of every State accords a prominent place to the Judicial Branch. It is clear, therefore, that the Bench, in all cases, sets out to resolve a specific cause; and in that behalf it considers the pleadings of the parties, the evidence and the law, and on that basis, dispenses judgments that proclaim the ultimate constitutional posi-
16
tion, binding on the parties.
2. Academia and Bench the Functional Link
The judicial task as it delivers the final constitutional statement, ought in all conceptions of good governance to carry legitimacy: legitimacy in the view of the litigants, just as much as in that of the community at large. Where the grievances raised involve public institutions, the people have a broad-based interest in the final judgment. And where the dispute concerns only private parties, the legitimacy of the judgment has a bearing on the maintenance of social tran- 3. Evolving Jurisprudence unquility. der New Governance Trends Therefore, the Bench is under professional and ethical obligations to adhere to rational and equitable paths of decision-making. The judgment rendered will have to be a reflection of recognized principles and values attending judicialism, notably, impartiality, fairness, independence. The Bench is not to engage in a capricious enterprise, with no beacons of decision-making. The beacons
of judgment are laid in the law; but this law, though frequently conspicuous in form, quite often has to be discovered through learning and further inquiry. This, precisely, is how legal academia gives a helping hand to the judicial process. Although the Judge has direct access to the evidence adduced, to the statutes of immediate relevance, and to cases of precedent-value, in many cases further light needs to be shed on such material, so as to open up the rational course of decision-making; and recourse to legal scholarship will, in such cases, be the solution.
principles of governance, is not dealing with a trodden path in which precedents abound: it has to draw on the directions of legal scholarship, as a basis for rational and legitimate judgment. Such is the case too, with the complex issues arising from the human rights provisions of the Constitution.
4. Records of Common Interest: Bench and Academia

While the Benchs imprint from the courtroom takes the form of jurisprudence recorded in the law reports, academias research findings and learned propositions are contained in the law journals and other works of scholarship. Between the two categories of record, there is a functional meeting-point: the Benchs jurisprudential output quite frequently features in the scholastic expositions recorded in the law journals. The two categories of publication, thus, have a prominent common ground; and from this common ground, the further works of the Bench, in the form of judgment, will be nourished by the legal scholars exposition.
The interface between Benchwork and legal academia is enhanced in Africa, with the contemporary adoption of more progressive governance paradigms. A prototype in this regard is the Constitution of Kenya, 2010, which lays down national values and principles of governance, and proclaims a detailed, innovative law on human rights.
The Bench, in rendering judgment on disputes entailing national values and 5. Conclusion
On account of the constitutional mandate of the Bench, in dispute settlement, and in the interpretation of all law as well as the Constitution itself, the path of its judgment must be illuminated by a radiant source: that source is knowledge of law-in-broadercontext, flowing through the scholars pen, and from halls of academia. In quest of objectivity, rationality and legitimacy of judgment, therefore, the Bench has to recognize the constant relevance of the contributions of academia.
17
THE HIGH COURT AS THE MODEL SUPERIOR COURT: DESIGN AND CHALLENGES
Paper presented during the Induction Training Course for newly-appointed Judges of the High Court of Kenya, Nairobi, September 19, 2012 By the Hon. Justice (Prof.) J.B. Ojwang, Judge of the Supreme Court of Kenya
even where such matters are furContent ther appealable; the only supe rior Court most significantly for A. Introduction the individual Judge where a B. The High Court as the single, knowledgeable and exConstitutional Court perienced judicial officer, sitting C.Challenge to the High as the Bench, has the opportuCourt Judge nity to shape the path of jurispruD. The High Courts dence in all spheres of the law. Function: Impacts on Kenyas Economic, Such an experience accords Social And Political with the course of history: the Development High Court was, in the colonial E. Conclusion period, formally known as the Supreme Court, which only at InA. Introduction dependence in 1963, as part of a he critical role of the High series of modifications attending Court in Kenyas judicial struc- the institutional changes, was reture is a fact well depicted in the christened. However, as Y.P. Ghai account of this countrys evolu- and J.P.W.B. McAuslan in their tion as a State, from the onset of work, Public Law and Political colonialism in the late nineteenth Change in Kenya: A Study of the century, through the twentieth Legal Framework of Government and into the twenty-first century. from Colonial Times to the Present (Nairobi: Oxford U.P., 1970) This account, as regards my [p.366] remark, case, is clearer still from personal experience. From 28th October, 2003 to 16th June, 2011 when I the Supreme Court was served on the High Court Bench, renamed the High Court, I lived through this Courts standbut its jurisdiction remained ing as the centrepiece of the unchanged machinery of justice: the model superior Court, with practically unlimited jurisdiction in all matters justiciable; the premier mech- Even though the Constitution anism for the resolution of all of Kenya, 2010 provides for two grave and weighty matters; the superior Courts above the High first appellate Court from the raft Court [Articles 163 and 164], of Magistrates Courts, as well as namely the Supreme Court and the various tribunals and Kadhis the Court of Appeal, past exCourts; the national Constitution- perience suggests that the High al Court, determining the numer- Court will remain the focal point ous claims founded on the Con- in the resolution of disputes of stitution; the first and last Court, most types, in the new constituin practical terms, for all matters tional order. Special diligence,
learning and professional commitment, thus, becomes the dedicated Judge of the High Court. B. The High Court As The Constitutional Court By the Constitution of Kenya, 2010 the sovereign power, which belongs to the people of Kenya [Article 1(1)], has, for functional purposes, been delegated to the three main branches of government, one of the recipients being the Judiciary and independent tribunals [Article 1(3)(c)]. While the Constitution sets out the system of Courts [Article 162(1)] as the Supreme Court, the Court of Appeal, the High Court, other superior Courts as may be established by Parliament, and the subordinate Courts, and specifies the applicable hierarchical arrangement, it is the wide-ranging role of the High Court that stands out. Firstly, the Constitution provides [Article 165(3)(a)] that the High Court has unlimited original jurisdiction in criminal and civil matters. No other Court has such a wide jurisdiction, which covers virtually any justiciable matter brought by parties. It is no less significant that the High Court, for most purposes, has the first bite at the cherry, in determining the question whether a right or fundamental freedom in the Bill of Rights has
18
been denied, violated, infringed or threatened [Article 165(3) (b)].
I have had occasion, judicially, to depict the essential design and character of the new Constitution; the relevant statement will shed light on the controlling function of the High Court, in relation to the Bill of Rights. This is recorded in Luka Kitumbi & Nine Others v. Commissioner of Mines and Geology & Another, MomBy recognizing the High Court basa H.C.C.C. No. 190 of 2010: as the main forum of realization of the guarantees of the Bill of Rights, the Constitution has reI take judicial notice that posed in this Court the role of the Constitution of Kenya, custodian of a vital component 2010 is a unique of the grundnorm: and so, the governance charter, quite destiny of the new Constitution, a departure from the two just as much as of the emerging governance profile, has been [1963 and 1969] earlier committed not just to the JudiConstitutions of the ciary but, more specifically, to post-independence the High Court, as the Constituperiod. Whereas the earlier tional Court.
Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
equity; and to resolve social dispute in a just manner. He was endowed with the knowledge, verve and gusto to deliver generously on this intellectual and public-spirited mission. It will be recalled that Lord Denning, who joined the Bench in 1944, in his modesty as to reputed symbols of office-glory, winced at the prospect of elevation to the Court of Appeal Bench, as the challenges of the High Court gave him distinct fulfilment. The basis of this fulfilment was the High Court Judges unlimited and original space in the making of the common law: and a reading of his works and his numerous judgments and rulings, shows him to have been one of the greatest Judges of all time. Kenyas High Court Judges, though operating in a differing context and, in particular, within a detailed constitutional framework, have just as rich a setting of creative opportunities as Lord Denning had in England, a country with no like Constitution. I would suggest that neither Kenyas Constitution with its detailed prescriptions, nor the large body of statutes covering a wide range of social, economic and political spheres in this country, has taken away the scope for jurisprudential creativity available to the dedicated Judge. The Judges calling, especially in the common law system which abides in Kenya, is both pragmatic and intellectual. At the pragmatic level, social discords arise which must be adjudicated: but the tools of resolution, in many cases, are not forged from scrap; often, the question ties up with identifiable social scenarios, guided by long-established principles and intellectual perspectives. In such cases, the good Judge is a learned Judge, in the sense of habitually examining relevant ideas; considering the historical paths of the law; reading relevant material; undertaking analysis; and perceiving different
Constitutions were essentially programme documents for regulating governance arrangements, in a manner encapsulating the dominant political theme of centralized (Presidential) authority, the new Constitution not only departs from that scheme, but also lays a foundation for values and principles that must imbue public decision-making, and especially the adjudication of disputes by the Judiciary.
C. Challenge to the High Court Judge The challenges facing the High Court Judge, thus, are so well defined; and they assure a lively career engagement to the dedicated Judge. The new Constitution has only added on to an already interesting and engaging setting of judicial work. This point is readily appreciated in the light of the recorded experience of the great English Judge, the late Lord Denning the essence of which may be gleaned from his remarkable works: (i) The Discipline of Law (London: Butterworths, 1979); (ii) The Due Process of Law (London: Butterworths, 1980). Lord Dennings professional life as a Judge is compellingly inspirational, this being the exemplar who fully grasped the creative role of the Judge in a commonlaw setting, in which the community looked to the Judiciary to protect its rights; to define the bounds of legitimate exercise of public power; to administer
The values thus signalled, take their best form in the longest chapter [Chapter 4] of the Constitution [Articles 19-59], which declares the individuals rights and fundamental freedoms, and confers locus standi before the High Court in broad terms [Article 22(1)]:
19
scenarios in the resolution of legal problems. This is particularly important for the High Court Judge, whose mandate is the widest, as compared to the more circumscribed jurisdictions of the other Judges. In my own experience on the High Court Bench, I was able to determine causes and motions, and to render considered judgments and rulings on a wide range of justiciable claims: (i) administrative law; (ii) admiralty matters; (iii) child maintenance and adoption; (iv) civil law in its various spheres; (v) constitutional law; (vi) corporate transactions; (vii) marriage and divorce; (viii) probate and administration of estates; (ix) trusts; (x) criminal appeals of all kinds; (xi) murder cases.
Impacts on Kenyas Economic, Social and Political Development It is clear that the elemental role of the Judiciary and particularly of the High Court in Kenyas constitutional dispensation speaks for itself. It is no less clear that Kenyas destiny as a successful nation-State, committed to the enhancement of its citizens welfare, is hinged on the full-scale implementation of the Constitution.
rity of the nation. The entire purpose of the present constitutional dispensation, is to launch and consolidate a progressive and socially-rewarding governance-direction, as a basis of stability, peace, order, and international respectability. The main political questions, therefore, which take immediate expression in leadership styles and in the configuration of political units, mainly in the shape of political parties, have to be modulated at the points of dissent. The Courts, and in particular the High Court, must employ efficient, lawful, and public-spirited yardsticks of conflict resolution, in this sphere.
In this context, it is to be appreciated that the judicial role in efficiently and justly resolving economic disputes, will redound to successful economy, by promoting brisk and productive enterprise; and such economics will E. Conclusion return material and social advantage to significant portions of It bears restating, that the JudiSome of these spheres of judicial the national population. ciary is the midwife for the safework provided me with a remarkguards of Kenyas new Constituable learning experience; and In a parallel scenario, the coun- tion. The delivery role, for certain, others exhilarated me intellectu- trys social stability will partly rests with the High Court Bench ally, empowering me to examine depend on the efficiency and in the first instance, and in most the law with focus and to render fairness of the Courts, in resolv- cases. The abiding challenge judgments which, I trust, would ing family and related social-ar- calls for a rearmament with outlay signposts for later decision- rangement disputes that tend to comes of creativity; of consistent making. undermine social order, and hav- study and reflection; and of foing the potential to cast ominous cused learning on principles relD. The High Courts Function: shadows over the political integ- evant to goals of social welfare and the public interest.
Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals. Martin Luther King, Jr..
QU
20
E T O
INTERIM REPORT OF THE JUDICIARY WORKING COMMITTEE ON ELECTION PREPARATIONS

PREFACE ince its inception, the Judiciary Working Committee on Election Preparations has been hard at work readying the Judiciary to handle the multiplicity of petitions expected from the forthcoming General Election. The committee has held and attended several stakeholder forums on the electoral process. The committee recognizes that even though the role of the Judiciary appears to be at the tail end of the electoral process, it cannot be played effectively if
activities within the entire process are not properly facilitated. The committee works with stakeholders to ensure that inconsistencies or deficiencies in electoral law are dealt with early and that all actors know precisely what laws will govern the electoral process. The committee has joined hands with the Judiciary Training Institute as required in its terms of reference as well as other stakeholders to develop and carry out a training programme for judges, magistrates and other judicial
staff across the country between September and December 2012. After taking stock of how election-related disputes have been handled in the past and particularly of the success of the High Court in dealing with the delimitation case earlier this year, the committee is recommending to the Chief Justice administrative arrangements that can be made to efficiently handle electoral disputes. The committee has recommended pre-trial conferencing once pleadings have closed to give the judicial officers and litigants or their advocates an opportunity to set the rules of engagement in order to avoid delays experienced in the past. The committee continues to work on ways to engage the public in order to raise awareness on the forums for dispute resolution that now exist in the electoral regime in and outside the courts. This will ease the great burden placed on the Judiciary by cases improperly filed in the courts instead of in the properly mandated dispute resolution bodies. The committee is sparing no effort in ensuring that the Judiciary is ready for any eventuality after the elections. We remain confident that the Judiciarys role in these elections will be precedent-setting not just in Kenya but around the world. Download the full report on the Wakilishare Forum on www.kenyalaw.org
21
PRE-ELECTION DISPUTE MANAGEMENT: BETWEEN JUDICIAL AND ADMINISTRATIVE DISPUTE MANAGEMENT MECHANISMS
Prepared and published by The Judiciary Working Committee on Election Preparations, September 2012.
The Judiciary Working Commit- - To develop and design tee on Election Preparations a system for monitoring Members and evaluating the management and T h e H o n . M r. J u s t i c e administration of electionMohammed Ibrahim related disputes in court. Judge of the Supreme Court - To liaise and coordinate The Hon. Justice (Dr.) with stakeholders to Smokin Wanjala Judge ensure efficient, effective of the Supreme Court and timely resolution of The Hon. Mr. Justice Paul election related disputes Kihara Kariuki - Judge and offences. of Appeal and Director, Judiciary Training Institute - To advise the Judiciary The Hon. Mr. Justice David on the information that Maraga Judge of Appeal needs to be developed The Hon. Mr. Justice A and disseminated to the Mbogholi-Msagha, public on the avenues Principal Judge of the High open to it to pursue Court. electoral disputes and the The Hon. Lady Justice approaches that will be Helen Omondi Judge of employed. the High Court The Hon. Mr. Justice David 1. Introduction Majanja - Judge of the High Court lectoral Dispute Resolution is The Hon. Roseyln Oganyo, a critical component in the Senior Principal Magistrate electoral cycle and the effec T h e H o n . L i l i a n A r i k a , tiveness of lack of thereof of juPrincipal Magistrate. dicial and administrative mechanisms established to adjudicate Terms of Reference electoral disputes impacts directly upon the extent to which - To advise the Judiciary elections are considered free on administrative and fair. Efficient and effectual arrangements and EDR mechanisms are at the core of delivery of peaceful and credmeasures for the efficient ible elections and must be able disposal of electionto effectively deal with the chalrelated disputes. lenges that arise at any stage in the electoral cycle. - To develop and implement, in conjunction with the An election is not a single event Judiciary Training Institute, or period (considering that bya training programme for elections regularly occur bethe efficient and effective tween official general election management of election periods) but rather a continuous disputes for judicial officers process spanning from the estaband support staff.
lishment of the electoral management body, to party nominations, to the campaign period, through the election date and announcement of results and the resolution of electoral disputes. Conflicts and disputes emerge at all stages of the electoral cycle and judicial and administrative EDR mechanisms have been established and mandated to deal with these challenges across the electoral process as well as in regard to the various tiers of electoral units. Traditionally, focus has tended to centre on EDR in regard to the judicial consideration of election petitions. It is however increasingly recognised that the resolution of disputes that occur before the actual election significantly impacts not only on the overall character of the election but also on the nature of disputes that form the basis of election petitions. Considering the expected increase in the volume of election petitions to be handled by the courts in the 2013 election due to the new devolved system of governance and the limited capacity of the High Court which is mandated to deal with most election petitions, it is even more important that pre-election disputes are effectively handled in order to alleviate subsequent litigation via election petitions. This is the reason why the Working Committee established by the Chief Justice has been interacting extensively with the administrative EDR mechanisms and other stakeholders to ensure that statutes, rules, procedures and regulations in regard to pre-elec-
22
tion dispute resolution are rationalized and harmonized. It is in recognition of the mutually constructive relationship between these structures that such engagement is being carried out. Though these efforts bode well for the handling of election disputes at 2013 general election, significant challenges remain; those in regard to pre-election dispute resolution will be considered below. 2. Legislative Framework for PreElection Dispute Resolution The legislative framework for pre-election dispute resolution in Kenya is primarily set out in the Constitution, the Election Act, the Independent Electoral and Boundaries Commission Act, and the Political Parties Act. PreElection disputes can be placed in five general and overlapping categories; disputes specifically within and between political parties; electoral offences and illegal practices; voter registration disputes; disputes arising from the nomination of candidates; disputes relating the violation of the Code of Electoral Conduct. Disputes within and between political parties are mainly considered under the Political Parties Act. These relate to disputes concerning the registration, funding and regulation of political parties and more particularly disputes between members of a political party; between political parties; between an independent candidate and a political party; and between coalition partners. Electoral Offences and Illegal Practices are primarily contained under Part VI of the Election Act; sections 56-73 contain a wide raft of offences and fines and punishments thereto including, inter alia, offences relating to the register of voters and voters cards; maintenance of secrecy at elections; multiple registrations as a voter; offences during voting; offences by members and staff of the IEBC; personation, treating, bribery and undue in-
fluence; use of force or violence during the election period; use of security organs and public resources; and a range of illegal practices. In regard to voter registration, Art. 83 of the Constitution contains the requirements for registration as a voter and provides that any administrative arrangement for the registration of voters must be designed to facilitate, and not deny, an eligible citizen the right to vote. Affirming the right to vote, Part 2 of the Election Act relates to the registration of voters and the determination of questions concerning registration. Disputes in this regard relate to the maintenance of the Principal Register of Voters, inspection of the same by members of the public, the rectification and transfer of a voters registration from one electoral area to another, and the disqualification of a person from being registered as a voter. Significant disputes in regard to the validity and maintenance of central and devolved voters registers have in the past been the cause of both pre-and post election disputes and failure to adhere to the relevant legal provisions in this regard could result in the filing of challenges prior to the 2013 General Election. Under Section 1 of the Election Act, nomination means the submission to the IEBC by the relevant political party of the name of a candidate to contest for an elected position. The Constitution (Art. 137 and 180) and the Election Act (particularly sections 13 and 22-44) provide the criteria for nomination to various electoral offices. Importantly, Section 13 requires that nomination by political parties be undertaken at least forty-five days before a general election and in accordance with the partys constitution and nomination rules. Art. 91 of the Constitution and Sections 6(2)(e) and 21(1)(b) of the Political Parties Act require that a political party undertakes and promotes a free and fair nomina-
tion process in accordance with the partys nomination and election rules. Pre-election disputes can emerge from the alleged breach of the above-mentioned provisions both in regard to the internal processes within political parties and regard to the validity of nominations submitted to the IEBC. Concerning disputes relating the violation of the Code of Electoral Conduct, Art. 84 of the Constitution and section 51 and 110 of the Election Act require in every election that all candidates and all political parties comply with the Electoral Code of Conduct as prescribed by the IEBC and contained in the Second Schedule to the Election Act. Under Section 110 failure to subscribe to the Electoral Code of Conduct or any contravention of the same are considered an offence. The Electoral Code of Conduct is wide and comprehensive requiring every political party, candidate, and leader, chief agent, agent or official of a referendum committee to promote the object of the code to enable free political campaigning and open public debate to take place in all parts of Kenya during an election period. 3. Pre Election Dispute Resolution Mechanisms 3.1 The Judiciary The High Court possesses inherent jurisdiction to hear pre-election disputes by dint of Article 165 of the Constitution that confers unlimited original jurisdiction in criminal and civil matters to that court. More particularly, such disputes can be framed as a breach of political rights possessed by every citizen under Art. 38 of the Constitution; these include Inter alia, the right to form, or participate in forming, a political party; to participate in the activities of a political party; the right to free, fair and regular elections; to be registered as a voter; and to be a candidate for public office
23
or office within a political party. Art. 23 and 165(3)(b) provides the High Court with jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; further, Art. 22 grants every person the right to institute court proceedings claiming that such rights have been denied, violated, infringed, or threatened. Under Art. 23(2), an Act of Parliament can devolve this original jurisdiction of the High Court to the Magistracy; in such proceedings the courts have wide discretion to grant appropriate relief including a declaration of rights; an injunction; a conservatory order; a declaration as to the invalidity of any law; an order for compensation; and/or an order of judicial review. Beyond this inherent jurisdiction of the courts to hear pre-election disputes, legislation specifically provides for the courts to hear and determine pre-election disputes. This jurisdiction is however shared with the various electoral dispute mechanisms established by the Constitution and by statute under Art 87 of the Constitution. 3.2 The IEBC Art. 88. Of the Constitution establishes the Independent Electoral and Boundaries Commission and mandates the Commission to, inter alia, settle all electoral disputes excluding election petitions and disputes subsequent to the declaration of election results. This provision essentially grants the IEBC authority to deal with all pre-electoral disputes. These provisions are echoed in Section 74 of the Elections Act which provides thus: Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of results. Section
74(2) provides that such disputes must be determined within seven days of lodging the dispute with the Commission. The Commission is also mandated to regulate the process of nomination of candidates by political parties [Article 88(4)(d)] and to monitor the compliance with the legislation relating to nomination of candidates by parties [Article 88(4)(k)]. Section 107(2) of the Elections Act further empowers the Commission to prosecute any offences under the Elections Act and impose sanctions against a person who commits such offences as prescribed by the Act. A Registration Officer has significant powers in regard to the registration of voters. The IEBC is currently drafting Rules of Procedure in regard to the prescribed form, manner and time lines for processing of a complaint by any person in regard to the voters register by the Registration Officer as required under Sections 11-12 of the Election Act. Section 12(2) further provides that an appeal from the decision of the Registration Officer shall lie in the prescribed manner to the Principal Magistrates Court on matters of fact and law and to the High Court on matters of law. As mentioned above, Art. 84 of the Constitution demands that all candidates and political parties comply with the Electoral Code of Conduct. The Second Schedule of the Elections Act provides for two specific entities that have a role in the pre- election dispute resolution process; the Electoral Code of Conduct Enforcement Committee and the constituency Peace Committees. The Electoral Code of Conduct Committee is established under Section 15 of the Electoral Code of Conduct to address complaints received with regard to infringement of the provisions of the Electoral Code of Conduct. It is set up by the IEBC and comprises of not less than five members of the Commission with the chairperson being a person qual-
ified to hold the office of Judge of the High Court. Section 15(3) requires every candidate, official and agent to acknowledge the authority of the Committee to enforce the provisions of the Code on behalf of the Commission; to ensure compliance with summons issued to the party, its candidates or representatives by the Committee; to cooperate in the official investigation of issues and allegations arising at election period; and to respect and comply with the orders issued by the Committee. The Committee can issue summons to the person, political party or referendum committee against whom a complaint has been received as having infringed the provisions of the Electoral Code and in its proceedings, the Committee is not be bound by the provisions of the Criminal Procedure Code or the Evidence Act; the Committee also hears appeals from the Peace Committees when not satisfactorily resolved at that level. Under section 17 of the Electoral Code of Conduct, the IEBC is mandated to establish Peace Committees at in every constituency during an election and referendum period. The committees have the power to reconcile warring parties; mediate political disputes in the constituencies; liaise with government security agencies in the constituency and report suspected election malpractices; and report any violation of the Electoral Code to the Electoral Code of Conduct Committee for appropriate action. The establishment of the peace committees is not mandatory and it remains to be seen whether the IEBC will adopt this mechanism to devolve the activities of the Code of Conduct Committee to the county, constituency and county assembly wards levels. Indeed, there are no provisions relating to the constitution of the Peace Committees. Further, there is no express
24
provision in regard to appeals from the decision of the Code of Conduct Committee. There is currently a debate as to whether the decision of the Committee should be final (considering that the chairperson of the Committee is a person qualified to be appointed a Judge of the High Court this might be a reasonable proposition) or whether appeal should be made to the Magistracy or High Court on points of fact and/or law. Section 110(6) of the Election Act provides that, subject to the provisions of the Criminal Procedure Code, the IEBC can designate any of its officers to conduct any prosecution for an offence under the Election Act and the Electoral Code of Conduct with this having, for that purpose, all the powers conferred upon a public prosecutor by the Constitution and the Criminal Procedure Code. Under section 7 of the Electoral Code of Conduct, where in the opinion of the IEBC, there has been an infringement of the Code by any relevant party, the IEBC may issue a formal warning; a fine as determined by the Commission; and/or issue an order, for a specific period or permanently, prohibiting the political party or candidate from, inter alia, utilising public media; holding particular public meetings, demonstrations or marches; entering any specified electoral area for purposes of canvassing for membership, or for any other electoral purpose; and/ or erecting placards or banners, or from publishing and distributing campaign literature. Failure to comply with the order of the Commission in this regard can result in, inter alia, the prohibition of the defaulting party from participating in ongoing and future elections or the cancellation of the right of such political party or candidate to participate in the next election. The Commission further may either of its own motion or in consequence of any report made to it, institute proceedings in the High Court in
case of any alleged infringement of the Code. The High Court may then make an order cancelling the right of such party to participate in the election concerned; and/or make an order disqualifying, in the case of a person who is a candidate, that person from being a candidate or deleting the name of that candidate from the list or lists of candidates concerned. Regarding such proceedings, section 11 of the Code requires that the High Court ensure that these proceedings are dealt with in priority to all other matters brought before it and that the decision of the court is given before the date of the election concerned. 3.3 Office of the Registrar of Political Parties
mentioned above are currently being drafted. It is expected that they will contain the relevant procedures and timelines relating to the functions of this office. Appeals from the decisions of the Registrar and his/her agents lie to the Political Parties Disputes Tribunal. 3.4 The Political Parties Dispute Tribunal Section 39 of the Act establishes the Political Parties Disputes Tribunal (PPDT) whose members are appointed by the Judicial Service Commission. Under Section 40, the jurisdiction of the Tribunal includes the mandate to resolve: disputes between members of a political party; disputes between a member of a political party and a political party; disputes between political parties; disputes between an independent candidate and a political party; disputes between coalition partners; and appeals from the decisions of the Registrar under the Act. According to Section 41(1), all such disputes must be determined within a period of three months. The decisions of the Tribunal are not final; Section 41(2) provides that aggrieved parties have the option of appeal to the High Court on points of law and further appeals lay to the Court of Appeal and the Supreme Court. The rules of evidence under the Evidence Act and the Civil Procedure Act are to apply to the tribunal with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities (Section 41(4)). The Act however requires that, where matters are internal to a political party, that the Tribunals jurisdiction only crystallises once a party invoking the said jurisdiction could show that he/ she had exhausted all internal dispute resolution mechanisms.
Section 33 establishes the Office of the Registrar of Political Parties whose functions, under section 34, include, inter alia, the registration, regulation, monitoring, investigation and supervision of political parties to ensure compliance with the Political Parties Act; and the investigation of complaints received under the Political Parties Act. Under Section 49, the Registrar is further mandated to make regulations generally for the better carrying out of provisions of the Political Parties Act and specifically regarding the manner of registration of political parties; regulating the activities of political parties; prescribing the forms, which may be used for carrying out the provisions of the Political Parties Act; regarding the audited accounts and financial accounts relating to the assets and liabilities, income and expenditure of political parties; and requiring the submission, to the Registrar ,of annual or other periodical returns relating to the constitution, objects and membership of political parties. The Registrar therefore plays a significant role in the monitoring and supervision of the operations of 3.5 Internal Political Party Mechpolitical parties in Kenya. The reg- anisms ulations governing the discharge of the powers of the Registrar Pursuant to Section 9 of the Po-
25
litical Parties Act, the Second Schedule thereto contains the requirements for the contents of the Constitution of Rules of a political party without which a political party cannot be registered. Section 23 of the Schedule provides that all parties must outline the internal political party dispute resolution mechanism. There are no express provisions as to what the content of the internal mechanism must be; however, there are provisions in Art. 91 and 92 of the Constitution as well as in the Election Act which suggest that it must meet the a standard that, inter alia, abides by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respects the right of all persons to participate in the political process, including minorities and marginalised groups; respects and promotes human rights and fundamental freedoms, and gender equality and equity; and promotes the objects and principles of the Constitution and the rule of law. Indeed, this role is buttressed by the Electoral Code of conduct that, under section 6, requires, inter alia, all political parties to take reasonable steps to discipline and restrain their party officebearers, employees, candidates, members and persons who support the political party in regard to contravention of the Code or electoral law. 4. Pre-Election EDR: Between Judicial and Administrative Mechanisms With the 2013 General Election fast approaching, there remain significant challenges in regard to the constructive rationalisation of the relationships between these five institutional actors. The importance of comprehensive regulations for the Office of the Registrar of Political Parties, Rules of Procedure of the IEBC and PPDT, as well as regulations governing the content and operation of the internal dispute mech-
anisms of political parties cannot be gainsaid. The same must be drafted urgently, harmonised between the related mechanisms, with the various pieces of electoral legislation and with the jurisprudence and procedure of the courts; and consequently validated by all parties. In considering the relationship between the Judiciary and the administrative mechanisms in pre-election EDR, an analysis of precedent and the jurisprudence emerging from the courts is enlightening. Over the years, the question as to whether the Election Court can hear and determine a disputes arising from nominations of a candidate by political parties has seen conflicting decisions being issued from the courts. In Wamboka vs Kibunguchi Election Petition No 26 of 2003[1]the court held that nomination of a candidate was a matter that could be determined by the election Court, as it is part of the election process. However, in Gowe vs Electoral Commission Civil Case No 6036 of 1992[2] the Court held that there was no provision in the repealed National Assembly and Presidential Elections Act (Cap. 7) that allowed the High Court to entertain a dispute regarding the nomination of a candidate for a parliamentary election. With the promulgation of the new Constitution and the wide rights and standing it affords petitioners and complainants in regard to breaches of fundamental rights and freedoms contained therein, the question has emerged as to what challenges the courts can entertain, the remedies that can be offered and the relationship between the courts and administrative EDR structures. In the recent case of Paul Waweru Mwangi v. IIEC & Others Petition No. 71 of 2011 (Unreported), the High Court found that the Returning Officer had acted contrary to Regulation 15 and 18 of the Presidential and National Assembly Regulations made under Section 34 of the now re-
pealed National Assembly and Presidential Elections Act, Cap 7. Citing, inter alia, Art. 23 and 47 of the Constitution 2010, the court granted an order of injunction restraining the Interim Independent Electoral Commission from holding, directing, conducting or otherwise supervising the parliamentary by-election for Kamukunji Constituency until the petition by the complainant had been heard and determined. On appeal, in Interim Independent Electoral Commission and Another v. Paul Waweru Mwangi CA Civil Application No. 130 of 2011 the Court of Appeal discharged the injunction issued by the High Court restraining the then Commission from conducting of the Kamkunji by-election on Account of allegations of breach of fundamental rights and freedom during the nomination stage. In the High Court ruling, Justice Musinga relied on the case of Richard Chirchir v. Henry Cheboiwo & Another Civil Application No. NAI 253 of 1992 where the Court of Appeal, in ruling refusing to stay an injunction granted by the High Court, held,
The law of Kenya contemplates that a Kenyan seeking nomination as a candidate in a parliamentary election shall be entitled to unimpeded access to the returning office of the constituency of his choice. If this application is refused, the only possible prejudice Mr Kamure will suffer, if you can call it prejudice, is that his purported election as a member of Parliament for Baringo North Constituency will be slightly delayed but he can take some consolation from the fact that such a temporary setback is not too heavy a price to pay for democracy. Soon after the general election
26
the Speaker will issue the necessary writ for an election to be held according to the law. On the other hand, if we allow this application, we shall be giving a seal of approval to unbridled use of violence and strong arm tactic in the election process. That cannot be the function of a court of law.
That Cheboiwo case was itself discredited in the case of Wanyoike v. Electoral Commission of Kenya (No. 2) (2008) 2 KLR (EP) 43 in which the Court of Appeal stated, We do not know whether in granting an injunction in the Cheboiwo case, the attention of the court was drawn to the case of The Speaker of The National Assembly v The Hon James Njenga Karume, Civil Application No 92 of 1992 (unreported) which had been decided by the Court on the 29th May, 1992, barely some six or so months back. Both Kwach & Cockar JJ A who sat in Cheboiwos case had sat on Karumes case and there the Court had delivered itself as follows in granting to the Speaker an order of stay: In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions. Karumes case was decided and December when Cheboiwos case came up for decision which would warrant the Court making such a drastic turn-about. We think the procedure for addressing grievances arising from elections is through an election petition and that is
exactly what the Court was saying in Karumes case. That view had full support in authority, both local and foreign. In Raphael Samson Kithika Mbondo v. Luka Daudi Galgalo and Paul Joseph Ngei, Election Petition No 16 of 1974 (unreported) it was alleged that Mr Ngei and his supporters had in effect physically prevented Mr Mbondo from presenting his nomination papers. Mr Mbondo, however, did not go to the High Court by way of a plaint to. to compel the Returning Officer to accept his papers. He waited until the results were published and then he filed an election petition. The election of Mr Ngei was nullified and Mr Ngei was found guilty of an election offence. That case was also followed in the case of Kipkalya Kiprono Kones v. Republic & Another exparte Kimani Wanyoike & 4 Others, (2008) 3 KLR (EP) 291, where the Court of Appeal re-affirmed this position and stated,
may well end up having no members in the National Assembly as there undoubtedly will be interventions by the courts in the process of either electing or nominating members to the National Assembly.
The reversal of Justice Musingas ruling is important in a number of respects. First, it suggests that despite the contravention of express electoral legislation by the election management body and /or its agents, it would set a dangerous and destabilising precedent were parties able to approach the court for injunctions in order to stay an entire electoral process. Secondly, it places increased focus on the resolution of such disputes as they occur within the relevant administrative EDR mechanism rather than through approaching the courts for remedies such as injunctions. Should the party still feel aggrieved by the administrative action of the electoral management body, the above precedent suggests that the party will have to wait and bring the complaint by way of an election petition (therefore after the election and announcement of the results) rather than apply to the courts for stay of the entire election. Regarding administrative EDR mechanisms, the Constitutional and Human Rights Division of the High Court has recently encouraged litigants to pursue internal party dispute machinery and indeed declined to entertain disputes arising from internal party activities in the first instance. Political Parties, the court has held, ought to activate the internal machinery for dispute resolution and such mechanisms exhausted before they can be escalated to the Political Parties Disputes Tribunal. Section 40(2) of the Political Parties Act, 2011 which Act confers jurisdiction on
No doubt, mistakes even grievous mistakes, will be made in the process of elections or nominations but such mistakes cannot be used to stop the electoral or nomination process. In filing either their plaint or the judicial review process now under consideration, the clear intention of the parties aggrieved by the action of the Commission was to stop the Commission from proceeding with the process of nominating the Appellant. If the Commission can be stopped from completing the process of nomination, it can also be stopped from completing the process of elections. That cannot be allowed because if it were to be allowed, the country
27
the Political Parties Disputes Tribunal provides as follows: Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a) (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms. A question would then arise, what happens if a party fails to activate the existent party mechanisms of EDR? In a ruling dated 14th December, 2011, Stephen Asura Ochieng & 2 others v. Orange Democratic Movement Party & 2 others, Const. Petition No. 288 of 2011, as per, Ngugi LJ at Para. 11:
settled through the internal party 2012) alleging irregularities in the machinery. conduct of party nominations. In declining to grant conservatory Similarly, in a ruling dated Janu- orders to stop the nomination of ary 2012, the court in George candidates, the learned Judge Okode & 5 others v. The Orange noted that Article 88(4)(e) and Democratic Movement & Anoth- section 74 of the Elections Act er, Const. Petition No. 294 of 2011 vested the IEBC the responsibility the Hon. Justice Majanja held of settling disputes relating to or the view: arising from nominations save for election petitions. In determining the matters, the court addressed itself to the need for a balance to be struck between the Bill of Rights which inter alia protects the political rights which are enforceable under Articles 22 and 258 on the one hand and the recognition that political rights and the electoral process are special and needed specific forum for determination. The Hon. Justice Majanja opined, In my view, this insistence of a specific procedure is not inconsistent with the Bill of Rights; it is recognition that election disputes require special rules for determination. These rules are justifiable in a democratic society and the Constitution itself contemplates that the electoral process is a special process. The courts have established the principle that where the Constitution and/or statute establish a dispute resolution procedure, then that procedure must be followed. (See further The Speaker of the National Assembly v the Hon. James Njenga Karume, Civil Application No. 92 of 1992, Kipkalya Kiprono Kones v. Republic & Another ex-parte Kimani Wanyoike & 4 others, (2008) 3 KLR (EP) 291, Wanyoike v Electoral Commission of Kenya (No. 2)(2008) 2 KLR (EP) 43). In Constitutional Petition No. 356 of 2012 (see above), the court stated thus:
I am aware that the Orange Democratic Movement has a Constitution that provides for dispute resolution. Such mechanisms are recognised and are indeed encouraged by the ConstitutionI would The question that arises is interpret section 40(2) of this: can it be properly arthe Political Parties Act to gued that a dispute cannot permit an aggrieved membe referred for determinaber of the party to bring tion to the Political Partheir grievances before the ties Tribunal because the Tribunal where such party political party has failed has neglected or refused or refused to activate the to activate the political internal party dispute resoparty mechanism. Such lution mechanism, thus a reading of the statute leaving an aggrieved party is consistent with giving with no option but to turn efficiency to the political to the High Court for rerights enshrined under Ardress? I think not. To hold ticle 38 of the Constitution. otherwise would mean that parties could, by failing to resolve disputes internally, The court in both of these cases, frustrate the operations of gave orders to the party to actithe Tribunal and render it vate its dispute resolution mechanism within a seven days failure totally redundant. of which the petitioners were at
liberty to approach the Political Parties Disputes Tribunal. Most recently, the Constitutional Court has struck out three petitions (James Wambugu Gakunji & Another v. The National Alliance Party and 3 others, Constitutional Petition No. 359 of 2012, John Odhiambo Odira v. Orange Democratic Movement & Another, Const. Petition No. 357 of 2012 & Francis Gitau Parsimei v. The National Alliance Party & Another, Const. Petition No. 356 of
The issues in dispute between the petitioners and the respondents fall either under s. 40 (1) (a) or (1) (b). As members of the Orange Democratic Movement Party, the petitioners are entitled to participate in the elections of the party. If there is disagreement on who is a member and therefore entitled to vote in the grassroots elections or where the elections should be held, that is a matter that can be and ought to be
It is also my view that Article 88(4)(e) and section 74(1) of the Elections Act, 2011 provide for alternative modes of dispute resolution
28
specific to the nomination process. This court cannot entertain nomination disputes where such a process has not been invoked or where it has been demonstrated that the process has failed.
5. Conclusion The legal provisions relating to pre-election dispute management are primarily contained in the Constitution, the Elections Act, the Independent Electoral and boundaries Commission Act and the Political parties Act. The courts must take into account
all these provisions realising that elections are a process and that the important role of the courts in considering election petitions is significantly affected by the ability of both administrative and judicial mechanisms to deal with electoral disputes and offences in the pre-election period.
A graphic of the Elections petitons Law reports cd rom with tag of Kshs 5,000
Ks
hs
,0 .5
00
Milimani Commercial Courts, 4th Upper Hill Close, off Ngong Rd, P.O. Box 10443 - GPO 00100, Nairobi, Kenya Tel: (+254 020) 2712767, 2719231, 2627228, Mobile: 0718 799 464, 0736 863 309
29
THE RE-CONSTITUTED INDUSTRIAL COURT OF KENYA AND THE ROLE OF THE SOCIAL PARTNERS
A Discussion Paper on the occasion of the COTU [Kenya] Capacity Building Workshop for Executive Board Members and General-Secretaries Delivered at The Tom Mboya Labour College, Kisumu, 28th September 2012 By the Hon. Mr. Justice James Rika, Judge of the Industrial Court of Kenya
OUTLINE
nomic policies. Dialogue comes from the Greek word dialogos. Logos means the word, while 1. Industrial Court and Social dia means through. Professor Dialogue David Bohm of the University of London explains that dialogue 2. Reforms is a stream of meaning, flowing among and through us. It flows 3. Move into the Judiciary to the whole group, out of which will emerge a new understand4. E x p e c t a t i o n s a n d ing. Social dialogue must involve conclusion social partners and a facilitator. 1. INDUSTRIAL COURT OF KENYA This facilitation role is principally AND SOCIAL DIALOGUE played by the Industrial Court.
over the same issues. The demarcation disputes in the hotel Industry are endless. Social dialogue has not resolved and dissolved these differences. Among the social partners and their facilitative Institutions of Social Dialogue, it is important to appreciate the distinction between social dialogue and social debate. I did not know the difference until I was invited for this occasion, and was compelled to read some material by Daniel Yankelovich [1999] under the title The Magic of Dialogue. According to him, social dialogue and social debate are cousins who have important distinctive features.
he Industrial Court of Kenya is an Institution of Social Dialogue. Social Dialogue has been described by the International Labour Organization [ILO] to include all types of negotiation, consultation, exchange of information and collective bargaining. The Industrial Court plays an important role in facilitating social dialogue. The traditional players in social dialogue are the governments, employers and employees. These form the social partnership. They dialogue about issues of common interest, particularly issues that involve socio-eco-
The aim of social dialogue is to reach a new understanding and in doing so, form a totally new basis from which to think and act.
A properly functional process and institution of social dialogue should be able not only to solve In Social Dialogue, the participants assume problems, but to dissolve them. there are many valid, if One of the problems we have partial views and that encountered as participants together, a group can in social dialogue is the recurdevelop a better although rence of the same disputes. We still imperfect view than have negotiated and agreed on any one alone; in Social wage increments, and called off Debate, the participants strikes; some years later, agreeassume there is one true ments have been broken and and complete way of strikes called again. The Industrial looking at things, and Court is inundated with disputes
30
that must be discovered through the rational contest of ideas. S o c i a l D i a l o g u e i s collaborative: participants work together toward a common understanding by trying to appreciate new perspectives; Social Debate is combative: participants attempt to find the truth by searching for flows in the argument of others. Social Dialogue is about exploring common ground; Social Debate about winning your point. Social Dialogue is about listening to understand, fi n d m e a n i n g a n d agreement; Social Debate is about listening to find flaws and develop counter arguments. Social Dialogue focuses on revealing assumptions for re-evaluation; Social Debate defends assumptions as the truth. In Social Dialogue the parties re-examine all positions; Social Debate is about critiquing others positions. S o c i a l Dialogue encourages participants to admit that others thinking can improve ones own; Social Debate encourages the participants to defend their own views against those of others S o c i a l D i a l o g u e i s characterized by decision through consensus; Social Debate ends in a decision through voting , or by an imposed decision of a Court. Yankelovich argues that Social Debate has its place such as in an academic journal or an adversarial court system. However, because it is based on conflict, it has little potential for creating new insights. It strains the relationship between the participants. Social Dialogue is a more accepting process that values
synthesis over analyses, and as- N.H.I.F on health insurance consumes that many heads are bet- tributions; and the case filed by ter than one. the Law Society of Kenya on the Constitutionality of certain secSocial Partners are supposed tions of the Work Injury Benefits to engage in Social Dialogue, Act No. 13 of 2007, demonstrate not Social Debate. The Industrial that there is need to involve othCourt was intended, unlike the er relevant actors. By doing so, Mainstream Judiciary, to facili- the social partners gain wider tate Social Dialogue and not So- perspective of diverse views and cial Debate. build wider consensus. They also promote and broaden support Society is changing. The effects for Labour Reforms. of globalization have been felt everywhere. This has brought Social Dialogue has been biparabout the issues of sustainable tite, involving the Employers and development. It has widened Trade Unions. It has also been the scope of social dialogue. tripartite, drawing in the GovLabour laws and policies have ernment. This has been the area become a concern of a wider of the Industrial Courts facilitaconstituency than the tradition- tion. Changes in the world, and al social partners. The parties to particularly in the world of work, social dialogue have changed, have introduced another angle and the Institutions that facilitate to social dialogue; there is now this activity have changed. a tripartite-plus form of dialogue. Tripartite-plus calls on us the traNon-Governmental Organiza- ditional social partners to extend tions have for instance, played the dialogue to other social aca major role all over the world tors. This reality has forced the in discovering and denouncing changes on the Industrial Court; child labour abuses. They have it is no longer feasible to isolate been at the forefront of lobby- ourselves and facilitate social ing and advocating policy re- dialogue on the single issue of laforms. They have played a big bour. It has become imperative role in implementation of the anchor the Court in the ConstituILO programmes on elimination tion, and to elevate the subjects of child labour. The ILO tripartite of social dialogue to Constitupolicy making structure did not tional rights and freedoms. The guarantee these NGOs formal Court and the expanded Social rights to influence policy; the ILO Partners, now have the chalaccommodated them, by wid- lenge and the opportunity of fulening its social dialogue. NGOs ly moving from Social Debate to have been accorded regional Social Dialogue under the cover or general status at the ILO. The of the Constitution, and in doing UN Global Compact, an initiative so, resolve and dissolve disputes of the UN Secretary General and that arise in the society. leading Multi- National Enterprises, has adopted holistic ap- 2. REFORMS proach; labour, human rights, environmental and anti-corruption The Trade Union Ordinance of themes form a ten point agenda 1962 provided for settlement of for building the social legitimacy trade disputes through conciliaof businesses. tion and if necessary, an arbitration panel or board of inquiry. The Here in Kenya, it has become Tripartite Agreement concluded apparent that social dialogue by the Government, Employers must involve a wider constituen- and Employees on 10th Februcy than the traditional tripartite ary 1964 established an Industrial players- the Government, Em- Court to which all disputes unreployers and Employees. The case solved by voluntary negotiating pursued by COTU[K] against the machinery would be referred for
31
arbitration. The Industrial Court was founded on tripartism expressed not in the law or the constitution of the country, but by a social document concluded by the social partners. The Court entered into the law books later on in 1964, with the enactment of the Trade Disputes Act. It was granted recognition under this law. In 1965 the Act was amended further to make the Industrial Court a standing body. More reforms were carried out in 1971. The Court was presided over by one Judge, who was initially referred to as the President, and then Chairman. He was assisted in his work by members who were appointed by the Minister of Labour with the concurrence of COTU [K] and the F.K.E. At some point the Minister of Finance was also to be consulted in the appointment. It was recognized early that there is need for a broad involvement of the social partners in designing the Industrial Court. Judges could appoint two assessors, one from COTU [K] and the other from F.K.E if they deemed them necessary in the proceedings. The panel of assessors was to be created by COTU [K] and the F.K.E. The people were intended to be represented in the Industrial Court not only through the Institution of members, but also that of assessors. In 2001 the Attorney General appointed the Cockar Task Force to rewrite all the labour laws in Kenya, within a project of the International Labour Organization. The effort resulted in a several new laws, among them the Labour Institutions Act Number 12 of 2007. The Industrial Court was re-established under section 11 and conferred a far-reaching and exclusive jurisdiction in all labour matters. The President was granted the discretion to appoint as many Judges as he thought fit, upon consultation with the Judicial Service Commission. Members were retained, and their numbers left to the discre-
tion of the Minister, acting on the advice of the National Labour Board. A Judge retained the discretion to sit with two assessors, one from the employers and the other from the employees, in a list of assessors submitted by parties to the dispute. The manner of appointing members and assessors has kept changing. In practice the appointment of members has not always been preceded by the necessary participation of the social partners. The provisions on assessors have never been put to use. Proceedings of the Industrial Court will show that we have never used assessors in our dispute resolution. The Court was elevated to the same level with the High Court, but was still hampered by its lack of recognition under the Constitution; the High Court felt the Industrial Court remained a subordinate Court, under its supervisory jurisdiction. The Cockar reforms did not achieve the objective of sheltering the Industrial Court as an Institution that could render final and binding decisions. The Social Partners therefore agitated for constitutional inclusion. The country adopted a new Constitution in August 2010. Article 162 [2] [a] provides that Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to employment and labour relations. Under this framework, Parliament enacted the Industrial Court Act Number 20 of 2011 which established the present Court under section 4. The number of the judges to sit in the new Court has again been left to the President and the JSC. Members have been discarded, with the constitution of the Court for purposes of its proceedings restricted to a single Judge. Assessors, like members have been left out of the Courts makeup. My own view is that we did not give adequate thought to the phasing out of members and assessors from the Industrial Court. In the developed European De-
mocracies such as Belgium, Germany, Netherlands and England, the Industrial or Labour Courts have lawyers and non-lawyers constituting their Courts. Finland has a total of 16 judges, 4 with legal training, and 12 with labour market background. The nonlawyers are commonly referred to as lay judges, to distinguish them from the professional judges. They have been in use since the early years of the last century and are found suitable to sit with the professional judges because they provide professional knowledge and experience; they strengthen the confidence of the Court; they enable citizens to supervise the functioning of the judicial system; they contribute to the acceptability of the decisions of the Court; and are argued to be cheaper than lawyers. These were the underlying factors why it was necessary to have members and assessors from the inception of the Court. In the present Judicial Reforms, the case has been argued for inclusion of the people in judicial determinations. Hon. Justice Edward Muriithi of the High Court Mombasa has argued strongly, that the involvement of the people in judicial functions is vital, and could lead to Courts without legally trained judges in 100 years. We would like the social partners to be engaged more, and because you have the background in running a true peoples Court, should in fact rid the Industrial Court of lawyers in less than 50 years. The Industrial Court of Ireland functions without a trained lawyer from among its judges. The Industrial Court Act has encountered several problems, mostly on the subject of transition. The provisions relating to the tenure of serving Judges have resulted in litigation before the High Court and we cannot discuss that here, in deference to the principle of sub-judice. There were conflicting signals on the position of the serving Court members, with the Act expressly stating the
32
Court was properly constituted for the purpose of its proceedings by a single Judge, while preserving the terms of service of all Court employees in other provisions. The Attorney General proposed amendments to the Act under the Statute Law [Miscellaneous Amendments] Bill 2012. The proposals were in the nature of re-writing an entire Act of Parliament under the guise amendments. Among the proposals was to change the name of the Court, from the Industrial Court to Employment and Labour Relations Court. The argument was that this would be in agreement with the wording of Article 162 [2] [a] of the Constitution. The Article however does not compel Parliament to create a Court called Employment and Labour Relations Court; it merely says Parliament shall create Courts to hear and determine disputes in employment and labour relations. Others argued that they needed to break away from the old Industrial Court, but what value addition does that give to the Kenyans, given the rich heritage of the Industrial Court? South Africans have the Labour Court and Nigerians have the Industrial Court. It is not important to rebrand; the important reform is in entrenchment of the Industrial Court under the Constitution. COTU [K] made very erudite and point by point response to the proposed amendments. The new Judges retreated to Mombasa last week and discussed the proposed amendments, and I am glad to note that a majority of us agreed with COTU [K] on most proposals, including on the name of the Court.
work. We cannot spend all our resources in hotels discussing new law and rules. There must be a period of quiet implementation of the laws. We cannot keep naming and renaming the Industrial Court and changing its constitutive and procedural laws. 3. ENTRY INTO THE JUDICIARY The Industrial Court has now been integrated with the traditional judiciary. It remains a specialized Court, but removed from the Ministry of Labour to the Judiciary. Industrial Courts that function outside the traditional judiciary are sometimes misunderstood and characterized as bastard judiciaries. No one in a democratic country would wish to see the growth of a runaway judiciary badly in need of restraint. I do not think that the old Industrial Court had attained this status. Reform and entry into the mainstream judiciary was driven not by any complaints that we were not delivering under the old order. The Industrial Court has always exceeded its performance targets in the Ministry of Labour for as long as I can remember.
Specialization in labour dispute resolution is premised on the theme of enabling the impoverished working class, to access industrial justice. It was recognized long ago that this class would have difficulties in accessing industrial justice. The traditional judiciary, into which we have been pushed, was viewed as being systematically opposed to workers interests in unionization and collective action. Traditional judiciaries, and this is not restricted to Kenya, were deemed to be Law is not static and changes biased in favour of the employwill always be made to our laws. ers, or at the very least being unThere is need however to be cau- aware of the plight of workers. tious not to make laws in a hurry and then spend the rest of our Although we have moved into lives tinkering with those laws. The the domain of the traditional Industrial Court Act needs mini- judiciary, the Constitution has mal changes. The Social Partners retained our specialization. Achave been through many com- cess to justice is guaranteed. Arprehensive reforms from 2001, ticle 48 makes it the duty of the and need to settle down and State to ensure access to justice
for all including employees and employers, and if any fee is required to be paid, it shall be reasonable and not impede access to justice. Article 22 grants every person the right to institute court proceedings in enforcement of a bill of rights, and provides for individual as well as representative proceedings. Article 258 extends similar access to similar persons with regard to enforcement of the constitution. Under Article 22, the Chief Justice is required to make rules to govern proceedings brought under Article 22 and in doing so, shall be guided by the following principle: formalities relating to proceedings are kept at a minimum; if necessary, proceedings to be on the basis of informal documentation; court not to be unreasonably restricted by procedural technicalities; and the Court to allow the participation of friends of the Court. These guidelines reflect the type of rules that have governed the Industrial Court Procedures from the very beginning. They in a special way are the product of our social dialogue. It is important to know that the Industrial Court can now deal with the interpretation of the Constitution in so far as such interpretation, relates to matters within the jurisdiction of the Industrial Court. This mandate has been confirmed recently by the High Court Constitutional Bench in a case involving COTU [K] and the U.S.I.U before Hon. Justice Majanja. We can already see the benefits of our re-establishment under the Constitution. These gains suggest that the apprehension that employees will no longer have easy access to industrial justice may be more apparent than real. We as a Court have a clear mandate. The new judicial architecture, creating a specialized Court for employment and labour relations, favours unity of labour law. This will avoid fragmentation of labour law, and avoid the wasteful debate about which Court is competent about which question. It has been pointed out that the
33
jurisprudence of the traditional judiciary on employment matters has not always been in agreement with that of our system. Until the passing of the Employment Act 2007, the mainstream judiciary did not recognize the law of unfair termination. There are many other areas such our interpretation on legal personality; contractual capacity; privity of contract; casual labour; representation of employees by trade unions; the position of the industrial relations charter; and the agency fees. The Industrial Court in its current composition is more attuned to developing consistent doctrines of social law. In applying a provision of the bill of rights, Article 20[1] [a] binds the Court to develop the law to extent that it does not give effect to a right or fundamental freedom. The social partners are way ahead in this area, and the decisions of the Industrial Court have always defied conventional contractual positions and rigid legal posturing, in determining labour disputes. We have not been unduly tied down to conservative legal principles, and this departure has greatly influenced the characterization of the Industrial Court of Kenya as a bastard judiciary. 4. EXPECTATIONS AND CONCLUSION As I mentioned earlier, we face challenges as well as opportunities. In the short term, we are not likely to achieve a consistent regime of social law. We are many Judges with different legal backgrounds. Early decisions may be affected by the influences from our areas of legal practice. There is a general Court of Appeal which may not always appreciate the justification in the Industrial Courts departure from certain legal principles. It would have been a good idea if the specialization given to the Industrial Court, had been carried up the hierarchy of Courts, through the creation of an Industrial Court of Appeal. Fragmentation labour law may be perpetuated by a
generalist Court of Appeal, particularly given that the majority of the Judges in those Courts have not looked favourably upon the jurisprudence developed by the Industrial Court over the past 40 years. In my view, the authors of the Constitution should have provided for an appellate Court to deal with employment and labour relations appeals. The number and intensity of trade disputes will go up. Employment and Labour Rights have been enshrined in the Constitution. Many employers and employees will converge at the Industrial Court fighting for space under the Constitution. The Registrar of trade unions will continue to face increased loads of registration disputes. These are what I see as the immediate challenges, as Kenyans rush for a piece of the constitutional dividend. Strikes are already on the rise. In the immediate future these social upheavals are likely to intensify as we learn that not all that is promised by the Constitution can be enjoyed immediately. The Industrial Court will be a busy litigation destination. The truth is that the Court will not have all the answers to all these chaos. Judges will issue orders restraining the chaos, but there will be no means to enforce such decisions. The Court may then be compelled to become a multi-door Court-house, sorting out which disputes it can handle; give executable decisions on; and, which disputes should be referred to the Alternative Disputes Resolution Mechanisms [ADR]. Parties will have realized that not all problems can suitably be resolved and dissolved at the Industrial Court. The social partners are again ahead in the adoption of the ADR mechanisms. We have a good infrastructure that has been developed by the social partners over the years. We started with the comment that the Trade Union Ordinance of 1962, recognized conciliation and ar-
bitration. The Trade Disputes Act developed ADR further, with trade disputes taken through informal consultations; report to the Minister; investigations; negotiations; conciliation; and consultations before Court intervention. Employers and employees have developed grievance procedures where disputes are resolved at the shop floor level. You have joint consultative councils. There are collective bargaining agreements that provide for conciliation and arbitration. The social partners have not fully engaged these mechanisms. Outside the statutory mechanisms administered by the Ministry of Labour, we have not seen the private institution of arbitration, as created in arbitration agreements contained in the CBAs, invoked in the resolution of labour disputes. The Labour Relations Act needs to be amended to reflect the shift into the constitutional era. Section 66 [1] [c] for instance refers to the Conciliation and Mediation Commission. We do not have such a Commission in Kenya. The Social Partners may find it useful to establish such a Commission. The ADR mechanisms are now enshrined under the Constitution under Article 159. There is no reason why the social partners should inundate the Industrial Court with all manner of trade disputes. Invoke the voluntary dispute resolution mechanisms more. COTU [K] and the F.K.E should take advantage of Article 159 and develop the institution of ADR. We should not be having so many disputes between trade unions and among trade union leaders, if COTU [K] exerted its considerable influence and intervened through facilitation of ADR mechanisms, to deal with these disputes. You may even consider creating a private COTU [K] Court of Arbitration. There is a mistaken notion in this country that creation of Courts, private and public, is a reserve of Parliament. You can create a COTU [K] or F.K.E private Court of Arbitra-
34
tion and source your Judges privately. The Industrial Court would assist in the enforcement of your private Court decisions. What the Constitution is asking us, is to liberalize the administration of justice. Dispute resolution must be spread out to the private sector. We need to see more lay judges in different sectors. What the Industrial Court and other public Courts should do is assist the proceedings of such mechanisms. Not all disputes call for a legal solution. Matters that lead into strikes have proven in most jurisdictions, not to lend themselves to judicial settlement. Frequently Judges are asked to give injunctions, to provide some parties with more ammunition in pursuit of their positions at the collective bargaining forum. When the strike goes ahead, Courts feel their authority has been trampled under. It is difficult to see how strike action can be stopped by a judicial edict. There is no major strike which has ever been broken by judicial edict. Recent strike actions have not been resolved at the Courts. Many social and economic rights under Article 43 have been made actionable, but it is doubtful that a judicial pronouncement on such rights will become executable. Ultimately, the social partners and the Courts may come to view the Court Judgments in a broader perspective within the ADR Mechanisms. The International Court of Justice frequently makes reasoned Judgments which are expressed to be final and binding; the parties however go on to negotiate after the Judgment and frequently arrive at a better outcome. Court determinations do not always resolve and dissolve disputes. Administratively, the Industrial Court should have divisions: the ADR Unit; Employment Unit; Trade Union Unit; and the Social and Economic Unit. This is of course the prerogative of the Chief Justice, but our leader listens to all opinions. The ADR Unit would serve as the multi-door Court house where sifting, sorting
out and forwarding of disputes to stones of middle class security all the most appropriate ADR Mech- bear the union label, anisms would be done. Another good American PresiWe must expect close interac- dent John F. Kennedy said way tion between the Judiciary and back in 1963 that, the Ministry of Labour. There have been problems at the beginning, our labour unions are not narbut eventually we shall come to row, self-seeking groups. They realize that the Constitution has have raised wages, shortened an important role for all of us. hours and provided supplemenLabour Officers shall continue to tal benefits. Through collective be involved in the voluntary res- bargaining and grievance proolution of labour disputes. There cedures, they have brought jusshould be recruited more labour tice and democracy to the shop officers, and adequate training floor in ADR mechanisms be availed to them. The Economic Planning It cannot be doubted that the Division will continue to play a Kenyan Social Partners have leading role in the settlement of made similar strides. Yours are economic disputes. Perhaps now more remarkable strides, considmore than ever, we need to have ering the political culture under these economists closer to the which you have influenced the Industrial Court. The Productivity history of this country. Centre needs to make its work better known to the social part- We must continue to engage in ners and give its input in our over- social dialogue. As Justice Miall understanding of labour pro- chael Kirby of the High Court of ductivity and wage increment. Australia, and a longtime Judge The Registrar of trade unions will of the Industrial Court in that have greater responsibilities un- Country once said, The resort der the Constitution. More trade to ordinary courts by or against union registration and electoral workers or trade unions has rarely disputes will be brought before proved useful in the urgent dythe Industrial Court. namics of industrial relations. A firefighter is sometimes needI must conclude by paying hom- ed. The ordinary Courts are not age to the social partners for their equipped to fulfill that role. The achievements over the years. challenges ahead will be differYou have set the standards in ent and global. The workplace plenty of the reforms that are go- has changed forever. ing on today. You greatly influenced labour laws through your Ultimately, we are now a Court active participation in legislation; that must prepare to meet the filing and arguing of labour dis- challenges of a changed workputes; and the institution of so- place and a changed globe. cial dialogue. Many good laws The firefighting role will remain, in labour have flowed from the but we must spread out the fireprinciples you authored in the fighting equipment to our social CBAs and in the Industrial Rela- partners. That ladies and gentletions Charter. President Barack men, is my understanding on Obama said of the American La- the legal dimensions of the new bour Movement, Court; the role of the social partners; and the expectations of evit was the labour movement eryone. Thank you for listening to that helped secure so much of me. what we take for granted today. The 40 hour week, the minimum The Author wage, family leave, health insurance, social security, medicare, James Rika [LL.B University of Naiand retirement plans. The corner- robi] [LL.M specializing in Interna-
35
tional Dispute Resolution, University of London], acting Principal Judge Industrial Court of Kenya. Sources 1. The Constitution of Kenya; 2. The Trade Unions Ordinance of 1962; 3. The Trade Disputes Act Cap 234 the Laws of Kenya; 4. The Labour Institutions Act No. 12 of 2007; 5. The Labour Relations Act No. 14 of 2007; 6. Founding of the Kenyan Industrial Court John L. Brown and J. Douglas Muir, Cambridge University Press, Journal of Modern African Studies, Volume 14, No. 4 [December 1976] pp
Andreas Rasche and 700 - 705; 7. Kenya Industrial Court: Origin, George Kell, Cambridge University Press, 2010; Development and Practice Justice Saeed Cockar, 12. Social Dialogue in the Longman Publishers, 1981; Process of Structural Adjustment and Private 8. Social Learning: Towards a Sector Peter Turnbull, Sustainable World ILO series 2005; Professor David Bohm Wagenigen Academic 13. Industrial Relations LawPublishers, The Netherlands Call off the Funeral 1999; Hon. Justice Michael Kirby, Judge of the High Court of 9. Lay Judges in Labour Australia [Deputy President Courts Isabelle Van Hiel, Australia Conciliation and University of Ghent, Arbitration Commission Social Law Department, 1975- 1983]; and, 2010; 10. The Magic of Dialogue: Transforming Conflict Into Cooperation Daniel Yankelovich, New York, Touchstone 1999; 11. The United Nations Global Compact: Achievements, Trends and Challenges 14. High Court [Nairobi] Petition Number 170 of 2012 United States International University [USIU] vs. the AttorneyGeneral, Eric Rading Outa & COTU [K], - Hon. Justice Majanja.
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
Martin Luther King, Jr.
36
GUIDELINES FOR JUDGEMENT DRAFTING

Paper presented during the Induction Training Course for newly-appointed Judges of the High Court of Kenya By Mr. Justice Lee G. Muthoga Judge, United Nations Mechanism for International Criminal Tribunals, Nairobi, September 19, 2012
Introduction
t is important to note at the outset that a Judge does not have to wait until all the evidence in a case has been had before he/ she can start drafting the judgement. The process of drafting a judgement can be long and tedious and in order to make it less so, it is often necessary to start early and to have a care plan of action. The purpose of this presentation is to discuss some general guidelines to be followed by Trial Court Judges in writing the judgements in cases before them. While each judge may have a particular way of handling cases, there are certain widely accepted practices that can greatly facilitate the judgment drafting process. The present contribution attempts to highlight some of them.
of the factual issues to be In other words, it may be stated resolved; as the statement of the conclusions that flow from the applicaConduct a thorough tion of the governing law to the iii. analysis of the evidence facts that the court/judge has presented in light of the found to be proved to the reapplicable law and; quired standard. P roperly articulate the It must therefore be expressed in iv. reasoning behind the final a language that communicates; judgement. accurately and clearly, those conclusions and the reasons supI. THE OUTLINE porting them. Where it is written, it must be written in a simple, clear and logical prose that persuades the immediate parties, (especially the losing party) to accept that it has been fairly heard and that the court/judge has come to a determination in a manner it/he was entitled to, even if he, (the losing party), is unable to agree with those conclusions. A good judgement, like any well-written document should have clearly identifiable parts arranged in a logical sequence. By breaking up the trial into several distinct parts and looking at the individual pieces rather than the whole, the Judge will be able, more easily, to draft each segment and thereafter to cobble the entire document seamlessly together. The judgement outline should start by addressing any preliminary or threshold issues that must be resolved before the case can proceed on its merits. These typically involve such issues as service and notice to the defendant, fair trial rights, and other
In order to draft a good judgeJudgement may be defined as ment and arrive at a reasonable the expression of the determi- conclusion, it is important to: nation that a trier/finder of facts has come to on the application i. Establish a logical and coherent judgement of the applicable/relevant law outline; upon the facts proven to the required standard. ii. Develop a good mastery
37
constitutional protections, etc. Depending on the facts of the case and the issues involved, a Judge may choose to adopt either a chronological order or a thematic approach. The outline should also be based on the allegations and charges contained in the indictment and in any pretrial briefs filed by the Prosecution. In a criminal trial it should reflect the issues, themes and events on which the Prosecution is seeking conviction. If necessary, it can also highlight issues raised by the Defence, such as an alibi or collateral issues. In a civil trial, it should be based on the issues agreed or found needing to be determined. The outline should also incorporate a segment for discussion of the applicable law. This is where the Judge shows that he or she is familiar with both the relevant statutory provisions and with the case law on legal precedents. Thereafter the Judge can proceed to apply the law to the facts of the case in order to arrive at a reasonable decision or judgement. Trial judges should support their findings with sufficient reasons to show that they are not arbitrary and capricious. One should, whenever possible, cite specificsfor example; evidence from documents, consistencies or inconsistencies in testimony, conformity to or deviation from normal human behaviour, awareness of motives for telling the truth or for concealing it etc. In other words, judges can and should reveal exactly the sort of thought processes that they followed in reaching a verdict. In many courts it may even be possible to establish a template for the judgement drafting outline that can be applied in most, if not all, cases. The Judge will then be able simply to plug in the details of the case as appropriate. For instance, a template with the following points can be
used in most cases:
Statutory Law Case Law SAMPLE JUDGEMENT OUTLINE In- 10. A Statement of the Law troduction on Issue C Statutory Law 1. Preliminary Issues Case Law 2. Summary of Prosecution/ Plaintiff s Case Deliberations 11. Applying the Law to the 3. Summary of Defence/ Facts Defendant's Case These facts [In issue A, B or C]... 4. Issues to be determined Evidence and Factual W h e n v i e w e d i n t h e Findings context of this section of the Constitution/ Law/ 5. Prosecution/Plaintif f s Regulation/ Contract/ Allegation on Issue A Precedent/ Principle of Prosecution evidence in equity [choose one]... support of the allegation Logically lead to this Defence evidence on the conclusion [judgement] allegation Judgement and Sentence (Criminal) The Judge's evaluation of the evidence 12.Finding of Guilt(or Acquittal) 6. Prosecution/Plaintiff s Allegation on Issue B 13. Aggravating or Mitigating Circumstances Prosecution/Plaintif f s evidence in support of 14. Sentence the allegation 15. Order, Decision/ Findings Defence evidence on the (Civil) allegation II. Factual Allegations The Judge's evaluation of the evidence The task of drafting a judgement is not as easy as it sounds. 7. Prosecution/Plaintiff s It is not enough simply to copyAllegation on Issue C andpaste the statement or tes Prosecution evidence in timony of a witness. The Judge support of the allegation must analyse the evidence, determine what is and what is not Defence evidence on the important in the context of the allegation case, make sense out of incoherent submissions, distil the salient The Judge's evaluation of points, summarise the relevant the evidence issues, and present all of it in a manner that is easily understood Applicable Law by a broad audience. 8. A Statement of the Law on Issue A While hearing the evidence, the Statutory Law Judge should take notes and, where available, make annota Case Law tions on the verbatim transcripts of the proceedings. Whenever 9. A Statement of the Law possible the Judge should also on Issue B prepare a brief summary of each
38
witness's testimony immediately Thereafter an identical after it is concluded. These will exercise will need to be later serve as an aide-memoir, conducted in respect of particularly in lengthy trials or in the Defence as well. In a trials involving very many witcivil case an adaptation nesses. of this analysis based on the pleadings filed by the Once the presentation of eviparties is suggested. dence is over, the judge should proceed to draft the factual sec- In order for a judgement to intions. There should be a sepa- spire confidence and to earn rate segment for each factual the respect of both parties, the allegation in the indictment/ Judge must display a full mastery pleadings or, in criminal cases, of the facts at issue in the case. It for each crime in which the De- is therefore important to properly fendant is directly implicated. For cite the pages of the transcripts example, if the trial involves mul- or the parties' briefs since the fitiple instances of theft, assault nal judgement must be supportor murder, each one should be ed by the record. handled separately, preferably in chronological order. If each III. Legal Conclusions one of these is done properly, in the end the Judge will have a A good judgement must also revery easy task stringing them to- flect the Judge's familiarity with gether. the current state of the law. In a Common law jurisdiction, such as In civil cases the facts in support ours, this means the judgement of every claim made should be should demonstrate the Judge's separately analysed and listed. knowledge of both the applicaIn a criminal case, a suggested ble statutory provisions and the approach is to first analyse the relevant case law or legal Prosecution's submissions. This in- precedents. volves: Depending on the facts of the Picking out the relevant case at bar, it may be necespassages of the sary, for instance, to explore the indictment/charge relevant articles of the national constitution as well as the provi C o m b i n g t h r o u g h sions of the enabling statute from the written submissions which the Prosecution derives contained in the pre-trial the authority to pursue the Debrief and final trial brief, fendant for an alleged crime. R e v i e w i n g t h e o r a l submissions made during closing arguments, Examining all Prosecution exhibits, Analysing the transcripts of the testimonies of all the Prosecution witnesses testifying to each charge, Including their testimony on cross-examination, And any prior (inconsistent) statements they may have made. Furthermore, if this is an issue that has been previously litigated, it might be worthwhile to examine and analyse the manner in which the highest court in the jurisdiction settled it previously. It is unnecessary for a trial Judge to examine a case as if it were in a vacuum and risk having the judgement overturned by a higher court for failure to follow stare decisi.
of the alleged crimes. Thus, if the Defendant is charged with murder, it is no use having a lengthy discussion on the legal definition of some other crime. It is desirable for the Judge to anticipate complicated legal issues in advance and to research them thoroughly before embarking on the drafting of the legal conclusions. As noted earlier, sometimes the resolution of preliminary legal questions such as notice issues, fair trial arguments, or the alleged violation of constitutional rights, statutory limitations and compliance might make it unnecessary to consider the case on its merits. Therefore, it is of paramount importance that the legal conclusions be properly researched. IV. Deliberations After studying the facts and analysing the law, the Judge must proceed to correlate them to each other in a logical and coherent manner. The Judge must take all the relevant factors into consideration while omitting the tangential or extraneous ones. He must consider and decide all the credibility issues that arise and come to what can or cannot be believed and why. The Judge must ask himself what would be the most reasonable conclusion to arrive at after viewing the facts of the case in light of the applicable law. In a nutshell, the Judge must decide if the facts of the case, when viewed in the context of the applicable section of the Constitution, law, regulation, contract, precedent, or principle of equity, would lead to the judgement he is about to pronounce.
It is often said that a well-written judgement is one that is likely to meet the approval of the losing Such analysis would lay the prop- party. er foundation for the Judge's findings in the case at bar. However, Crafting the Judgement this part of the discussion should be narrowly tailored to the scope And now comes the difficult part.
39
the use of legal jargon Putting it together in a clear, logiwhenever possible. cal, readable and organised sequence. This will frequently begin with the writing of an introduc- 3. Avoid block quotations. It is not good practice tion. to quote large chunks of text from books or other An effective introduction projudgements. Paraphrase vides two things: a synopsis of the whenever you can. This facts and a brief statement of enables the reader to the issues. appreciate your mastery of the concept described. The introduction should provide Where of course, the use of the necessary context for underwords in a text is in dispute standing the analysis that follows. or where the language of There is no need of cluttering the the contract is in dispute, opening paragraph with more insuch quotations are formation than the reader needs inevitable. at this point. Although you, judges, are not obliged to make your writing interesting, doing so does have the effect of helping the reader to pay attention to the argument. While a judgement need not be interesting, a good one should be exciting. A good beginning makes the reader want to read more. Style Here are some do's and don'ts about style in judgement writing: 1. Write as much as possible in plain, simple English, very much as you would explain it to your next door neighbour who is not a lawyer. 2. Whenever you can express yourself in plain language, devoid of verbiage, repetition and technical terms, do so. Where possible avoid legalese and foreign language. Where, however, you use legitimate terms of art i.e. words or phrases that either cannot be easily translated because the original language triggers a doctrine that lawyers might not recognise by any other name e.g., "habeas corpus or estoppels"; these terms may be used. Avoid
Except in the simplest of cases, every trial will involve the determination of a number of issues. These will have been agreed between the parties or settled by the Judge/court. Each of the issues will require to be carefully analysed so as to bring out the Judge's/court's decision thereon.
There will be issues of fact and issues of law. There will be facts that are agreed and facts that are in dispute. There may also be matters that the court/judge may take judicial notice of. These need not be proved but need to be clearly stipulated in Where reference is merely to the the judgement. substance of the passage avoid quoting it verbatim. If necessary, You are all trail judges. You will make reference to it in the foot- need to bear in mind that your note. judgement may be subjected to appellate review, it is therefore 4. Whenever possible, avoid important that you set out your quoting the charge consideration of each issue in a verbatim unless the way that will convince the apwording of the charge is pellate court that you did not in dispute or provides the misapprehend the issues that invoked defence. needed to be proved or the evidence that was brought to 5. Where, however, you are prove them. This will ensure that considering whether or not the court above yours, or the the charge is defective, it press, or the losing party, will not may be necessary to state miss the essence of your analysis. it in full. Process of Analysis of an Issue 6. Write short sentences whenever it is possible to Judgement is about telling the communicate your full losing party why it lost. It is best idea in such a sentence. to approach it by explaining its position because it is the party 7. Watch your grammar and most interested to know WHY it punctuation. Avoid `sheng' did not win and also most likely to or slang in your judgement appeal. The winning party would writing. care less how it won and is most unlikely to appeal. Writing the Body In analysing an issue or a moLet the body of your judgement tion, the approach most recomflow like you would tell a story mended is to: to your next door neighbour, who is not a lawyer, but is con- State the Losing Party's Position cerned to know the outcome of (LOPP) and then state the Flaw in the dispute. Tell WHO DID WHAT the Losing Party's Position (FLOPP) TO WHOM - not the legal conse- and then state your conclusion quences thereof or the various or the court's finding thereon. interlocutrices and hearings held thereafter.
40
sons...". An effective conclusion should summarise those foregoIn the very simple cases it will be ing reasons in a nutshell and in enough to merely announce the plain English, without repeating result and the orders that flow citations and references that are already included in the body. from your determination. Writing an Ending In a judgement of any complexity, however, an ending should provide an opportunity to revisit the argument, but without repeating the reasons and using different language. A good ending should resemble a good beginning which, in turn, often resembles a good head note. Footnotes
The practise of including lengthy footnotes that are not essential to the understanding of the judgement should be deplicated. Delivery
The manner of delivery of judgement is a matter for the Judge/ In order to keep the length of the court. judgement within reasonable limits and to incorporate lengthy In lengthy judgement it may be documents, textbooks passages unnecessary to read the entire or cases that may have been judgement and a summary of consulted or relied upon, it is of- the judgement bringing out the ten necessary to include foot- substance thereof will suffice. It is notes to the judgement. These important, however, to indicate It is often a poor ending to end should be carefully selected and in such summary that the full judgement not the summary of a judgement, as many judges referenced. judgement is authoritative. do with: "For the foregoing rea-
Knowledge without justice ought to be called cunning rather than wisdom. Plato
QU E T O
41
THE JUDGES ULTIMATE TASK: FORMULATING THE JUDGMENT

Paper delivered during the Induction Training workshop for the newly-appointed Judges of the Environment and Land Court of Kenya, Nairobi, 11th October, 2012 by The Hon. Justice (Prof.) J.B. Ojwang, Justice of the Supreme Court of Kenya.
Content 1. Introduction 2. The Fact Premise 3. Legal Issues, and the Submissions of Counsel 4. Comparative Material and Case Authority 5. Assessing the Merits 6. Decrees and Orders 7. Style: Of Fact, Law, Platitude 8. Conclusion 1. Introduction the conventional hearing of the entire range of disputes: in administrative law matters; in constitutional petitions; in contracts and private civil disputes; in matrimonial and family-related matters; in probate and administration of estates; etc. Such are live contests which must be resolved methodically, timeously and with finality. This is the task of the Courts. The end of each hearing motion is marked by the special instrument bearing the Courts edict: judgment; ruling; decree; orders. The decisive decrees and orders ought to emerge from a clearly formulated judgment or ruling which proclaims the binding, legitimate authority of the Court and the Judicial Branch.
And, as is stated in Osbornes Concise Law Dictionary, 6th ed (1976) [p.255], Every pleading must state facts and not law, it must state the material facts only and in a summary form, and it must not state the evidence by which the facts are to be proved. The main task of the Court is to hear the parties and their witnesses, and to ascertain the truthfulness of the evidence tendered in proof of the assertions in the pleadings. The Court, thus, relies on proven methods of adducing evidence, to ascertain the factual foundations of the suit. The facts being the Courts primary guide in the determination of liability, must, thus, feature at an early stage in the formulation of the judgment. It should begin with a summarized account of the claim and the response, and then incorporate the proven facts, any presumed facts, and any facts emerging from judicial notice. It is the state of facts that conveys the real grievance meriting the Courts intervention.
ispute settlement is one of the primary governance functions in all countries and, conventionally, this mandate is entrusted to the Judicial Branch. Dispute settlement, in the scheme of governance obligations, is just as important as the law-making, or the executive and administration functions. Indeed, the judicial function is cross-cutting in its design, as the other functions invariably generate disputes which have to be resolved. Besides, for the other departments of public power, some final settlement, and consequential tranquillity in the general social setting, is all-important. And such settlement is dependent on private disputes being legitimately resolved by the Judiciary. Modern Constitutions, expressing the citizens social and political commitment, have recognized this reality: and the judicial function is invariably the backbone of the constitutional formula.
From this background, it is clear that the in-coming Judge should commit some time to reflection upon the essence, nature and format of the next judgment or ruling. This being the ultimate pronouncement of the Court, on a question both specific, and of immanent broader economic, social or political significance, the judgment or ruling ought to However, whether or not the be well guided in its formulation. Court should give redress will depend also on the governing law be it in the shape of express 2. The Fact Premise provisions of the Constitution, or Suitors come to Court with their of statute law, or of recognized pleadings, defined in Blacks doctrine or principles evolved at Law Dictionary, 8th ed. (2004) common law or in equity. This is often a contentious question as [p.1191] as: A formal document in which a it requires interpretations to the party to a legal proceeding written law, and may involve sets forth or responds to allega- different constructions of precThe established body of proce- tions, claims, denials, or defenc- edent. Hence application of the dural law lays the threshold for es. law provides the central foren-
42
sic occasion, where the role of counsel is all-important. The outcome is essential building-block for the design of the judgment or ruling. 3. Legal Issues, and the Submissions of Counsel Since a partys entitlement in a suit ultimately depends on the governing law, the pleadings themselves, though focused on fact, will have foreshadowed a legal principle or legal argument. It falls to counsel, after making submissions on facts, to introduce the relevant law before the Court, and demonstrate how this should affect the claim in the pleadings. Since law, legal principle and legal argument are so crucial to the fate of the case stated in the pleadings, the judgment ought to incorporate a record on the contentions on points of law. Almost invariably, counsel will seek to buttress their legal arguments by citing and taking positions on the ratio decidendior obiter dicta of cases emanating from other Courts, national or foreign. Any valuable aspects of such precedent-case scenarios should be incorporated in the formulation of judgment.
lytical task which, however, must not be limited to a purely abstract plain: the Court ought not to take the position on fact and law which favours one party, without an unequivocal conviction founded on the merits, and formally recorded in the judgment. Here lies the justice of the case. This, indeed, is the real task of the Judge: to percipiently observe the emerging spectacle of fact and law and, on that basis, proclaim the status of right and liability. This is not a point of novelty. In a work celebrating the contribution of the great English Judge, Lord Denning, the legitimate expression of merits in the judgment is stated to be dependent, as determined by the Judge and is not foreordained by the abstract path of logic [Edmund Heward, Lord Denning: A Biography, 2nd ed. (1997), p.215]. Lord Dennings approach to the final determination of a case is thus stated: Since laws apply to laymen there is a good argument for the development of the law to be influenced by common sense as well as legal reasoning. In a doubtful case there is a strong case for use of common sense as it makes the law easier to predict and worthier of respect.
The judgment, however, must 4. Comparative Material and carry a coherent account of the Case Authority perception or selection process which led the Court to a particuScholarly articles and peer-re- lar finding; and this account is a viewed law journals, legal text- crucial element in the judgment books and case authorities, record. quite often, provide significant illumination to the legal argu- 6. Decrees and Orders ment proffered by counsel. Insofar as these bear relevance to Decrees specify the action-point the case, and in the measure in in the judgment same as orwhich the Court relies on them, ders, with reference to rulings. A the essential points should be judgment or ruling professionally summarized in the judgment, rendered, with clarity and focus, with due acknowledgement of readily yields forth a decree or source. order; indeed the parties them5. Assessing the Merits selves with the facilitation of the From the foundation and process Deputy Registrar, will readily exabove-described, the Court will tract the decree or order. be in a position to refocus its at- 7. Style: Of Fact, Law, and Platitention on the facts of the case, tude and to ascertain the merits of It emerges that an effective the claim. This is a rigorous ana- judgment is one clearly and se-
mantically rendered: beginning from essential pleadings and facts, to the law, the decree, the orders. The exact length will vary from case to case: some being lengthy, owing to complexities in the pleadings, evidence, and applicable law. Most, however, will be relatively short, as the facts are straightforward, and the applicable law is well settled. A judgment, unlike a scholarly article, is purely pragmatic in its object; it seeks to resolve the questions emerging from the pleadings, and to adjudicate the dispute between the parties. The Court asserts the substantive right of one of the suitors, and declares the liability of the other attended with an award of costs. The parties shall thereafter live by the Courts edict, save where there is a successful appeal. This is in contrast to the academic article, the object of which is to subject an author-chosen legal question, or set of legal questions, to full light and the more illumination, the better. This is scholarship for the purpose of better informing the general readership, without any prize being at stake. Although the Court process will certainly benefit by such inquiry, the Court will find relevant only such element as facilitates the resolution of an actual dispute between the suitors. This principle should be accommodated in the Judges style a style set for the immediate resolution of a live dispute. Such a style rules out any inclination to pontificate, or to be guided by platitudes; it is matter-of-fact; it is reserved; it is modest; it is clear-cut; it is practical. Such a judgment will focus on the parties, their pleadings and evidence, and on the relevant law and legal material. This approach is imperative firstly, in view of the controlling law of jurisdiction; and secondly, on account of the philosophy underlying the judicial function. By the Constitution of Kenya, 2010 [Article 1(3)(c)], the sovereign power which inheres in the people of Kenya is delegated inter alia, to the Judiciary and
43
independent tribunals: and it follows that the Judiciary can only keep faith with the people through an objective, professional resolution of matters properly brought before it. This requires dutiful adherence to the legitimate tasks of concrete dispute settlement. As a basis for such discharge of mandate, the Judiciary is to comply with the law of jurisdiction, and to determine the
relevant questions on the basis of the specific facts laid before them, and of the governing law. 8. Conclusion It can be said that the Judge, in the discharge of the judicial mandate, should conclude the task in hand by judgment that begins from the fact premise, covering the relevant points of
law and setting out any authorities canvassed, before assessing the merits and making appropriate decrees or orders. The judgment should focus its attention on the matters pleaded and committed to the lawful jurisdiction, and should be rendered clearly, and with the object of resolving the immediate questions arising from the pleadings.
NATIONAL COUNCIL FOR LAW REPORTING

A service state corporation in The Judiciary
GREY BOOK CD-ROM

NOW AVAILABLE!!
1,500/=
This Grey Book CDROM contains a Collection of 15 selected Statutes on Kenyan Procedural Law. 1. Appellate Jurisdiction Act (Cap. 9) 2.Children Act (Cap.141) 3.Civil Procedure Act (Cap. 21)
4.Constitution of Kenya, 2010 5.Criminal Procedure Code (Cap. 75) 6.Evidence Act (Cap. 80) 7.Interpretation and General Provisions Act (Cap. 2) 8.Judicature Act (Cap. 8) 9.Law of Succession Act (Cap. 160) 10.Limitation of Actions Act (Cap. 22) 11.Magistrates' Courts Act (Cap. 10) 12.Penal Code (Cap.63) 13.Sexual Offences Act (No. 3 of 2006) 14.Supreme Court Act (No. 7 of 2011) 15.Traffic Act (Cap. 403)
Milimani Commercial Courts l 4th Upper Hill Close l off Ngong Rd, P.O. Box 10443 - GPO 00100, Nairobi, Kenya l Tel: (+254 020) 2712767, 2719231, 2627228 Mobile: (+254)0718 799 464, 0736 863 309 l Website: www.kenyalaw.org Facebook: Kenya Law Reports www.youtube.com/kenyalawreports
44
OPEN ACCESS TO LAW IN AFRICA: NCLR AND THE AFRICAN LII JOIN HANDS IN REGIONAL TRAINING
By Esther Nyaiyaki Onchana Snr Assistant Editor / Deputy CEO
Freedom of information is an essential right for every person. The right to access information held by state agencies allows individuals and groups to protect their rights. It is an important guard against abuses, mismanagement and corruption. It can also be beneficial to governments themselves openness and transparency in the decision-making process can improve citizen trust Under the Declaration, Legal Inin government actions. formation Institutes (LIIs) of the world declared that: All human beings require information in order to realize their full 1.Public legal information social, political and economic from all countries and potential. Information is a public international institutions resource, gathered and stored is part of the common by government in trust for peoheritage of humanity. ple. Maximizing access to this information promotes Primary sources of law such as justice and the rule of law; national legislation, treaties and case law define the rules that 2. Public legal information is shape the politics, economics, digital common property and society in a variety of ways and should be accessible and serves as a social mediato all on a non-profit basis tor of relations between people. and free of charge; Thus access to the text of the pri3. Organizations such as legal mary sources of law by the citiinformation institutes have zens cannot be gainsaid. the right to publish public legal information and In Africa and indeed most of the the government bodies developing world, access to prithat create or control that mary sources of law remains a information should provide big challenge. Take for instance access to it so that other the official government publiparties can publish it. cation known as the Gazette throughout the Commonwealth The NCLR is a member to the Free Access to Law Movement (FALM). FALM members are parties to the Declaration of Free Access to Law made in Montreal - Canada in 2002, and amended at meetings in Sydney-Australia (2003), Paris - France (2004) and Montreal (2007).
which contains a range of notices including information about legislation, notices of government departments, court notices, official appointments, and other notices required under a countrys laws. The story of how difficult is it for citizens to access this document throughout Africa is the same limited copies are published each week accessible to a select few at a fee and it is not available online in any country. Where it is available online such as in South Africa users have to pay a handsome amount to the commercial publishers leaving out large segments of the population. The narrative is bleak for those trying to access the text of the statutes and it is to access judicial decisions. Although weak access to primary sources of law is mainly due to the reluctance of government agencies to publish and publicize legal documents, lack of financial resources, poor record management, back log of unrevised laws, lack of a legal and policy framework contribute to the prevailing situation in many countries. In 2011 the National Council for Law Reporting signed a cooperation agreement with the Af-
45
rican Legal Information Institute (AfricanLII) to among other areas actively support the establishment of new Legal Information Institutes (LIIs) in Africa and to strengthen the existing LIIs.
Kenya to know how his counter- ed a comprehensive programme parts have decided on a certain spanning organizational, conissue in Tanzania or Malawi. tent, and technical aspects of running an open access legal The collaborative effort with Afri- publisher in Africa. The presencanLII was formalized through a tations and discussions focused joint training conducted in around organizational models, practices and sustainability ideas for African open access legal publishers. NCLR provided the participants with a thorough presentation on its model as one of the biggest successes for free access to law institutions in Africa. AfricanLII provided an overview of the successful, and less so, models of LIIs emerging across Africa and across the world. Setting up a LII What does it take to set up a Legal Information Institute such as the now famous www.worldlii.org; www.commonlii.org and www.kenyalaw.org where there is none? Ms. Mariya Badeva talked about the principles for setting up a LII for any country. The Internet and related technologies have dramatically revolutionized the possibilities of cheaply providing access to high quality legal documentation at a low cost. LIIs must therefore utilize the Internet as their preferred medium of publishing. Since orderly publication of law requires an appropriate knowledge of national legal systems and their workings, none other than local experts can actually design a resource faithful to their own legal systems. The local team should know how to set up and maintain a website and they should understand how to systematically gather, process, and organize legal documents. To identify the types of information for inclusion in the national collection one will be guided by the sources of law applicable in the national legal system. For a civil law jurisdiction, the legislation collection will be given priority, while in a common law system a comprehensive collection of case law, along with a good collection of legislation, is important.
Participants at the NCLR AfricanLII Open Access Legal Publishing in Africa Training held at Johannesburg from 30 July 2012 to 2 August 2012
LIIs are affiliated to Free Access to Law Movement (FALM), an umbrella name for a number of initiatives and projects across several common law countries aimed at providing free online access to legal information such as case law and legislation. The cooperation was borne out of the realization that there is need to build an African network of legal information institutes to promote an environment conducive to maximizing access to public legal information. Such cooperation would not only makes local usage possible but it would allow for the regional and international availability of the national laws in question. Currently it is nearly impossible for a judicial officer in Johannesburg from 30 July 2012 to 2 August 2012. The participants included the Uganda Legal Information Institute, the Zambia Legal Information Institute and the Zimbabwe Legal Information Institute and law-reporting representatives from Zambia and Swaziland. The NCLR Team leaders who facilitated the training included Mrs. Anne Asugah Ms. Monica Achode, Ms. Linda Awuor Mr. Martin Mbui and Mr. Christian Ateka and myself . The AfricanLII team was led by Ms. Mariya Badeva, Ms. Kerry Anderson and Mr. Tererai Mafukidze. The NCLR and AfricanLII present-
46
The LII must develop and execute a content collection plan. The plan will address how to publish current versus historical information. An effective LII must aim to electronically publish judicial decisions and legislation as soon as they become available. A strategic decision needs to be made as to how far back and which historical decisions should be included into the LII database.
ply no more obvious match for a LII, an organization founded on promotion of justice and sharing knowledge through open, free access to information than the IT tools developed in a similar spirit, open source software (OSS). With open sourcse software, LIIs can fit software to their specific needs by changing the software themselves or by hiring programmers to modify it for them.
Number 12 December 2004 "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only with publicity in place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." Attorney General of Nova Scotia v. MacIntyre [1982] 1 R.C.S. 175, quoting Bentham
A LII will be sustainable if it is ca- References: pable of providing a service not available elsewhere and it should 1. www.africanlii.org/blog find creative ways to respond to otherwise unaddressed prob- 2. "Free Access to Law - Is lems. It should have the capacity it Here to Stay?" - Local to provide the service including Researchers' Methodology its organizational, technical and Guide www.lexum.com financial capacity. 3. Poulin Daniel, Open Access to Law in Open v Commercial Access Developing Countries Peer Reviewed Journal When a LII is selecting the type on the Internet Vol. 9 of software to use there is sim-
"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only with publicity in place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial."
QU
E T O
47
THE COUNCIL HOLDS A STAKEHOLDERS ANALYSIS WORKSHOP

By Lydia Midecha, Assistant Programmes Officer , Strategic Planning, Quality Assuarance Department
T
48
workshop was:
1. To undertake a c o m p r e h e n s i v e stakeholders analysis Be a yardstick of quality. Some people are not used to an environment where excel- 2. To formulate clear and gripping vision, mission lence is expected. Steve Jobs. and objectives of the organization. he most misconstrued aspect in strategic planning by most organizations, and that which 3. To assess the strategies that will ignite innovation within makes organizations fail in stratethe organization. gic planning, is the thinking that strategy and planning is one and the same thing. On the contrary, 4. To effectively assess the conditions of the internal operations and clarify the Planning is the formulation of a fuleverage points to improve ture course of action, while stratperformance within the egy is that necessary approach organization. taken for the future course of action to be effective. Strategic planning therefore is an ongoing 5. To formulate an action plan for each strategy, effective discourse about optiwith milestones and mizing the available resources to deliverables, timelines and ensure positive change and sucaccountability. cess within an organization. In order to be effective in its op- 6. To measure impacts. erations, the National Council for Law Reporting reviewed its 5 7. To per form continuous revisions. year strategic plan during a four day workshop held at the Silver springs Hotel on the 11th 14th 8. To ensure accountability through continuous September 2012, with the aid of monitoring and evaluation. Eliud and Associates consultants. The aim of the strategic planning
The first day of the strategic planning workshop was dedicated to stakeholders analysis. A stakeholder is an individual or group who relies on the organization to accomplish their own goal, in whom the organization rests on in various ways, and who can affect or is affected by the attainment of the organizations objectives. Stakeholder analysis for NCLR is of great importance since it is aimed at addressing the interests and information held by key stakeholders, and in turn communicate our interests and expectations from the stakeholders to establish a mutual cooperation. Responsiveness to key stakeholders is imperative throughout the strategic management process because the success and survival of an organization depends on sustaining key stakeholders according to their designation of what is valuable. If key stakeholders are not content, at least nominally, according to their standards for fulfillment, the standard prospect should be that something will change, and not in a positive way. The Stakeholders: The key stakeholders identified
and invited to be a part of the strategic planning included the members of the NCLR board, NCLR employees, the Judiciary (NCAJ secretariat, Judiciary Training Institute, Supreme court, Court of Appeal, High Court, Chief Registrar), Law Society of Kenya, the Office of the Director of Public Prosecutions, Ministry of Justice, National Cohesion and Constitutional Affairs, State Law Office, Commissioner of Prisons, Witness Protection Agency, Kenya National Human Rights Commission, Kenya Law Reform Commission, National Council for Childrens Services, Ministry of State for Public Service, Ministry of Gender, National Council for Persons with Disabilities, Inspectorate of State Corporations, Government Printer, Kenya National Archives, Kenya National Library Services). Civil society organizations were represented by FIDA and CRADLE. The legal academia representatives who attended included the Kenya School of Law, Strathmore University and the University of Nairobi School of Law. Stakeholders Expectations: As part of enhancing and strengthening the already existing partnerships, the stakeholders invited were required to present their expectations from the National Council for Law Reporting. They highlighted their expectations as follows: 1. Universal accessibility Making legal information accessible to people of all manner, and especially to persons with disabilities, is an area of great importance to NCLR. In keeping with the Constitution of Kenya 2010, under Article 7, Article 35, Articles 54, and the Persons with Disability Act section 21, there is need to commit to ensure that information provided is as accessible to disabled persons and to the public as realistically possible. Given that the language of the court is Swahili, there is need
for the Council to produce legal information in Swahili, and in other formats accessible to disabled persons. 2. Jurisprudence. To build on jurisprudence, NCLR needs to concentrate on reporting the judicial opinions that inform on the growth of jurisprudence rather than by the hierarchical standing of the court rendering the opinion. By concentrating on judicial opinions from superior courts only, a lot of opinions that are useful in jurisprudence are lost. On the same note, NCLR needs to source for lost jurisprudence, capture, preserve and make the same accessible. With the new courts, there is need for inclusion of new jurisprudence from new courts, new areas of jurisdiction such as admiralty, regional bodies (e.g. EAC, COMESA) and international jurisprudence such as the ICC cases. 3.Training on judgment writing Judgment writing is an art, and as editors, researchers and law reporters, we should be in a position to do editing without compromising the quality of work. As such, it is important to train staff on judgment writing using the acceptable judgment writing formula, the FLAC method- (presentation of Facts and evidence, Applicable law, application of the facts and evidence under law, and conclusions). To do this, there is need to make a benchmarking comparison with the reporting style adopted by other respected law reporting establishments.
There is also need to simplify the legal information provided by making abridged versions or popular versions of the same so as to reach all Kenyans. To enhance accessibility, the Council has to adopt new ways and methods of disseminating legal information, e.g. by coming up with legal programs to be aired in TVs radios, engaging the public through interactive social media and hold legal clinics as a way of public engagement. Apart from the legal information provided, the Council also needs to embrace and disseminate other information of importance such as sessional papers, standing orders, policy papers, that could contribute to civil awareness. 5. Networking The Council needs to deliberately form strong partnerships with the civil society and the legal academia in order to be efficient in achieving its objectives. These partnerships will help in developing issues of policy that could influence governance. Our Expectations and Roles:
Part of the Councils role in fulfilling the interests of the stakeholder s is determining how to involve the different stakeholders. Defining who needs or wants to be involved, and when and how that participation can be attained offers the foundation for forging alliances. Once stakeholder views are understood, a resolution can be made on whether to pursue partnership. The significance of the process in planning and steering successful collaborations cannot be overemphasized. Good-faith exertions are often upset because the parties 4. Expand product base are not capable in the collaboIt is imperative for the Council to ration process, and because inexpand its product base so as adequate attention is given to to fulfill its vision. This means that planning and managing it. the Council has to take advantage of the new constitutional What Next? dispensation to expand its product base and scope of work to The strategic planning process is include devolved governments. still ongoing. As part of the four
49
day workshop, part of the discussions we had were on how the different environments affect productivity of the Council and how to counter this through a PPESTEL and SWOT analysis, identified our gaps through a Gap Analysis and challenges encountered, addressed these by identifying our key successes areas and lessons learned. All these gave a pathway to the development of what we want to focus on the next five years and how we want to do this. Clear and gripping vision, mission and objectives Having a clear and compelling vision, mission and objectives is what employees subscribe to, to ensure performance in an organization. This is the cornerstone and backbone of a healthy organization culture. During the strategic planning workshop, we proposed to revise our vision to Accessible Public Legal Information towards an Enlightened Society from being the premier resource institution in Africa providing reliable and accessible legal information to the public. Our proposed mission read To Provide Universal Access to Public Legal Information by Monitoring and Reporting on the Development of Jurisprudence for the Promotion of the Rule of Law, while our slogan was proposed to read where legal information is public knowledge. A tactical evaluation that ignites innovation. In order to continuously ensure innovation in an organization, a strategic evaluation and assessment should be done to outline how to better connect and deliver on the proper requirements of stakeholders. We identified our key stakeholders, invited them to make a presentation on what their expectation of NCLR was, and captured what we in turn expect from them to be able to
50
enhance cooperation and strategic partnership. Assessing the conditions of the internal operations and clarifying the leverage points to improve performance For an organization to stay relevant, it needs to improve its internal systems. It needs to table down all the vital points that improve performance and make them visible. The strategic planning workshop endured that staff debated on the strengths, weaknesses, threats and opportunities that affect the Council and captured ways we as an organization can reduce risks and challenges
Governance, Leadership and Quality Assurance. We then developed activities and milestones for each of the key result areas, established the deliverables/ outcomes of the milestones and the resources and timelines needed for each activity. Impact Measurement It is imperative to determine whether the plan and actions set geared towards improving success and performance in an organization are working. It is not wise to implement the strategy blindly; one needs to determine what resources are
in order to increase productivity and enhance performance. Action plan for each strategy, with milestones and deliverables, timelines and accountability. It is the failure to act and monitor results that makes plans fail. During our strategic planning, we identified our key result areas as Universal Access to Public legal Information. Research and development, Human Resource Development and Management, Policy and Legal Framework, Technology and Infrastructural development, Resource Mobilization and prudent financial management, Strategic Alliances and Partnerships, Branding, Visibility and corporate image and Corporate
needed for which activities and find out which activities are working and which ones are not. This is important because then, one can commit different resources to the change process. As with deliverables, there needs to be a system that can track the impact of certain activities. In the strategic planning workshop, this was identified as the indicators and means of verification for each activity and outcome. Continuous revisions As part of implementation, an organization needs to revise the plan every now and then if the environment within which the plan is being executed in changes. Revisions can be caused by new barriers, changes in organizational structures, new stakeIssue 20 | July - December 2012
holder needs, missed steps, in be a balance of an outlay to cooperation etc. bring about progression and an investment to advance perforMonitoring and evaluation. mance. The appropriate equilibrium depends on the state of the At the end of the implementa- organization. tion period, an organization has to account for resources used by ensuring that there are re- An effective strategic plan is fusults produced from the strategic elled by plan implementation. This will be done through a monitoring and Input from all viewpoints in evaluation framework. the organization. (Not all employees but all levels of Strategic plans involve apporemployees.) tionments of scarce financial and organization resources that O r g a n i z e d s o t h a t can be applied to change participants can look at rather than sustaining present the organization in relation processes. A worthy plan should to an idyllic or model
organization. That is, how do we compare where we are with where we should be. Priority-setting grounded on which circumstances and probable results have the greatest prospective for overall progress. Since we have these in place, I believe our ability to make insightful and long-term, internal and external developments at NCLR will dramatically improve.
51
CASE BACK
C
Service
aseBack is a service provided by the National Council for Law Reporting to Judicial Officers (Court of appeal, High Court Judges and Magistrates). CaseBack alerts a judicial officer when his or her decision has been considered by a court of higher jurisdiction or where a case is partly heard by one judge and later concluded by another judge. Such a judicial officer receives an email alert along with the decision of the higher court immediately that decision is received by the Council. The CaseBack service aims to contribute to the rule of law and the development of jurisprudence by providing an information loop in which judicial officers continually develop and improve upon their understanding and application of the principles of law.
Injustice anywhere is a threat to justice everywhere.

Martin Luther King, Jr.
52
FE
CK A B D E KLR
CA
AT D P U SE
ES
Thank you for your great work. Its a source of pleasure to hear nationals of other countries talk about how accessible our laws are. I would request that you remove password protection from some of your PDF downloadable statutes. It is a nightmare when you need to highlight or copy a section.
Tumaini
Thank you for your excellent customer service. We always value your continuous updates.
You are doing an excellent job.
James Njoroge /Credit Manager/ Bank of Africa Kenya Limited
Henry P. Njeru, Managing Director, Njeru Industries Ltd, Meru.
Thank you. Keep up good work.
Philip Wambugu, , Advocate
53
FEEDBACK - KLR CASE UPDATES Continued...
Courtesy of your apology Mr Tunoi, you can rest assured that the firm will, in due course, buy a few extra copies of KLR!!
Ngaca
Thanks for being proactive.
Salvador Agina
Dear Sir, Thank you the apology. Otherwise I deeply appreciate the service. I have benefited a lot from KLR for example, I was able to access the Traffic Act Cap 403 (as amended).
Karl Karugaba
Hallo KLR, thank for your clarification on the issue. Otherwise your services are highly appreciated
Fred
Thank you, to err is human. Thanks for the good work you are doing, keep it up and always keep us updated
Jane Oncharo
54
FEEDBACK - KLR CASE UPDATES Continued...
Hey KLR, you guys are doing an exceptional job! A couple of technical hitches is no problem. Many thanks for the great service you provide our nation.
Hi Nelson, Thanks 'entire team' appriaciated
Humphrey
William m Miigo
u so k yo our n a Th h for y muc vices. ser
Kevin Ndoho, o Student of Law Law, CUEA.
Afternoon, am writing to thank you for a job well done in updating us on the recent cases been passed in our courts. Also, is it possible to have an account where one writes to enquire about a particular case law, for instance case law on review of court orders?
Caroline Kiambi
Thank you for the wonderful work you are doing in making justice accessible to all and sundry. Your reporting is quite helpful to Kenyans.
Aston Muchela
Mr Tunoi, Thank you for the timely Information.
Okoni Isaac
55
ACK B D E FE KLR
CASE
BA
RV CK SE
ICE
This is the best part of my court day today! I must confess this case back service is very precise and apt as it enables us to see what the appellant court considered and rightly placed we all create jurisprudence! Kudos for enabling such a wonderful product and keep up the good job you all are doing as a team! Thank you so much for sending me the results of the appeal. I truly appreciate your services and true to the core 'transforming legal information"! Thanks and good afternoon.
Hon. Dolphina Alego
I truly appreciate your services. Be blessed.
Hon. Ann Mwangi Mwa
Thank you.
Hon. n. Lorot
56
FEEDBACK - KLR CASEBACK SERVICE Continued...
Thanks, the Hon trial magistrate will get copies thereof Thanks for the ruling from the high court.
Serah Juma rles Obulutsa Hon. Charles
Thank you very much, we are happy to be associated with your products. I am already hooked to your weekly newsletter.
Hon. Evans Makori
Thanks for the mail. I had no idea we had such services. I look forward to receiving more decisions affecting my judgments and rulings. I have worked machakos, bomet, chuka , malindi and now Nairobi. My appeals have been heard at Machakos High Court, Nakuru High Court, Kericho High Court , Meru High Court and Nairobi High Courts and even the Court of Appeal. I would be very grateful to receive the decisions. Kind regards,
Hon. Dominica Nyambu
SPM/DR
Thank you. this will help the Judicial officers in their self study . Kind Regards,
Hon. on. Teresia Muthua.
Thank u ps keep them coming l appreciate the work you are doing. Regards,
Hon. Osoro Juma
Thank you for the case alert for judicial officers. it is a great feedback method. i support the great innitiative.
Hon. B M Kimemia, Ho Pr Principal magistrate
57
BENCH MARKING WITH ONE OF THE BEST; NATIONAL COUNCIL FOR LAW REPORTING TOURS LEXIS NEXIS PUBLISHERS, SOUTH AFRICA, 18-23RD JUNE 2012
By Ann Asugah, Team Leader Laws of Kenya Department.
he National Council for Law Reporting in its endeavor to align its processes with best practices conducted a benchmark tour to Lexis Nexis South Africa to compare notes on their legal publishing processes. The Laws of Kenya and Editorial Departments went to Durban South Africa between the 18th and 23rd of June 2012 to share knowledge on the latest technologies in legal publishing
HIGHLIGHTS OF THE BENCH MARKING TOUR With regard to case law, Lexis has software that links case law and Lexis Nexis and NCLR are both legislation. The presentation of publishers of legal information. case law online is done in a way However, where as Lexis is a com- that allows the reader to identify mercial publisher, NCLR publishes the status of a case, by the use legal information pursuant to a of a Cite IT signal. The signals in statutory mandate bestowed on use are it by an Act of Parliament. As a leading publisher of legal infor- Blue-neutral analysis, mation, Lexis has access to the Yellow-cautionary analysis, newest technology in legal pub- Green-positive analysis, lishing hence the benchmark Red-is negative analysis, tour Black-conflict analysis, Blank circle is no analysis Editorial Process for legislation and case law Languages Lexis has clearly formulated a seamless working process by the use of a work in progress (WIP), document which is a documented analysis of all the laws that are The difference between South African Legislation and Kenyan Legislation is that in South Africa, laws are legislated in two languages. i.e., English and Afrikaans
in force with all the amendments that have taken place ever since an Act was enacted. This ensures that the integrity of data is preserved and any changes made on the WIP indicate what they are, made by whom, when they were made and under what authority. The Kenya equivalent of this is the amendment index only that the process in Lexis is highly automated. The last amendment index in Kenya was published in 1995.
and the Gazette is published on a daily basis. This is critical to us especially at this time when the Constitution decrees that the official languages are Kiswahili and English. Its therefore critical that the primary producers of information are alive to this fact and adjust accordingly. XML mark up The cornerstone of lexis publishing lies in the use of extensible mark up language for legislation and case law. XML technology is a system of converting information into a machine-readable format for its preservation and for exporting it to different outputs; doc, pdf or html. A critical component of xml language is ability to track change to legislation and hence giving different versions of a document at any given time. Using xml, one is able to track amendments to legislation at any given time and can tell how a certain Act was at some point in time. This is called the point in time legislation. Product portfolio Lexis Nexis produces many types of legal information in different formats; primarily electronic but also in print formats. Most of the
58
electronic solutions are through subscriptions to updates. Print material is updated biannually through the print of service issues. Lexis publishes case law and legislation both in Afrikaans and English. The legislation is national level as well as regional level and by-laws. It also publishes and commentaries on various
branches of the law. Lexis also runs a service for their corporate customers called Compliance based report where they break down legal language into lay mans language for easier understanding for purposes of compliance by their customers e.g. tax laws.
Conclusion The NCLR team identified some of the best practices to adopt and implement in Kenya such as bi lingual legal information, xml mark up which is currently underway and the service issue. It was an enlightening event for NCLR.
Below the NC LR tea their b m d enchm a rking t uring Lexis N our at exis, D u r b South an, Africa .
59
THE LAWS OF KENYA DEPARTMENT TEAM BUILDING RETREAT AT ENASHIPAI RESORT, NAIVASHA 8-9 AUGUST 2012
By Naomi Mutunga, Copy Editor and Dorcas Kasia, Data Processor Laws of Kenya Department.
temperaments. Thats why it is so erally struggle with following tasks essential to know your tempera- all the way through, are chroniments to be able to analyze oth- cally late, and tend to be forgeter peoples temperaments not ful and sometimes a little sarcasto condemn them, but so you tic. can maximize potential and enable them to maximize theirs. We Choleric learnt there are four main groups Enashipai Resort & Spa is where a of temperaments The choleric temperament is strong local heritage and abunfundamentally ambitious and dant nature is blended then de- The temperament types are ex- leader-like. They have a lot of livered with a generous sense of plained briefly below; aggression, energy, and/or paswarmth. Its in Naivasha town, sion, and try to instil it in others. which is culturally rich and en- Sanguine They can dominate people of dowed with nature in the expanother temperaments, especially sive Great Rift Valley. The sanguine temperament is fundamentally impulsive and The retreat was to allow mem- pleasure seeking; sanguine bers of the team to bond and people are sociable and charlearn from each other and also ismatic. They tend to enjoy take a break and re focus on social gatherings, making their goals and strategies but new friends and tend most importantly, to have fun. to be boisterous. They On day one, team members en- are usually quite gaged in physical activities and creative and oflater had an opportunity to learn ten daydream. about their temperaments facili- However, some tated by their team leader Mrs. alone time Ann Asugah. is crucial for those of this Temperaments are the reason t e m p e r a why you do things the way you m e n t . S a n do, they influence everything guine can you do from sleep habits, study also mean habits, eating style to the way s e n s i t i v e , you get along with other peo- c o m p a s The ple. Humanly speaking we learnt sionate and Laws depa of Keny that there is no other influence in r o m a n t i c . rtme a learn nt i your life more powerful than your Sanguine pertemp ng about e temperament or combination of sonalities gentheir raments their durin team g b Enas hipai uilding a t Reso Naiva sha rt, Issue 20 | July - December 2012 60
n 8th 9th August 2012, the Laws of Kenya Department team members attended the teams retreat in Naivasha at the Enashipai Resort and Spa. Enashipai is Maasai term meaning a place of happiness
phlegmatic types. Many great cruelty in the world. Often they charismatic military and political are perfectionists. figures are choleric. Phlegmatic Melancholic The phlegmatic temperament The melancholic temperament is fundamentally relaxed and is fundamentally introverted and quiet, ranging from warmly attentive to lazily sluggish. Phlegthoughtful. matics tend to be content with Melancholic people often were themselves and are kind. They perceived as very (or overly) are accepting and affectionate. pondering and considerate, get- They may be receptive and shy ting rather worried when they and often prefer stability to uncould not be on time for events. certainty and change. Melancholics can be highly creative in activities such as poetry Knowing other peoples temperaand art - and can become pre- ments is fundamental because occupied with the tragedy and you will know your colleagues
strengths and weaknesses. Team members agreed to focus on the strengths and try not to dwell so much on the weaknesses. On the second day, the members discussed the departments Strategic plan for the year 20122017. Members were able to discuss strategies and objectives of department for the next five (5) years. At the end of the retreat, the Laws of Kenya Department team members left Enashipai (which means a state of happiness) a stronger, well rested and a happier team, ready to put to practice what they had learned from the retreat.
of Laws e h t Below department Kenya oup photo gr take a their team during ding at buil ort, i Res a p i h Enas ha Naivas
Laws depa of Keny rtme a engag nt i activ ng in phy ity sic team during t al h Enas building eir hipai at R Naiva esort, sha
Issue 20 | July - December 2012 61
The
LEGISLATIVE SUPPLEMENTS: A DIGEST OF SELECT LEGAL NOTICES RECENTLY PUBLISHED IN THE KENYA GAZETTE
By Yvonne Kirina, Copy reader Laws of Kenya Department.
DATE OF PUBLICATION IN KENYA GAZETTE
KENYA GAZETTE SUPPLEMENT NUMBER
NAME OF LEGISLATION
REMARKS
13th July
No. 73
The Kenya Ports Authority Retirement Benefits Scheme Regulations, 2012 L.N. 73/2012
These Regulations are made under the Kenya Ports Authority Act, Cap. 391. The Kenya Ports Authority Pension Scheme registered under the Retirement Benefits Act, 1997, and the Income Tax Act, which came into force with effect from the 1st April, 2000, shall not apply to new employees of the Authority, who are admitted as members of the Scheme from the 1st January, 2012. Made under section 31 of the IEBC Act, 9 of 2011, these regulations among other things establish Preparation of Financial estimates of the Commission, Publication of the fund, Publication of pre and post-election financial status of the Fund and General guidelines on management of the Fund.
No. 73
The Independent Electrol Boundaries Commission (Fund) Regulations L.N. 74/2012
3rd August
No. 83
The Traffic (Amendment) Rules, 2012 L.N. 78/2012
The Traffic Rules are hereby amended by inserting a new rule 6A . The rule provides a person applying to the Registrar of Motor vehicles to be issued with Personalised number plates upon payment of Ksh 1000,000 fees. In addition, rule 6A gives the details of motor vehicles which may and may not be issued with personalized identification plates.
62
LEGISLATIVE SUPPLEMENTS: Continued...
17th August
The Capital Markets (Demutualization of the Nairobi Securities Exchange Limited) Regulations, 2012 L.N 87/2012
Demutualization means the separation of the ownership of the Exchange from the right to trade on such Exchange where as Exchange means the Nairobi Securities Exchange Limited registered under the Companies Act as a company limited by guarantee. Condition for Demutualization includes written approval of the authority in accordance with these Regulations Through this notice, the Acting Minister of State for Provincial Administration and Inter nal Security appoints the 14th August, 2012, to be the date on which the Act shall come into operation. This Act establishes an institutional framework for the control of alcohol and drug abuse and for the formulation and implementation of policy. This is an Act of Parliament to provide for the development, management, marketing and regulation of sustainable tourism and tourism-related activities and services in Kenya. The Minister for Tourism appoints the 1st September, 2012 as the date on which this Act shall come into force.
24TH August
The National Authority for the Campaign against Drug Abuse Act L.N. 89/2012.
31st August
No. 93
The Tourism Act, No. 28 of 2011 L.N. 92/2012.
14th September
No. 119
The Exchequer and Audit (Rural Enterprise Fund) (Winding Up) Order. L.N. 97/2012
The Rural Enterprise Fund established under the Exchequer and Audit (Rural Enterprise Fund) Regulations, 1992, is wound-up (L.N. 109/1992). Any amounts remaining in the Rural Enterprise Fund shall be paid into the Consolidated Fund.
63
LEGISLATIVE SUPPLEMENTS: Continued...
No. 119
The Public Order (Curfew) (Tana River, Tana North and Tana Delta Districts) Order, 2012 L.N. 100/2012.
This Order is under the Public Order Act, Cap. 56.Here, curfew directives are established and some include: a) No public gathering or procession shall have more than 5 persons b) No person shall, without lawful excuse, posses or carry any offensive weapon. This Order shall apply to all that area comprised in the Tana River, Tana North and Tana Delta Districts of the Republic of Kenya. The Energy (Management) Regulations shall apply to the owner or occupier of industrial, commercial and institutional facilities using any form of energy. In turn, the owner or occupier shall develop an energy management policy for the facility which shall have the minimum requirements as provided in the First Schedule of the Act.
5th October
No. 131
The Energy (Energy Management) Regulations, 2012 L.N 102/2012.
No. 134
The Constitution of Kenya-Proclamation Concerning Creation of a Commemorative Award. L.N. 106/2012.
In this Legal Notice, The President of the Republic of Kenya creates a commemorative award, The Linda Nchi Campaign Medal. The medal shall be awarded, among other provisions, to ranks of the Kenya Army, the Kenya Airforce, the Kenya Navy and the National Police Service who have served for at least thirty days, not necessarily consecutively in Operation Linda Nchi, an operation against the AlShabaab in the operation area.
64
A SYNOPSIS OF EXECUTIVE APPOINTMENTS PUBLISHED IN THE KENYA GAZETTE FOR THE PERIOD JULY SEPTEMBER 2012
By Wanjala Sikuta, Legal Proof reader Laws of Kenya Department
he Kenya Gazette is an official publication of the Government of the Republic of Kenya. It contains notices of new legislation, notices required to be published by law or policy as well as other announcements that are published for general public information. It is published every week, usually on Friday, with occasional releases of special or supplementary editions within the week. The following is a recap of notable appointments made under the Kenya Gazette from April to June, 2012.
Gazette Notice No. 9047 Dated Mercy Alusa Ingosi, 3rd July 2012 to be inspectors; and THE KENYA INDUSTRIAL ESTATES IN EXERCISE of the powers conferred by section 6 (e) of the State Corporations Act, the Acting Minister for Industrialization appointed NIMO IBRAHIM MUDE (MS.) GEORGE NANDOKHA WANYAMA to be analyst for purposes of the Act, with effect from 10th February, 2012. Gazette Notice No. 9053 Dated 27th June 2012 RULES COMMITTEE IN EXERCISE of the powers conferred by section 81 (1) and (1A) of the Civil Procedure Act, the Chief Justice appointed JUSTICE ALNASHIR R. M. VISRAM to be the Acting Chairman of the Rules Committee with effect from 20th June, 2012. Gazette Notice 5854 of 2007 appointing Justice R. S. C. Omolo, as the Chairman was revoked. Gazette Notice No. 9054 Dated 27th June 2012 RULES COMMITTEE IN EXERCISE of the powers conferred by section 81 (1) and (1A) of the Civil Procedure Act, the Chief Justice appointed LADY JUSTICE WANJIRU KARANJA
to be a member of the Board of Directors for Kenya Industrial Estates, for a period of three (3) years, with effect from 13th July, A). STATE CORPORATIONS AND 2012, and renewed the appointPARASTATALS ment of State corporations are by order PRISCILLA ONACHA (MS.) established by the President and generally regulated by the State as a member of the Board of DiCorporations Act (Cap. 446). rectors for a period of three (3) years, with effect from 13th July, The President or the Minister un- 2012. der whose docket the particular body lies make various appoint- Gazette Notice No. 9050 Dated ments to the various state cor- 2nd June, 2012 porations, parastatals and even commissions. MINISTRY OF AGRICULTURE State Advisory Committees are established under section 26 of the Act and whose functions are mandated in section 27 to advise the president on the establishment, reorganization and dissolution of the state corporations. IN EXERCISE of the powers conferred by section 8 of the Pest Control Products Act, the Minister for Agriculture appointed Stanley Kirugo Kimaru, Adams Nyamongo Obonyo Stanley Mruu Nganga,
65
to be the Acting Vice-Chairman of the Rules Committee with effect from 20th June, 2012. Gazette Notice 5854 of 2007 appointing Justice P. N. Waki, was revoked. Gazette Notice No. 9055 Dated 27th June, 2012 RULES COMMITTEE IN EXERCISE of the powers conferred by section 81 (1) and (1A) of the Civil Procedure Act, the Chief Justice appointed NICHOLAS OKEMWA to be the Secretary of the Rules Committee with effect from 20th June, 2012.
for a period of three (3) years, to be the Director of the Kenya with effect from the 13th July, National Library Service Board, 2012. for a period of three (3) years. Gazette Notice No. 9812 Dated Gazette Notice No. 9801 Dated 9th July, 2012 3rd July, 2012 ADMIRALTY MARSHALL MINISTERIAL TENDER COMMITTEE IN EXERCISE of the powers conIN EXERCISE of the powers conferred by rule 4 (2) of the High ferred by section 26 (4) of the Court (Amiralty) Rules, 1979, the Public Procurement and Disposal Chief Justice on the advice of Act, 2005, and Second Schedule the Judicial Service Commission of the Public Procurement and appointed Disposal Regulations, 2006, the Acting Permanent Secretary, STEPHEN RIECHI Ministry of Justice, National Cohesion and Constitutional Affairs a Deputy Registrar of the High appointed Court, to be Admiralty Marshall, with effect from the 1st August, AMB. DAVID M. MUTEMI 2012.
to be the Chairman of the Minis- Gazette Notice No. 10239 Dated Gazette Notice 14194 of 2010 terial Tender Committee, with im- 24th July, 2012 appointing Winfrida Mokaya, as mediate effect for the financial the Secretary was revoked. year, 20122013. CO-OPERATIVE TRIBUNAL Gazette Notice No. 9423 Dated Gazette Notice No. 9805 Dated IN EXERCISE of the powers con5th July, 2012 12th July 2012 ferred by section 77 (1) (a) of the Co-operative Societies Act, the STATE CORPORATIONS APPEAL KENYA AGRICULTURAL RESEARCH Minister for Co-operative DevelTRIBUNAL INSTITUTE opment and Marketing appointed IN EXERCISE of the powers con- IN EXERCISE of the powers conferred by section 22 (4) of the ferred by section 15 (1) (f) of the MWANGI TIMOTHY KARIUKI State Corporations Act, Science and Technology Act, the Minister for Agriculture ap- as Chairman of the Co-operative STELLA MUTHONI MUNYI pointed Tribunal, for a period of three (3) years, with effect from 27th June, to be the secretary to the State HELLEN YEGO (MS.) 2012. Corporations Appeal Tribunal, for a period of three (3) years, with to be a member of the Board of Gazette Notice No. 10607 Dated effect from the 1st July, 2012. The Management of the Kenya Agri- 1st August, 2012 appointment of Roselyn Amadi, cultural Research Institute, for a was revoked. period of three (3) years, with ef- INCOME TAX TRIBUNAL fect from the 13th July, 2012. Gazette Notice No. 9800 Dated IN EXERCISE of the powers con10th July, 2012 Gazette Notice No. 9807 Dated ferred by section 83 of the In16th July, 2012 come Tax Act, the Minister for SOUTH NYANZA SUGAR Finance appointed COMPANY THE KENYA LIBRARY SERVICE BOARD ACT John Nyangeri Simba(ChairIN EXERCISE of the powers conman); ferred by section 6 (1) (e) of the IN EXERCISE of the powers con- Members: State Corporations Act, the Min- ferred by section 6 (2) of the Catherine Ngima Kimura, ister for Agriculture appointed Kenya National Library Service Abdirashid Salat Abdile, Board Act, the Minister of State Kata Matemu Kithyo (Eng.) VIOLET SALLY ONYANGO (MRS.) for National Heritage and Cul- Abel Muriithi, ture appoints to be members of the Income to be a member of the Board of Tax Tribunal, for a period of two South Nyanza Sugar Company, RICHARD MASARANGA ATUTI (2) years, effect from the 1st August, 2012.
66 Issue 20 | July - December 2012
Gazette Notice No. 10609 Dated Finance appointed 15th July, 2012 ABDULMALEK A. JANMOHAMED NATIONAL OCCUPATIONAL SAFETY AND HEALTH COUNCIL to be the Chairman of the Policyholders Compensation Fund IN EXERCISE of the powers con- Board of Trustees, for a period of ferred by section 28 of the Oc- three (3) years, with effect from cupational Safety and Health 2nd July, 2012. Act, the Minister for Labour appointed Gazette Notice No. 11007 Dated Abdullahi Aden (Dr.)(Chair- 26th July, 2012 man), Hosea Alubaka Onyonyo, THE RETIREMENT BENEFITS AUAlice Auma Majani, THORITY Charles Nyangute, Patrick Obath, IN EXERCISE of the powers conMary Wanjiru Azegele, ferred by section 6 (a) of the ReTom Gichuhi, tirement Benefits Act, the Minister Charles Nyatili, for Finance appointed Titus Oyoo, KANYI GACHOKA Benjamin Langwen, to be Chairman of the Board of Wills Okoth, Directors of the Retirement BeneCharles Mburu, fits Authority, for a period of three Ibrahim Longolomoi, (3) years, with effect from 2nd James Morumbasi Mongoni, July, 2012. to be members of the National Occupational Safety and Health Gazette Notice No. 11015 Dated Council, for a period of three (3) 8th August, 2012 years, with effect from 15th July, 2012. THE NON-GOVERNMENTAL ORGANIZATIONS CO-ORDINATION Gazette Notice No. 520 of 2009, BOARD was revoked. IN EXERCISE of the powers conGazette Notice No. 10613 Dated ferred by section 5 (1) of the Non1st August 2012 Governmental Organizations Co-ordination Act, the Minister of TEA RESEARCH FOUNDATION OF State for National Heritage and KENYA Culture appointed IN EXERCISE of the powers conferred by section 6 (1) (b) of the State Corporations Act, the Minister for Agriculture appointed ELIUD KIPLIMO KIREGER (DR.) to be the Managing Director of the Tea Research Foundation of Kenya, for a period of three (3) years, with effect from the 1st August, 2012. HEZRON (DR.) OTIENO
FRED OBACHI MACHOKA as a member of the Kenya Cultural Centre Council, for a period of three (3) years. Gazette Notice No. 11410 Dated 8th June 2012 THE COFFEE DEVELOPMENT FUND IN EXERCISE of the powers conferred by section 34 of the Coffee Act, 2001, the Minister for Agriculture appointed Alice Njoki Kamau, Christopher Ombachi Gekara, Hellen Chege Njue, Joseph Kipchumba Lagat to be members of the Board of Trustees for the Coffee Development Fund, for a period of three (3) years, with effect from 8th June, 2012. Gazette Notice No. 11411 Dated 13th August, 2012 KENYA SEED COMPANY IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appointed FRANCIS KOECH CHEPLEL to be a member of the Board of Kenya Seed Company, for a period of three (3) years, with effect from 13th August, 2012.
MCOBEWA Gazette Notice No. 11412 Dated 13th August, 2012
to be Executive Director of the KENYA SUGAR RESEARCH FOUNNon-Governmental Organiza- DATION tions Co-ordination Board, for a IN EXERCISE of the powers conperiod of three (3) years. ferred by section 6 (1) (e) of the Gazette Notice No. 11016 Dated State Corporations Act, the Minister for Agriculture appointed 6th August, 2012
Gazette Notice No. 11010 Dated THE KENYA CULTURAL CENTRE JULIUS KIPLIMO MAINDI 26th July 2012 COUNCIL to be a member of the Board POLICYHOLDERS COMPENSA- IN EXERCISE of the powers conof Kenya Sugar Research FounTION FUND BOARD OF TRUSTEES ferred by section 3 (1) of the dation, for a period of three (3) Kenya Cultural Centre Act, the years, with effect from 13th AuIN EXERCISE of the powers con- Minister of State for National Heri- gust, 2012. ferred by section 179 (4) (a) of tage and Culture appointed Gazette Notice No. 11816 Dated the Insurance Act, the Minister for
67
8th August, 2012
IN EXERCISE of the powers conferred by section 4 (1) (a) of the COMMUNICATIONS APPEALS TRI- Gazette Notice No. 12074 Dated Universities Act, The President BUNAL 16th August, 2012 and Commander-in-Chief of the Defence Forces of the Republic IN EXERCISE of the powers con- CAPITAL MARKETS AUTHORITY of Kenya, appointed ferred by section 102 (2) of the Kenya Information and Commu- IN EXERCISE of the powers con- JANE NGIGE (MS.) nications Act, 1998, the Minister ferred by section 5 (3) (b) of the for Information and Communica- Capital Markets Act, the Minister to be Vice-Chairperson of the tions appointed for Finance appointed Commission for Higher Education, for a period of five (5) years, FATUMA SICHALE JUDITH WAMAITHA THUO with effect from 30th July, 2012. The appointment of Amb. Judith to be the Chairperson of the to be a member of the Capital Bahemuka (Prof.), as the ViceCommunications Appeals Tri- Markets Authority for a period of Chairperson of the Commission bunal, for a period of three (3) three (3) years, with effect from for Higher Education was reyears, with effect from the 19th the 2nd July, 2012. voked. July, 2012. The appointment of Rose M. Simba, was revoked. Gazette Notice No. 12075 Dated Gazette Notice No. 12424 Dated 16th August, 2012 3rd September, 2012 Gazette Notice No. 12066 Dated 24th August, 2012 PRIVATIZATION APPEALS TRIBU- COAST DEVELOPMENT AUTHORITY NAL AUTHORITY KENYA VISION 2030 DELIVERY BOARD IN EXERCISE of the powers con- IN EXERCISE of the powers conferred by section 44 (2) (b) of the ferred by section 4 (1) (a) of the IN ACCORDANCE with Gazette Privatization Act, the Minister for Coast Development, The PresiNotice No. 1386 of 2009, the Pres- Finance appointed dent and Commander-in-Chief ident and Commander-in-Chief of the Defence Forces of the Reof the Defence Forces of the Re- Margaret Gaitirira, public of Kenya, appointed public of Kenya appointedTimothy Kipchumba Biwott, Under section 2 (1) (f) to be members of the Privatiza- MARTIN M. J. TSUMA tion Appeals Tribunal for a pe- to be Chairman of the Coast DeBOB COLLYMORE riod of three (3) years, with effect velopment Authority, for a period from the 2nd July, 2012. of three (3) years. to be a member of the Vision Delivery Board (VDB), for a period of Gazette Notice No. 12077 Dated Gazette Notice No. 12426 Dated three (3) years. 27th August, 2012 3rd September, 2012 GAZETTE NOTICE NO. 12073 DAT- THE ENGINEERS BOARD OF KENYA ED 24TH AUGUST 2012 IN EXERCISE of the powers conTHE NATIONAL ECONOMIC AND ferred by section 5 (1) (a) of the SOCIAL COUNCIL (NESC) Engineers Act, 2011, the Minister PURSUANT to Gazette Notice No. for Roads appointed 7699 of 2004, The President and Commander-in-Chief of the De- DIONYSIUS MAINA WANJAU fence Forces of the Republic of (ENG.) Kenya appointedUnder section 1 (1) (c) to be the Chairperson of the EnOlive Mugenda (Prof.); gineers Board of Kenya, for a peUnder section 1 (1) (d) riod of three (3) years, with effect Naushad Noorali Merali, from 14th September, 2012. Kibby Kareithi, Patrick Obath (Eng.), Gazette Notice No. 12423 Dated Ratna Hirani; 3rd September, 2012 Under paragraph (1) (a) (e) Yun Long E. (Prof.); THE COMMISSION FOR HIGHER to be members of the National EDUCATION Economic and Social Council, for KENYA MEAT COMMISSION IN EXERCISE of the powers conferred by section 3 (1) (a) of the Kenya Meat Commission Act, The President and Commanderin-Chief of the Defence Forces of the Republic of Kenya, appointed ABDINASSIR ALI HASSAN to be Chairman of the Board of the Kenya Meat Commission, for a period of three (3) years. Gazette Notice No. 12427 Dated 7th September, 2012 NEW KENYA CO-OPERATIVE CREAMERIES
a period of three (3) years.
68
IN EXERCISE of the powers con- ter for Medical Services appointferred by section 5 (3) of the State ed Corporations Act, the Minister for Co-operative Development and ABEL ODHIAMBO ONYANGO Marketing appointed to be the Chairman of the Kenya SAMSON KIPLAGAT MUTTAI (DR.) Medical Laboratory Technicians as Director for New Kenya Co- and Technologists Board, for a operative Creameries, for a pe- period of three (3) years, with efriod of three (3) years, with effect fect from 6th August, 2012. from the 7th September, 2012. Gazette Notice No. 12434 Dated Gazette Notice No. 12428 Dated 11th August, 2012 3rd September, 2012 SUGAR ARBITRATION TRIBUNAL NATIONAL HOSPITAL INSURANCE IN EXERCISE of the powers conFUND ferred by section 31 (2) and 3 of IN EXERCISE of the powers con- the Sugar Act, 2001, the Minister ferred by section 4 (1) (j) of the for Agriculture appointed National Hospital Insurance Fund ODDAH NAFULA OWAKWABI Act, 1998, the Minister for Medi- to be a member of the Board of Sugar Arbitration Tribunal, for a cal Services appointed period of three (3) years, with effect from 11th August, 2012. Thomas Maara Gichuhi, Michael Sande (Rt. Rev.), to be members of the National Gazette Notice No. 12760 Dated Hospital Insurance Fund Board 11th September, 2012 of Management, for a period of three (3) years, with effect from SACCO SOCIETIES REGULATORY AUTHORITY (SASRA) the 9th August, 2012. Gazette Notice No. 12433 Dated IN EXERCISE of the powers conferred by section 6 (1) (e) of the 29th August, 2012 Sacco Societies Act, the Minister IN EXERCISE of the powers con- for Co-operative Development ferred by regulation 6 (1) of the and Marketing appointed Civil Aviation (Investigation of Accidents) Regulations, 1979, the DANIEL MARUBE Minister for Transport appoints as Director of the SACCO Societies Regulatory Authority (SASRA), MARTYNE LUTHER LUNANI for a period of three (3) years, to be Chief Inspector of Acci- with effect from the 10th Sepdents for a period of three (3) tember, 2012. years, with effect from 18th August, 2012, to 17th August, 2015. Gazette Notice No. 12761 Dated The appointment of Clatus Ma- 5th September, 2012 cowenga was revoked. CO-OPERATIVE TRIBUNAL Gazette Notice No. 12430 Dated IN EXERCISE of the powers con15th August, 2012 ferred by section 77 (1) (a) of the KENYA MEDICAL LABORATORY Co-operative Societies Act, the TECHNICIANS AND TECHNOLO- Minister for Co-operative Development and Marketing appointGISTS BOARD ed IN EXERCISE of the powers conferred by section 6 (2) of the Gideon Ongori Nyamwange, Medical Laboratory Technicians Javan J. Mwanzi Mukavale, and Technologists Act, the Minis- George Otieno Ochich,
as members of the Co-operative Tribunal, with effect from the 9th September, 2012, for a period of three (3) years. Gazette Notice No. 12762 Dated 30th August, 2012 COMMUNICATIONS COMMISSION OF KENYA IN EXERCISE of the powers conferred by section 6 (b) of the Kenya Information and Communications Act, 1998, the Minister for Information and Communications appointed FRANCIS WAMUKOTA WANGUSI to be the Director-General of the Communications Commission of Kenya, for a period of three (3) years, with effect from the 21st August, 2012. Gazette Notice No. 12763 Dated 21st August, 2012 POSTAL CORPORATION OF KENYA IN EXERCISE of the powers conferred by section 6 (1) (b) of the Postal Corporation Act, 1998, the Minister for Information and Communications appointed ENOCK KINARA (DR.) to be the Postmaster-General of the Postal Corporation of Kenya, for a period of three (3) years, with effect from the 21st August, 2012. Gazette Notice No. 12765 Dated 3rd September, 2012 THE KENYA FERRY SERVICES LIMITED IN EXERCISE of the powers conferred by paragraph 8 (1) (f) of the Memorandum and Articles of Association of the Kenya Ferry Services Limited, the Minister for Transport appointed EUNICE WANJA NJERU to be a member of the Board
69
of Directors of the Kenya Ferry Services Limited, for a period of three (3) years, with effect from the 31st August, 2012.
Gazette Notice No. 12766 Dated JOY KAVUTSI ASIEMA 3rd September, 2012 THE KENYA PORTS AUTHORITY
IN EXERCISE of the powers conferred by section 4 (f) of the Kenya Ports Authority Act, the Minister for Transport appointed
Directors of the Kenya Ports Authority, for a period of three (3) years, with effect from the 31st August, 2012. The appointment* of Eunice Wanja Njeru (Ms.), was revoked.
to be a member of the Board of
70
NATIONAL COUNCIL FOR LAW REPORTING'S ROLE IN THE JUDICIAL MARCHES WEEK HELD BETWEEN 21st TO 26th AUG 2012
By Carolyne Wairimu, Sales and Marketing Department.
Introduction
he Judicial Marches week was held on the 21st to 26th August 2012 as part of The Judiciarys mandate and vision of fostering partnerships with the public and stakeholders as a means of promoting access to justice for all. The aim of the Judicial Marches week was to enable the Judiciary to explain its work to the people and therefore creating meaningful linkeages with the public. It included a lot of countrywide activities in all Court stations running concurrently with the main opening event being held at the KICC on 21/08/12. As a key stakeholder in the Justice sector, The National Council for Law Reporting was invited for the launch at KICC, and to participate in public exhibitions. Activities Day 1- Inaugural Ceremony at KICC The National Council for Law Reporting , represented by Carolyne Wairimu, Sales and Marketing Department, Esther Ivy Njoki , Research and Development Department, Kasavu Musembi, Human Resource Department and Martin Mbui, ICT Department, attended the opening Ceremony at KICC grounds and manned the NCLR display and exhibition stand.
Mr.Michael Murungi, The Chief Executive Officer also attended the opening Ceremony and later the Public Lecture at the University of Nairobi, Taifa Hall, where the chief justice gave a public lecture on fostering the Judiciary- public relations. Of importance was the display and exhibition of our products which included the pocket size Constitutions of Kenya 2010, Kenya Law Reports, Laws of Kenya Volumes, Braille version of the Persons with Disabilities Act and the KLR Website that was running live. The exhibition went a long way for NCLR in explaining our mandate to the public which is the provision of public legal information, sensitizing them on where to find our products and how to access our website for services such as Cause List, Case Search, Bills, Acts and the Kenya Gazette. We were most glad to engage the public on our mandate as well as various issues that came up. There was an overwhelming demand for the pockect size constitution of Kenya 2010 which saw us give away over 2000 copies for free. Day 2-Kikuyu Law Courts On the second day of the Judicial Marches, we got a chance to join the Kikuyu Law Courts on their activities through an invitation by their Public Relations Officer, Ms.Ndorobo. This included a caravan road show graced by
The Hon. ( Dr.) Willy Mutunga, Chief Justice/President, Supreme Court of Kenya, Chief Magistrate for Kikuyu Law Courts Madam Margaret Gitonga, The Honarable Prof. Joel Ngugi, J. Head of Tr a n s f o r m a t i o n S e c r e t a r i a t , Member of Parliament Kabete Constituency Hon. Lewis Nguyai, among other Officers in the Judiciary and Goverment. The Hon. Chief Justice addressed the public and stakeholders at the Kikuyu Law Courts and reassured them of a Transformed Judiciary. There was also emphasis to the public for Alter nate Dispute Resolution(ADP). There was also entertainment and acrobats from inmates at the Kamiti Medium Security Prison who were accompanied by the Officer in Charge, Olivia L.A. Obell. Thereafter the road show commenced from Kikuyu town to Wangige through Lower Kabete (KIA) area to Waiyaki Way Uthiru, Kinoo and ended back at Kikuyu. During this time, the Hon. Chief Justice (Dr.) Willy Mutunga addressed the public at selected stop overs. The team from National Council for Law Reporting which included Carolyne Wairimu, Esther Ivy Njoki and Kasavu Musembi did well in distributing the pocket size Constitution of Kenya 2010 to the common mwananchi, where over 3000 copies were distributed. It was interesting to note that the
71
common mwananchi was very sensitization to the public on how eager to access the Constitution they can access public legal and learn what it says regarding information. their rights. There was also
The two day activities were exciting and fullfilling. It was good to be a part of a team that aims to promote access to justice for all.
CC I K t a y n o m e r e C l a r gu u a n I 1 Day
4
1-6
72
during ic l b u p e h engaging t d n a t s ir e h f at t at KICC y n o m NCLR Staf e r e C ral the Inaugu
Day
Marches l ia ic d u J s w Court - Kikuyu La
to constitution ving out the iyai. gu N is NCLR Staff gi w Le P, stituency M Kabete Con
h th g throug or perusin n. d n e v it u A fr itutio zed const pocket si
cket ut the po ff giving o tu driver. ta a m NCLR Sta a stitution to sized con
The Hon. Dr. Justice W.M. Mutung a, S.C. Chief Justice, President of the Supreme Court addressing mem bers of the public.
Members of the public listening keenly to the Chief Justice as they hold their pocket sized constitutions.
Pocket Sized constitutions read y to be distributed to members of the public at Kikuyu Law Courts.
ga, ce W.M. Mutun The Hon. Dr. Justi ent of the sid Pre & ce sti S.C. Chief Ju rs signs NCLR visito Supreme Court e pocket sized th ng ivi ce re r book afte constitution.
Inmates and Pri
Security Priso Kamiti Medium public. entertaining the
son Wardens fro
L.A. Obell, t Madam Olivia From right to lef Hon. e Th J. i, ug el Ng The Hon. Prof. Jo /President, ce sti Ju ga, Chief ( Dr.) Willy Mutun agistrate M of Kenya, Chief Supreme Court garet ar M am ad M urts for Kikuyu Law Co cy en bete Constitu Gitonga, MP Ka ai. uy Ng s wi Le Hon.
73
NCLR TAKES ITS CORPORATE SOCIAL RESPONSIBILITY A NOTCH HIGHER.

By Wanjala Sikuta, Legal Proof reader Laws of Kenya Department
n the 19th of October this year , The National Council for Law Reporting (NCLR) carried out various CSR activities in Bungoma County on the theme, Providing access to public legal information. Friends Secondary School, Bukembe ,was the first stop where part of NCLR staff had an opportunity to engage with the students, teachers and parents who had converged at the School. The career talk, held at the students parade square, drew the attention of all students from Form One to Form Four. In his presentation entitled: Making the best career choices, Mr. Christian Ateka, a team member, reminded the students of the importance of starting to think about their future career aspirations as early as now. He, however, highlighted peer group pressure, role models, household influence, interest, ability, availability of resources and sponsorship as the core factors that c a n i n fl u e n c e the students in making their best choice of career.
On what to be done to defy these influences, he encouraged the students to stay focused on getting good grades. He elaborated on the areas of focus in view of attaining ones career of choice with the respective Universities offering various Courses. He also admonished the students to discuss with as many career guiding professionals as possible about careers and higher institutions as this will assist their educational and career endeavors. Nonetheless, he advised parents and guardians not to impose careers on their children but instead, help students develop their areas of talents and potentials in order to tailor them to choose their careers in
line with such potentials. Speaking on what government can do to help matters, he recommended that, effective counseling units need to be enhanced and where they are not established, be established in secondary schools and the services of experienced counselors be employed. During the Question-answer session, the students expressing their joy with the career talk, one of the students, Goeffrey Wanyama noted: The talk was educative, so motivational and I have learned a lot about careermaking. Yet another student, Benjamin Otieno said that the programme was an enlightenment as it opened his eyes and broadened his scope on his career making. The teachers and parents in
NCLR Team aboard the vans entering the School

74 Issue 20 | July - December 2012
expressing their joy, appreciated the Councils initiative and advised the students to work hard and emulate the same effort and spirit as one of the Councils members, Moses Wanjala, was a former student of the school. This was indeed a lear ning experience for everyone present. Several copies of the pocket-size Constitution of Kenya, 2010, were given out to students, teachers, the Schools non-teaching staff, parents and also donated to the School for the Library.
1. NCLR Me mbers in Frie nds School, Buke mbe, Principals Office 2. The Scho ol Principal Mr. Ken Waliaula talking to the Students 3. M o se s Wa n ja la , N C LR team memb er introducing the team MEMBERS
4. NCLR TEAM
5. Christian Ateka Givin g a Career Talk 6. A teache r giving vote of thanks 7. NCLR me mbers, Teac hers and studen ts posing fo r a photo
3
76
On the 20th, NCLR Team carried out a County-wide civic education exercise through a roadshow which ended at the Wamunyiri Primary School Grounds where thousands of members of the public from the County had converged. Here NCLR members among other things taught the public on Bill of rights; ,constitutional provisions pertaining to land as well as matrimonial property rights.
1.
NC LR tea m rea dy to dis trib ute co pie s of the pocket-size Constitution of Kenya, 2010
2. Me mb ers of the pu blic queuing to receive copies of the Constitution
3. Cornelius Lupao , tea m member , addressing the public on the Bill of Rights as per the Constitution of Kenya, 2010. 4. A member of the Public asking a question 5. Mo ses Wa nja la, tea m member, addressing the Public on Devolution as provided in the Constitution of Kenya, 2010. 6. Jubilant members of the community upon receiving free copies of the Constitution of Kenya, 2010
77
3 3 4
78
7. The NCLR Team bein g received a group o in sty f members of the pub le by verged at lic conthe shool 8. Youths p osing for a photo with the Constit copies of ution 9. At the Eastleigh C hildrens H the Chick ome whe en were d re onated a the Home s a gift to . From Left is Geoffrey and 2nd le Andare ft is Moses Wanjala p photo with osing for a the Home administra some of th tors and e Children .
79
10
11
10. Some of the NC LR /BY-4 F Members ootball Te posing for am a photo. fourth from Front row right is Ge offrey And Standing Fo are and urth from rig ht is Moses and Innoc W ent Ayato anjala llah on the left. extreme 11. NCLR Football To urnament School Finals at th e
Members of the public were also taught on Devolution; structure of the devolved Government, the elections at the devolved Government level and national level. Wananchi in expressing their joy, thanked the Council for such an initiative. They asked questions to which members of the Council answered satisfactorily One elderly woman said,
by the Council with a view of this is the first time I have ever ensuring public access to justice received something for free from and the promotion of the rule of law. the Government . Every member of the public both on the Road show and at the school each received a copy of the pocket-size Constitution of Kenya, 2010. Indeed this was one of the massive community initiative taken In their joy and humble appreciation, they gave several chicken to the Council members as gifts. The climax of the Bungoma CSR activities ended at the Eastleigh Childrens Home where the Chicken were donated to the Childrens home.
80
The Children, Teachers and the sponsors of the Home were so happy of the Councils effort as a government institution to be the first to have ever contributed or donated to the home. At the end of it all, the Council's CSR initiatives in Bungoma was such a huge success both for the Community and the Council. As one Professor of the Harvard Business School, at the Business and Society Conference on Corporate Citizenship, Michael Por-
ter, once said; There is no way to avoid paying serious attention to corporate citizenship: the costs of failing are simply too high. ... There are countless win win opportunities waiting to be discovered: every activity in a firms value chain overlaps in some way with social factorseverything from how you buy or procure to how you do your researchyet very few companies have thought about this. The goal is to leverage your companys unique capabilities
in supporting social causes, and improve your competitive context at the same time. The job of todays leaders is to stop being defensive and start thinking systematically about corporate responsibility. It is on this basis that NCLR is looking forward to developing a robust CSR Strategy with a view of advancing its mission, vision and objectives which are tailored at creating a positive impact to the society.
12 13
12. Wo men p ose pro copies udly w of the ith Constit u t io n. 13 NC LR Team lea groun d s le d ves the Scho ols by the memb er ju b il a n Bodab s o f t h e p u t b li c a oda rid nd ers.
81
Feature Case
KENYAN COURTS HAVE JURISDICTION TO TRY OFFENCES OF PIRACY COMMITTED IN THE HIGH SEAS.
Attorney General v Mohamud Mohammed Hashi & 8 others Court of Appeal, at Nairobi, Civil Appeal No. 113 of 2011 J.W. Onyango Otieno, Alnashir Visram, M. K. Koome, H. M. Okweng & D. Maraga JJ A. October 18, 2012. Reported by Cornelius W Lupao, Advocate. Issues for determination:
Whether Kenyan courts have jurisdiction to try suspects in respect of Piracy Jure Gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas. Is the law of piracy jure gentium a crime recognized under the International Law? Which court in Kenya has jurisdiction to try the offence of piracy, the High Court or the Subordinate Courts? Whether there is a legislative misnomer regarding the provisions of Section 69 (1) of the Penal Code as read with Section 5; Does the repeal of a section of an Act of parliament have an effect on the prosecution of a criminal c a s e w h i c h o c c u r re d before the repeal of the section?
State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand. High Seas - means all parts of the sea that are not included in territorial sea or internal waters of a State. The Concept of Universal Jurisdiction - The principle of universal jurisdiction holds that certain crimes are of such a serious nature that any state is entitled, or even required, to apprehend and prosecute alleged offenders regardless of the nationality of the offenders or victims, or the location where the offence took place. Statutes - interpretation of statutes-whether a repeal of a section of an Act of parliament has effect on the prosecution of a criminal case which occurred before the repeal of the section. Statutory Law - i nternational statutes- Kenya being a signatory to an international statute i.e. United Nations Law of the Sea Convention [UNCLOS] of 1982-applicability of the statute to the Kenyan Jurisdiction. Jurisdiction - concept of universal jurisdiction -jurisdiction of the states to try extra -territorial offences that threaten peace-nature of the offences to be tried under universal jurisdiction-courts with jurisdiction to try piracy offences in Kenya. Held:
1.
Though the suspects had been charged under section 69 of the Penal Code which was subsequently repealed by the Merchant Shipping Act, 2009, the repeal of section 69 of the Penal Code did not affect the continued prosecution of the case against the suspects. By dint of Section 23 (3) of the Interpretation and General Provisions Act, a repeal of a law unless a contrary intention is expressly provided does not affect an ongoing prosecution
2. The repealed section, 69, fell within Chapter VIII of the Penal Code which dealt with offences affecting relations with foreign states and external tranquility which provided in very clear terms and gave jurisdiction to Kenyan courts to deal with crimes of piracy jure gentium which were committed in the territorial waters or upon the high seas. 3. Section 5 of the Penal Code provided for local jurisdiction while Section 69 (1) as read with Section 69 (3) of the Code donated as at that effective time jurisdiction to try piracy Jure Gentium on the High Seas. The High Court misconstrued the territorial
Words and phrases: Piracy jure gentium -The phrase piracy jure gentium is a Latin phrase which means piracy by the law of nations or piracy as known in international law. A pirate is defined as one who, without legal authority from any
82
application of the law as provided for under Section 5 of the Penal Code, which defined the geographical jurisdiction of the courts. There was therefore no basis for the court's finding that Section 5 superseded Section 69. That section should have been read together with Section 69 which extended the jurisdiction of offences partly committed in Kenya and beyond the Kenyan courts. Thus, the Kenyan courts have jurisdiction to try such cases. 4. Even if the High Court found that there was legislative misnomer, that could easily have been resolved by falling back on the provisions of the United Nations Law of the Sea Convention [UNCLOS] of 1982, to which Kenya is signatory and by dint of Article 2 (5) of the Constitution, UNCLOS is part of the Kenyan laws. UNCLOS provides for offences of piracy and gives any state jurisdiction to try them. Any crime committed outside the jurisdiction of any state is governed by international law. So the impression the High Court created that by repealing Section 69 of the Penal Code Parliament abolished the international crime of piracy in Kenya was clearly wrong. 5. Even if the repeal of Section 69 of the Penal Code abolished the inter national crime of piracy, that could not have availed the suspects in this matter in view of Section 23(3) of the Interpretation and General Provisions Act. The relevant portions of the latter in essence provides that the repeal of a statutory provision does not affect any existing legal proceeding under
it and that the same shall proceed as if the repealing written law had not been made. 6.The customary international law gives universal jurisdiction to all countries to deal with crimes committed outside the territorial jurisdiction. Offences that threaten world peace are also threats to humanity and the courts have ruled that such crimes are punishable in martial courts. Piracy jure gentium has for centuries been considered a universal jurisdiction crime based also on international agreements that authorizes all nations to capture and punish a pirate. 7. Based on the rationale that the inter national community should ensure there is no safe haven for those responsible for the most serious crimes, the concept of universal jurisdiction therefore allows all international states to bring the perpetrators to justice. This authority derives from the principle that every state has an interest in bringing to justice the perpetrators of international crimes. All states are therefore obliged to act as guardians of international law and on behalf of the international community to prosecute international crimes regardless of the place of commission of the crime, or the nationality of the author or of the victim 8. The offence of piracy jure gentium is an offence against international customary law; it is part of the laws of nations. The offence of piracy jure gentium is codified through treaties and also domesticated through the penal code and presently
the Merchant Shipping Act. 9. For the piracy offences committed after the 27th August 2010 when the Constitution of Kenya, 2010 ,was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law have added constitutional authority to prosecute piracy and other international crimes.
10. It is the Kenyan subordinate courts presided over by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate or a Senior Resident Magistrate, which have jurisdiction to try the offence of piracy. 11. The High Court, in making its decision based on some seminal materials that had been canvassed at a seminar outside Kenya. These were, as is normal with seminars and conferences, proposals that were canvassed, but they remained no more than that. They never crystallized into any legal authorities that could be relied upon to make a judicial decision of the magnitude that was made by the High Court. 12. Obiter; Per Koome JA: '' This judgment also failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review. For example, in the case of United States District Court for Eastern District of Virginia Norfolk Division, USA Vs Mohamed Madin Hassan & 4 Others, a court in the United States
83
made reference to the application of UNCLOSS as part of customary inter national law and also made reference to a Kenyan decision as thus: Moreover, the courts of other countries have held UNCLOSS to be applicable as customary
Supreme Court Cases

SECTION 14 OF THE SUPREME COURT ACT UNCONSTITUTIONAL
Application No. 2 of 2011 Supreme Court of Kenya at Nairobi W.M. Mutunga, CJ, P.K. Tunoi, J.B. Ojwang, S.C. Wanjala, N.S. Ndungu, SCJJ. October 23, 2012 Reported By Njeri Githanga Kamau, Advocate
international law in concrete cases, as reflected in recent judicial decisions from Kenya, the country currently handling many modern piracy cases. Courts in Kenya have relied on the piracy provisions in UNCLOSS to interpret their own domestic criminal code proscribing general piracy.........................................
.. This decision as rightly observed even by the US Federal Court in the case of USA vs Hassan (supra) represents the correct interpretation of the law. ''
Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited & 2 others
Issues: i. Whether Section 14 of the Supreme Court Act in so far as it provides the Supreme Court with special jurisdiction was unconstitutional. ii. Whether the failure to enjoin the Liquidator, who has to seek leave of the Court to sue on behalf of the Company as required by s. 241 of the Companies Act, in a suit instituted by the major shareholder of a company under receivership fatal. iii. Whether the first applicant needed to obtain leave of the Court before joining the second applicant in the proceedings within the wording of Section 241(1) of the Companies Act while it was under receivership and if so, whether failure to apply and obtain such leave was so fatal as to render the
application untenable. iv. Whether the facts as deponed in the application by the first applicant and all surrounding circumstances met the threshold set out in Section 14 of the Supreme Court Act so as to bring the application within the ambit of the Courts special jurisdiction. v. Whether the special jurisdiction under Section 14 was appellate in nature and therefore one of the categories of appeal contemplated by Article 163 (4) of the Constitution. vi. W hether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010. vii. Whether the Supreme Court had jurisdiction to
hear applications for leave to appeal. Jurisdiction special jurisdiction of the Supreme Court- special jurisdiction under Section 14 of the Supreme Court Act- where the Supreme Court Act was enacted pursuant to Article 163 (9) of the Constitution-where the Act contemplated by Article 163(9) was operational in nature-where the Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitutionwhether the section was constitutional insofar as it conferred special jurisdiction upon the Supreme Court- Constitution of Kenya, 2010 Article 163 (9)-Supreme Court Act section 14 Civil Practice and Procedure application for leave-application for leave to appeal against the judgment of the Court of Appeal-application brought under Article 163 of the Constitution, as read together with Sections 14 to 16 of the Supreme Court Act, 2011 and Rule 21 of the Supreme
84
Court Rules-where section 14 of the Supreme Court Act provided for review of judgment of a judge who had been removed, resigned or retired from officewhether the Supreme court had jurisdiction to entertain the application under the circumstancesConstitution of Kenya, 2010 Article 163- Supreme Court Act, 2011 Sections 14 to 16 Interpretation of statutes - retrospective or retroactive legislation- where the judgment against which an appeal was sought was delivered before the Constitution of Kenya 2010 was promulgated and the Supreme Court established-Whether Article 163 (4) (b) of the Constitution was intended to confer appellate jurisdiction upon the Supreme Court the exercise of which would have retrospective effect upon the vested rights of individuals
of the commencement of this Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge-
Jurisdiction Appellate Jurisdiction- Supreme Courts Appellate Jurisdiction- circumstances under which to be invoked- Constitution of Kenya 2010, Article 163 (4) (b) 1. A Courts jurisdiction flows from either the Constitution Words and Phrases review and or legislation or both. appeal-where an appeal enThus, a Court of law can tailed some form of review of a only exercise jurisdiction lower Courts decision in terms of as conferred by the assessing that Courts interpretaconstitution or other written tion and application of the lawlaw. It cannot arrogate to whether an appeal was the itself jurisdiction exceeding same as a review in the technithat which is conferred cal sense-whether the two could upon it by law. The issue as be used interchangeably to whether a Court of law has jurisdiction to entertain Company Law joinder of liquia matter before it, is not dator lack of joinder of liquidaone of mere procedural tor in a suit where the company technicality; it goes to the is being wound up whether divery heart of the matter, rectors or shareholders can sue for without jurisdiction, the on behalf of a company being Court cannot entertain wound up whether the lack of any proceedings. joinder of liquidator to a suit is fatal to the suit 2. Where the Constitution e x h a u s t i v e l y p ro v i d e s Section 14 of the Supreme Court for the jurisdiction of a Act provides: Court of law, the Court must operate within Special Jurisdiction the constitutional limits. It cannot expand its 14. (1) To ensure that the ends jurisdiction through judicial of justice are met, the Supreme craft or innovation. Nor Court shall, within twelve months can Parliament confer
(a) removed from office on account of a recommendation by a tribunal appointed by the President, whether before or after the commencement of this Act; or (b) removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011 (No. 2 of 2011); or 3. The special jurisdiction conferred upon the (c) who resigns or opts to retire, Supreme Court by section whether before or after the com14 of the Supreme Court mencement of this Act, in conAct is not appellate in sequence of a complaint of misnature. The Supreme Court conduct or misbehavior. Act was enacted pursuant to Article 163 (9) of the (2) To qualify for review under Constitution. The Preamble subsection (1), the judgment to the Act states that it is or decision shall have been the AN ACT of Parliament to basis of the removal, resignation make further provision with or retirement of, or complaint respect to the operation against, the judge. of the Supreme Court pursuant to Article 163(9) Held: of the Constitution. 4. The Act contemplated by Article 163(9) was operational in nature. Such an Act was intended to augment the Rules made by the Supreme Court for the purpose of regulating the exercise of its jurisdiction. It is an Act that must confine itself to the administrative aspects of the Court. It is a law that addresses the manner in which the Supreme Court exercises its jurisdiction as conferred by the Constitution or any other legislation within the meaning of Article 163 (4) (b) (ii). Such an Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution. The national legislation referred to in Article 163 (4) (b) (ii) is not the same as the one referred to in Article 163 (9). The former is capable of conferring jurisdiction
85
jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
upon the Supreme Court. The latter is not. 5. Section 14 of the Supreme Court Act was unconstitutional insofar as it purports to confer special jurisdiction upon the Supreme Court, contrary to the express terms of the Constitution. Although Parliament had good intentions in providing for the extra jurisdiction for the Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on Transitional Provisions. 6. Section 241 of the Companies Act is an enabling provision, enabling the Liquidator to represent the company, but does not divest the power of the directors to sue on behalf of the company. The application of section 241 in the case in question was a procedural technicality which could not be upheld as against Article 159 of the Constitution of Kenya, 2010. 7. A plain reading of section 241(1) of the Companies Act clearly showed that its main purpose is to establish the frontiers of the liquidators powers in a winding-up of a company by the Court. One of those powers was to bring or defend any action or other legal proceeding in the name and on behalf of the company. However, before the liquidator commences proceedings or participates in proceedings on behalf of the company, he must obtain the sanction or leave of the Court. The requirement of sanction of the Court was directed at the liquidator.
8. The respondents were no longer debenture-holders. Their only interest in the matter was to maintain the status quo, following the Court of Appeals decision pursuant to which they were relieved of paying a huge sum of money to the applicants. Hence they had no interest whatsoever in the affairs of the second applicant. Neither were they affected in any way by the liquidation of the second applicant. Their opposition to the application for leave on the basis of Section 241(1) of the Companies Act was an attempt to frustrate the first applicants pursuit of what he believed either rightly or wrongly belonged to him. Even if the respondents were debenture-holders and the second applicant had been placed under receivership at their instance, the facts in the case were such that the court would have been inclined to apply the principle in Newhart Development Ltd. 9. Under section 14 of the Supreme Court Act, only the judgment of a judge who had been removed, resigned or retired from office could be reviewed under section 14. While the judgment of the Court of Appeal was the basis of the complaint against the three judges, (Tunoi JA, as he then was, Githinji and Onyango, JJA) none of them was removed, retired or opted to resign from office following their vetting by the Vetting Board. No other meaning could be imported into section 14. The applicant could not avail himself of the promise for justice embedded in that section. 10. The words review and appeal could not
be used interchangeably at the litigants election when seeking a higher Courts intervention in a matter already decided by a lower Court. Neither section 23 of the Transitional Provisions to the Constitution of Kenya, 2010 nor Article 163 (3) and (4) of the Constitution gave the impression that an appeal bears the same meaning as a review. 11.While an appeal entails some form of review of a lower Courts decision in terms of assessing that Courts interpretation and application of the law, it is not the same as a review in the technical sense. In that regard, Section 14 of the Supreme Court Act conferred powers of review upon the Supreme Court through a special jurisdictional regime. The Supreme Court can even act on its own motion and review judgments that fall within the ambit of that section. It has powers to conduct preliminary enquiries and call for evidence. This kind of jurisdiction was inconsistent with an appellate jurisdiction whose features were readily recognizable. The application for leave to appeal could not be grounded on Section 14 of the Supreme Court Act. 12.Only two types of appeal lay to the supreme court: a. The first type of appeal lies as of right if it is a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from the Supreme Court or Court of Appeal. b. The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the
86
Kenya Law Reports certification by either Court which constitutes leave. That meant that where a party wished to invoke the appellate jurisdiction of the Court, then such intending appellant had to convince the Court that the case was one involving a matter of general public importance. The appellants could not hence base their application for leave to appeal against the decision of the Court of Appeal on section 14 of the Supreme Court Act. 13.It would be good practice to originate the application for leave to appeal against a decision of the Court of Appeal under Article 163 (4) (b) of the Constitution of Kenya, 2010 in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. If the Applicant should be dissatisfied with the Court of Appeals decision in that regard, it is at liberty to seek a review of that decision by this Court as provided for by Article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to the Supreme Court in search of a certificate for leave would lead to abuse of the process of Court. 14. Article 163 (4) (b) of the Constitution of Kenya, 2010 clearly intended to give the Court of Appeal the first option to consider an application for certification. It also intended to give the would-be respondent the earliest opportunity to challenge an intended appeal to the Supreme Court. Such a party would be expected to argue that the case does not qualify to be accelerated
to this Court, because it is not one involving a matter of general public importance. Another feature of Article 163 (5) is that it affords the intending appellant a second chance to seek certification to appeal to the Supreme Court. 15. Those seeking certification to appeal from the Court of Appeal on the basis of Article 163 (4) (b) have to originate their applications in that Court. The Court of Appeal when faced with such an application must entertain it notwithstanding the fact that there is no rule of procedure providing for how the said application is to be made. The right to seek certification stems from the Constitution and it is on that basis that it is exercised. For the course of experience shows cases in which appeal to the Supreme Court has been sought on grounds other than of merit, the Court of Appeal has the casemanagement obligation to grant leave only for weighty cause.
16. The general rule for non-criminal legislation was that all statutes other than those which were merely declaratory or which 19. The applicants relate only to matters of procecould not reopen a case dure or evidence are prima fat h a t w a s fi n a l i z e d b y cie prospective, and retrospecthe Court of Appeal (by tive effect is not to be given to then the highest Court them unless, by express words or in the land) before the necessary implication, it appears commencement of the that this was the intention of the Constitution of Kenya, legislature. 2010. Decisions of the Court of Appeal were 17. A retroactive law is not unfinal. The parties to the constitutional unless it: appeal derived rights, and incurred obligations (i) is in the nature of a bill of from the judgments of attainder; that Court. If the Supreme (ii) impairs the obligation Court were to allow under contracts; appeals from cases that (iii) divests vested rights; or had been finalized by the (iv) is constitutionally Court of Appeal before forbidden. the Commencement of the Constitution of Kenya, 18. A Constitution is 2010, it would trigger a not necessarily subject
Bench Bulletin to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forwardlooking, and do not contain even a whiff of retrospectivity, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.
87
turbulence of pernicious proportions in the private l e g a l re l a t i o n s o f t h e citizens. 20. A final judgment by the highest court in the land at the time vested
certain property rights in, and imposed certain obligations upon the parties to the dispute. Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court
to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution. Application dismissed, each party to bear its own costs
ADVISORY OPINION OF THE SUPREME COURT IN THE MATTER OF THE PRINCIPLE OF GENDER REPRESENTATION IN THE NATIONAL ASSEMBLY AND THE SENATE Advisory Opinion No. 2 of 2012 Supreme Court of Kenya W.M Mutunga P.K Tunoi, J.B Ojwang, S.C.Wanjala and N.S Ndungu (SCJJ) December 11, 2012 Reported by: Rose Wachuka & Samuel Ngure (Legal Researchers, Supreme Court of Kenya)
n the Matter of Attorney General , in the matter of the Principle of Gender Representation in the National Assembly and the Senate and in the Matter of Presidential Election Petitions after the first round of Presidential elections. Constitutional Law jurisdiction - Advisory opinion jurisdiction of the Supreme Court whether the gender question in the electoral process concerned National Government exclusively and was unrelated to County Government - whether the Supreme Court had the authority to issue an advisory opinion Constitutional Law - Progressive realization of a right-what constitutes Progressive realization of a right - the role of the legislature in enacting legislation for timespecified rights, crystallization of rights in the absence of specific legislation as contemplated by the Constitution - whether the gender principle in the Constitution should be realised immediately or progressively - whether an interpretation in favour of a progressive approach contradicts the principle of a holistic implementation of the Constitution - whether an interpretation
calling for progressivity offends the principle of separation of powers because the Judiciary has no role on standard setting and implementation which are reserved for the Executive Constitutional Law - Gender quotas - the implementation of soft and hard quotas - implementation of the one-third to two-thirds gender principle under the Constitution Constitutional Law - interpretation of statutes - interpreting the word shall when used in different contexts within the Constitution - whether the word shall connotes a mandatory obligation whether the general guiding principles in the Constitution should be interpreted in the same way as specific quantized rights under the Constitution. Constitutional Law - Supreme Court of Kenya, the role of the Supreme Court as the guardian of public interest in constitutional governance Constitutional Law - Presidential election petitions - the jurisdiction of the Supreme Court in resolving disputes not covered under Article 140 of the Constitution - whether there are other
categories of disputes arising in Presidential elections other than those envisaged under Article 140 of the Constitution - whether a dispute arising out of the first round of Presidential elections can be resolved by the Supreme Court and within 30 days in accordance with Article 138 (5) in time for the second round of Presidential elections The Attorney General on behalf of the government sought an Advisory Opinion from the Supreme Court through a reference dated 8th October 2012 on two matters; i. Whether Article 81 (b) as read with Article 27 (4), 27(6), 27(8), Article 96, Article 97, Article 98, Article 177 (1)(b), Article 116 and Article 125 of the Constitution requires progressive realisation of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013. ii. Whether an unsuccessful candidate in the first round
88
of presidential election under Article 136 of the Constitution or any other person is entitled to petition the supreme court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution. Held 1. As signaled in this Courts fi r s t A d v i s o r y - O p i n i o n application [In the Matter of the Interim Independent Electoral Commission as the Applicant, Sup.Ct. Const. Application No. 2 of 2011], an opinion will be given only in exceptional circumstances, when the various organs established under the Constitution are, for cause, unable to exercise their authority to resolve major governance issue; when the issues involved are weighty and of constitutional significance; and when the public interest in the matter is manifest. 2. Only a truly deserving case will justify the Courts Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to firstinstance-Court litigation 3. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing rich jurisprudence that respects Kenyas history and traditions and facilitates its social, economic and political growth.
4. The basic requirement for an application for an opinion is that it should, as contemplated by Article 163(6) of the Constitution, be seeking to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest. 5. The Attorney-Generals request for an Advisory Opinion raises issues of great public importance. The forthcoming general elections are not only the most important since independence, but are complex and novel in many ways. The elections come in the context of the first progressive, public-welfare-oriented, historic Constitution which embodies the peoples hopes and aspirations. Not only are these elections one of the vital processes instituted under the Constitution, but they constitute the first act of establishing a whole set of permanent governance organs. Clearly, any ambivalence or uncertainty in the path of such crucial elections must, as a matter of public interest, be resolved in time: and the task of resolution rests, in the circumstances prevailing, with the Supreme Court, by its Advisory-Opinion jurisdiction. 6. Progressive realisation connotes a phased out attainment of an identified goal. 7. The expression progressive realisation is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal, a human rights goal which by its very nature, cannot be achieved
on its own, unless first, a certain set of supportive measures are taken by the State. The exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including affirmative action. 8. Whether a right is to be realized progressively or immediately is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; it depends on the mechanisms provided for attainment of gendere q u i t y ; t h e n a t u re o f the right in question; the mode of constitution of the public body in question e.g. appointive of elective; if elective, the mode and control process for the election); the identity and character of the players who introduce the candidates for appointment or election and on the manner of presenting candidature for election or nomination. 9. T h e expression progressive realization as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed. 10. It is not the classification of a right as economic, social, cultural, civil or political that should suit a
89
particular gender-equity claim to the progressive mode of realization; it is the inherent nature of the right, that should determine its mode of realization. 11. Article 81(b) of the Constitution standing as a general principle cannot r e p l a c e t h e s p e c i fi c provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and senate are concerned. This is the burden of our opinion on this matter-that it cannot be enforced immediately. 12.If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the elections of 4 March 2013, then it is our opinion, Article 81(b) will not be applicable to the said elections. The effect is that Article 81(b) of the Constitution is amenable only to progressive realization even though it is immediately applicable in the case of County Assemblies under Article 177. 13.The Provision in Article 27(6) for the State to take legislative and other measures, including a f fi r m a t i v e a c t i o n programmes and policies designed to redress any disadvantage suffered by individuals or groups presupposes open-ended schemes of decision making and programming, which can only be effected over a span of time. By accommodating such prolonged time-spans of action by the legislative and Executive branches, the Judiciary by no means negates the principle of
separation of powers. 14.Hard gender quotas such as may be prescribed, are immediately realizable whereas soft gender quotas as represented in Article 81(b) with regard to the National Assembly and Senate are for progressive realization. 15.Bearing in mind the terms of Article 100 on promotion of representation of marginalised groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation], legislative measures for giving effect to the one-third-to-twothirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015. 16.The word shall will translate to immediate command only where the task in question is a cutand-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency. 17.The word shall may be used in a different context, to imply the broad obligation which is more institutionally spread-out, and which calls for a chain of actions involving a plurality of agencies; when shall is used in this sense, it calls not for immediate action, but for the faithful and responsible discharge of a public obligation; in this sense, the word shall incorporates the element of management discretion on the part of the responsible agency or agencies 18.In the context of human
rights, the word shall is perceived as an emphasis on the obligation to take appropriate action, in the course of the progressive realization of a right conferred by the Constitution. 19.Election of the President is a process, beginning from primary elections to the final election which will lead to the identification of the President-elect. 20.There are potential disputes from Presidential elections other than those expressly mentioned in Article 140 of the Constitution. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages. 21.Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might arise during the conduct of the election. 22.It is our unanimous opinion that the validity of the Presidential election is not for deter mination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.
90
23.Presidential-election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within practical time-lines to be read into Article 138(5); and in our unanimous opinion, in the event of a second round of election, the words within thirty days after the previous election should be read to mean thirty days from the date on which disputes in respect of the first round will have been resolved. As per W. Mutunga CJ (Dissenting) 1. Matters of who are peoples representatives in Parliament and the Senate are central to county governments. The constitution and validity of these two houses of Parliament therefore will affect their ability to deliver on these key obligations to county governments. The gender question is one that is quintessential to determining their validity. The issue of two-third gender principle in the elections to Parliament and the Senate is a matter concerning county government. So is the election of the President. Thus the Supreme Court has jurisdiction to hear the Reference by the Attorney General and deliver an Advisory Opinion. 2. In interpreting the Constitution and developing jurisprudence, the Court will always take a purposive interpretation of the Constitution as guided by the Constitution itself. 3. The obligation of the Supreme Court is to
cultivate progressive indigenous jurisprudencegrown out of our own needs, without unthinking deference to that of our other jurisdictions and courts, however distinguished. 4. There is no violation of the principle of separation of powers in the Supreme Court's rendering of this Advisory Opinion under Article 163 (6). The Court's role is clearly defined in the Constitution. There is no evidence that the Court in exercising its constitutional mandate in this Reference has in any way entered the constitutionally preserved mandates of the Executive and Parliament. 5. Furthermore, the Supreme Court has power to declare Parliament unconstitutionally constituted. It is this Court's duty to defend the Constitution, and ensure that all bodies within it are constituted constitutionally and employ all powers donated by the People to it constitutionally. 6. The Constitution's view to equality, as one of the values provided under the constitution is not the traditional view of providing equality before the law. Equality is substantive, and involves undertaking certain measures, including a f fi r m a t i v e a c t i o n , t o reverse negative positions that have been taken by society. Where such negative exclusions pertain to political and civil rights, the measures undertaken are immediate and not progressive. 7. From article 27 of the Constitution, and from CEDAW, it is clear that disenfranchisement of the
Kenyan women in the political arena is a form of discrimination. Kenyans, particularly women, when they voted for a new constitution, had in mind the continuous and consistent struggle for their equity and equality in all spheres of life. 8. A r t i c l e 1 7 7 ( g i v i n g a formula for gender equality in county government) is a clear proof of the submission for immediate realization of the twothirds gender principle. There is no reason that a constitution that decrees non-discrimination would discriminate against women running for Parliament and the Senate. There is no constitutional basis for discrimination among women themselves as the consequence of the progressive realization of the two-thirds gender principle would entail. A constitution does not subvert itself. Deciding that women vying for county representation have rights under constitution while their counterparts vying for Parliament and the Senate are discriminated against would result in that unconstitutional position. 9. T h e S t a t e h a s b e e n implementing the principle as a matter of clear policy. Stakeholder convening and discussions on the two-thirds gender principle has always been about implementation and not interpretation. Parliament cannot then, by its silence, deprive women the right to equal representation. There is no reason to doubt the patriotism of the current Parliament that is fully aware of the constitutional consequences of refusing to legislate. In the event that Parliament fails
91
to legislate, any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void.
10. The immediate implementation of the two-thirds gender principle is reinforced by values of patriotism, equity, social justice, human rights, inclusiveness, equality
and protection of the marginalized. Such values would be subverted by an interpretation of the provisions that accepts progressive realization of this principle.
ADJOURNMENT OF SUPREME COURTS HEARING

Hon. Lady Justice Nancy Makokha Baraza v. The Tribunal Investigating The Conduct Of The Hon. Deputy Chief Justice & Vice-President Of The Supreme Court of The Republic of Kenya Petition No. 7 of 2012 Supreme Court of Kenya at Nairobi W. Mutunga CJ; P. K. Tunoi, J. B. Ojwang, S. C. Wanjala, N. S. Ndungu, SCJJ. October 17, 2012 Reported by Njeri Githanga Kamau, Advocate
Issue:
Application for adjournment of the hearing of an appeal on the ground of absenteeism of the appellants counsel - The appellants counsel having been on a retreat in Europe that had been organized by the Law Society of Kenya. Civil Practice and Procedureadjournmentapplication for adjournment-appellants advocate having been absent to prosecute the appeal without briefing another counsel to argue the matter- where the matter was of public interest-whether the application could be allowed
brief any other Counsel to argue the matter smacked of arrogance, disrespect and negligence on her part. 2. The Court would not allow Counsel to treat it with disrespect or arrogance. The matter was one of public interest and the Court in giving Counsel the hearing date of the appeal was fully aware of that fact. The court was the Supreme Court of Kenya, the apex Court in the nation. The court's schedule would not be based on the convenience of Counsel and all counsel appearing before the Supreme Court needed to take heed. 3. The advocate would personally pay the costs of the adjournment. Orders i. A p p l i c a t i o n for
adjournment allowed. ii. Appeal to be heard at 10.00 a.m. on October 23, 2012. iii. T h e C o u r t w o u l d not entertain further applications for adjournment. iv. If the appellant wished to respond to the Respondents submissions then this had to be done on or before Monday, October 22, 2012. v. Mrs. Guserwa (advocate for the appellant) to personally pay the costs of the adjournment. Editorial note The appellant, Nancy Makokha Baraza, the Hon. Deputy Chief Justice & Vice-President of the Supreme Court of the Republic of Kenya resigned on October 18, 2012.
Held: 1. The reasons for the counsels absence to prosecute the appeal, and her failure to fully
92
APPELLATE JURISDICTION OF THE SUPREME COURT

Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another Petition 3 of 2012 Supreme Court of Kenya P. K. Tunoi & S. C. Wanjala SCJJ. October 4, 2012 Reported by Njeri Githanga Kamau, Advocate
Issues (i) Whether the Appellants required obtaining leave of the Court before filing their Appeal to the Court? If so, from which Court was the leave to be obtained?
Held: 1. Only two types of appeals lie to the Supreme Court from the Court of Appeal. a. The first type of appeal lies as of right if it is from a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal. b. The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of the Court on grounds other than that the case is one which involves the interpretation or application of the Constitution, then such intending appellant must convince the Court that the case is one involving a matter of general public importance. If the Court of Appeal is convinced that such is the case and the certification is affirmed by the Supreme Court, then the intending appellant may proceed and file the substantive
(ii) whether the appeal constituted an abuse of the process of court on grounds that it canvassed matters that were pending for determination before the Court of Appeal hence Sub- Judice (iii) Whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and whether the Court required to assume supervisory appellate jurisdiction and inquire into the matter. Jurisdiction - Appellate Jurisdiction of the Supreme Court-appeal on an interlocutory order from the court of appeal- Whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and whether the Court required to assume supervisory appellate jurisdiction and inquire into the matter-Constitution of Kenya, 2010, Article 163 (4) (b)
appeal. The question as to what constitutes a matter of general public importance is one that is bound to be addressed by the Supreme Court in the foreseeable future as litigants seek certification or leave to lodge appeals on that basis. 2. The appeal was not based on Article 163 (4) (b) of the Constitution of Kenya, 2010 hence the appellants did not need to obtain prior leave or certification by either the court of Appeal or the Supreme Court before filing their Appeal. 3. E v en i f i t were to b e assumed that the Court had appellate jurisdiction in appeals against interlocutory orders, the interlocutory order the nature of which was being appealed against in the case in question was not one that would inspire the Court to exercise jurisdiction in favour of the appellants. At any rate, such a scenario could revive the question as to whether prior leave of the Court would be necessary. 4. The court had no jurisdiction in respect of the appeal. The appellants had to take advantage of the
93
stay granted by the Court of Appeal and seek a quick disposal of the issue of legal representation by the Court of Appeal so that proceedings in the main High Court Case
Number 279 of 2003 could commence expeditiously. That was the only logical course of action open to the appellants. Petition dismissed.
Cases referred to Erad Suppliers &General Contractors Limited V. National Cereals & Produce Board SC Petition No. 5 of 2012.
JURISDICTION OF THE SUPREME COURT TO INTERPRET THE CONSTITUTION

Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board Petition No. 5 of 2012 Supreme Court of Kenya at Nairobi J.B. Ojwang, N.S. Ndungu, SC JJ September 12, 2012 Reported by Njeri Githanga Kamu, Advocate
Constitutional Law - interpretation and application of the Constitution-constitution of a supreme court bench - definition of the word proceedings under Art.163 (2) of the Constitution-where steps of the Court run in a series of events the last being, the hearing and determ ination of the substantive cause, which had to be before the full Bench of five Judges - responsibility of the Court to fix the operative meanings of the relevant provisions circumstance under which a bench of less than five can sit-where a limited bench of the court could deal with the preparatory steps including settling of deserving legal procedural issues to facilitate case management - whether a two judge bench had jurisdiction to determine the issue of jurisdiction of the Supreme court to determine a matter - Constitution of Kenya, 2010 Art.159 (2) (d) Constitutional Law - Interpretation of the constitution - jurisdiction to interpret the Constitutionwhether the Supreme Court can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance Issues: 1. Whether the Supreme Court
can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance. 2. Whether a two-judge bench of the Supreme Court has the competence to hear such a matter especially on the issue of jurisdiction. Held; 1. The Court, in giving meaning and effect to the drafts-persons language, cannot be purely technical or literal. The Court must take into account the reality and the context as a whole so as to give meaning to the provisions: in particular the definition of the word proceedings under Art.163 (2) of the Constitution. The steps of the Court run in a series of events and it is the last event, namely, the hearing and determination of the substantive cause, that must come before the full Bench of five Judges; and that is what amounts to hearing-proceedings before the Supreme Court.
2. In the run-up to the hearing before the fi v e - J u d g e B e n c h , there are preparatory steps beginning with proceedings on record before the Supreme Court Registrar, to any settling of deserving legalprocedural issues before a more limited Bench of the Court, and ending up with the substantive hearing before a Bench of five Judges. Without this mode of case-management, the task of the Court under the Constitution would be incapacitated. This would be contrary to Art.159 (2) (d) of the Constitution. It was therefore, the courts duty to give full meaning to the terms of the Constitution as regards the determination of contested questions i.e., the questions of merit. 3. The bench as constituted was valid and lawful framework for clearing initial and preliminary questions preceding the hearing and determination of the substantive cause, before arriving at the stage of a Bench of five Judges. While the category of preliminary issues preparatory to a
94
hearing before five Judges is by no means closed, the bench as constituted was a lawful forum for determining and directing on issues of jurisdiction as a basis for intended hearings before the full Bench. 4. A question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance is to be resolved at that forum in the first place, before an appeal can be entertained.
5. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, it will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court. That principle would in particular apply in relation to interlocutory matters that do not fall within the terms of Article 163(4) of the Constitution.
The matter before the court had a collateral nature falling outside the Courts jurisdiction, failing the express consent of the Court of Appeal. 6. The Supreme Court, as the ultimate judicial agency, ought to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. Petition dismissed at the preliminary stage
APPELLATE JURISDICTION OF THE SUPREME COURT

In the interpretation of any law touching on the Supreme Courts appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.
Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 others

Petition No. 2 of 2012 Supreme Court of Kenya at Nairobi J.B. Ojwang, N.S. Ndungu, SCJJ. September 4, 2012 Reported by Njeri Githanga Kamau, Advocate
Jurisdiction - Appellate Jurisdiction - Supreme Courts Appellate Jurisdiction - the interpretation and application of the Constitution - where Article 164 provided that appeals shall lie from the Court of Appeal to the Supreme Court as of right, in any case involving the interpretation or application of the Constitution - Supreme Courts guidelines on the matter - where the applicant had not sought leave from the Court of Appeal - whether the
Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave-the Constitution of Kenya, Article 163(4),(6) - Supreme Court Act s.19 (b) Issues:
Whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave. W h e t h e r a n o r d i n a r y subject of leave-to-
95
appeal can trans-mutate to a meritorious theme involving the interpretation or application of the Constitution Held; 5. The appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioners case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court. 6. The petitioner had
not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court. 7. There was nothing improper with the rulings delivered by both the High Court and the Court of Appeal, holding the petitioners interlocutory proceedings to be merely frivolous. 8. In the interpretation of
any law touching on the Supreme Courts appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court. Petition dismissed at the preliminary stage
re is no e h t , e c i and just ll problems, for h t u r t f rs o e all nd sma r a a e e l g In matte r p a o l nt of pe etween e b m e t c a n e e r r t diffe ning the ame. r e c n o c the s issues
in Albert E
stein
96
Court of Appeal Cases

Compilation by Nelson K. Tunoi, Advocate
DETERMINATION ON THE DATE OF THE FIRST GENERAL ELECTION UNDER A NEW CONSTITUTION
Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others Civil Appeal 74 & 82 of 2012 Court of Appeal at Nairobi EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A July 31, 2012 Reported by Michael M. Murungi, Advocate was not canvassed in the High Court and adjudicated upon Held: On the locus standi of one of the appellants: 1. Even though in the first instance appeals to the Court of Appeal will invariably be brought by persons who were parties in the suit from which the appeal emanates, this is not to say that a person who was not party to the suit cannot go to the Court on appeal. Each case must be considered on its own merit. 2. A person who was not a party in the original suit has the obligation to establish that it is affected by the judgment or order, subject of the appeal - and the required interest is not to be restricted to proprietary or financial interest only - and to establish that there are good reasons for not having pursued its interest in the High Court. Where a matter is of public interest and relates to the protection and promotion of the Constitution, it may be in the interest of justice to admit such a party. 3. However, it would not be proper for such a party to canvass matters in the Court of Appeal which were not the subject of the litigation in the High Court. On the principles of interpreting a constitution: 4. Some of the important principles which apply to the interpretation of a constitution are: i. A court should avoid a construction that produces an absurd, unworkable or impracticable result; ii. A court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result;
Constitutional law interpretation of the Constitution determination of the date of the first general election under a new constitution - rules of interpretation - schedule to a constitution status of a schedule vis a vis the other provisions of a constitution whether the election was to be held on the 2nd Tuesday of August in 2012 or within 60 days after the end of the term of the serving Parliament in 2013 - Constitution of Kenya 2010 Articles 101, 262; Sixth Schedule sections 2, 3, 9, 10, 12 Civil Procedure - appeal parties to an appeal in the Court of Appeal - whether a person who is not a party to the proceedings in the High Court has locus standi to lodge an appeal whether such a person may be heard de bene esse matters the court will consider Constitution of Kenya 2010 section 164 Court of Appeal Rules 2010 rule 75, 77 Civil Procedure jurisdiction Court of Appeal - whether the Court of Appeal has jurisdiction to decide upon a matter which
97
iii. The court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise. 5. The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration. On the merits of the appeals: 6. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution. 7. I t w a s n o t w i t h i n t h e province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule. 8. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days
after the dissolution of the National Assembly at the end of its terms. 9. The High Court was right in its second finding that the first elections under the new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2012. Per Martha Koome JA, dissenting: Held: 1. A party before the High Court has to demonstrate how they are affected by the decision being appealed against. The appellant should have first sought leave before the High Court so as to demonstrate the general p u b l i c i n t e re s t i t w a s pursuing and given reasons why it did not appear before the High Court to agitate its case. 2. Having also considered that the life of Parliament is five years as per the Section 59 (5) of the repealed Constitution, which was saved by section 10 of the Sixth Schedule to the new Constitution, then section 9(1) of the Sixth Schedule should not have been read as a stand-alone leaving out the provisions of Section 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed Constitution. 3. If Sections 9 and 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed constitution were read conjunctively and given their purposeful meaning
within the prevailing context that traditionally general elections are held within five years, the National Assembly should dissolve sixty days before the expiration of term. The dissolution of Parliament sixty days after the expiry of its term would contradict section 10 of the Sixth Schedule as it extended the period of the National Assembly beyond the term of five years. 4. The National Assembly should have been dissolved sixty days before the expiration of its term that should have been on or about 14th November, 2012. This way, the current National Assembly would not go beyond its lifespan of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15 2013. By majority decision: The order of the High Court providing that the general elections could be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the Accord was set aside. The order of the High Court providing that the general elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat - which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008 and the term therefore expires on 14th January, 2013 - so that the election shall be held within sixty days of 15th January, 2013, was confirmed.
98
ABATEMENT OF APPEAL Issa Masudi Mwabumba v Alice Kavenya Mutunga

Civil Appeal 287 of 2006 Court of Appeal at Mombasa M. Koome JA July 19, 2012 Reported by Michael Murungi, Advocate Civil Procedure abatement of appeal where an appeal has abated on the death of a party - application for revival of an abated appeal by the legal representative of the deceased party matters the court will consider in deciding the application Court of Appeal Rules rule 99(3) Issue: Where an appeal in the Court of Appeal has abated on account of the death of a party to it and later an application is made by the deceaseds legal representative for the revival of the appeal, what matters will the court take into account in deciding whether to allow the application? The Court of Appeal Rules rule 99 (3) of the The person claiming to be the legal representative of the deceased party to an appeal may apply for an order to revive an appeal which has abated, and if it is proved that the legal representative prevented by sufficient cause from continuing the appeal. The court shall revive the appeal upon such terms as to costs or otherwise as it deems fit. Held: 1. The principles to guide the court on the exercise of judicial discretion to extend time or to revive a suit are similar and they have been articulated in a long line of authorities; a. The decision is discretionary; b. The court will consider the length of delay, the reason for it, the chances of the cause succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted. 2. The Court is also guided by the provisions of Section 3A and 3B of the Appellate Jurisdiction Act [on the overriding objective] otherwise known as the oxygen principle. Stemming from the overarching objectives in the administration of justice the goal is at the end of day, the court attains justice and fairness in the circumstances of each case. This is the same spirit that is envisaged as the thread that kneads through the Constitution of Kenya, 2010 in particular Article 159 [on Judicial Authority]. Application allowed. Advocates: Mr H. Khanna, for the 5th respondent Mr Mango for the 4th respondent Ms Yato for the 3rd respondent
99
VICARIOUS LIABILITY
P.A. Okelo & M.M. Nsereko T/A Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others Civil Appeal 183 of 2003 Court of Appeal at Nairobi OKubasu, Waki & Onyango Otieno, JJ A July 13, 2012 Reported by Sylvie Nyamunga, Reporter and Michael M. Murungi, Advocate Negligence - Vicarious liability liability of an employer for the negligence of his employee who is an employer test of control over the acts of the negligence Issue: What level of control over the negligent acts of person A would lead to a finding that person B, who is directing person A on the doing of those acts, as being held vicariously liable for the negligence? Held: 1. Vicarious liability arises when the tortious act is done in the scope of or during the course of ones employment or authority. 2. A Resident Engineer has the authority and liberty to tell the driver generally where to work and when to work during the pendency of the contract, but certainly he had no control over how the driver would execute his skill as such driver. 3. In all the circumstances, therefore, the driver was a servant of Salama and h e d rov e the v ehi cl e owned by Salama. The test of control was improperly applied by the High court when it came to the conclusion that the resident engineer had control of the way in which the act involving negligence was done. 4. Vicarious liability for the actions of the driver continued to operate against Salama, a Construction and there was no basis for dismissing the suit against it. Appeal allowed, damages to be paid by Salama Construction along with costs in the High Court. Advocates: Mr. SK Ngii for the Resident Engineer Miss Nekesa Makila for the 1st Respondent
CHALLENGING CONSTITUTIONALITY OF A JUDGMENT OR DECREE

Methodist Church in Kenya & another v Rev. Jeremiah Muku & another Civil Appeal 233 of 2008 Court of Appeal at Nyeri EM Githinji, HM Okwengu & DK Maraga JJ A July 5, 2012 Reported by Michael Murungi, Advocate
Constitutional law judgment or decree of a court constitutionality of a judgment or decree extent to which a judgment or decree can be challenged as amounting to a violation of a constitutional right or fundamental freedom. Issue:
To what extent can a judgment or order of a court be challenged through a constitutional application as contravening a right or fundamental freedoms guaranteed by the former Constitution? Held:
1. A petition under section 84 (1) of the former Constitution is concerned with public law and not private law. Indeed the Order of certiorari to quash the preliminary decree sought in the petition is a remedy in public law. We appreciate that the preliminary decree was
100
given by a judicial officer in exercise of judicial power of State and that to that extent the preliminary decree has a public law element. 2. It is only in rare cases that an error in the judgment or order of a court can constitute a breach of human right or fundamental freedoms.
Ordinary errors made in the course of adjudication by courts of law should be cured by invoking the mechanism and procedures prescribed by the ordinary law for correction of errors such as appeal or review. 3. In this case, the collateral attack of a preliminary decree through a
constitutional petition was a gross abuse of the process of the court. Appeal dismissed. Advocates: Mr. Nganga for the Appellant Mr. Kilonzo Junior for the 1st Respondent
CAN AN OCCUPIER OF LAND SUE AN INTRUDER FOR TRESPASS?

Samuel Mwangi v Jeremiah MItobu Civil Appeal 264 of 2007 Court of Appeal at Nyeri Waki, Visram & Koome JJ A July 5, 2012 Reported by Michael Murungi, Advocate Land law trespass right to sue in trespass whether a mere possessor who is not the owner of land can have a cause of action in trespass against an intruder Issue: Can an occupier of land sue an intruder for trespass? Held: 1. The High Court erred in its conclusion that only an owner of land had the right to sue in trespass. 2. (Quoting with approval Winfield & Jolowicz, Tort, 12th Edn. P. 361: a. Possession in fact confers no actual right of property, but a possessor may nevertheless maintain trespass against anyone who interferes who cannot himself show that he has the right to recover possession immediately. b. A stranger cannot rely in his defence upon another persons right to possess (the jus tertii) unless he can prove that he acted with that persons authority. Even wrongful possession, such as that acquired by a squatter, will, in principle, b e p ro t e c t e d e x c e p t against the owner of the land or someone acting lawfully on his behalf. Appeal allowed.
ENFORCEMENT OF EXCLUSIVE JURISDICTION CLAUSES IN CONTRACTS

Areva T & D India Limited vs. Priority Electrical Engineers & another Civil Appeal No 103 of 2011 Court of Appeal at Nairobi A. Visram & M. Koome, JJA May 30, 2012 Reported by Rose M. Wachuka, Advocate Arbitration exclusive jurisdiction clause exceptional circumstances - free conferment of jurisdiction by the parties Contract Law sanctity of contract - re-writing contracts for the parties by the court. Issue for determination: 1. Whether the court should give ef fect to an 'exclusive jurisdiction clause' in an agreement which the parties freely and voluntarily conferred jurisdiction to the courts of Delhi, to resolve any dispute arising from the per formance of their contract in Kenya. Held:
101
1. The rule that the parties should be held to their bargain should only be departed from in special and exceptional cases. 2. The parties entered into the subcontract voluntarily and there were no exceptional
circumstances that had occurred during the subcontract to warrant a departure. 3. It is trite that a court cannot rewrite a contract for the parties.
4. Business people mainly choose arbitration over courts mainly because they want a more expeditious resolution of disputes. Appeal allowed with costs.
WHEN ATTEMPTED ROBBERY WITH VIOLENCE MUST ATTRACT DEATH SENTENCE

James Maina Magare & another v Republic Civil Appeal No 103 of 2011 Criminal Appeal 224 of 2010 E. M. Githinji, Alnashir Visram & H. M. Okwengu JJ A. March 16, 2012 Reported by C W Lupao, Advocate
Criminal Practice and Proce- Issue: dure - sentence-sentence for attempted felony-where appellant W h a t i s t h e l a w f u l had been convicted of attemptsentence for conviction for ed robbery with violence - secattempted robbery with tion 297(2) provides for a death violence when section sentence for the offence of at297(2) of the Penal Code tempted robbery with violence provides for sentence of while section 389 of the Code death while section 389 providing for a term of imprisonof the Code provides ment not exceeding seven years a maximum term of - appellant challenging legality imprisonment of 7 years? of Death sentence for conviction of attempted robbery with vio- Held: lence - appropriate sentence for the offence of attempted rob- 1. For the offence of an bery with violence . attempt to commit robbery with violence
under section 297(2) of the Penal Code, in respect of which a sentence of death has been provided under that section, section 389 of the Penal Code cannot apply. 2. As was stated by the Court of Appeal in Evans Kiratu Mwangi vs. Republic, Cr. Appeal No. 154 of 2009, Section 297(2) of t he Penal Code provides for a sentence of death, and that sentence is therefore lawful. Appeal dismissed.
102
103
High Court Cases

Compilation by Nelson K. Tunoi, Advocate
JURISDICTION OF THE HIGH COURT OVER DECISIONS OF THE JUDGES AND MAGISTRATES VETTING BOARD.
Republic v Judges and Magistrates Vetting Board & others ex parte Lady Justice Jeanne W. Gacheche & others High Court, at Nairobi ( Judicial Review Division) Judicial Review Application No. 295 of 2012 J. Havelock J.Mutava P.Nyamweya E.Ogola A.Mabeya JJ. Oct. 30, 2012. Reported by C W Lupao, Advocate
The main issues for determination were; 1. Whether the High Courts genera l j uri s di cti on i s subject to limitation. 2. Whether section 23 (2) of the Sixth Schedule to the Constitution ousts the jurisdiction of the High Court over decisions of the Judges and Magistrates Vetting Board. 3. Whether the High Court has supervisory jurisdiction over the Vetting Board, and 4. Whether the conservatory orders that had been made in these matters were to remain in force. Held: 1. In matters involving litigation that raises
issues of constitutional interpretation, the High Court has original and exclusive jurisdiction, subject to the limitations set out in Article 165 (3) (7) of the Constitution of Kenya, 2010. 2. Article 159(1) of the Constitution of Kenya, 2010, states that judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under the Constitution. It is therefore the people of Kenya who, in the exercise of their sovereignty, have given the courts express authority to exercise jurisdiction by reason of the endorsement in a referendum of Articles 1(3), 22, 23, 159(1), 165 and 258 of the Constitution. These Articles will continue to be valid until the people
or Parliament decides otherwise by amending the Constitution. 3. The jurisdiction of the High Court derives directly from the people of Kenya and the Court is enjoined to exercise that jurisdiction to the fullest extent permitted by the people under the Constitution. Such is expected of the independent Tribunals and other bodies or authorities exercising judicial or quasijudicial function. 4. Article 165(3) of the Constitution of Kenya vests upon the High Court unlimited original jurisdiction in civil and criminal matters; jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated
104
The main issues for determination 3. The jurisdiction of the High Court derives directly from were; the people of Kenya and the Court is enjoined to 1. Whether the High Courts exercise that jurisdiction genera l j uri s di cti on i s to the fullest extent subject to limitation. permitted by the people under the Constitution. 2. Whether section 23 (2) Such is expected of the of the Sixth Schedule to independent Tribunals and the Constitution ousts the other bodies or authorities jurisdiction of the High exercising judicial or quasiCourt over decisions of the judicial function. Judges and Magistrates Vetting Board. 4. Article 165(3) of the Constitution of Kenya 3. Whether the High Court vests upon the High has supervisory jurisdiction Court unlimited original over the Vetting Board, jurisdiction in civil and and criminal matters; jurisdiction to determine 4. Whether the conservatory the question of whether orders that had been a right or fundamental made in these matters freedom in the Bill of Rights were to remain in force. has been denied, violated or infringed; jurisdiction Held: to hear appeals from d e c i s i o n s o f Tr i b u n a l s 1. In matters involving established to consider litigation that raises the removal of a person issues of constitutional from office, save that of interpretation, the High the President under Article Court has original and 144; jurisdiction to hear exclusive jurisdiction, any question respecting subject to the limitations the interpretation of the set out in Article 165 (3) Constitution; and any (7) of the Constitution of other jurisdiction, original Kenya, 2010. or appellate, conferred upon it by legislation. 2. Article 159(1) of the Constitution of Kenya, 5. Article 165(6) further vests 2010, states that judicial upon the High Court authority is derived from jurisdiction to supervise the people and vests in, subordinate courts and and shall be exercised by any person, body or the courts and tribunals authority exercising judicial established by or under the or quasi-judicial authority. Constitution. It is therefore This extensive jurisdiction is the people of Kenya who, only fettered to the extent in the exercise of their set out in Article 165(5) sovereignty, have given which bars the High Court the courts express authority from exercising jurisdiction to exercise jurisdiction by over matters reserved to reason of the endorsement the exclusive jurisdiction in a referendum of Articles of the Supreme Court and 1(3), 22, 23, 159(1), 165 and matters falling within the 258 of the Constitution. jurisdiction of the courts set These Articles will continue out under Article 162(2) of to be valid until the people the Constitution. or Parliament decides otherwise by amending the Constitution. 6.In interpreting the
Constitution, courts are bound to adopt a purposive approach that gives effect to the purpose and key values and principles underlying the provisions of the Constitution that are found particularly in Article 10. 7. A Kenyan court confronted with an ouster clause seeking to eliminate its jurisdiction should apply to determine the extent, if any, to which it can interfere notwithstanding the envisioned ouster. These are: a) Statutory provisions tending to oust the jurisdiction of the Court should be construed strictly and narrowly. It would be a travesty of justice if ouster clauses are applied at face value as tribunals, bodies, authorities or persons in position conferred with power may run amok, act with impunity or abuse that power to the detriment of our people. b) The court will not normally intervene where the authority under challenge acts within its permitted fi e l d , e v e n w h e n t h e emerging decisions are wrong. c) In spite of a finality clause, it is open to the court to examine whether the action of the authority under challenge is in excess of its jurisdiction or contravenes a mandatory provision of the law conferring on the authority the power to take such action. d) Breach of the principles of natural justice, including the right to a fair hearing, opens up the decision of the tribunal to review even if there is an ouster clause.
105
e) B reach of fundamental rights and freedoms enshrined in the Constitution including the right to protection of the law and respect for fundamental human rights will entitle a court to intervene, notwithstanding the existence of a finality or ouster clause. f) An ouster clause may, ultimately, be usurped if there are strong and compelling reasons. 8. Ouster clauses do not prevent the court from intervening in the case of excess of jurisdiction. 9. In considering the issue raised before the court, the position of Section 23 of the Sixth Schedule to the Constitution visa-vis Article 165 of the Constitution, the court makes an interpretation guided by the principles of giving effect to the rights and freedoms under the Bill of Rights, restricting the application of the ouster clause in favour of the rights, interpreting the Constitution as a whole, harmonizing the provisions of Section 23 with Article 165 and, above all, give a purposive meaning of the Constitution in terms of Article 259 of the Constitution. 10. The drafters of the Constitution of Kenya, 2010, did not deem it fit to exclude the operation of Article 165 of the Constitution to the vetting process. In the event, and whether by design or sheer inadvertence on the part of the drafters, Article 165 of the Constitution was left unscathed by the ouster clause constituted in Section 23
of the Sixth Schedule to the Constitution. Hence, the High Court has jurisdiction to exercise any of the constitutional mandate conferred by the people of Kenya under Article 165 even in the face of Section 23 of the Sixth Schedule. 11. Some of the Petitions over which the decisions o f t h e Ve t t i n g B o a r d were being challenged hinged upon breach of fundamental rights and freedoms of the affected judges, including the right to a fair hearing. In this regard, Article 23(1) of the Constitution of Kenya gives the High Court jurisdiction exercisable in line with Article 165 to hear and determine applications for redress of a denial, violation or infringement of a right or fundamental freedom in the Bill of Rights 12. The ouster clause does not insulate the vetting process from the operation of Article 23 of the Constitution. Under Article 25 of the Constitution, the right to a fair trial is a right that the Constitution has decreed and classified as among the fundamental rights and freedoms that may not be limited or derogated from under the Constitution. The ouster clause is incapable of eliminating the High courts jurisdiction over petitions cushioned upon alleged breaches of fundamental rights and freedoms including the right to a fair trial. 13. The High Court has the right to review a decision for error of law apparent on the face of record of the Vetting Board which may be an error going to jurisdiction thereof as distinguished from error
with its jurisdiction. 14. The Vetting Board is a creation of an Act of Parliament. That being the case, the Board cannot be equated to the Court, leave alone the Supreme Court. The fact that it vets the Judges of the High Court, the Court of Appeal or the Supreme Court, does not confer it with any powers or status superior to or akin to those of the High Court. 15. The Vetting Board is akin to any Tribunal which is susceptible to the jurisdiction of the High Court under Article 165 (6) of the Constitution. The only exception is that while exercising its said jurisdiction under Article 165 aforesaid, the High Court will do so having in mind the strict directions set out in Section 23 (2) of the Sixth Schedule to the Constitution as to the process and the decisions of the Vetting Board. 16. The Vetting Board shall retain its place as the constitutionally mandated body to authoritatively, impartially and independently adjudicate upon matters relating to the removal or the process leading to the removal of judges as contemplated by Section 23(2) of the Sixth Schedule of the Constitution, with the only caveat that no aspect of the exercise of its function shall drift beyond the four corners of the mandate; i.e i. The High Court shall not stop the process of vetting of judges and magistrates pursuant to the Vetting of Judges and Magistrates Act, 2011, save to the extent deter mined as
106
merited in individual cases. ii. The High Court shall have jurisdiction to intervene and review the process and decisions of the Vetting Board to the extent that the exercise of the Boards mandate is shown to have exceeded its constitutional and statutory mandate under the Constitution and the Vetting Act. iii. The High Court shall have jurisdiction to consider and adjudicate upon alleged breaches of fundamental rights and freedoms arising from the exercise of the Vetting Boards mandate under the Constitution and under the Act.
iv. The High Court shall have jurisdiction to consider matters relating to extension of time of the Vetting Board effected pursuant to Article 259(9) of the Constitution. v. The High Court shall have jurisdiction to issue, review, uphold or vacate conservatory orders in connection with the vetting process. Orders: 1. All the Conservatory Orders made and extended from time to time set aside, and the Vetting Board to be at liberty to continue with the vetting of Judges pending the hearing and
determination of the Application and Petitions filed herein. 2. 2. As regards the Judges whose vetting process had been determined by the Vetting Board as complete pending the determination of the said Application and Petitions, the affected Judges would not be de-gazetted. 3. As regards the Judicial Review Application and the Petitions filed herein, each would be heard separately and determined by the High Court applying the principles that had been outlined herein.
COURT DECLINES TO GIVE BLANKET ORDERS ON WITNESS PROTECTION

G.N.M alias G.K v D.R.K High Court at Mombasa Originating Summons No. 3 of 2012 E. M. Muriithi J. October 23, 2012 Reported by Emma Kinya Mwobobia, Advocate
Issues: i. Whether the order sought for witness protection and protection from a criminal process could be made against the police, Immigration department and the Director of Public Prosecutions (DPP) who were not party to the main suit. ii. Whether the court could protect a witness from a criminal process unrelated to the civil suit in which he is scheduled to testify.
court which sought various orders against them and Constitutional Law witness protherefore they may be tection application for a blanjoined as parties to the ket order of protection from application even without arrest and harassment by any being parties to the main police officers and any charges suit between the applicant being preferred against the apand the respondent. plicant or any of her witnesses pending hearing and full determination of the suit whether the 2. The inherent power of the court under Section 3A of application had merit. the Civil Procedure Act to make such orders as Held: maybe necessary for the end of justice or to prevent 1. The Police, Immigration the abuse of the court Department and the DPP would therefore authorize were necessary parties in the making of any order the application before the
107
against a person whether a party to a suit or not, if the effectual execution of the decision of the court required such a person to do or refrain from doing any act. 3. The general principle of application was that the court will stop criminal process from being used unfairly and oppressively so as to amount to an abuse of the court process. Therefore, if a criminal prosecution was shown to have been instituted unfairly, oppressively and for ulterior purpose, it would have been an abuse of the court process
and liable to be prevented whether the accused was a party to a civil dispute or a witness: the criminal prosecution must be shown to be malafides. 4. The court could not have been involved at the stage of investigations and deter mination of sufficiency of evidence to justify a prosecution which was a ministerial as opposed to the judicial role of the courts. Any directions of the courts to the police, save in well-known exceptions in cases of contempt of court and death inquests, would have amounted
to unconstitutional i n t e r f e re n c e w i t h t h e police investigations and prosecution powers in breach of the doctrine of separation of powers. 5. A restraint on investigation and prosecution could not issue in a blanket manner for all the witnesses and for all times. It could only have been issued to restrain specific criminal process against specified persons whose prosecution was shown to have been unfair oppressive, malafides and therefore an abuse of the court process.
PROTECTION OF MINORS IDENTITY IN COURT PROCEEDINGS

T.M. v. M.C.O. High Court at Nairobi Civil Application 384 of 2012 M.A Angawa J. October 16, 2012 By Andrew Halonyere, Advocate
Issues i. Whether proceedings or pleadings concer ning children should be anonymized. ii. Whether High Court could transfer a case from one subordinate court to another. Civil practice and procedure transfer of a suit High Courts power to transfer suit from one subordinate court to another suit emanating from Childrens court duty of the courts to ano-
nymize cases concerning children Civil Procedure Act (Cap 21) section 18(1)(b). Held: 1. The reasons raised by the applicant, a mother and businesswoman who relies on her means to allegedly support herself and her children in Nairobi, might have that means disrupted having to travel many miles to hear her m a t t e r. T h e r e f o r e f o r expediency the hearing of the matter in Nairobi
would be convenient to more persons including her witnesses and those of the respondents who reside in Nairobi. 2. (Obiter) The matter emanates from the Children Court. In order to protect the identity of Children, their names should be concealed and the proceedings or pleadings should reflect their initials only. Application allowed.
108
APPLICATION FOR ENVIRONMENT AND LAND PROCEEDINGS TO BE TRANSFER TO THE HIGH COURT
Vincent Ayieko Chiaga v Joseph Oyoo Misc. App. No. 215 of 2012 High Court at Kisumu H.K. Chemitei, J. October 15, 2012 Reported by Sylvie Nyamunga, Reporter
Issue: i Whether proceedings dealing in land and environmental issues in a subordinate court can be transferred to a superior court Criminal Practice and Procedure -transfer of case- application seeking an order for the transfer of case to court with superior jurisdiction- environment and land issues- whether practice directions issued by the Chief Justice
on Environment and Land Court apply- jurisdiction of the lower court to hear the case - Gazette Notice No. 1617 Held: 1. From the practice directions issued by the Chief Justice following the establishment of the Environment and Land Court, matter filed and pending at the lower court does not enjoy the alternatives of
being transferred to the Environment and Land Court or the high court. 2. The lower court can hear the same provided that it has the jurisdiction to determine. As the matter had been filed and was yet to be heard, it would be difficult for the court to transfer the same as it is not aware whether the trial court is seized of jurisdiction or not. It is only the lower court which is capable of determining.
REGISTRATION OF ENGINEERS BY THE ENGINEERS REGISTRATION BOARD (ERB)

Jesse Waweru Wahome & 42 Others v. Kenya Engineers Registration Board and 3 Others Petition No 149 & 207 of 2011 High Court of Kenya at Nairobi- Constitutional and Human Rights Division D.S. Majanja High Court at Nairobi October 15, 2012 By Njeri Githanga Kamau, Advocate Issue: i. Whether the Engineers Registration Board (ERB), under the Engineers Registration Act, had the statutory authority to supervise engineering
degrees and awards issued by universities offering engineering courses. ii. Whether the ERB was j u s t i fi e d i n d e n y i n g graduates from some universities admission to
practice the profession of engineering on the grounds that they had not met the requirements stipulated by the Act. iii. Whether the graduate engineers denied
109
registration fundamental rights and freedoms i.e. right to fair administrative action and right to protection of their human dignity had been breached and hence were entitled to damages. Constitutional Law - fundamental rights and freedoms-right to human dignity- where all persons have a right to inherent dignity and the right to have that dignity respected and protected- right to human dignity being a foundational value of the nationwhether the actions by the ERB were in breach of the petitioners right to dignity protected under Article 28 as read with Article 55(a) and (c) of the Constitution of Kenya, 2010- Constitution of Kenya, 2010, Article 28, Article 55(a) and (c) Constitutional Law - fundamental rights and freedoms-right to fair administrative action- where the petitioners had a legitimate expectation that after successful completion of their degree courses they would be registered engineers- whether the action of ERB in purporting to accredit universities and courses was an ultra vires act and hence breach of Right to fair administrative action under Article 47(1) of the Constitution - Constitution of Kenya, 2010, Article 47(1) Statutes - interpretation of Statutes- section 11(1) (b) of the Engineers Registration Act- mandate of the Engineers Registration board under that section- whether the mandate extend to the approval of degree programs offered by the universities or accreditation of the universitiesEngineers Registration Act (repealed) section 11(1) (b) Relevant provisions of Engineers Registration Act Registration of Engineers under the Act Part IV. Section 11(1)(b) of the Act provides that for a person to be registered as a graduate engineer, ...a person must be a
110
holder of a degree, diploma or licence of a university or school of engineering which may be recognised for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering. The key and operative word is recognition which is defined by the Blacks Law Dictionary as, ... confirmation that an act done by another person is authorised ... registration According to Blacks Law Dictionary, registration means, the act of recording or enrolling. The Board established under section 3(1) of the Engineers Registration Act is responsible for, regulating the activities and conduct of registered engineers
entire Act does not support the jurisdiction asserted by the ERB to accredit universities. Part II which contains section 3(1) establishing the Board is clear that the functions are limited to regulating activities and conduct of registered engineers. The activities and conduct cannot by any stretch of the meaning of those words include or imply any form of accreditation or approval of university degrees. The substantive provisions contained in Part III and IV of the Act negative any intention by the legislature to grant the ERB authority to accredit universities.
accredit in Blacks Law Dic- 3. A c c re d i t a t i o n i s s u c h tionary means, To recognise a rigorous process and (a school) as having sufficient i f t h e l e g i s l a t u re h a d academic standards to qualify intended such an exercise graduates for higher education, be reposed within the or for professional practice, mandate of the ERB then and therefore accreditation of the legislature would courses is the process of reviewhave provided for this ing an engineering programme in very clear terms. An to judge whether or not the accreditation process same meets the defined quality must be underpinned standards set by the Board and by rules and procedures indeed the international stanmade in accordance dards. with the parent statute. A reading of section 22 of the Held; Engineers Registration Act did not make reference 1. The plain and clear to accreditation or meaning of section 11(1) recognition of the degree (b) of the Engineers courses offered by public Registration Act was that universities. the ERB has the specific mandate to register 4. There is nothing in the engineers and before Engineers Registration Act registration, it need only be that allows or empowers satisfied that the degree, the ERB to intervene in the diploma or licence was affairs of universities and properly issued. This more particularly dictate mandate does not extend to the universities what to the approval of degree they can teach and what programs offered by the degrees they can award. universities or making an An attempt to do that inquiry beyond what is would be to overstep the necessary to satisfy itself boundaries of its statutory that the degree was mandate. lawfully issued. 5. The Engineers Act, 2011 is 2. An examination of the a clear recognition that
the Engineers Registration A c t w a s d e fi c i e n t i n certain respects. Section 6 of Engineers Act, 2011 provides, The board shall be responsible for the registration of Engineers and firms, regulation of Engineering professional services, setting standards, development and general practice of engineering. Section 7(i) of the Act empowers the Board to, approve and accredit engineering programs in public and private universities and other tertiary level educational institutions offering education in engineering. These provisions were lacking in the repealed legislation and point to the fact that the Board under the repealed legislation did not have power to approve and accredit degree courses from public universities. 6. The action of ERB in purporting to accredit universities and courses was an ultra vires act and hence it was in breach of Right to fair administrative action under Article 47(1) of the Constitution of Kenya, 2010. 7. The petitioners and their parents and communities supporting them had a legitimate expectation after successful completion of their degree courses they would be registered engineers. The expectations were legitimate and reasonable and the same were breached. 8. The right to dignity is enshrined in Article 28 which states that, Every person has inherent dignity and the right to have that dignity respected and protected. Apart from being a protected right, the right to human dignity
is a foundational value of our nation. The actions by the ERB were in breach of the petitioners right to dignity protected under Article 28 as read with Article 55(a) and (c) of the Constitution of Kenya, 2010. 9. The state, which includes the universities and the ERB, had a special obligation to the youth inscribed in the Constitution. The petitioners right to pursue careers and employment in a field which they had studied and which the State through its statutes had assured them of certain benefits accruing from their academic endeavour had been infringed. 10.The State had a responsibility to ensure that the petitioners status was resolved expeditiously and efficiently as required of all administrative actions under Article 47. 11.There was no proper basis for calculating an appropriate award for compensation on the basis of what the petitioners would have earned had they been admitted as graduate engineers. a. First, not all petitioners would have been employed as engineers. b. Second, the sum proposed was merely an average and not necessarily indicative of what each petitioner would have earned. c. Third, the mere fact of registration did not guarantee employment as an engineer. d. Lastly a claim for compensation was in the nature of special damages and even though it was a
claim under Article 22 of the Constitution of Kenya, 2010, it did not discharge the petitioners of the obligation to plead and prove the exact quantum of loss. 12. General damages were appropriate in the circumstances as the petitioners had suffered loss and damages and the petitioners rights had been violated. Orders An order of mandamus issued directing the Engineers Registration Board to consider the applications of the petitioners and any other Kenyan public university who had graduated prior to 14th September 2012 in accordance with the Engineers Registrations Act. W i t h i n f o u r t e e n d a y s of the judgment, the Engineering Registration Board to publish in at least two newspapers of national circulation and in a prominent manner, an advertisement a copy of the decree and invite applications from any person eligible to be considered under section 11(1)(b) of the Engineers Registration Act and graduating with an engineering degree from Egerton University, Masinde Muliro University of Science and Technology and any other Kenyan public university prior to 14th September 2012 for consideration as graduate engineers and the applications lodged with the Board free of any charge. The Engineers Registration Board to pay general damages assessed at Kshs. 200,000.00 to each
111
petitioner and every Engineering graduate from Egerton University, Masinde Muliro University of Science a n d Te c h n o l o g y a n d any other Kenyan public university graduating at
least three years prior to the commencement of the Engineers Act, 2011. The said sum to carry interest at a rate of 12% per annum from the date
of this judgment. The Engineers Registration Board to bear the petitioners costs of the proceedings.
VALIDITY OF ANY AWARD ISSUED BY THE THEN INDUSTRIAL COURT SINCE THE PROMULGATION OF THE CONSTITUTION, 2010
Nzoia Sugar Company v Attorney General & 2 others Petition No. 212 of 2012 High Court at Nairobi Constitutional & Human Rights Division I. Lenaola, J October 12, 2012 Reported by Sylvie Nyamunga, Reporter
of state officers- whether judges obligation on them to of the former industrial court were take an oath of office as state officers- whether they were i. Whether judges of the any oath taken by the required to take oath- effect on former Industrial Court judges and members of validity of awards made by the as constituted under the that court in the past was judges- repealed Labour Institunow repealed Labour taken not under the former tions Act- Constitution of Kenya, Institutions Act are Constitution but rather 2010- article 74 of the ConstituState Officers within the under an Act subordinate tion of Kenya, 2010- Section 260 meaning of Article 260 to the Constitution. of the Constitution- Section 31 of the Constitution to and 13 of the Sixth Schedule of whom the provisions of the 2. That the judges and the Constitution Constitution, in particular members of the former Article 74, apply. Industrial Court were Held: not required to take an ii. The effect of the said oath of office under the 1. The former Industrial Court judges not taking an oath Constitution, therefore was an inferior tribunal under the Constitution with they were properly in office and was not intended regard to the validity of before the establishment to be transformed into a any award issued by the of the Court under Article superior court within the then Industrial Court since 162 (2). meaning of Article 165 of the promulgation of the the Constitution. Article Constitution, 2010. Petitions dismissed. Petitioner to 74 therefore did not also pay costs impose a constitutional Constitutional law - oath of office Issues:
112
CHILDRENS COURT CAN HEAR CASES OF A CONSTITUTIONAL NATURE

Violet Kedogo Kiharangwa v Preston Ngira Obadiah Petition No. 339 of 2011 High Court of Kenya at Nairobi Constitutional and Human Rights Division I. Lenaola, J. October 12, 2012 Reported by Sylvie Nyamunga, Reporter
Constitutional law - fundamental rights and freedoms-where the petitioner is seeking declaration that the childs constitutional and statutory right have been violated- whether the high court has jurisdiction to hear the matter because of its constitutional nature- whether the matter should be heard in the Childrens CourtChildren Act- Constitution of Kenya, 2010 -Article 22, 35 and 164 of the Constitution Held: 1. The High Court has original jurisdiction in civil and criminal cases under
Article 164(3)(a) of the Constitution. Article 22 allows access to any person to approach the Court on claims of violations of any of the fundamental rights and freedoms enunciated in the Bill of rights.Therefore the High Court has jurisdiction to hear the matter. 2. The provisions must be read together with the specific r i g h t s o f t h e c h i l d re n protected under Article 53 of the Constitution and the
Children Act. Those rights being paramount are best protected by having a full hearing in the Children's Court. The Children's Court established in Part VI of the Children Act is the Proper Court with jurisdiction to determine matters relating the welfare of children, including custody and maintenance issues. Proceedings transferred to the Children's Court at Nairobi for hearing and determination and no order as to costs
CREDIBILITY OF THE PROCEDURE FOR APPOINTMENT OF LAND COMMISSION MEMBERS CHALLENGED

John Waweru Wanjohi & 2 Others v Attorney General & 6 others High Court at Nairobi Constitutional and Human Rights Division Petition No. 373 & 426 of 2012 D.S. Majanja J. October 12, 2012 Reported by Emma Kinya Mwobobia, Advocate Issues: i. W h e t h e r t h e p r o c e s s used for the nomination and appointment of the members of the National Land Commission achieved the objectives of the principle of regional and ethnic diversity. ii. Whether there was any discrimination or exclusion of any ethnic group in the shortlisting of persons for the appointment to the National Land Commission by the Panel. iii. Whether the criteria used for appointments of the Commissioners to the National Land Commission was proper and credible procedure to warrant the confidence of Kenyans. Constitutional Law constitution-
113
al provisions under Article 10 to account in constituting national values and principles of the commissions and governance the binding nature the objective was to of the national values and prinachieve diversity in various ciples of governance to all state aspects. To have regard to organs, state and public officers population alone would and all persons inorder to enundermine the noble sure good governance, integrity, objective of diversity in all transparency and accountability respects. whether the nomination and appointment of the members of 2. The procedure adopted the National Land Commission by the Panel under the was in contravention of the connational Land Commission stitutional provisions. Act was transparent, inclusive and based on Constitutional Law constituobjectively ascertained tional provision composition, criteria clearly articulated appointment and terms of ofin the Act. The Panel was fice where appointments to entitled to use its own commissions and independent procedures to shortlist offices shall take into account candidates for the national values and the princiinterview as it was not ple that the composition of the possible to interview all the commissions and offices taken applicants and therefore as a whole shall reflect the rethere was no discrimination gional and ethnic diversity of the of any group or community people of Kenya whether the or any exclusion of any national values were taken into person. consideration in the nomination process. 3. The Constitution had provided for only nine Case challenging appointment members to be appointed of the Chairperson and Members to the commission and it of the National Land Commission was therefore unrealistic established under Article 67 of to expect the commission the Constitution of Kenya, 2010. to have representation of all the ethnic groups. Held: The appointing groups were just required to do 1. The Constitution was clear was the best they could on the considerations that to accommodate the must have been taken in requirement of diversity in
all its form. 4. There was no discrimination of any person or community contrary to Article27 as the means used by the panel was rational to achieve the objects of ethnic and regional diversity. 5. The procedure adopted by the selection panel, President and Prime minister achieved the constitutional objectives and statutory requirements of a competent, gender equity, regional and ethnic diversity. 6. The Court was not well suited to determine matters which are best discussed and agreed upon at a policy level in an environment that fostered public participation, consensus building and civic education. A set of principles developed over time would emerge as various cases passed through the court process but one case could not determine the whole course of how ethnic and regional diversity was to be achieved in public appointments. Petition dismissed. Conservatory orders discharged.
RIGHT TO FAIR HEARING BEFORE SUSPENSION/EXPULSION FROM SCHOOL

R.W.T (suing as next of friend and grandmother of B.G.N. - a minor) v S.N.S School Petition No. 290 of 2012 High Court at Nairobi Constitutional and Human Rights Division D.S. Majanja, J October 8, 2012 Reported by Sylvie Nyamunga, Reporter
Issue: Whether the decision by the Respondents, servants and or agents to expel the minor from S.N.S. School was against the principles of natural justice, arbitrary, capricious, not in the
best interest of the minor and therefore unlawful and further constituted a violation of his rights that are enshrined in Articles 2(6), 3(1) 27(5), 36(1), 43(f), 47(1) and 53(1) (b), (d), (2) of the Constitution of Kenya, 2010 and Sections
4, 5 and 7 of the Childrens Act. Constitutional law - fundamental rights and freedoms - childrens right- best interests of a childwhether a child suspended from school indefinitely before his final year is in his best interest-princi-
114
ples of natural justice- whether a school should have fair process consistent with principles of natural justice- Article 53 Constitution of Kenya, 2010 Held: 1. The school has a set of rules and a code of conduct which must be adhered to by the child and it is the duty of the guardian to ensure that the child is familiar with these rules and regulations and abides by them. On the other hand, the school is required to have a fair process, consistent with the rules of natural justice, in which an errant child can be disciplined. 2. By not providing the necessary procedures to demonstrate that the child and guardian were
given a hearing before the separation letter dated 6th June 2012, the respondent did not adhere to rules of natural justice. Furthermore the letter did not stipulate the nature of separation or a specific suspension period. 3. Article 53 of the Constitution now recognizes the general principle that the best interests of the children is the paramount consideration in any matter concerning children. The best interests of the child must be such that the child and his guardian are given an opportunity to answer allegations against the child and such procedure must be one that is suitable for this purpose. There is also a responsibility to be borne in respect of that one child, one that flows
from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of the other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution. 4. Expulsion or suspension of a child from school may negatively affect him particularly in a situation where he has only one year to finalize high school. This would be contrary to his best interests. Child re-admitted to the respondent school forthwith and upon complying with the normal conditions imposed by the school for re-admission.
INTERPRETATION OF SECTION 35 OF THE INCOME TAX ACT

Republic v. The Commissioner of Domestic Taxes Large Tax Payers Office ex-parte Barclays Bank of Kenya Ltd H.C. Misc. Application No. 1223 of 2007 High Court of Kenya at Nairobi D.S. Majanja October 8, 2012 Reported By Njeri Githanga Kamau, Advocate
Issues: i. Whether the Commissioner of Domestic Taxes can claim tax on payments referred to as interchange fees made by a bank to other banks referred to as issuers on the basis that such payments are management and professional fees and subject to withholding tax pursuant to section 35(1) (a) of the Income Tax Act. ii. Whether payments made
to Visa International for the services offered to a bank amount to a royalty within the meaning of section 2 of the Income Tax Act. Tax - income tax - withholding tax payments made to Card Companies namely VISA International Services Association, MasterCard Inc and American Express Limited and payments made by the applicant as an Interchange Fee to other banks referred to as the Issuers- whether the Commissioner of Domestic Taxes could claim tax on payments referred to as
interchange fees made by a bank to other banks referred to as issuers on the basis that such payments are management and professional fees and subject to withholding tax pursuant to section 35(1)(a) of the Income Tax Act- Income Tax Act section 35(1)(a) Relevant provisions of the Income Tax Act The pertinent parts of the Income Tax Act necessary for the determination are as follows; 35. (1) A person shall, upon
115
payment of an amount to a non-resident person not having a permanent establishment in Kenya in respect of (a) a management or professional fee or training fee except (i) a commission paid to a non-resident agent in respect of flowers, fruits or vegetables exported from Kenya and auctioned in any market outside Kenya and audit fees for analysis of maximum residue limits paid to a nonresident laboratory or auditor; or (ii) a commission paid by a resident air transport operator to a non-resident agent in order to secure tickets for international travel. (b) a royalty;.
(b) a cinematograph film, including film or tape for radio or television broadcasting; or (c) a patent, trade mark, design or model, plan, formula or process; or (d) any industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific equipment or experience, and gains derived from the sale or exchange of any right or property giving rise to that royalty; Held: 1. Any tax imposed on a subject is dictated by the terms of legislation and taxing authority must satisfy itself that the transaction fits within the definition of the statute
So that the question for consideration would be whether these payments s u f fi c i e n t l y d e fi n e d constitute consideration for management, technical, consultancy or agency services. Casting a broad net on a series of transactions and payments lacked clarity and was to be frowned upon. 4. The respondent had not clearly demonstrated in the circumstances how interchange fee could be termed an agency fee so as to become taxable under section 35(1) (a) as read with section 2 of Income Tax Act. 5. The respondents decision to claim withholding tax on the basis of the interchange fee lacked a legal footing as the Commissioner failed to identify the specific facts or transactions that form the basis of application of the tax. 6. The duty of the respondent in assessing tax is to identify transactions or payments that attract tax liability especially where there are objections to such categorization. Section 35(1) (a) of the Income Tax Act identifies specific types of payments that attract tax, the respondent is obligated by law to state with clarity its claim and state how the transaction falls within the terms of the statute. The transaction caught by the decision could not be said to fall within the statutory definition of the tax. Application allowed
which is chargeable to tax, de- 2. Payment of the kind duct therefrom tax at the appromade by the bank to Visa priate non-resident rate. International, and referred to in the decision, could Section 2 of the Income Tax Act not constitute royalties defines the terms management and it was wrong in law to and professional fee and royrequire the bank to make alty as follows; deductions of withholding tax. The decision in this "management or professional respect falls outside the fee" means a payment made language of section 2 as to a person, other than a payread section 35(1)(b) of ment made to an employee by the Income Tax Act and his employer, as consideration for was thus amenable to an managerial, technical, agency, order of certiorari. contractual, professional or consultancy services however calcu- 3. Section 2 of the Income lated; Ta x A c t d e fi n e s w h a t a professional and "royalty" means a payment management fee is and made as a consideration for the in making its decision use of or the right to use the taxing authority must sufficiently define or point (a) the copyright of a literary, to the transaction and artistic or scientific work; or payment that falls within the definition of the statute.
116
POWERS OF THE HIGH COURT TO TRANSFER SUITS

Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & another Misc Civil Suit No 136 of 2012 High Court at Nairobi G. V. Odunga J. October 5, 2012 Reported by Andrew Halonyere, Advocate
Issues: i. Whether under section 18 of the Civil Procedure Act, the High Court has powers to transfer a suit from the subordinate court to itself for trial and disposal. ii. Whether the High Court could transfer to itself a suit that was filed in a subordinate court lacking jurisdiction. iii. Whether failure to draw an affidavit drawn in the first person as required under order 19(5) of the Civil Procedure Rules was acceptable.
This was an application seeking orders to transfer a suit from a Chief Magistrates Court to the High Court on the ground that the value of the disputed parcel of land exceeded the jurisdiction of the Chief Magistrates Court. In support of the application, the applicant relied on the case Kagenyi v Musiramo & another [1968] EA 43 and contended that in transferring a suit the matters to be taken into consideration are balance of convenience, questions of expense, interests of justice and possibilities of undue hardship. Section 18 of the Civil Procedure Act (Cap 21):
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the court from which it was withdrawn. Held: 1. Whereas it is correct that section 18(1)(b)(i) talks about the court withdrawing the suit or proceedings and thereafter disposing of or trying the same, to say that the High Court cannot under the said provision transfer a suit from the subordinate court to itself is a misconception. It is noteworthy that under section 18 (1)(b)(iii) the High Court is empowered to re-transfer such a suit back to the court in which it was originally filed. This may occur where a magistrate with pecuniary jurisdiction is posted to the said court. Therefore it is clear that under section 18 of the Act the High Court has jurisdiction to transfer a suit from the subordinate court to itself for hearing and disposal. 2. Where a suit is instituted
(1) On the application of any Civil practice and procedure of the parties and after transfer of suit application to notice to the parties and transfer a suit from subordinate after hearing such of them court to the High Court power as desire to be heard, or of the High Court to transfer suit of its own motion without from subordinate court to itself such notice, the High Court where suit was filed in a subormay at any stage dinate court not having jurisdiction whether lack of jurisdiction (a) transfer any suit, appeal or could be cured by the overriding other proceeding pending objectives whether in the cirbefore it for trial or disposal cumstances the suit was a nullity. to any court subordinate to it and competent to try or dispose of the same; or Statutes interpretation of statutes interpretation of order 19(5) of Civil Procedure Rules al- (b) withdraw any suit or other proceeding pending in leged failure to draw an affidavit any court subordinate to in the first person - whether use it, and thereafter of WE was acceptable Civil Procedure Act (Cap 21) section 18 Civil Procedure Rules order (i) try or dispose of the same; or 19(5).
117
before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as transfer. 3. Since the plaintiff had filed a suit in respect of a claim to land whose value exceeded the pecuniary jurisdiction of the
subordinate court, the suit could not be transferred since the general powers of the court to transfer suits under section 18 of the Civil Procedure Act cannot be exercised in a matter where the suit was filed in a court without jurisdiction. 4. Matters of jurisdiction cannot be described as technicalities of procedure. They are matters of substance since without jurisdiction the Court cannot be said to be seized of the d i s p u t e . A c c o rd i n g l y , lack of jurisdiction cannot be cured either by overriding objective under sections 1A and 1B of the Civil Procedure Act
or Article 159(2)(d) of the Constitution. It therefore follows that the application has no merit. 5. Order 19 rule 5 of the Civil Procedure Rules, provide that every affidavit shall b e d r a w n i n t h e fi r s t person and divided into paragraphs numbered consecutively which shall be confined as nearly as may be to a distinct portion of the subject. What the law requires is that an affidavit be in the first person. It does not say that it be in the first person singular. Accordingly the use of we in the affidavit is acceptable. Application dismissed.
WHEN IS A MASTER VICARIOUSLY RESPONSIBLE FOR THE ACTS OF THE SERVANT

Joel Mutemi Kivangu v Joel Mutemi Kivangu & another Civil Suit No. 256 of 2010 High Court of Kenya at Nakuru M. J. Anyara Emukule October 5, 2012 Reported by Njeri Githanga Kamau, Advocate
Issue: i When is a master vicariously responsible for the acts of the servant?
Held:
1. A master is not responsible for a wrongful act done by his servant unless it is done in the course of his Tort - vicarious liability-suit for employment. It is deemed damages for personal injuries to be so done if it is either - liability of an employer for the negligence of its servantcircum- (a) a wrongful act authorized stances under which a master by the master; or is vicariously responsible for the acts of the servant-whether inju- ( b ) a w r o n g f u l a n d ries inflicted by a watchman in unauthorized mode of personal defence could be said doing some act authorized to be an act which was connectby the master. ed with his employment
2. If the unauthorized and wrongful act is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment, but has gone outside it. 3. To make an employer liable for the act of a person alleged to be his servant the act must be one of a class of acts which
118
the person was authorized or employed to do. If the act is one of that class, the employer is liable, though the act is one negligently or in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorized or employed to
do. 4. The act of the watchman (1st defendant) could not be said to be an act which was connected with his employment as it was an act of personal defence. 5. The act of assault or more accurately, of self-defense, was a matter which
affected the watchman's personal integrity, and security of person, and there was no evidence it was otherwise.In the circumstances, there was no evidence to hold the 2nd Defendant vicariously liable. Suit Dismissed.
DNA Testing
S. W. M v G. M. K Constitutional & Human Rights Division High Court at Nairobi Petition No 235 of 2011 October 5, 2012 D S Majanja J. Judgment By Andrew Halonyere, Advocate
Issue: Whether the Court could order the respondent to undergo a D.N.A test. Constitutional law fundamental rights and freedoms right to bodily security, integrity and right to privacy petition seeking an order that a D.N.A test be carried out to establish biological paternity duty of a party alleging infringement of fundamental rights and freedoms to state and identify the right infringed whether an order to conduct a D.N.A test would amount to intrusion of the
respondents right whether the petition had merit Constitution of Kenya (2010) Art 23,33. This was a petition seeking an order that a D.N.A test be carried out on the respondent and the petitioner to establish biological paternity. Held: 1. Where a party alleged a breach of fundamental rights and freedoms, that party had to state and identify the right infringed and how it was infringed in
respect to him or her. 2. Ordering the respondent to provide DNA test for whatever reason was an intrusion of his right to bodily security and integrity and also the right to privacy which rights were protected under the Bill of Rights. The petitioner bore the burden of demonstrating to the court the right she sought to assert or vindicate and which the court would consider as overriding the respondents rights.
119
SOCIOECONOMIC RIGHTS
Consumer Federation of Kenya (COFEK) v Attorney General & 4 Others Petition No 88 of 2011 High Court at Nairobi October 5, 2012 M Ngugi, J. Reported by Andrew Halonyere, Advocate
Issue: Whether the enjoyment of socioeconomic rights had been violated through an alleged Governments failure to control the rising cost of living. Constitutional law fundamental rights and freedoms socio-economic rights declaration that socio-economic rights were violated by Governments failure to control rising cost of living test for determining whether or not the state has met its obligation manner in which matters concerning public interest should be brought before court costs not to be imposed on proceedings that advance a legitimate public interest whether the petition had merit -Constitution of Kenya, 2010 Article 20(5), 22,23,43 This was a petition seeking inter alia a declaration that the Governments failure to stabilize and reduce high fuel prices violated article 43 of the Constitution of Kenya which guarantees the petitioners and other citizens economic and social rights. Held: 1. The key to justifiability of the socio-economic rights is the standard of reasonableness. Though a considerable margin of discretion must be given to the state in deciding how it is to go about fulfilling
the socio-economic rights, the reasonableness of the measures that the state adopts can be evaluated by a court. 2. Many factors including a failure in rainfall have a negative impact on the availability of food and the cost of living and such factors are not a result of the failure on the part of the state to take appropriate policy and other measures to ensure the realisation by citizens of the socio-economic rights guaranteed under Article 43. The respondents had taken reasonable measures to meet their obligations under the Constitution. 3. When bringing matters of socio economic rights before the court, which have a critical bearing on the rights, lives and livelihoods of citizens, it is not enough to make bare statements with regard to the violation of rights without seriously addressing oneself to the manner in which the violations have occurred and the reasonableness or otherwise of the measures taken to avert or ameliorate their impact. At this nascent stage in the implementation of the Constitution of Kenya 2010, parties in the position of the petitioner, should they determine to
take on cases which have a bearing on the public interest, must take them on with all due seriousness. 4. The manner in which the petition was conducted by the petitioner would ordinarily have attracted an award of costs against it. However, the intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to the Constitutional Court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened. The imposition of costs would constitute a deterrent and would have a chilling effect on the enforcement of the Bill of Rights. 5. In matters concerning public interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. No order as to costs
120
COMMENCEMENT OF A DERIVATIVE ACTION EX-PARTE

In the matter of CMC Holdings Limited Misc. Civil Case No 273 of 2012 High court of Kenya at Nairobi Commercial & Admiralty Division October 4, 2012 DS Majanja, J. Reported by Phoebe Ida Ayaya, Advocate
Issues: Whether the respondents were entitled to grant of leave to commence the derivative action Whether the application to set aside the leave granted ex parte was properly brought before the court. Whether an application for leave to commence a derivative action should be brought ex parte or inter partes. Whether the issues raised by the respondents were sub judice. Company Law - Leave-Companies (High Court Rules)-Rule 3-whether leave to institute a derivative action could be granted ex-parte-application to commence suit was proper-entitlement of grant of leave-enactment of new Company Act Civil Practice and Procedure Res Sub judice-whether issues raised by the respondent were sub judice Words & Phrases - derivative action- A lawsuit brought by a shareholder of a corporation on its behalf to enforce or defend a legal right or claim, which the corpora-
tion has failed to do- derived from the primary right of the corporation to seek redress of legal grievances through the courts- arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the Board of Directors of a corporation Held: 1. The long standing practice, had always been that before a derivative action i s fi l e d , t h e a p p l i c a n t brought to court an ex parte application for leave, supported by a detailed affidavit so as to demonstrate that he had locus standi to institute such an action and that he had a prima facie case. The applicant must satisfy the court that the company was entitled to the intended relief and that the action fell within the threshold of the exceptions to the rule in FOSS vs. HARBOTTLE (1843) 67 ER 189 2. The threshold set out in FOSS v. HARBOTTLE (1843) 67 ER 189. The exception as to when a shareholder can bring a suit on behalf of a company were: 1) When it is complained that the company is acting or
proposing to act ultra vires 2) When the act complained of, though not ultra vires, could be effective only if resolved upon by more than a simple majority vote 3) When it is alleged that the personal rights of the plaintiff shareholder have been infringed or are about to be infringed 4) Where those in control of the company are perpetrating a fraud on the minority 5) Any other case where the interests of justice require that the general rule, requiring suit by the company should be disregarded. 3. Derivative suits by the applicant usually alleged that some ills had been or were being committed by some directors against the company and if the a p p l i ca ti on for l ea v e was to be served and argued inter partes, the directors were likely to use every means available to frustrate, delay or defeat such an application and the company may continue to suffer loss.
121
4. The enactment of a new Companies Act that will, inter alia, shed light on all the grey areas of company law practice, including derivative claims. But before that is done, courts cannot adopt wholesome the practices
in other jurisdictions such as England and Nigeria which have statutory provisions laying down the procedure for instituting derivative actions. 5. Issues raised herein were not sub judice. There
may be some similarities between this case and some of the other cases but further directions were given as to how the various matters were handled. (Application dismissed)
SUPERVISORY ROLE OF THE HIGH COURT OVER THE INDUSTRIAL COURT

Kenyatta University v Industrial Court of Kenya & another Misc. Civil Appl. No. 430 of 2007 High Court at Nairobi Mumbi Ngugi J. October 3, 2012 Reported by Emma Kinya, Advocate
Issues: Whether the High Court had jurisdiction to entertain an application pertaining to issues of employment and labour relations and to supervise the Industrial court. Whether the Industrial Court acted in excess of its jurisdiction in making orders that pertained in the internal governance functions vested in the University Council by Section 13(1) of the Kenyatta University Act Judicial Review Certiorari application to quash the decision of the Industrial Court claim that the Industrial court acted ultra vires in granting orders that dealt with the internal governance functions vested in the University Council by the university Act whether the application had merit. Jurisdiction supervisory role jurisdiction of the High Court in a supervisory role over the industrial court where the Industrial Court
122
had acted ultra vires its powers by issuing orders that dealt with the internal governance functions of the University Council whether or not the High Court had jurisdiction to quash the decision of the Industrial Court which had been reached ultra vires its jurisdiction. Held: 1. The jurisdiction of the High Court vis a vis the Industrial Court has now been settled by the Constitution. Article 165 (5) provide that the High Court shall not have jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction over such matters is now vested by Article 162(2) in the Industrial Court, a court with the status of the High Court established under the provisions of the Industrial Court Act, 2011. However, as neither the Constitution nor the Industrial Court Act operate retrospectively, the matter in dispute in this case falls for determination under the constitutional and legislative regime in
force in February 2007. 2. The High Court has jurisdiction to supervise the Industrial Court as it existed in February, 2007 when the decision impugned in this application was made. Should it find that the Industrial Court acted in excess of its jurisdiction, then the High Court would have jurisdiction to quash the decision if it was reached ultra vires the jurisdiction of the respondent. 3. The members of the University Academic Union were entitled to remuneration for the work that they do. However, such remuneration must, have been as provided in their contract of service or as may have been agreed upon between the applicant and the union as part of their collective bargaining agreement. It could not have been the proper function of the respondent to apportion
income arising from the Self sponsored Student programme (SSSP) of the university, or indeed any other programme of the applicant, between the university and the union. 4. It cannot amount to proper exercise of the respondents jurisdiction
to direct the applicant to open bank accounts, or to manage the funds through a particular board or institution, or to direct the furnishing of monthly statements by the university to the union. Such orders clearly go over and above the jurisdiction of the industrial Court to
determine trade disputes as defined under the Trade Disputes Act. The making of such orders was, in my view therefore, ultra vires the powers of the Industrial Court. Certiorari order quashing the order of the Industrial Court granted.
WHEN TERMINATION OF EMPLOYMENT CONTRACT DOES NOT AUTOMATICALLY TERMINATE INSURANCE MEDICAL COVER
Jackline Wanjiku Munyua & another v AAR Health Services Limited Civil Suit No. 602 of 2009 High Court at Nairobi G.V. Odunga, J. October 2, 2012 Reported by Sylvie Nyamunga, Reporter
Issues Whether the relationship between the plaintiff and the defendant was that of employer/employee. Whether the defendant was justified in terminating the 1st plaintiffs contract. Whether the termination of the said contract automatically terminated the insurance medical cover. Whether at the time of the 1st plaintiff incurred the contested medical expenses, there was in force a valid insurance medical cover. Employment law contract of employment whether an Agent Agreement is a contract of employment - termination of the contract - whether termination procedures were properly
followed - whether termination of contract automatically terminated medical insurance - claim against the respondent for payment of medical bills Insurance Act Cap 487- Employment Act, 2007 Held: 1. The Agent Agreement between the 1st plaintiff and the defendant was an employment contract and not a contract for services. Therefore the 1st plaintiff was an employee of the defendant and her relationship with the defendant was regulated by the provisions of the Employment Act, 2007. 2. The termination was unlawful firstly because the mandatory procedures under the Employment Act were not complied with and secondly, the reason for termination was
not merited because the defendant was obliged to explain the reasons for the termination in the presence of a third party described by the Act and to hear any representation that might be made by the applicant. 3. The termination of the contract did not automatically terminate the insurance cover because the two contracts were different. On ter mination of the former, the latter would remain in force save that the benefits accruing thereto as a result of the former would cease to be enjoyed with the result that the 1st plaintiff would be obliged to pay the full amount. 4. The defendant ought to have given the 1st plaintiff seven day notice of
123
termination of medical c o v e r. T h e r e f o r e t h e defendant was liable to meet the 1st plaintiffs medical expenses arising from the accident in which the 1st plaintiff sustained injuries notwithstanding
that it was entitled to terminate the medical cover at a later stage. The defendant was liable to settle the doctors bills as well as the medical bills incurred by the plaintiff.
In the result the Plaintiff was awarded General Damages in the sum of Kshs. 450,000.00 and special damages of Kshs. 223,540.00 Costs awarded to the 1st plaintiff.
SECURITY FOR PAYMENT OF TAXES

Geothermal Development Company Limited v Attorney General & 3 Others Petition No. 352 of 2012 High Court at Nairobi Constitutional and Human Rights Division D.S Majanja, J. October 1, 2012 Reported by Emma Kinya Mwobobia, Advocate
Issue: Whether the petitioner should furnish security for payment of taxes. Tax Law Income tax security for payment of taxes applicant seeking a conservatory order not to pay security for taxes in dispute until the matter is determined and heard whether the application had merit. The petitioner is a limited liability company incorporated under the Companies Act. Its principal shareholders are the Permanent Secretary to the Treasury and the Permanent Secretary to the Ministry of Energy. Its key objective, as its name suggests is to develop geothermal energy in Kenya.
After an audit carried out in 2011, the Kenya Revenue Authority demanded VAT, withholding tax and PAYE. The subsequent demand and enforcement is what has precipitated these proceedings. Held: 1. The court was aware that the petitioner was a wholly owned government corporation which was a special vehicle for developing geothermal energy. This fact alone, could not have entitled it to any special consideration but the court took into account the fact that it was fully government funded and an order of security may have been onerous
to the extent that its work may have been affected to the detriment of the public. 2. Having taken all factors into account and balancing the right of the petitioner to agitate these proceedings and the obligations of the respondent to secure taxes the court issued a c o n s e r v a t o r y o rd e r pending the hearing and deter mination of the petition, restraining the 2nd, 3rd and 4th respondents from levying distress against the property of the petitioner. Application allowed.
124
COURTS INHERENT JURISDICTION IN SETTING ASIDE JUDGMENT OR ORDERS WRONGLY ENTERED

R v Chief Land Registrar & 9 others ex parte James Njoroge Njuguna Judicial Review No. 67 of 2007 High Court at Nairobi (Milimani Law Courts) D. S. Majanja J. September 28, 2012 Reported by Nelson K. Tunoi, Advocate Judicial Review setting aside of prerogative ordersorders obtained in breach of rules of natural justice-where orders issued affect non-parties to a suit-failure to serve all affected/interested parties-whether orders obtained could be set aside ex debito justitiae (as a matter of right)-exercise of courts inherent jurisdiction-powers of court to set aside orders wrongly entered-Law Reform Act section 8(3) and (5); Civil Procedure Rules, Order53 rule 2 Issue(s): Whether the High Court had jurisdiction to set aside prerogative orders obtained in breach of rules of natural justice. Held: 1. A court exercising judicial review jurisdiction has inherent jurisdiction to set aside a judgment wrongly entered. Section 8 (3) and (5) of the Law Refor m Act does not specifically exclude the inherent power of the court to do justice and prevent an abuse of its process. 2. Order 53 rule 2 of the Civil Procedure Rules which gives practical effect to prerogative orders requires that all persons directly affected must be served with the motion. If service is not effected the court must act accordingly. 3. The rules of natural justice are so well entrenched in our jurisprudence and cannot be ignored. Therefore, orders obtained in breach of these rules of natural justice cannot survive judicial scrutiny. 4. Where a duty is cast upon a party to serve another party or parties directly affected, that duty is not discharged merely on the ground that the parties would have received information about the suit from another party. Applications to set aside orders allowed with costs to the applicants.
ISSUE OF CONSERVATORY ORDERS WHERE THERE EXISTS A STATUTORY PROCESS GOVERNING A PARTICULAR MATTER Dickson MukweLukeine v Attorney General & 4 others
Petition No. 390 of 2012 High Court at Nairobi (Constitutional and Human Rights Division) Justice D.S. Majanja J. September 28, 2012 Reported by Njeri Githanga, Advocate Constitutional Law - conservatory orders-nature of conservatory orders under Article 23 of the Constitution of Kenya, 2010- where conservatory orders were to be issued as a special remedy which is not subject to the strictures imposed by the statute or other law -where there is a statute governing the subject matter the court could take into account statutory provisions in framing an appropriate remedy to enforce the right or fundamental freedom violatedapplication for conservatory or-
125
ders on allegations of irregularistatutory provisions in ties and fraud in preparation of framing an appropriate adjudication register in Older adremedy to enforce the judication section-courts powright or fundamental er where there exists statutory freedom violated. processes governing particular matter-where mode of dispute 2. The court was obliged resolution established in statuteto balance the rights whether interim injunctive orders of the parties and the could issue stopping the adjudipublic. Property rights cation process -Constitution of were protected by the Kenya 2010, Articles 22, 23, 27, Constitution but were 40, 159(2)(c)Land Adjudication realised through the Act (Cap 284), Sections 5, 12, 20, property statutes that 26, 26A, 27, 28 and 29 30. govern relationships between individual Issue(s): citizens and individuals and the State. The Land Whether interim Adjudication Act (the Act) injunctive orders can be was one such statute that issued stopping Land was enacted to identify, adjudication process ascertain and record where there exist statutory the rights and interests of processes governing persons in trust land with a particular matter and view to registration. where mode of dispute resolution is established in 3. The adjudication process statute was still on-going and the adjudication register Held; was yet to be completed. Sections 26, 26A, 27, 28 and 1. C o n s e r v a t o r y o r d e r s 29 provided for a system of under Article 23 of the objections and appeals Constitution of Kenya, 2010 which the petitioners and is a special remedy which is the residents of Olderkesi not subject to the strictures adjudication section could imposed by the statute or invoke to raise all their other law but where there grievances. is a statute governing the subject matter the court 4. A l t e r n a t i v e d i s p u t e may take into account resolution processes were
complementary to the judicial process and by virtue of Article 159(2) (c) of the Constitution of Kenya, 2010; the Court was obligated to promote these modes of alternative dispute resolution. In the same vein, it was not inconsistent with Articles 22 and 23 to insist that statutory processes be followed particularly where such processes were for the specific purpose of realising and promoting and protecting certain rights and including property rights. 5. The petitioners allegations though serious in nature were vague and a conservatory order would not assist the process of adjudication at that stage. The grant of such an order would halt the entire process and engage the court in a task best suited to be carried out by officers on the ground. Conservatory orders denied, notice of motion dismissed with no order as to costs. Mr J. Juma for the petitioners Mr Kakoi, Litigation Counsel, for the respondents
BREACH OF ONE'S RIGHT TO FAIR ADMINISTRATIVE ACTION UNCONSTITUTIONAL

Dorion East Africa Limited v Permanent Secretary, Ministry of Agriculture & another Petition No. 100 of 2012 High Court, at Nairobi Constitutional and Human Rights Division D.S. Majanja J. September 28, 2012. By C W Lupao, Advocate Constitutional Law - fundamental rights and freedoms-right to fair administrative action by public entities- challenge on constitutionality of a Ministrys ban on use of certain pesticide
126
products- ban allegedly effected by sustained advertising against use of the respondent's pesticide products in the dailies before having the same gazetted -petitioner arguing that the alleged adver-
tisement constituted a ban thus prejudicing the licensed pesticide manufacturer--right to fair administrative action-meaning of 'administrative action.'-Constitution of Kenya, 2010, Articles 35(3), 42,
46, 47(1);Pest Control Products Act (Cap. 346). Civil Practice and Procedure - damages- special damagesclaim of special damages as a result of alleged lost revenuewhether lost revenue would constitute special damages-prove of special damages. Held: 1. The fact that a media c a m p a i g n w a s underwritten by the state to discourage the use of the pesticide amounted to a ban and achieved the same effect as the ban that was supposed to be effected by the legal notice proposed. It breached the right
to fair and reasonable administrative action particularly where it had not been demonstrated that the provisions of the regulatory statute on the use of the petitioner's product had been breached. 2. The actions of the respondents were unfair and unreasonable. The purported ban of the petitioners products through the advertisement campaign was a breach of the petitioners right to fair administrative action protected under Article 47(1) of the Constitution of Kenya, 2010. 3. The term administrative
action is not limited to decisions; it is an expansive term that includes any act or omission that affects the rights and interests of the citizen and it is intended to protect the individual from unreasonable administrative action such as the stealth ban that had been instigated by the respondents. 4. Lost revenue is in the nature of special damages and it must be pleaded with particularity and proven accordingly. Petition allowed, respondents restrained from interfering with the sale, distribution or in any manner with the petitioners duly licenced products.
DEFINITION AND SCOPE OF ACCORD AND SATISFACTION

Galeb Gulam & another v Cyrus Shakhalaga Kwah Jirongo HCCC Case No. 393 of 2003 High Court at Nairobi (Commercial and Admiralty Division) A. Mabeya J. September 28, 2012 Reported by Njeri Githanga Kamau, Advocate Contract - breach of contract- satisfaction is the consideration accord and satisfaction-defini- which makes the agreement option and scope erative. In James Wallace property Ltd Issue vs- William Cable Ltd (1980) 2 NZLR 187 the Newzealand Court of Ap What is the definition and peal held:scope of accord and satisfaction? it involves the acceptance of something less than the carrying Accord and satisfaction was out of the contract itself, accord defined in the English case and satisfaction differs from a disof British Russia Gazette charge by the performance. It and Trade Outlook Ltd vsis a new agreement under which Associated Newspapers the party in default is relieved from Ltd (1933) 2 K.B wherein his former liability by a promise to at page 643, Scrutton LJ do something other than what he stated:was obliged to do by the former contract. It is the essence of an Accord and satisfaction is the accord that there must be an purchase of a release from an agreement. Whether or not there obligation where arising under is an agreement is a question of contract or tort by means of fact, not law, to be determined any valuable consideration, not from the circumstances of each being the actual performance case. of the obligation itself. The accord is the agreement by which, Held; the obligation is discharged. The 1. For there to be accord and
satisfaction there must be i) A dispute as to the amount due ii) T h e a m o u n t d u e m u s t exceed the amount tendered by the debtor, iii) The debtor must indicate at the time of such tender that the sum is being tendered in full settlement of the debt, iv) The creditor must accept such tender by receiving the amount tendered by either negotiating the instrument of such tender encashing the cheque or any other mode of acceptance of such tender. 2. The debtor must show that there has been a meeting of the minds. Application dismissed with costs
127
TEST FOR A FATALLY DEFECTIVE CHARGE SHEET Fappyton Mutuku Ngui v Republic
Criminal Appeal No. 296 of 2010 High Court at Machakos J.M. Ngugi J. September 28 2012 Reported by Njeri Githanga Kamau, Advocate
Issues The test for a fatally defective charge sheet-where the appellant had been charged with defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. Where the proper provision under which to charge the Appellant should have been section 8(1) as read together with section 8(2) Whether the error in the charge sheet entitled the appellant to an acquittal or whether it was a technical one curable because it did not occasion a miscarriage of justice. Criminal Practice and Procedure-charge sheet-defective charge sheet-test for a fatally defective charge-circumstances under which a defective charge can be cured-Criminal Procedure Code, section 382 Held; 1. The test for whether a charge sheet is fatally defective is a substantive one: was the accused charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him? 2. If the accused person can be said to have understood the charges facing him well enough to understand the ingredients of the crime charged so that he
128
can fashion his defence. This can be tested, for example, by how much or vigorously he participated in the trial process and whether the record shows that he was able to follow the proceedings and ask questions in line with his theory of defence. 3. The test is not at all a formalistic one but a substantive one. The adopted test that looks at the trial process in its totality rather than the retail defects separately. The aim is to establish if the trial process could have been said to be fair to the accused person. If the charge sheet has a technical defect but all the other procedures are meticulously followed and the other substantive rights of the accused person are evidently respected in the trial process, it will be easier for a Court to fairly immunize the technical defect in the charge sheet especially if it is clear that the accused person understood what was facing him and his participation in the trial process vindicates that position. 4. On the other hand, if a defect in the charge is followed by a series of other procedural or substantive mishaps or miscues in the trial process which all affect the rights of the accused person, the Court
should be reluctant to utilize section 382 of the Criminal Procedure Code (CPC)to cure the charge sheet even if each of the defects in the trial process could, standing on its own, be cured or treated as har mless error. An accumulation of singular streams of procedural defects which would otherwise be har mless errors spew into a river of substantive defect which would entitle an accused person to an acquittal upon appeal. 5. No miscarriage of justice was occasioned by the technical defect in the charge sheet and it could be cured under section 382 of the CPC. If one needed evidence of that, one would begin with the very fact that the Appellant never raised the objection including on appeal. That must be because he knew the charges he was facing. 6. A perusal of the Court record showed that the Appellant participated v i g o ro u s l y i n t h e t r i a l process and was well aware of the charges he was facing. The trial process was fair and the appellant had sufficient notice of the charges facing him. Appeal dismissed.
MEANING AND SCOPE OF CONFLICT WITH PUBLIC POLICY UNDER ARBITRATION ACT
Rwama Farmers Co-Operative Society Limited v Thika Coffee Mills Limited Civil Case No. 836 of 2003 High Court at Nairobi Commercial and Admiralty Division A. Mabeya, J. September 28, 2012 Reported by Sylvie Nyamunga, Reporter
Issues : Meaning and scope of conflict with public policy as used in section35 (2) (b) of the Arbitration Act. Whether the Award is contrary to public policy in that it will lead to wrongful enrichment of the Plaintiff and that the Defendant was not accorded a fair hearing contrary to Article 50 of the Constitution of Kenya. Arbitration arbitration award application to set aside the Award-courts jurisdiction to set aside the Award-whether an arbitral award that deals with a dispute not contemplated by or not falling within the terms of the reference of the Arbitrator, or contains matters beyond the scope of the reference was flawed-whether the award was made contrary to public policy as it sought to wrongfully enrich the Plaintiff-whether the award
was made in contravention to Article 50-right to fair hearing as under Article 50 of the Constitution of Kenya, 2010-evidence of fair hearing- Section 35 (2) (b) of the Arbitration Act Words and Phrases- conflict with public policy- Section 35 (2) (b) of the Arbitration Act Held : 1. Conflict with public policy is akin to contrary to Public Policy, against Public Policy opposed to Public Policy. These terms do not seem to have a precise definition but they connote that which is injurious to the public, offensive, an element of illegality, that which is unacceptable and that violate the basic norms of society. 2. That there was no evidence that the defendant was not
accorded a fair hearing contrary to Article 50 of the Constitution of Kenya, 2010 because he was given a lot of latitude and was even allowed to file documents and defence out of time. Also, the Arbitrator found that both parties dealt with the issue substantively during the trial whereby evidence was fully adduced for and against the issue. 3. That there was no unfair enrichment, having not found any evidence that was injurious to the public, offensive, with an element of illegality, that which is unacceptable to the Kenya society with Award. There is nothing in the Award that is contrary to public policy of Kenya. Defendants application dismissed with costs
129
ENTITLEMENT TO MATRIMONIAL PROPERTY THROUGH THE AVENUE OF HUMAN RIGHTS

Z. W. N. v P. N. N. Civil Suit No. 10 of 2004 High Court at Nairobi R. Nambuye, JA September 28, 2012 Reported by Nelson K. Tunoi, Advocate Issues: i. W h e t h e r a s p o u s e i s entitled to matrimonial property through the avenue of human rights an aspect not explored and/or interrogated by the Court of Appeal in the case law? Ref: Echaria v Echaria ii. W h a t q u a l i fi e s a s matrimonial property for purposes of division between spouses? iii. Whether the High Court has jurisdiction to declare the proportions in the division of matrimonial properties. Family law - division of matrimonial property-principles to consider in dividing matrimonial property-whether non-monetary contribution amounts to contribution in acquiring matrimonial property-whether a spouse is entitled to matrimonial property based on human rights principles-Constitution of Kenya, 2010 Article 45 (3); Interpretation and General Provisions Act (cap 2) section 23 (3) Jurisdiction - High Courts jurisdiction to declare the proportions in the division of matrimonial property-where the shareholding proportions of subject property by spouses in unclear In Echaria v. Echaria the Court of
Appeal laid down the following principles:(i) That time was opportune for the court of appeal to depart from its own decision in the case of Kivuitu v. Kivuitu with regard to the preposition that joint tenancy connotes equality. The reason being that there is a rebuttable presumption that where 2 or more people contribute the purchase price of property in equal shares they are in equal joint tenants. Equal contribution results in a joint tenancy unless there is contrary evidence to show that irrespective of the registration there was no equal contribution. (ii)Where the disputed property is not registered in the joint names of the spouses but it is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective preposition as financed contribution either direct or indirect towards the acquisition of the property. (iii) In cases where each spouse has made substantial but unascertainable contribution it may be equitable to apply the maxim is Equity.
(iv) That previous decisions of the Court of Appeal on the subject before the decision in the case of Echaria v. Echaria in all proven disputes between husband and wife over beneficial interest in the property acquired during marriage which had come to the court of appeal, the court of appeal had invariably given the wife an equal share but a study of the said decisions reveals that the said decisions were not as a result of any general principle of equality of division save that the court appreciated that for the wife to be entitled to a share of the property registered in the name of the husband she had to prove contribution towards the acquisition of the property. (v) That the Kivuitu case was carefully decided both on law and facts as it is a case where the husband and wife had a joint legal interest and a resultant equal beneficial interest in the property. The court did not lay out any principle on equal division as suggested. (vi) That when dealing with disputes between husband and wife over property, the court applies the general principle of law applicable in property disputes in all
130
courts between all parties irrespective of the fact that they are married. According to the English law of trusts it is only through the wifes financial contribution direct or indirect towards the acquisition of the property registered in the name of her husband that entitled her to a beneficial interest in the property. (vii) A wifes non-monetary contribution cannot be taken into account when deter mining the total amount of contribution from the wife towards acquisition of the property. Article 45 (3) Constitution of Kenya, 2010 45(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
Women Property Act of England, which case law has ruled that the said legislation being a statute of general application in England forms part of the received law from England to this jurisdiction and the principles on the interpretation of the said provision in England form persuasive law to the courts of this jurisdiction when interpreting the said provision in relation to disputes over property rights by spouses both married under the statute and customary law so far as applicable to the peculiar circumstances of this case. 2. The plaintiff who had been married under statute law has properly anchored her claim herein on the said statue and is entitled to a merit decision on her claim.
the property is joint then the presumption of equal share holding applied. ( b ) B y w a y o f a d i re c t contribution towards the acquisition of the home by the spouse either contributing to the entire purchase price or meeting of equal mortgage installments. (c) By way of indirect contribution by reason of the wife off-loading from the husband the burden of child care and up keeping and general management of the family and the home as well as child bearing and in the process creating room for the husband to save money to meet the costs of capital investment. (d) By way of a wedding gift. 5. The decision of the Court of Appeal in Echaria v. Echaria did away with the issue of recognition of indirect contribution and stressed direct financial contribution as the overriding criteria in determining spouses entitlement to matrimonial property. Notably however, the court has jurisdiction to declare whatever percentage comprises of the wifes shareholding in the subject property and then go further and avail that percentage to the wife by ordering that the property be valued and either sold and the proceeds shared out as per the percentages adjudged or alternatively that the incumbent spouse or the spouse who wishes to keep the property can buy out the percentage share entitlement of the other spouse. 6. A Bill is not law and for that
Properties which are Interpretation and General Provi- 3. proper candidates for sions Act (cap 2), section 23 (3):adjudication under the said statute are those Section 23(3) where a written which are proven or law repeals in whole or in part qualify to be contested as another written law then unless matrimonial properties. a contrary intention appears the repeals shall not:4. Up to and exclusiveness of the date when Echaria (c) Affect a right, privilege, v. Echaria was decided obligation or liability the Court of Appeal had acquired accrued or recognized the following incurred under a written as the ways in which a wife law so repealed could gain entitlement to matrimonial property Held: namely:1. The decision of Echaria v. Echaria being a Court of Appeal decision is binding on this court and the court affirms that it is the correct position of in law. The case carried out an extensive survey of case law of its own decisions on the applicability of the provision of section 17 of the 1882 Married (a) By way of a gift whereby a husband solely acquires the property but intends to give a portion of it as a gift to his wife and registers the property in the joint names of both of them. The extent, value percentage of the gift may be specified. But where there is no specification of the wifes ratio of entitlement but
131
reason its prescriptions howsoever favourable they may be to the plaintiffs case, they cannot be applied to confer a benefit onto the plaintiff. 7. The prescription in Article 45 (3) of the Constitution of Kenya, 2010 was not part of the prescription in the defunct Constitution. It is a new innovation taking effect after the competing rights of the parties had crystallized at the time the plaintiff made the first move to come to court and sought reliefs in the year 2004. That finding notwithstanding, the court takes judicial notice of the fact that the provision of Article 45(3) (supra) has been lifted from Article 16(1) of the Universal Declaration of Human Rights to which the court takes judicial notice that Kenya is a signatory and has undertaken to uphold those ideals for the benefit of its citizenry. 8. Bearing in mind the caveat
in section 23(3) (c) of the Interpretation and General Provisions Act the court can only go round that caveat if it can be demonstrated that there was obligation on the part of the Court of Appeal or any other court in this Jurisdiction to apply principles of equality in matrimonial property disputes based on this principle of equality as a basic human right both before the making, during the making and after the making of the decision in the Echaria v. Echaria decision if this issue of equal entitlement as between spouses based on human rights had a risen and interrogated by the court at the invitation of the parties or on the basis of the courts own motion. 9. The decision in Rono & another v. Rono is authority that even before the advent of the prescriptions in Article 2(5) and 45 (3) of the Constitution of Kenya, 2010 Kenyan courts were already alive and sensitive
to there being a need to accord equal treatment to women and children in all spheres of life. This court appreciates that the decision in Rono & another v. Rono dealt with inheritance rights and issues, but the court is of the view that application of law knows no boundaries and for this reason application of the principle of equality in matrimonial property disputes is not remote. This court notes and appreciates that the principle of law set by the court in Echaria v. Echaria stems from provisions of a legislation subordinate to constitutional provisions, meaning that the constitutional provisions enshrining the principle of equality when it comes to distribution of matrimonial property has primacy over the principle of law enunciated by the decision in Echaria v. Echaria which storms from an ordinary legislation. Matrimonial properties shared equally between the spouses.
RECOGNIZED AGENT
Jack J Khanjira & another v Safaricom Limited High Court at Mombasa Civil Case No 231 of 2011 September 27, 2012. RM Mwongo J Ruling By Andrew Halonyere, Advocate
Issue: Whether a recognized agent under Order 9, of the Civil Procedure Rules, acting pursuant to a donated power of attorney, could appear in court on behalf of a litigant acting in person and
present.
follows:
To what extent could a recog- "1. Any application to or nized agent lawfully act for a litiappearance or act in any court required or authorized gant? by the law to be made or done by a party in Order 9 rule 1 provides as such court, may, except
132
except where otherwise expressly provided for by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf..."
Constitutional law fundamental rights and freedoms - right to fair trial right of an accused in criminal justice to be represented by advocate whether civil justice system donates a similar right to 2. Order 9 rule 2(a) of the Civil Procedure Rules provides a litigant. that a person acting as a recognized agent, acts Civil practice and procedure or makes applications or representation agent repreappearances subject to senting plaintiff in court pursuant the approval of the court. to a donated power of attorney Therefore it is for the court scope of the mandate of a to oversee the scope and recognized agent - whether the extent of the functions of agent had power to represent a a recognized agent, and person in court Constitution of to assure itself that they Kenya (2010), Art 50(2)g - Civil are not overstepping the Procedure Rules Order 9,(1)(2) bounds of the law. It is not (a), order 51 rule 14 Advocates the fact of being an agent Act (Cap 16) sections 31,83.
Held: 1. The criminal justice system under the Constitution of Kenya 2010 guarantees an accused person the right to choose and be represented by an advocate and be informed of the right promptly. The civil justice system does not donate a similar right to a litigant in civil matters, which is left to civil law and private law.
that renders a donee of a power of attorney as recognized, it is the extent or scope of their agency that is recognized. That is, a recognized agent can perform only that which he is recognized or authorized to do in law. 3. In determining the scope of the mandate of a recognized agent acting under a power of attorney, careful scrutiny of the instrument itself is essential. The actions of the donee in drawing or signing instruments, assuming audience before the court and in exercising the wide functions under the special power of attorney, including seeking costs, were functions or actions in violation of the Advocates Act (Cap 16) in respect of unqualified persons. Preliminary objection allowed.
CONSERVATORY ORDERS
Okiya Omtatah Okoiti v Attorney General & another Petition No 311 of 2012 High Court at Nairobi D S Majanja J Ruling September 26, 2012 Reported by Andrew Halonyere, Advocate Civil practice and procedure conservatory orders ex-parte application seekingconservatory orders to stop contract for the procurement of Biometric Voter Registration(BVR) registration kit grounds; corruption - balance to be struck in deciding whether to grant conservatory orders in certain instances whether the court could grant interim declarations through an interlocutory application whether the court would interfere with the contract. to public information duty of a citizen to ask for public informaConstitutional law national val- tionConstitution of Kenya 2010 ues and principles of governance Art 10,35. integrity duty of court to balance competing interest and val- Application seeking inter-alia inues whether in the circumstanc- terim conservatory order to rees failure to grant conservatory strain the IEBC from procuring orders was a negation of national Biometric Voter Registration kits values. with SAFRAN MORPPHO (Canadian Commercial Corporation) inConstitutional law fundamen- tended for the registration of vottal rights and freedoms access ers by Independent Electoral and Boundaries Commission (IEBC).
133
Issues: What should the court consider before granting conservatory orders. Whether allegations of corruption were proved against IEBC. Whether the Court could grant interim declarations through an interlocutory application. Whether the petitioner was entitled to information from the Finance Minister on the on-going procurement of Biometric Voter Registration Kits. Held: 1. In granting a conservatory o r d e r, t h e c o u r t w a s supposed to balance the interests of two opposing parties. On one hand was the petitioner, acting in public interest to stop what he considered a fl a w e d p r o c u r e m e n t process by the IEBC to procure electronic voter registration equipment. On the other side, was a constitutional body with a mandate to carry out voter registration and in so doing had taken steps to procure the Biometric Voter Registration Kits. 2. The Constitution of Kenya
2010 puts integrity and other values at its heart in Article 10 and Chapter six, therefore the rejection of the application must not be seen as negating those values but rather, that the court was called upon from time to time to balance competing interests and values in every application before it based on the facts and evidence available. 3. Allegations of corruption had been levelled against the company, SAFRAN MORPHO. No authentic court record had been provided for the court to satisfy itself of the nature of the actual allegations. The newspaper reports were of little probative value and could not form any evidential basis for impugning the work of a constitutional body. 4. There was a contract between the Government of Kenya and the Canadian Commercial Corporation and the IEBC which gave rise to rights and obligations between the parties. The High Court could not give orders that would interpose that relationship without hearing all the parties
thereto much less on the basis of some allegations of fraud gleaned from newspaper articles. 5. The High Court could not grant interim declarations through an interlocutory application. The interalia declarations as to whether integrity was a mandatory virtue to any person or corporation which intended or qualified to contract with the Government of Kenya had to await full hearing of the case. 6. Article 35 entitles the petitioner to a right to information from the state. Such information was requested by the petitioners through a letter addressed to the Minister for Finance. There was no indication that the letter had been dealt with and it would have been proper for the Minister to address himself to the information requested before the court exercised its coercive powers. Application dismissed, Minister of Finance ordered to issue an appropriate response to the petitioner within 21 days from the date of the ruling.
134
CAN A COURT VARY, REVIEW OR SET ASIDE ITS OWN ORDERS IN JUDICIAL REVIEW PROCEEDINGS?
Republic v Clerk, County Council of Meru & another exparte Elisha Nkamani Mmwari High Court, at Meru. Misc. Application No. 98 of 2009 J. A. Makau, J. September 27, 2012 Reported by Emma Kinya Mwobobia, Advocate Issues:
Whether a court has jurisdiction to vary, review or set aside its own orders in a judicial review application. Whether Civil Procedure Rules outside Order 53 of the Civil Procedure Rules are applicable in Judicial Review application. Whether the only remedy available to an aggrieved party on any decision arising out of a Judicial Review application is by way of an appeal to Court of Appeal.
or set aside its own orders in judicial review-remedy available by a decision of a court to an aggrieved party in judicial review proceedings-whether a court can vary, review or set aside its own orders in judicial review proceedings. Judicial Review-laws governing judicial review proceedingswhether Civil Procedure Rules, except Order 53, are applicable in Judicial Review proceedings. Held: 1. The court had delivered its final ruling hence it became functus officio and could not reconsider its decision as orders made under section 8(3) of the Law Reform Act were final. The applicant in
seeking the court to review its orders was tantamount to asking the court to sit on appeal of its orders yet in Judicial Review an appeal could only be in the Court of Appeal. 2. In Judicial Review there is no return, review or varying of the courts orders but there is only a right of appeal to the aggrieved party under s.8(5) and s 9 of the Law Reform Act. 3. The Civil Procedure Rules do not apply to Judicial Review except Order 53 of Civil Procedure Rules. Section 8(1) of the Law Reform Act, totally outs the application of any other procedure
Judicial Review-jurisdiction-jurisdiction of a court to vary, review
LIMITED JURISDICTION OF THE LAND DISPUTES TRIBUNAL

Kamau Kimami v Lucy Mugure Kamau Civil Appeal No. 120 of 2009 High Court of Nairobi D.A. Onyancha J. September 26, 2012 Reported by Emma Kinya Mwobobia, Advocate Land Law Jurisdiction - jurisdiction of the Land tribunals jurisWhether a Provincial Land Ap- diction only in determination of peals Committee had jurisdiction boundary disputes where the to interfere with the beneficial in- land tribunal gave a decision that interfered with the beneficial terests in registered land. interests in the registered land Issues: whether the tribunals had jurisdiction to grant beneficial interests to the applicant. Held: 1. Section 3(1) of the Land
135
D i s p u t e s Tr i b u n a l A c t only gives the tribunal jurisdiction to deal with boundary disputes and the trespass that occurs when a party jumps a boundary. 2. The Kiambu Land Disputes Tribunal and Nyeri Provincial Land Appeals Committee had no jurisdiction to order for either subdivision or joint holding of the piece of land. The Tribunal and Committees orders were accordingly without power and jurisdiction and are
declared null and void. 3. (Obiter) The jurisdiction donated to the tribunals created under the Land Disputes Tribunal Act, was of doubtful standing. This was besides the tribunals numerous unlawful exercise of authority and power which it (they) did not have. I have had opportunity before, to state that the said Land Disputes Tribunal Act, Act 18 of 1990, was promulgated in a hurry and probably
under the then existing political influence. It was definitely not properly nor thoroughly thought out or polished. It has cost citizens much loss in money and time and has been heavily misapplied by the relevant tribunals. It is probably a high time for the Act to be repealed to avoid further economic, social and judicial loss. Appeal allowed.
JURISDICTION OF THE COURT TO ISSUE CONSERVATORY ORDERS

The Centre for Human Rights and Democracy and another vs. The Judges and Magistrates Vetting Board and 4 Others Petition No. 11 of 2012 High Court of Kenya at Nairobi M. Warsame, G.V. Odunga, G.K.Kimondo JJ. September 25, 2012 By Njeri Githanga, Advocate Constitutional Law - Conservatory orders-jurisdiction of the court to issue conservatory orders-circumstances under which conservatory orders can be issuedwhere the guiding factor should be whether there was a prima facie case with a probability of success at the hearing- whether the court could grant an interim protection or reliefs in view of the weighty and substantial questions raised by the applicants Issue: Whether the court could grant an interim protection or reliefs in view of the weighty and substantial questions raised by the applicants? Held: 1. Under Article 23(3) (c) of the Constitution of Kenya, 2010, the Court had powers to grant conservatory orders at any stage of the proceedings if it deemed fit to do so. However, the court had to be satisfied with; a. the credentials of the petitioners, b. the prima facie correctness or nature of information available to Court; c. whether the grievances are genuine, legitimate, deserving and or appropriate; d. whether the applicant has shown or demonstrated the gravity and seriousness of the dispute; and e. whether the petitioners have engaged in wild, vague, indefinite or reckless allegations against the respondent. 2. The role of the High Court was to secure observance of Constitutional, Statutory and International Standards of all persons and to ensure that the basic human rights, benefits and privileges are protected, preserved and often times enhanced. 3. The matters raised were not frivolous and indeed needed further inquiry both at the stage of the hearing of the chamber summons and the petition itself. The court had to eventually examine the contours and boundaries of section 23 of the Sixth Schedule and the entire Vetting Act. 4. A party seeking a conservatory order only required to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution.
136
5. Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court had powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. That was meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission. 6. The determination was not in any way a final definition or determination of the dispute. It was meant to give an interim protection as sought by the applicants. 7. Since the issues raised were weighty and substantial and in order to give the matter a fair and comprehensive
interpretation it was appropriate for the composition of the bench be enlarged to five judges. Per G.K. Kimondo J. (Dissenting) 1. Though the amendments to section 23 of the Vetting of Judges and Magistrates Act invited serious constitutional scrutiny, they could only be determined upon hearing all the parties and examining the evidence and materials before the court. The court was enjoined by article 159 of the constitution as well as sections 1A and 1B of the Civil Procedure Act to do substantial justice to the parties. 2. The conservatory orders sought on the other hand w e re s o f a r re a c h i n g and extensive as to bring to a complete halt the operations of the Board. The orders sought permeate the boundaries of the case for the petitioners to extend to all and any other determinations by the board. 3. Key respondents had not had their full say on the
application for interim orders. There was also the public interest and costs to be weighed, and further the vetting process was on a strict timetable. The overriding interest and concept of proportionality demanded for the petition to be canvassed fully on the merits. 4. Given the principles of proportionality and balance vis a vis the public, there was undeniably a great public interest in the implementation of the Constitution of Kenya, 2010 that had to override the private right or interest to halt possible prejudice to the administration of justice. There was a legitimate public expectation that the vetting process which had a timeline within which to complete its work had to continue. Conservatory order denied Order by the Majority Matter to be placed before the Chief Justice for purposes of enlarging the panel to five; all matters or proceedings before the Board stayed for a period of 14 days or until further orders
AWARD OF DAMAGES FOR MALICIOUS PROSECUTION

Michael Kagoma Maina V the Attorney General High Court of Kenya at Embu Civil Suit No. 136 Of 2011 H.I. Ong'udi September 25, 2012 Reported by Njeri Githanga, Advocate Tort - malicious prosecutionaward of damages-plaintiff having been charged with Stealing by persons employed in the public service where the plaintiff claimed damages for unlawful arrest, false imprisonment and/ or detention, malicious prosecution and defamation- where the case took 8 years to be finalized
after which he was acquitted quantum of damages under the circumstances- whether the tort of malicious prosecution could stand Issues Access of quantum of damages for malicious prosecution where;
At the time of his arrest the plaintiff was at the rank of Superintendent which is a very senior post in the police service and had served for over 30 years. He was interdicted and placed on half salary and thereafter on no salary at
137
all and due to the financial embarrassment he was not able to meet his parental obligations e.g. paying fees for his children.
He spent a lot of money by making trips from his home to Embu law Courts from September 2004 March 2011 and all that amounted to pain and
suffering. Judgment entered for the plaintiff for Shs.6,000,000/= with costs for the Plaintiff against the Defendant
JURISDICTION OF THE HIGH COURT TO DEAL WITH THE ENVIRONMENT AND LAND MATTERS
Republic v National Environment Management Authority & 11 others ex parte Coral Drive Luxury Homes Limited Misc. Civil Application (JR) No. 145 of 2011 High Court at Mombasa E. M. Muriithi & F. Tuiyott, JJ. September 24, 2012 Reported by Nelson K. Tunoi, Advocate Civil practice and procedure -jurisdiction-preliminary objection raised as to jurisdiction of the High Court to deal with the environment and land matterswhether the establishment of the Environment and Land Court abolished the National Environment Tribunal-whether the application had merit-Constitution of Kenya, 2010 Articles 162 (2)(b), 165, 169 (1); Environmental Management and Coordination Act, 1999 section 3; Environment and Land Act, 2011 sections 13, 30 Issue: Whether the establishment of the Environment and Land Court abolished the National Environment Tribunal under the Environmental Management and Coordination Act, 1999. Held: 1. The High Court has jurisdiction under its original and unlimited jurisdiction to handle environment and land matters. Besides, section 30 of the Environment and Land Act provides that the court will deal with such matters until the new Environment and Land Court is operational. 2. The National Environment Tribunal is contemplated under Article 169 (1) (d) of the Constitution of Kenya, 2010 as a local tribunal with jurisdiction on the matters contained in the Environmental Management and Coordination Act, 1999. TheTribunal remains in existence by virtue of Clause 7 of the Transitional and Consequential Provisions under Schedule 6 of the Constitution of Kenya, 2010 saving the Environmental Management and Coordination Act and with jurisdiction to deal with environmental law matters as provided under that Act and as envisaged by section 13 (4) of the Environment and Land Court Act No. 19 of 2011. Preliminary objection dismissed, application for leave granted.
138
RIGHT OF ACCESS TO JUSTICE

Kenya Bus Service Ltd and another V Minister for Transport and 2 Others Civil Suit No. 504 of 2008 High Court of Kenya at Nairobi D.S. Majanja September 21, 2012 By Njeri Githanga, Advocate
Constitutional law - bill of rightsequality before the law-right of access to justice-Constitutionality of section 13(A) of the Government Proceedings Act (GPA) and section 3(1) of the Public Authorities Limitation Act (PALA)limitation of actions against the government-Whether section 13(A) of the Government Proceedings Act (GPA) and section 3(1) of the Public Authorities Limitation Act (PALA) contravened Articles 48, 27(1), (2) and (4) of the Constitution of Kenya 2010, was discriminatory and contrary to the law Issue: Whether section 13(A) of the Government Proceedings Act (GPA)and section 3(1) of the Public Authorities Limitation Act (PALA) contravened Articles 48, 27(1), (2) and (4) of the Constitution of Kenya 2010, was discriminatory and contrary to the law. Section 13A (1) of the Government Proceedings Act (GPA) provides that; 13A(1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing has been served on the Government in relation to those proceedings. Section 3(1) and (2) of the Public Authorities Limitations Act (PALA) provides that; 3 (1) No proceedings founded on tort shall be brought against
the government or a local authority after the end of twelve months from the date on which the cause of action accrued. (2) No proceedings founded on contract shall be brought against the government or a local authority after the end of three years from the date on which the cause of action accrued. Article 27 of the Constitution of Kenya, 2010 provides that; 27 (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 48 of the Constitution of Kenya, 2010 provides that; 48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice. Held; 1. The purpose of the procedure enacted in Article 22 of the Constitution
of Kenya, 2010 is to enforce fundamental rights and freedoms of the individual guaranteed under the Bill of Rights set out in Part 2 of Chapter 4 of the Constitution. 2. Since the jurisdiction to e n f o rc e f u n d a m e n t a l rights and freedoms in the Bill of Rights is a special jurisdiction, it follows that a party who invokes this special Article 22 jurisdiction to enforce the bill of rights has a duty to set out clearly the sections or provisions it is claimed have been infringed or violated and show how these sections are infringed in relation to him. 3. The provisions of GLA and PALA are attacked on the basis that they are discriminatory. Article 27 protects the right to equality and prohibits discrimination. I do not read 4. The State or Government was not a person within the meaning of Article 27 hence an argument could not be made on the basis that the plaintiffs were discriminated against vis-vis the government as provided by the law. The argument that that person referred to was the Minister was also not tenable for the reason that the Minister was an agent of the State
139
or Government. The fact that the State was treated differently in law was not of itself discriminatory as contemplated under Article 27. 5. The issues of notice of action and limitation of actions had been taken up as a law reform issues a n d m o s t l e g i s l a t u re s had implemented the recommendations of their respective law refor m bodies. In Kenya though, law reform efforts had assumed a rather glacial pace particularly where technical and non-political matters were concerned. The courts were now required to address these matters through litigation founded on enforcement of fundamental rights and freedoms. The issues raised must dealt with in accordance with the Constitution which provides that all law existing prior to the promulgation of the Constitution must, according to section 7 of the Sixth Schedule to the Constitution, be construed with the alterations, adaptations, qualification and exceptions necessary to bring it in conformity with the Constitution. 6. The right of access to justice protected by the Constitution involved the right of ordinary citizens being able to access remedies and relief from the courts. Access to justice was a broad concept that defied easy definition. It included the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to ones rights; equal right to the protection of those rights by the law enforcement agencies; easy access
to the justice system particularly the for mal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay. 7. W i t h o u t a c c e s s t o justice the objects of the Constitution which is to build a society founded upon the rule of law, dignity, social justice and democracy cannot be realised for it is within the legal processes that the rights and fundamental freedoms are realised. Article 48 therefore invited the court to consider the conditions which clog and fetter the right of persons to seek the assistance of courts of law. 8. The provisions for demanding prior notice before suing the government was justified on the basis that the government is a large organisation with extensive activities and fluid staff and it is necessary for it to be given the opportunity to investigate claims laid against it and decide whether to settle or contest liability taking into account the public expense. While the objectives were laudable, the effect of mandatory notice provisions caused hardship to ordinary claimants. The pre-litigation protocols, for example Order 3 rule 2 of the Civil Procedure Rules, required that notice be given before action is commenced but the penalty for non compliance is not to lose the right to agitate the cause of action but to be denied costs incurred
in causing the matter to proceed to action. 9. The general worldwide consensus was that a shorter limitation period for the state cannot be justified. The reach of the Government is far and wide and in an era of accountability or transparency ushered in by the Constitution, the State must abide by the same standards required of mere mortals. Mandatory notice requirements and short limitation periods would tend to undermine social justice and in a country like Kenya where illiteracy was rife, communication systems and links were few and far between and access to legal services wanting, their effect would be to provide a cover for impunity and create defacto state immunity. 10. The application of the provisions of the Limitation of Actions Act(LAA) for extension to time for limitation under PALA mitigates the rigours of a strict limitation period by providing a window for extension of time and in so far as PALA provides for a period for extension of time it does not run afoul of Article 48. That was not to say that the one month limitation was not harsh, the general consensus worldwide was that such limitations are no longer tenable and I would recommend that the legislature takes an opportunity to review this aspect of the law as other countries have done. 11. Section 13A of the GPA provides on impediment to access to justice. Where the state is at the front, left and centre of the citizens life, the law should not impose hurdles on accountability of the
140
Government through the courts. An analysis of various reports from Commonwealth clearly demonstrated that the requirement for notice particularly where it is strictly enforced as a mandatory requirement diminishes the ability of the citizen to seek relief against the government. Hence section 13A of the Government Proceedings Act as a mandatory requirement violates Article 48 of the Constitution of Kenya, 2010. 12. (Obiter as per D. S. Majanja, J.) Before I sign off this judgment I must deprecate the conduct of the office of the Attorney General which I have alluded to at paragraph 8 and 9 of this judgment.
The Office of Attorney General is a constitutional o f fi c e w i t h s p e c i a l responsibilities under Article 156(4) particularly representing the national government in court. By virtue of Article 156(6), the Attor ney General is required to promote, protect and uphold the rule of law and public interest. It is imperative that in proceedings such these that the voice of the Attorney General is asserted in order to assist the court. Failure to take this responsibility seriously by that office and its officers is a dereliction of duty. I shall say no more. Declaration: a) Section 13A of the Government Proceedings
Act and section 3 of the Public Authorities Limitation Act do not violate the provisions of Article 27 of the Constitution. b) S e c t i o n 1 3 A o f t h e Government Proceedings Act as a mandatory requirement for the institution of suit against the government violates the provisions of the Article 48 of the Constitution. c) Section 3 of the Public Authorities Limitation Act does not violate the provisions of Article 48 of the Constitution. d) The defendant shall pay the plaintiff half the costs of this reference. Petition allowed in part
NEW CONSTITUTIONAL PROVISION FOR A NEW TRIAL

Wilson Thirimba Mwangi v Director of Public Prosecutions High Court at Nairobi Constitutional and Human Rights Division JR Misc. Application No. 271 of 2011 D.S Majanja J. September 21, 2012 Reported by Emma Kinya Mwobobia, Advocate Constitutional Law fundamental rights right to new trial petition for a fresh trial founded on the provisions of the new Constitution factors that the court considers in allowing for a fresh trial at the High Court where all the appellate avenues had been exhausted by the petitioner what court considers to be new and compelling evidence whether the petition was entitled to a new trial in the circumstances Constitution of Kenya, 2010 Issues (a)Whether Constitution is applicable to determine the petitioners rights. (b)And if so, whether the petitioner is entitled to relief under the provisions of Article 50(6) of the Constitution of Kenya, 2010 entitling him to a new trial. Held 1. The Constitution of Kenya, 2010 promulgated on 27th August 2010 brought with it a new legal structure which was effective from that date. Article 263 provides that the Constitution shall take effect on the date of promulgation while Article 264 provides that on the date of promulgation the former Constitution subject to the Sixth Schedule shall stand repealed. 2. Under Article 50(6)(a) the right to petition for a new trial accrues after a persons appeal has been dismissed by the highest court or after the time for
141
appealing has lapsed and no appeal has been filed. As the petitioners appeal was determined on 20th May 2011, the petitioner is entitled to take advantage of the provisions of the Constitution. 3. In the petitioners case, the right and fundamental freedom to access information held by the state and information held by another person which is required for the exercise or protection of any right or fundamental freedom that was sought to be enforced amounted to a right to petition the High Court for a new trial under the provisions of Article 50(6). The petition was clear that the intended information was to enable the petitioner make a case for a new trial and it was this determination that the court had to make. 4. The right to petition for a new trial as provided under Article 50 (6) of the Constitution is new in our jurisprudence. It did not exist in the previous Constitution and it is in recognition of the simple fact that justice must be done where it is necessary to do so. It seeks to balance the public interest in having finality in criminal cases on the one hand and ensuring that where there is new and compelling evidence, an innocent person should not suffer the penalty of a conviction.
5. The court relied on D.J. Lowe & Company Ltd v Bank Indosuez Civil Appl. Nai. No. 217 of 1998 (Unreported) in observing that where such a review application was based on discovery of fresh evidence the court must exercise the greatest of care as it was easy for a party who had lost, to have seen the weak part of his case and the temptation to lay and procure evidence which would strengthen that weak part and put a different complexion. In such an event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing. 6. The court found that the petitioner bore the burden of satisfying the ingredients of Article 50(6) by showing that; (a) The evidence was new in the sense that it must not have been available to the petitioner during the trial. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial or was not available at the time of the hearing of the two appeals. (b) The evidence must have been compelling and must also be admissible and credible and not merely corroborative, cumulative, collateral or impeaching. It must be such that if it is considered in light of all the
evidence, it is favourable to the petitioner to the extent that it may possibly persuade a court of law to reach an entirely different decision than that already reached. 7. T h e c o u r t r e l i e d o n Mohammed Abdulrahman Said & Another v Republic Criminal Miscellaneous Application NOs. 66A of 2011 & 66B of 2011 in holding that the right to a new trial was not an avenue for further appeal and that the court had no jurisdiction to consider and determine matters which had already been decided upon by the Court of Appeal or which could have been the subject of appeal at the material time. It is not an opportunity for the High Court to reconsider all the evidence and see whether there was reasonable doubt or whether the petitioners conviction was supported by the evidence. The inquiry was limited to testing whether the evidence was new and compelling. 8. In the instant case the p e t i t i o n e r s p ro p o s e d evidence was neither new nor compelling and no case had been made under the provisions of Article 50(6) to warrant the ordering of a new trial. Since the right to a new trial had was not available to the petitioner, the court could not make an order for information under Article 35 (1) (b).
142
BURDEN OF PROOF ON DIPLOMATIC IMMUNITY

Urbanus Mutiso v Susan Kavanagh High Court at Nairobi Civil Case No. 149 of 2004 H. P. G Waweru J. September 20, 2012 Reported by Emma Kinya Mwobobia, Advocate
Civil practice and procedure pleadings - striking out - preliminary objection seeking to strike out suit ground; diplomatic immunity duty of claimant to make application before court certificate of immunity satisfactory proof of entitlement to immunity against legal process whether the defendant was absolved from legal process. International Law Vienna Convention diplomatic immunity which International Instrument was domesticated in the Privileges and Immunities Act - Privileges and Immunities Act (Cap 179) - Vienna Convention on Diplomatic Relations of 18th April 1961 - Convention on Privileges and Immunities of the United Nations adopted on 13th February 1946. Issues a) How can a diplomat claim immunity if he is brought to court for alleged violation of the law of the country or if made a defendant in a civil action before a local court? b) How are the courts to be satisfied that the person claiming immunity belongs to the class of persons who are to be clothed with immunity? c) Whether the suit related to an act performed by the defendant in her official capacity.
Article V, Section 18 of the Convention on the Privileges and Immunities of the United Nations as well as the Vienna Convention on Diplomatic Relations of 18th April 1961 are clear on the fact that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Held 1. The Privileges and Immunities Act (Cap 179) domesticated the Vienna Convention on Diplomatic Relations of 18th April 1961, not the Convention on Privileges and Immunities of the United Nations adopted on 13th February 1946. However, the Vienna Convention provisions were similar to those of the Convention on Privileges and Immunities of the United Nations. 2. In the past, the practice had been for the diplomat to prove his status on any given occasion before the court in which the claim or suit was pending against him, and it was a matter for the court to decide the question of immunity as a preliminary issue. However, in recent years, it has been felt that such a practice was not very satisfactory.
3. It is now the practice that courts to accept as conclusive the statements made to them by the executive as to the existence of certain facts of international nature, such as the status of a person, or the extent of immunity. 4. Section 16 of the Diplomatic Privileges Act, which was enacted to effect to the Vienna convention 1961, provides for a certificate to be given by the foreign office regarding the status of the person who may be claiming immunity. Therefore the certificate issued by the then Minister for Foreign Affairs was satisfactory proof of the fact that the Defendant was entitled to privileges and immunities under the Act. 5. From the pleadings on record, the defendant while writing the alleged memorandums was conducting administrative functions in the discharge of her duties for which she cannot be sued. The fact that her employment had ceased could not have rendered her vulnerable unless the acts were done after her employment with the United Nations.
143
MUMO MATEMU'S APPOINTMENT - TEST ON THE LEADERSHIP AND INTEGRITY LAWS Trusted Society of Human Rights Alliance v Attorney General & 2 others
High Court of Kenya at Nairobi (Nairobi Law Courts) J. Ngugi, G. Odunga and M. Ngugi JJ. September 20, 2012 By Esther Nyaiyaki Onchana, Advocate
he High Court faulted all the organs involved in the appointment Mr. Mumo Matemu as the director of the Ethics and Anti-Corruption Commission (the Commission) for failure to pay due attention to the information that was available which touched on his integrity or suitability. In nullifying the appointment the High Court stated that although the available evidence was yet to be tested in judicial proceedings the allegations were substantial enough that it was not possible to make a determination without the aid of an inquiry to resolve whether Mr. Matemu had passed the integrity test.
petition as amici curiae Petitioner's case The gist of the petitioners case was that Mr. Matemu did not meet the constitutional threshold required for appointment to the office of the Chairperson of the Commission. It argued that Parliament and the Executive abdicated their constitutional duty to ensure they selected a candidate who met the constitutional threshold. This was because of Mr. Matemus alleged actions when he held several senior positions at the Agricultural Finance Corporation (hereinafter AFC). More specifically, it questioned his integrity by alleging that he swore an affidavit with false information on the amount of money that a company known as Rift Valley Agricultural Contractors Limited (RVAC) owed AFC, and secondly, that as Legal Officer at AFC, he approved certain loans which had not been properly secured, and whose proceeds were paid out in fraudulent and unclear circumstances.
with a recommendation that the Mr. Matemu be interviewed. 1st and 2nd Respondents Case The office of the Attorney General represented the 1st and 2nd Respondents. It was argued petition did not disclose the incapacity suffered by the third party, which stopped it from coming to Court on its own behalf. They contended that the petitioner could not question the appointment through a constitutional petition when, throughout the appointment process, they had several opportunities to submit complaints on his character and integrity to various organs charged with his appointment. Related to this point, the Respondents argued that the matters which had been brought up in the petition were the same as those canvassed in a previous court case therefore it was improper to raise them in the instant case.
Justices Joel Ngugi, George Odunga, and Mumbi Ngugi made this ruling following a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu as the Chairperson of the Ethics and Anti-Corruption Commission (the Commission). The Trusted Society of Human Rights Alliance (hereinafter Petitioner) filed the petition against the Attorney General, the Minister for Justice and Constitutional Affairs and the Director of Public Prosecutions (DPP) as the 1st, 2nd and 3rd Respondents respectively. Mr. Mumo Matemu was listed as the Interested Party. The Kenya Human Rights Commission and the Kenya Section of the International Commission of Jurists were admitted into the
More importantly, they argued that the appointment followed the procedure set by law, and any attempt by the Court to reopen the appointment would be The petitioner claimed that some in contravention of the doctrine of these allegations were the sub- of separation of powers. ject of criminal investigations by the police and the Criminal Inves- The 3rd Respondents Case tigations Department (CID) but the investigations had never been The Director of Public Prosecucompleted. The petitioner point- tions asked the Court to dismiss ed out to the Court that the crimi- the petition for it was an abuse nal investigations file was still open of the court process. The DPP
144
maintained that not only was he not involved in the recruitment of the Interested Party but also that there is no mention in the Petition of how the DPP contravened any constitutional provisions. Mr. Matemu's case Mr. Matemu stressed that the petitioner and any other member of the public had ample opportunities to present memoranda on the suitability of any of the candidates who were being considered for the position. He argued that having failed to make use of such opportunities, the petitioner was stopped from denying that it had the opportunity to complain. He further stated that the allegations made by the petitioner were already deliberated upon in Parliament so that in arriving at its decision to approve the appointment, Parliament took all relevant matters into consideration. He also denied the claim that he participated in the approval of any loans by AFC. He stated that the dispute between RVAC and AFC was settled through HCCC No. 1535 of 1999 and as such, the issues raised by the Petitioner having been laid to rest should not be revived under the guise of a constitutional petition. On jurisdiction, Mr. Gatonye (Mr. Matemu lawyer's) argued that the Court could not substitute its decision for that of any other organs involved in the appointment process, if the appointing authority acted within the four corners of the law. Did the court have jurisdiction to hear the petition? The Court was alive to the fact that the issue of jurisdiction had to be dealt with first, for without it the entire process and resulting orders would be a nullity. The Respondents and Mr. Matemu had argued that the Petitioner had not properly invoked the jurisdiction of the Court because the Petitioner did not frame its case with reasonable precision.
This went against the rule of law enunciated in the famous case of Anarita Karimi Njeru v The Republic (1976-1980) 1 KLR 1272 and its progeny to the effect that a constitutional petition must state, with reasonable precision, the provisions of the Constitution that are alleged to have been contravened, and the manner in which they are infringed. The Court noted that the case of Anarita Karimi Njeru was decided under the previous Constitution. In the Court's view the prevailing position with regard to the admissibility of petitions seeking to enforce the Constitution of Kenya 2010 began with the provisions of Article 159 on the exercise of judicial authority.
the President. When an action was intended against the President in his official capacity the Attorney General was the proper party to be sued. The petititoner alleged that the DPP had, in his knowledge, information about the suitability of Mr. Matemu to hold public office. Hence, while the DPP might not have been directly involved in the process of appointment of the Interested Party, he bore responsibility to properly inform the appointing authorities about the investigations facing the Interested Party. The DPP had, therefore, been properly joined in the petition. However the inclusion of the Minister for Justice, National Cohesion and Constitutional Affairs in the suit was superfluous and unThe Court did not overrule An- necessary. arita Karimi Njeru because it lays down an important rule of con- Was the Petition moot for failure stitutional adjudication. However by the Petitioner to complain it held that while the petition about the appointment during before the Court was not the the appointment process? epitome of precise, comprehen- In this case, it had not been alsive, or elegant drafting, that the leged that the Petitioner willfully complaints raised by the peti- sat on information and delayed tioner were concrete enough bringing it to light in order to to warrant substantive consider- obstruct the appointment proation by the Court. cess through Court action. On the contrary, the evidence that Did the Petitioner have locus emerged showed that the pestandi to sue and had it sued the titioner knew that the informaright Respondents? tion it had was raised in Parliament. It, therefore, had a right The test for locus standi in consti- to expect that the matter would tutional petitions has been laid be thoroughly investigated and down in Article 258 of the Consti- debated before the appointtution of Kenya 2010. It provides ment was made. The petitioners that 'Every person has the right specific argument was that this to institute court proceedings, was neither done by Parliament claiming that this Constitution has nor by the Executive as it had been contravened, or is threat- expected. It therefore followed ened with contravention'. In ad- that this was the earliest point in dition to a person acting in their the process when the Petitioner own interest, court proceedings could bring the challenge. Conmay be instituted by a person sequently, the Court held that acting in the public interest. the Petition was not moot. Did the Court have jurisdiction to According to the Court since the give the orders sought? selection the selection panel was performing an executive func- The Respondents and the Intertion on behalf of the President ested Party held the unanimous if there was anything allegedly view that any attempt by the wrong with the appointment Court to review Mr. Matemus process or the person appointed, appointment would be an unthe right person to sue was the lawful interference with the powappointing authority, which was ers vested by the Constitution on
145
the Executive and the Legislature. Did the doctrine of separation of powers disentitle the Court from reviewing the appointment of the Interested Party? If not what test should the Court have applied to determine if the appointment passed constitutional muster? The Court identified with the submission by the Counsel for the amici, there is nothing like supremacy of Parliament outside the Constitution. There is only supremacy of the Constitu-
tion. Given that the Constitution is supreme, every organ of State performing a constitutional function must perform it in conformity with the Constitution. Where any State organ fails to do so, the High Court, as the ultimate guardian of the Constitution, will point out the transgression. The Court held that it entitled to review the process of appointments to State or Public Offices for procedural infirmities as well
as for legality. The doctrine of separation of powers did not therefore disentitle the Court from entertaining the controversy surrounding the Mr. Matemus The three-judge bench found that the appointment of Mr. Mumo Matemu as the Chairperson of the Ethics and Anti-Corruption Commission offended the requirements of the Constitution, and in particular Article 73, and accordingly the appointment was set aside.
UNLAWFUL DISMISSAL ON GROUNDS OF GROSS MISCONDUCT

Robert Brown v Livingstone Registrars Limited & 2 Others Civil Case No. 545 of 2006 Milimani Commercial & Admiralty Division (High Court) J.M. Mutava, J. September 20, 2012 Reported by Emma Kinya Mwobobia, Advocate Issues: Whether the Plaintiff was guilty of gross misconduct to warrant his dismissal by way of summary procedure. Definition of what constitutes gross misconduct and behavior. Employment law contract of employment claim against the defendants for wrongfully dismissal and payment of terminal dues where the respondent claims that the plaintiffs behavior amounted to gross misconduct whether termination procedures were properly followed whether the employees behavior amounted to gross misconduct. Words and Phrases gross misconduct definition of gross misconduct what constitutes gross misconduct whether absenteeism from the office without permission and refusal to obey instructions amounted to gross misconduct? Gross misconduct has been variously defined in law, as follows: Most employers would identify intoxication, fighting or other physical abuse, indecent behavior, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behavior (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as examples of gross misconduct. You may wish to specify other offences such as offering bribes, downloading pornography, misusing confidential information or setting up competing business as gross misconduct. Other lesser offences, often relating to work and work performance for example poor time keeping, absenteeism, use of workplace facilities, personal appearance, negligence or substandard work do not usually amount to gross misconduct While there is no formal definition of what constitutes gross misconduct in the workplace, some accepted descriptions include wanton disregard for the safety of others, deliberate acts of violence or hostility, attempts to financially defraud a company, significant levels of insubordination, and dishonesty through falsification of documents or other forms of misrepresentation. Acts such as poor performance, minor errors of judgment or negligence are not typically considered gross misconduct, but rather as poor performance. Held: 1. From the foregoing definition, there was little doubt that the conduct complained of the Plaintiff by the 2nd Defendant firm fell under the nomenclature of other lesser offences as none of the acts complained of carried the gravity that the law would classify as amounting to gross misconduct. 2. From the definitions above, absenteeism per se could not have constituted gross
146
misconduct. Whichever reason was given, such absenteeism, even looking at the number of days of absence, could not have constituted gross misconduct in law. 3. The summary termination of the Plaintiff on grounds of gross misconduct was devoid of merit and was wrongful. 4. The 3rd Defendant indeed did not appear to have even involved the Human Resource Department in his action to issue a summary dismissal termination l e t t e r. H e s e e m s t o have acted singularly, unilaterally and in a rush
without any consultation or concurrence of not only the HR Department but also his Partners. Termination of a senior employee required some level of involvement of the rest of the organization as it was bound to affect the organization beyond the direct effect on the ERS Department. That action is therefore culpable and actionable for damages for wrongful dismissal. 5. The copying of a letter to persons within the employ of an employer did not constitute publication as these were bound by the duty of confidentiality that is inherent in every contract of employment.
In any event, the Plaintiff was unable to demonstrate what injury to his reputation the letter of dismissal caused upon him. The claim for damages for defamation therefore fails. 6. In view of the summary termination of the Plaintiffs employment having been faulted by this court, the Plaintiff could only have been terminated either through issuance of a 6 months notice or payment of 6 months salary in lieu thereof. Damages awarded for wrongful dismissal computed at 6 months salary
GRANT OF ACCESS TO SMS TRANSCRIPTS AND CALL RECORDS IS NOT UNCONSTITUTIONAL

Dyer & Blair Bank Ltd v Equity Bank Ltd & another Civil Case No. 26 of 2009 High Court at Nairobi Commercial & Admiralty Court E.K.O. Ogola, J. September 19 2012 Reported by Sylvie Nyamunga, Reporter
Issues:
Whether an order for the disclosure of required infor mation would be against the law Whether the Applicant is restricted by law to release telephone or subscriber records under Article 31 (d) of the Constitution Constitutional Lawfundamental rights-right to privacy-protection against privacy of communication infringed-order for the
disclosure of required information- legality of order under Article 31 (d) of the Constitution of Kenya, 2010limitation of rights under Article 31 (d) by Article 24 (3) of the Constitution of Kenya, 2010 Held: 1. For the Applicant/ Interested Party to disclose the required information, the Applicant/Interested Party does not need to show that it had been privy
to the alleged wrong doing 2. Article 24 generally deals with limitations of rights where such limitation is justifiable. Under Article 24 (3) the emphasis is on justification. That the matter before the court is peculiar enough to warrant the limitation of the rights under Article 31 (d), and that the Applicant/Interested Party is not protected under the Constitution with regard to the Defendants application.
147
EFFICACY OF A MINISTERIAL STATEMENT ISSUED BY AN OFFICER WITHOUT THE AUTHORITY OF THE RELEVANT MINISTER
Republic v Head Teacher,Kenya High School & another exparte SMY (a minor suing through her mother and next friend AB) Miscellaneous Civil Application No.318 of 2010 High Court, at Nairobi C. W. Githua, J. September 18, 2012. Reported by C W Lupao Reported by Sylvie Nyamunga ,Reporter Issues :
Efficacy of a ministerial statement issued by an officer within a ministry without the authority of the relevant minister. Principle of legitimate expectation-when does the principle of legitimate expectation arise? Purpose and procedure for seeking judicial review orders.
orders-judicial review orders to be commenced only after grant of leave-purpose of judicial review orders. Held. 1. A ministerial directive issued by a Per manent Secretary from the Ministry but not on behalf of the Minister in charge of the particular Ministry is ultra vires the powers of the Permanent Secretary in that Ministry and the same was therefore unlawful as any act done in excess or in breach of a statutory power is null and void. It had no legal basis. It needed not be complied with. 2. Such a directive was a nullity in law and it was consequently not capable of giving rise to a legitimate expectation of any kind. The respondents did not have either a statutory or public duty to comply with it. Hence the court could not issue an order of mandamus to compel the respondents to allow the applicants to wear a hijab while in school as had been directed by the Permanent Secretary. An order of mandamus could not issue to compel the respondents to comply with what was a nullity. 3. The applicant had not been granted leave to
include a prayer for an order of mandamus in the substantive motion. Yet, proceedings for orders of Mandamus, Certiorari and Prohibition cannot be commenced without leave of the court. Since the applicant was not granted the courts leave to apply for an order of mandamus, he was not entitled to the said remedy. 4. The applicant had not been given the benefit of manifesting her religion through the wearing of a hijab before the institution of this suit. A legitimate expectation would only have arisen if the applicant had been allowed to exercise that right and the respondents without notice withdrew or threatened to withdraw the exercise of that right. Hence, the respondents never violated the applicant's legitimate expectation. 5. The respondents, by availing worship facilities to students of Islamic religion and not subjected the applicant to any form of discrimination demonstrated that the applicant had not been discriminated against, hence the respondents had not violated the applicants constitutional rights under Article 27 of the Constitution of Kenya, 2010, as it had
Constitutional Law - fundamental rights and freedoms-right not to be discriminated against-applicant alleging that the respondents' denial of the applicant's desire to wear a special religious uniform (hijab) amounted to discrimination-legitimacy of such claim Statutes - interpretation of statutes-Ministerial directive-a ministerial directive issued by a Permanent Secretary in the line Ministry even though the law requires that such a directive be issued by the Minister in the respective ministry-effect of a ministerial directive issued without the authority of the minister concernedwhether such directive need be obeyed Statutes - interpretation of statutes-legitimate expectationprinciple of legitimate expectation-when does the principle of legitimate expectation arise? Judicial Review - judicial review
148
Applicant joined to the suit been alleged. 6. The school rules which required that all students without exception should observe a standardized dress code (school uniform) thus limiting the applicants right to wear a hijab were made pursuant to powers donated to the 2nd respondent under section 11 of the Education Act . The 2nd respondent had authority to make administrative rules for the good governance, control and discipline of students in the school. 7. Allowing the applicants prayer would be tantamount to elevating the applicant and their
religion to a different category from the other students who belong to other religions in the school, which infact would amount to discrimination of the other students who would be required to continue wearing the prescribed school uniform, thus fly in the face of the constitutional principles of non-discrimination on the basis of religion and the principle of equality before the law. 8. The limitation imposed by the respondents in this case was justifiable in an open and democratic society like Kenyas whose face and diversity was represented by students
at the Kenya High School. It was therefore lawful and did not amount to an infringement of the applicants constitutional rights. 9. J u d i c i a l r e v i e w i s concerned with the process of arriving at a decision and not with the merits of a decision. It was not proved that there was any procedural impropriety when the decision was made. In the circumstances, there was no basis upon which the court could grant the remedies sought in the applicants motion. Application for judicial review orders dismissed.
CHANGE OF ADVOCATES AFTER DELIVERY OF JUDGMENT

Monica Moraa v Kenindia Assurance Co. Ltd Civil Case No. 43 Of 1999 High Court of Kenya at Kisii R. N. Sitati, J. September 12, 2012 Reported by Njeri Githanga, Advocate
Civil Practice and Procedure legal representation-change of advocates after delivery of judgment-where no leave of the court was sought procedure to be followed-mischief to cured under Order 9 Rule 9 at the Civil Procedure Rules, 2010- Civil Procedure Rules 2010, order 9 rule 9 Issue: Procedure to be followed
when changing advocates after delivery of the judgment under Order 9 Rule 9 at the Civil Procedure Rules, 2010. Mischief to be cured Held: 1. Under Order 9 rule 9 of the Civil Procedure Rules it was mandatory after judgment has been entered for a new firm of advocates to seek
leave to act for a party or file consent to that effect after delivery of judgment. 2. The mischief order 9 of the Civil Procedure Rules intended to address was to protect advocates or firms of advocates being replaced without Notice and without their legal fees being settled. Preliminary objection allowed.
149
COMMENCEMENT OF AN ACTION ON BEHALF OF A LIMITED LIABILITY COMPANY

Shiawase Limited Floriello Davide v Pianesi Gino HCCC No. 183 of 2011 High Court at Malindi C. W. Meoli, J. September 5, 2012. Reported by C W Lupao, Advocate Issue :
tion of the company in question. Held : 1. Commencement of an action on behalf of a limited liability company must be authorized by a resolution of the said company. 2. To redress any wrong done to the company or
Whether commencement of an action on behalf of a limited liability company should be by resolution?
Company Law - commencement of suit by limited liability companies-commencement of an action on behalf of a limited liability company to be by resolu-
recover any moneys due to it, the action should be brought by the company itself. Courts are reluctant to inter fere with the internal management of companies acting within t h e i r p o w e r, a n d w i l l interfere only where ultra vires or fraudulent acts not amenable to rectification are complained of.
SQUATTERS ACQUISITION OF GOOD TITLE TO LAND

Republic v The Registrar of Titles, Mombasa & 2 others Ex - Parte EMFIL Limited High Court of Kenya at Mombasa Miscellaneous Civil Application (JR) No. 84 of 2011 E. M. Muriithi J. September 7, 2012 Reported by Emma Kinya, Advocate
Land law title to land action for revocation of title deeds applicant claiming that the respondents action in revoking the titles and allocating the land to squatters was an unconstitutional infringement of its right to property as the legal owner of the property claim by the respondents that transfer of the suit property to the applicant by the original owner was irregular and fraudulent and therefore the transfer of the suit property was void ab initio whether the squatters titles could be revoked in the circumstances.
Judicial Review certiorari, mandamus and prohibition - application for judicial review orders with respect to a gazette notice through which the Registrar of Titles purported to revoke the applicants title to the suit property claim by the respondents that the applicant had acquired the land illegally and therefore the transfer of land to him was void ab initio whether the applicant was entitled to the orders as prayed. Issues: 1. Whether the Registrar or the Government has power to
revoke titles to land. 2. Whether the Government can be justified by public interest to revoke title to private land. 3. Whether the Judicial review orders of certiorari, prohibition and mandamus are available in the circumstances of this case. Held: 1. There was unanimity among the courts that the registrar had no authority
150
in law to have revoked the titles to land, whether in public interest or otherwise. 2. Only the courts could order for the revocation of titles or refuse to uphold the private individuals title to land in case of public interest or where the applicant had committed fraud or other illegalities with regard to the title. 3. The considerations of public interest could only be used by court in making an order for cancellation of title or in authorizing compensation for the compulsory acquisition or takeover of private
property. 4. The nemo dat quod non habet principle was to the effect that a buyer who acquires goods sold by a seller who is not the owner and does not sell under the authority of the owner acquires no better title to the goods than the seller. Its exceptions include sale by apparent owner of the goods where the buyer acquires good title if he buys in market overt, in good faith and without notice of defect. This was applicable in the circumstances as the squatters had acquired a
good title to the parcels of land which had been offered by the Government as the apparent owner of plots and for which they had paid for in good faith in the usual course of sale of land without knowledge that the Government had no right to sell the land in view of the order of stay that had been granted by court. 5. The judicial review orders of certiorari, mandamus and prohibition could not have been granted in the circumstances. Application dismissed.
EXCLUSION OF TIME CONSUMED IN LITIGATION PROCEEDINGS

Glencore Grain Limited v TS.S.S Grain Millers Limited Civil Case No. 388 of 2000 High Court of Kenya at Mombasa R. M. Mwongo, J. August 31, 2012 Reported By Nelson K. Tunoi, Advocate
Arbitration - arbitration awardrecognition and enforcement of an international award-application seeking exclusion of time consumed in litigation proceedings-where more than seven (7) years had lapsed between the filing of the application for enforcement of the award and the decision of the appellate courtwhether the doctrine of relation back was applicable in the circumstances-whether the application was competent-whether unreasonable delay was occasioned in filing the applicationwhether the application was prejudicial to the respondent if granted Issue for determination: Whether an arbitration award, sought to be recognized and enforced through the court, is
caught out by limitation because the court processes did not serve up a directional judgment expeditiously to avail the award holder the fruits of his award? Held: 1. The application for exclusion of time under the Limitation of Actions Act for filing an arbitral award for enforcement does not properly fit under any of the categories provided for in the Arbitration Rules, 1997, making it a unique circumstance not anticipated under the Arbitration Act. Albeit the insufficiency of the Arbitration Rules (6 & 9) to deal with the various incidents, the Civil Procedure Rules provide
for most of such situations, and where there is a gap, the aid of Section 3A may be available. 2. Section 36 of the Arbitration (Amendment) Act provides the new approach to enforcement of international awards in Kenya, and identifies as applicable the Convention on the Recognition and Enforcement of Foreign A r b i t r a l Aw a rd s , 1 9 5 8 (New York Convention). The Articles under the convention avail to both the enforcer and a resisting party under the Arbitration (Amendment) Act to seek stay of enforcement. This was a previously non-existent procedure. Such a process
151
would automatically have the effect of staying the running of time for purposes of limitation of time. By parity of reasoning, there is nothing in law to prohibit the applicant from similarly enjoining a stay of or exclusion of time for purposes of limitation.
3. The prejudice of prolonged proceedings that the respondent would suffer if the application is granted, is preferable to the injustice which the applicant would suffer for being shut out for delays not attributed to it. The respondent will have a chance to defend against and resist any fresh
application. However not to allow the application would render the award held by the applicant a pyrrhic victory. Balancing the two, the court preferred to err in favour of allowing the application. Application allowed.
EXCLUSIVITY OF JURISDICTION BY THE INDUSTRIAL COURT TO HEAR INDUSTRIAL DISPUTES

Rob De Jong & another v Charles Mureithi Wachira High Court at Mombasa Civil Appeal No. 137 of 2009 M. K. Ibrahim & J.W Mwera JJ. August 31, 2012 Reported by Cornelius W. Lupao, Advocate
Labour Law - industrial disputesright forum to adjudicate over industrial disputes- whether a magistrate's court can adjudicate over an industrial dispute- Labour Institutions Act, section 12. Civil Practice and Procedure -transfer of suits-application seeking transfer of a suit from a court without jurisdiction to a court of competent jurisdiction-where the suit involved an industrial dispute but filed in a magistrate's courtIssues for determination: Can a High Court direct the transfer of a suit filed before a Magistrate court to the Industrial Court? Which court has exclusive jurisdiction to hear industrial disputes?
Labour Institutions Act, section 12. The Industrial Court shall have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any provisions of this Act or any other legislation which extends jurisdiction to the Industrial Court or in respect of any matter which may arise at common law between an employer and employee in the course of employment, between employee and employers Organization and a trade union or between a trade union, an employers organization, a federal and a member thereof. Held: 1. The law gives exclusive
jurisdiction to the Industrial Court to hear and determine all industrial related matters. It is therefore wrong for other courts at the instigation of litigants to take away or attempt to share jurisdiction with the Industrial Court. 2. For the High Court to order transfer of a suit form one court to another, the matter should first, be before a court of competent with jurisdiction. If the matter w a s fi l e d i n a c o u r t without jurisdiction, then the suit is a nullity and there is nothing capable of being transferred.
152
CONFLICT OF JURISDICTION
National Housing Corporation v The Chief Magistrates Court, Mombasa & 2 others Judicial Review No. 72 of 2011 High Court of Kenya at Mombasa E. M. Muriithi, J. August 31, 2012 Reported By Nelson K. Tunoi, Advocate
Jurisdiction - pecuniary jurisdiction-jurisdiction pegged to the value of subject matter-whether the magistrates court has jurisdiction to deal with the subject matter of the suit filed by the parties-subject matter valued at Kshs. 800,000/=-where jurisdiction is curtailed by statutory provisions of the law Judicial review - certiorari and prohibition-application for orders to restrain the respondent magistrates court from proceeding with the subject suit and to quash those proceedings - grounds of application that the respondent magistrate court lacked of jurisdiction over the subject matter before it-whether the judicial review proceedings should be deemed as application for transfer of proceedings from the magistrates curt to the High Court-validity of application Issue(s) for determination: Whether the fact that the subject matters value is within the pecuniary limit will accord the magistrates court jurisdiction to grant such relief where a law(s) denies jurisdiction to the magistrate court with respect to certain reliefs?
Held: 1. The civil jurisdiction of the Magistrates Court is circumscribed by section 5 of the Magistrates Court Act (cap 10). The court cannot therefore have jurisdiction in civil proceedings for a claim if the subject matter to which the claim relates exceeds the pecuniary limit of the court. Jurisdiction is pegged to the value of the subject matter in dispute and a distinction must be made between the subject matter in dispute and the reliefs sought by the parties. 2. Jurisdiction is subject to all written laws and therefore where any law denies jurisdiction to the magistrate court with respect to certain reliefs, then the fact that the subject matter value is within the pecuniary limit will not afford the court jurisdiction to grant such relief. 3. Even if the magistrates court could deal with
proceedings relating to the subject matter of the dispute whose value does not exceed Kshs. 7,000,000/= by the current pecuniary limits, section 159 of the Registered Land Act (repealed), which is the statute regulating the proceedings relating to title or possession of land registered under that Act provide for a pecuniary limit of Kshs. 500,000/= only. Therefore under this formulation, the magistrate courts have no authority to deal with the suit property valued at Kshs. 800,000/=. This absurdity must be the result of want of coordinated review of statutes and legal notices. Law Reform Issue: The apparent inconsistency between the pecuniary limit set for the value of the subject matter in the Magistrate Courts Act (cap 10) and the repealed (which is the applicable law) Registered Land Act as precondition for the jurisdiction of the magistrate courts.
153
ROLE OF GAZETTEMENT IN EXECUTIVE APPOINTMENTS

Director of Public Prosecutions v Samuel Kimuchu Gichuru & another Criminal Revision No. 926B of 2011 High Court of Kenya at Nairobi G. V. Odunga, J. August 8, 2012 Reported by Nelson K. Tunoi, Advocate
Criminal practice and procedure exercise its jurisdiction if - revision-revisional jurisdiction of satisfied that any finding, the High Court-whether the High sentence or order recorded Court has jurisdiction to exercise or passed; or the regularity power of revision in interlocutory of any proceedings of any applications-whether the suborcourt subordinate to the dinate court interfered with the High Court, did not meet exercise of the DPPs legitimate the required standards of power and authority-where the correctness, legality and subordinate court inquired into propriety. the mandate of the prosecutor appointed by the DPP-whether 2. It is untenable that the the Public Prosecutors appointrevisional jurisdiction ment complied with the provicannot be invoked with sions of section 85 of the Criminal regard to interlocutory Procedure Code rulings when the case is still on-going. If the Legislature Administrative law - delegated had intended that to be legislation-appointment of Public the position, nothing would Prosecutor by Director of Pubhave been easier than for lic Prosecutions-where such apit to have expressly stated pointment was not published so. in the Gazette-whether the appointment of the Public Prosecu- 3. The subordinate court is tor had legal validity prior to pubentitled when properly lication in the Gazette moved to make a preliminary finding on the Issue(s): issue whether or not the person before it is properly Whether the appointment authorized to present a of the Public Prosecutor case before it. The issue had legal validity prior to was raised by the court publication in the Gazette. itself and the burden of proving whether or not he Whether the Public was mandated to carry Prosecutors appointment out the prosecution was complied with the cast upon the prosecutor. provisions of section 85 The Court should not have of the Criminal Procedure taken it upon itself to Code inquire into the issue when the same was not the Held: subject of the objection before it. The raising of 1. The High Court should the said issue by the trial
154
court had not occasioned a failure of justice since the issue was thoroughly canvassed. 4. On the issue of triple persona of the Public P r o s e c u t o r, t h e m e r e fact that he may have breached the terms of his engagement with the DPP or the Public Service Commission would not necessarily render his participation in the prosecution irregular. That is a matter solely between the employer and the employee and cannot nullify the prosecution conducted by the said officer if duly appointed. 5. On the procedure re g a rd i n g d e l e g a t i o n of powers, section 38 of the Interpretation and General Provisions Act (cap 2) provides that the delegation is to be by notice in the Gazette, to a person by name, or to the person for the time being holding an office specified in the notice. Accordingly, the delegation can either be to a person specifically mentioned by name or to a person holding a specified office without necessarily naming the person. 6. Unless the instrument in question expressly provides
that an appointment thereunder is effective on gazettement, the gazettement is merely directive and the failure to gazette the appointment does not necessarily nullify the appointment. F u r t h e r, w h e r e t h e r e i s n o re q u i re m e n t f o r gazettement, a reference in a gazette notice to an incorrect provision of the law under which a power is exercised does not invalidate the action. 7. Appointment of Public Prosecutors is under section 85 of the Criminal P ro c e d u re C o d e a n d under subsection (1) of the section the appointment is
by notice in the Gazette. F r o m t h e r e c o rd , t h e Gazette Notice appointing the Public Prosecutor was for a period of one year, which time had since lapsed. Without a further gazettement, the purported renewals of the Public Prosecutors appointment were irregular. 8. It would be a travesty of justice to hold that all the actions taken by the Public Prosecutor prior to the raising of the objection should be expunged. Although there was an irregularity in his appointment the Court must weigh the
consequences of nullifying his actions against the prejudice alleged. The only prejudice that the re s p o n d e n t s s t a n d t o suffer is that they may be subjected to a second trial if it turns out that the trial was conducted by a person who was not legally empowered to do so. However, the irregularity in gazettement of the Public Prosecutor, though deplorable, is in the peculiar circumstances of the case curable under Article 159(2)(d) of the Constitution. The irregularity was not so grave as to justify the drastic step of expunging the submissions already made.
JURISDICTION OF INDUSTRIAL COURTS

United States International University (Usiu) v Attorney General & 2 Others High Court at Nairobi Petition No 170 of 2012 D.S Majanja J. August 3, 2012 Reported by Andrew Halonyere, Advocate interpret the constitution and enforce matters relating to breach of fundamental rights and freedoms. 2. Whether employment and labour relations matters which raise constitutional issues filed in the High Court prior to establishment of the Industrial Court should be handled by the High Court. Held: 1) The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to interpret the constitution or to enforce fundamental rights and freedoms. Likewise Art 165 of the Constitution is silent whether the courts of the status of the High Court have jurisdiction to interpret the constitution, and enforce fundamental rights and freedoms under the Bill of rights. 2) The Industrial Court as constituted under the Industrial Court Act, 2011 as a court with the status of the High Court, is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms, in matters arising from disputes falling within
Constitutional law Industrial Court jurisdiction of the Industrial Court to interpret the Constitution and enforce fundamental rights and freedoms relating to employment and labour relations where the Constitution and the Industrial Court Act is silent whether the Industrial Court has jurisdiction - whether employment and labour relations matters pending in the High Court should be transferred to the Industrial Court Constitution Art 162 (2), 165(5) Industrial Court Act 2011 section 12. Issues: 1. Whether the Industrial Court is competent to
155
the provisions of section 12 of the Industrial Court Act, 2011. 3) The Industrial Court, having been established to deal with employment and labour matters. It follows that all employment and
labour relations matters pending in the High Court, shall be heard by the Industrial Court which is a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of
employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court. Both matters to be transferred to the Industrial Court for hearing and disposal.
PUBLIC OFFICERS SEEKING ELECTIVE POSITIONS TO RESIGN

Charles Omanga & another V Independent Electoral and Boundaries Commission & another High Court at Nairobi Petition No 2 of 2012 I Lenaola J August 2,2012 Reported by Andrew Halonyere, Advocate
limitation of the right to Constitutional law fundamental equal treatment as set out rights and freedoms equality in Section 43(5) and (6) is and freedom from discrimination reasonable and justifiable. claim that provisions of Election Act requiring the resignation of S e c t i o n 4 3 ( 5 ) o f t h e State officers seven (7) months Elections Act 2011 provides prior to the elections, while at the that a public officer who same time excluding other catintends to contest an egories of public officers was diselection under the Act shall criminatory and unconstitutional resign from public office at - duty of he who asserts that funleast seven months before damental rights and freedoms is the date of election. limited to prove whether equality connotes absolute equality Section 43(6) provides, that test to be applied whether the the section shall not apply petition had merit Constitution to the President, the Prime Article 24 (3) 27,232 Election Act Minister, Deputy President, (No 24 of 2011) sections 43(5) (6) Member of Parliament, a County Gover nor, a Issues: Deputy County Governor and a Member of County 1. Whether the provisions of Assembly. Section 43(5) (6) of the Election Act, 2011 requiring Art 27 of the Constitution the resignation of State provides for equality officers seven (7) months and freedom from prior to the elections discrimination. while at the same time excluding other categories Held: of State or public officers was discriminatory and 1. The principle of equality unconstitutional. does not mean that every law must have 2. Whether the apparent universal application for
156
all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The Legislature understands and appreciates the need of its own people, and the law that it enacts are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. 2. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free f r o m a r t i fi c i a l i t y a n d
arbitrariness, embracing all and omitting none naturally falling into that category. 3. It is upon the state or a person seeking to justify the limitation of a right or fundamental freedom to show that such a limitation is reasonable
and justifiable. he who asserts must prove. 4. Public officers who may wish to run for elective positions cannot have one leg in public service and another at their elective area. The law was designed to aid them make up their minds on where they want
to maximize their energies, Seven months before the election date is sufficient time for them to prepare themselves to meet their fate at the election box, a longer period would be more unreasonable. Petition dismissed.
RECOGNITION AS A PERSON WITH DISABILITY

Fredrick Gitau Kimani & another v Attorney General & 2 others Petition 157 of 2011 High Court at Nairobi (Constitutional & Human Rights Division) I. Lenaola J, August 2, 2012 Reported by Michael M. Murungi, Advocate
Cases referred to 1. State of Kerala & Anor vs. N. M. Thomas & Others 1976 AIR 490, 1976 SCR(1) 906 . 2. Hambardda Wakhana vs. Union of India Air [1960] AIR 554. 3. S vs. Makwangane & others CCT/3/94 (Constitutional Court of South Africa).
edy may be invoked duty of petitioner to establish the facts supporting the compensation claimed general damages nature of the remedy and how it may be granted in such cases Constitution of Kenya, 2010 section 23(e) Issue: Had the petitioners right to be recognized as a person with disability and to have his retirement age extended from 55 years to 60 years under the Persons With Disabilities Act, Act. No. 14 of 2003, section 15(6) been violated?
remedy for the breach of a constitutional right to be made and proved? Constitution Kenya, 2010 Article 27(4):The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Persons With Disabilities Act, Act No. 14 of 2003, section 15(6): (6) The minimum retirement age for persons with a disability shall be sixty years. Held: 1. Discrimination is subtle but can manifest itself in many forms and the State is obligated to eradicate it by inter-alia procedural fairness. The petitioner appears to have been retired both because of his age and his disability and in spite of the fact that he
Constitutional law bill of rights right not to be discriminated against discrimination on grounds of disability, heal and age right of a person with disability to be recognized as such right of a person with disability Had the petitioners right to have his retirement age exnot to be discriminated tended from 55 years to 60 years against on grounds of - Constitution of Kenya, 2010 Ardisability, health and age ticle 27(4), (5), (6), (7) Persons under Article 27(4), (5), (6) With Disabilities Act, Act. No. 14 and (7) of the Constitution of 2003, section 15(6). of Kenya 2010 and Article 7 of the Universal Constitutional law breach of Declaration of Human constitutional rights compensaRights been violated? tion nature of the remedy for such breach and how the rem- H o w i s a c l a i m f o r a
157
had given his employer due notice of his disability and of his entitlement to have his age of retirement reckoned at 60 years under the Persons With Disabilities Act section 15(b). 2. The Petitioners right not to be discriminated against under Article 27(4)(5)(6) and (7) of the Constitution and Article 7 of the Universal Declaration of Human Rights has been violated. There was no procedural fairness when his request for extension of his retirement age was not responded to and least of all, acknowledged. 3. The failure by the 2nd and 3rd respondents to recognize the petitioner as a disabled person and to extend the petitioners
retirement age from 55 years to 60 years in total disregard of section 15(6) of the Persons With Disabilities Act amounted to a violation of his right not to be discriminated against on grounds of health, age and disability. 4. As a result of these breaches, the petitioner has been unfairly treated and subjected to serious economic hardship and thus deprived of his right to livelihood. 5. Even though general damages are the preserve of the Court as they are discretionary, specific claims must be specifically pleaded and proved even in matters of a constitutional nature. A person cannot be paid
for services that he has not rendered. There was no evidence that the petitioner was earning the amount of money that he had claimed. 6. Where a person makes a claim but fails to show in a satisfactory manner the facts upon which he bases his claim, the respondent is under no obligation to prove his defence or exception. 7. The remedy for breach of ones constitutional rights is clearly set out in Article 23(e) of the Constitution and whether pleaded or not, the fact of breach of a fundamental right will in appropriate cases attract the remedy and it is a remedy at the discretion of the Court.
REGISTRATION OF TRADE UNIONS

Kenya National Union of Nurses v Attorney General & Another Industrial Court of Kenya Cause No 1049 of 2012 July 31, 2012 O Makau J Ruling By Andrew Halonyere, Advocate
Issue Whether unregistered Trade Union had legal capacity and locus standi to sue for its members in its own name.
Relations Act No 14 of 2007. Held 1. The legal issue of capacity to sue and the locus standi were cardinal in Labour relations and that was why the legislature in its wisdom legislated the Labour Relations Act No. 14 of 2007. Section 21 of the said Act provided that a trade union was intended to be a body corporate. The corporate personality of a Trade Union could only occur upon successful registration and issuance
of a certificate by the Registrar of Trade Unions. The applicant did not prove that it was a duly registered Trade Union to represent nurses. 1. The locus standi of any organisation to sue for its members in its own name was derived from the corporate personality through registration. The capacity to sue accrued after a certificate was issued to the Union by the Registrar of Trade Unions. Without such capacity to sue, any purported
Labour Law labour relations disputes dispute relating to deduction of salary - application for injunction against the respondents from effecting salary deductions from claimant - failure by claimant (Union of Nurses) to prove registration whether unregistered trade union had capacity or locus standi to sue on behalf of its members Labour
158
proceedings filed by an amorphous association were just a nullity. Therefore the Notice of Motion was incompetent, null and void for the foregoing reasons.
2. The deliberate failure to prove the registration and therefore the existence of the claimant as a juristic person was a material
non-disclosure which left the Industrial Court with no other option but to dismiss the application with costs. Application dismissed.
DUTIES AND OBLIGATIONS OF A SURETY

Juma Athman Mwacharero V Republic Criminal Misc. Application No. 111 of 2012 High Court of Kenya at Mombasa M. Odero J. July 31, 2012 By Njeri Githanga, Advocate
Criminal Practice and procedure the accused extradited - sureties-duties and obligations where the accused person of a surety-duty to produce an has left the jurisdiction of accused person in court whenthe court? ever so required-where an accused person has left the juris- Held; diction of the courtwhether the surety can request the help of 1. The duties and obligations the State authorities to have the of a surety are clearly accused extradited explained and spelt out to any potential surety. Issue As a surety the applicant undertook and bonded Whether a surety can himself to produce the request the help of the accused person in court State authorities to have whenever he was so
required. Having failed to hold up his end of the bargain he had to face the sanctions as set down by the law. The surety could hence not request the help of the State authorities to have the accused extradited where the accused person has left the jurisdiction of the court. Application dismissed
Francis Mugo Ndegwa v Amboseli Court Ltd

Miscellaneous Civil Application 376 of 2012 High Court at Nairobi (Civil Division) GV Odunga J July 31, 2012 Reported by Michael Murungi, Advocate
Civil Procedure limitation of time extension of time for bringing an action barred by statute circumstances in which time may be extended whether financial difficulties on the part of the applicant amount to material facts outside the applicants knowledge - Limitation of Actions Act (Cap. 22) section 4
Issues: In what circumstances may a court extend the time for bringing an action barred by statute under the Limitation of Actions Act (Cap. 22)? Would financial difficulties amount to a material fact
outside of the applicants knowledge entitling him to an extension of time? Held: 1. Extension of time only applies to claims made in tort and even in tort the claims must be in respect of claims for
159
personal injuries arising from negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law). 2. Even in cases where the claim falls under the aforesaid provisions time
will not be extended unless the applicant proves that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff.
3. As for material facts relating to the cause of action outside the applicants knowledge, financial difficulty is not relevant as far as the law is concerned. Application dismissed.
TERRITORIAL JURISDICTION OF MAGISTRATES COURT

Justus Kyalo Mutunga v Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi (Civil Division) GV Odunga J July 30, 2012 Reported by Michael Murungi, Advocate
Jurisdiction subordinate court - Magistrates court court of the Resident Magistrate statute which confers jurisdiction on the court interpretation of the Civil Procedure Act section 15 and the Magistrates Courts Act (Cap. 10) section 3(2) Civil Procedure transfer of suit whether a suit filed in a subordinate court lacking territorial jurisdiction can be transferred to another court Civil Procedure Act section 15 Magistrates Courts Act (Cap. 10) section 3(2) Issues: - Application to transfer a suit for damages arising from a road accident, after the suit had mistakenly been filed in a subordinate court outside the territorial jurisdiction of where the accident had occurred. - A c c o r d i n g t o t h e respondent, the suit cannot legitimately be transferred from the Court that had no jurisdiction to one of competent jurisdiction
Held: 1. The Civil Procedure Act is not the instrument that confers jurisdiction upon the subordinate courts since the jurisdiction of the subordinate courts is governed by Magistrates Courts Act. Section 3(2) of the former Act expressly states that the Resident Magistrates Court shall have jurisdiction throughout Kenya. 2. Per Ringera J in Mohamed Sitaban vs. George Mwangi Karoki Civil Application No. 13 of 2002: a. Under section 3(2) of the Magistrates Court Act, a court of the resident magistrate has jurisdiction throughout Kenya. Such a court is not subject to the local territorial jurisdiction contemplated by section 15 of the Civil Procedure Act which applied only to courts lower than the Resident Magistrates
Court. b. The Magistrates Court Act was enacted in 1967 long after the Civil Procedure Act. The Legislature was therefore aware of the provisions of section 15 of the Civil Procedure Act and where two provisions in different statutes conflict, the provision in the latter statute is deemed to amend the earlier provision. c. There may be sound administrative reasons for filing suits in administrative Districts in which the defendant resides but those reasons cannot oust a statutory jurisdiction. The rule that a suit filed in a court without jurisdiction is a nullity and cannot be transferred is inapplicable in such cases. Application allowed.
160
DOUBLE ALLOTMENT WHERE BOTH PARTIES HAD OBTAINED TITLE

James P Maina Muriuki v Moses Maina Ngugi& Another Civil Suit No 157 of 2007 High Court at Nairobi P Nyamweya, J. Judgment July 30, 2012 Reported by Andrew Halonyere, Advocate Land Law allotment double allotment where both parties had obtained title whether party who had good title takes precedence over all other alleged equitable rights to the title Issue: Validity of double allotment Held 1. In cases of double allotment, a party who has been issued a good title takes precedence over all other alleged equitable rights to the title. Neither the Plaintiff nor the 1st Defendant has brought any evidence of a title to the suit plot, and their interests in the suit plot therefore remain equitable interests. 2ndDefendant ordered to compensate the Plaintiff.
LEAVE TO INSTITUTE CONTEMPT OF COURT PROCEEDINGS

Julius Muthusi Kinama & 2 others v. Sammy Mutiso Muendi & 2 others Civil Appeal No. 25 of 2012 High Court of Kenya at Machakos J. M. Ngugi, J. July 27, 2012 Reported by Nelson K. Tunoi, Advocate Civil practice and procedure contempt of court-procedure for instituting and prosecuting an application for contempt-law and procedure used in the High Court of Justice in England-duty of applicant to seek leave to institute contempt of court proceedings-whether such leave is necessary-Judicature Act (cap 9) section 5 (1); Civil Procedure Act (cap 21) section 63 leave first before instituting proceedings for contempt of court. Held: 1. Parties are expected to obey court orders at the pain of being found in contempt of the court. seek leave for applications for contempt of court. The Civil Procedure Rules, 2010 in its re-wording of Order 40 rule 3 makes it clear that disobedience of courts injunctive orders will no longer be constrained by the rigid rules obtaining in England. 3. (Obiter) The specificity of the rule makes it clear that it is meant to give courts the power to
161
2. Even before the new Civil Procedure Rules, 2010 and the Constitution of Kenya, 2010 came into Issue: force there was no need to Whether it is mandatory to seek
punish disobedience without further reference to any other procedural requirements. Considering the transcendental constitutional command to do justice without undue
regard to technicality, it is easy to come to the conclusion that the requirement for leave in the face of Order 40, rule 3, and in the face of the much animadversion of
the technical requirement for leave is outdated, unnecessary, unduly technical, and, therefore unwarranted.
RIGHTS OF PARTIES TO A MARRIAGE

W.M.M v B.M.L High Court at Nairobi Divorce Cause No 179 of 2009 G.B.M Kariuki J July 26,2012 Reported by Andrew Halonyere, Advocate Family law - petition for the dissolution of marriage - maintenance courts to examine financial capacity of the spouses before making a finding on payment of maintenance - need to expand the menu for grounds for dissolution of marriage - need to adjust sections 25 and 26 of the Matrimonial Causes Act to align the same with the Constitution. Constitutional law rights of parties to a marriage courts to regard the provisions of the constitution in considering a claim of maintenance whether right to equality at dissolution of marriage creates equal spousal ownership of property - Constitution Art 45(3) Matrimonial Causes Act (Cap 152) sections 25,26. This was a petition seeking dissolution of marriage on the ground of cruelty. Issue Whether the respondent was entitled to maintenance and if so the quantum thereof. Held 1. In considering a claim for maintenance, the courts must regard the provisions of Article 45(3) of the Constitution which recognizes that parties to a marriage are entitled to equal rights at the time of the marriage, during marriage, and at the dissolution of the marriage. 2. The equality in Article 45(3) does not create nor is it intended to create equal spousal ownership of property acquired during marriage regardless of which spouse has acquired and paid for it or regardless of how it has been acquired and paid for. It relates to and recognizes personal rights of each spouse to enjoy equal rights to property and personal freedoms and to receive equal treatment without discrimination on the basis of gender and without being shackled by repugnant cultural practices or social prejudices. 3. In light of Article 45(3), spouses in a marriage must be treated as equals and neither has a greater or lesser obligation than the other in relation to maintenance. In cases where spouses have no children, a wife does not enjoy advantage over a husband or vice versa and the age-old tradition in which men were deemed to be the sole bread winners and to carry the burden of maintaining their spouses does not hold true anymore. 4. The financial capacity of the spouses has to be e x a m i n e d b e f o re t h e court makes a finding as to whether a spouse should pay maintenance and if so how much. Obiter. 5. One may note that the grounds for divorce set out in Section 8(1) of the Matrimonial Causes Act are the age-old traditional grounds which were the only ones applied in English courts before. I have lamented in many cases the regrettable failure by the Legislature and the Law Reform Commission in Kenya to expand the menu
162
for grounds for dissolution of marriage under the Act. While other jurisdictions have continued to review their law in this branch so as to keep it in tandem with societal changes and values, Kenya continues to lag behind in this area of our laws. As a result, the only grounds for divorce are the traditional three, namely, adultery, cruelty and desertion and by the wife on the ground of rape,
sodomy or bestiality on the part of the husband. This is not good enough. In other jurisdictions, grounds such as irreconcilable differences and circumstances that make marriage untenable have been brought into the vortex of grounds for divorce. We ought to be a forward-looking jurisdiction and to set pace in development of our law so as to keep abreast with
changes in our society. 6. It seems clear that an adjustment to sections 25 and 26 of the Matrimonial Causes Act (and to a host of other provisions) to align the same with the Constitution is called for. Petition allowed, petitioner to pay the respondent 150,000 for a period six months until suit for matrimonial property is heard and determined.
Randu Nzai Ruwa and 2 Others V the Internal Security Minister and Another
Misc. Application No. 468 of 2010 High Court of Kenya at Mombasa J. W. Mwera, M. Kasango, F. Tuiyott JJ. July 25, 2012 By Njeri Githanga, Advocate
Constitutional Law - fundamental rights and freedoms-where the Government of Kenya had banned a group known as Mombasa Republican Council (MRC) vide Gazette Notice No. 12585whether the ban limited the Fundamental Rights and Freedoms of the petitioners- Constitution of Kenya 2010, Articles 36, 37, 38, 40 and 47 The originating motion challenged Gazette Notice wherein several groups and or private associations inter alia, the MRC were proscribed, on the grounds that it contravened Articles 36, 37, 38, 40 and 47 of the Constitution of Kenya, 2010. The said ban had been made pursuant to section 22 of the Prevention of Organized Crime Act (Act No. 6 of 2010) .The three petitioners brought the action on behalf a group of persons who associated and branded themselves as MRC. MRC had over 30,000 committed followers and central to its
objective was secession. Issues
Whether the action of the Government of Kenya in proscribing a group known as Mombasa Republican Council (MRC) vide Gazette Notice No. 12585 was unconstitutional and whether that proscription restricted or limited the Fundamental Rights and 3. Democracy was not a Freedoms of the petitioners. license to disorder or lawlessness and for that Held; reason; the group had to register as a political 1. Kenya is one indivisible party to pursue its agenda sovereign state. This is through legal means. expressly proclaimed in the preamble of the 4. Secession was a weighty Constitution and national matter that could not unity entrenched by Article be realized through the 10 of the Constitution as means the group was a national value. The pursuing. Constitution did not contemplate secession Gazette Notice declaring MRC and if the people of as an organized criminal group Kenya would have wished unconstitutional lifted. otherwise, then they would
have expressly said so in the Constitution. 2. From the evidence presented by the parties, MRC was a political movement as central to its objective was secession. Secession was a political agenda and hence MRC had all the attributes of a political movement.
163
INDEPENDENCE OF CONSTITUTIONAL OFFICES

Harun Mohamed Yusuf v. Teachers Service Commission & Two others High Court at Nairobi Petition No. 73 of 2011 M. Ngugi J. July 25, 2012 Reported by Andrew Halonyere, Advocate Issue: What was the effect of an act done by an independent commission at the request/instigation of a third party? Held: 1. T h e Te a c h e r s S e r v i c e Commission acted at the behest of the interested party, and did not exercise its mandate independently as it was required to do under the constitution. In such circumstances, its legal mandate was done in contravention of the constitution and was therefore null and void. 2. The nullity of the transfer should not be taken by the petitioner as insulating him from transfer from Garissa High School. Being a public officer and voluntarily accepting the terms and conditions of service as a teacher, was bound to respect and obey the regulations gover ning the teaching service. The transfer appears to have been effected on the basis of other than the independent decision of the Teachers Service Commission and to allow it to stand would weaken its functioning as it would render it subject to manipulation by administration. Should t h e Te a c h e r s S e r v i c e Commission however in future deem it necessary on an independent consideration of relevant factors to transfer the petitioner, then it cannot be heard to complain.
WHAT CONSTITUTES A CHILD OF TENDER YEARS?

FM v HG High Court, at Meru H.C.C.A No.15 of 2008 J. A. Makau July 25, 2012. Reported by C. W. Lupao, Advocate Children Law - custody of a childcustody of a child of tender yeas-matters a court should put into consideration in determining custody of a child-Children Act, section 4(3). Child - child of tender years-what constitutes a child of tender years-Children Act, section 2 Issue: To whom should custody of a child of tender years be bestowed in the event of separation/ divorce of parents? What constitutes a child of tender years? Held: 1. The court in granting custody of a child is re q u i re d t o t a k e i n t o consideration Section 83 of the Children Act which includes the requirement that custody order should always be made in the best interest of the child. Where custody of a child of tender years is in issue, the mother should have the custody unless special circumstances are established to disqualify the mother from having
164
such child. 2. A child of tender years means a child under the
age of ten (10) years. In the best interest of this par-
ticular child, joint custody of the child was granted.
CONSTITUTIONALITY OF ORDER 22 RULE 7(1) OF THE CIVIL PROCEDURE RULES

Beatrice Wanjiku & Another v Attorney General & 3 others Petition No. 190 of 2011 High Court, at Nairobi D.S. Majanja J July 23, 2012. By C W Lupao, Advocate Evidence evidence of age of a child in sexual offences admissibility of other documents like baptism card, vaccination cards school records etc. Evidence where complainant gave her age as 14 years and accused conceded whether combination of such evidence was sufficient proof of age Sexual Offences Act 2006, sections 8(1),8(3). Issue: Does the failure to produce documentary evidence of age automatically mean that the question of age remains unproven? Held 1. The best proof of any persons age would be a birth certificate. However the court was mindful of the fact that few families especially in rural Kenya bother to acquire birth c e r t i fi c a t e s f o r t h e i r children. As such other documents like baptism cards, vaccination cards, school records etc are equally admissible as proof of age. In this case no such document was produced to prove age. 2. The complainant gave her age as 14 years. The accused in his defence conceded that the complainant was aged 14 years. From the combination of the evidence there existed sufficient proof that the complainant was aged 14 years at the time of the offence, bringing the incident squarely within the ambit of section 8(3) of sexual offences Act.
TRANSPARENCY IN THE MAKING OF PUBLIC OFFICE APPOINTMENTS

Marson Integrated Ltd. v Minister for Public Works & another Petition 252 of 2012 High Court at Nairobi (Constitutional and Human Rights Division) Justice M. Ngugi July 19, 2012 Reported by Michael Murungi, Advocate
Constitutional law national values principles of governance good governance, accountability, transparency and integrity integrity of persons appointed to public bodies transparency in the making of such appointments Minister appointing a
person to the Board of a state body after the persons name had been withdrawn by the professional body which had nominated him whether the appointment met the integrity test whether the Minister had acted procedurally - Constitution of Kenya 2010 Article 10
Statute interpretation of statutes National Construction Authority Act 2011 section 7(5) section providing for that a person nominated to the Board of the Authority shall have an academic qualification in a relevant filed or equivalent qualification meaning of a relevant field
165
Words and phrases relevant field meaning of the term in the context of appointments to positions for which an academic qualification in a relevant field is prescribed interpretation of the National Construction Authority Act 2011 section 7(5) Issues: Did the Interested Party have the requisite academic and professional qualifications to be appointed to the Board of the National Construction Authority? Did the Interested Party meet the integrity test in Chapter 6 and 13 of the Constitution? Did the Minister act procedurally in appointing the Interested Party to the Board after his name had been withdrawn by the nominating professional body? Section 7 of the Act requires that to qualify for appointment as a member
of the Board, one must be a holder of a Higher Diploma in a relevant field and have at least 10 years experience in the construction industry. Held: 1. The National Construction Authority Act section 7(5) particularly in its use of the words in a relevant field require that anyone who is nominated by the professional organisations named in Part II of the First Schedule should have a minimum of a Higher National Diploma in the field to which the nominating organisation belongs. In the case of the Interested Party, he had been nominated by the Kenya Association of Building and Civil Engineering Contractors. Relevant field with regard to this body would require that he has a minimum of a Higher National Diploma in the field of building or civil engineering. 2. The national values and
principles of governance enshrined in Article 10 of the Constitution, which bind all persons and all state organs whenever they apply or interpret the Constitution or any law, or when they make or implement public policy decisions, include good governance, integrity, transparency and accountability. 3. In the absence of an answer to the petition by the Interested Party, the only inference that the court could properly draw was that the allegations by the petitioner had a basis in fact, a basis that was sufficient for the nominating body, KABCEC, to withdraw the Interested Partys nomination and submit another name. Based on those facts, the Interested Party did not meet the integrity threshold set out in Article 73 of the Constitution and his appointment did not accord with the national values and principles set out in Article 10
POWERS OF THE LAND REGISTRAR

Republic v District Land Registrar ex parte Gheida Binti Omar Abed & 7 others Miscellaneous Civil Suit 182 of 2001 High Court at Mombasa Justice F. Tuiyott July 19, 2012 Reported by Michael Murungi, Advocate Land law registrar powers of the land registrar power to dispense with the consent of the lessor for the lessee to sub-let, transfer, charge or part with possession scope of the Registrars power whether the Registrar can properly dispense with such consent where the head lessor has expressly declined to give consent Registered Land Act (Cap. 300) section 48 Issue: of the Registrars powers under the section?
Whereas the Registered Land Act section 48 provides that where a Held: lease has been registered which contains an agreement binding 1. Where a lease has been registered which contains the lessee not to transfer, sub-let, an agreement binding charge or part with possession the lessee not to transfer, of the land without the written sub-let, charge or part consent of the lessor, the Land with possession of the land Registrar may dispense with the consent of the lessor in certain without the written consent circumstances, what is the scope of the lessor, the Registered
166
Land Act section 48 empowers the Land Registrar to dispense with the consent of the lessor in certain circumstances. These are:
or at unreasonable expense and shall after making such enquiries as he may deem necessary in the circumstances, record on the document his reasons for dispensing with a consent and note such dispensation in the register.
If he is satisfied that the lessor is 2. A plain reading of the dead and that there is no persecond proviso to the sonal representative of the lessor Registered Land Act or section 48 is that the Registrar may dispense If he considers that the consent with the lessors consent of the lessor or the personal repwhere consent cannot resentative, as the case may be, be obtained or that cannot be obtained or that it can it can be obtained be obtained only with difficulty but with difficulty or at
unreasonable expense. An example when the lessors consent cannot be obtained is where, say, the lessor cannot be traced or where he/she is suffering form a physical or mental infirmity, which makes it impossible for the lessor to give consent. 3. The Registrars power to dispense with the lessors consent cannot extend to where the head lessors have expressly refused to give consent.
SECURITY FOR COSTS

Ocean View Beach Hotel Ltd v Salim Sultan Moloo & another Civil Case 533 of 2011 High Court at Mombasa F. Tuiyott J July 19, 2012 Reported by Michael Murungi, Advocate
Civil Procedure security for costs application for the payment of security by a plaintiff company Companies Act (Cap. 486) section 401 Company law security for costs where a company plaintiff files a suit - discretion of the court to order payment by the company of security for the defendants costs of the suit matters the court will consider in deciding an application for payment of security for costs - Companies Act (Cap. 486) section 401 Issue: Whereas the Companies Act section 401 provides that a plaintiff company may be required to provide security for costs to a defendant in a civil suit,
Co. Ltd [2005]I EA 264(CAK) embraced the principles laid down in Keary Development Vs- Tarmac Construction [1995]3 ALL EK 534 as the guide on how a Court should exercise its discretion on Section 401 of the Companies whether to order a Plaintiff Limited Company to provide security Act, (Cap 486), Laws of Kenya: for costs to a Defendant in a suit. Where a limited company is a Plaintiff in any suit or other legal The principles laid down in Keary proceedings any Judge having Development Ltd are summajurisdiction in the matter may if rized as follows:it appears by credible testimony that there is reason to believe the 1. The Court has a complete discretion whether to order company will be unable to pay security, and accordingly it the costs of the Defendant, if sucwill act in the light of all the cessful in his defence require sufrelevant circumstances. ficient security to be given for the costs and may stay the proceed2. The possibility or probability ings until the security is given. that the Plaintiff Company will be deterred from The Court of Appeal in Civil Appursuing its claim by an peal No. 9 of 2005 Messina & order for security is not Another Vs- Stallion Insurance
how is a Court to exercise its discretion on whether to order a Plaintiff Limited Company to provide security?
167
without more a sufficient reason for not ordering security. 3. The Court must carry out a balancing exercise. On the one hand it must weigh the injustice to the Plaintiff if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the defendant if no security is ordered and at the trial the Plaintiffs claim fails and the defendant finds himself unable to recover from the Plaintiff the costs which have been incurred by him in his defence of the claim.
4. In considering all the circumstances, the Court will have regard to the Plaintiff companys prospects of success. But it should not go into the merits in detail unless it can clearly be demonstrated that there is a high degree of probability of success or failure 5. The Court in considering the amount of security that might be ordered will bear in mind that it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply
nominal amount; it is not bound to make an order of a substantial amount 6. Before the Court refuses to order security on the ground that it would u n f a i r l y s t i fl e a v a l i d claim, the Court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled. 7. T h e l a t e n e s s o f t h e application for security is a circumstance which can properly be taken into account. Application allowed.
CAN AN ACCUSED PERSON BE FINED A CAMEL FOR MANSLAUGHTER?

Republic V Leraas Lenchura Criminal Case No. 19 of 2011 High Court of Kenya at Nakuru J. Anyara Emukule July 19, 2012 By Njeri Githanga, Advocate Criminal Practice and procedure - sentencing sentencing in a manslaughter charge-accused having been charged with murder but sentence reduced to manslaughter after plea bargainthe incident having occurred during a quarrel over water in Samburu in self-defense-where the accused was aged 89 yearappropriate sentence under the circumstances Held 1. Under the Constitution, the State had assumed a positive undertaking to provide both water and shelter to these vulnerable areas and communities. The inhabitants of such areas had an obligation to share the limited resources in a civil and orderly manner without fights which lead to unnecessary loss of life. Accused sentence to pay one female camel to the family of the deceased, and to five years suspended sentence during which time the accused would report once every 2 weeks to the area Chief Civil Procedure security for costs application for the payment of security by a plaintiff company Companies Act (Cap. 486) section 401 Company law security for costs where a company plaintiff files a suit - discretion of the court to order payment by the company of security for the defendants costs of the suit matters the court will consider in deciding an application for payment of security for costs - Companies Act (Cap. 486) section 401 Issue: Whereas the Companies Act section 401 provides that a plaintiff company may be required to provide security for costs to a defendant in a civil suit, how is a Court to exercise its discretion on whether to order a Plaintiff Limited Company to provide security? Section 401 of the Companies Act, (Cap 486), Laws of Kenya: Where a limited company is
168
a Plaintiff in any suit or other legal proceedings any Judge having jurisdiction in the matter may if it appears by credible testimony that there is reason to believe the company will be unable to pay the costs of the Defendant, if successful in his defence require sufficient security to be given for the costs and may stay the proceedings until the security is given. The Court of Appeal in Civil Appeal No. 9 of 2005 Messina & Another Vs- Stallion Insurance Co. Ltd [2005]I EA 264(CAK) embraced the principles laid down in Keary Development Vs- Tarmac Construction [1995]3 ALL EK 534 as the guide on how a Court should exercise its discretion on whether to order a Plaintiff Limited Company to provide security for costs to a Defendant in a suit.
will act in the light of all the relevant circumstances. 9. The possibility or probability that the Plaintiff Company will be deterred from pursuing its claim by an order for security is not without more a sufficient reason for not ordering security. 10. The Court must carry out a balancing exercise. On the one hand it must weigh the injustice to the Plaintiff if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the defendant if no security is ordered and at the trial the Plaintiffs claim fails and the defendant finds himself unable to recover from the Plaintiff the costs which have been incurred by him in his defence of the claim.
merits in detail unless it can clearly be demonstrated that there is a high degree of probability of success or failure 12. The Court in considering the amount of security that might be ordered will bear in mind that it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount 13. Before the Court refuses to order security on the ground that it would u n f a i r l y s t i fl e a v a l i d claim, the Court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled. 14. The lateness of the application for security is a circumstance which can properly be taken into account. Application allowed.
The principles laid down in Keary Development Ltd are summa- 11. In considering all the rized as follows:circumstances, the Court will have regard to the 8. The Court has a complete Plaintiff companys discretion whether to order prospects of success. But security, and accordingly it it should not go into the
A PRINCIPAL MAGISTRATE CAN BE ENJOINED IN A SUIT

Republic v The Principal Magistrate Hon. Shadrack A Okato Of Chief Magistrate Court At Nairobi Milimani Commercial Court & Robert Chesang (interested party) High Court at Nairobi Judicial Review Division MISC. APPL. NO. 149 OF 2011 Justice , W K Korir, J July 17, 2012 Reported by Sylvie Nyamunga, Reporter Judicial Review orders of certiorari- An Order of Certiorari to remove, deliver up to the Court and quash the proceedings by a principal magistrate-whether a principal magistrate can be enjoined in a suit-whether the Attorney General can be enjoined in judicial review- whether awardIssue 20 | July - December 2012
ing damages in excess of pecu- titling of the application resulted niary jurisdiction can be subject in these proceedings being proto judicial review ceedings against Shadrack Okato in his personal capacity? Issues: Whether failure by the applicants Whether the respondent has to enjoin the Chief Magistrate been sued in his personal capac- and the Attorney General render ity or official capacity? Has the this application fatally defective?
169
Whether the respondent exceeded his jurisdiction by awarding the interested party a sum of Kshs.1,777,648.00 which was in excess of his pecuniary jurisdiction of Kshs.1 million? Held: The title and pleadings were clear so that even if a judicial
officer were to leave judicial service before the hearing of this matter the application would survive such an exit. Therefore, the respondent has been correctly named. In judicial review matters, it is not wrong for the Attorney General to be included as a respondent. Failure to include the Attorney
General as a respondent does not however render the application fatally defective since a proper defendant/respondent has been included. It is only at the judgment stage that an error which calls upon the intervention of this court was committed.
FORM OF AFFIDAVIT
Gachui Akothae Rengerua & another v Salim Ahemed Salem Civil Appeal 85 of 2010 High Court at Mombasa MK Ibrahim J July 16, 2012 Reported by Michael Murungi, Advocate
Civil Procedure affidavit form of affidavit jurat whether the jurat has to be on the same page as the oath whether an affidavit in which the jurat is on a separate page is fatally defective - Oaths and Statutory Declarations Act (Cap.15) - Civil Procedure Rules Order 18 Rule 7 Issue: Does the law require that the jurat of an affidavit has to be on the same page as the oath?
Is an affidavit in which the jurat is on a separate page fatally defective? Held: 1. Whereas it is good practice for the jurat of an affidavit to be on the same page of the oath it is not expressly re q u i re d t o b e s o b y the Oaths and Statutory Declarations Act (Cap.15). 2. The fact that the jurat is not on the same page as the
text of the affidavit is, strictly not an irregularity, as there is no legal requirement that it be so. 3. The jurat of the affidavit being on a separate page is not fatally defective and the court has discretion to admit it as long as the defect is of form and not the substance as provided by Order 18 Rule 7 of the Civil Procedure Rules. Preliminary objection dismissed.
170
CORPORATE-OWNED GROUP LIFE INSURANCE

Commissioner of Domestic Taxes v Standard Chartered (K) Ltd High Court at Nairobi (Commercial and Admiralty Division) ITA No. 10 of 2011 Mabeya, J. July 13, 2012 Reported by Sylvie Nyamunga, Reporter
Tax - tax law - whether group life insurance is a taxable benefit-whether group life enures to employee or employer-whether group life insurance is chargeable under s. 5(2)(f) of the Income Tax Act Cap 470 Issues: Whether group life insurance a benefit/privilege/advantage that is taxable? Does the benefit enure to the employee or employer?
2. For the purposes of Section 3(2) (a) (ii), gains or profits includes:- Held: 1. T h e b e n e fi t s u n d e r the policy were to the Respondent, the Group Life Assurance and Dread Disease is not covered under Section 5(2) (f) of the Act. This is so because Section 5 (2) (f) of the Act envisages a situation where the benefit, advantage or
gain from the life insurance enures to the employee. 2. The expenses on premiums paid under such a Corporate Owned Life Insurance Contract in Kenya shall remain excluded from the income of an employer. Appeal dismissed with costs to respondents.
RIGHT TO ADMINISTRATIVE ACTION

Rachel Auma Owiti v Municipal Council of Kisumu Petition 52 of 2011 High Court at Kisumu Justice HK Chemitei July 13, 2012 Reported by Michael Murungi, Advocate
Constitutional law constitutional rights and fundamental freedoms right to administrative action right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action failure and delay by municipal authority to respond to letters from a land owner who
sought clearance to develop the land whether the failure was a breach of the petitioners right to administration action - Constitution of Kenya, 2010 Article 47 Issue: Where a municipal authority
neglects to respond to several letters from a member of the public who has acquired land within the municipality and is seeking clearance to develop the land, has the authority breached the persons the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative
171
action provided in Article 47 of the Constitution of Kenya, 2010? 47 (1) Every person has the right to administrative action that is expeditious efficient, lawful, reasonable and procedurally fair. 47 (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. Held: 1. The failure by the
respondent, a Municipal Authority, to respond to several letters from the petitioner, a purchaser of land within the Municipality who sought the clearance of the Authority to develop the land, was a breach of Article 47 (1) and (2) of the Constitution. 2. The purposes and duty of any statutory body is to serve its constituents with utmost care speed and diligence. This recalcitrance action by the respondent, while it continued to charge and accept land levies from the petitioner, was inefficient,
unlawful, unreasonable and unprocedural and time wasting. 3. The respondent was liable to the petitioner in the amount of Kshs. 150,000 being general damages for breach of Article 47 of the Constitution. 4. The action by the respondent to revoke the allotment of the land and to put it up for competitive acquisition by the public was not arbitrary and the respondent had acted within its mandate. Orders accordingly
STRIKING OUT
Kiama Wangai v John N. Mugambi & another Civil Suit 434 of 2010 High Court at Nairobi Civil Division Justice JV Odunga July 12, 2012 Reported by Michael Murungi, Advocate
Issue: Application to strike out a plaint in a case in which a client filed defamation proceedings against his advocate arising from letters written by the advocate. Different suits were filed with respect to different letters.
whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
to amount to an abuse of the process of the Court. 2. It is not the form in which the suit is framed that determines whether it is sub judice but the substance of the suit. 3. The overriding objective set out in section 1A of the Civil Procedure Act is tailored to enable the court deal with cases justly which includes ensuring that the parties are on an equal footing; ensuring that it is dealt with expeditiously and fairly; and allotting it appropriate share of the courts resources, while taking into account the need
Held: Section 6 of the Civil Procedure 1. Where a party decides to Act which provides as follows: file suit after suit between same parties with the No court shall proceed same cause of action with the trial of any suit with either an intention or proceeding in which of vexing or annoying his the matter in issue is also opponent, and without directly and substantially pursuing the first suit in in issue in a previously the production line to its instituted suit or proceeding logical conclusion, that between the same parties, action may be construed or between parties under
172
to allot resources to other cases. In order to deal with cases expeditiously, the practice of fragmenting a case into many causes of action when they can all be disposed in one cause should be discouraged. 4. In exercising its powers to strike out proceedings under Order 2 rule 15 of the Civil Procedure Rules, a court of law is to be guided by certain well established principles: a. Whereas the essence of the provisions is the striking out of a suit, that is a jurisdiction that must be exercised sparingly and in clear and obvious cases and unless the matter is plain and obvious, a party to civil litigation is not to be deprived of his right to have his suit tried by a proper trial. b. The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. c. The power to strike out pleadings must be sparingly exercised and it can only be exercised in clearest of cases. If a pleading raises a triable issue even if at the end of the day it may not succeed then the suit ought to go to trial. d. However where the suit is without substance or groundless or fanciful and or is brought or is instituted with some ulterior motive or for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the
process, the court will not allow its process to be as a forum for such ventures. e. To do this would amount to opening a front for parties to ventilate vexatious litigation which lack bona fides with the sole intention of causing the opposite party unnecessary anxiety, trouble and expense at the expense of deserving cases contrary to the spirit of the overriding objective which requires the court to allot appropriate share of the courts resources, while taking into account the need to allot resources to other cases. f. A pleading is scandalous if it states (i) matters which are indecent; or (ii) matters that are offensive; or (iii) matters made for the mere purpose of abusing or prejudicing the opposite party; or (iv) matters that are immaterial or unnecessary which contain imputation on the opposite party; or (v) matters that charge the opposite party with bad faith or misconduct against him or anyone else; or (vi) matters that contain degrading charges; or (vii) matters that are necessary but otherwise accompanied by unnecessary details. g. H o w e v e r, t h e w o r d scandalous for the purposes of striking out a pleading under Order 2 rule 15 of the Civil Procedure Rules is not limited to the indecent, the offensive and the improper and that denial of a well-known fact can also be rightly described as scandalous. h. A matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put
up a defence would be wasting Courts time; or (v) when it is not capable of reasoned argument. i. Again a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. j. A matter is said to be vexatious when (i) it has no foundation; or (ii) it has no chance of succeeding; or (iii) the defence (pleading) is brought merely for purposes of annoyance; or (iv) it is brought so that the partys pleading should have some fanciful advantage; or (v). where it can really lead to no possible good. k. Pleading tend to prejudice, embarrass or delay fair trial when (i) it is evasive; or (ii) obscuring or concealing the real question in issue between the parties in the case. It is embarrassing if (i) It is ambiguous and unintelligible; or (ii) it raises immaterial matter thereby enlarging issues, creating more trouble, delay and expense; or (iii) it is a pleading the party is not entitled to make use of; or (iv) where the defendant does not say how much of the claim he admits and how much he denies. l. A pleading which tends to embarrass or delay fair trial is described as a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations
173
which will prejudice the fair trial of the action and lastly a pleading which is abuse of the process of the court really means in brief a pleading which is a misuse of the Court machinery or process.
m. A pleading is an abuse of the process where it is frivolous or vexatious or both. Where the pleading as it stands is not really and seriously embarrassing it is wiser to leave it unamended or to apply for
further particulars. Suit stayed pending the hearing and determination of another suit or until further orders of the Court.
HIGH COURTS JURISDICTION TO ASSESS AUCTIONEERS FEES

Jesse Mburu Gitau T/Z Gallant Worldwide Investments Formally Gallant Auctioneer V Huawei Technologies Investment Co. Limited Miscellaneous Cause No. 899 Of 2010 High Court of Kenya at Nairobi E. K. O. Ogola July 12, 2012 By Njeri Githanga, Advocate
Jurisdiction - Auctioneers fees- (2) of the Auctioneers Rules, 1997 could argue that the Jurisdiction of the High Court monetary jurisdiction of the in assessing auctioneers fees- Held High Court was unlimited where the matter where the suit and that in theory it would gave rise to the proceedings was 1. Under Rule 55 (2) of the mean that the High Court not a High Court suit- Whether could entertain any Auctioneers Rules, 1997 the High Court had jurisdiction matter, Rule 55 Sub Rule the High Court had no to assess auctioneers fees under (3) was categorical. It jurisdiction since the the circumstances - Rule 55 (2) of stated that in any other suit giving rise to the the Auctioneers Rules, 1997 case where the High Court proceedings was not jurisdictional threshold was a High Court suit. The Issue: not met, the assessment High Court would have of the auctioneers fees jurisdiction under Sub Whether the High Court had could only be assessed Rule 2 (b) if the monetary jurisdiction to assess auctioneers by a Magistrate or the value of the decree or the fees in a matter where the suit Auctioneers Board. goods attached would giving rise to the proceedings fall within the High Court was not a High Court suit- Rule 55 Application Dismissed jurisdiction. Though one
174
CLAIMS EXTINGUISHED BY STATUTE

E M S suing as next friend of J M I, a Minor v Emirates Airlines High Court at Nairobi Civil Suit No 603 of 2010 G.V Odunga J. July 11,2012 Reported by Andrew Halonyere, Advocate
Issues
rather than airborne.
Which law was applicable in 2. Limitation statute is respect to limitation period. Was not a procedural law, it the Limitation of Actions Act rather it is a substantive that provided for a limitation pelaw. Accordingly, the riod of 3 years or the Carriage provisions of the Limitation by Air Act (Convention for the of Actions Act cannot be Unification of certain Rules for Ininvoked to supplement ternational Carriage by Air also the provisions of Article Known as the Montreal Conven29 (2) of the Convention tion, that provided for a limitation in order to disregard the period of 2 years for a claim for provisions of Article 29(1) damages. thereof. The procedure contemplated under Whether Article 29 of the MonArticle 29(2), encompasses treal convention ousts the juristhe existence of the right diction of Kenyan courts with reto claim damages and spect to limitation. only relates to the process to be followed which Whether the court could exis the procedural law tend time in cases where a cause applicable to the court seized of the case, which of action was extinguished. in Kenya would be the Civil Procedure Act. However, Held: the Civil Procedure Act is not the law that provides 1. Once a passenger is for limitation. It follows aboard an aircraft and his that having found that movements are under the the Convention applies control of the airline, he is by virtue of the provisions covered by the Carriage of section 7 of the by Air Act (Montreal Act, no action can be convention). Accordingly brought after more than the court cannot buy into two years. A distinction the submission that the must, however be made minor was not covered between the Limitation under the Carriage by Air of Actions Act and the Act simply because the Convention. The Act bars plane was on the ground
the bringing of particular actions after the specified periods of limitation, it does not extinguish causes of action. Article 29(1) of the Convention on the other hand, extinguishes the right to damages if an action is not brought within two years, reckoned from the date of arrival at the destination or from the date on which the aircraft stopped. 3. The Court cannot invoke the provisions of sections 1A, 1B of the Civil Procedure Act or Article 159(2) (d) of the Constitution to revive a claim which is expressly extinguished by statute. The advents of the said provisions are not meant to destroy the law but to fulfil them. The said provisions are meant to ensure that the path of justice is not clogged or littered with technicalities. Where, however, a certain cause of action is disallowed by the law, the issues of the path of justice being clogged does not arise since in that case justice demands that that claim should not be brought.
175
AFFIDAVIT EVIDENCE BY AN ADVOCATE

Cyrus Stanslaus Muasa Muli v Wilfred Njoka Murithi High Court at Nairobi Civil Suit No 616 of 2004 G.V Odunga J July 10, 2012 Reported by Andrew Halonyere, Advocate
Issue: Whether it was proper for an advocate to swear a supporting affidavit on behalf of a client in an application for dismissal of a suit for want of prosecution. Held 1. Counsel should not swear a f fi d a v i t o n d i s p u t e d matters or matters that are likely to be disputed when the client is available and can depose to the said facts. The rationale is to insulate the advocate, an officer of the court from the vagaries of litigation which
on occasions may be very unattractive. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided by counsel at all costs. However innocent an aver ment may be, counsel should desist from the enticement to be the conduit through which such an averment is transmitted. 2. Prejudice is a factual matter and not a matter of law although courts do take judicial notice
of the fact that nobody enjoys the fact of litigation hanging over their heads indeterminately and that a prolonged delay in prosecuting cases invariably causes anxiety on the part of the persons who are to defend the suits hence the need to expeditiously get on with the suit. Nevertheless, in matters where the defendant alleges prejudice resulting from long delay in prosecution a suit, it is prudent that the defendant himself or an authorised officer thereof swears the affidavit explaining the reasons why a fair trial cannot be held after such a long delay.
SUMMARY JUDGMENT
James Juma Muchemi & Partners Ltd v Barclays Bank of Kenya & Others High Court at Nairobi HCCC No 339 of 2011 A Mabeya J July 6,2012. Reported by Andrew Halonyere, Advocate order 36 rule (1)(1) Issue: Whether a plaintiff could apply for Summary Judgment under order 36 rule (1) (1) of the Civil Procedure Rules (2010) where a defence had been entered. Held 1. Order 36 sub rule 1 provided that an application for summary judgment was to be made where a defendant had appeared but not filed a defence, the provision as read with rules 2 and 4 of order 36 showed that the intention of the drafters of that order was to bar
Statutes interpretation of statutes application for summary judgment under order 36 rule (1) (1) of the Civil Procedure Rules 2010 mischief the order sought to address whether an application may be made for Summary Judgment after a defence had been filed Civil Procedure Rules
176
any application made for Summary Judgment after a defence had been filed. The mischief sought to be addressed was that a plaintiff who had a genuine and bona fide claim against a defendant did not have to wait until
a defence was filed by the defendant to decide that the defendant had no defence to his claim. 2. The intention of the drafters was that if a party wanted to apply for Judgment after a defence had been
filed, such a party was left to use the other provisions of the Rules that allowed summary Procedures i.e. either Order 2 Rule 15 or Order 13. Preliminary objection upheld, application for summary
AN APPLICATION SEEKING TO QUASH AN AWARD OF A TRIBUNAL ADOPTED BY A COURT, WITHOUT ENJOINING THE COURT AS A PARTY TO THE PROCEEDINGS, IS FATALLY DEFECTIVE.
Republic v Machakos Lands Disputes Tribunal &2 others exparte Katula Kangoo & 2 others High Court, at Machakos, Miscellaneous Civil Application No 315 of 2007 Asike -Makhandia J July 6, 2012 Reported by C. W. Lupao, Advocate
judgment struck out. Judicial Review - Certiorari-application for leave for orders of certiorari to quash proceedings and an award of a Land Disputes Tribunal -the proceedings and award sought to be quashed having been adopted by a court as a judgment of court -application not enjoining the court as a party to the proceedings-whether the application could suc-
ceed Issue: Whether an application seeking to quash an award of a tribunal adopted by a court, without enjoining the court as a party to the proceedings, is fatally defective. Held: 1. The adoption of the award by the court made the
award cease to have a life of its own capable of being quashed. The omission to enjoin the court as a party to the proceedings was not a minor technicality that could be ignored in terms of the articles in the current Constitution and was fatal to the application as it went to the root and jurisdiction of the court.
DOES THE LOWER COURT HAVE JURISDICTION ON ADVERSE POSSESSION CLAIMS?

Peter Kipkorir Rotich V Nicodemus Kuresoi Ntiwas Misc. Application No. 32 Of 2012 High Court of Kenya At Nakuru R.P.V. Wendoh July 6, 2012 By Njeri Githanga, Advocate Jurisdiction - land matters adverse possession instituted through Originating summonswhether the lower court had jurisdiction in an adverse possession claim- Civil Procedure Rules, Order 36 Issue: Whether the lower court has juIssue 20 | July - December 2012
risdiction in matters concerning adverse possession of land Held; 1. Order 36 of the Civil Procedure Rules conferred jurisdiction in applications for adverse possession on the High Court. The lower court had no jurisdiction
to entertain the issue of adverse possession as jurisdiction could not be conferred by estoppel or acquiescence. Even though the lower court may have had jurisdiction to entertain the suit, once the counter claim was filed alleging adverse
177
possession that court no longer had jurisdiction to deal with the matter.
Application allowed
ADOPTION OF TRIBUNALS AWARD AS JUDGMENT OF THE COURT

Republic v Machakos Lands Disputes Tribunal &2 others exparte Katula Kangoo & 2 others Miscellaneous Civil Application No 315 of 2007 High Court at Machakos Asike -Makhandia J July 6, 2012 Reported by C. W. Lupao, Advocate Judicial Review - Certiorari-application for leave for orders of certiorari to quash proceedings and an award of a Land Disputes Tribunal -the proceedings and award sought to be quashed having been adopted by a court as a judgment of court -application not enjoining the court as a party to the proceedings-whether the application could succeed Issue: Whether an application seeking to quash an award of a tribunal adopted by a court, without enjoining the court as a party to the proceedings, is fatally defective. Held: 2. The adoption of the award by the court made the award cease to have a life of its own capable of being quashed. The omission to enjoin the court as a party to the proceedings was not a minor technicality that could be ignored in terms of the articles in the current Constitution and was fatal to the application as it went to the root and jurisdiction of the court.
SUMMARY JUDGMENT
James Juma Muchemi & Partners Ltd v Barclays Bank of Kenya & Others High Court at Nairobi HCCC No 339 of 2011 A Mabeya J July 6, 2012 Reported by Andrew Halonyere,Advocate Statutes interpretation of statutes application for summary judgment under order 36 rule (1) (1) of the Civil Procedure Rules 2010 mischief the order sought to address whether an application may be made for Summary Judgment after a defence had been filed Civil Procedure Rules order 36 rule (1)(1) Issue:
Whether a plaintiff could apply for Summary Judgment under order 36 rule (1) (1) of the Civil Procedure Rules (2010) where a defence had been entered. Held
3. Order 36 sub rule 1 provided that an application for summary judgment was to be made where a defendant had appeared but not filed a defence, the provision as read with rules 2 and 4 of order 36 showed that the intention of the drafters of that order was to bar any application made for Summary Judgment after a defence had been filed. The mischief sought to be addressed was that a plaintiff who had a genuine and bona fide claim against a defendant
did not have to wait until a defence was filed by the defendant to decide that the defendant had no defence to his claim. 4. The intention of the drafters was that if a party wanted to apply for Judgment after a defence had been filed, such a party was left to use the other provisions of the Rules that allowed summary Procedures i.e. either Order 2 Rule 15 or Order 13. Preliminary objection upheld, application for summary judgment struck out.
178
TRANSFER OF SUIT-JURISDICTION
Atta (Kenya) Ltd v Nesfood Industries Ltd High Court at Nairobi Misc Application No. 247 of 2012 J.M Mutava J. July 5,2012 Reported by Andrew Halonyere, Advocate Issue:
Whether one station of the High Court would lack jurisdiction to try a matter instituted before it on 2. A party seeking to oust the jurisdiction of one station of grounds that the cause of action the High Court in favour of arose in a geographical location another, must go beyond nearer to or within the location the face value of the of another High Court within the tenets of convenience context of section 15 of the Civil stipulated in section 15 of Procedure Act. the Civil Procedure Act. At the minimum, the applying Held party must demonstrate that the right of access 1. The purport of section to justice under Article 15 of the Civil Procedure 48 of the Constitution is Act is to ensure that suits at threat. This should be are filed in the place advanced by placing that is most convenient before the court material and cost effective. The showing that beyond the ingredients of where the pillars of convenience cause of action arose, stipulated in section 15 of where performance of the the Civil Procedure Act, contract to be carried out, there is a verifiable motive where the parties reside on the part of the Plaintiff and where parties carry on to use geographical business are all indications inconvenience to
that a party should not be inconvenienced by the institution of suits.
defeat the substantive ends of justice. A mere apprehension of such a possibility may not suffice. Further, the Applicant should demonstrate that it has come to court at the earliest opportunity with its request. 3. Where a party files suit in a station that is not necessarily the most convenient under the threshold of section 15 of the Civil Procedure Act, that party exposes itself to the punishment of having to shoulder considerably higher costs and must be prepared to meet such costs of the counterparty, in the event that the claim fails.
179
CONSTITUTIONALITY OF PRESIDENTIAL APPOINTMENT OF COUNTY COMMISSIONERS Centre for Rights Education & Awareness (Crew) & others v The Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another High Court at Nairobi (Milimani Law Courts) Justice Mumbi Ngugi June 29, 2012 Reported by Sylvie Nyamunga, Reporter
Constitutional Law constitution(8) and violated the nonal office holders appointment discrimination provisions of of constitutional office holders Article 27. procedure for making such appointments under the Consti- 2. In referring to the principle tution the Office of the Presiof progressive realization dent having appointed county the interpretation in the commissioners-Constitutionality case of Milka Adhiambo of the Presidential appointment Otieno & Another -vof County Commissioners- proThe Attorney General & gressive realization- whether the Others Kisumu High Court appointments were in violation Petition No. 44 of 2011 was of rights within the constitution upheld. It went further with Constitution of Kenya 2010, Arthe view that the phrase ticle 2, 3, 10 ,20 ,129, 131, 132 (2) progressive realisation is applied to those Held: circumstances where an allocation of limited 1. In applying Article 129, 131, resources is required. 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners 3. The appointments failed appointed by the President the test of constitutionality in which only 10 out of by disregarding the 47 were women did not national values and meet the constitutional principles set out at Article requirements at Article 27 10(b) and the principle
contained in Article 27(8) of the Constitution. 4. With regard to public appointments, it is critical to have public participation and consultation. The publication of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and principles of the Constitution. 5. Section 23 and 24 of the former Constitution, were not saved by the Tr a n s i t i o n a l P ro v i s i o n s contained in Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the former constitution.
180
CONSTITUTIONALITY OF A STATUTORY PROVISION PRESCRIBING ACADEMIC QUALIFICATIONS FOR NOMINEES FOR ELECTIVE OFFICES
Hon. Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs & another Petition No 198 of 2011 Consolidated With Petition No. 166 of 2011 And 172 of 2011 High Court at Nairobi (Milimani Law Courts) Justice M. Ngugi June 29 2012 Reported by Sylvie Nyamunga, Reporter
Constitutional law supremacy of the Constitution - constitutionality of the Elections Act Act providing for certain academic qualifications for persons seeking nomination for President, Deputy President, County Governor and Deputy County Governor Elections Act section 24(2)(c) Constitution of Kenya 2010 Article 22, 25, 27 Held: 1. In enacting the new Constitution and with special reference to Articles 1, 10, 27 & 38 among others, the people of Kenya sought to create a future with equal opportunity and equal voice regardless of social status. The legislation in deciding the educational requirements should c o n s i d e r t h e s p e c i fi c social context in which it will be applicable. Article 24 (1) (b) allows for the limitation of certain rights through legislation so long as certain criteria are met. 2. By providing that a person may not be nominated as a candidate for an election unless the person holds a post-secondary s c h o o l q u a l i fi c a t i o n recognized in Kenya, section 22 of the Elections Act was discriminatory and offended Article 27 of the Constitution which provides for the right to equality and freedom from
discrimination. 3. The Act, by excluding everyone who does not have a post secondary q u a l i fi c a t i o n , a t e r m which is not defined in the Act, from running for any elective office established under the Constitution, discriminates directly on the basis of status and social origin. 4. Considering also the statistics on girl-child and women education in Kenya and the cultural gender biases on that subject, the provision also indirectly discriminated on the basis of gender. 5. The provision also violated the Constitution in Article 38 and international law by limiting the right of the citizen to be a candidate for public office and the right to participate in public affairs as recognized in Article 25 of the International Covenant on Civil and Political Affairs. 6. The provision in the Elections Act section 22(2) that persons may be nominated for candidate for election as President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of a degree from a university recognized in
Kenya was not in violation of the petitioners rights or inconsistent with the Constitution. 7. Section 24(2) (c) of the Elections Act which made certain limitations with regard to exercise of political rights by those who acquire citizenship was reasonable and in accord with the Constitution. Limiting eligibility for election as Members of Parliament to those who have been citizens for at least ten years can properly be said to bear a rational connection to a legitimate purpose. 8. The disqualification from contesting in elections of persons who have participated in a public fundraising or harambee during or within eight months preceding a general election did not violate the Constitution. This prohibition had been in statute and its intentions are in line with the attempt to bring in ethics in the conduct of elections. 9. The provision in section 78 of the Elections Act for the payment of a deposit of money by a party coming before the court did not violate the right of access to justice under the Constitution.
181
AN UNQUALIFIED ADVOCATE CANNOT RECOVER COSTS

Equity Bank Ltd v Capital Construction Limited & 3 others Civil Suit No. 645 of 2009 High Court at Nairobi (Milimani Commercial Courts) Justice D. Musinga June 29, 2012 Reported by Sylvie Nyamunga, Reporter
Advocate advocates costs cost with respect to acts done by an unqualified advocate whether such costs are recoverable in law Held: 1. Under Section 32 (1) of the Advocates Act, an advocate is required not to engage in practice on his own unless he has practiced in Kenya continuously on a fulltime basis for a period of not less than two years after obtaining the first practicing certificate in fulltime employment either in the office of the Attorney
General or an organization approved by the Council of Legal Education or by an advocate who has been in continuous full time practice on his own in Kenya for a period of not less than five years. 2. No costs in respect to anything done by an unqualified person can be recoverable in any suit by any person. The law is silent as regards costs payable to a third party on account of work done by a duly qualified advocate who chooses to open up a law firm contrary to Section 32 of the Advocates Act.
3. Article 159 (2) (d) of the Constitution of Kenya, 2010 requires the court to administer justice without undue regard to procedural technicalities. While the submission that a party who seeks to apply for review of an order must extract the order sought to be reviewed and annexe it to the affidavit in support of the application may be right in law, in the new constitutional dispensation, it cannot be a ground for dismissing an application for review that is otherwise merited.
POWERS OF THE DEPUTY REGISTRAR AS A TAXING OFFICER

Cecil G Miller t/a Miller & Co. Advocates v Parin Shariff Miscellaneous Civil Application 166 of 2012 High Court at Nairobi (Milimani Law Courts) Justice GV Odunga June 29, 2012 Reported by Sylvie Nyamunga & Michael M. Murungi, Advocate Registrar of the High Court de- Held: rives his powers under paragraph 10 of the Advocates Remunera- 1. A Judge, being neither the registrar nor a tion Order which provides: deputy/district registrar, The taxing officer for the taxais not a taxing officer tion of bills under this Order shall be the registrar or district or depfor the purposes of the uty registrar of the High Court Remuneration Order. or, in the absence of a registrar, such other qualified officer as the 2. Under Order 49 of the Civil Chief Justice may in writing apProcedure Rules the terms point used in rule 1 is may which gives the discretion As a Taxing Officer, the Deputy Civil Practice and Procedure costs taxation of costs powers of the Deputy Registrar as a Taxing Officer jurisdiction of the High Court with regard to taxation of costs nature of an objection proceedings challenging a Taxing Officers decision Advocates Remuneration Order paragraph 10 Civil Procedure Rules Order 49
182
to the registrar as opposed to the word employed under the Remuneration Order which is shall. It is therefore clear, that whereas the High Court cannot be said to lack jurisdiction in matters of taxation, in light of the clear provisions of Article 165(3) (a) of the Constitution, that jurisdiction is clearly fettered by the provisions of the Advocates Remuneration Order.
3. The consequences of this fetter is that the High Court Judge does not in the initial stages handle matters dealing with taxation but such matters only come to the Judge when an objection is taken under Paragraph 11(2) of the Advocates Remuneration Order. 4. Objection is by way of Chamber Summons. It is strictly speaking not
an appeal though it is in the nature of an appeal. Since the objection is dealt with in the same proceedings in which the decision giving rise to the objection was made, it is a clear manifestation that in exercising his powers under the Remuneration Order, the Taxation Officer is actually exercising the powers delegated to him by the Court.
PARTIES TO A SUIT
Kwame Kariuki & another v Mohamed Hassanali Alimohamed Janmohamed & another Civil Suit 599 of 2011 High Court at Nairobi (Land and Environmental Law Division) Justice R. Ougo June 29 2012 Reported by Sylvie Nyamunga, & Michael M. Murungi, Advocate Civil procedure - The interested 1. For any order to be given party in a suit cannot seek orders to a party in a matter they without first seeking to be enmust first be a party in joined to the suit. The same canthe matter. An interested not be cured by sections 1A, 1B, party in any suit must first 3A of the Civil Procedure Act or seek to be enjoined in Article 159 (2), (d) of the Constithe suit before they can tution. even seek an order. The interested party in this case Held: ought to have sought an order to be enjoined and then sought stay orders. 2. This procedural technicality cannot be cured by sections 1A, 1B, 3A of the Civil Procedure Act of Article 159 (2) (d) of the Constitution. Therefore the application was found to be incompetent.
TRANSMISSION OF PROPRIETARY INTEREST IN A JOINT OWNERSHIP

In The Matter Of the Estate of Edditar Wairimu Kamiri Cause No. 185 Of 2009 High Court of Kenya at Eldoret F. Azangalala J. June 25, 2012 By Njeri Githanga, Advocate Issue:
Whether proprietary interest in a joint ownership can be available for transmission after death of one of the proprietors Held: 1. In view of Section 102 (b) of the Registered Land Act, when the deceased died,
her interest vested in the surviving proprietors jointly since she was registered together with the objectors as joint proprietors. The objectors therefore, in law, became the absolute joint owners of suit property on the demise of their mother. Her interest was not available for transmission to the petitioners or to
anyone else. 2. If the deceased wished to bequeath her interest in the said titles, she should have first, with the agreement of other joint proprietors, severed the joint proprietorship and created common proprietorship. Application dismissed
183
OPERATIONALIZATION OF THE ENVIRONMENT AND LAW COURT

Republic v The Attorney General & 2 others ex parte Benson Irungu Miscellaneous Civil Suit No. 3 of 2012 High Court at Mombasa Justice Kasango, M. June 21, 2012 Reported by Sylvie Nyamunga, Reporter Judicial Review - certiorari and mandamus- Leave to apply for judicial review orders of certiorari and mandamus- Civil Procedure rules-Land Adjudication Actapplication for judicial review orders of mandamus in the matter of operationalization of the Environment and Land Court Act No. 19 of 2011- Environment and Land Court Act- Articles 162 (2) and 165(5) of the Constitution of the Republic of Kenya. Issues:
leged by the applicant. Held: 1. That the period between the enacting of Act 19 of 2011 that brought into force the Environment and Land Court, and the interviewing of candidates for the post in said court was not an unreasonable delay in operationalizing the court. i. Article 259 (3) of the Constitution provides that: 2. No reasonable delay should be taken in the implementation of the Constitution, therefore the order of mandamus should be granted to limit the period within which the respondent shall appoint judges for The Environment
and Land Court. To grant orders of mandamus would not be interfering with the independence of the JSC as argued. The independence of JSC guaranteed in the Constitution does not permit JSC to act contrary to the Constitution. 3. That the inclusion of the Chief Justice was necessary because the applicant was attacking the direction given by the Chief Justice in the gazette notice reproduced above. To that extent this case is distinguishable from the one relied upon by the respondent that is Republic Vs Evan Gicheru (Hon) & 3 Others Nairobi Misc. Application No. 920 of 2005;
Whether the failure to operationalize that court, impeded access to justice to enable the applicant to ventilate his rights as enshrined under Article 40 of the Constitution of Kenya. Whether that power had been conferred to the respondents under Section 7 (2) of Act 19 of 2011, yet they had not operationalized the court hence the violation al-
DUNCAN OTIENO WAGA v THE ATTORNEY GENERAL

High Court, at Nairobi - Constitutional and Human Rights Division Petition No. 94 of 2011 D.S Majanja (J) June 19, 2012 By Njeri Githanga, Advocate Constitutional law - interpretation of the Constitution- prospective application of the constitution of Kenya 2010-where the petitioner was challenging unconstitutional actions occurring before the promulgation of the Constitution -whether the Constitution of Kenya 2010 was retrospective- Constitution of Kenya 2010, Article 263 The petitioner was enlisted as a police officer since 1986. However from 2004, he developed an eye ailment which gradually led to a complete loss of all but very limited peripheral vision. In 2008, he was requested to appear before the Medical Board at the Ministry of Health to show cause why he should not be removed from the force on medical grounds. In its report, the Board recommended that he should be rehabilitated to perform special duties. Despite that, the Commissioner of police retired him on medical grounds at the age of 46 and awarded his dues.
184
Issues
Whether the petitioners constitutional rights under Article 27(4) of the Constitution which prohibits discrimination on the basis of disability were violated where the acts complained of were committed before the Constitution of Kenya 2010 was promulgated. Whether there was violation of section 15 of the Persons with Disabilities Act (No. 14 of 2003) which prohibits discrimination by employers and Article 4 of the Convention on the Rights of Persons with Disabilities.
2010. Article 264 states that on the date of the promulgation, the former Constitution subject to the Sixth Schedule stood repealed. The effect of that provision is that the Constitution is not retrospective, it cannot invalidate, except by express provision what was otherwise legal. The acts of discrimination upon which the petition was grounded occurred within this period meaning that the former Constitution had to be applied to the petitioners case.
discrimination on account of disability. To include a prohibition based on disability would be inconsistent with the language of section 82(2). Therefore the former Constitution was not applicable to the facts and circumstances of the case and therefore the petitioner could not claim breach of his rights. Petition dismissed Gazette Notice declaring Mombasa Republican Council as an organized criminal group unconstitutional Secession can only be achieved by far reaching amendments to the Constitution. All Kenyans will decide this by a referendum under Article 255 of the Constitution. Any secession must be freely given by all Kenyans, if cannot be forced on them
Whether the termination of du- 2. T h e d e fi n i t i o n o f discrimination at section ties on grounds that the peti82(3) of the repealed tioner was visually impaired was Constitution was limited discriminatory. t o c l a s s i fi c a t i o n s o f "race, tribe, place of Held; origin or residence or other local connexion, 1. By virtue of Article 263, the political opinions, colour, Constitution took effect on creed or sex." There the date of promulgation was no protection for which was August 27th,
APPLICABILITY OF DOCTRINE OF RECENT POSSESSION WHERE A PERSON IS NOT IN DIRECT AND PHYSICAL POSSESSION OF THE STOLEN GOODS
John Kioko Mwau v Republic Criminal Appeal No. 32 of 2010 High Court at Machakos Asike Makhandia, J. June 15, 2012 Reported by Nelson K. Tunoi, Advocate
Issue:
Whether the doctrine of recent possession applies in circumstances where a person is not in direct and physical possession of the stolen goods? Criminal practice and procedure - conviction-appeal against conviction and sentence-appellant convicted on count of handling
stolen goods and convicted accordingly-doctrine of recent possession-whether the doctrine of recent possession applies in circumstances where a person is not in direct and physical possession of the stolen goods-whether the appeal had merit Held: 1. In law a person found in
possession of stolen goods shortly after they have been stolen and proffers no explanation for his possession is deemed to be the thief or a handler of stolen goods. Essentially, this is the doctrine of recent possession. 2. A person can either be in direct or constructive possession of stolen items.
185
Direct possession is where a person is found in physical and actual possession of the stolen goods. Constructive possession on the other hand applies where though a person is not in direct and physical possession of the stolen goods, nonetheless retains control over it wherever it
is. 3. To the extent that the appellant still retained possession of the stolen property not though by way of physical or actual possession but by remote control, the doctrine of the recent possession would still apply. It matters not therefore that he was
not upon arrest found in possession of the property and or that the person who was found in physical possession thereof was actually acquitted. Appeal dismissed in its entirety for lack of merit.
REQUIREMENT FOR PRESIDENTIAL CONSENT FOR TRANSFER OF BEACH PLOTS UNCONSTITUTIONAL THE REQUIREMENT FOR PRESIDENTIAL CONSENT FOR TRANSFER OF BEACH PLOTS IS UNCONSTITUTIONAL AND CONTRAVENES ARTICLE 27(1) (4) OF THE CONSTITUTION, WHICH PROHIBITS DISCRIMINATION IN ANY FORM
Mohamed Balala & 10 others vs. the Attorney General, Commissioner of Lands and 6 others High Court at Mombasa Kasango J May 17, 2012 By Njeri Githanga, Advocate
Constitutional Law - fundamental rights and freedoms-right against discrimination- requirement for presidential consent for persons wishing to acquire or dispose 1st and 2nd row beach plots in Mombasa- Whether that requirement was unconstitutional and contravened Article 27(1) (4) of the Constitution of Kenya which prohibits discrimination in any form-Constitution of Kenya, 2010 Article 27(1) (4) Issue
and contravened Article 27(1) (4) of the constitution which prohibits discrimination in any form. Held; 1. The requirement for presidential consent for the disposition or acquisition of 1st and 2nd row beach plots was a contravention of the national values articulated in Article 10 of the Constitution of Kenya, 2010 the rule of law, equity, non-discrimination and transparency. 2. The requirement for presidential consent was an appendage of yesteryears, which had no
place in Kenya due to its discriminative nature. Prohibitory orders against the respondents granted Prospective application of the Constitution of Kenya, 2010 '...the Constitution of Kenya is only prospective and the acts occurring prior to the Constitution are, unless otherwise stated by the Constitution itself, to be judged by the existing legal regime that is, the former Constitution.'
Whether the requirement for presidential consent for persons wishing to acquire or dispose 1st and 2nd row beach plots in Mombasa was unconstitutional
Right to fair administrative action
186
RIGHT TO FAIR ADMINISTRATIVE ACTION Grace A. Omolo v Attorney General and 3 Others Petition No. 252 of 2011 High Court of Kenya at Nairobi Constitutional & Human Rights Division D.S. Majanja May 4, 2012
Reported by Njeri Githanga, Advocate Constitutional Law - constitutional rights and fundamental freedoms right to administrative action right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action failure and delay by public service commission to start disciplinary proceedings in reasonable time-a delay of more than year- where the petitioner had a legitimate expectation that disciplinary proceedings would be completed within six months or within a reasonable time- whether the delay was a breach of the petitioners right to expeditious and fair administration action - Constitution of Kenya, 2010 Article 47 Issue
amounts to breach of right to expeditious and fair administration action Held; 1. The Public Service Commission had the constitutional responsibility of ensuring expeditious a n d f a i r p ro c e e d i n g s in a manner consistent with Article 47 and the values set out in Article 10 and ensuring that public servants are protected as required by Article 236. Where the public servants rights were threatened the Court would not hesitate to intervene. 2. A year of inaction on the disciplinary process was an inordinate delay and infringed on the
petitioner rights protected under Article 47. Based on regulation G33(13) of the Code of Regulation Governing the Civil Service the petitioner had a legitimate expectation that disciplinary proceedings would be completed within six months or at any rate within a reasonable time. 3. To prohibit disciplinary proceedings would amount to granting immunity to the petitioner from the disciplinary process where serious allegation had been leveled against her. Petition allowed in part, Petitioner awarded Ksh. 300,000/00 general damages, disciplinary proceed-
Whether a delay of one year by the Public Service Commission to start disciplinary proceedings
WHETHER OFFEREE IN ALLOCATION LETTERS CAN BE SUBSTITUTED BY A LIMITED LIABILITY COMPANY

Philma Farm Produce & Supplies & 4 others v The Hon. Attorney General &6 others High Court at Nairobi (Constitutional & Human Rights Division) Petition No. 194 of 2011 Justice Majanja, D.S. May 4, 2012 Reported by Sylvie Nyamunga, Reporter ings to commence in 30 days Held: of property or determine the issue of fraud where it is alleged so long as the matters are necessary for the determination of whether the petitioners
Land law - allocation letters - 1. The court when exercising jurisdiction under Article proprietary interest-whether the 22 and 23 is entitled to offeree can be substituted by a make any declaration limited liability company including that of ownership
187
fundamental rights and freedoms protected under the Constitution are threatened, violated or infringed. 2. The offeree in the allocation letter cannot be substituted with a
limited liability company. No allocation letters were issued to the company therefore any payment made by the company was purely gratuitous. It could not create a legal obligation on the part of the Commissioner of
Lands to process titles in the petitioners favour in accordance with the offer nor confer a proprietary interest in the suit properties.
ACCRUAL OF RIGHTS TO PROPERTY When is a mandatory injunction granted at an interlocutory stage? When do the rights of children of a landowner accrue in the property? Peter Nganga Mbugua v Loise Mugure Kiarie & another High Court, at Nakuru. Civil Case No.171 of 2011 May 2, 2012. W.Ouko J.
Reported by C W Lupao, Advocate
Issues:
Held:
When is a mandatory injunc- 1. A mandatory injunction tion granted at an interlocutory can only be granted at an stage? interlocutory stage in very exceptional circumstances When do the rights of children of and only where the matter a land owner accrue in the propis clear beyond doubt and erty? unusually strong.
2. The rights of children of a land owner accrue only upon the death of the landowner. Before the land owner's death, the childrens rights in the property remain inchoate and are not legally enforceable in any court of law.
CONSIDERATIONS FOR PROTECTION AS A REFUGEE

Rada Haile & another v Republic Criminal Revision 18 of 2012 High Court at Meru JA Makau J 24th April 2012 Reported by Michael Murungi, Advocate
International law human rights law - refugee law principal of non-refoulment right not to be forcefully returned to a country or place of danger Refugee Act, 2006 sections 3, 18 - OAU Convention Governing Specific Aspects of Refugees Problems in Africa Article 2
Issue:
Whether the applicants were asylum seekers eligible for consideration for protection as refugees under Section 3 of the Refugees Act, 2006 (No.13 of 2006). Held:
1. Under the Refugee Act, 2006, a person is a statutory refugee if owing to a wellfounded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion
188
is outside the country of his nationality and is unable or owing to such fear, unwilling to avail himself of the protection of that country. Further, no person is to be refused entry into Kenya or returned to any country if as a result the person is compelled to remain or return to a country where he may be subject to persecution or have his life, physical integrity or liberty threatened. 2. Under Article 2 of the 1969 OAU Convention Governing Specific Aspects of Refugees Problems in Africa, to which Kenya
was a signatory, members states of the OAU are required to use their best endeavours consistent with their respective legislation to receive refugees and to secure the settlement of those refugees who for well-founded reasons are unable or unwilling to return to their country of origin or nationality. 3. The two applicants were Eritrean by nationality and were at the time of their arrest asylum seekers, and eligible for consideration as refugees within the provisions of Section 3 of the Refugees Act,
2006(No.13 of 2006). The applicants were entitled to be set free, to be released to the United Nations High Commissioner for Refugees, Nairobi and/ or the Department of Refugee Affairs and remain in Kenya for 90 days to enable them make their intention to remain in Kenya known by appearing in person before the Commissioner for Refugees Affairs or any authorized Officer at the Department of Refugees Affairs and while their refugee status is being considered and regularized by the United Nations High Commissioner for Refugees
ENFORCEMENT OF ARTICLE 81 OF THE CONSTITUTION ON THE ONE-THIRD GENDER RULE

Milka Adhiambo Otieno & another v Attorney General & 2 others Civil Petition No. 33 of 2011 High Court at Kisumu Ali-Aroni, S.J. Chitembwe & H.K Chemitei JJ. February 28, 2012 By C W Lupao, Advocate Issue
Public interest: Enforcement of Article 81 of the Constitution on the one third gender rule. Held: 1. The state and public officers have a duty to deliberately bring into
fruition the spirit and the letter of the constitutional provisions by taking such steps so as affir mative action, programmes and direct state polices to ensure that the aspiration of women and other vulnerable groups are well taken care of, in particular complying with the one third rule in all areas of
representation, and not just in legislative elections. Though injunction not issued to stop the composition of the Kenya Sugar Board, the court nevertheless decreed that when the Board is finally constituted, it must adhere to the third gender representation rule.
189
Rukiya Soud Ali Bin Bashir v Swaleh Mohammed Swaleh & another Civil Suit 266 of 2010 High Court at Mombasa J.B. Ojwang, SCJ. February 24 2012 Reported by Sylvie Nyamunga & Michael M. Murungi, Advocate
TORT OF TRESPASS VIS--VIS POSSESSORY RIGHTS
Tort - trespass-fact of possession 1. The defendants possessory or occupation-relationship berights have a legitimate tween tort of trespass and regbasis and that they cannot istered title to land. The court be contested merely by upholds possessory rights of the pleading the existence of existing proprietary defendant rights. When contesting legitimate possessory Held: rights, the plaintiff must
comply with governing law. 2. A case based on the tort of trespass, thus challenging the possessory rights of the defendant must comply with the law of limitation in relation to the same.
CAN WRONG INVOCATION OF THE LAW LEAD TO DISMISSAL OF A SUIT?

Nancy Nyamira & another v Archer Dramond Morgan Ltd High Court, at Machakos, Civil Suit No. 110 of 2009 Ngugi J. February 15, 2012 By C W Lupao, Advocate Issues: Can wrong invocation of the law lead to dismissal of a suit?
Can Civil Procedure Rules be imported in determination of Arbitration Proceedings?
Held: 1. As long as a partys
invocation of the wrong provision of law is not in bad faith, meant to mislead or otherwise cause injury or prejudice to the other side, the Court will not dismiss an application solely on account of wrong invocation of a provision of the law on which the application is grounded.
2. The Arbitration Act is treated as a self-contained code. The Court would only import the Civil Procedure Rules with great circumspection. It would certainly not do so if the effect would be to defeat the purpose of the Arbitration Act.
WHAT AMOUNTS TO A TRADE UNION? Central Organization of Trade Unions (COTU) v Registered Trustees of the Confederation of Kenya Trade Unions Cause No 1107 of 2011 Industrial Court of Kenya October 5, 2012 S. Radido, J. Reported By Andrew Halonyere, Advocate Issues: i. Whether the Registered Trustees of The Confederation of Kenya Trade Unions (respondent) could be classified as a trade union within the frame work of the labour laws of Kenya. ii. Whether the Industrial Court has jurisdiction to arbitrate on a dispute between a duly registered trade union and a body registered under a different regime of law but whose objectives appear to suggest it is a trade union. iii. Whether the Industrial Court has Jurisdiction in terms of Article 165 (3) (b)
190
of the Constitution as read with Articles 162 (2) and 165(5) (b). Labour law trade unions entity registered under a different regime of law but whose objectives appears to suggest it is a trade union - whether such entity is a trade union under the labour laws of Kenya whether the Industrial Court has jurisdiction to arbitrate on a dispute between a duly registered trade union and such entity
Statutes interpretation of statutes definition of a trade union Constitution of Kenya, 2010, Article 162 (2)- Labour Relations Act 2. The statutory underpinning 2007, section 2 Industrial Court for the jurisdiction of the Act 2011, section 12, (1),(2) Industrial Court is found This was a preliminary objecin section 12 of the tion application challenging the Industrial Court Act, 2011. Industrial Courts jurisdiction to The relevant provision entertain a claim on the ground is section 12(2) which that the respondent was not a is to the effect that an Trade Union within the meaning application, claim or of the labour laws of Kenya. complaint may be lodged with the Industrial Court Held: against a trade union. Section 12(2) however 1. Section 2 of the Labour should not be interpreted Relations Act 2007, in isolation from section indicates that two different 12(1) which gives the types of entities are Industrial Court exclusive contemplated. These are original and appellate registered trade union jurisdiction to determine which is defined as a all disputes referred to it in trade union registered or accordance with Article deemed to be registered 162(2) of the Constitution as a trade union under the and other laws including Act and a trade union disputes between an which is defined as an employers organisation association of employees and a trade unions. whose principal purpose Therefore the Industrial is to regulate relations Court has the jurisdiction to between employees and determine the claim filed employers including any by COTU (K) against the employers organisation. respondent.
The Industrial Court Act, 2011 has in its interpretation part at section 2 defined a trade union to mean a registered association of employees whose principal purpose is to regulate relations between employees and employers and includes an employers organisation. Therefore the respondent, considering its objectives though not a registered trade union, is a trade union none the less for the purposes of the Labour Relations Act.
3. (Obiter) I do not think it is appropriate to attempt to answer the issue on the Constitutional jurisdiction of the Industrial Court at this stage. I am also aware of 2 recent conflicting decisions of the High Court given in Nairobi High Court Petition No.170 of 2012 United States International University (USIU) v The Attorney General & others (2012) eKLR and Nairobi High Court Petition No. 341 of 2011, Samuel G. Momanyi v the Attorney General & Another [2012] eKLR on the jurisdiction of the Industrial Court regarding enforcement and interpretation of the Bill of Rights as implicated in employment and industrial relation matters. I am fortified in not making a decision thereon with the realisation that the deter mination of that question is central to the resolution of the core issues raised in the Statement of Claim herein and raises a substantial question of law as envisaged under section 21 of the Industrial Court Act, 2011 and I do not want to pre-empt such resolution. Preliminary objection dismissed. Respondent ordered to file response on or before October 5, 2012. The registrar of the industrial court directed to place the file after a lapse of ten days before the chief Justice for purposes of assigning an uneven number of judges of the Industrial Court.
191
THE EAST AFRICAN COURT OF JUSTICE APPELLATE DIVISION AT ARUSHA

Appeal No. 4 of 2011
The East African Court of Justice Emmanuel Mwakisha Mjawasi and 748 others and the Attorney General of the Republic of Kenya
H. R. Nsekela P; P. K. Tunoi VP; E. R. Kayitesi, L. Nzosaba and J. M. Ogoola, JJA April 27, 2012
Case History Appeal from the Ruling of the First Instance Division of the East African Court of Justice at Arusha by J. Busingye, PJ; M. S. ArachAmoko, DPJ; and J. J. Mkwawa, J. dated 29th September, 2011 in Reference No.2 of 201O Does the East African Community Treaty have retroactive application; can a First Instance Division make findings of fact with finality at the preliminary stage without a full trial; and is there a procedural irregularity for the Court below to entertain and determine the issue of retroactivity without the appellants' submissions? These were the issues under determination in the reference before the East African Court of Justice in a suit where the appellants, former employees of the East African Community had sought to compel it to pay them their terminal benefits in full after its dissolution. The appellants were Kenyan citi-
zens and former employees of the defunct East African Community (EAC) that collapsed in 1977. Subsequent to the dissolution of the defunct EAC in 1977, the Partner States executed a Mediation Agreement on 14 May, 1984, for the division of the assets and liabilities of the defunct Community. Under that Mediation Agreement, each Partner State undertook the responsibility to pay out of its share of the defunct Communitys assets, the pensions and other terminal benefits of its respective nationals who had been employed by the EAC and its institutions prior to the division date of the assets. The division dates were different for each of the existing institutions as indicated in article 1 (i) of the Mediation Agreement. However, the latest such division date was 30 June 1977. The Mediation Agreement provided that each State would pay its nationals employed by Corporations and retired from active services by the division date the
pensions and other benefits due to them on account of such employment and make provision for the pension rights and entitlement to other benefit accrued as of the division date in favour of its nationals in active service with such at that date. The Kenyan ex-employees who were still in active service on the division date were given the option to take their EAC pension directly; or to join the Kenyan Public Service, including its Parastatals and State corporations. Through this latter option, many ex- employees of the defunct EAC were absorbed into the employ of the Kenyan Public Service. Conversely, those who took the option to retire were paid at once all their benefits, including additional pensions on the basis that their offices had been abolished in the EAC. It was the Appellants case that even though they had been absorbed into the Kenyan Public Service and other State agen-
192
i n m a k i n g fi n d i n g s o f cies and were eventually paid fact with finality at the their terminal dues by those orpreliminary stage without ganizations, they were not paid a full trial; their corresponding dues for the services they rendered to the East African Community; yet they 3. and that there had been a procedural irregularity lost their employment at the EAC in entertaining and pursuant to the abolition of their determining the issue of offices. retroactivity with finality without af fording the The Appellants, therefore, Appellants notice for and averred that they are entitled to an opportunity to present be paid by the Kenyan Governtheir submissions. ment their EAC terminal benefits in accordance with their individual records for the services The EACJ on the issue of whether they rendered to the defunct the Treaty had retroactive apEast African Community before plications held that principle the division date, including their of non-retroactivity was a well pensions, additional pensions, known doctrine. It was generally provident fund, severance al- applied in the jurisprudence of lowances, gratuity, redundancy, Public International Law. It conpayment in lieu of notice, repa- stituted a limit on the scope of triation expenses, loss of office, a Treaty ratione temporis. When benefits outstanding, accumu- a treaty was not retroactive, the lated leave, salary in lieu of no- consequence was that it could tice, real value and compound not apply to any act or fact which took place or any situainterest until full payment. tion which ceased to exist before The appellants had prior to this the date of its entry into force. instituted two suits in the High Retroactivity of a treaty could Court of Kenya, which were later be derived either explicitly from consolidated. The Appellants lat- the provisions of the treaty itself, er petitioned the Kenya National or it could implicitly be deduced Assembly, but also, in vain. It is on from its interpretation. the basis of this background that the appellants filed the reference Upon closely and carefully readseeking declarations that the re- ing the EAC Treaty, the EACJ spondents refusal, neglect and/ failed to find any provisions exor failure to pay them their EAC plicitly stating that the Treaty terminal benefits constituted a could be applied retroactively. breach of Article 6(d) and Article The court also considered its in7(2) of the EAC Treaty. They also terpretation in a bid to deterprayed for an order to compel mine whether the framers of the the Respondent to pay their EAC Treaty had any intention to make the EAC Treaty retroactive, beterminal benefits in full. ing guided in this regard by the The EACJ First Instance Division Vienna Convention on the Law struck out the reference, a de- of Treaties. The Court interpreted cision against which the appel- the provisions of the EAC Treaty lants lodged the appeal raising and placed them against the objectives and purposes of the the grounds that: Treaty finding that the intention of the framers of the EAC Treaty 1. the judges at the first of 2000 was to turn the page of instance had erred in the past and to build a new projlaw in finding that the ect for the future. East African Community did not have retroactive The court also enumerated the application in respect of conditions necessary for the fulthe present case; filling the test of relevant application of the principle of non2. that the judges had erred
retroactivity as: 1. The existence of a Treaty to which the Respondent was a party. In the instant case, there existed the EAC Treaty. 2. T h e a b s e n c e o f a n y intention of the parties t o a p p l y t h e i r Tr e a t y retroactively. In the instant case such absence had been amply demonstrated. 3. An act or fact which took place, or a situation which ceased to exist, before the entry into force of the Treaty concerned. In the instant case the alleged refusal by the Republic of Kenya to pay the terminal benefits of the former employees of the defunct Community in execution of the Mediation Agreement signed in 1984 after the dissolution of the Community in 1977. 4. The entry into force of the Treaty is posterior to the act; fact or situation, which constituted the cause of action against the Respondent. In the case, the EAC Treaty entered into force for Kenya on 7July 2000, after the appellants claim which was already before the Kenyan High Court at Nairobi. 5. The Claimant asking the Court for the application of the Treaty to the Party in respect of the act/ fact which took place or situation which ceased to exist before the coming into force of the Treaty. In the instant case, the Appellants prayed this Court to apply the EAC Treaty to their case. From all the above, the Court found that the instant case met the necessary conditions for the principle of non-retroactivity to
193
be applied. On the second issue of whether the First Instance Division made findings of fact with finality at the preliminary stage without a full trial the EACJ was of the view that the lower court had applied the correct law. The court could not avoid that question. It had to determine it at the outset, before dealing with any other issues. It was not possible to deal with the objection of non-retroactivity without considering the cause of action of the particular case. However, such consideration helped only to situate the objection in a certain period, and did not transform the principle of non-retroactivity into a matter of facts. The EACJ agreed with the respondent that the objection of non-retroactivity was interconnected with the question of jurisdiction. The Court had to consider the question even where the parties themselves failed to raise it. The EACJ recognized in its jurisprudence that for the attainment of substantive justice, a point of law could and had to be raised at any time during the course of the proceedings, preferably at the earliest available opportunity. For these reasons, the second ground of appeal also failed. On the third issue of whether there had been a procedural irregularity in the Court below entertaining and determining the issue of retroactivity without the appellants' submissions, the EACJ held that, given its finding that non retroactivity was a fundamental point of law, it did not need to delve into the appel-
lants sub issue of whether non retroactivity was a point of fact, which the Court below should not have entertained by way of a preliminary point of objection. It was evident from the analysis of the issue, that retroactivity was eminently a point of pure law, which the EACJ was not only entitled to raise on its own motion, but also to entertain as a point of objection that was capable of disposing of the entire case. This ground of appeal accordingly also failed. The EACJ also considered the effects of non-retroactivity to the question of jurisdiction. It noted that this was the first time it had dealt with an issue of non-retroactivity and relied on the jurisprudence of other international courts which would help to illustrate the effects of non retroactivity; particularly so, concerning the consequential, but all-critical question of jurisdiction. It relied on the Ambatielos case (jurisdiction), judgment of July 1st 1952; I.C.J. reports 1952, p.28; Mavrommatis Palestine Concessions (Greece v U. K.), 1924, P.C.I.J., (SER. B) No.3 (Aug.30); and W. T.O., Brazil Measures Affecting Desiccated Coconut, AB 1996. In all the three cases the consequences of a finding of non-retroactivity of a treaty, invariably led to a finding of lack of jurisdiction; and that was the end of the proceedings. Having in mind the effect of non-retroactivity of a Treaty, the point should have been determined before any other issues
in order to avoid the ambiguity contained in the final conclusion of the Ruling of the Court below, which held as follows:
In conclusion, we rule that although the Court has the jurisdiction to hear the Reference and that it is not barred by the doctrine of res judicata or the rule of exhaustion of local remedies, nonetheless, it cannot entertain the Reference on account of the non retrospective application of the Treaty. For the above reasons, EACJ found that the EAC Treaty was non retroactive. It was not applicable to the reference before the EACJ. Consequently, the East African Court of Justice was not clothed with the jurisdiction to entertain it. Nonetheless, notwithstanding the EACJ being a court of justice, the jurisdiction for interrogating the merits (or demerits) of Appellants grievance lay not in the Court, on account of the non-retrospective application of the new EAC Treaty of 2000. That jurisdiction properly lay with the national Courts in as much as the Mediation Agreement of 1984 effectively and definitively moved the management of the assets and liabilities of the defunct Community from the remit of the East African Community, to the realm of the various National States.
194
THE CONSTITUTIONAL COURT OF SOUTH AFRICA Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg, Rand Properties (Pty) Ltd, Minister of Trade and Industry, and the President of the Republic of South Africa with the Centre on Housing Rights and Evictions and the Community Law Centre, University of the Western Cape as amici curiae.
CCT 24/07; [2008] ZACC 1 February 19 2008
MEDIA SUMMARY The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. This case started in Johannesburg when that city applied to the Johannesburg High Court for the eviction of more than 400 occupiers of buildings in the inner city on the basis that the buildings were unsafe and unhealthy. The High Court refused to evict the occupiers, but instead ordered the City to remedy its housing programme which was found to be inadequate. The Supreme Court of Appeal upheld the appeal by the City and granted eviction on condition that the City would provide alternative accommodation to those who would be rendered homeless. Before giving judgment, this Court issued an order requiring the parties to engage meaningfully with each other with a view to addressing the possibilities of shortterm steps to improve current living conditions and of alternative accommodation for those who would be rendered homeless. The parties reached consensus
that the City would not eject the occupiers, that it would upgrade the buildings and that it would provide temporary accommodation. In addition, the parties agreed to meet and discuss permanent housing solutions. An agreement was reached by the parties and made an order of court by this Court. In a unanimous judgment by Yacoob J, this Court decides three issues. Firstly, in giving reasons for the engagement order, the Court held that it is essential for a municipality, to engage meaningfully before ejecting people from their homes if they would become homeless after the eviction. This is mandated by various provisions of the Constitution, including section 26(2). People must be treated as human beings. A court must take into account whether there has been meaningful engagement before granting an order evicting people from their homes. The Supreme Court of Appeal should therefore not have granted the ejectment order in the circumstances of this case where there had been no engagement. Secondly, while the City has obligations to eliminate unsafe and unhealthy buildings, its constitu-
tional duty to provide access to adequate housing means that potential homelessness must be considered by a city when it decides whether to evict people from buildings. Thirdly, that part of the National Building Regulations and Building Standards Act (the Act) that makes it a crime for people who remain in buildings after an eviction notice by the City, but before any order of court for eviction, is unconstitutional. This sanction may serve a legitimate purpose but is constitutionally acceptable only after a court has ordered the eviction. In upholding the appeal this Court declared section 12(6) of the Act to be inconsistent with the Constitution and ordered a reading so that the section can be read as including a proviso that the subsection applies only to people who, after service upon them of an order of court for their eviction, continue to occupy the property concerned. The Court further ordered that the proviso shall not apply to cases in which people have already been convicted of contravening the section. It ordered the City to pay the costs of the applicants.
195
PRESS SUMMARY
10 October 2012
Day and another (Appellants) v Hosebay Limited (Respondent); Howard de Walden Estates Limited (Appellant) v Lexgorge Limited (Respondent) [2012] UKSC 41 On appeal from: [2010] EWCA Civ 748
JUSTICES: Lord Phillips, Lord Walker, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Carnwath
BACKGROUND TO THE APPEALS These two joined appeals raise the question of whether a property used wholly for commercial purposes may qualify as a house for the purposes of legislation governing the right to leasehold enfranchisement (i.e. the right of a lessee in certain circumstances compulsorily to acquire the freehold of the building from his/ her landlord) [1]. In the Hosebay case, the respondents owned the leases of three buildings in central London which had originally been built as separate houses as part of a late Victorian terrace [10]. The leases restricted the use of the houses to use for residential purposes, but on the date when the respondent served notices on the appellants under s.8 of the Leasehold Reform Act 1967 (the 1967 Act) seeking compulsorily to acquire the freehold of the buildings, they were being used wholly as a self-catering hotel [10,13]. In the Lexgorge case, the respondent owned the lease of a five-storey building in central London also originally built as a house [16]. The terms of the
lease restricted the use of the upper two floors of the building to residential flats [18]. On the date when the respondent served a notice under s.8 of the 1967 Act, the building was used wholly for office purposes [17]. The building was listed as a building of special architectural or historic interest, and English Heritages records described it as a terraced house [18]. The issue in both appeals was whether the properties constituted houses within the meaning of s.2(1) of the 1967 Act. This raised two separate but overlapping questions: (i) Were the buildings designed or adapted for living in? (ii) Were they houses reasonably so called? [8] Both elements of the definition were disputed by the appellants in the Hosebay case, but only second element of the definition was disputed by the appellant in the Lexgorge case [8]. The judge at first instance in each case concluded that the buildings were houses for the purposes the 1967 Act, and the Court of
Appeal reluctantly upheld those decisions [1,2]. JUDGMENT The Supreme Court unanimously allows both appeals. It holds that neither property constituted a house for the purposes of the 1967 Act on the date when the relevant statutory notice was served. The judgment of the Court is given by Lord Carnwath. REASONS FOR THE JUDGMENT The decision of the Court of Appeal was not the result intended by Parliament when, pursuant to the Commonhold and Leasehold Refor m Act 2002, it removed the requirements of residence from the 1967 Act [3-5]. As far as possible, an interpretation of the 1967 Act which has the effect of The first element of the definition of house in s.2(1) of the 1967 Act (i.e. designed or adapted
The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
Published with the permission of the United Kingdom Supreme Court
196
for living in) looks to the identity or function of the building based on its physical characteristics, the second element (i.e. a house reasonably so called) ties the definition to the primary meaning of house as a single residence, as opposed to, for example, a hostel or a block of flats [9]. Both parts of the definition need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture or features in a street scene [9]. As to the first part of the definition of house in s.2(1) of the 1967 Act, the words designed
and adapted do not constitute alter native qualifying requirements, despite the literal meaning of the provision [34]. Context and common sense argue strongly a g a i n s t a d e fi n i t i o n tur ning principally on historic design, if that has long been superseded by adaptation to some other use [34]. The words is adapted in s.2(1) refer to the present state of the building and do not imply any particular degree of structural change [34,35]. The external and internal physical appearance of a building should not be treated as determinative of whether it is a house for these purposes, nor should the terms of the
lease be treated as a major factor [41]. The buildings in the Hosebay case were not houses reasonably so called [43]. The fact that they might look like houses and might be referred to as houses for some purposes was not sufficient to displace the fact that their use was entirely commercial [43]. It was unnecessary to decide whether the buildings were designed or adapted for living in [44]. The building in the Lexgorge case was also not a house reasonably so called because it was used wholly for office purposes [45]. The fact that it was designed as a house and is still described
References in square brackets are to paragraphs in the judgment

This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html
NOTE
The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
Published with the permission of the United Kingdom Supreme Court
197
Notes
198
Notes
199
Notes
200
Questionnaire
1. Overall, how satisfied are you with the content of THE BULLETIN? Very unsatisfied Unsatisfied Somewhat satisfied Very satisfied
2. If you rated your satisfaction the content of the journal either as very satisfied, unsatisfied or somewhat satisfied, please let us know what you did not like. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------3. Would you recommend the Bench Bulletin to others? Definitely Probably Might or might not probably not definitely not
4. On a scale of 1 to 10, please rate the quality of the content of the Bulletin, where 1 is very poor and 10 is extremely high ----------------------------------------------------------------------5. What issues would you expect to be carried out in future issues of the Bulletin? ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------6. Please let us know in what areas we could improve on in future ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------The questionnaire can be dropped off at:
National Council for Law Reporting, Milimani Commercial Courts, Ground Floor, Nairobi, Kenya Tel: (+254) 020 2725009, 2724980, Fax (+254) 020 2712694, www.kenyalaw.org
Transforming Legal Information Into Public Knowledge
Subscription Form
Please start my one year subscription (2 issues) for the Bench Bulletin Mr./Mrs./Ms/Dr.___________________/_______________________/________________________ (Last Name) (Middle Name) (First Name) Job Title: ___________________________ Company:___________________________________ Physical Location__________________________________________________________________ Postal address: _______________ City:________________ Postal Code:__________________ Telephone:________________________ Signature: ________________________ Fax: ____________________________________ Date: __________________________________
Please stamp this subscription form if subscription is for a company.

Notes
202
KLR
KENYA LAW
www.kenyalaw.org
NATIONAL COUNCIL FOR LAW REPORTING

REPORTS
Product Catalogue and Price list

Product
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
27
Status
Available Out of stock Out of stock Out of stock Out of stock Out of stock Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available Available
Available
Cost
Product
Status
Costs
Kenya Law Reports 1976 -1980 Kenya Law Reports 1981 Kenya Law Reports 1982 Kenya Law Reports 1983 Kenya Law Reports 1984 Kenya Law Reports 1985 Kenya Law Reports 1986 Kenya Law Reports 1987 Kenya Law Reports 1988 Kenya Law Reports 1989 Kenya Law Reports 1990 Kenya Law Reports 1991 Kenya Law Reports 1992 Kenya Law Reports 1993 Kenya Law Reports 1994 Kenya Law Reports 2000 Kenya Law Reports 2001 Kenya Law Reports 2002 Vol. 1 Kenya Law Reports 2002 Vol. 2 Kenya Law Reports 2003 Kenya Law Reports 2004 Vol. 1 Kenya Law Reports 2004 Vol. 2 Kenya Law Reports 2005 Vol. 1 Kenya Law Reports 2005 Vol. 2 Kenya Law Reports 2006 Vol. 1 Kenya Law Reports 2006 Vol. 2
Kenya Law Reports 2007 Vol. 2
6,000/=
28 Kenya Law Reports 2008 29 Kenya Law Reports 2009 30 Kenya Law Reports (Gender Based Violence) 31 Laws of Kenya Grey Book 32 Land Law Volume 33 Public Finance Volume
Available Available Available Available Available Available Available Available Available Available
4,500/= 4,500/= 4,500/= 7,200/= 7,200/= 7,200/= 4,500/= 7,200/= 7,200/= 1,500/=
3,000/= 3,000/= 3,000/= 3,000/= 3,000/=
34 Family Law Volume 35 Commercial Law Vol. 1 36 Commercial Law Vol. 2 37 Laws of Kenya Land Law CD (featuring new Land Laws) 38 Kenya Law Review 2007 Vol. 1
Available Available Available Available Available Available Available Available Available Available
3,000/= 1,500/= 4,500/= 4,500/= 3,000/= 4,500/= 4,500/= 4,500/= 4,500/= 3,000/=
3,000/= 3,000/=
39 Laws of Kenya Consolidated CD ROM 40 Kenya Law Reports (Gender Based Violence)
3,000/= 41 Kenya Law Reports (Family & Gender) 3,000/= 42 Kenya Law Reports (Environment & Land) Vol. 1 3,000/= 43 Kenya Law Reports (Election Petitions) Vol. 1 3,000/= 44 Kenya Law Reports (Election Petitions) Vol. 2 3,000/= 45 Kenya Law Reports (Election Petitions) Vol. 3 3,000/= 46 Kenya Law Review Journal 2008 - 2010 Vol. II 3,000/= 3,000/= 3,000/= 3,000/= 3,000/= 50 3,000/= 51 4,500/=
4,500/=
47 Kenya Law Reports Consolidated Tables and Digest [1976-1986] 48 KLR Monthly 49 Kenya Law Reports Weekly e-Newsletter Bench Bulletin www.kenyalaw.org
Available Available
500/= Free by email subscription Free Free
Available Always available
Milimani Commercial Courts, 4th Upper Hill Close, off Ngong Rd, P.O. Box 10443 - GPO 00100, Nairobi, Kenya Tel: (+254 020) 2712767, 2719231, 2627228, Mobile: 0718 799 464, 0736 863 309
www.kenyalaw.org

Bench Bulletin Issue 20

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Bench Bulletin Issue 20

Загружено:

Авторское право:

Доступные форматы

The Bench Bulletin

A Publication of The National Council for Law Reporting

THE OFFICICIAL LAW REPORTS OF

Issue 20: July - December 2012

The Bench Bulletin

Transforming Legal Information into Public Knowledge

Issue 19: April - June 2012

Thanks to all Our Partners

THE KENYA LAW REPORTS BENCH BULLETIN

The Hon Mr Justice P. K. Tunoi

Judge of the Supreme Court

Ms Florence Muoti Mwangangi

Law Society of Kenya

Judge of the High Court

Chief Registrar, Judiciary of Kenya

Dean, School of Law, University of Nairobi

Senior Assistant Inspector General Inspectorate of State Corporations

Goverment Printer's Representative

Law Society of Kenya

Issue15: April-June 2011

Bench Bulletin July - December 2012 Issue 20

12 Kenyas Constitutional Transition: The

16 The Interface between Academia and the

18 The High Court as the Model Superior Court:

21 Interim Report of the Judiciary Working

22 Pre-Election Dispute Management:

84 Supreme court 97 Court of Appeal 104 High Court

The Supreme Court of the United Kingdom

Issue 20 | July - December 2012

Our Esteemed Readers

ungi Michael M. Mur Editor/C.E.O

Issue 20 | July - December 2012

xactly one year ago, I presented to the nation the Progress

Report on the First 120 Days of my tenure as Chief Justice

Issue 20 | July - December 2012

THE KENYA LAW REPORTS BENCH BULLETIN

Issue 20 | July - December 2012

Issue15: April-June 2011

THE KENYA LAW REPORTS BENCH BULLETIN

Issue 20 | July - December 2012

C M, Murungi. illustration: E. Obare

Issue 20 | July - December 2012

Issue15: April-June 2011

THE KENYA LAW REPORTS BENCH BULLETIN

What they saidWHAT THEY SAID

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

KENYAS CONSTITUTIONAL TRANSITION: THE CHALLENGE OF UNIVERSITY, STATE, SOCIETY RELATIONS

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

Issue 20 | July - December 2012

The Kenya Law Reports Bench Bulletin

THE INTERFACE BETWEEN ACADEMIA AND THE BENCH

Issue 20 | July - December 2012