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CONTENTS
BENCH BULLETIN
01 Editors Note
02Chief Justices Opening
Remarks at the First Annual
Conference of The NCAJ and
the Council of Governors on the
Administration of Justice
p.
08
p.
20
p.
21
Ag Editor /CEO
| Longet Terer |
Head of Law Reporting
| Cornelius Lupao |
Contributors
| Monica Achode | Linda Awuor | Cornelius Lupao | Wambui Kamau | Janette Watila | Mutindi Musuva |
| Mutindi Musuva | Eric Odiwuor | Edna Kuria | Wambui Kamau | Nelson Tunoi | Emma Kinya |
| Collins Kiplimo | Phoebe Ayaya | Lydia Midecha | Andrew Halonyere | Martin Andago | Teddy Musiga |
Victor Kipyegon | Beryl Ikamari | Dudley Ochiel | Lisper Njeru | Emily Nakhungu | Caroline Wairimu |
Mary Waruguru | Ruth Ndiko | Naomi Mutunga | Julie Mbijiwe | Thomas Muchoki | Humphrey Khamala |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
The Council
Mr Evans Monari
Advocate, Law Society of Kenya
Ms Florence Muoti Mwangangi
Advocate, Law Society of Kenya
Ms Christine Agimba
Deputy Solicitor General, State Law Office
Longet Terer
Ag Editor/CEO
Mr Jeremiah M Nyegenye
Clerk of the Senate Represented by Mrs Consolata
Munga
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.
ii
6
This Work by National Council for Law Reporting (Kenya Law) is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0).
Editors Note
Ag Editor/CEOs Note
t is yet another year full of promise and possibilities and we at Kenya Law
look forward to a year in which our local jurisprudence shall be developed
even further.
The year 2015 is the fifth year from the date of the promulgation of the
Constitution of Kenya 2010 and as such it is an important milestone in the
implementation process of this Constitution. The Fifth Schedule anticipated
that the most critical legislation (listed therein) should have been passed and
enacted by August of this year. We are keeping a close eye on this process
and ensuring that our database of Laws of Kenya, which contains all the
legislation that is passed by Parliament, is updated and useful for the benefit
of all citizens and more particularly, legal scholars and practitioners.
As we commence the year the words of John D. Rockerfeller ring true, that
every right implies a responsibility; every opportunity an obligation; every
possession, a duty. Our objective is to make use of every opportunity that
has been granted to us so that we can discharge our core responsibility of
making legal information accessible to all Kenyans.
Longet Terer
Ag EDITOR
Issue 28, January
- March
2015
Editors
Note
Issue
January- -March
March 2015
2015
Issue
26,28,
January
CJs Message
CJs Message
In answering these questions our fidelity to the Constitution must remain. Article 187 (1)
provides for a function or power of government at one level to be transferred to a government
at the other level by agreement between the governments if its performance would be more
effective that way. There are only two conditions: first, arrangements must be put in place to
ensure that the transfer of a function is accompanied by the requisite resources, and secondly,
the constitutional responsibility for the function remains where the Fourth Schedule places it.
This is one of the issues that I hope this Conference will address conclusively with respect to
the administration of justice.
Friends, let me speak briefly to an issue that looks so simple yet quite poignant - dialogue.
The dearth of dialogue in this country evidences the death of common sense. Each time our
country has been perched on the horns of a dilemma -- such as how to decisively deal with
terrorism and other security threats while upholding the rights guaranteed in the Constitution
-- dialogue has enabled us to strike the right balance. We have educated each other, appreciated
each others perspectives, confluenced on public interest as the overriding concern as guided by
the Constitution we all swore to protect. Our deliberations are characterized by candour but
always tempered with civility.
This then is the arena into which I welcome you -- a space where we can dialogue. We meet
here as patriots and servants of the people in whose name we hold our respective high offices.
Our purpose is to lay aside our personal persuasions and engage with the crises that confront
the citizenry with a view to delivering irreversible relief for the hurdles they encounter in their
daily lives.
We are midstream through the most important transition in our countrys history, perhaps only
comparable in scale to the changeover from the colonial administration to the independent
government in 1963. A defining feature of our constitutional transition is establishment of
devolved government.
We are fast approaching the deadline for the national government to restructure the provincial
administration to accord with and respect the system of devolved government. This transition
shall, no doubt, place more responsibilities on county governments in addition to those already
outlined in the Fourth Schedule of the Constitution. As leaders of devolved governments, you
bear a bigger responsibility in inoculating these nascent governments from the ailments of
bad governance that have traditionally assailed the national government since independence.
Corruption, ethnicity, clannism, personal rule, poor planning, patriarchy must not be allowed
to take root in these new governments. You would rather be a one-term Governor of a
clean government than a two-term Governor of a government that rates highest on the bad
governance index.
Let us be clear: When courts pronounce themselves on the meaning of the Constitution and
interpret the law, the Judiciary is not taking sides; it is merely laying down the law. When the
Judiciary hosts dialogue meetings with the Senate, the Council of Governors, the National
Assembly, or the National Security Agencies, it is not taking instructions; it is leading in
constructive engagement. This is the spirit of dialogue and consultation in national and public
interest that I would like all of us to embrace. In the adversarial nature of Kenyas legal system,
decisions will not always go our way but that is no excuse to act and respond in a parochial
manner, especially when those decisions are very well argued and reasoned in law.
One only needs to examine the number of times the courts have decided against the Judicial
Service Commission for proof of our claim to impartiality. The JSC, in spite of being responsible
for judges discipline, has not reacted with mindless rage and anger. Instead, it has appealed
those decisions when it disagrees and accepted them where it agrees. We all have a duty to obey
court orders.
Our politics, though characterised by numerous healthy competitions, also has a penchant
for degenerating into unnecessary confrontations characterised by threats and ego trips that
sometimes have nothing to do with the issues in contention. It is thoroughly entertaining in
a tragic-comic sense, but it also saps national energy and squanders the goodwill for building
national institutions. I dont think we have a licence to lead, or practice politics, or formulate
policy in a zone free of evidence, decency and civility.
Public offices whether in the Executive at the national and county level, the Legislatures
and the Judiciary or the independent offices -- were not created as weapons to frustrate
the dreams and ambitions of the Kenyan people but to advance them through a judicious
execution of our constitutional duties and mature exercise of powers bestowed upon us.
And I would like to salute the Council of Governors for working in a very bipartisan
manner on issues of national and county interests. In this approach lies the promise of
the de-ethnicisation of Kenyas politics. County Governments are arguably nursery beds
of Kenyas future presidents. Governments that are geographically proximate should
promote inter-governmental collaboration at the regional level.
There are still unsettled questions on the parameters of partnership between the national
justice sector institutions and the County Governments and I believe that this forum will
deal with them conclusively. The Judiciary is of the view that the Constitution and other
statutes do not permit the creation of County Courts in the model of the defunct City/
Municipal Courts.
Further, we need to clarify the role of the Office of the Attorney General within the context
of devolution, as well as the institutional framework for the provision of legal services by
the County Attorneys, whom I am happy to add the Judiciary has helped to train. Other
issues that merit discussion include the institutional and procedural mechanisms for the
gazettement of county legislation, and mechanisms for collaboration required between
county governments and the Office of the Director of Public Prosecution.
Last, but not least, a conversation on the provision of correctional services, as well as
the proposal to improve the rehabilitation of offenders within a wider human rightscentred framework on governance is necessary. Ladies and gentlemen: These questions
are important, and they are urgent. We cannot find answers to them by talking at each
but by reasoning together. There is no doubt that devolution is working. Everywhere you
look, the face of Kenya is changing because of the Constitution giving people more say in
the management of their affairs. The assembly line of justice must also provide support
for devolution and this Conference, in addressing the still lingering questions, is a first
step in that direction. And it is my proposal that this reasoning be an annual permanent
calendar event between the Council of Governors and NCAJ.
Thank you.
Dr Willy Mutunga,
D. Jur, SC, EGH Chief Justice /
President of the Supreme Court of Kenya
Law Reporting
@mykenyalaw
Mykenyalaw
www.kenyalaw.org
Concurring opinion of
Supreme Court judge N S
Ndungu in
Mumo Matemu v Trusted
Society of Human Rights
Alliance & 5 others
Civil Application No 29 of
2014
17th June 2015 is the international switch off date from analogue to digital
platform, Supreme Court affirms
The 1st, 2nd and 3rd respondents act of commencing a scheme of public advertisements which
led to retaliatory actions (namely, cancellation of the temporary authorization and withdrawal
of digital frequencies) by the 1st appellant was like they had never submitted their longrunning dispute to the Supreme Court for final resolution. The two sides ( i.e., the 1st appellant
on the one hand, and the 1st, 2nd, and 3rd respondents on the other hand) had engaged in
conduct the effect of which was to undermine the integrity of the Courts Judgment. As the Court
had determined the dispute, and issued Orders with which the parties were to comply within a
specified period, it behoved the parties to not only comply, but to desist from any actions such
as would tend to undermine the authority of the Court. Thus, the parties should have dutifully
awaited their turn to address the Court, regarding their compliance with its Orders
Court Declares Section 24 of the HIV and AIDS Prevention and Control Act
Unconstitutional
Section 24 of the Act was in contravention of article 31 of the Constitution to the extent that the
right of others to disclosure of such information had the likelihood of prejudicing the right to privacy
unless corresponding obligations were placed on the recipients of the information with respect to
adherence to the confidentiality principle. It was therefore imperative that the duty to disclose the
information, being a limitation on the right to privacy, strictly fell within the confines of article 24
of the Constitution.
Justice M N Nduma in
Jared Juma v Kenya
Broadcasting Corporation &
4 others
Industrial Court at Nairobi
Judicial Review No 24 of
2013
Steps
Translation is not a matter of words only: it is a matter of making intelligible a whole culture.
Anthony Burgess
By Wambui Kamau
Laws of Kenya
Taita Taveta Women Representative, Joyce W. Lay being presented with Kenya Laws publications by
Longet Terer- Ag. Chief Executive Officer
Laws of Kenya
Taita Taveta Women Representative, Joyce W. Lay when she paid a courtesy call to KenyaLaws offices. To her left is Longet Terer - Ag. Chief Executive
Officer and Wambui Kamau Waweru- Teamleader, Laws of Kenya department.
10
What you help a child to love can be more important than what you help him to learn. ~African proverb
Laws of Kenya
11
Introduction
the
Laws of Kenya
12
Laws of Kenya
13
Laws of Kenya
14
Laws of Kenya
15
(b)
(c)
Governing
Arbitration
Laws of Kenya
16
Party Autonomy
Non-intervention by court
7.
Kompetenz-kompetenz
Flexibility
Finality of Awards
Enforceability
Laws of Kenya
16
Laws of Kenya
17
2. Office of
the
County
Printer
Bill,
2014
Kenya Gazette Supplement No. 158 (Senate Bills No. 42)
The principal object of this Bill is to establish the office of
the county printer in each of the forty-seven counties. The
establishment of this office is necessitated by the provisions of
the County Governments Act, 2012 which makes reference to
publication of Bills, Acts and other documentation in a county
gazette. The Act does not however provide for the establishment
of the Office of a County Printer that would publish such gazettes.
This Bill therefore seeks to give full effect to the requirement for
the publication of county gazettes.
C) ACTS
1. Statute Law (Miscellaneous Amendments) Act, 2014
Kenya Gazette Supplement No. 160 (Acts No. 18)
This Act amends various Acts of Parliament including:
Interpretation and General Provisions Act (Cap. 2); Advocates
Act (Cap. 16); Criminal Procedure Code (Cap. 17); Prisons Act
(Cap. 90); Retirement Benefits Act (Cap. 197); among others.
2. SecurityLaws (Amendment) Act, 2014*
Kenya Gazette Supplement No. 167 (Acts No. 19)
This Act amends various Acts of Parliament relating to security.
Some the Acts amended include: Public Order Act (Cap. 56);
Penal Code (Cap. 63); Criminal Procedure Code (Cap. 75);
Extradition (Contiguous and Foreign Countries) Act (Cap. 76);
Evidence Act (Cap. 80); Prisons Act (Cap. 90); Registration of
Persons Act (Cap. 107); among others.
*NOTE: On 23rd February, 2015 the High Court of Kenya
ruled that several sections of the Security Laws (Amendment)
Act 2014 were unconstitutional.
3. Physiotherapists Act, 2014
Kenya Gazette Supplement No. 169 (Acts No. 20)
This Act makes provision for the training, registration and
licensing of physiotherapists, regulates their practice and
provides for the establishment, powers and functions of the
Physiotherapy Council of Kenya. The Act commenced its
operation on 14th January, 2015.
4. Law Society of Kenya Act, 2014
Kenya Gazette Supplement No. 170 (Acts No. 21)
This Act seeks to establish the Law Society of Kenya; to provide
for the objects and conduct of the affairs of the Society; to provide
for the establishment of the Advocates Client Compensation
Fund; among other objectives. The Act, which commenced its
operation on 14th January, 2015 also repealed Law Society of
Kenya Act (Cap. 18).
18
Laws of Kenya
DATE OF PUBLICATION
L E G I S L A T I V E CITATION
SUPPLEMENT NUMBER
157
L.N. 157/2014
5th December, 2014.
161
173
PREFACE
19
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20
Mr. Longet Terer, the Ag. CEO Kenya Law gives a speech during the All Kenyan Moot Court
Competition
heldJanuary
at the Kenyatta
University School Of Law Parklands on 21st Feb 2015.
BB
Issue 28,
- March 2015
21
HR Department
22
I.C.T Department
23
A Golden Day
I Found you and I lost you,
All on a gleaming day.
The day was filled with sunshine,
And the land was full of May.
A golden bird was singing
Its melody divine,
I found you and I loved you,
And all the world was mine.
I found you and I lost you,
All on a golden day,
But when I dream of you,
dear, It is always brimming May.
I.C.T Department
24
Cases
*Kindly note that all deliveries out of Nairobi County shall attract a separate shipping charge.
mykenyalaw
@mykenyalaw
Mykenyalaw
25
ii.
iii.
iv.
Held
1. The Supreme Court had jurisdiction to determine
the appeal. That however, did not dispose of the
preliminary duty that fell on every Court before
delving into the disputed questions to ascertain
that it had the jurisdiction to entertain the matter.
Although the dispute resolution mandate by the
terms of the Constitution in articles 1(3) and 159
fell to the Judiciary, its due discharge required
the proper ascertainment of jurisdictional
competence, before any segment of the Judiciary
entered upon its task.
2. Whether or not the High Court had jurisdiction
in respect of the electoral-governance issues
raised, was primarily a constitutional question
entailing the interpretation or application of the
Constitution, and by article 163(4)(a) thereof,
appeals would lie from the Court of Appeal
to the Supreme Court as of right in any case
involving the interpretation or application of the
Constitution.
3. A Courts jurisdiction flows from either the
Constitution or legislation, or both. Therefore, a
Court of law could only exercise jurisdiction as
conferred by the Constitution or other written
law. It could not arrogate to itself jurisdiction
exceeding that which was conferred upon it by
law.The Supreme Courts jurisdiction was defined
in the Constitution particularly in article 163(3).
4. The legal principle in the Joho case gave no
basis for impugning the legality of the High
Court petition. That by no means recants the
Joho principle on electoral time lines. It is but a
statement on the facts of the instant case, that the
ascertainment of critical moments in an election
process is vital in the count of time. The Supreme
Court was unable to make a finding that the
petition before the High Court was filed outside
the period of 28 days allowed by the Constitution.
Moreover, the larger interests of justice, and the
safeguard of those processes which attend the
expression of the electoral will, dictate in the case
that the propriety of the petition be recognized.
5. An election petition is a suit instituted for the
purpose of contesting the validity of an election,
or disputing the return of a candidate, or claiming
Cases
26
Cases
that the return of a candidate was vitiated on the
grounds of lack of qualification, corrupt practices,
irregularity or other factor. Such petitions rest on
private political or other motivations, coalescing
with broad public and local interests, they teeter
in their regulatory framework from the civil to
the criminal mechanisms and they cut across a
plurality of dispute settlement typologies.
6. The overriding objective of the Elections Act was
to functionalize and promote the right to vote.
That required a broad and liberal interpretation
of the Act, so as to provide citizens with every
opportunity to vote, and to resolve any disputes
emanating from the electioneering process.
The primary duty of the election Court was
to give effect to the will of the electorate and
consequently, the Court was to investigate
the nature and extent of any election offence
alleged in an election petition. Accordingly, the
happenings that touched on the due conduct
of the election process came as proper items of
agenda in the tasks of an election Court.
7. The proceedings before an election Court were
neither criminal nor civil. While the election
Court had the competence to look into offences
that were criminal in nature, such as bribery and
treating of voters, its inquiries on the relevant
instances of election offence did not constitute a
criminal trial, with its dedicated procedures and
safeguards.
8. Election petitions fall neither within the realm
of civil law nor that of criminal law. However,
the legal framework for electoral dispute
settlement conferred upon the Court a quasicriminal jurisdiction which was not part of the
established criminal code. Being derived from the
fundamental elements of the criminal law, which
imposed strict penalty in respect of prohibited
acts, and which was attended with established
trial safeguards, such quasi-criminal offences as
were provided for in the electoral law, too, were
required to be strictly proved, as a basis for any
penal consequences.
9. Bribery is an electoral offence. It is also a criminal
offence in ordinary life. Being such, proof of the
same must be by credible evidence and nothing
short of proving this offence beyond reasonable
doubt will suffice. There is no distinction
between bribery in a criminal case and one in
an election petition. Bribery involves offering,
giving, receiving, or soliciting of something of
value for the purpose of influencing the action of
the person receiving. Under the Act, bribery is
an election offence under section 64 and both the
giver and the taker of a bribe in order to influence
voting are guilty of the offence upon proof. On
account of this quasi-criminal aspect of bribery
in elections, the offence is to be proved beyond
any reasonable doubt. The petitioner has to
adduce evidence that is cogent, reliable, precise
and unequivocal, in proof of the offence alleged.
27
Cases
28
Cases
filing of the petition arose. That duty was linked
to the Commissions constitutional obligation
under article 88(4) of the Constitution to conduct
and supervise elections for any elective body or
office established by the Constitution.
25. Disqualification of a person from the electoral
process, upon a finding of guilt, could only
be made pursuant to articles 99(2) (g) and (h),
99(3) of the Constitution, and section 24 of the
Elections Act, and could only be effected after the
completion of an appellate process on the charge
in question, and not before. The provisions of
article 99 and Section 24 specifically of article
99(2) (g) and 99 (2) (h)) were incapable of a
complex interpretation process and, clearly
appear to govern the process of disqualification
at the time of nomination, and of registration
as a candidate for the election. They affect the
nomination of persons, and the clearance of those
persons by the electoral Commission to contest
the seat for Member of Parliament. Article 99 and
section 24 thus cover pre-existing (at the time of
registration) and supervening (at the time of the
election) grounds for disqualification.
26. While it has been urged that every person has
the right to contest in an election, in the terms
of article 38 of the Constitution that right is not
unlimited. Justifiable and reasonable limitations,
such as those set out under articles 24 and 99 of
the Constitution were clearly applicable.
27. It is an indelible principle of law that the
proceedings before an election Court are sui
generis. They are neither criminal nor civil. The
parameters of that jurisdiction are set in statute
(the Elections Act). As such, while determining an
election matter, a Court has to act only within the
terms of the statute as guided by the Constitution.
28. An Election petition was not an action at
Common Law, nor in Equity. It was a statutory
proceeding to which neither the Common Law
nor the principles of Equity applied but only those
rules which the statute made and applied. It was a
special jurisdiction, and a special jurisdiction had
to be exercised in accordance with the statute
creating it. Concepts familiar to Common Law
and Equity have to remain strangers to election
law unless statutorily embodied. A Court has
no right to resort to them on considerations of
alleged policy because policy in such matters as
those relating to the trial of election disputes is
what the statute lay down.
29. Section 62 lay out the offence of treating, specific
to a candidate. Section 64 on the other hand lay
out the ingredients for the offence of bribery, also
specific to candidates. While those two sections
defined the ingredients of the cognizable offences
of treating and bribery, section 67 prescribed
the sentences for those offences. Sections 62
and 64 needed to be read together with section
67, in order to complete the components of the
offences. The specific mention of candidate in
29
iii.
iv.
v.
vi.
vii.
Orders
i.
ii.
Issues
I.
II.
Cases
Cases
30
Supreme Court affirms the unconstitutionality of section 76(1)(a) of the Elections Act
Hassan Nyanje Charo v Khatib Mwashetani & 3 others
Civil Application No. 23 of 2014
Supreme Court of Kenya at Nairobi
Ibrahim and Ojwang, SCJJ
December 8, 2014
Reported by Phoebe Ayaya & Kipkemoi Sang
Brief Facts
The applicant sought a review of a Court of Appeal ruling
refusing to certify his intended appeal as one involving
a matter of general public importance. The same was
set down for hearing but the respondents filed a notice
of preliminary objection on the grounds that the Court
lacked jurisdiction to hear and determine the matter, as
it originated from proceedings that were a nullity, and
thus, void ab initio; and that the petition from which the
application for review emanated, was filed out of time,
and in contravention of Article 87(2) of the Constitution
of Kenya, 2010.
BB Issue 28, January - March 2015
31
ii.
iii.
iv.
Cases
32
Cases
case; Lisamula case and Lemanken Aramat v. Harun
Meitamei Lempanka & Two Others [2014]eKLR)
5. Reading-into legislation might have been a new
phraseology in the forensic language of the Court;
but the ultimate object touched on by the South
African Case, was not entirely different from the
object of section 7(1) of the sixth schedule of the
Constitution of Kenya, 2010 which declared the
validity of all laws in force immediately before
the effective date, to continue in force and
remain to be construed with alteration, adoption,
qualifications and exceptions necessary to bring
into conformity with the Constitution . (National
Coalition for Gay and Lesbian Equality and Others
v. Minister of Home Affairs and Others (CCT10/99)
[1999 ZACC}
6. The position was clear for the laws that were
enacted after the promulgation date, of the
Constitution of Kenya, 2010. Article 2(4) provided
that any law, including customary law, that was
inconsistent with the Constitution was void to
the extent of the inconsistency, therefore, any act
or omission in contravention of the Constitution
was invalid.
7. The inevitable inference resolved into the
principle that the Constitution of Kenya, 2010
did not envisage or create a legal vacuum, and
all process regulated by law were to continue
in progress as signalled by the Constitution.
The Supreme Court was duty bound to signal
a direction in respect of the reading-into for
section 76(1) (a) of the Elections Act, on the
basis of the persuasive authority from the South
African jurisdiction in the case of National
Coalition for Gay and Lesbian Equality. The
adoption of such an alternative principle, was not
proper for the present case since the statute in
question was enacted after the promulgation of
the Constitution of Kenya, 2010. (Communications
Commission of Kenya & Five Others v. Royal Media
Services Ltd & Five Others [2014] eKLR).
8. Since the Election Act 2011 was enacted after
the promulgation of the Constitution of Kenya,
2010, section 76(1) (a) was void ab initio. If
a statute enacted after the inception of the
Constitution was found to be inconsistent, the
inconsistency would date back to the date on
which the statute came into operation in the face
of the inconsistent Constitutional norms. An
order declaring a provision of a statute invalid
by reason of inconsistency with the Constitution
automatically operated retrospectively to the
date of inception of the Constitution. (Sias Moise
v. Transitional Local Council of Greater Germiston,
Case CCT 54/00, Justice Kriegler)
9. Section 3 of the Supreme Court Act, 2011,
gave the Supreme Court the mandate to assert
the supremacy of the Constitution and the
sovereignty of the people of Kenya and provide
authoritative and impartial interpretation of the
Constitution. Article 94(1) of the Constitution of
33
Brief facts
The Trusted Society of Human Rights Alliance, the 1
Respondent, a Non-Governmental Organization lodged
a suit, in public interest, to challenge the appointment
of Mr Mumo Matemu as the Chairperson of the Ethics
and Anti-Corruption Commission at the High Court.
At the time the suit was lodged at the High Court, the 1st
Respondent was duly registered as a Non-Governmental
Organization.
st
ii.
Cases
Cases
34
Held
35
Held:
1. Extension of time was a discretionary and a very
powerful tool which should be exercised with
abundant caution, care and fairness. It should be
used judiciously and not whimsically to ensure
that the principles enshrined in the Constitution
were realized.
2. The Supreme Court in Nicholas Kiptoo Arap
Korir Salat v. Independent Electoral and Boundaries
Commission& Others(the Nick Salat case laid down
the following principles to consider in exercising
its discretion to extend time:
i.
Issues:
i.
ii.
ii.
iii.
iv.
v.
vi.
vii.
Cases
36
Cases
to extend time was provided for by Rule 53 of the
same Court Rules. These Supreme Court Rules
were enforced by the Supreme Court as provided
by article 163(8) of the Constitution.
4. The Supreme Court was a new court in the
Kenyan legal system and its modus operandi
was still not conversant to most litigants and
members of the bar at large. While the Nick Salat
case (supra) the Supreme Court on its own motion
moved to correct the anomaly after noting
that the counsel for the applicant had cited the
old Supreme Court Rules, 2011, in the instant
case, it was the advocate for the applicant who
noted the anomaly and took steps to correct it.
Though he may have opted for a longer route of
withdrawal and not amendment, the Court took
into consideration the principles in article 159(2)
(d) of the Constitution to focus on substantive
justice in disregard to procedural technicality in
that case.
5. The applicants complied with the substantive
requirement and filed a notice of appeal within
time. However due to what they confessed to be
some inadvertent errors, the notice of appeal had
apparent errors and they withdrew it. Without
appearing to sanction the errors on the face of
the notice of appeal, it was not in doubt that the
notice of appeal served its substantive purpose:
the respondents were informed of the appellants
intent to appeal and any subsequent proceedings
The Supreme Courts jurisdiction to entertain appeals from the Court of Appeal
Peter Odiwuor Ngoge T/A O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni T/A Namada & Co
Advocates & 725 others
Petition No 13 of 2013
Supreme Court of Kenya at Nairobi
K H Rawal, DCJ, P K Tunoi, M K Ibrahim, J B Ojwang & N S Njoki, SCJJ
November 25, 2014
Reported by Beryl A Ikamari
Brief facts
The main suit concerned 6000 former employees, of
Kenya Breweries Limited, whose employment contracts
were terminated pursuant to a restructuring process. It
was decided that the suit would be filed as a representative
suit in which four Plaintiffs were selected to prosecute
the suit on behalf of all the other Plaintiffs. At the time
of filing the suit, the Plaintiffs were represented by the
firm of Ngoge & Associates Advocates and a notice,
concerning the suit, was issued to all interested parties as
per Order 1 Rule 8(2) of the Civil Procedure Rules 2010.
In response to the notice, some persons sought to be
enjoined as Plaintiffs and they appointed the firm of J H
Kinyanjui & Co Advocates to represent them while others
sought to appear in person.
Mr Ngoge of Ngoge & Associates Advocates raised an
objection against Mr Kinyanjuis appearance in the suit.
The High Court heard the objection and allowed Mr
Kinyanjui to continue to offer legal representation in the
matter. Mr Ngoge appealed against that decision at the
BB Issue 28, January - March 2015
Court of Appeal.
The remedies Mr Ngoge sought at the Court of Appeal
included an injunction and a stay of execution. The Court
of Appeal granted the stay of execution which was to be
in effect until the dispute on legal representation was
sorted. In response, Mr Ngoge filed a Petition of Appeal
at the Supreme Court.
In the Petition of Appeal at the Supreme Court, Mr Ngoge
sought damages from the Respondents, claiming that
there had been violations of constitutional provisions at
the High Court and the Court of Appeal. The Respondents
objected to the appeal on grounds that leave had not been
sought and granted for the appeal to the Supreme Court
and the Supreme Court lacked jurisdiction to entertain
the matter.
In the Petition of Appeal at the Supreme Court, Mr
Ngoge enjoined himself together with Mr Namada and
Mr Kinyanjui (all of whom were acting as advocates for
the parties to the suit), as parties to the Petition of Appeal.
His basis for such a joinder of parties was that there had
been breaches of his rights and his clients fundamental
37
iii.
iv.
Cases
Cases
38
17th June 2015 is the international switch off date from analogue to digital platform,
Supreme Court affirms
Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 4 others
Supreme Court at Nairobi
Petition No 14 of 2014
Mutunga CJ, P Rawal DCJ, Tunoi, Ibrahim, Ojwang, Wanjala and Njoki, SCJJ
February 13, 2015
Reported by Andrew Halonyere
Brief facts:
The object of the mention before the Supreme Court was
to determine whether and to what extent its orders had
been complied with. On September 29, 2014 the Supreme
Court had inter-alia issued the following orders;
i.
That the 1st appellant ( Communications
Commission of Kenya) in exercise of its statutory
authority, shall, in consultation with all the
parties to the suit, set the time-lines for the digital
migration, pending the international Analogue
Switch-off Date of 17th June, 2015.
ii.
Issues
i.
ii.
39
Circumstances in which a person may apply for re-trial at the High Court.
Tom Martins Kibisu v Republic
Petition No 3 of 2014
Supreme Court of Kenya at Nairobi
P. K. Tunoi, M. K. Ibrahim, J. B. Ojwang, S. C. Wanjala & N. S. Ndungu, SCJJ
November 28, 2014
Reported by Teddy Musiga
Brief facts
The appellant faced disciplinary charges at the Armed
Forces for which he was found guilty of all the charges
and awarded cumulative punishment accordingly.
Aggrieved by the conviction, he appealed to the Defence
Council as was provided in the repealed Armed Forces
Act. However, that appeal did not proceed to the stage
of formal hearing. After his conviction, he published a
document Order serial no. 14 of 2004 whose effect was
to enable him to avoid the penalties that had been awarded
against him in the disciplinary case. His Orders were
eventually cancelled by another Order No. 15 of 2004, by
the Corps Commander thus enabling the implementation
of the penalties. The commander of the Kenya Army then
convened a court martial to try him for the offence of
conduct prejudicial to the good order and discipline of
the Armed Forces contrary to section 68 of the Armed
Forces Act.
However, before the proceedings at the Court martial
commenced he filed judicial review application for orders
to stay the intended court martial proceedings. He was
granted leave for 21 days stay on condition that he filed
and served the respondents with the orders, failing which
the orders would have lapsed. He did not serve the court
martial and they proceeded with the trial which eventually
convicted him to a one year term of imprisonment and
dismissing him from the armed forces. That decision
prompted him to appeal to the High Court challenging
the court martials decision.
Justices Lesiit and Makhandia upheld the court martials
decision by finding the appellant guilty of gross
misconduct and insubordination. The appellant then
moved to the High court again to seek revision of the
judgment of Justices Lesiit and Makhandia which was
III.
Cases
40
Cases
Held
1. The appellant properly invoked the jurisdiction
of the Supreme Court because of the following
reasons. Firstly, his case satisfied the requirements
of article 50(6) of the Constitution of Kenya,
2010 for a new trial before the High court on
the grounds of new and compelling evidence.
Secondly, the appeal sought a determination
whether section 115(3) of the repealed Armed
Forces Act stood in conflict with the new
constitution after its promulgation in 2010.
Those two issues were proper questions for
the Supreme Court under article 163(4) (a) of
the Constitution being questions involving the
interpretation or application of the Constitution.
2. Article 50 of the Constitution of Kenya, 2010
was an extensive provision that guaranteed the
right to fair hearing, and as part of that right, it
offered to persons convicted of certain criminal
offences another opportunity to petition the
High court for a fresh trial. Such a trial entailed a
reconstitution of the High court forum, to admit
charges and conduct a re-hearing, based on new
evidence. The window of opportunity for such
a new trial was subject to two conditions. First,
a person had to have exhausted the course of
appeal, to the highest court with jurisdiction to
try the matter. Secondly, there had to be new
and compelling evidence.
3. Under article 50(6) of the Constitution of Kenya,
2010, new evidence which was not available at
the time of the trial and which despite exercise of
due diligence, could not have been availed at the
trial; and compelling evidence implied evidence
that would have been admissible at the trial, of
high probative value and capable of belief and
which if it was adduced at the trial, would have
probably led to a different verdict. Therefore, a
court considering whether evidence was new and
compelling had to ascertain that it was prima facie,
material to or capable of affecting or varying the
subject of the charges, the criminal trial process,
the conviction entered or the sentence passed
against the accused person.
4. In the instant case, there was no new and
compelling evidence to warrant a new trial under
article 50(6) of the Constitution of Kenya, 2010.
That was because, lack of service of stay orders
against the convening, sitting or conducting
of the court martial had nothing to do with the
framed charges, proof of which could alter an
appeal before the High court, the verdict of the
conviction or the subsequent sentence imposed
by the court martial.
5. The issue of service of the order of the court was
by no means any evidentiary information to be
viewed as unavailable to the court martial, at the
time of conducting the trial and reaching a verdict
of conviction. Although that would have been
relevant at the time of the trial, it would not have
been of probative value and would not support
a different verdict. Consequently, the appellant
failed to satisfy the court that his case merited the
invocation of article 50(6) of the Constitution,
BB Issue 28, January - March 2015
41
III.
IV.
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ii.
iii.
iv.
v.
vi.
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adopting and enacting the Constitutionthe people of
Kenya recognize the aspirations of all Kenyans for a
government based on the essential values of human
rights, freedom, democracy, social justice and the rule
of law. The Kenyan people exercised their sovereign
and inalienable right to determine the form of
governance of the country.
45
ii.
iii.
Constitutional Law fundamental rights and freedoms enforcement of fundamental rights and freedoms - right to fair
hearing freedom from torture, cruel and degrading treatment
claim where one appellant challenged the award of damages
granted by trial court for breach of fundamental rights and
freedoms Repealed Constitution of Kenya, sections 70, 72,
74, 77, 83
Held:
1. Section 83 of the former Constitution of Kenya
provided for constitutionality of detention
without trial in so far as it legitimized part 3 of
the Preservation of Public Security Act.
2. As to whether the trial court erred by not
awarding damages for he violation of the
appellants rights in Nakuru Criminal case no.
2273 of 1993, the trial court did not misdirect
itself, did not apply wrong principles, did not
consider extraneous matters or failed to take into
account relevant matters. The instant court was
not satisfied that the complaints raised before the
trial court were such as to bring his case outside
the general purview of the tort of malicious
prosecution, if at all, and was therefore unable to
accept as valid the criticism levelled against the
trial court for concluding as it did. The instant
court was not able to find that there was anything
in the proceedings that remotely approached
the egregious abuse and virtual negation of the
fair trial guarantee to justify the courts award of
damages.
3. Torture was outlawed under section 74 of the
former constitution, article 7 of the International
Covenant on Civil and Political Rights (ICCPR),
the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or
Punishment. That absolute ban of torture was
a principle of jus cogens and was a peremptory
norm of international law.
Torture is a
deplorable departure from civilised norms and a
grave diminution of and derogation from human
dignity thus deserving of opprobrium could not
therefore be gainsaid.
4. Whereas prison conditions as picture-squarely
described by the appellant left a lot to be desired
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There is no Right of Appeal from a decision of the High Court on an arbitral award under
section 35 of the Arbitration Act
Nyutu Agrovet Limited v Airtel Networks Limited
Court of Appeal at Nairobi
Civil Appeal (Application) No 61of 2012
Karanja, Mwera, Musinga, Minoti & Mohammed, JJA
March 6, 2015
Reported by Andrew Halonyere
appeal.
Brief Facts
A dispute arose between the applicant and the respondent
relating to distribution of telephone products. The dispute
was referred to a sole arbitrator in accordance with the
terms of a contract between the parties. The arbitrator
made an arbitral award in favor of the respondent.
The arbitration agreement expressly provided that the
decision of the arbitrator shall be final and binding on the
parties. Aggrieved by the award, the applicant applied,
under section 35 of the Act, to set aside the award. The
High Court in setting aside the arbitral award held that
the arbitrator had gone beyond the dispute referred to
him by the parties.
Aggrieved by the decision of the High Court, the
respondent brought an appeal before the Court of Appeal.
In response, the applicant filed an application seeking to
strike out the appeal on the basis that no appeal lay to the
Court of Appeal.
In the instant case a five judge bench was constituted
because there had been no judicial concurrence as to
whether the Court of Appeal had jurisdiction to hear an
appeal from a decision of the High Court given under
section 35 of the Act. There had been divergent views on
the issue and it was deemed necessary that a five judge
bench be constituted to consider whether the Court of
Appeal had jurisdiction to hear such appeals.
Issues
i.
ii.
iii.
47
Cases
48
Cases
15 When
parties
expressly
exclude
court
intervention in their arbitration agreement,
then they should honour it and embrace the
consequences. They could not turn round and
claim that the very law they had freely chosen to
govern their business was unconstitutional. That
was what the respondent was trying to do.
16 Finality as a concept in arbitration was shared
worldwide by states that had modeled their
Act on the UNICITRAL Model like Kenya. The
common thread running through all those Acts
was the restriction of court intervention except
where necessary and in line with the provisions
of the Act. Sections 35 and 37 of the Act were
wholly exclusive except where a particular clause
invited the intervention of the Court.
17 Obiter Our courts must therefore endeavor to
remain steadfast with the rest of the international
community we trade with that have embraced
the international trade practices espoused in
the UNICITRAL Model. If we fail to do so, we
may become what Nyamu J. (as he then was) in
Prof. Lawrence Gumbe & Anor v - Hon.Mwai
Kibaki & Others, High Court Misc. Application No.
1025/2004 referred to as; A Pariah state and
could be isolated internationally.
Per Musinga J A
18 Whereas article 3 of the Constitution generally
gave the Court of Appeal jurisdiction to hear
appeals from the High Court, that per se did not
accord a party to arbitral proceedings a right of
appeal save as provided for under the arbitration
agreement and/or the Act. Article 164 of the
Constitution did not confer an automatic right
of appeal in respect of each and every decision
of the High Court. There was a clear distinction
between the general jurisdiction of the Court to
hear appeals from the High Court as conferred
to it by the Constitution and a right of appeal
which was vested on a litigant by statute and
that right was not absolute, it might be ousted or
circumscribed by statute.
19 The appellants right to appeal to the Court of
Appeal was not constitutionally guaranteed and
could not be curtailed by a statutory limitation.
20 Article 159(c) of the Constitution enjoined the
Judiciary to promote alternative forms of dispute
resolution including reconciliation, mediation
and arbitration, to that extent, arbitration was
constitutionally recognized as one of the methods
of resolving disputes and where parties choose
that route, the guiding law was the Arbitration
Act
21 Kenya had adopted the UNCITRAL Model Law
on international commercial arbitration which
stipulated that courts of law could not intervene
in an arbitral process except in circumstances as
provided by the law. Courts had instead played a
supportive role. Kenyas Arbitration Act provided
for both domestic and international arbitration
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50
Cases
that both sections 10 and 35 of the Act did not
allow an appeal to the Court of Appeal. However,
where the circumstances provided for in section
39(3) arose, there was a right of appeal, irrespective
of, or in spite of the prohibition of appeals by
section 10 and 35. The phrase Notwithstanding
under sections 10 and 35 in section 39(3) meant
that an appeal was permitted under section 39,
without being affected by the bar or prohibition
of appeals in sections 10 and 35. Those words in
section 39 could not, with respect have been the
basis for arguing that there was a right of appeal
recognized in section 35. Properly interpreted, it
meant quite the very opposite, namely that there
was no right of appeal conferred by sections 10
and 35.
Show me your friend and I will show you your character. ~ African proverb
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ii.
iii.
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53
Court recognizes the rights of intersex persons & recommends legislation on the issue.
Baby A (Suing through the mother E A) & another v Attorney General & 5 others
Petition 266 of 2013
High Court at Nairobi
Constitutional and Human Rights Division
Isaac Lenaola, J
December 5, 2014
Reported by Beryl A Ikamari
Brief facts
The Petitioner was born with both male and female
genitalia and a Lab Report had a question mark in the
column indicating the Petitioners gender. The Petitioner
was not issued with a birth certificate. In the Petition
lodged in Court through the Petitioners mother, the
Petitioner claimed that the question mark in the medical
documents offended the Petitioners rights to legal
recognition, human dignity and freedom from inhuman
and degrading treatment.
Additionally, the issue on whether the suit was res judicata
because of the existence of a prior decision on the same
subject matter was raised. The prior decision referred
to was the decision made in R M v Attorney General &
others, Petition No 705 of 2007, on the question of the
recognition of intersex children.
Issues
i.
ii.
iii.
iv.
Cases
Cases
54
Constitutional Law - fundamental rights and freedomsenforcement of fundamental rights and freedoms-recognition
of the rights of intersex persons-Constitution of Kenya 2010,
article 27(4).
Statutes - statutory interpretation-the meaning of the
term sex with respect to an individuals gender-whether
intersex was a categorization within the term sex-Births
and Deaths Registration Act (Cap 149), section 2a.
Civil Practice and Procedure - res judicata-applicability
of the principle of res judicata-requirements for the
existence of a prior decision on the same subject matter
in a dispute between the same parties-whether the
existence of a prior decision on the same subject matter
would make the principle of res judicata applicable to a
suit-Civil Procedure Act (Cap 21), section 7.
Section 2 of the Births and Deaths Registration Act (Cap
149);
prescribed particulars means
(a) as to any birth, the name, sex, date and place
of birth, and the names, residence, occupations
and nationality of the parents;
Held
1. Res judicata would apply where the issues in
the matter before the Court were directly and
substantially in issue in a different matter between
the same parties, wherein a decision had already
been issued. While the suit touched on the subject
matter of the legal recognition and protection of
intersex children, which was an issue determined
in the prior case of R M v Attorney General &
others, Petition No 705 of 2007, the parties were
not the same and the issues in the prior suit went
beyond the legal recognition and protection of
intersex children.
2. Baby A was born with both male and female
genitalia and the categorization of a child as either
male or female could not be done with respect to
Baby A. Baby A was therefore an intersex child.
3. Under section 2a of the Births and Deaths
Registration Act (Cap 149), in order to register the
birth of a child the prescribed particulars which
were to be provided included the sex of the child.
Neither the Births and Deaths Registration Act
nor the Interpretation and General Provisions
Act (Cap 2) defined the term sex. However, Form
1, (The Register of Births) in the Schedule to the
Registration of Births and Deaths Act (Cap 149)
indicated that the sex of a child was either male
or female. There was no categorization offered
for a child with both male and female genitalia.
4. Article 27(4) of the Constitution of Kenya
2010 prohibited discrimination on any ground
including sex but it did not define the term sex.
Generally, sex would refer to the categorization
of persons into either male or female organisms
based on their reproductive functions and
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Court grants orders to suspend certain sections of the Security Laws (Amendment) Act
Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & 7 others
Petition No 628 & 630 of 2014
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
G V Odunga, J
January 2, 2015
Reported by Beryl A Ikamari
Brief facts
The Security Laws (Amendment) Act, No 19 of 2014, was
enacted by the National Assembly and assented to by the
President of the Republic of Kenya on December 19, 2014.
In response, two Petitions (Petition 628 & 630 of 2014)
were lodged in Court to challenge the constitutionality of
the Act. The Petitions were consolidated.
With respect to the operationalization of the Act, while
the Petition was still pending in Court, two applications
were made. The 1st Petitioner (CORD) sought the
suspension of a selection of provisions within the Act
while the 2nd Petitioner (Kenya National Commission
on Human Rights KNCHR) sought the suspension of the
operationalization of the whole Act.
Issues
I.
II.
III.
IV.
V.
Cases
56
Cases
authority of the Constitution or of any law, was
inconsistent with or in contravention of the
Constitution.
10. For conservatory orders to be granted, the
applicant would be required to demonstrate the
existence of a prima facie case and also to show
that unless the conservatory orders were granted
there was real danger which could be prejudicial
to the Applicant.
57
Court orders parties to agree on how to balance security concerns and the rights of the
residents following the Lamu Curfew
Muslims for Human Rights (Muhuri) and 4 Others V Inspector General of Police and 2 Others
Petition No. 62 Of 2014
High Court of Kenya at Mombasa
Edward M. Muriithi J.
December 23, 2014.
Reported by Njeri Githanga
Brief facts
The case before the court was predicated upon alleged
contravention of the Bill of Rights by the imposition of
a curfew by the Inspector General of Police, in Lamu
purportedly in exercise of powers conferred upon the
former office of Police Commissioner under the Public
Order Act cap 56. It was reasoned that the Constitution of
Kenya, 2010 did not contemplate imposition of curfews
and the Inspector General of Police was not empowered
to declare a curfew and that, in any event, the extent of the
curfew in terms of duration and area was unlawful. It was
also contended that the imposition of a curfew specially
affected and discriminated against the residents of Lamu
on account of their religion, socio-economic activity and
geographical climatic realities.
The petitioners hence sought for an order of injunction
lifting the curfew imposed by the Inspector general
of Police as an interim relief pending the hearing and
determination of the main Petition.
Issues
I.
II.
III.
IV.
V.
Cases
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59
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II.
III.
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Cut off age of forty five (45) years for the position of
Managing Director in a parastatal was discriminatory
Application for orders of certiorari dismissed.
Circumstances in which owners of social media platforms are liable for defamatory
statements published in their accounts
CFC Stanbic Bank Ltd v Consumer Federation of Kenya & another
High Court at Nairobi
Civil Case No 315 of 2014
A Mabeya J
December 5, 2014
Reported by Andrew Halonyere
Brief facts
The Plaintiff lodged a plaint before the High Court
alleging that it had been defamed by the Defendant and
claimed for damages for libel, aggravated damages and
for a permanent injunction to restrain the defendant from
publishing in its web-site http://www.cofek.co.ke an article
entitled How true is this allegation on Stanbic Bank Juba
Branch on Foreign Exchange Transactions. In the said
article, there were allegations against the Plaintiffs Bank
,Juba branch, of lack of integrity in Foreign Exchange
dealings, breach of Bank of South Sudan and Central
Bank of Kenya regulations, arrogance by the Plaintiffs
Foreign Exchange dealer, breach of consumer rights
and lack of integrity and responsibility by the Plaintiffs
management team.
Together with the Plaint, the Plaintiff filed an application
under sections 1A and 1B of the Civil Procedure Act and
order 40 of the Civil Procedure Rules seeking various
injunctive orders against the Defendant.
The defendant opposed the application by submitting
that it was neither the author nor originator of the article
complained of. The defendant further submitted that it
was the legitimate expectation of the anonymous author
that the defendant would cause incisive investigations
on the issues raised in the article and that the article
constituted fair public comment and was not defamatory
of the Plaintiff.
Issues
I.
II.
III.
Cases
62
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based on the balance of convenience.
2. In an action for defamation, the claimant had to
establish three things.
a. that the words complained of were
defamatory, that is, they tend to lower the
claimants reputation in the estimation of
right thinking members of society;
b. the words refered to the claimant
c. that the words were malicious.
3. The words complained of referred to the plaintiff.
For a bank of international or even national
repute, such allegations were not light. Any person
or corporate entity in the world of commerce
reading such information might be slow in
dealing with such an entity. An entity which does
not mind the welfare of its customers, which has
rogue employees and whose management team is
irresponsible and lacks integrity is not an entity a
right thinking member of society would easily be
willing to deal with. Therefore on a prima facie
basis the words could have been defamatory.
63
(2) The Minister shall furnish the Court with a copy of each
collective agreement that has been lodged with the Minister
pursuant to this Rule, and the Minister may also furnish the
Court with such information and comments as the Minister
considers necessary.
(3) Where the Minister objects to the registration of a
collective agreement, a copy of the agreement furnished
to the Court shall be accompanied by a statement of the
objection giving reasons for objection.
(4) The Court shall maintain a register of collective
agreements that have been accepted by the Court for
registration.
(5) A collective agreement shall not take effect until it has
been registered by the Court.
Held:
1. The substantive law on Collective Bargaining
Agreements was contained in Section 60 of the
Labour Relations Act. Indeed that was the Section
cited by the Minister as he presented the collective
bargaining agreements to Court for registration
and therefore, the Collective Bargaining Agreement
attained its legal enforceability upon registration by
the Industrial Court. Prior to that, it was an intention
of parties that could be referred to, but could only
attain the status of legally binding and enforceable
upon registration by the Court.
2. The parties to the agreement in dispute had entered
into the agreement in 2012 yet the agreement was
presented in 2014 contrary to statute and thus
in breach of the law. In the premises the Court
deferred the registration of the CBA for 45 days
to allow parties to renegotiate and present it for
registration in short shrift. The law had provided
that there would be no vacuum and the existing
CBA would hold for and ought to continue to have
the full force of the law pending the resolution of the
dispute within 45 days.
3. The dispute had demonstrated that the best time
to register the CBA was shortly after its conclusion
as a party to the agreement may over time begin
to entertain a different idea or encounter different
circumstances. There was nothing to bar the Union
or employer from presenting the agreement for
registration in 2012 or 2013. As a result of the 2 year
delay the employer had had a change of mind in
regard to some of the issues initially agreed.
Each party to bear their own costs.
Cases
Cases
64
ii.
iii.
65
Court rules that due process was not followed in impeaching Kisumu County Assembly
Speaker
Kisumu County Assembly Service Board & another v Kisumu County Assembly Public Service Board & 4 others
Industrial Petition 297 of 2014
Industrial Court at Kisumu
H S Wasilwa, J
January 12, 2015
Reported by Nelson K Tunoi
Brief Facts:
A petition challenging the procedure for removal
from office of the Kisumu County Assembly Speaker
was brought before the court. The petitioners sought
declarations, inter alia, that the 1st respondent (Kisumu
County Assembly Public Service Board) through its
purported committee of the Whole House did not have
power to suspend, dissolve or carry out the statutory
functions of the petitioners and that the actions of the 1st
respondent purporting to disband, dissolve and suspend
the 1st petitioner (Kisumu County Assembly Service
Board) and its membership as constituted amounted to
an abuse of its constitutional and statutory mandate.
The 2nd petitioner submitted that her removal as County
Assembly Speaker was done in contravention of the
provisions of the law and without being accorded a
reasonable opportunity to respond to any allegations
levelled against her, hence infringing on her fundamental
rights and freedoms. She further submitted that the
proceedings of the County Assembly were being
conducted in contravention of the Constitution and
the power donated to the Assembly as a state organ to
exercise its sovereign power of the people of Kenya.
The respondents on the other hand submitted that the
2nd petitioner was legally impeached after being accorded
a chance to be heard on accusations levelled against her
but declined to appear. They contended that no rights of
the parties in the petition were infringed upon as claimed
by the 2nd petitioner as all provisions of the law were
observed in dealing with the parties.
Issues:
i.
ii.
iii.
iv.
v.
Cases
66
Cases
Further, article 260 of the Constitution defined
a person to include a company, association or
other body of persons whether incorporated or
unincorporated. Therefore, a person was beyond
a natural human being and included corporate
bodies. Going by the letter of the law and in
recognition of the fact that the 1st respondent
was a body corporate who also had members
with rights, the 1st petitioner had locus to file the
petition.
2. The sittings of the County Assembly on the
specified dates in the petition were not within
the confines of the law, if any. Section 21 of the
Election Act detailed out how the election of the
Speaker were to be held as per the First Schedule
and the Standing Orders of the County Assembly.
There was no indication that the provisions of
the law were adhered to.
3. The law on elections and removal of a Speaker of
a County Assembly was set out in the Elections
Act, the Constitution of Kenya and the County
Government Act. The law envisaged that a notice
was to be served to the 2nd petitioner before her
removal as Speaker, which notice was to be signed
by at least one third of the members of the County
Assembly. Further, the notice was to be served at
least 48 hours before the Motion was debated.
In the circumstances, the 2nd petitioner was not
legally, lawfully or constitutionally removed as
the Speaker of the County Assembly as she was
Court Rules that the Functions of the County Public Service Boards Have Not Been
Usurped By the Capacity Assessment and Rationalization of the Public Service (CARPS)
Programme
Kenya County Government Workers Union v Kisumu County Government & 91 others
Petition 270 of 2014
Industrial Court at Kisumu
H S Wasilwa, J
January 12, 2015
Reported by Nelson K Tunoi
Brief Facts:
The petitioner (Kenya County Government Workers
Union) was a body representing the workers and staff of
all the County Governments (respondents) in Kenya, and
claimed to have exclusive right in handling of staff issues
serving under the respective County Governments and not
the National Government. Following the commencement
of the Capacity Assessment and Rationalization of the
Public Service (CARPS) programme by the respondents,
the petitioners filed a petition contending that the actions
of the respondents would breach or threaten to breach
the rights of the petitioners and its members.
The petition sought, inter alia, conservatory orders
of injunction against the respondents jointly and
severally through any committees established under
the CARPS programme from dealing with deployment,
redeployment, termination or promotion or in any
manner dealing with staff issues that were members of
the petitioner and workers of the County Government
who were respondents, and that pending the hearing
BB Issue 28, January - March 2015
ii.
iii.
iv.
67
Whether
the
CARPS
programme
discriminated upon certain members of the
petitioner.
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68
ii.
iii.
iv.
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Cases
constitutional scheme, as the Senates legislative
role was limited to matters concerning County
Governments. Through its participation in the
legislative process, the Senate was seized of the
opportunity to discharge its primary mandate
which was to protect the interests of the counties
and County Governments as mandated under
article 96(1) of the Constitution. It was a means
of ensuring that the countys voice was heard and
considered at the national forum and the interests
of counties and their governments secured. That
way, the sovereign power of the people was duly
exercised through their democratically elected
representatives.
8. While concurrence of the Speakers of the
National Assembly and the Senate was significant
in terms of satisfaction of the requirements of
article 110(3) of the Constitution, it did not by
itself oust the power of the Court vested under
article 165(3)(d) where a question was raised
regarding the true nature of legislation in respect
to article 110(1). The court had to interrogate the
legislation as a whole and determine whether in
fact the legislation met the constitutional test of a
matter concerning County Governments.
9. The laws contemplated under section 2(3)(b) of
the sixth schedule to the Constitution were the
laws relating to devolved government that were
required to be enacted by the sixth schedule and
chapters eleven and twelve of the Constitution
within the period stipulated in the fifth schedule.
The CDF (Amendment) Bill was not one of the
laws contemplated under section 14 of the sixth
schedule as it was an amendment to an existing
legislation.
10. The forms of facilitating an appropriate degree
of participation in the law-making process were
capable of infinite variation. What mattered was
that at the end of the day a reasonable opportunity
was offered to members of the public and all
interested parties to know about the issues and
to have an adequate say. What amounted to a
reasonable opportunity would depend on the
circumstances of each case.
11. In order to determine whether there had been
public participation, the court was required to
interrogate the entire process leading to the
enactment of the legislation from the formulation
of the legislation to the process of enactment of
the statute.
12. During the legislative process, amendments
to the Bill might have been moved during the
Committee Stage and to have held that every
amendment moved had to undergo the process of
public participation would negate and undermine
the legislative process. The amendment moved
was in substance, within the parameters of what
had been subjected to public participation during
the review process. The public was involved in
the process of enactment of the CDF Act through
the Task Force and review panel initialy set up by
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70
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principle of separation of powers and to that
extent, the CDF Act was unconstitutional.
Further, to the extent that the Act conflated the
executive and legislative functions, it obfuscated
accountability mechanism envisaged under
the Constitution underpinned by the doctrine
of separation of powers. In that respect, the
Act violated key national values and principles
enunciated under article 10 of the Constitution,
to wit, good governance and accountability.
28. Members of Parliament have a specific and
clearly defined role under the Constitution.
That role does not include involvement bodies
whose functions entail co-coordinating, project
approvals or actual implementation of projects
as those functions were executive in nature.
It was also untenable to permit Senators, who
were charged with the constitutional role
of oversight over county resources from the
national government to the county government,
to convene and chair County Project Committee
as established under Part VII of the CDF Act.
29. Parliament was constitutionally bound to enact
legislation that assists and strengthens the county
governments in the discharge of their roles rather
than one that undermined them, as the CDF
Act effectively did. The organs of the national
government must trust and utilize the machinery
that the Constitution now ordains. Even with the
noblest of intentions, any Act of Parliament had
to meet the threshold of constitutionality for it to
withstand the test of validity.
30. The purpose of the CDF (Amendment) Act
was to amend a law that violated the division
of functions between the national and county
governments. Therefore an amendment to the
Act would have necessitated the input of the
Senate. The purpose of involving the Senate was
to ensure that counties, as far as possible, get to
effectively participate in the legislative business
at the national level in matters substantially
affecting interests of county governments. That
calls for the court to look beyond the substance
or purpose of the statute expressed in the text.
31. The court had to unbundle the specific provisions
of the proposed legislation to see if and to what
extent they satisfied the criteria set out under
article 110(1) of the Constitution. An amendment
to the Act affecting the manner in which money
was allocated to the CDF was the core part of
the Act. As the availability of money affects
the financing and implementation of projects
that fall within the competence of the County
Government, the provision could not be severed
without undermining the entire Act. The CDF
(Amendment) Bill was not an insubstantial
amendment. Therefore the CDF (Amendment)
Bill was unconstitutional for want of involvement
by the Senate
32. Devolution was a panacea to addressing the
developmental and equity gaps that existed in
71
72
Brief facts
The Applicant instituted a suit to challenge a public
procurement process for the provision of security
services to the Judiciary. The suit was instituted via a
Memorandum of Appeal as an appeal from a decision of
the Public Procurement Administrative Review Board,
from which a review had been sought concerning the
same procurement process for security services. The
Applicant also made an application for a stay to restrain
the Respondent (the Judiciary) from entering into
contracts for the provision of security services with
Lavington Security Services Ltd and Bedrock Security
Services Ltd.
Lavington Security Services Ltd and Bedrock Security
Services (the Interested Parties) responded through a
Preliminary Objection contending that the appeal against
the decision of the Public Procurement Administrative
Review Board could only be made via Judicial Review in
accordance with the procedure set out in order 53 of the
Civil Procedure Rules 2010.
Issues
i.
ii.
Civil Practice and Procedure - Preliminary Objectionthreshold to be met in raising a Preliminary Objection-whether
the points raised in a Preliminary Objection required certain
facts to be ascertained.
Statutes - Statutory interpretation-whether a challenge to
the decision of the Public Procurement Administrative Review
Board could only be made via Judicial Review proceedingsPublic Procurement and Disposal Act (Cap 412C), section 100;
Civil Procedure Rules, 2010, Orders 42 & 43.
Section 100 of the Public Procurement and Disposal
Act (Cap 412C);
100. (1) A decision made by the Review Board shall, be
final and binding on the parties unless judicial review
thereof commences within fourteen days from the date
of the Review Boards decision.
(2) Any party to the review aggrieved by the decision of
Cases
Cases
100(2) of that Act referred to an appeal whilst
the definition offered to the term appeal in the
Blacks Law Dictionary was to the effect that an
appeal included judicial review.
6. The intention of the drafters of the Public
Procurement and Disposal Act (Cap 412C) was
that decisions relating to procurement were to be
expedited and concluded within the shortest time
possible. The procedure given did not envisage
73
ii.
74
6. In addressing the first issue in the context of a The Attorney General is directed to fast-track the enactment of
parental order, the primary aim of section 54 of
the United Kingdoms Human Fertilization and
Embryology Act 2008 was to allow an order to
be made which had a transformative effect on
the legal relationship between the child and the
applicants. The effect of the order was that the
child was treated as though born to the applicants.
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2,500/=
This Publication features the summaries and the full text of all the
decisions made by the Supreme Court in the year 2011 & 2012
Available at Our Offices
ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Ngong Road, Upper Hill P.O Box 10443 - 00100, Nairobi - Kenya
Tel: +254 (020) 2712767, 2011614 ,2719231 Mobile: +254 718 799 464, 736 863 309
www.kenyalaw.org
mykenyalaw
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Mykenyalaw
National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary
76
UK Supreme Court Rules that Health Care Workers Right to conscientiously object to
treatment does not extend to the delegation of that work to another co-worker
Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland)
[2014] UKSC 68 on appeal from [2013 CSIH 36]
Supreme Court of the United Kingdom
Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge
December 17, 2014
Report by Monica Achode
Background To The Appeals
The UK Abortion Act 1967 as amended set out the
circumstances in which the termination of a pregnancy
could lawfully be brought about and required the
termination to take place in a National Health Service
Hospital or an approved clinic. Section 4(1) established
a right of conscientious objection. It provided that no
person would be under any duty, whether by contract or
by any statutory or other legal requirement, to participate
in any treatment authorized by the Act to which they had
a conscientious objection unless, pursuant to subsection
(2), it was necessary to save the life or prevent grave
permanent injury to the physical or mental health of a
pregnant woman.
The respondents were two experienced midwives
employed at the Southern General Hospital in Glasgow as
Labour Ward coordinators. Both were practicing Roman
Catholics who had informed their employer of their
conscientious objection to taking part in the termination
of pregnancy. A small proportion of terminations took
place in the Labour Ward rather than the Gynaecology
Ward where a midwife would be assigned to give these
patients a one to one care. The Labour Ward coordinator
booked in patients, allocated staff in the ward, and
supervised and supported midwives.
The respondents did not wish to undertake these tasks
in connection with patients undergoing terminations.
They were dissatisfied with the arrangements made to
accommodate their objections and raised a grievance
with their employer. The hospital took the view that
delegation, supervision and support did not constitute
participating in the treatment and rejected the grievance.
The respondents brought proceedings for judicial review
challenging the decision letters received as a result of the
grievance procedure.
They were unsuccessful before the Lord Ordinary but
succeeded before an Extra Division of the Inner House,
which granted a declaration that the scope of section 4(1)
included the entitlement to refuse to delegate, supervise
and/or support staff in the provision of care to patients
undergoing terminations save as required by section 4(2).
This was a wide interpretation of the right, which was said
to extend to any involvement in the process of treatment,
the object of which was to terminate a pregnancy. The
respondents employers appealed to the Supreme Court.
UK Abortion Act 1967
4 Conscientious objection to participation in treatment.
1) Subject to subsection (2) of this section, no person
shall be under any duty, whether by contract or
by any statutory or other legal requirement, to
participate in any treatment authorized by this Act
BB Issue 28, January - March 2015
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78
79
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ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Ngong Road, Upper Hill P.O Box 10443 - 00100, Nairobi - Kenya
Tel: +254 (020) 2712767, 2011614 ,2719231 Mobile: +254 718 799 464, 736 863 309
www.kenyalaw.org
mykenyalaw
@mykenyalaw
Mykenyalaw
National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary